article 11 eval Flashcards
points (4)
It is a qualified right
Balancing rights of different groups
The margin of appreciation allows different levels of protection in different states
It is heavily linked to Article 10
It is a qualified right dev
Unlike some rights that primarily focus on individuals, Article 11 protects both individuals and groups so restrictions on freedom of assembly and association often affect collective entities (e.g., trade unions, political parties, protest movements). However, this does not mean there is no balancing between individual and community interests—rather, it recognizes that collective expression is crucial to democracy.
Interference is only allowed if it is necessary, proportionate and because of a legitimate lawful aim – with the margin of appreciation being relevant too
It is a qualified right extra
However issues arise with clashing counter-demonstrators at protests:
UK police usually keep clashing protestors away from one another
This could be a restriction of article 5 right to liberty (including use of kettling – Austin v UK) but this is done to allow both groups to enjoy their article 11 rights – plus to protect the public from crime and disorder
Balancing rights of different groups dev
Protecting article 11 rights can be difficult as often many different groups are involved and want to have a say
This might include:
The protestors
People who want to protest in opposition to the protestors
People passing through the area where the protest is happening
People who live locally to where the protest is happening
Balancing rights of different groups extra
This can be very difficult for the police to manage, as well as for the courts to consider when balancing proportionality and necessity of the actions taken – one or more groups will always inevitably feel what happened was wrong
Balancing rights of different groups extra point
Where there are counter-demonstrators, police have a positive obligation to take reasonable steps to ensure peaceful protestors are protected (Plattform Artze v Austria) but there is not an absolute guarantee of safety
The margin of appreciation allows different levels of protection in different states dev
This may allow for a fair balance between the rights of individuals vs. rights of the community in each state, as the ECtHR will usually recognise there will be differences in what is seen as acceptable in each different state and will allow limitations if the state have taken reasonable steps
However this means there is a lack of consistency in human rights protections depending on which country someone lives in and some measure taken can be very damaging for democracy
e.g Spain introduced heavy fines for organizers of spontaneous protests
The margin of appreciation allows different levels of protection in different states extra
This can be especially controversial where the protest may have been surrounding government actions - raises the question of how democratic this actually is
It is heavily linked to Article 10 dev
Both articles are described as being essential foundations in a democracy and Baroness Hale in Countryside Alliance explains how closely they are linked
In Ziliberberg v Moldova the court said Article 11 is a “fundamental right in a democratic society” and is “one of the foundations of such a society” so should not be taken away unless it is absolutely necessary
In Handyside the court explained that Article 10 is the “essential foundations of a democratic society, a basic condition of that society’s progress, and for the development of every man”
It is heavily linked to Article 10 extra
Therefore any restriction on one of these rights will be a restriction on the other
