KNEŽEVIĆ v. MONTENEGRO

FIFTH SECTION

DECISION

Application no. 54228/18
Milan KNEŽEVIĆ
against Montenegro

The European Court of Human Rights (Fifth Section), sitting on 2 February 2021 as a Chamber composed of:

Síofra O’Leary, President,
Mārtiņš Mits,
Stéphanie Mourou-Vikström,
Lətif Hüseynov,
Jovan Ilievski,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to the above application lodged on 8 November 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Milan Knežević, is a Montenegrin national who was born in 1980 and lives in Podgorica. He was represented before the Court by Mr M. Jovanović, a lawyer practising in Novi Sad (Serbia).

2.  The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić.The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  The applicant was an opposition member of parliament and one of the opposition leaders at the relevant time. His political party was part of the opposition coalition “Democratic Front” (Demokratski front – “the DF”).

5.  Between 3 and 9 September 2015 the DF submitted two requests to the Secretariat for Municipal Affairs and Traffic (Sekretarijat za komunalne poslove i saobraćaj; “the Secretariat”), seeking authorisation to install food stands, a water tank and fifteen mobile toilets in the park opposite Parliament. This was requested for a period of twenty days in order to facilitate a gathering that would begin on 26 or 27 September (one of the requests specified that the gathering would begin on 26 September, and the other one that it would begin on 27 September).

6.  On 22 September 2015 the DF notified the Ministry of the Interior that it would organise a peaceful protest rally in front of Parliament at 6 p.m. on 27 September 2015. The purpose of the gathering was to publicly protest and express dissatisfaction with citizens’ living standards and to request the formation of a transitional government whose task would be to prepare, organise and hold free, democratic and fair elections. The notification specified that the leader of the protest was M.Đ. and that the organisers would provide 100 security guards (redari) to ensure order at the protests. The notification was signed by DF representatives A.M., N.M., B.R., S.B. and the applicant.

7.  On 24 and 25 September 2015 the Secretariat issued two decisions authorising the installation of mobile toilets and food and water stands, as well as a stage and accompanying objects in the park between 27 September and 3 October 2015. Both decisions stated that they were subject to appeal and each contained a plan showing the exact location of the facilities to be installed in the park.

8.  On 27 September 2015 the protest rally began in front of Parliament.

9.  On 28 September 2015 the Security Centre of the Police Directorate (Centar bezbjednosti – “the Security Centre”) reported to the municipal police that about 300 tents had been set up in the traffic lanes of the boulevard in front of Parliament and alongside the neighbouring buildings. A municipal police inspector made an on-site inspection. She noted the tents and observed that metal hooks damaging the asphalt had been used to install them.

10.  On 30 September 2015 the DF requested a prolongation of the authorisation for the installation of mobile objects, including the tents, “in the boulevard ...”, for at least seven more days.

11.  On 30 September and 2 October 2015 the Secretariat rejected requests by one of the DF coalition parties and the DF respectively to install the tents in front of Parliament, on the grounds that it had no competence to give such authorisation. The decisions specified that tents were not mobile objects within the meaning of section 4 of the Decision on installation and removal of temporary objects (see paragraph 54 below), and could not be treated as such. The decisions provided for the possibility of an appeal.

12.  On 2 October 2015 the Secretariat issued two decisions authorising the DF to set up the stage, food stands and fifteen toilets in the park opposite Parliament between 4 and 10 October 2015. After this period those objects were to be removed and the space returned to its previous condition. The exact locations were defined in the enclosed pictures, which were considered constituent parts of the decisions. Both decisions provided for the possibility of an appeal.

13.  On 3 October 2015 the Security Centre informed the municipal police that about 300 tents and the stage had been installed in the traffic lanes in front of Parliament, and enclosed photos. The same day the municipal police invited the DF and M.Đ. to come and give a statement concerning the setting up of tents.

14.  On 5 October 2015 V.Č., a person authorised by M.Đ., stated that the stage and the tents “[were] going to remain until further notice, but [they had] taken all the measures in accordance with the regulations to extend the permission”.

15.  On 5 October 2015 the municipal police inspector in charge of roads issued a decision requesting the DF and M.Đ. to remove the stage and the tents from the traffic lanes within a day. Should they not comply with the decision, it would be administratively enforced. The decision provided for the possibility of an appeal. The decision was delivered the same day to one of the DF coalition parties and left on its premises. V.Č. was informed about its contents, but he refused to sign the delivery slip.

