EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

union by the State at the material time – resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom , nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V, and Gustafsson v. Sweden , 25 April 1996, § 45, Reports 1996-II). Strike action is clearly protected by Article 11 (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom , no. 31045/10, § 84, 8 April 2014). Notification, and even authorisation, procedures for a public event do not normally encroach upon the essence of the right under Article 11 of the Convention as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering (see Sergey Kuznetsov , cited above, § 42, and Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and 26255/07, 17 November 2009). Organisers of public gatherings should respect the rules governing that process by complying with the regulations in force. Since States have the right to require authorisation, they must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirement ( Ziliberberg v. Moldova, dec., no. 61821/00, 4 May 2004). The question is how far such “sanctions” may go and whether the dispersal can be reasonable explained by the original “unlawfulness” of the public action. In Ziliberberg the Court decided that a short detention of the applicant and a small fine were not an excessive response to participation in an unauthorised demonstration in a public thoroughfare. However, as the Court stated in Samüt Karabulut v. Turkey (no. 16999/04, § 35, 27 January 2009, with further references), “an unlawful situation does not justify an infringement of freedom of assembly”. While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings (see Berladir and Others v. Russia , no. 34202/06, § 38, 10 July 2012; Galstyan , cited above, §§ 116-117; Bukta and Others v. Hungary , no. 25691/04, § 37, ECHR 2007-III; Oya Ataman , cited above, §§ 38-42; and Akgöl and Göl v. Turkey , nos. 28495/06 and 28516/06, § 43, 17 May 2011). Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. The right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned (see Sidiropoulos and Others v. Greece , judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, § 40). Freedom of association is however not absolute and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State’s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. Nonetheless, that power must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In determining whether a necessity within the meaning of paragraph 2 of these Convention provisions exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see Gorzelik and Others , cited

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