EHRM, 07-10-2008, nr. 10346/05

The Government submitted that the present application was distinguishable from the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007—…). In the present circumstances, the demonstration could not be considered to have been spontaneous, irrespective of what the participants' real aim was, whether to demand a recount of the votes or to express solidarity with the participants in the morning's events at Erzsébet Bridge. Since those aims could have been fulfilled through a properly notified demonstration, the afternoon demonstration at Kossuth Square — which in their view was the continuation of the Erzsébet Bridge demonstration — could not be classified as an immediate response to a political event.

The Government also submitted that the doctrine of ‘immediate response’ was not unconditionally applicable to all spontaneous demonstrations. In the circumstances of the present case, the dispersal of an unlawful event — the demonstration at the Erzsébet Bridge — had been followed by an unnotified demonstration, which was claimed by those participating in it to have been ‘spontaneous’. The Government argued that the acceptance of this argument would lead to the unacceptable result of simply circumventing the statutory requirement of prior notification. They also pointed out that the impugned events had resulted in serious disturbance to the city's traffic.

Lastly, the Government underlined that the prior notification scheme was not an instrument for arbitrary use by the public authorities but a tool for the fulfilment of the positive obligations of the State, namely the protection of the rights of others, in particular the right to free movement.

The applicant contested these views and underlined that the only reason why the spontaneous demonstration had been dispersed had been the lack of prior notification. Moreover, she submitted that the demonstration had caused only minor disturbance to the traffic, especially by the time of its dispersal.

The Court observes that paragraph 2 of Article 11 entitles States to impose ‘lawful restrictions’ on the exercise of the right to freedom of assembly. The Court notes that restrictions on freedom of peaceful assembly in public places may serve the protection of the rights of others with a view to preventing disorder and maintaining the orderly circulation of traffic.

The Court reiterates that a prior notification requirement would not normally encroach upon the essence of that right. It is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation (see Nurettin Aldemir and Others v. Turkey, nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02 (joined), § 42, 18 December 2007).

However, in special circumstances when an immediate response might be justified, for example in relation to a political event, in the form of a spontaneous demonstration, to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly (see Bukta and Others, cited above, §§ 35 and 36). 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 all substance (see Nurettin Aldemir and Others, cited above, § 46).

Nevertheless, in the Court's view, the principle established in the case of Bukta and Others cannot be extended to the point that the absence of prior notification can never be a legitimate basis for crowd dispersal. Prior notification serves not only the aim of reconciling, on the one hand, the right to assembly and, on the other hand, the rights and lawful interests (including the right of movement) of others, but also the prevention of disorder or crime. In order to balance these conflicting interests, the institution of preliminary administrative procedures is common practice in Member States when a public demonstration is to be organised. In the Court's view, such requirements do not, as such, run counter to the principles embodied in Article 11 of the Convention, as long as they do not represent a hidden obstacle to the freedom of peaceful assembly protected by the Convention (see Balçık and Others v. Turkey, no. 25/02, § 49, 29 November 2007).

The Court therefore considers that the right to hold spontaneous demonstrations may override the obligation to give prior notification to public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration. In particular, such derogation from the general rule may be justified if a delay would have rendered that response obsolete.

However, in the Court's view, the facts of the instant case do not disclose such special circumstances to which the only adequate response was an immediate demonstration. It is to be observed in this connection that the official results of the elections had been made public on 4 May 2002, two months before the impugned demonstration, and that the outcome of those elections had been objectively established. To the extent that the demonstrators' aim was to express solidarity with the protestors at the Erzsébet Bridge, the Court is not persuaded that this matter would have become obsolete had the demonstrators respected the notification rule.

Moreover, the Court observes that, at the material time, no authorisation was required in Hungary for the holding of public demonstrations; however, the notification of the police was required seventy-two hours prior to the event. If the police decided to ban a demonstration, the organisers could seek judicial review within three days. Therefore, the Court is satisfied that there were procedural safeguards in place preventing unreasonable restrictions on freedom of assembly.

Furthermore, the Court observes that the impugned events originated in an illegal demonstration (see paragraphs 10 and 14 above) blocking a main bridge in central Budapest. Irrespective of whether the subsequent demonstration at Kossuth Square included partly or entirely the same participants, the declared objective of this latter gathering, in which the applicant participated, was to support those who had illegally demonstrated at the Erzsébet Bridge. The essentially disorderly character of this combination of events is therefore so manifest that the decision of the police to disband the gathering cannot be said to be at variance with the object and purpose of Article 11 of the Convention. The Court reiterates that those organising and participating in demonstrations, as actors in the democratic process, should respect the rules governing that process by complying with the regulations in force (see Balçık and Others, cited above, § 49).

The Court also emphasises that one of the aims of freedom of assembly is to secure a forum for public debate and the open expression of protest. The protection of the expression of personal opinions, secured by Article 10, is one of the objectives of the freedom of peaceful assembly enshrined in Article 11 (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202). It observes in this connection that the demonstrators gathered at Kossuth Square at about 1 p.m. and the applicant joined them at about 7 p.m. However, the police did not break up the demonstration until about 9 p.m., with the result that the demonstrators had had several hours at their disposal to manifest their views.

In these circumstances, the Court considers that the applicant had a sufficiently long time to show solidarity with her co-demonstrators. Thus it finds that the ultimate interference with the applicant's freedom of assembly does not appear to have been unreasonable (see, mutatis mutandis, Cisse v. France, no. 51346/99, § 52, ECHR 2002-III). It is satisfied that the police showed the necessary tolerance towards the demonstration, although they had had no prior knowledge of the event (see, by contrast, Balçık and Others, cited above, § 51), which, in the Court's view, inevitably disrupted the circulation of the traffic and caused a certain disturbance to public order (see Çiloğlu and Others v. Turkey, no. 73333/01, § 51, 6 March 2007). In this respect, the instant case is different from others where the dispersal was quite prompt (see Bukta and Others, cited above, § 10; Oya Ataman v. Turkey, no. 74552/01, §§ 41–42, ECHR 2006-XIV; Balçık and Others, cited above, § 51).

As regards the potential chilling effect on the organisation of spontaneous demonstrations, the Court is satisfied that the demonstrators were able to exercise, for several hours, their right to peaceful assembly as guaranteed by the Convention (see Bączkowski and Others v. Poland, no. 1543/06, § 67, ECHR 2007-…).

Having regard to the foregoing considerations, the Court finds that the dispersal of the applicant's demonstration was necessary in a democratic society and cannot be regarded as having been a disproportionate measure in order to achieve the legitimate aims pursued.

Accordingly, there has been no violation of Article 11 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Done in English, and notified in writing on 7 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Deputy Registrar

Françoise Tulkens President