16.  On 6 October 2015 the Security Centre prohibited all types of vehicles from using the boulevard in front of Parliament between 4 and 10 October 2015 on account of the peaceful protest rally.

17.  On 7 October 2015 the municipal police inspectors found that the organisers had not complied with the police’s decision of 5 October and that the stage and the tents had neither been removed from the road, nor had their installation been authorised.

18.  On 10 October 2015 two municipal police inspectors unsuccessfully attempted to enforce the decision. In particular, they went to the site in front of Parliament and informed the DF representatives A.M., N.M., and B.R. (see paragraph 6 in fine above) and a group of people behind them that they were to proceed with the administrative enforcement of the decision of 5 October. In reply A.M. said “we are not allowing it” and B.R. said “this is a free territory, go away”. The same day, the municipal police requested the assistance of the Police Directorate for 17 October 2015 at 6.30 a.m.

19.  On 12 October 2015 a notice (obavještenje) was issued stating that the municipal police order of 5 October 2015 would be administratively enforced on 17 October at 6.30 a.m. On 15 October 2015 the municipal police inspector issued a report noting, inter alia, that the notice had been prepared and that it was not going to be served on the DF owing to the probable risk of prevention or obstruction of the enforcement.

20.  On 16 October 2015 the Security Centre issued a decision to assist the municipal police the next day and adopted a plan of assistance.

21.  On 17 October 2015, between 6.30 and 7.40 a.m., the municipal police, with the assistance of the regular police, removed the stage and the tents from the boulevard in front of Parliament.

22.  The applicant submitted, and this was not contested by the Government, that at the time there were about fifty protesters sleeping in the tents. The Government submitted, and this was not contested by the applicant, that the police first warned them through megaphones, and then invited them to step away so that the stage and the tents could be removed. The protesters, including the applicant, formed a human shield and put up resistance. In particular, the applicant, according to his own submission to the Court, attempted first to push back one of the police officers with his shoulders and body, but to no avail. After seeing that the tents were being removed, the applicant attempted to go in that direction, but one of the police officers stood in front of him. The applicant pushed the police officer in the chest with his palms and shoulders, and grabbed his shoulders in order to move him, but was “bounced back as if from a wall”. The applicant also submitted that the police officer had been “relaxed, had kept his arms by his side, and had smiled ironically” at the applicant, telling him “feel free to hit me, you cannot hurt me” (“udri slobodno, ne možeš mi ništa”). At that point the applicant removed the police officer’s hat from his head and took it away. A few moments later the applicant was punched by another person not wearing a uniform, and pepper-sprayed by yet another person. At some point a motor vehicle broke through a police cordon and drove into the boulevard. In response to all this the police officer in command informed those present that the gathering was terminated. The applicant submitted that he had requested an enforcement decision but to no avail.

23.  A medical report from the hospital noted that the applicant had a haematoma in the frontal part of his head and around the right zygomatic bone, and redness (eritem) around the right cheek and the right side of the neck. The doctor could not tell the size of the haematoma because of this redness.

24.  On 18 October 2015 the Security Centre questioned the applicant. He stated that he did not know the police officer in question personally, but that the officer had insulted him by saying “look at the MP pushing pigheadedly, feel free to hit me, you cannot hurt me”. Having been revolted by this, the applicant had taken off the officer’s police hat and had taken it away. He also submitted that an unknown person had punched him in the face and somebody else had pepper-sprayed him, but he had not seen who.

25.  On 19 October 2015 the Security Centre filed a criminal complaint with the State prosecutor’s office against the applicant on account of a reasonable suspicion that he had assaulted an official performing his duties (napad na službeno lice u vršenju službene dužnosti).

26.  On 18 October 2017 the applicant was found guilty and sentenced to seven months’ imprisonment. The court examined a number of items of evidence, including the decisions relating to the protests and three pieces of video footage. It found that the applicant had pushed and hit the police officer M.M. several times in the chest with his shoulders, and then grabbed his neck and removed his police hat, before leaving. The court also found that the police officer in question had acted lawfully, staying still and keeping his hands down, without assaulting the applicant, and that it was the applicant who had used excessive force.

27.  On 23 January 2018 the High Court (Viši sud) in Podgorica reduced the applicant’s sentence to four months. The court also held that the police presence at the location in question at the time had been lawful. As the organisers had not complied with the decisions of the relevant bodies to remove the mobile objects after 10 October 2015, the municipal police had lawfully intervened, assisted by the regular police.

28.  On 7 March 2018 the applicant lodged a constitutional appeal. He submitted, inter alia, that the courts’ judgments finding him guilty of the criminal offence of which he had been accused had severely violated his right to peaceful assembly under Article 11 of the Convention.

