“Do you hear the people sing?”: Kudrevičius v. Lithuania and the problematic expansion of principles that mute assemblies

By Ella Rutter and Jasmine Rayée, students of the Human Rights Law Clinic at the Faculty of Law of Ghent University.

On 15 October 2015, in the case of Kudrevičius and Others v. Lithuania, the European Court of Human Rights (ECtHR) delivered its first Grand Chamber judgment on the right to freedom of peaceful assembly. The case concerned the administration of criminal sanctions, by the State of Lithuania to the applicants, for participation in peaceful protests involving roadblocks. The ECtHR held unanimously that there was no violation of Article 11 of the European Convention on Human Rights (ECHR). In this critical examination of the judgement, we argue that the general application of the principles defined in Kudrevičius would diminish the protective standard under Article 11 ECHR.

Facts

In 2003, the agricultural sector in Lithuania experienced a period of discomfort. Due to their dissatisfaction with the government’s actions, the Chamber of Agriculture resolved to hold peaceful protests to draw attention to the issue. It received authorisation to assemble next to three Lithuanian highways. The protesting farmers initially complied with the permits. However, a few days later, despite not having the requisite authorisation for those areas, the farmers moved to the highways and installed roadblocks there. The demonstrations concluded after five days, following successful negotiations with the government.

The applicants all played a leading role in the protests. The police fined them for breaching Article 283 §1 of the Lithuanian Criminal Code, which prohibits rioting. The District Court upheld the fines and further imposed custodial sentences on the applicants. Execution of the sentences was suspended for one year, and the applicants’ movements were restricted. The applicants appealed the measures, contending that they infringed their right to peaceful assembly. Both the Regional Court and later on the Supreme Court determined that disruption of public order constituted a valid justification for the implementation of criminal liability and dismissed the applicants’ appeal.

The Chamber of the ECtHR found that there had been a violation of Article 11. That decision was overturned by the Grand Chamber, however, which determined that the actions of the applicants were not at the core of the freedom of peaceful assembly.

Reasoning of the Grand Chamber

The Grand Chamber first clarified that the application of Article 11 ECHR depends on the peaceful intentions of the organisers of an assembly, recognising that sporadic violence or disorder may occur as a side effect to demonstrations and assemblies. The Grand Chamber determined in Kudrevičius that the applicant’s activities fell within the scope of Article 11 ECHR. The Grand Chamber then reviewed whether the conviction of the applicants for their role in the organisation and implementation of the roadblocks amounted to a violation of Article 11 ECHR under the three-prong test of its second paragraph. The Grand Chamber concluded that there had been no violation, as the applicants’ criminal conviction was “prescribed by law”, pursued a legitimate aim, namely “the prevention of disorder”, and was “necessary in a democratic society”.

In its judgement, the Grand Chamber dedicated ample attention to the issue of authorisation of assemblies. This was a key feature of the case, given that the applicants had not requested, nor obtained authorisation to block the highways. In this regard, the Grand Chamber noted that a requirement of prior authorisation does “not normally encroach upon the essence of the right” of Article 11 ECHR. However, the Grand Chamber emphasised that the purpose of authorisation procedures is for authorities to be able to comply with their positive obligations of safeguarding Article 11 ECHR. The Grand Chamber further noted that when a demonstration that has not been prohibited results in damage or other disorder, intervention is only justified when “reprehensible acts” have been committed. Due to their serious implications for public order, the Grand Chamber held that the applicant’s conduct in the case at hand was “not a side-effect of a demonstration held in a public space”. Instead, the Grand Chamber qualified the roadblocks as “reprehensible acts” and found the imposition of sanctions – even of a criminal nature – to fall within the Lithuanian authorities’ margin of appreciation.

The Grand Chamber concluded that an appropriate balance of rights had been achieved in the case at hand, since the activities of the farmers had no direct connection with the object of their protest and infringed on the right of free movement of others.

Comments

When reading the Grand Chamber judgement, one first gets the impression that the right to freedom of assembly will be granted strong protection. For instance, the Court re-stated the strong, idealised principles of the threshold of violence that justifies intervention, the imposition of sanctions and the chilling effect of most restrictions.[1] However, the final application of these principles in the judgment is definitely less progressive.

