DISSENTING OPINION OF JUDGE SEIBERT-FOHR

JOINED BY JUDGE PAVLI

1. While we agree with the majority that there has been an interference with the applicant’s right to freedom of expression, we come to a different conclusion with respect to its necessity. Whereas the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary, this margin goes hand in hand with European supervision. When carrying out that supervision the Court must ascertain whether the impugned measures are “proportionate to the legitimate aim pursued”, due regard being had to the importance of freedom of expression in a democratic society (see Perinçek v. Switzerland [GC], no. 27510/08, § 198, 17 December 2013). In our view, it has not been shown in the present case that it was necessary to take and hold the applicant at a police station for several hours after the demonstration had ended, let alone to impose a fine on him. The Government have failed to demonstrate that there were no less restrictive means at their disposal to protect public order (see Glor v. Switzerland , no. 13444/04, § 94, ECHR 2009).

2. We agree with the majority that public authorities may legitimately intervene in cases where public order is at stake and take action in order to avoid conflicts between demonstrators and counter-demonstrators. As the Court has explained in Ärzte für das Leben v. Austria (no. 10126/82 , § 32, 21 June 1988): “In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere. Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.” Therefore, States may be required to take positive measures in order to protect a lawful demonstration against counter ‑ demonstrations (see also Öllinger v. Austria , no. 76900/01 , § 37, 26 June 2006). For this reason, it may be necessary to take steps to de-escalate tensions before a real risk of inflicting bodily harm materialises (see Berkman v. Russia , no. 46712/15, § 52, 1 December 2020). What kind of measures are permissible will depend on the particular situation at hand. In Fáber v. Hungary (no. 40721/08, § 43, 24 July 2012), the Court considered that the State had had a positive obligation to protect the right of assembly of both demonstrating groups by identifying the least restrictive means that would, in principle, enable both demonstrations to take place.

3. In the present case, the authorities have failed to demonstrate that the order to remove the banner, followed by the imposition of a fine on the applicant, was indeed necessary to protect public order. The applicant’s conduct was neither threatening nor abusive. He did not hinder other participants from participating or expressing their views. The reason for the applicant’s conviction was the fact that he displayed a banner which was considered provocative (compare Fáber v. Hungary , cited above, § 46). Two participants in the event were displeased by the banner and asked for its removal (see paragraph 8 of the judgment). However, the applicant’s refusal to take the banner down did not lead to any further reactions by other participants. The banner continued to be displayed until the end of the event without any further incident. Nonetheless, the police took the applicant to a police station after the meeting had ended.

4. In their submissions (see paragraph 25), the Government argue that the divergence from the event’s programme “might” have provoked the participants in the public event and led to public disorder. However, repressive measures cannot be based on such hypothetical effects. Inviting the police to decide on their own which views are consistent with an event’s programme would significantly undermine the right to freedom of expression. An expression which is considered to be provocative is therefore in itself insufficient to justify intervention. If provocative expressions do in fact lead to a disruption of the main event or to tensions with other demonstrators who consider the message of the event to be distorted, preventative de-escalating measures need to be considered, such as separating the demonstrators on site while allowing both groups an opportunity to express their views (see Öllinger v. Austria , cited above, § 48).

5. In the present case, however, the police did not consider such preventative measures to be necessary. The applicant was not directed to an adjacent area in order to avoid tensions with the other participants or to prevent the alleged distortion of the event and disruption to its participants. Instead, the police waited until the applicant was already on his way home before sanctioning him. The course of events thus contradicts the assumption that the applicant’s presence rendered it difficult for the police to ensure the peaceful conduct of the event.

6. We acknowledge that during a public event the police are required to determine the appropriate measures on the basis of an ex ante evaluation of the security risks and the likelihood of disturbance. However, this does not absolve the authorities from pointing to concrete facts, such as actual disruption, prior disturbances or violent acts in past events, in order to establish a pressing social need to prohibit the expression of an opinion. Moreover, based on the relevant risk assessment the police need to resort to the least restrictive measures (see Fáber v. Hungary , cited above, § 43). We are doubtful that the discomfort experienced by two other demonstrators with regard to the banner was sufficient to justify the order to remove it entirely, rather than asking the applicant to move to an adjacent area at a sufficient distance from the demonstrators. In any event, once subsequent events showed that the alleged risk of disorder, the assumption of which had been hasty, did not materialise, there were no grounds for taking the applicant to the police station after the event, holding him there and sentencing him to a fine. For these reasons and in the absence of any demonstration of a pressing social need for the applicant’s conviction, we would have found a violation of Article 10 in the present case.