29.  On 7 May 2018 the Constitutional Court dismissed the applicant’s constitutional appeal. The court held, in particular, that the applicant had lost his right to protection of his freedom to peaceful assembly by acting violently against a police officer.

30.  The applicant served his sentence between 20 March and 15 June 2018, when he was released on parole.Other relevant facts

31.  On 17 and 18 October 2015, in the evening and separately from the events complained of, DF organised other protest gatherings, without submitting a prior notification. According to media reports, during the latter gathering several incidents occurred, including when groups of protesters threw torches, stones and bottles at the police and the police responded with teargas. Also, stones were thrown at several windows on the premises of the Democratic Party of Socialists (the ruling party at the time) and a private television station. Two people were injured in the two incidents.

32.  On 19 October 2015 the DF submitted a notification for another protest rally to be held on 24 October 2015 on Trg Republike in Podgorica. The notification was duly noted and the protest rally took place.

33.  On 20 July 2017 the Minor Offences Court (Sud za prekršaje) in Podgorica found, in relation to the events of 11 to 15 October 2015, that the applicant and the other organisers and their representatives had not committed the offence provided for in section 315 in conjunction with section 122 of the Road Traffic Safety Act. In particular, the section in question referred to sports and other events taking place on roads, and the public protests organised by the defendants could not be considered a sports or other event within the meaning of that section. Instead they had been governed by the Public Assemblies Act. That decision was upheld by the High Minor Offences Court (Viši sud za prekršaje) on 25 September 2017.

34.  On 5 March 2019 the applicant’s driver was awarded 7,058.33 euros (EUR) in damages in civil proceedings as a result of the police officers having used excessive force against him on 17 October 2015 in the morning.Relevant domestic lawConstitution of Montenegro (Ustav Crne Gore, published in the Official Gazette of Montenegro – OGM – nos. 001/07 and 038/13)

35.  Article 52 guarantees the freedom of peaceful assembly, without authorisation, subject to prior notification of a competent body. The freedom of assembly may be temporarily restricted by a decision of a competent body for the prevention of disorder or of the commission of a criminal offence, for the protection of health or morals or for the safety of people and property, in accordance with the law.Public Assemblies Act (Zakon o javnim okupljanjima, published in Official Gazette of the Republic of Montenegro – OG RM – no. 031/05, and OGM nos. 073/10, 040/11, 047/14 and 001/15)

36.  This Act was in force between 26 May 2005 and 17 August 2016. It set out details as regards the exercise of the freedom of public assembly.

37.  Section 3 provided that a peaceful assembly and a public protest was any organised assembly of more than twenty persons held in public in order to express political, social and other beliefs and interests.

38.  Section 4 provided that the freedom of assembly could be temporarily restricted for the protection of other people’s rights, public order and safety, public morals, the environment and health.

39.  Sections 6 and 7, taken together, provided that the organiser of a peaceful assembly had to submit a notification to the police at least five days in advance. The notification had to contain, inter alia, the place, date and time of the assembly.

40.  Section 9 provided that a peaceful assembly could be held at any appropriate location. Section 9a provided that, as an exception to section 9, a peaceful assembly could not be held on, inter alia, motorways or regional and local roads in a way which jeopardised traffic safety; within fifty metres of, inter alia, the buildings of the Parliament, the President, the Government and the Constitutional Court of Montenegro; or at other places where the assembly, in view of the location and the time, the number of participants or its character, could seriously jeopardise the movement and work of a large number of people, the rights and freedoms of others, the health or safety of people or the security of property or could breach public order and peace.

41.  Sections 13 and 15 respectively provided that the organiser had to ensure order and peace at the peaceful assembly, and the unhindered passage of vehicles of the police, emergency medical services and firefighters.

42.  Sections 20 and 21 provided that the police were authorised to terminate and prohibit the gathering if, inter alia, it was held outside of the place specified in the notification. The relevant police officer was to inform the leader of the gathering about the order for the termination and prohibition of the gathering. If the leader of the gathering or any of its participants did not comply with the order, the police officers would take the necessary measures to disperse the participants.

43.  Section 31 provided for fines of between EUR 500 and 15,000 for a legal entity which did not comply with the provisions of the Act. This included when the entity had organised a peaceful assembly in breach of parts of section 9a referred to above and section 15 (see paragraphs 40 and 41 in fine above).

