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EuropeanConventionHandbookForPolice

Page 93 Introduction

Page 93 Introduction Chapter 5 Policing democratic freedoms ‘Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.’ 271 One of the most challenging, complicated and important roles of the police in a democratic society is the policing of the exercise of democratic freedoms. These freedoms include the right to respect for freedom of expression, assembly and association, and freedom of thought, conscience and religion. They also include the right to respect for private and family life, home and correspondence. Democratic freedoms are fundamental to the existence of a democratic society, where views and information can be exchanged. The role of the police is to facilitate the democratic process, through ensuring that persons and associations can exercise their rights of freedom of expression and association, in accordance with the provisions of the Convention. This can involve difficult legal and operational decisions for police, requiring the balancing of competing interests. In certain cases, police may find themselves in the middle of contentious disputes, necessitating the taking of measures to protect the exercise of democratic freedoms. 271 Stoll v Switzerland, judgment of 10 December 2007 at paragraph 101.

The European Convention on Human Rights and Policing Page 94 Police services may only interfere with the exercise of democratic freedoms in limited cases, where it is legally permissible, and for good reason. Any interference must be proportionate. In certain cases, the police are required to take steps to protect the exercise of democratic freedoms. For example, the police must take reasonable steps to protect assemblies from attack by those who oppose them. In discharging their obligations, it is critical that the police service and individual police officers remain neutral. It is not the role of police to approve or disapprove of political speech, etc., unless such speech involves the commission of a specific criminal offence (for example, incitement to violence). This is the case, even where persons are engaged in expressing views that are offensive or not well-received. It is important to stress that domestic arrangements are respected, providing that in particular instances minimum European expectations are met. Many European countries make the police authorities responsible for decisions as to whether, and under what conditions, assemblies may take place. Other arrangements are possible. In the Netherlands, for example, the Mayor of the relevant Municipality must be notified of planned public assemblies and may impose conditions or prohibitions on them. 272 In Serbia, notifications must be given to the Ministry of the Interior. 273 Decisions regarding imposing conditions, etc., are either taken exclusively by the authority who receives notification, or in conjunction with municipal or other authorities. There is significant case law of the European Court of Human Rights, making it clear that any decision to restrict the right to freedom of assembly must only be done in pursuance of a legitimate aim, on the basis of a lawful power and for reasons that are necessary in a democratic society. 274 Even where a protest has received prior approval, issues of public order may arise. This chapter will focus on explaining the practical impact of democratic freedoms for policing. The European Court of Human Rights has, over many years, developed a significant amount of case law dealing with the challenges posed by these issues. Some discussion of the key implications for police officers follows. 272 Public Assemblies Act (20 April 1988), Section 5. 273 Public Assembly Act (1992), Article 6. 274 E.g. Djavit An v Turkey, judgment of 20 February 2003 and Barankevich v Russia, judgment of 26 July 2007.