‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Saturday, 9 January 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 1

Bolotnaya Square demonstration: Russian authorities failed to ensure the peaceful conduct of the assemblyThe case of Frumkin v. Russia concerned a political rally at Bolotnaya Square in Moscow on 6 May 2012, held to protest against “abuses and falsifications” in the elections to the State Duma and the presidential elections - violations of Article 11 (freedom of assembly and association), Article 5 § 1 (right to liberty and security); and Article 6 §§ 1 and 3 (d) ECHR - The Court found in particular that the authorities had not complied with the minimum requirements in their duty to communicate with the leaders of the rally, which had been an essential part of their obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all citizens involved. Mr Frumkin’s arrest, detention and administrative conviction had been grossly disproportionate to the aims pursued; those measures must have had the effect of discouraging him and others from participating in protest rallies or more generally from engaging actively in opposition politics.

“93. The right to freedom of assembly, one of the foundations of a democratic society, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation (see Barraco v. France, no. 31684/05, § 42, 5 March 2009). It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, and Galstyan v. Armenia, no. 26986/03, § 114, 15 November 2007).
94. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether it answered a “pressing social need” and, in particular, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001; Achouguian v. Armenia, no. 33268/03, § 89, 17 July 2008; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Barraco, cited above, § 42; and Kasparov and Others v. Russia, no. 21613/07, § 86, 3 October 2013). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Rai and Evans (dec.), nos. 26258/07 and 26255/07, 17 November 2009; and Gün and Others v. Turkey, no. 8029/07, § 75, 18 June 2013; see also Gerger v. Turkey [GC], no. 24919/94, § 46, 8 July 1999; and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998-I).
95. The protection of opinions and the freedom to express them, as secured by Article 10, is one of the objectives of freedom of assembly as enshrined in Article 11. A balance must always be struck between the legitimate aims listed in Article 11 § 2 and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, §§ 37 and 52, Series A no. 202; Barraco, cited above, § 27; Fáber v. Hungary, no. 40721/08, § 41, 24 July 2012; and Taranenko v. Russia, no. 19554/05, § 65, 15 May 2014).
96. The Contracting States must refrain from applying unreasonable indirect restrictions upon the right to assemble peacefully. In addition, there may be positive obligations to secure the effective enjoyment of this right (see Oya Ataman v. Turkey, no. 74552/01, § 36, ECHR 2006‑XIII). The States have a duty to take reasonable and appropriate measures with regard to lawful demonstrations to ensure their peaceful conduct and the safety of all citizens, although they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 251, ECHR 2011 (extracts); see also Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, § 34, Series A no. 139; Oya Ataman, cited above, § 35; and Protopapa v. Turkey, no. 16084/90, § 108, 24 February 2009). It is incumbent on the State, in particular, to take the appropriate preventive security measures to guarantee the smooth conduct of a public event, such as ensuring the presence of first‑aid services at the site of demonstrations and regulating traffic so as to minimise its disruption (see Oya Ataman, cited above, § 39, and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 158-60, 15 October 2015).
97. It is important for the public authorities, moreover, to show a certain degree of tolerance towards peaceful gatherings, even unlawful ones, if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (ibid., §§ 37 and 39). The limits of tolerance expected towards an irregular assembly depend on the specific circumstances, including the duration and the extent of public disturbance caused by it, and on whether its participants had been given sufficient opportunity to manifest their views (see Cisse v. France, no. 51346/99, §§ 51-52, ECHR 2002‑III; Éva Molnár v. Hungary, no. 10346/05, §§ 42-43, 7 October 2008; Navalnyy and Yashin v. Russia, no. 76204/11, §§ 63‑64, 4 December 2014; and Kudrevičius, cited above, §§ 155-17 and 176-77).
98. On the other hand, where demonstrators engage in acts of violence, interferences with the right to freedom of assembly are in principle justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others (see Giuliani and Gaggio, cited above, § 251). The guarantees of Article 11 of the Convention do not apply to assemblies where the organisers and participants have violent intentions, incite to violence or otherwise deny the foundations of a “democratic society” (see Stankov and the United Macedonian Organization Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001-IX; the United Macedonian Organization Ilinden and Ivanov v. Bulgaria, no. 44079/98, § 99, 20 October 2005; Sergey Kuznetsov v. Russia, no. 10877/04, § 45, 23 October 2008; Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 80, 21 October 2010; Fáber, cited above, § 37, 24 July 2012; and Gün and Others, cited above, § 70). The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities (see Christian Democratic People’s Party v. Moldova (no. 2), no. 25196/04, § 23, 2 February 2010).
99. In any event, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour (see Ezelin, cited above, § 53; Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004; and Primov and Others v. Russia, no. 17391/06, § 155, 12 June 2014). Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1 of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 92, ECHR 2011).”
Retrospectively extended preventive detention of dangerous offender justified in view of his mental disorder and treatment in adequate institutioncase of Bergmann v. Germany - no violation of Article 5 (right to liberty and security) and Article 7 (no punishment without law).of the European Convention on Human Rights - The case concerned Mr Bergmann’s preventive detention which was retrospectively extended beyond the maximum period of ten years permissible at the time of his offences and conviction.
This was the first case in which the Court examined the compatibility with the Convention of a convicted offender’s preventive detention for therapeutic treatment purposes under the new legal framework governing preventive detention in Germany. The amendments to the Criminal Code, which entered into force on 1 June 2013, were adopted following the German Federal Constitutional Court’s finding that all provisions on the retrospective extension of preventive detention and on the retrospective imposition of such detention were unconstitutional.
The Court came to the conclusion that Mr Bergmann’s preventive detention could be justified under Article 5 § 1 (e) as detention of a person “of unsound mind”. It observed in particular that the German courts had found that he suffered from a mental disorder, namely a sexual deviance, necessitating both treatment with medication under medical supervision and therapy. Since being placed in a new detention centre, he was being provided with the therapeutic environment appropriate for a person detained as a mental health patient. Moreover, his preventive detention was not arbitrary, the courts having found that despite his advanced age he could still be considered a risk to the public.
Furthermore, the Court concluded that in cases such as Mr Bergmann’s, where preventive detention was extended because of and with a view to the need to treat a mental disorder, its nature and purpose changed to such an extent that it was no longer to be classified as a “penalty” within the meaning of Article 7.
“149. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see M. v. Germany, cited above, § 117 with further references).

