CONCURRING OPINION OF JUDGE ELÓSEGUI

1. In the present case I was completely in agreement with the finding of violations of Articles 6 § 1 and 10 of the Convention and with the reasoning. In fact, the judgment was adopted unanimously. For my part, I find important that the judgment contains references to ECRI ’ s Recommendation No. 15 on combating hate speech.

2. My concurring opinion is intended only to go more deeply into the case-law of the Court referred to in paragraph 88 of the judgment. As a general point of departure the judgment considers that any limitations on freedom of expression under Article 10 have to be prescribed by law in a foreseeable way. The first and second applicants staged public protests in Novorossiysk against the Minors Protection Act. They subsequently received warnings from the public prosecutor that they should avoid the repetition of such acts in the future.

3. The core of the judgment lies in the statement that “for the purpose of avoiding ... the commission of offences ... and where there is information that unlawful actions ... are being planned, a prosecutor is able to issue a writing warning” (see paragraph 40 of the judgment). The issue is that the applicants were not punished for their actual behaviour but were warned by the prosecutor, without this being prescribed by a clear law and in the absence of any previous judgment. The prosecutor used the Suppression of Extremism Act as the basis for the warnings. According to the applicants, that Act uses vague terms such as “sufficient verified information that unlawful actions of an extremist nature are being planned” or “obstruction” of the lawful activities of the State authorities (see paragraph 59 of the judgment).

4. On the one hand, “[t]he Court notes that in the context of the anti ‑ extremist legislation, the term ‘ obstruction ’ was used to characterise a type of ‘ extremist activity ’ , and that the use of the notion of ‘ obstruction ’ was and remains specifically linked and limited to situations of ‘ violence or threats of violence ’ ” (see paragraph 82 of the judgment).

5. On the other hand, citing some general principles, the judgment observes that “protests, including actions taking the form of physically impeding certain activities, can constitute expressions of opinion within the meaning of Article 10 of the Convention” (see paragraph 88 of the judgment ). What I would like to emphasise is that all instances of interference impeding certain activities which constitute expressions of opinion are protected by Article 10. This means only that Article 10 is applicable and that the Court will then proceed to an examination of the merits in order to ascertain whether, in certain circumstances, the prohibition of some forms of conduct is prescribed by law and proportionate and hence does not give rise to a violation of the right of freedom of expression.

However, the case-law quoted in this paragraph found no violation of Article 10 in most of the cases cited. The first issue is that the domestic legislation and practice, and their effects, must be foreseeable (see paragraph 107 of the judgment). In the particular case of Karastelev and Others v. Russia , all the judges concluded that “the law was not foreseeable and did not provide adequate protection against arbitrary recourse to the warning, caution and order procedures” (ibid.). As a result it was not necessary to continue with the examination of the test of proportionality and of the limitations provided for in Article 10 § 2 of the European Convention on Human Rights.

6. The fact remains that most of the cases quoted in paragraph 88 ended in a finding of no violation of Article 10. It is worth emphasising that the exercise of one individual ’ s freedom may be limited if it impedes the rights of others. For instance, in the case of Steel and Others v. the United Kingdom (23 September 1998, Reports of Judgments and Decisions 1998 ‑ VII), the applicant, together with approximately sixty others, took part in a protest against a grouse shoot on Wheeldale Moor, Yorkshire (§ 6). She was arrested for a “breach of the peace”. Moreover, “[a] ccording to the police she was intentionally impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun to take aim, thus preventing him from firing” (§ 8). She was further charged with using “threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress” (§ 10).

7. The second applicant took part in a protest “against the building of an extension to the M11 motorway in Wanstead, London. During the course of that day a group of twenty to twenty-five protesters repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery” (§ 15). In both cases, the common ‑ law concept of “breach of the peace” was applied in order to punish these persons. The conclusion of the judgment was that there had been no violation of Article 5 § 1 in respect of the arrest and initial detention of the first and second applicants, and likewise no violation of Article 10. In the case of the first applicant, the Court took into account the “dangers inherent in the applicant ’ s particular form of protest activity and the risk of disorder arising from the persistent obstruction by the demonstrators of the members of the grouse shoot as they attempted to carry out their lawful pastime” (§ 103). In the same vein, the Court took the view that the conduct of the second applicant in “placing herself in front of machinery in order to impede the engineering works” (§ 108) could not attract the protection of the Convention. The Court also found to be correct the balance struck by the domestic courts in the case of this applicant, “taking into account the interest in maintaining public order and protecting the rights of others ...” (§ 109).

8. By contrast, in the same judgment the Court found a violation of Article 10 in the case of the third, fourth and fifth applicants, who had gathered in the street holding banners and distributing leaflets against the sale of fighter helicopters, during the “Fighter Helicopter II” Conference at the Queen Elizabeth Conference Centre. The Court saw no reasons to regard their protest as other than entirely peaceful (see § 64). It held that there had been a violation of Article 10 because the measures taken against these applicants had not been “lawful” or “prescribed by law” since it was not satisfied that the police had had grounds reasonably to apprehend that the applicants ’ peaceful protest would cause a breach of the peace. For similar reasons it considered that the interference with the exercise by the applicants of their right to freedom of expression had also been disproportionate to the aims of preventing disorder and protecting the rights of others and had not, therefore, been “necessary in a democratic society” (§ 110).