44.  On 24 February 2017 the Constitutional Court found that section 9a of the Act was not in compliance with the Constitution and the Convention. This decision was published in OGM no. 045/17 on 12 July 2017.Criminal Code of Montenegro (Krivični zakonik Crne Gore, published in OG RM nos. 070/03, 013/04 and 047/06, and OGM nos. 040/08, 025/10, 073/10, 032/11, 064/11, 040/13, 056/13, 014/15, 042/15, 058/15, 044/17, 049/18 and 003/20)

45.  Article 376 of the Criminal Code provides for the criminal offence of assault against an official performing official duties. Paragraph 1 provides that anyone who assaults or threatens to assault an official while performing an official duty is to be sentenced to up to three years’ imprisonment. Paragraph 3 provides that if the offence has been committed in respect of an official in relation to matters of public safety or national security, the perpetrator is to be sentenced between six months and five years.

46.  Article 45 sets out details for reduction of sentence. In particular, a court can impose a sentence which is below the minimum provided for by the Code or a milder sentence where there are particularly mitigating circumstances and where the court considers that a reduced sentence can achieve the purpose of punishment.

47.  Article 46 provides that where the conditions for reducing the sentence have been met, as provided in Article 45, the court can reduce it to a minimum of thirty days’ imprisonment if the mildest sentence for a particular criminal offence is below one year’s imprisonment.General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in OG RM no. 060/03, and OGM nos. 073/10 and 032/11)

48.  This Act was in force between 5 November 2003 and 1 July 2017.

49.  Section 133(4) provided that an administrative body could rule on an administrative matter in summary proceedings when it was necessary to take urgent measures in the public interest which could not be delayed, and the facts on which the decision was to be based were established or at least probable. Urgent measures were required if the life and health of people, public order and peace, public safety or property of a high value were in jeopardy.

50.  Section 271 set out details as regards an enforcement decision (zaključak o dozvoli izvršenja). In particular, it provided that the body in charge of administrative enforcement was to issue an enforcement decision, either of its own motion or following a request by a person seeking enforcement. The enforcement decision noted that a particular decision had become enforceable, and specified the manner and methods of its enforcement. An appeal was allowed against the enforcement decision. No separate enforcement decision was issued in respect of decisions referred to in section 133(4), where matters relating to the enforcement of the decision and the manner, time-limit and method of its enforcement were specified in the decision itself.

51.  Section 272 provided that administrative enforcement by the body that had decided at first instance on the issue in question was carried out on the basis of the decision which had become enforceable and the conclusion as to its enforcement.Road Traffic Safety Act (Zakon o bezbjednosti saobraćaja na putevima; published in OGM nos. 033/12, 058/14, 014/17 and 066/19)

52.  Section 122 provides that sports and other events, as well as other activities taking place on roads, may be held with the authorisation of a competent body.

53.  Section 315 provides, inter alia, for a fine of between EUR 2,000 and EUR 6,000 for a legal entity that organises a sports or other event on a road without the necessary authorisation. The same section also provides for a fine of between EUR 300 and EUR 800 for the person responsible within the legal entity.Decision on the installation and removal of temporary objects (Odluka o postavljanju, građenju i uklanjanju privremenih objekata montažnog karaktera na teritoriji Glavnog grada – Podgorice; published in OGM – municipal regulations (opštinski propisi), nos. 011/14, 027/15, 001/16, and 026/17)

54.  Section 4 of the decision specifies the objects of a temporary character that may be installed, tents not being among them.

55.  Section 17 states that temporary objects may be installed and constructed subject to authorisation, issued in the form of a decision by an administrative body in charge of municipal affairs.

56.  Section 30 states that when a temporary object has been installed without authorisation or contrary to the conditions specified in the relevant decision, a municipal inspector is authorised to order its removal within fifteen days at most.

COMPLAINTS

57.  In his initial application the applicant complained under Article 11 of the Convention of a violation of his right to freedom of assembly in relation to the events of 17 October (see paragraphs 21-22 above) and also maintained that the criminal proceedings against him (see paragraphs 25-27 above) had been unfair.

58.   On 13 March 2020, in his observations in reply to the Government’s observations, the applicant submitted that he had been brutally beaten and tortured by the police on 17 October 2015. He stated that he had lodged a number of criminal complaints, including for having been punched and pepper-sprayed on 17 October 2015, and that they had not been dealt with. The applicant did not submit copies of those complaints.

THE LAWComplaint under Article 11 of the Convention

59. Article 11 reads as follows, in so far as relevant.

“1. Everyone has the right to freedom of peaceful assembly...

