Article 11 ECHR

• Article 11 ECHR


  The right to freedom of assembly and association
• The three rights under Article 11(1)

  • Freedom of peaceful assembly
  • Freedom of association with others
  • The right to form and to join trade unions for the protection of interests
• Freedom of peaceful assembly


  • Includes a range of activities, including static meetings (including sit-ins), marches, public processions, blockades
  • Peaceful assembly includes a range of reasons (e.g.) political, religious, social, cultural
• Types of Protest


  • Processions and static events
  • November 2023 London - political - protest march followed by static rally
  • A 'sit-in' - static event - on the road by Tamils, 2009 Westminster - this was politically motivated
  • Jewish protest march for peace - a processions
  • November 2023 - political and religious
  • October 2022- sit-in London
  • Environmental Protestors - social and political - static event
  • Extinction Rebellion - London April 2022 - Political and societal issue - protest march, static sit-ins, blockades
  • Slow-moving tractors - February 2024 Dover, Kent
• Peaceful assemblies are not always allowed to continue
• Cisse v France


  • A peaceful occupancy of a church by protesting immigrants was stopped because of concerns over the health of the demonstrators and sanitary conditions within the church
• Positive obligation


  On states to ensure that individuals are able to exercise the right safely
• Assemblies may be considered peaceful even if they lead to counter demonstrations (because they annoy or offend people)
• Positive obligation


  On the state to ensure that individuals are able to exercise the right (e.g.) by protecting demonstrators against violence
• Plattform 'Artze fur das Leben' v Austria


  • The applicant (Arzte fur das Leben) was an association of doctors in Austria opposed to abortion which had organised a religious service and a march to a surgery of a doctor who carried out abortions. This march was disrupted by counter-demonstrators. The applicant brought the case arguing that there had been a breach of Article 11 ECHR because the police had not prevented the counter-demonstrators' actions.
• The ECtHR stated that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without fear of physical violence by their opponents. Fear might deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community.
• While there is a right to counter-demonstrate, there is a positive obligation on the state to make sure that individuals are able to exercise the right to freedom of peaceful assembly safely. Sometimes the state must interfere to protect its citizens and maintain order.
• Giving notice of an assembly

  A state may require notification or authorisation of the assembly but any refusal by the state to grant authority for an assembly must be justified by law.
• Giving notice of an assembly in the UK

  The organisers of a march are required to give advance written notice of the march to the local police force. The notice, which can be in the form of a letter, should be given at least a week before the march by being sent recorded delivery or hand delivered to a police station. The notice should set out the date and start time of the proposed march and its route. It must also include the name and address of at least one of the organisers. Anyone who organises a march and doesn't give the required notice commits an offence for which he/she can be fined up to £1,000. Unless this arises from circumstances beyond his/her control the organiser also commits an offence if the date, start time or route of the march differs from those notified to the police.
• Article 11 is a qualified right


  This means that the rights can be interfered with by the state if it is justifiable to do so. Article 11(2) says that interference must be: prescribed by law, necessary ('proportionate') in a democratic society, for a legitimate aim
• Restriction: Prescribed by law


  There must be a clear and precise legal basis for the authorities to interfere with the rights of individuals under Article 11.
• Common Law Restrictions


  • Breach of the peace
  • Trespass
• Breach of the Peace

  It is not a criminal offence to breach the peace but, at common law, there is a power of arrest. The behaviour of the person involved caused the police officer to believe that: 'harm done or likely to be done to a person or (in his presence) to his property'
• R v Howell


  • Confirmed that the police have the power to arrest without a warrant where: a breach of the peace was committed in the presence of the person making the arrest; there was a threat of a breach of the peace being renewed; and although no breach had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.
• Provided the police follow the guidance in Howell, they ought to be able to justify arrests for breach of the peace. But when the arresting officers don't follow the law about breach of the peace in the UK they leave themselves open to claims for breach of Article 11 ECHR
• R (on application of Laporte) v Chief Constable of Gloucestershire Constabulary


