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Article 11 of the Convention provides as follows:
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.
The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.
The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies.
Freedom of assembly has been in the news lately with demonstrations about the latest cuts in public services. The recent student fee demonstrations have inspired a continuing campaign of sit-ins, staged occupations and other forms of protest. We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 for the fee protesters here. Climate change has also sparked off certain mass actions including the climate change protest during the last G20 summit, during which the police “kettling” techniques were successfully challenged in court: see our discussion here.
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