2. 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 ...”The parties’ submissions

(a)   The Government

60.  The Government contested the applicant’s submissions. In particular, they argued that the police’s intention had not been to interrupt the protests but rather to remove the objects which the organisers had had no authorisation to install. The moment the participants had started throwing various objects at the police, the applicant, together with the other organisers, had lost his right to rely on Article 11, given that that Article protected only the right to “peaceful assembly”.

61.  Even though the organisers had not complied with the decisions issued in their favour as regards the setting up of temporary objects, this had been tolerated by the authorities. If they had been dissatisfied with those decisions, they could have appealed against them, which had not been the case. Through their actions, they had obstructed the traffic through the most important and the busiest street in Podgorica, and disrupted the normal functioning of other citizens, services and institutions, such as the Central Bank, the Constitutional Court and the President’s office, which were in the immediate vicinity. The municipal police decision on the removal of the tents and the stage had been in accordance with the law and had been duly served on the organisers. However, it had not been complied with, and the organisers and protesters had prevented its enforcement. The applicant’s submission that they had been surrounded unexpectedly and taken by surprise was therefore unfounded. It was only after the protesters had failed to remove the tents themselves that the municipal police had started removing them, and it was only after they had put up active strong resistance, including driving a car through the police cordon, that the gathering had been dispersed.

62.  The applicant had been allowed to hold the protest rally, participate in it and express his beliefs in it. He had not been convicted for organising or participating in the rallies, but for assaulting an official performing his duties. Therefore, the State’s interference, both in dispersing the protests and in sentencing the applicant, had been lawful, had had a legitimate aim and had been necessary in a democratic society.

63.  In addition, even after the protests had been terminated, the applicant and other DF supporters had gathered again the same evening and the following evening and held unannounced protest rallies.

64.  The applicant submitted only in his additional observations that he had been “brutally” beaten, which would indicate serious bodily injuries, but this was not supported by the medical report submitted. Also, he had never maintained before the domestic authorities that he had been punched by a police officer.

65.  The Government concluded that the applicant’s complaint was manifestly ill-founded or, alternatively, that there had been no violation of Article 11.

(b)   The applicant

66.  The applicant reaffirmed his complaint. In particular, he argued that the rally had been duly reported and peaceful. In Montenegro no authorisation was necessary for a protest, and therefore no decision needed to be given regarding its duration. In this particular case, the decisions on setting up the stage and mobile toilets had been authorisations and not administrative acts. As such they had not created any direct obligations for the parties to the administrative proceedings, nor had they been enforceable instruments, and thus they could not be forcibly executed. The Minor Offences Court had also found that the organisers had not committed an offence under the Road Traffic Safety Act. In any event, obstructing traffic arteries as part of a demonstration was conduct which by itself was considered peaceful and it was necessary for the authorities to show the requisite degree of tolerance towards a certain level of disruption of everyday life that was necessarily caused by any demonstration.

67.  On the morning of 17 October 2015 the applicant and a small group of protesters had been sleeping in the tents and thus there had been no threat or danger to public order. They had been unexpectedly surrounded by armed police officers who had started destroying and demolishing tents, thereby violating the applicant’s and others’ right to peaceful assembly. The intervention had been carried out while it had been still dark, even though there had been no risk of delay, and without any enforcement decision or any decision prohibiting the rally. It had thus been unlawful and violent, it had not pursued a legitimate aim, and there had been no pressing social need for it.

68.  The applicant submitted that it had been this police brutality which had led to his exercising his right to self-defence. He acknowledged that the participants had formed a human shield in order to prevent the removal of tents and their own removal. He also acknowledged that he had pushed the police officer in question with his shoulders and the palms of his hands, in order to prevent him from entering the site of the peaceful protests. Finally, as he could not move the police officer in question, who had all the while remained calm, the applicant, being unable to do anything else, had taken away the officer’s police hat.

69.  The applicant further submitted that he had suffered torture at the hands of the police for trying to prevent the breaking up of a peaceful gathering. In particular, after the incident in question he had been punched by a certain N.D., and then pepper-sprayed by another police officer, after which he had received medical treatment in hospital. However, his criminal complaints in that regard had never been dealt with. Instead, he had been convicted for participating in the rally and for “mere physical opposition to the sudden demolition of tents (rušenje šatora) and the removal of protesters by armed police”. Such conduct on his part had amounted to a minor incident that was common in conflicts of this kind, and his behaviour had been a mere reaction to the police’s violent dispersal of a peaceful political event. Also, his criminal conviction had been largely based on the testimony of a police officer whose statements had been inconsistent and inaccurate during the proceedings. Both the use of force to disperse the assembly and his arrest and conviction could discourage others from participating in similar assemblies in the future. The severity of the penalty imposed on him was a fundamental factor to be taken into account in assessing the proportionality of the interference under Article 11.The Court’s assessment