The acceptance by the Court of an authorisation regime, in our view, constitutes an unjustifiably restrictive reading of Article 11 ECHR. The Grand Chamber should have declared that requirements of authorisation (instead of mere notification) imposed by States constitute a prima facie violation of the Article 11 ECHR rights. By stating that authorisation is “not, in principle, contrary the spirit of Article 11”, the Grand Chamber opened the door for indirect infringements of the right to freedom of assembly. As we argue in a joint third party intervention of Ghent University’s Human Rights Centre and the UN Special Rapporteur on freedom of assembly in a different case, shifting the burden onto demonstrators to challenge a refusal, instead of placing the burden on the authorities to justify the restrictions they wish to impose, could transform the right to freedom of assembly into a mere privilege and have a “chilling effect” on the exercise of the rights under Article 11 ECHR.[2]

Likewise, the permission of authorisation regimes endangers the freedom of assembly by providing authorities with the prerogative to determine the manner in which an individual is able to exercise their human rights. Since the effectiveness of an assembly is often wholly contingent on its public nature, the prerogative to choose the location at which to exercise the right to freedom of assembly, should, at least in principle, be bestowed on the right holder.[3]

For these reasons, there has been a recent move in international human rights law towards prohibiting authorisation regimes. The Inter-American Commission on Human Rights has advanced its clear view that “the exercise of the right of assembly through social protest must not be subject to authorisation on the part of the authorities[4] and also that “the requirement of prior notification must not be confused with the requirement of prior authorisation granted as a matter of discretion, which must not be established in the law or practice of the administrative authorities, even when it comes to public spaces”.[5] In our view, the Grand Chamber could and should have seized the opportunity presented by the Kudrevičius case to adopt this favourable approach. Notably, judge Wojtyczek in his concurring opinion questioned the general acceptance by the Court of a system of prior authorisation, finding an obligation to notify sufficient.

In Kudrevičius, the Grand Chamber further held that the applicants had engaged in “reprehensible acts” and that therefore, their criminal conviction had been justified. The Grand Chamber thereby broadened the definition of “reprehensible acts” beyond acts of violence and discrimination, or acts that incite hatred or violence. Rather, the Court expanded the concept to include the much less severe act of creating roadblocks.[6] This dangerously widens the scope for legitimate interventions by authorities, which could lead to a ‘criminalisation of social protest’.[7] In so doing, the Grand Chamber, in its first judgment on freedom of assembly, disregarded its own strong principle that “[a]ny measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it”, and its requirement for particular justification for the threat of criminal sanctions and the deprivation of liberty.

Conclusion

The Grand Chamber in Kudrevičius missed the opportunity to set strong standards with regard to the freedom of peaceful assembly, and actually decreased the protection offered by Article 11 ECHR. In future cases connected to Article 11 ECHR, the Court may wish to pay considerable attention to particular contextual elements of demonstrations in order to successfully distinguish from Kudrevičius. Hopefully, the expansion of certain principles in the Kudrevičius judgment will be confined to the specific context of this case and will not infect the Court’s entire Article 11 case law.

 

[1] ECtHR, Kudrevičius and Others v. Lithuania, (Application no. 37553/05), 15 October 2015, §100, 145-146.

[2] Third Party Intervention in the case of Mahammad Majidli v. Azerbaijan (no. 3) and three other applicants (Application nos. 56317/11, 67932/11, 27472/12 and 59661/12).

[3] Ibid.

[4] Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights Defenders In the Americas (OEA/Ser.L/V/II.Doc.66), 31 December, 2011, §139.

[5] Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights Defenders in the Americas, op. cit., §137.

[6] Kudrevičius, op. cit., §174.

[7] Third Party Intervention in the case of Mahammad Majidli v. Azerbaijan (no. 3) and three other applicants (Application nos. 56317/11, 67932/11, 27472/12 and 59661/12).

One thought on ““Do you hear the people sing?”: Kudrevičius v. Lithuania and the problematic expansion of principles that mute assemblies

  1. […] The Grand Chamber ruled that protesters’ Article 11 ECHR rights had not been breached by their arrest, detention and conviction for having organised unauthorised road blocks. The judgment is nominated for worst judgment of 2015, perhaps not as much for its outcome as for its reasoning. In its first freedom of peaceful assembly judgment, the Grand Chamber missed the opportunity to set strong, protective standards. Instead, it actually decreased the protection traditionally offered by Article 11 ECHR, among others by extending the definition of “reprehensible acts” beyond acts of (incitement to) violence, hatred and discrimination. For more, see our post. […]

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