  • The police ordered a bus of passengers heading towards an anti-war protest to turn around claiming to prevent a breach of the peace. The protesters had been hoping to join thousands of people in a demonstration against the Iraq war in RAF Fairford in Gloucestershire, from which part of the US-led attack had been launched two days before. At least some of the protesters, including Laporte, had purely peaceful intentions, but some items which suggested a more violent intent were apparently discovered by the police on the coaches. The coaches were returned to London under police escort, without any opportunity for any of the passengers to get off the coaches. Appeal allowed. No evidence that a breach of the peace was imminent, their actions were disproportionate. The Chief Constable's actions were unlawful because they were not prescribed by law and were unnecessary (disproportionate).
• R(Moos) v Metropolitan Police Commissioner (2011)


  • The court ruled that the police had acted unlawfully in 'containing' or 'kettling' G20 protestors. -the police must be in reasonable apprehension of an 'imminent breach of the peace' before taking 'preventative action'. -preventative action included kettling, but only 'as a last resort catering for situations about to descend into violence'. - the police have no power to arbitrarily kettle protestors.
• Trespass to land


  An unlawful and unjustifiable intrusion by a person onto the land of another – there is no need to show that any damage has been caused. The slightest crossing of the claimant's boundary is sufficient to result in a trespass.
• The Calgarth case – definition of trespass


  • The occupier can set limits on where the visitor is allowed to go or how long they are allowed to be there. "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used"
• This principle was used to evict travellers parked on land belonging to others. It has also been used against individuals involved in sit-ins such as that at Essex University in the case of University of Essex v Djemal (1980)
• Freedom of association with others

  This includes the right to form and join trade unions, and to join with others to pursue or advance common causes and interests.
• McFeeley v UK


  • IRA prisoners (who claimed they were political prisoners) in Northern Ireland claimed that their Article 11 rights had been infringed when not allowed to 'associate' with other prisoners. The ECtHR found no breach.
• Redfearn v UK 2012


  • A bus driver worked in and around Bradford and most of his passengers were of Asian origin. He was dismissed following his election to the local council representing the British National Party. Concerns were raised by unions that their members could be at risk of harm or abuse. However, there were no allegations against him and he had been nominated as a 'first class employee' by his line manager, who was of Asian origin. In the ECtHR, he successfully argued that for an employee to lose his job for exercising his right to freedom of association was wrong. There was a violation of Article 11.
• The right to form and join trade unions


  This includes the right not to join a trade union
• Young, James and Webster v UK

  • The applicants were dismissed by their employer (British Rail) because they refused to join a trade union designated by their employer. Article 11 gives to workers the freedom to choose whether to belong to a given trade union or not. Forcing an individual to join a designated union is a breach.
• Article 11


  Gives to workers the freedom to choose whether to belong to a given trade union or not
• Forcing an individual to join a designated union is a breach of Article 11
• Bauer v DPP – aggravated trespass


  • It is not sufficient merely to prove a trespass. There has to be some distinct and overt act beyond that and the act must be accompanied by the intention to intimidate, obstruct or disrupt. An individual's presence as part of a continuing occupation may amount to such a further act. There is no requirement to prove that any damage occurred.
• DPP v Chivers (2010) – aggravated trespass


  • Land includes a building and he had been correctly charged with aggravated trespass.
• Restriction 2: Interference with the rights of Article 11

  • Must be necessary in a democratic society
  • What questions might be asked to examine whether the interference was proportionate?
  • Is the limitation on the right to peaceful assembly effective?
  • Did this interference with the right cause the least disruption?
  • Is it balanced between the competing interests of individual/group and the state as a whole?
• Although marches and demonstrations may bring considerable temporary disruption, this does not extinguish the right
• The more it impinges on the rights of others, the less likely it is to be lawful
• Positive obligation


  Where positive steps are necessary to ensure that the right is practical and effective, the state will be required to take them
• Where a demonstration and a counter-demonstration are planned to coincide, the state will not usually be permitted to ban one or the other. It must consider measures which allow both demos to take place without disturbance (although it has discretion whether to actually do so)
• What about stopping demonstrations/removing demonstrators?

  • Public authorities have to balance the rights of other members of the public against protestors.
  • The police are likely to seek to remove people who have been occupying public land for a number of months and are significantly interfering with the rights of others.
  • Self-contained protest which are time-limited will be policed sensitively although the police may limit the amount of time roads are closed to accommodate the demo/protest.