(a)   Applicability of Article 11

70.  Article 11 of the Convention only protects the right to “peaceful assembly”, a notion which does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of Article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 92, ECHR 2015). An assembly tarnished with isolated acts of violence is not automatically considered non-peaceful so as to forfeit the protection of Article 11. In a number of cases where demonstrators had engaged in acts of violence, the Court has held that the demonstrations in question were within the scope of Article 11 of the Convention but that the interferences with the right guaranteed by that Article were justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others (see Gülcü v. Turkey, no. 17526/10, § 93 in fine, 19 January 2016).

71.  Turning to the present case, to establish whether the applicant may claim the protection of Article 11, the Court will take into account: (i) whether the assembly intended to be peaceful and whether the organisers had violent intentions; (ii) whether the applicant had demonstrated violent intentions when joining the assembly; and (iii) whether the applicant had inflicted bodily harm on anyone (ibid., § 97). 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 Frumkin v. Russia, no. 74568/12, § 99, 5 January 2016).

72.  The Court observes that according to the documents in the case file, the protest rally was organised by the DF, the applicant being one of its leaders, to protest about the living standards of citizens, as well as to demand the formation of a transitional government. The Court notes that there is nothing in the case file to suggest that the protests were not intended to be peaceful or that the organisers, including the applicant, had violent intentions. Thus, the applicant had the intention of showing support for the rally’s proclaimed aims, but not of behaving violently when he started demonstrating, as was not contested by the Government. Moreover, there is nothing in the domestic courts’ decisions to show that the applicant had violent intentions when he joined the demonstration. While it is true that he was convicted for having  assaulted a police officer, this conviction concerned an incident between the applicant and one police officer during the tense moments when the police moved to disperse the protesters and does not appear indicative of any initial violent intention on the part of the applicant. The Court therefore accepts that during the events of 17 October 2015 the applicant enjoyed the protection of Article 11 of the Convention (see, mutatis mutandis, Gülcü, cited above, §§ 93-97, and the other cases summarised therein; see also Kudrevičius and Others, also cited above, § 98).

(b)   The Court’s assessment of the applicant’s Article 11 complaint

(i)      The relevant principles

73.  The relevant principles in relation to Article 11 are set out in, among many authorities, Kudrevičius and Others (cited above, §§ 91-92, §100, §102, §§ 108-110 and §§ 142-160) and Primov and Others v. Russia (no. 17391/06, §§ 116-119, 12 June 2014).

74.  In particular, the freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of its foundations. Thus, it should not be interpreted restrictively (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 110, ECHR 2011 (extracts)).

75.  An interference with the right to freedom of peaceful assembly will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2, and is “necessary in a democratic society” for the achievement of the aim or aims in question (see Vyerentsov v. Ukraine, no. 20372/11, § 51, 11 April 2013).

76.  The Court has considered measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants, and penalties imposed for having taken part in a rally, to have amounted to an interference with the right to freedom of assembly (see Kasparov and Others v. Russia, no. 21613/07, § 84, 3 October 2013, with further references).

77.  Although a demonstration in a public place may cause some disruption to ordinary life, including disruption of traffic, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of its substance. The appropriate “degree of tolerance” cannot be defined in abstracto: the Court must look at the particular circumstances of the case, and in particular the extent of the “disruption of ordinary life” (see Primov and Others, cited above, § 145, and the authorities cited therein). That being so, it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force (see Kudrevičius and Others, cited above, § 155 in fine, and other authorities cited therein).

78.  The intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it, in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters. The Contracting States enjoy a wide margin of appreciation in their assessment of the necessity in taking measures to restrict such conduct (ibid., § 156).

79.  The limits of tolerance expected towards an unlawful 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 Frumkin, cited above, § 97, and the other authorities cited therein). Although not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention. The intentional serious disruption, by demonstrators, to ordinary life and to the activities lawfully carried out by others, to a more significant extent than that caused by the normal exercise of the right of peaceful assembly in a public place, might be considered a “reprehensible act”. Such behaviour might therefore justify the imposition of penalties, even of a criminal nature (see Kudrevičius and Others, cited above, § 173).

