Article 11 Flashcards by Liv Lemke

What is article 11?

Freedom of assembly

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What does article 11(1) state?

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

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What does article 11(2) state?

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.

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What is a qualified right?

Article 11 is a qualified right. This right needs to strike a balance between the rights of the individual and the rights of the community. This means the state can limit these rights in accordance with the law and if it is to meet a legitimate aim.

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What do the ECtHR use to decide if the interference is justified?

Proportionality and the margin of appreciation

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What does proportionality mean?

Is the states interference proportionate in that it has struck fair balance between the rights of the individual and the rights of the community

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What does margin of appreciation mean?

This is the amount of discretion that the ECtHR gives the state in their interpretation of the convention. It realises that what is tolerated in one state may not be in another.

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What is a collective right?

It protects the rights of individuals to join together with others in collective action.

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What is meant by peaceful assembly?

An assembly can include a meeting, whether it be in public or private. It also includes demonstrations, protests and marches. The assembly can be political, religious, social etc.

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What is a positive obligation and why does the state have one?

A positive obligation is to protect the right to peaceful assembly and as such must take reasonable steps to prevent violence against demonstrators. This is not a guarantee of safety.

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What is the case of Plattform ‘Arzte fur das Leben’ v Austria 1988?

There was no violation of article 11. The police attended the march to prevent any violence, however eggs were thrown at protesters.

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Can people assemble wherever they wish to do so?

No, Appleby v UK 2003.

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Ollinger v Austria 2006

The state banned an assembly in a cemetery as it infringed on the rights of the public. ECHR said it was disproportionate to stop the demonstration.

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Crises v France 2002

A peaceful protest in a church protesting about immigration laws did not prevent people attending church, however there was no violation of article 11 when the police stopped the sit-in after 2 months due to serious risks to health and sanitation

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Can the state issue a ban on assemblies?

No. It may however, require the demonstrators to notify the authorities or apply for authorisation in advance of the assembly. If the state refuses, they must justify their decision. If permission not granted, there needs to be a right to appeal the decision

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Does the demonstration have to be peaceful?

Yes, DPP v Jones 1999

What does freedom of association with others mean?

This guarantees the rights for people to come together to form a group or association. It also includes the right of an individual to not join a group

Does association include the right to spend time with certain people?

No. McFeeley v UK 1981, convicted terrorists being held in the Maze prison NI were not allowed contact with the rest of the prison population..

Redfearn v UK 2012

A bus driver was dismissed from his job for joined the BNP. He had no allegations against him. Violation of article 11

What does the right to form and join trade unions mean?

An individual has the right to join a trade union of their choice, Nation Union of Belgian Police v Belgium 1975. There is also a right to not join a trade union, Young James and Webster v UK 1981.

Any interference with article 11 must be:

Prescribed by law
Have a legitimate aim
Be necessary in a democratic society

What does prescribed by law mean?

Must have a legal basis which is clear, precise and predictable

What does a legitimate aim mean?

Nation security or public safety
Prevention of disorder or crime
Protection of health or morals
Protection of the rights or freedoms of others

What does necessary in a democratic society mean?

The ECtHR will use the concept of proportionality and will apply the margin of appreciation

What is the breach of peace?

Defined in R v Howell (1981) as: ‘wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being harmed through assault, an array, a riot, unlawful assembly or other disturbance.

Is the breach of peace a criminal offence?

What happens if an offender does not keep the peace during a defined time period?

The Magistrates’ Court can issue a criminal sanction such as a fine or a custodial sentence

R v CCGC 2006

The passengers on a coach heading towards an anti-war protest at a RAF base were stopped by police and ordered to return back to London under a police escort. The police claimed that this was to prevent breach of peace. The appeal was allowed as there was no evidence that a breach of peace was imminent, and their actions were disproportionate under article 10 and 11

Mengesha v Commissioner of Police of the Metropolis 2013

Breached breach of peace

What is the public order act section 11?

Requires at least 6 days written notice to be given to the police before most public processions, including details of time, route, name and address.

What is the public order act section 12 & 14?

A public procession constitutes any number of people moving along a route. A public assembly is two or more people gathered together in a public space. This includes highways, parks, shopping precincts, shops, offices, restaurants, pubs or any other place to which the public have access or partial access to. Conditions can be set which restrict the place, duration & number of people, or any reasonable conditions on a procession including route changes. Conditions can be imposed in advance, or by the senior police officer at the scene

What is the public order act section 13?

Banning a march under s13 of the POA 1986 marches can be banned. A chief constable can only decide to do this if he/she has grounds to believe that imposing conditions will not be enough to prevent serious public disorder

What is the uk law on trespassing land?

Trespassing is defined as ‘unjustifiable interference with land which is in the immediate and exclusive possession of another’. It is an area of tort and can result in an injunction or claim for damages.

Section 61 CJPOA 1994

Allows police to direct trespassers from land after the occupier has asked them to leave but has failed, when they have either damaged the land, threatened the occupier, or have more than 6 vehicles on the land.

Section 68

Makes it an offence to intimidate, obstruct or disrupt people carrying out a lawful activity. Aggravated trespass is usually on land but has been extended to include buildings

Section 70

To prohibit a trespassory assembly on private land if it is without the permission of the occupier and could result in disruption or damage to a site of historian or scientific importance