ECtHR: subsidiarity and functionality

33 suppressing the publication on the highways of facts and opinions, either by speech or by writing’; that communication ‘by the distribution of literature or by the display of placards and signs’ was in no respect regulated by the statute; that the regulation with respect to parades and processions was applicable only ‘to organised formations of persons using the highways,’ and that ‘the defendants, separately, or collectively in groups not constituting a parade or procession’, were ‘under no contemplation of the Act’,’ and the Act only served to secure public convenience in the use of the streets.¹⁰⁸

Thus, the Court considered the permit (and fee) requirement attached basically to

‘formation’ as not burdening the expressive aspects of the activity. It remains unclear and even incomprehensible what the justices then think why the Witnesses were building the formation, if not for expressive purposes. Rather, it would seem that the formation is clearly part of the expression, just as Charles Tilly would claim, it is one of the WUNC (Worth, Unity, Numbers and Commitment) displays which contributes to the unity of the group.¹⁰⁹

This limited understanding of expression was reinforced in a 1965 case where it was ‘emphatically rejected’¹¹⁰ that

the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.

It appears therefore that the USSC attempts to make a distinction between what is considered physical, external or maybe what takes up a space, and what is considered ‘the message’.

34 The European Court of Human Rights only lately explicitly contended that freedom of assembly, just as its twin-right in Article 11, association, ¹¹¹ has an autonomous meaning under the Convention.¹¹² Already the Commission noted, and the Court since embraced as constant reference that ‘freedom of assembly covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions;’¹¹³ and it can be exercised by individuals and those organising the assembly.¹¹⁴ Most probably, however, it does not cover ad hoc, accidental gatherings of people without a purpose, or for purely social purposes.¹¹⁵

Protests and direct actions where only one or few participants appear will be covered by the freedom of expression right of art 10.¹¹⁶ Article 11 is in general considered lex specialis to art 10, thus art 10 doctrine can always apply to assemblies, while the connection is not valid the other way around.

This merging conceptual approach does not have such negative consequences as the supersession of assembly by speech elsewhere for two main reasons. More importantly, the ECtHR does not – at least so far – apply any modality doctrine which would allow for more restriction on the ‘form’ of expression than on the ‘content’. In relation to the press, the Court declared already in 1991 that ‘not only the substance of the ideas and information expressed, but also the form in which they are conveyed’ is protected by Article 10.¹¹⁷ In 2009, the Court expressly applied this doctrine to an assembly advocating reproductive rights on a boat at the Portuguese shores which was

111 Chassagnou v. France, Applications nos. 25088/94, 28331/95 and 28443/95, Judgment of 29 April 1999, 1999 ECHR 22, § 100.

112 Tatár and Fáber v. Hungary, Application nos. 26005/08 and 26160/08, Judgment of 12 June 2012.

113 Rassemblement jurassien and Unité jurassienne v. Switzerland, Application no. 8191/78, Decision on the admissibility of 10 October 1979, DR 17, 108, 118 ff, and Christians against Racism and Fascism (CARAF) v. the United Kingdom, Application no. 8440/78, Decision on the admissibility of 16 July 1980, DR 21, 138, 148.Barankevich v. Russia, Application no. 10519/03. Judgment of 26 July 2007, § 25.

114 Rassemblement jurassien and Unité jurassienne v. Switzerland, Application no. 8191/78, Decision on the admissibility of 10 October 1979, DR 17, 108, 118 ff, and Christians against Racism and Fascism (CARAF) v. the United Kingdom, Application no. 8440/78, Decision on the admissibility of 16 July 1980, DR 21, 138, 148.

115 The Commission eg noted that ‘[t]here is, […] no indication in the […] case-law that freedom of assembly is intended to guarantee a right to pass and re-pass in public places, or to assemble for purely social purposes anywhere one wishes. Freedom of association, too, has been described as a right for individuals to associate ‘in order to attain various ends.’Anderson and Nine Others v. United Kingdom, Application no. 33689/96., Decision on the admissibility of 27 October 1997, 25 EHRR CD 172.

116 Eg Hashman and Harrup v. United Kingdom, Application no. 25594/94, Judgment of 25 November 1999.

117 Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Application no.11662/85 § 57.

35 prevented entering territorial waters by a war vessel. A demonstration on a boat on the territorial waters of a state was considered by the Court to be the ‘mode of diffusion of information and ideas’, restrictions on which, in certain situations, ‘can affect in an essential manner, the substance of the information and ideas in question.’¹¹⁸ Thus in these cases the ECtHR appears clear about the meaning generating function of modalities.

However, the Court recently contended that ‘even otherwise protected expression is not equally permissible in all places and all times.’¹¹⁹ From this, one could infer a step in the direction of applying different standards to the modality and to the substance of the expression. Still, in my view, this stance is fundamentally different from the stance taken in the US, because it does not split the expression into a superior and inferior aspect, but includes in the ‘meaning’ also time and place: ‘interference … might be legitimate when the particular place and time of the otherwise protected expression unequivocally changes the meaning of a certain display.’¹²⁰

Furthermore, and not less importantly, another recent decision implies a clear and empirically tenable distinction between expression and assembly for the purposes of fundamental rights restriction. The case involved a two-person performance next to the Hungarian Parliament consisting of hanging out several items of cloths on the fence, symbolising ‘the Nation’s dirty laundry’ in protest against the political crisis ongoing since 2006. The performance lasted only a few minutes, followed by a dialogue with journalists, and then ended. The performers were later fined for ‘abuse of freedom of assembly’ as they had not notified their ‘demonstration’.

The ECtHR dismissed the government’s argument that the performance was to qualify as assembly, which hence falls under the assembly law, and can be subjected to prior notice. To the contrary, the ECtHR doubted that such a short two-person „event could have generated the gathering of a significant crowd warranting specific measure on

118 Women on Waves c. Portugal, arrêt de 3 février 2009, Requête n^o 31276/05, §§ 38-39

119 § 58 Fáber v. Hungary, judgment of 24 July 2012, Application no. 40721/08. The case concerned removal, detention and an administrative fine as a result of display of an Arpad-striped flag (which is an old Hungarian flag, but which was used by the arrow cross movement in WW2) at a site where Jews were in great numbers murdered at the Danube in Budapest during WW2. The Court found violation of art 10, therefore, the mentioned text actually only leaves open a possibility, and does not state a doctrine or principle.

120 Ibid, emphasis added.

36 the side of the authorities’.¹²¹ Had the specific measure been warranted, then freedom of assembly (instead or alongside freedom of expression) would be applicable, which would allow for imposition of the notification requirement.¹²² By requiring advance notice for the 13-minute 2 person performance, however, „[t]he national authorities’ approach to the concept of assembly does not correspond to the rationale of the notification rule.’¹²³ The rationale of the notification rule is effective coordination and facilitation of the assembly, and prevention of public disorder or protection of the rights of others. The lack of these specific concerns rendered the short 2-person performance under art 10 instead of art 11, confirming the fall-back nature of art 10 (or the lex specialis status of art 11) as it was developed earlier, and implying that for the assembly law to kick in, some additional, specific concerns are required. In this regard, the freedom of assembly is considered freedom of expression discounted by the mentioned police powers, a kind of

‘freedom of expression minus’.

In sum, it appears that the ECtHR (i) is willing to recognise the expressive potential of the ‘modalities’ of an assembly, (ii) but it still might allow heavier or different restrictions on assemblies than on speech, if those restrictions correspond to the additional externalities of assemblies.