European Court of Human Rights

Information Note on the Court’s case-law No.

November 2013

Kudrevičius and Others v. Lithuania - 37553/05

Judgment 26.11.2013 [Section II] See: [2013] ECHR 1178

Article 11

Article 11-1

Freedom of peaceful assembly

Criminal convictions for participating in non-violent demonstration: violation

 

Facts - In May 2003 the Lithuanian authorities issued farmers with permits to hold peaceful assemblies in selected areas. The farmers held a peaceful demonstration, but after it dispersed it caused major traffic disruptions on three main roads. The five applicants, who had participated in the demonstration, were prosecuted and in September 2004 found guilty of having incited or participated in riots, an offence under Article 283 § 1 of the Criminal Code They were each given a sixty-day custodial sentence, suspended for one year, and ordered not to leave their places of residence for more than seven days during that period without the authorities’ prior agreement. One of the applicants was also ordered to pay compensation in respect of pecuniary damage that had been sustained by a transport company. Another farmer was punished under administrative law for an identical violation.

Law - Article 11: Although they had not been involved in any violence, the applicants had incurred a sanction for actions which had been qualified by the authorities as having seriously violated public order. One of the applicants was also ordered to pay compensation. Accordingly the applicants’ conviction for participating in the gathering had amounted to an interference with their right to freedom of peaceful assembly. Even assuming that such interference was “prescribed by law” and in pursuit of the legitimate aims of preventing disorder and protecting the rights and freedoms of others, it was not proportionate.

Any demonstration in a public place inevitably caused a certain level of disruption to ordinary life, including disruption of traffic, and it was important for the public authorities to show a degree of tolerance towards peaceful gatherings if freedom of assembly, as guaranteed by Article 11 of the Convention, was not to be deprived of all substance. Whilst giving due regard to the Government’s argument that pecuniary damage had been caused to transport companies, the Court nonetheless observed that only one company had sued the farmers for that reason. It was of particular importance that the demonstrating farmers had not only allowed passenger vehicles and vehicles carrying dangerous substances through, but that they had also allowed cars and vehicles carrying goods through ten at a time on each side of the road. Furthermore, good-faith negotiations between the farmers and the Government had been on-going during the demonstrations. The applicants had demonstrated their flexibility and readiness to cooperate with other road users and the element of violence had clearly been absent. On this point it was paramount to note that, in contrast with the position in Barraco v. France*, the Lithuanian courts had considered the case in the context of the law on riots and that context had not allowed for proper consideration of the proportionality of the restriction on the right of assembly and thus had significantly restricted their analysis. Another farmer, who had taken others to block a highway and had obstructed traffic by pushing a cart in the middle of the road, had merely been charged with an administrative offence under the road-traffic rules. The actions of the five applicants and the other farmer appeared to have been similar in nature, thus representing a similar degree of danger. However, the other farmer had escaped with nothing but a modest administrative fine, whereas the five applicants had had to go through the ordeal of criminal proceedings and had been given a custodial sentence. Although the sentence had been suspended for one year, they had also been ordered for the duration of that period not to leave their places of residence for more than seven days without the authorities’ prior approval. In these circumstances, the applicants’ conviction of the criminal offence had not been a necessary and proportionate measure in order to achieve the legitimate aims pursued.

Conclusion: violation (four votes to three).

Article 41: EUR 2,000 to each applicant in respect of non-pecuniary damage.

*  Barraco v. France, 31684/05, 5 March 2009, Information Note 117.

 

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