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EuropeanConventionHandbookForPolice

Policing democratic

Policing democratic freedoms Page 103 3. details of relevant legal and administrative provisions and how they have been complied with. 4. the necessity for the action to be taken and the foreseeable consequences. 5. how the is action likely to impact upon others. 6. confirmation, including reasons specific to the decision concerned, that the action is being taken for a legitimate reason and is non-discriminatory. 7. whether the decision has been taken on the basis of all relevant information. Answers to these questions may also be of assistance in defending your actions during any subsequent investigation or other form of scrutiny. Positive obligations The rights granted under Articles 8 to 11 of the Convention also oblige the State authorities (including police) to take certain steps to facilitate the exercise by individuals of their rights under those Articles. The Court has said that these rights are more than just an obligation on the State not to interfere with the exercise. For example, in Ozgur Gundem v Turkey, Turkey was found to be under a positive obligation to take investigative and protective measures, following a campaign of violence and intimidation against a Kurdish newspaper. 302 In situations where a planned assembly is expected to result in disorder, national laws allowing for the prohibition of assemblies may be invoked by police or the competent authorities. However, a threat of violence from others is not sufficient grounds to ban an assembly. If the mere threat of disorder was sufficient grounds to ban an assembly, this could easily be used as a pretext to prohibit assemblies for inappropriate reasons. Accordingly, if a counter–protest is to be organised, the State is required to take reasonable steps within its power to facilitate the assembly, through providing a police presence, etc. 303 In a case against Austria, involving an assembly by doctors against abortion and a counter-demonstration, the Court held that certain actions (e.g. a police presence) are required to secure the right of freedom of assembly. 304 However, the Court has also stated that while ‘it is the duty of Contracting States to 302 Ozgur Gundem v Turkey, judgment of 16 March 2000. 303 Plattform ‘Ärzte für das leben’ v Austria, judgment of 21 June 1988. 304 Ibid.

The European Convention on Human Rights and Policing Page 104 take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used.’ 305 ■ In Faber v Hungary, the applicant was fined for refusing to cease displaying a lawful flag, with controversial historical connotations. He displayed it near an assembly, and the justification for the police action was that they feared disorder. The Court examined this rationale very carefully and found that the ‘mere existence of a risk is insufficient for banning the event: in making their assessment the authorities must produce concrete estimates of the potential scale of disturbance in order to evaluate the resources necessary for neutralizing the threat of violent clashes.’ 306 Any decision to ban an assembly is a serious interference with the rights guaranteed under Article 11. It accordingly requires a very strong justification and must comply with the requirements of paragraph 2 of the Article. 307 The Court has, however, recognised that the police and other authorities are best placed to assess the feasibility of dealing with anticipated disorder. In Faber, it held that ‘national authorities … are best positioned to evaluate the security risks and those of disturbance as well as the appropriate measures dictated by the risk assumption.’ 308 Public assemblies – policing issues The case law of the European Court of Human Rights indicates that policing public assemblies poses a wide range of significant problems for police services and other authorities across Europe. Cases decided by the Strasbourg Court have considered issues such as repeated refusal of permission to hold assemblies 309 , disproportionate interferences with the right to hold assemblies 310 and failure to protect assemblies from attack by private individuals. 311 The sheer variety of situations that can arise in relation to the exercise of democratic freedoms means that policing them is extremely difficult. 312 It 305 Faber v Hungary, judgment of 24 July 2012 at paragraph 39. 306 Ibid. at paragraph 40. 307 See pp. 100-103 above 308 Faber v Hungary, judgment of 24 July 2012 at paragraph 42. 309 Alekseyev v Russia, judgment of 21 October 2010. 310 Oellinger v Austria, judgment of 29 June 2006. 311 Gldani v Georgia, judgment of 3 May 2007. 312 See for example Giuliani and Gaggio v Italy, judgment of 25 August 2009 at paragraph 238.