80.  Restrictions on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic (ibid., § 157; see also Éva Molnár v. Hungary, no. 10346/05, § 34, 7 October 2008). In considering the proportionality of the measure account must also be taken of its chilling effect. Subsequent enforcement measures, such as the use of force to disperse the assembly and the arrests, detention and/or ensuing administrative convictions of participants, may have the effect of discouraging them and others from participating in similar assemblies in future (see Balçık and Others v. Turkey, no. 25/02, § 41, 29 November 2007). The very essence of the right to freedom of peaceful assembly would be impaired if the State did not prohibit a demonstration but imposed sanctions on its participants for the mere fact of attending it without engaging in reprehensible conduct (see Galstyan v. Armenia, no. 26986/03, § 117, 15 November 2007, and Ashughyan v. Armenia, no. 33268/03, § 93, 17 July 2008). The nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see Kudrevičius and Others, cited above, § 146). The Court has already held that a lengthy prison sentence for throwing a stone or another small object at the police at the height of clashes was a disproportionate penalty in violation of Article 11 (see Gülcü, cited above, §§ 110-17, and Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, §§ 177-82, 4 October 2016). It is, in any event, for the Court to give a final ruling on the compatibility of a restriction with the Convention, and this is to be done by assessing the circumstances of the particular case (see Galstyan, cited above, § 114).

(ii)     Application of those principles to the present case

81.  The Court notes that the actions of the authorities which, according to the applicant, constituted unlawful and disproportionate interferences with his right to peaceful assembly were: the removal of the tents and the stage, the dispersal of the gathering, and his arrest and conviction. It will examine each of the alleged interferences in turn having regard also to the Government’s objection that the applicant’s complaints in this regard are manifestly ill-founded.

82.  As regards the removal of the tents and stage, the Court first notes that the organisers of the protest, including the applicant, duly submitted prior notification for the protest rally. They also requested authorisation to set up a number of temporary objects, including a stage, in the park opposite the Parliament building for a period of twenty days. This request was allowed at first for the period between 27 September and 3 October, and then it was further extended until 10 October 2015. The latter decision specified that the objects, the stage included, were to be removed on that date.

83.  Since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (see Primov and Others, cited above, § 130). In the present case, the relevant legislation of the respondent State provided that public assemblies could not be held within fifty metres of certain buildings and institutions including Parliament (see paragraph 40 above). Even though that particular provision was declared unconstitutional in 2017, it was in force at the relevant time. However, the organisers set up the stage not in the park opposite Parliament but in the traffic lanes in front of Parliament. In addition, they also set up about 300 tents on the road, for which there was no authorisation at all, and which did not come within the scope of the relevant rules (see paragraphs 10-11 and 54 above). The first request as regards the setting up of tents was submitted on 30 September 2015, that is, after the tents had already been installed in that location for at least two days, and the request was rejected as being outside the competence of the body in question (see paragraphs 10 and 11 above). Even though the decision on the matter was subject to appeal, the organisers neither appealed against it nor in any other way pursued their request for authorisation to set up tents, contrary to what V.Č., the person authorised by the leader of the protest, maintained to the municipal police (see paragraph 14 above).

84.  The Court considers that by acting in this way, the organisers, including the applicant, intentionally failed to abide by their own request, the rules, and the terms of the authorisation issued by the authorities. At the same time, they caused disruption to ordinary life and other activities to a degree exceeding that which is inevitable, thus engaging in conduct which cannot enjoy the same privileged protection under the Convention (see paragraph 78 above). In particular, the applicant did not contest the Government’s submission that the boulevard in question was the busiest road in the city and that blocking it had obstructed the normal activities of other people and services, such as the police, the emergency medical services and firefighters. The Court considers that the complete obstruction of a major boulevard and traffic route in the city for twenty days, in disregard of municipal police orders and of the needs and rights of road users, constituted conduct which, even though less serious than recourse to physical violence, can be described as “reprehensible” (see, mutatis mutandis, Kudrevičius and Others, cited above, §§ 173-74; see also Barraco v. France, no. 31684/05, §§ 46-47, 5 March 2009).

85.  The Court further observes that it was only on 5 October 2015 that the municipal police inspector issued a decision ordering that the objects in question be removed from the traffic lanes. The organisers, however, refused to sign the delivery slip accompanying that decision, failed to comply with it, and ultimately did not allow the two municipal police inspectors to enforce it on 10 October 2015 (see paragraphs 15, 17 and 18 above). The Court further notes that the decision in question in no way interfered with the holding of the protest rally itself but was limited to ordering the removal of the stage and the tents from the road.

