11. Freedom of assembly and association under Article 11 Flashcards
What is art. 11?
Freedom of assembly and association
• Article 11 spans the divide between civil and political rights and economic and social rights.
Art 11 provides a right to..
• Article 11 = provides a right to peaceful protest.
o Can be divided into three areas: the protection political parties, the protection of other associations and some trade union rights.
What is the positive obligation ?
• There are positive obligations to secure the effective enjoyment of the rights contained in article 11.
o These positive obligations apply in the fields of both of the right to peaceful assembly and of freedom of association.
o The court has also reiterated that the state is under a positive obligation to protect private employees from dismissal.
Peaceful protest
• An assembly will not be other than peaceful simply because it is considered likely to, or does, provoke a violent response in others, provided that those complaining of violations of article 11 remain peaceful in their own intentions and behaviour.
o Where this is an issue, the court will determine, whether there had been violent intentions.
• Here the state has a positive obligation - the state will be expected, so far as reasonable and practicable, to police any demonstrations in order to avoid disorder and violence.
o If the applicant’s complaint relates to participation in demonstration, the court will consider the case under article 11 (lex specialis) rather than article 10 (lex generalis).
• The typology of protest: the distinction between freedom of expression and freedom of assembly is found in the attempt of persuasion in a public context.
o Four criteria and four types of protest - Mead - page 466
Authorization and notification of demonstrations
- No prohibition for states requiring authorization for, or notification of, demonstrations. But such systems must operate fairly and in accordance with law.
- Where an issue is particularly sensitive, it may be possible for a state to ban all demonstrations relating to a particular issue in particular places.
- It would seem that there is no right to hold demonstration on private property such as a shopping mall. The court indicates that a state is not obliged to make provision for rights under articles 10 and 11 to be exercisable in “quasi-public” places such as shopping malls which are in private ownership.
- Restrictions on movement within the state in exercise of the freedom of peaceful assembly may constitute a violation of article 11.
Unlawful conduct (adfærd) by demonstrations
- Obstructive direct action always runs the risk of involving some unlawful activity on the parts of the protesters.
- The court does examine the nature of the respondent state’s conduct in policing the demonstration.
- A case establishes that exercising the right to peaceful assembly does not protect the demonstrator from sanctions for violence or disorder which ensues but that any sanctions which relate primarily to the fact of demonstrating must be proportionate.
- The court has also examined the detention of protestors on their way to a protest.
- It may also be a violation of article 11 if there is a conviction for the organization of a protest, where there has been violence, but the organizers were not involved and the intention had been for a peaceful protest.
- A particular strict view will be taken of attempts to restrict demonstrations, which can be regarded as the legitimate activities of a political party.
- There are, however, special responsibilities placed upon elected officials which might be regarded as requiring circumspection in their actions in exercise of their rights under article 11.
Conclusion on peaceful assembly
- The case-law on peaceful assembly provides a good illustration of the relationship between positive and negative obligations. A state is permitted to regulate peaceful assembly in manner which facilitates it. This includes a positive obligation to police peaceful protests in manner which enables the protesters to get their message across effectively.
- The state may be called upon to justify their action as dealing with disorder rather than seeking to impose sanctions simply by reason of the protests having taken place. Some states fail to get the balance right between proper regulation and improper repression.
Defining associations
• Article 11 protects the right to “freedom of association with others”
o It constitutes the right to choose whether or not to form and join associations such as political parties and trade unions, and also other organizations.
o The essence of freedom of association is that citizens should be able to create a legal entity in order to act collectively in a field of mutual interest.
• Where an issue arises as to whether association is a public law or private law association, the court will look to see which characteristics predominate.
• The court has found no difficulties in regarding political parties as being associations for the purposes of article 11.
Registration
- Nothing improper in states requiring registration of associations, whatever their purpose, although any decision to refuse registration will be an interference with the freedom of association which will require justification.
- The national law regarding registration must be clear in order to comply with the lawfulness requirement under article 11.
Political parties
- They fall within article 11 and they are entitled to a high level of protection because of their important role in any democracy.
- The court has also found that a state may interfere in the internal affairs of a political party where an association has failed to comply with reasonable legal formalities or due to prolonged internal conflict in the organization.
- There is some guidelines of political parties - they contain seven propositions (forslag):
Membership of a political party
o The court underlined that with regard to positive obligations under article 11 there may be sensitive social and economic factors, which mean that the state has a wide margin of appreciation. It will examine if measures taken by the state are “reasonable and appropriate”
Other associations
• Article 11 include rights aimed at creating and preserving genuine democracy and freedom, not just in a party political sense, but also the freedom of citizens to pursue a vast array of interests such as culture, sport and social and humanitarian assistance. Freedom of association includes the right to receive formal recognition for an association - an unreasonable refusal of registration, where this is required, will constitute a violation of article 11. The court has found some general principles - more on page 481.
• Similar principles apply to the dissolution (opløsning) of an association.
o The margin of appreciation (skøn) in mush narrower for political parties than for other associations, depending on the circumstances.
• Freedom of association includes the right not to join an association as well as the right to form an association.
• Improper interference in the activities of an association may also breach article 11.
Trade unions (fagforeninger)
Freedom to form and join trade unions
• This is an aspect of the wider right to freedom of association set out in article 11 (1). It includes a positive obligation on the state to protect, through legislation, the union rights of workers in the private sector, as well as those employed by the state. Article 11 is binding on the state as employer. Inherent in any exercise of trade union rights is recognition of the legal personality of the union.
• In contrast the court had allowed a state to refuse the register a trade union in a religious organisation on the basis of the religious autonomy.
o Case on page 483 and forward.
• The court has also found that the dissolution of a trade union because of its stated aims can only be justified for compelling reasons.
Trade unions (fagforeninger)
Trade union rights
• This is an aspect of the wider right to freedom of association set out in article 11 (1). It includes a positive obligation on the state to protect, through legislation, the union rights of workers in the private sector, as well as those employed by the state. Article 11 is binding on the state as employer. Inherent in any exercise of trade union rights is recognition of the legal personality of the union.
• In contrast the court had allowed a state to refuse the register a trade union in a religious organisation on the basis of the religious autonomy.
o Case on page 483 and forward.
• The court has also found that the dissolution of a trade union because of its stated aims can only be justified for compelling reasons.
Trade unions (fagforeninger)
Closed-shop arrangements
- Article 11 did not originally prohibit the closed-shop system, whereby workers cannot be employed in a particular trade unless they are members of a particular union. The work on the convention shows that, on account of the difficulties raised by the closed-shop system, it was considered undesirable to include the principle set out in article 20 (2) of the Universal Declaration of Human Rights, that no one may be compelled to belong to an association.
- Cases on page 486 and forward - shows a distaste for closed-shop arrangements.
