44 On the other hand, when it comes to open air meetings and demonstrations, art 5 II’s general law requirement imposes at first look a higher justificatory burden on the state than the simple ‘condition of limit by law’ (einfaches Gesetzesvorbehalt) in art 8 II.
Thus, for demonstrations, the Court has chosen the right with the less limit.
The third sitting blockade decision sheds some light on what the GFCC means by content versus modality. There, the constitutionality of duress (Nötigung) as applied to sitting blockades was measured not on art 5, but on art 8, because the conviction has not attached to the ‘expression, but to the action of blockade aiming at raising attention,’151 as if to say the restriction was content-neutral. The question has to be put again: how come that ‘an action which aims at raising attention’ is not qualified as ‘expressive’?
45 This has two important consequences. First, liberty can easily be taken away, by legislation or even by common law. Secondly, as liberty does not amount to a claim-right, there is confusion about the positive or negative nature of liberty. Some contemporary legal commentators suggest that liberty is not enforceable as opposed to a positive right in the European Convention on Human Rights or even a fundamental right in the U.S. Bill of Rights.
It seems to me, however, that liberty differs from those two, otherwise different conceptions of rights not in its enforceability, but in its rank. This rank, on the other hand, follows not even simply from the nature of liberty, but from the constitutional system of the United Kingdom. Parliamentary sovereignty, to put it simply, easily trumps liberties in England while rights in the ECHR and in the U.S. Constitution are supposed to form limits on governmental (including legislative) powers. Liberties are not ‘constitutional’ or
‘human’ rights in England because their nature is determined by their relatively low ranking in the hierarchy of norms. It is especially dangerous – it appears to me – to mistake liberties for negative rights as opposed to positive rights in the Strasbourg jurisprudence.
Negative right means a claim-right for non-interference on the part of the state, like freedom of speech in the U.S. Positive right means a duty of the state to provide protection for the individual against some harm, or, in a loose sense, a duty of service provided by the state to the people.
Under the ECHR, freedom of assembly is both a negative and a positive right meaning that people have a right to assembly free from undue interference, while the state is obliged to take positive measures to facilitate the exercise of the negative right, eg by protecting the demonstrators from violent attacks, or to investigate cases where a violation of the negative right has apparently occurred.153
In any case, in England, freedom of assembly traditionally has been only part of the general liberty of citizens which could be restricted by law. As an important decision has put it, which was later cited by Dicey: ‘English law does not recognise any special right of public meeting for political or other purposes. The right of assembly … is
153 See eg Plattform ’Ärzte für das Leben’ v. Austria, Application no. 10126/82, Judgment of 21 June 1988,.
46 nothing more than a view taken by the Court of the individual liberty of the subject.’ 154 The only limit to that power of regulation was some sort of reasonableness.155
This approach has had particularly disturbing consequences on freedom of assembly from a constitutional point of view. Freedom of assembly concerns are almost completely substituted by public order concerns. In most of the casebooks on civil liberties, there is a chapter about public order law, and not on freedom of assembly. The textbooks, of course, only reflect the state of the law in the field. In the United Kingdom there are currently in force a number of statutes entitled as Public Order Act, Criminal Justice and Public Order Act, Crime and Disorder Act, Anti-social Behaviour Act, and the like, all with a focus on preventing disturbances, and neither with a focus on securing a fundamental right. There is, accordingly, no single statute which would even allude to the right of assembly. The tendency is also clear: the statutes enacted later in time all enhance the powers of the police, all criminalise some previously lawful behavior, and in most of the cases widen the scope of police discretion in handling protests.
Freedom of assembly ranks also lower than some other rights or freedoms in UK law. Certainly, the tradition to protect rights in the criminal procedure is much more strongly embedded, though this is one area where recent anti-terrorism legislation might render moot even centuries long legal truisms. Recently, some media freedom cases also suggest a tendency on behalf of the House of Lords to declare the existence of a common law ‘constitutional right’156 in the realm of freedom of expression. This is certainly not the case with freedom of assembly, not even after the coming into force of the Human Rights Act.
Unlike in Britain, that freedom of assembly is a fundamental right was never questioned in the United States. In Hague v. CIO the Supreme Court summarised earlier statement on the right to free assembly:157
…it is clear that the right peaceably to assemble and to discuss these topics, and to communicate respecting them, whether orally
154 Cf Duncan v Jones [1936] 1 KB 218
155 Cf Nagy v Weston [1965] 1 All ER 78.
156 Helen Fenwick, Civil Liberties and Human Rights,4th edn. (Oxford, Routledge, 2007) at 470, referring to Simms [1999] 3 All ER400, and to Reynolds [1999] 4 All ER 609.
157 Hague v. Committee for Industrial Organisation, 307 U.S. 496, 512 ffff (1939), internal citations omitted.
47 or in writing, is a privilege inherent in citizenship of the United
States which the [Fourteenth – O.S.] Amendment protects.
…
In the Slaughter-House Cases it was said,:
‘The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus are rights of the citizen guaranteed by the Federal Constitution.’
In United States v. Cruikshank, the court said:
‘The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.
If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.’
No expression of a contrary view has ever been voiced by this court. (emphasis added – O.S.)