9. In the case of Lucas v. the United Kingdom (( dec. ), no. 39013/02, 18 March 2003) the Court found the application inadmissible under Article 10 and Article 11 as being manifestly ill-founded. The case related to the applicant ’ s participation in a demonstration at the Faslane naval base in Scotland against the decision of the British Government to retain the Trident nuclear submarine. The applicant and a number of other protesters sat in the public road leading to the naval base. The applicant refused to move and was arrested for committing a “breach of the peace”. The important concepts here were the risk and danger to drivers on the road. The domestic courts had observed that there was a genuine likelihood of alarm, distress or violence, and the Court accepted this reasoning and found that the definition of a breach of the peace provided reasonable foreseeability (conversely, in Hashman and Harrup v. the United Kingdom ([GC], no. 25594/94, ECHR 1999 ‑ VIII), the Court found the use of the concept of contra bonos mores too weak and not foreseeable).

10. In the case of Chorherr v. Austria (25 August 1993, Series A no. 266 ‑ B), the Court also concluded that there had been no violation of Article 10. A military ceremony was held in the Rathausplatz in Vienna to mark the thirtieth anniversary of Austrian neutrality and the fortieth anniversary of the end of the Second World War. The applicant distributed leaflets calling for a referendum on the purchase of fighter aircraft by the Austrian armed forces. What is important here is that the Austrian Constitutional Court used the concept of breaching the peace, but specifically took into account the fact that, in its opinion, the majority of the spectators had come to watch the parade and that they also had the right to enjoy that event peaceably. The applicants were prevented from carrying on distributing leaflets because they were disturbing the other citizens (and because a poster projecting above a rucksack was blocking the view of a number of spectators), not because of their ideas. During the event, “[t]wo policemen informed the applicant and his friend that they were disturbing public order and instructed them to cease what could only be regarded as a demonstration. However, they refused to comply, asserting their right to freedom of expression ... they were arrested” (§ 8). Furthermore, the spectators of the event were annoyed and started to protest against the applicants. The latter ’ s conduct risked disturbing public order and causing a breach of the peace. The Court held that the limitations in question were sufficiently prescribed by Austrian law.

11. The case of Barraco v. France (no. 31684/05, 5 March 2009), which also concerned a demonstration on a motorway, likewise ended with a finding of no violation of Article 10. As it is summarised in the Information Note of the Court published on HUDOC, the case related to Article 11 § 1 on freedom of peaceful assembly. The applicant, a lorry driver, was involved in a complete blockade of the motorway by heavy-goods vehicles in a “go-slow” operation in 2002. Seventeen motorists, including the applicant, took part in a traffic-slowing operation on a motorway, which involved driving along a predetermined route in a convoy, at slow speed, occupying several lanes, to slow down the traffic on the motorway. When three drivers at the front of the convoy, one of whom was the applicant, stopped their vehicles, completely blocking the road for other users, the police arrested them. The drivers concerned were summoned to appear in court for having obstructed the public highway by placing or attempting to place on it an object that obstructed vehicular traffic, or using or attempting to use any means to obstruct it – in the instant case by stopping their vehicles several times. The court acquitted the accused, but the public prosecutor appealed and the Court of Appeal set aside that judgment, found them guilty as charged and sentenced them each to a suspended term of three months ’ imprisonment together with a fine of 1,500 euros (EUR). The Court of Cassation dismissed an appeal on points of law lodged by the applicant.

12. The Court found that the applicant ’ s conviction had amounted to interference by the public authorities with his right to freedom of peaceful assembly, which included freedom to demonstrate. The interference had been “prescribed by law” and had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. As to whether it had been necessary in a democratic society, it was to be noted that no formal prior notice of the demonstration had been given as required by the relevant domestic law. However, the authorities had been aware of it and had also had the opportunity to take measures for the protection of safety and public order, for example by organising police protection and a police escort. So even if the demonstration had not been tolerated, at least it had not been prohibited. Moreover, the applicant had not been convicted of taking part in the demonstration as such, but for his particular conduct during the demonstration, namely blocking a motorway and thereby causing more of an obstruction than would normally be caused by exercising one ’ s right to freedom of peaceful assembly. It was indeed clear from the case file that while the demonstration was in progress, from 6 a.m. to 11 a.m., the traffic had been held up, but also that several total stoppages had been caused by drivers at the head of the convoy, including the applicant, stopping their vehicles. This complete blockage of the traffic had clearly gone beyond the mere inconvenience caused by any demonstration on the public highway. The police, whose task had been to protect safety and public order, had arrested the three demonstrators only in order to unblock the traffic, after the drivers had been warned several times not to stop their vehicles on the motorway and informed of the penalties they could incur. In that context and for several hours, the applicant had been able to exercise his right to freedom of peaceful assembly and the authorities had displayed the tolerance that should be shown towards such gatherings. The applicant ’ s conviction and sentence had therefore not been disproportionate to the aims pursued. The conclusion of the judgment was that there had been no violation of Article 11 § 1 of the Convention.

