Legal summary
October 2024
Central Unitaria de Traballadores/as v. Spain - 49363/20
Judgment 17.10.2024 [Section V]
Article 11
Article 11-1
Freedom of peaceful assembly
Ban on demonstration organised by the applicant trade union for 1 May 2020, during the early stages of the COVID-19 pandemic: no violation
Facts – In response to the COVID-19 pandemic, by Royal Decree no. 463/2020 of 14 March 2020, the Spanish Government declared a “state of alarm” which remained in force until 21 June 2020. The Decree introduced, among other measures, limitations on freedom of movement.
On 20 April 2020, the applicant submitted a notification to the Government Sub‑Delegation in Pontevedra, declaring its intention to hold a convoy‑demonstration in Vigo, on 1 May 2020, International Workers’ Day. The applicant stated that the demonstrators would participate in individual cars, would take appropriate protective measures and would be identified by the trade union.
On 21 April 2020 the Sub-Delegation gave a reply which the domestic courts subsequently interpreted as a prohibition of the demonstration. The applicant’s appeals were unsuccessful with the prohibition being reviewed, in reasoned decisions, by domestic courts at two levels prior to the proposed date of the demonstration.
Law – Article 11:
The ban on the demonstration had interfered with the exercise of the applicant’s right to freedom of assembly. The interference had not consisted of a blanket ban on holding public events in the relevant period, but had banned a specific demonstration which the applicant had intended to hold on 1 May 2020. There had been nothing to suggest that the interference had been related to the views held by the members of the trade union or to the subject matter of the prospective demonstration. Accordingly, the Court was unable to conclude that the restriction had been a content-based one.
(a) Whether the interference was lawful – The Court agreed with the domestic courts’ assessment of the wording of the Sub-Delegation’s decision as perfunctory and ambiguous. However, the domestic courts had accepted that that decision had nonetheless stated the key underlying reason for the interference, namely the public health emergency caused by the spread of COVID‑19 and the potential impact of the demonstration on public order, including the possibility of individuals being put in danger. The domestic courts had also stressed that the right to assembly had not been suspended at the material time and had proceeded to assess whether the interference had been compatible with the domestic legal standards, albeit in the peculiar context of the early stages of the COVID-19 pandemic. In so doing, they had relied on Article 21 § 2 of the Constitution and section 10 of the Right of Assembly Act and on the relevant constitutional doctrine concerning ordinary restrictions of the right to demonstrate. Both of those provisions clearly stipulated that a demonstration could be prohibited if there were well-founded reasons to believe that public order could be disturbed so as to endanger individuals or property. Therefore, the interference had been based on Article 21 § 2 of the Constitution and section 10 of the Right of Assembly Act and had been “prescribed by law”.
(b) Whether the interference pursued a legitimate aim – The interference had pursued the legitimate aims of the “protection of health” and the “protection of the rights and freedoms of others”.
(c) Whether the interference was necessary in a democratic society –
(i) Margin of appreciation – The Court had previously held that healthcare policy matters came within the wide margin of appreciation of the national authorities. Equally, the respondent State’s margin of appreciation will usually be wide if it is required to strike a balance between competing private and public interests or Convention rights. It appeared there had been common ground among the member States regarding the need to take urgent measures to protect public health in the face of the COVID-19 pandemic but that there had been no European consensus concerning the form that those measures should take. In addition, where an interference was not content-based, Contracting States had to be allowed a wider margin of appreciation in relation to restrictions on the location, time or manner of conduct of an assembly. Therefore, the margin of appreciation reserved to the authorities had been a wide one.
(ii) Whether there was a “pressing social need” – The limitations complained of had been put in place within a very specific context, namely a public health emergency and in view of significant health considerations concerning not only the applicant but society at large. The COVID‑19 pandemic had threatened to have very serious consequences not just for health, but also for society, the economy, the functioning of the State institutions and the organisation of life in general, and had been a situation that qualified as exceptional and unforeseeable circumstances. Therefore, the prohibition of the demonstration had been imposed in the context of a pressing social need of protecting individual and public health.
(iii) The proportionality of the interference – In consonance with the Court’s case-law, the domestic courts had found that the Spanish authorities had had a positive obligation to protect public health through the application of preventive measures against the spread of the virus, as well as to protect the life and physical integrity of citizens. When balancing the right to assembly against the right to life and physical integrity and the State’s constitutional obligation to protect public health, the domestic courts had highlighted “the enormous magnitude” of the effects the COVID-19 pandemic had had on the Spanish population and healthcare system at the relevant time. Mindful of the State’s wide margin of appreciation in healthcare matters, and noting the statistics revealing a particularly high number of confirmed COVID-19 cases in Spain and notably in Galicia, and thousands of registered COVID‑19‑related deaths in the country at the time in question, the Court did not find any reason to depart from that assessment.
Against that background, the domestic courts had found that in the particular circumstances of the case the obligation to protect the life and health of others and the obligation of the State to safeguard public health had taken precedence over the right of assembly. In doing so, they had attached substantial weight to the protection of the health of the demonstrators themselves, as well as that of third persons. The courts at two levels of jurisdiction had assessed the route proposed by the organisers and thus had evaluated relevant local conditions. They had addressed in detail the applicant trade union’s key arguments and had given reasons which had been clearly relevant.
The domestic courts’ arguments in respect of the disruption to traffic, if taken alone, were not sufficient. The locational considerations had to be assessed together with the alleged insufficiency of protection measures inherent to the proposed form of demonstration. Indeed, the courts had found that the form of demonstration chosen by the applicant trade union could still have had an adverse impact on the safety of the participants and other persons. The applicant trade union had never specified, even approximately, a potential number of participants or argued that the planned event had been conceived as a small-scale one. Therefore, the domestic courts’ analysis of the risks in a scenario where there had been a “massive response to the call” to participate could not be assessed as unreasonable. The domestic courts had found, in essence, that the type of demonstration suggested by the applicant trade union – that is, a convoy of individual cars – had been in any event not sufficient to avert the risk of infection, irrespective of the route chosen.
It was not the Court’s role to assess retrospectively whether, at the time of their examination of the case, the approach chosen by the domestic courts could be perceived as overly cautious. In the face of unprecedented conditions, such as those which had obtained in the first months of the COVID‑19 pandemic, even an overly cautious approach, could not be seen as disproportionate to the legitimate aims pursued. The applicant’s arguments had been swiftly reviewed by the courts which had rejected them with reference to weighty public health considerations specific to the early stage of the pandemic and relevant to the proposed demonstration. In the particular circumstances of the case and having regard to their detailed assessment of those circumstances, the domestic courts could not be considered to have failed to explore potential solutions for accommodating the planned demonstration, or, more generally, to have given insufficient reasons for the decision to prohibit the demonstration.
(d) Conclusion – In the light of the above, bearing in mind the authorities’ wide margin of appreciation, as well as the exceptional factual context of the case, the authorities had struck a fair balance between the legitimate aims of the “protection of health” and the “protection of the rights and freedoms of others” on the one hand, and the requirements of freedom of assembly on the other. They had based their decisions on an acceptable assessment of the facts and on reasons which had been relevant and sufficient and had not overstepped their margin of appreciation. The interference had been “necessary in a democratic society”.
Conclusion: no violation (six votes to one).
(See also Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], 21881/20, 27 November 2023, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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