Information Note on the Court’s case-law 249
March 2021
Knežević v. Montenegro (dec.) - 54228/18
Decision 2.2.2021
Article 11
Article 11-1
Freedom of peaceful assembly
Justified conviction for assaulting police officer during proportionate dispersal of protest: inadmissible
Facts – The applicant was an opposition leader at the relevant time and his political party a part of an opposition coalition. The opposition coalition organised a protest rally from the boulevard in front of the national Parliament for a period of twenty days, during which time a number of temporary objects (including tents and a stage) were installed. 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. The protest was subsequently dispersed by the police and the objects were removed. The applicant, who had been participating in the protest, was arrested and convicted for assaulting a police officer during the dispersal. He complained that his Article 11 right to freedom of peaceful assembly had been violated.
Law – Article 11
(a) Applicability – There was nothing to suggest that the protests had not been intended to be peaceful or that the organisers, including the applicant, had had violent intentions; nor that the applicant had had violent intentions when he had joined the demonstration. While the applicant had been convicted for assaulting a police officer, that had concerned an incident during the tense moments when the police had moved to disperse the protestors, and was not indicative of any initial violent intention on his part. Accordingly, he had enjoyed the protection of Article 11.
(b) Removal of the tents and stage – The organisers of the protest had been authorised to set up a number of temporary objects, including a stage, in the park opposite the Parliament building for a certain period of time. Against that authorisation, as well as relevant legislation in force at the time, the organisers had set up the stage not in the park but in the traffic lanes in front of Parliament. They had also set up about 300 tents on the road without any authorisation. The organisers, including the applicant, had thereby intentionally failed to abide by their own request, the rules, and the terms of the authorisation issued by the authorities. They had also caused disruption to ordinary life and other activities to a degree exceeding that which was inevitable. The boulevard in question had been the busiest road in the city and blocking it had completely obstructed the normal activities of other people and services for twenty days. Such conduct, although less serious than recourse to physical violence, could be described as “reprehensible” (see, mutatis mutandis, Kudrevičius and Others v. Lithuania [GC] and Barraco v. France).
A municipal police inspector had issued a decision ordering that the objects be removed, which had in no way interfered with the holding of the protest rally itself. However, the organisers had refused to sign the delivery slip accompanying that decision, had failed to comply with it, and had not allowed two municipal police inspectors to enforce it.
(c) Dispersal of the gathering – The authorities had tolerated the disturbance and obstruction for twenty days in total: although they had been authorised in law to do so, they had not imposed any fines on the organisers and/or protestors; they had prohibited traffic in the boulevard in question in order to facilitate the gathering; and the objects had been removed only at the end of that period. During those twenty days, the organisers, including the applicant, had been able to freely manifest their views. It had not been unreasonable per se that the authorities had viewed that period to be sufficient, and that the major disruption could no longer be allowed to continue.
The participants, including the applicant, had refused to comply with the police’s request to step away so that the stage and tents could be removed. They had formed a human shield and put up resistance, including by breaking the police cordon and driving into the boulevard. It was only after such resistance that the police officer in command had ordered that the gathering be dispersed. In such circumstances, the intervention by the police had not overstepped the margin of appreciation of the national authorities.
(d) Arrest and conviction of the applicant – The applicant had not been prosecuted and convicted for organising a protest, but notably for assaulting an official performing his duties. By his own submission, the applicant had repeatedly pushed the police officer, removed the officer’s hat and taken it away. The officer had remained calm and applied no force whatsoever in respect of the applicant.
When individuals were involved in acts of violence, State authorities enjoyed a wider margin of appreciation when examining the need for an interference, and the imposition of a sanction for such reprehensible acts might be considered compatible with the guarantees of Article 11. The Court was very attentive when assessing the proportionality as regards the chilling effect of criminal sanctions. However, the sanction in the present case had not been for the applicant’s organising and/or participating in the protests. Assaulting an official was a criminal offence; the applicant’s sentence of four months had been below the statutory minimum; and he had served less than three months. In the present case, that sentence, although not insignificant, had not been contrary to Article 11. The applicant’s prosecution and conviction had been in accordance with the law, had pursued legitimate aims, notably prevention of disorder or crime and protection of the rights and freedoms of others, and had been necessary in a democratic society.
Conclusion: inadmissible (manifestly ill-founded).
The Court also held, by a majority, that the applicant’s complaint under Article 6 § 1 as to the alleged unfairness of his criminal proceedings was inadmissible, as it was manifestly ill-founded in the light of all the material in the Court’s possession.
(See Barraco v. France, 31684/05, 5 March 2009, Legal Summary, and Kudrevičius and Others v. Lithuania [GC], 37553/05, 15 October 2015, Legal Summary; see also Primov and Others v. Russia, 17391/06, 12 June 2014, Legal Summary, and Gülcü v. Turkey, 17526/10, 19 January 2016, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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