13. Interestingly, the case of Kudrevičius and Others v. Lithuania (no. 37553/05, 26 November 2013) was referred to the Grand Chamber. The earlier Chamber judgment finished in a split vote, with four judges in favour of finding a violation of Article 11 and three judges dissenting. In April 2003 a group of farmers held a demonstration in front of the Seimas (the Lithuanian Parliament) building to protest about the situation in the agricultural sector with regard to a fall in wholesale prices for various agricultural products and the lack of subsidies for producing those products, demanding that the State take action. In principle, the farmers had a permit from Kalvarija municipality to hold a peaceful assembly in Kalvarija town. However, they blocked and demonstrated on streets not included in the permit and eventually drove tractors onto a major highway and stopped the traffic, entailing a number of consequences for citizens, other drivers and transporters of goods. The Supreme Court upheld the applicants ’ conviction for deliberately organising a riot with the aim of breaching public order, causing public violence or damaging property (see § 33 of the Chamber judgment). The judgment stated that “for the Government, the interference had also been necessary for the prevention of disorder and for the protection of the rights of others, given that the applicants had been personally involved in committing unlawful actions during the demonstration” (Chamber judgment, § 74). The four judges making up the majority applied a test of proportionality to the specific case, finding in favour of the farmers. They considered that the element of violence was clearly absent in the instant case (§ 82). According to this assessment, the penalty imposed on the five applicants was also a severe one. The applicants “had to go through the ordeal of criminal proceedings, and, as a result of criminal conviction, were given a custodial sentence. Although the execution of the sentences was suspended for one year, the applicants were also ordered not to leave their places of residence for more than seven days without the authorities ’ prior approval, that restrictive measure having lasted for an entire year” (§ 83).

14. In contrast, the three dissenting judges, Judges Raimondi, Jočienė and Pinto de Albuquerque, took the view that there had been no violation of Article 11 and that the applicants ’ claims were unfounded. For them, the interpretation of national law made by the domestic courts in this case did not seem arbitrary (see § 4 of the separate opinion). In the view of these judges, the law was completely foreseeable (§ 5). The demonstrators had ignored the limits of the permits granted to them and had disobeyed the police orders not to hinder the traffic (§ 6). The dissenting judges considered that the applicants ’ actions had constituted a serious abuse of the freedom of peaceful assembly and that the action of the State had been necessary and proportionate, as had the criminal conviction, which had been proportionate to the gravity of the applicants ’ conduct (§ 19). Furthermore, the execution of the sentence had ultimately been suspended. The judges in question considered the case at hand to be even more serious than the case of Barraco (cited above, § 15).

15. The Grand Chamber held, by a unanimous vote of the seventeen judges, that there had been no violation of Article 11 of the Convention. In this case the Grand Chamber subscribed to the reasoning of the national courts and saw no reason to depart from it. It found that “in sentencing the applicants for rioting, in relation to their behaviour from 21 to 23 May 2003 during the farmers ’ demonstrations, the Lithuanian authorities struck a fair balance between the legitimate aims of the ‘ prevention of disorder ’ and of the ‘ protection of the rights and freedoms of others ’ on the one hand, and the requirements of freedom of assembly on the other. They based their decisions on an acceptable assessment of the facts and on reasons which were relevant and sufficient . Thus, they did not overstep their margin of appreciation in relation to the subject matter” (see § 182 of the Grand Chamber judgment). The Grand Chamber departed from the Chamber judgment and adopted a position more in line with the previous dissenting opinions. It considered that “the moving of the demonstrations from the authorised areas onto the highways was a clear violation of the condition stipulated in the permits” (Grand Chamber judgment, § 165). In the Grand Chamber ’ s view, the farmers ’ conduct could not attract the protection of Article 11 of the Convention. The Court found “that, even though the applicants had neither carried out acts of violence nor incited others to engage in such acts, the almost complete obstruction of three major highways in blatant disregard of police orders and of the needs and rights of the road users constituted conduct, which, even though less serious than recourse to physical violence, can be described as ‘ reprehensible ’ ” (§ 174). The Court also considered that the sanction had been proportionate to the gravity of the facts (§ 179) and that the interference complained of had been “necessary in a democratic society” within the meaning of Article 11 of the Convention (§ 183).

16. In sum, all these cases show the test of proportionality as carried out by the Court in cases relating to freedom of expression or assembly, exercised through conduct such as demonstrations, gatherings and similar situations. To satisfy the first step of the test, any interference with such a right has to be prescribed by law. We then have to proceed to the next step, in order to ascertain whether it pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. Such interference must also be necessary in a democratic society. In the present case of Karastelev and Others v. Russia , the warnings issued by the prosecutor were not prescribed by law. Hence, the analysis did not even pass the first step of the proportionality test. In conclusion, there has been a violation of Article 10 of the Convention.

[1] This appears to be paraphrasing “Rights are not granted; they are taken!” from Meshchane ( Bourg e ois ), a play by Maksim Gorkiy, a Soviet writer.