KUDREVICIUS AND OTHERS v. LITHUANIA - 37553/05 - Chamber Judgment [2013] ECHR 1178 (26 November 2013)

PARTLY DISSENTING OPINION OF JUDGES RAIMONDI, JOČIENĖ AND PINTO DE ALBUQUERQUE

1. We agree with the finding that the complaints under Article 6 §§ 1 and 3 of the European Convention on Human Rights (the Convention) are manifestly ill-founded and should therefore be dismissed. However, with regret, we are not able to share the majority’s position that the applicants’ conviction for the criminal offence of “riot” was not a necessary and proportionate measure in order to achieve the aims pursued. The applicants dispute the foreseeability of the notion of “serious breach of public order in other ways” as specified in the criminal offence of “riot” enshrined in Article 283 of the Lithuanian Criminal Code, the proportionality of the criminal sanctions imposed by the national courts and the interference with their freedom of assembly. We think that these claims are unfounded.

The lawfulness of the criminal conviction

2. According to the Lithuanian Supreme Court, the applicants’ conduct was construed as a “grave violation of public order” and therefore classified as the criminal offence of riot for the purposes of article § 283 of the Lithuanian Criminal Code. The applicants’ case was the first one in which the above-mentioned domestic legal norm was applied. However, we do not consider that that fact alone made the application of the legal norm in issue unforeseeable, given that there must come a day when one or another legal norm is applied for the first time. In this connection, we draw particular attention to the fact that the Lithuanian courts gave extensive explanations as to the content of the concept of the criminal offence of “riot” and as to how the applicants’ actions fell within the scope of Article 283 § 1 of the Criminal Code.[1] We also take note of the appellate court’s view, in its judgment of 14 January 2005,[2] that the organisation of a crowd of people to block major highways in different places in Lithuania, paralysing not only the traffic but also the normal functioning of State border control posts, went beyond the scope of the provisions of the Code of Administrative Violations and caused far more serious consequences than a mere violation of traffic regulations. What is also of great importance for us in this case, when analysing the lawfulness aspect, is the fact that the Supreme Court of Lithuania, in its judgment of 4 October 2005, provided a clear legal explanation of the substance of the criminal offence of “riot” and the reasons for its application in the applicants’ case.[3]

3. We also note that the European Court of Human Rights (the Court) cannot be regarded as a court of fourth instance, replacing the domestic courts in the interpretation of domestic law.[4] The Court’s function, therefore, according to Article 19 of the Convention, remains only to ensure the observance of the obligations undertaken by the Parties to the Convention, and not to deal with an application alleging that errors of law or fact have been committed by domestic courts, except in cases where it considers that such errors may have violated any of the rights and freedoms protected by the Convention.[5] The Court cannot replace the domestic courts, especially in cases where the interpretation of domestic law has been made by the highest tribunal of the country concerned, acting, as in the present case, in their enlarged composition. Indeed, in Lithuania the enlarged composition of the Supreme Court has the legal authority to interpret the most important legal aspects of domestic law. Moreover, as a general rule, it is for the domestic courts to assess the evidence before them.[6]

4. The interpretation of national law made by the domestic courts in this case does not seem arbitrary. In Lithuanian law the criminal offence of “riot” can be made out either through the organisation or provocation of a public meeting of two or more people aimed at causing acts of violence, damage to property or public disorder (“organised or provoked a gathering of persons to commit...”) or by participation therein (“or a person who, during a riot, has committed acts of violence, damaged property or seriously breached public order in other ways”). In addition, the violation of public order must be “serious”. In the case of both organisers and participants, punishment for the consummated offence of riot is dependent on the effective occurrence of acts of violence, damage to property or serious breach of public order in other ways.

The facts of the present case constitute a clear example of the “gathering of persons”, organised in breach of valid administrative permits and police orders and with a chaotic impact on social life and public order. The seriousness of the violation of public order cannot be disputed. This was not a spontaneous, but an organised demonstration which set out, and managed, to cause as much public disorder as possible on the country’s major highways while negotiations between farmers and the Government were going on.[7]

5. Contrary to the applicants’ contention, the fact that the provision refers to a serious breach of public order “in other ways” does not raise a problem of foreseeability, since the law envisages certain means of causing public disorder. The criminal provision refers explicitly to two means of committing the offence: violence and damage to property. The expression “in other ways” is clearly intended to refer to additional ways of causing “riot”, other than by violence or damage to property.[8] The openness of the incrimination is acceptable because of the immense variety of ways and means by which public order may be seriously disturbed. Any attempt to list those ways and means would be gratuitous and would run the risk of leaving many serious types of conduct outside the field of criminal law. In that respect the criminal provision of § 283 of the Lithuanian Criminal Code is compatible with the principle of legality. Indeed, it is similar to many criminal provisions of its kind all over Europe.[9]

6. Thus, the applicants were not punished for their participation in the demonstrations of 21 to 24 May 2003 as such, but for their particular behaviour in the course of those demonstrations, namely blocking three major highways and other roads for some forty-eight hours, thereby hindering thousands of Lithuanians and foreigners in their work and travel on the country’s major traffic and trade routes, and preventing people from entering and leaving the country through the State border control posts that were affected, all of which caused more disruption than would normally arise from the exercise of the right to peaceful assembly.[10] Some of the applicants were organisers of the unlawful assemblies; others participated actively in blocking the roads and highways. In other words, the applicants were not punished for the unlawful conduct of others[11] or even for merely participating in an unlawful assembly.[12] Recognition of the right of assembly is premised on the assumption that the assembly will not infringe the human rights of other persons or groups of persons who are part of the same society. In this case, however, it did. In spite of the fact that the national authorities did as much as possible to accommodate the right of assembly, while at the same time limiting the negative consequences the events might have on the rights of other citizens, the demonstrators ignored the limits of the permits granted to them and spurned the police orders to unblock the highways and roads and not to hinder the traffic. It is to be ascertained whether the State response to this serious abuse of freedom of peaceful assembly was necessary and proportionate.