150. The concept of “penalty” in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 30, Series A no. 317‑B; and Del Río Prada, cited above, § 81). The wording of the second sentence of Article 7 § 1 indicates that the starting-point – and thus a very weighty factor (see Glien, cited above, § 121) – in any assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a “criminal offence”. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch, cited above, § 28; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006‑XV; and Kafkaris v. Cyprus [GC], no. 21906/04, § 142, ECHR 2008). The severity of the measure is not, however, in itself decisive, since many non-penal measures of a preventive nature may, just as measures which must be classified as a penalty, have a substantial impact on the person concerned (see Welch, cited above, § 32; M. v. Germany, cited above, § 120, and Del Río Prada, cited above, § 82).
181. In view of the foregoing, the Court, having assessed in their entirety the relevant factors to determine whether the measure constitutes a penalty and making its own assessment, considers that preventive detention implemented in accordance with the new legislative framework as a rule still constitutes a “penalty” for the purposes of Article 7 § 1. It finds that the more preventive nature and purpose of the revised form of preventive detention do not suffice to eclipse the fact that the measure, which entails a deprivation of liberty without a maximum duration, was imposed following conviction for a criminal offence and it is still determined by courts belonging to the criminal justice system.
182. However, in cases such as that of the applicant, where preventive detention is extended because of, and with a view to the need to treat his mental disorder, the Court accepts that both the nature and the purpose of his preventive detention substantially changed and that the punitive element, and its connection with his criminal conviction, is eclipsed to such an extent that the measure is no longer to be classified as a penalty within the meaning of Article 7 § 1.
183. There has accordingly been no violation of Article 7 § 1 of the Convention.”

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