Europe today has seen governments more than ready to crackdown hard on political protests, as demonstrated by recent events in Ukraine, Russia and Turkey. As protesters and government forces clash, there is a need for clear standards on freedom of assembly that determine the line between lawful and unlawful protests. This issue is at the heart of a case now before the Grand Chamber of the European Court of Human Rights, Kudrevičius v. Lithuania, whose outcome will have implications for the right to freedom of assembly across Europe.
The case concerns a group of five farmers who decided to protest a fall in prices of agricultural products and the lack of state subsidies. The protest blocked access to a highway, causing major traffic disruptions on three main roads. The protest was conducted peacefully, and protesters allowed emergency vehicles access to the road, and also allowed passenger vehicles and vehicles carrying dangerous goods to pass. The blockage lasted for two days.
After the protest, the five applicants were prosecuted under the Lithuanian Criminal Code for the offense of having incited or participated in riots. They were found guilty, and each given a 60 day custodial sentence. Their sentences were suspended for one year, but the applicants were ordered not to leave their homes for more than seven days during that year unless they had explicit permission from the authorities.
In the Chamber’s original judgment, the majority found the sanctions to be an interference with the applicants’ right to freedom of assembly under Article 11 of the European Convention on Human Rights. The Chamber ruled that the state’s action was not proportionate to the actions of the protesters. The right to freedom of assembly is one of the fundamental rights in a democratic society, and therefore should not be interpreted restrictively. The court noted that any demonstration in a public place will cause some disruption of ordinary life, and authorities must show a degree of tolerance for this if the fundamental right to freedom of assembly is to be duly protected. This demonstration had been entirely peaceful, the applicants had taken measures to ameliorate the disruption, and engaged in good faith negotiations with the government throughout the demonstration. Finally, the Chamber majority held that considering this case in the context of riots had not allowed the Lithuanian courts to properly asses the proportionality of the state’s response. A briefing paper exploring recent ECHR jurisprudence on demonstrations, riots and protests is available here.
From a human rights perspective, the Chamber’s majority judgment in this case set a positive precedent on the right to freedom of assembly. Firstly, the court confirmed that fundamental rights such as freedom of assembly could not be set aside for financial interests alone. Peaceful assemblies must be tolerated, especially where the participants show flexibility and willingness to cooperate with the authorities. This type of protest is relatively common in Europe and an important means of protest.
Secondly, the court addressed the issue of categorizing peaceful demonstrations as a riot offense. This is an increasingly common practice among Council of Europe member states, making it an important issue for the court to address. The majority’s finding that peaceful protests should not be treated as a riot offense was therefore a positive step.
But the Chamber’s decision was not unanimous: three of the seven judges would have found no violation, as they considered that the national courts were justified in assessing this demonstration as a riot. They viewed the disruption of public order as a serious offense, emphasizing that this was not a spontaneous event but an organized demonstration with disruption as its aim. In their view, the applicants had not been punished for their participations in the demonstrations as such, but rather for the disruption they had caused by blocking the highway. According to this view, the right to freedom of assembly does not extend to the point that it might infringe the rights of others. As to the proportionality of the sanctions, the minority held that the criminalization of “wild” roadblocks is not excessive per se. They drew a line between inconvenience to the public and general chaos; the former being tolerable, the latter not.
The referral to the Grand Chamber is not entirely surprising, given that the judgment was adopted by a narrow majority, on an issue that has been the subject of relatively little litigation before international courts. However, there is a risk that the Grand Chamber might reach a different conclusion from the Chamber majority, weakening the right to freedom of assembly at precisely the moment when that right is increasingly under attack across Europe. The last thing Europe needs is a Grand Chamber judgment legitimizing the use of riot offenses to clamp down on peaceful political protest.
The Grand Chamber referral gives the court with a critical opportunity to further expound on and solidify the right to freedom of assembly. Clarification in this area of law is needed at the international level, and the Grand Chamber can now provide just that. This case will allow the Grand Chamber to clarify the scope of Article 11, especially on two points: what level of tolerance should authorities extend to protests and demonstrations; and whether the charge of rioting can be used against peaceful demonstrations. The Grand Chamber should uphold the positive precedent set by the majority in this case—not overturn it.