The Armed Forces, the Police and Civil Servants
The Right to Association and to Peaceful Assembly
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
As a qualified right it is for the applicant to establish the activity that they wish to carry out or that is being restricted falls within the protection of Article 11(1) and that there has been an interference with it. The burden then shifts to the state, that must then be able to justify their actions on the basis of legality, necessity, proportionality and non-discrimination.
Article 11 guarantees two rights:
• Peaceful assembly - or the right to protest
• Freedom of association and the right to form a trade union
Both of these rights are essential to the functioning of a democratic society, thus it should not be interpreted restrictively.
Primarily it amounts to a negative right, a right not to be prevented or restricted by the state from meeting and associating with others to pursue particular aims, except to the extent permitted by Art.11(2). This is not confined to restrictions that take place prior to a meeting, but also comprises any indirect restrictions on the exercise of the right, including punitive measures consequent on the exercise of the right. In view of its status as a “freedom” it also comprises a right not to be compelled to associate with others.
Art. 11 may also require positive measures to be taken, even in the sphere of relations between individuals.
Scope of Article 11
Peaceful Assembly and the Right to Protest
• Close links with freedom of expression and the right to manifest religious belief
• Includes the right to march as well as static gatherings
• Obligation on the State to take peaceful and appropriate measures to protect peaceful protest
• Protest control should not discourage the protest
|
|
|
• Banning orders
• The right to ‘hang out’ and share the company of others
• Peaceful assembly in private space – i.e. shopping malls
Relationship with other rights
Rights and freedoms protected by Art.11 are closely related to those protected by Art. 9 and 10, e.g. where the organisation of religious community is in issue, Art.9 must be interpreted in the light of Art.11, which safeguards associative life against unjustified state interference. Article 17 will also be relevant to peaceful assembly. Protesters cannot rely upon their Article 11 rights in order to destroy the Convention rights of others.
Positive obligations
Article 11 imposes positive obligations upon the State to ensure that peaceful assembly and protest can be carried out (Platform "ÄRZTE FÜR DAS LEBEN" v Austria (21 June 1988); Sørensen v. Denmark and Rasmussen v. Denmark (11 January 2006), paras 57-58).
For Article 11 to apply the crucial feature in relation to an assembly or protest is that it is peaceful. Even if it turns violent, as long as its intent was peaceful, Article 11 is still engaged (Christians against Racism and Fascism v UK (Decision 16 July 1980)). Article 11 may even apply when the assembly is illegal.
Protest controls
In Ezelin v France (26 April 1991) it was held that the State's need to prevent disorder must not discourage people from making their beliefs known in a peaceful way. In that case the applicant was a lawyer who attended a protest which then turned violent, and he was then reprimanded for breach of discretion by his professional body, and this sanction was held to be disproportionate and to amount to a chilling effect on his ability to peacefully protest. There is no interference with Article 11 if there is a requirement of prior notice and authorisation for a march or a meeting, as long as the purpose behind such a requirement is not to frustrate the peaceful assembly.
Banning orders
A general ban on demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures. Banning orders must therefore be strictly justified.
|
|
|
The company of others
The purpose of the assembly or protest is irrelevant so long as it is peaceful; but if there is no real purpose for the assembly Article 11(1) is probably not engaged. Therefore youths who just wanted to 'hang out' together and were prevented from doing so could not rely on Article 11 (Anderson and nine others v UK (Decision 27 October 1997)). Similarly, the right to assembly does not give a right to share the company of others. As such, a prisoner being held in isolation could not rely upon the Article (McFeeley v UK ( Decision 15 May 1980 )).
Private space
The extent to which Article 11 gives the right to protest in quasi-public or private spaces such as shopping malls has been limited. In Appleby v UK (24 September 2003) the majority of the Strasbourg Court held that Article 11 did not apply in relation to people who wished to leaflet in a shopping mall.
The Armed Forces, the Police and Civil Servants
• These groups are excluded from the general protection of Article 11.
• Restrictions on the activities must therefore only be lawful and non-arbitrary
• In Rekvenyi v Hungary ( 20.05.1999 ) a ban on the political activities of the police (in relation to freedom of expression) was justifiable on the basis that a politically neutral police force is in the public interest
Not all those involved in the administration of the State will be excluded from the principles implicit in Article 11. In Vogt v Germany (26 September 1995) school teachers, though as a matter of German law technically part of the administration of the State, were held to have Article 10 and, by implication, Article 11 rights. Therefore this provision in Article 11 should be interpreted narrowly.
It also relates to Article 6 and the right to a fair trial in the determination of civil rights. The armed forces, the police and those essential to the administration of the State are also excluded from those provisions (Pelegrine v France (8 December 1999)).
Relationships not covered. The relationship between workers employed by the same employer does not amount to an association, merely because of a common contractual relationships between employee and employer. There is no right of freedom of association with animals. A right for prisoners to have contact with other prisoner cannot be derived from Art.11. Nor is Art.11 engaged by penalties imposed for conduct engaged in by politicians to increase the vote for their political party. It is questionable whether Art.11 is applicable to membership of a pension fund. Article 11 does not protect illicit activities.
|
|
|
Violent demonstrations excluded. Those who participate in violent demonstrations cannot rely on Art.11 (see Art.17). However, a “sit-in” on a public road does not constitute a “violent” demonstration within the meaning of Art.11, even if traffic is stopped as a result. In determining whether a demonstration is peaceful, the Commission has focused on the intention of the organisers. Thus, the Commission has held, that : “the right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration <...> the possibility of violent counter-demonstrations, or the possibility of extremists with violent intentions <...> joining the demonstrations cannot as such take away that right”. However, where there is an infringement of a right to peaceful assembly, any incitement to violence will be highly material to issues of justification under Art.11(2).
Дата добавления: 2019-02-22; просмотров: 115; Мы поможем в написании вашей работы! |
Мы поможем в написании ваших работ!