The concurring justices found even broader the constitutional protection accorded to freedom of assembly, as they considered it is made applicable to the states by the Due Process Clause of the Fourteenth Amendment, not the somewhat declined Privileges and Immunities Clause, as the lead opinion of the plurality judgment would claim. The main difference between lead and concurrence is as to the subject of the right, not so much as to the fundamental nature of the right. The Privileges and Immunities Clause only extends to citizens while the Due Process Clause to anybody coming within the jurisdiction of the United States. Nowadays one can safely maintain that in the United States the latter view prevails with regard to the fundamental right to free assembly, even if courts basically never talk of assembly, only about expression.
In Germany, the Basic Law itself only grants freedom of assembly to citizens of the German Federal Republic. This, on the one hand, clearly does not hinder the recognition of freedom of assembly as a fundamental or basic right, which thus similarly to the United States, enjoys highest rank among the possible rights and entitlements in the
48 German legal order.158 What is more, freedom of assembly according to the text of Article 8 GG is unlimited except in cases of assemblies under the open sky. This ostensible illimitability, however, is significantly reduced in the interpretation of the GFCC, as for such rights, the Court introduced the concept of inherent limitations, ie limits flowing from other constitutional rights are acceptable even on seemingly unlimited rights.
In an opposite trend, another textual limit is interpreted away, too, which had the effect of broadening basic rights protection. In general, art 2 I of the Basic Law protects general freedom of action as a human right, under which also non-citizens’ freedom of assembly can be subsumed. Secondly, the federal assembly law – and also Länder legislation adopted after the federalism reform159 – also grants freedom of assembly to everyone, as only this would be in accordance with the ECHR.160 It is unrealistic that any Land will in the future restrict the right to citizens. In any case, in the German constitutional order, freedom of assembly is safely engrained as a basic human right.
In France, as noted above, the freedom of manifestation has been attached to Article 11 of the Declaration des droits de l’homme et du citoyen du 1789 (Declaration of the Rights of Man and Citizen 1789, in the following ‘DDHC’) by the Constitutional Council,161 and that way it has a constitutional rank. Freedom of reunion is ‘only’
statutorily granted, even if that protection is more extensive as there is no prior restraint, and since the Benjamin decision the administrative court examines strictly whether the interference was proportionate. It has to be stressed that the statutory nature of the guarantee of freedom of réunion does not appear to bother French lawyers. Quite to the contrary, they certainly prefer the legislative guarantee over a ‘constitutional’ guarantee
158 This does not mean there might not be differences among basic rights themselves: dignity is considered unlimitable (inviolable is the term in the Basic Law), while freedom of opinion also enjoys a very high status, maybe second to dignity – if such hierarchisations make at all sense in the ad hoc balancing of the German Constitutional Court.
159 A note: the federalism reform (Gesetz zur Änderung des Grundgesetzes vom 28. August 2006 (BGBl. I S. 2034) has transferred the competence on assemblies to the Länder, but that does not render the federal assembly law in itself moot, because each Land can decide whether to adopt a partially or completely new assembly law, or stay partially or completely under the Federal Assembly Law. In any case, the Länder are bound to observe constitutional jurisprudence of the GFCC. As this book deals with the constitutional content of the right to free assembly, I shall not examine separately the various legislative measures which already had been enacted by the various Länder, unless they had already been affected by the GFCC.
160 Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127, Rn. 63 zu § 1, 47.
161 Décision n° 94-352 DC du 18 janvier 1995, Loi d'orientation et de programmation relative à la sécurité.
49 proclaimed by the CC. Jean Morange in comparing countries of Common Law and countries of ‘legislative law’, ie France, explains that the value of the first is its unity and flexibility, while of the second is predictability and clarity,162 not considering that laws are also in need of interpretation, let alone that laws themselves might be substantively objectionable, unconstitutional or violating ‘human rights.’
Still, historically, freedom of reunion is granted in a law from 1881 (which could always become interpreted by the CC as belonging to the fundamental principles recognised in the laws of the Republic, and thus get constitutional value), but the freedom of manifestation has only been regulated in 1935 in a so-called decree-law, an act issued by the executive but having legislative value (in 2012, the regulation was codified into the Code of internal security). Finally, again Morange explains that the liberté de reunion has been traditionally understood as more precious than freedom of demonstration because it appeared ‘more intellectual’, and, thus, more worthy of protection in line with the Enlightenment basis of French law.163 The ‘idealist’164 definition given by the commissaire du gouvernement Michel to freedom of reunion in Benjamin also is a reflection of this approach according to Morange.165
Thus, all in all, this shows it is not useful to transpose on French law the categories of ranking in discussing of freedom of demonstration and meeting. Despite the fact that hierarchy of norms is in general an integral part of French doctrine (scholarship), it is not really applied to a particular right. The fact that freedom of demonstration was granted higher status first in 1995, testifies at once both to the general later emergence of the form of demonstration (as explained by social movement studies), and to the late constitutionalisation of the French legal system.
A last enigmatic feature of French law is, or used to be, that organisers and participants have a different status. Traditionally, it was understood that organisers did not have a constitutionally protected right to either réunion or manifestation, while to
162 Jean Morange, La liberté d’expression (Bruxelles, Bruylant, 2009) at 74.
163 Ibid. at 63.
164 Ibid. at 63.
165 Ibid.
50 participate at a demonstration was fully protected activity.166 Courts and authorities nowadays however do not appear to bother with that, and so will I not either any further.