86.  As regards the circumstances leading to the dispersal of the gathering, the Court observes that even though the relevant legislation provided for fines for non-compliance with the relevant provisions of the Public Assemblies Act (see paragraph 43 above), there is nothing in the case file to indicate that the authorities imposed any such fine on the organisers and/or protesters. In addition, the relevant police authorities prohibited traffic until 10 October 2015 in the boulevard in question in order to further facilitate the gathering (see paragraph 16 above). The objects were ultimately removed on 17 October 2015, that is, twenty days after they had been installed. In other words, the authorities tolerated the disturbance and obstruction in question for twenty days in total. The Court also notes that the organisers themselves requested authorisation to set up the temporary objects – in the park – for twenty days starting from 27 September (see paragraph 5 above), that is, until 16 October 2015 inclusive. The Court observes that during those twenty days the organisers, including the applicant, were able to freely manifest their views. The authorities’ view that this period was sufficient, and that the major disruption caused could no longer be allowed to continue, does not appear per se to have been unreasonable. Yet on 17 October 2015, when the police asked the protesters who were present at the time to step away so that the stage and the tents could be removed, the participants, including the applicant, refused to comply with that request. Instead, they formed a human shield and put up resistance, even though there is nothing in the case file to suggest that removing the stage and the tents from the road would have prevented them from continuing to demonstrate in front of Parliament. It was only after the participants put up resistance to the police actions, including by breaking the police cordon and driving into the boulevard, that the police officer in command ordered that the gathering be dispersed. The Court considers that in such circumstances, the intervention by the police did not overstep the margin of appreciation of the national authorities.

87.  As regards, finally, the applicant’s arrest and conviction, the Court further notes that he was not prosecuted and convicted for organising and/or participating in the protest, but for his reprehensible conduct, notably for assaulting an official performing his duties. According to the applicant’s own submission, he kept pushing the police officer in the chest and shoulders, and finally removed the officer’s hat and took it away. All the while the police officer in question remained calm and applied no force whatsoever in respect of the applicant. The Court reiterates that Article 11 does not give immunity against prosecution for violent actions during public gatherings (see, mutatis mutandis, Primov and Others, cited above, § 165). The Court also recognises that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts may be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü, cited above, § 116).

88.  The Court is very attentive when assessing proportionality as regards the chilling effect of criminal sanctions (see paragraph 80 above). The application of enforcement measures, such as the use of force to disperse the assembly, the participants’ arrests, detention and/or ensuing convictions may have the effect of discouraging them and others from participating in similar assemblies in future, and more generally in open political debate (see Balçık and Others v. Turkey, no. 25/02, § 41, 29 November 2007; Navalnyy and Yashin v. Russia, no. 76204/11, § 74, 4 December 2014; and Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, § 493, 21 January 2021). However, the sanction in the present case, as noted above, was not for the applicant’s organising and/or participating in the protests, but for him having assaulted the police officer. Assaulting an official was a criminal offence, which was formulated with sufficient precision and the interpretation of which was not unforeseeable (see paragraph 45 above). The applicant’s sentence of four months was below the statutory minimum provided for this offence (see paragraph 45 above in fine), of which he served less than three months (see paragraph 30 above). In the particular circumstances of the present case, the Court finds that this sentence, although not insignificant, was not contrary to Article 11 of the Convention. The Court therefore considers that the applicant’s prosecution and conviction in the present case was in accordance with the law, pursued legitimate aims, notably “prevention of disorder or crime” and “protection of the rights and freedoms of others” (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 251, ECHR 2011 (extracts)), and was necessary in a democratic society.

89.  In view of all of the above, the Court finds that the applicant’s complaint that the removal of the tents and stage, dispersal of the assembly and his prosecution and conviction for assaulting an official constituted an unlawful and disproportionate interference with his Article 11 rights is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Other complaints

90.  The Court observes that the applicant’s complaint that he was ill-treated by the police on 17 October was not included in the complaint part of the initial application, but was raised as a complaint in his observations in reply of March 2020. The Court considers, therefore, that it is not appropriate to take this matter up in the context of the present application (see Madžarović and Others v. Montenegro, nos. 54839/17 and 71093/17, § 118, 5 May 2020; Stanka Mirković and Others v. Montenegro, nos. 33781/15 and 3 others, § 66, 7 March 2017; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006; and Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004).

91.  As regards the complaint concerning the alleged unfairness of the criminal proceedings against the applicant, the Court considers, in the light of all the material in its possession, and in so far as the matter complained of is within its competence, that it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 11 March 2021.

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Victor SoloveytchikSíofra O’Leary
RegistrarPresident

 

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