Policing democratic freedoms Page 99 ■ In Tatar and Faber v Hungary, two people went to the Hungarian Parliament and attached dirty clothes to the fence around the building for a period of thirteen minutes. This was to express a comment on the political situation in the country. They were convicted of holding an un-notified assembly. The Court held that the actions of the applicants did not constitute an assembly, as there was ‘no intentional gathering of participants.’ 292 The Strasbourg Court has said that democracy is the only political model contemplated in the Convention and the only one compatible with it 293 and that the ‘guarantee of the right of freedom of assembly cannot be left to the whim of the authorities and their perception of what is or is not deserving of authorisation’. 294 In addition, it has held that any ‘measures interfering with freedom of 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.’ 295 If police actions are designed to undermine the right to freedom of association, they will be likely to be held to violate that guarantee. In a number of cases decided by the Strasbourg Court, peaceful demonstrators have been arrested on spurious grounds. ■ In Hyde Park and Others v Moldova (nos. 5 and 6), for example, a number of demonstrators at lawful protests were arrested for alleged irregularities in paperwork, or taken away for further examination of their identity papers. They were also convicted of violations of the domestic Law on Assemblies. The Strasbourg Court held that these actions constituted violations of the right to freedom of assembly. 296 The Strasbourg Court will take a particularly strict view of attempts to restrict demonstrations which involve the legitimate activities of a political party. ■ In Christian Democratic People’s Party v Moldova, the applicant political party organised demonstrations against the Moldovan Government’s proposals to make learning Russian compulsory for all schoolchildren above the age of 7. The authorities, when they received notification of the demonstrations, altered the proposed venue without any consultation with the organisers. The 292 Tatar and Faber v Hungary, judgment of 12 June 2012 at paragraph 39. 293 Christian Democratic People’s Party v Moldova, judgment of 14 February 2006 at paragraph 63. 294 Hyde Park and others v Moldova, judgment of 31 March 2009 at paragraph 30. 295 Faber v Hungary, judgment of 24 July 2012 at paragraph 37. 296 Hyde Park and Others v Moldova (nos. 5 and 6), judgment of 14 September 2010.
The European Convention on Human Rights and Policing Page 100 organisers nonetheless proceeded to hold the demonstration at the location which was originally notified. In response, the authorities suspended the activities of the Christian Democratic People’s Party for a period of one month. Videos of the demonstrations showed that they were essentially peaceful. The Court, in finding a violation of Article 11, stated that ‘only very serious breaches such as those which endanger political pluralism or fundamental political principles could justify a ban on the activities of a political party.’ 297 Positive obligations Article 10 does not just restrict the situations in which the exercise of freedom of expression may be interfered with. In view of the importance of the right in a democratic society, there are situations where the State is obliged to take feasible steps to protect its exercise. ■ In Ozgur Gundem v Turkey, a newspaper, linked to the Kurdish Workers’ Party (PKK) and its staff, had been subjected to a lengthy campaign of intimidation and violence, resulting in a number of deaths. The authorities, despite being requested by the newspaper, did not take any protective steps. This constituted a violation of Article 10. 298 In the event that there are reasonable grounds to believe that a person or organisation may be attacked due to the exercise of freedom of expression (however unpopular), it may be necessary for police to take steps to seek to protect them. It is important to bear in mind that this is not an obligation of result. The police cannot be expected to ensure that no harm comes to any person in their jurisdiction. The precise nature of any such steps is impossible to define in the abstract. Professional policing decisions, based on relevant national legislation and police practice, will be likely to be deemed sufficient. Justification for interferences with Articles 8-11, European Convention on Human Rights As noted above, the rights contained in Articles 8 to 11 may be limited, in certain defined circumstances and under specified conditions. Firstly, any interference must pursue a ‘legitimate aim’. Secondly, the interference must be ‘in accordance with the law’. Thirdly, the interference must be no more 297 Christian Democratic People’s Party v Moldova, judgment of 14 February 2006 at paragraph 76. 298 Ozgur Gundem v Turkey, judgment of 16 March 2000 at paragraph 44.