Article 11 - freedom of assembly and association Flashcards
what right is it
qualified
right 11(2)
“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 protection of his interest”
Restriction - 11(2)
“no restriction 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 interest of national security or public safety, for the prevention of (legitimate aims) disorder or crime, protection of health or morals or for protection of rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on exercise of these rights by members of the armed forces, of the police or of the administration of the state”
- peaceful assembly (gatterings and protests)
right 11(1)
- The right must be exercised peacefully, legally and without violence or threat
- Covers a huge range of things but unlikely to apply to social or sporting gathering
- Cisse v France (2002)
- “even if an assembly is totally peaceful, it can sometimes still be disbanded without violation of A11 happening”
Group of illegal immigrants who were seeking refuge in a church to not get deported (peacefully)
Police broke it up because of the legitimate aim of the health of the immigrants - lawful no breach of rights
Peaceful demonstrations may well be annoying and offensive
11(1) - peaceful assembly
- Plattform Ärzte für das leben v Austria
- Doctors protesting against abortion for religion
- ECtHR stated that a demonstration may annoy or give offence to people
- G v Federal republic of germany
- Blocked road for 11 minutes of an hour (annoying)
- Dpp v jones (margaret)
- Protesting about the roads being too close to stonehenge (blocking the road)
- Tabernacle v defence secretary
- Protest camp
When the assembly takes place on private land the owner is allowed to prohibit the assembly as long as there’s an alternative place
11(1) - peaceful assembly
- Appleby v UK
- Shopping centre protest - on private land
- Asked to move to the road over
Police can break up peaceful gatherings
11(1) - peaceful assembly
- Cisse v France
- Ollinger v Austria
- Austrian authorities ban jewish counter protest at SS ceremony
- Wasn’t violent and was disproportionate , not necessary
- Breach of A11
- Absolute bans are problematic
.2. Freedom of association with others (groups e.g political party)
- The right to come together with others to form an association
- This includes the right to form and join trade unions and the right to join with others to pursue common causes or interests
- It also covers the right not to be force to join an association (a negative right)
- Young , james and webster v uk
- National union of belgian police v Belgian
- “Closed shop agreement”, the police were forcing them to join the union - not legal in england
- In both cases the claimants were attempted to be forced into a union
Just spending time with other people’s company doesn’t count as ‘association’
11(1) - freedom of association with others
- McFeeley v Uk
- Prisoner wanting to associating with other prisoners when he was put in a separate wing from others
- Not protected by this right
Political parties count as association
11(1) - freedom of associations with others
- Redfearn v Uk
- Bus driver in bradford = multicultural
- Was a member of a very racist political party - BNP
- Was fired
- Was a breach
Pressure groups can count as association
11(1) - freedom of association with others
Larmela v Finland
.3. Trade unions
- Right to join or not join trade unions
- And the right to choose a trade union
- National union of belgian police v belgium
Breach of the peace
restricition
- Common law - not criminal but if the magistrates court have ‘bound-over’ a person to keep the peace, it is a criminal offence to break that order
- Definition - R v Howell - a person is in fear of being harmed… through assault , a riot , unlawful assembly or disturbance
- R v CC of Gloucester police - power of the police to stop in anticipation of breach of peace must be proportionate , police also have power of arrest and entry under the law
tresspass to land
restricition
- is a tort
- remidies include injuctions and damages
- can be a crime if; tresspassers commit criminal damage (criminal damage act 1971) ; if they have damaged the land or threatend the occipiuer (s.61 CJPOA) ; if its aggravted tresspass (s.68 CJPOA) or damage to an hostorical or scientific site (s.70 CJPOA)
- Ellis v loftus iron co
public order act 1986
restricitions
- riot
- violent disorder
- affray
- fear or provocation of violence
- intentional harrasment , alarm or distress
Riot - Section 1 public order act 1986
restricition - public order act 1986
- 12 or more persons together use or threaten violence for a common person and their conduct together would cause a person of reasonable firmness to fear for their personal safety (indictable offence - max 10 years)
violent disorder - Section 2 public order act 1986
restricition - Section 2 public order act 1986
Same as riot only it is 3 people or more persons (either way offence - max 5 years)
affray - Section 3 public order act 1986
restriction - Section 3 public order act 1986
Same as above but it is 1 or 2 persons (either way offence - max 3 years)
fear or provocation of violence - Section 4 public order act 1986
restricition - Section 4 public order act 1986
- Uses towards another person threatening, abusive or insulting words or behaviour or distributes any writing or sign which is threatening, insulting or abusive with intent to cause fear or provocation of violence (summary offence - max 6 months)
Intentional harassment, alarm or distress - Section 4(A) public order act 1986
restricition - Section 4(A) public order act 1986
Intent to cause harassment, alarm or distress by using threatening, abusive or insulting words or behaviour , or disorderly behaviour or displaying a sign etc (summary offence - max 6 months)
Harassment, alarm or distress - Section 5 public order act 1986
restricition - Section 5 public order act 1986
Same as S4(A) but not intentional
raves - S53 criminal justice and public order act 1994
restricition
- 20+ people. At which amplified music is played during the night, and by reason of its loudness and duration and the time at which it is played is likely to cause serious distress to the inhabitants of the locality
Aggravated trespass - S68 criminal justice and public order act 1994
restricition - S68 criminal justice and public order act 1994
Committed on lands in the open air with the intention of obstructing a lawful activity or intimidating another person so as to deter him from lawful activity
Trespassory assemblies - S61 criminal justice and public order act 1994
restriction - S61 criminal justice and public order act 1994
Squatting - S144 LASPO act 2012
S144 LASPO act 2012
It is an offence to knowingly enter and live in a building as a trespasser
Damage by trespassers - Criminal damage act 1971
restriction - Criminal damage act 1971
Trespassers commit criminal damage
Using violence to enter the premises - S6 criminal law act 1977
restriction - S6 criminal law act 1977
Creates an offence of using or threatening violence for the purpose of securing entry into any premises
well protected
evaluation
- Right to join a political party and a trade union is protected well (Redfearn). Political expression is highly regarded and A11 helps protect this.
- ‘Closed shop agreements’ are not allowed in the UK (the idea that you would be forced to join a trade union if you go for a job) (Young, James and Webster)(Belgium Police)
- Positive obligation on the state to protect the right to assemble and protest - ‘respect for…’
- Counter protests are allowed and should be protected as long as not threatening (Plattform Artze fur das Leben v Austria)
not well protected
evaluation
- Difficult for states to positively protect this - eg. if someone is unfairly dismissed in an employment tribunal the court can’t give them their job back, just compensation for breach.
- Some other ECHR countries this is not banned. There are often still expectations for many people to join a union.
- Too many restrictions allowed in the UK due to breach of the peace and Public Order Restrictions (Laporte v CC Gloucester Police, DPP v Jones)
- Ollinger v Austria - right to counter protest was not protected well. Not a proportionate response.
- Concerns in the UK over the new Crime and Policing Bill 2022