The proportionality of the criminal conviction

7. Turning to the question of whether the interference was “necessary in a democratic society”, we refer to the Court’s case-law to the effect that the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens.[13] We also acknowledge, obviously, that freedom of assembly constitutes one of the most essential foundations of a democratic society.[14] However, we also observe that paragraph 2 of Article 11 of the Convention entitles States to impose “lawful restrictions” on the exercise of the right to freedom of assembly. Restrictions on freedom of peaceful assembly in public places may serve the protection of the rights of others with a view to preventing disorder and maintaining the orderly circulation of traffic.[15]

8. This is not the first time that the Court has been confronted with unauthorised roadblocks. Barraco[16] is the leading authority in this field. While it is true that the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.[17] However, since the Convention is first and foremost a system for the protection of human rights, we also understand that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. The Contracting States have to assess the Convention standards “in the light of present-day conditions”.[18] In the present context, however, we note that the Chamber has neither pointed to any changing conditions nor stressed the importance of the need for changes in the jurisprudence of the Court in the field of freedom of assembly.[19] Therefore, in our opinion, as no need for a departure from the case-law has been established, the principles of the Barraco v. France judgment should have applied in the Lithuanian case as well. We regret that the majority did not follow these principles in the case at hand, without explaining the reasons for the change.

9. In fact, in Barraco,[20] there was an unauthorised traffic-slowing or “snail’s-pace” operation (opération escargot) that lasted five hours on one single highway, while in the present case the public disorder and disruptions spread to the three most important highways in the country and lasted
forty-eight hours. The present case is much more serious than the former one. In other words, if there was no violation of Article 11 in Barraco, the present case is a fortiori an even clearer case of no violation of freedom of assembly. What is more, the fact that certain vehicles were allowed to go through the roadblocks staged by the farmers and their tractors, invoked by the applicants to ground a violation of their freedom of assembly, cannot absolve them of responsibility, as it did not in Barraco.

10. The international and national case-law lends support to this conclusion. In Schmidberger v. Austria,[21] the Luxembourg Court considered that the disruption caused to public order by an authorised blocking of one single highway (the Brenner highway) for 28 hours, which had been accompanied by preventive measures, such as a public warning 30 days prior to the event, suggesting alternative routes and providing extra trains to allow traffic to use railway facilities, did not amount to a violation of the European Union’s freedom of circulation. The major differences with the case before the Court are obvious: in the Austrian case the demonstration was timed to take place between a bank holiday and the weekend, when there was in any event a general prohibition on heavy goods traffic, and was authorised by the administrative authorities, which co-operated with the organisers and motoring organisations to limit the disruption caused, helping drivers to avoid circulating on the blocked highway. According to the Luxembourg Court, freedom of expression and freedom of assembly as guaranteed by Articles 10 and 11 of the Convention are compatible with a State’s duty, under Article 28 of the EC Treaty, to keep major transit routes open in order to ensure the free movement of goods within the Community, if and when the purpose of the demonstration is of public interest, such as drawing attention to the threat to the environment and public health posed by heavy goods vehicles on the Brenner motorway, and provided that measures can be taken in good time by the administrative authorities to minimise the disruption to traffic.[22]

11. Very different from this case was the situation in the Commission v. France case,[23] which referred to serious incidents of unauthorised and violent roadblocks on several French highways during the months of
April-August 1993. Although the violence of the roadblocks was absent in the present case, there is also a clear lesson to be drawn from the Luxembourg Court’s judgment in Commission v. France, since the respondent State was reproached for not having prevented the trade blockages resulting from the actions of private individuals and the consequent breaches of the freedom of circulation and the property rights of others.

12. Some national jurisdictions have set a standard for differentiating between abusive and non-abusive exercise of the freedom of peaceful assembly on highways and roads. In the DPP v. Jones and Lloyd case[24] the House of Lords acquitted the applicants because they simply did not create any public nuisance, as their demonstration, although unauthorised, took place peacefully, on the roadside, without interfering with the traffic.

13. In the Sitzblockade III case[25] the Constitutional Court of Germany asserted that a criminal act does not become legal just because it takes places in an assembly. Although the courts may not control the purpose of the assembly, they do have the power to ascertain the proportionality of the restriction of the rights of third persons caused by roadblocks. The criminal punishment of the authors of a “wild” roadblock lasting more than 24 hours was not found disproportionate.[26] Similarly, the Polish Constitutional Court held that the moral views of the holders of political power are not synonymous with “public morals” as a premise for limiting freedom of assembly in streets and other public spaces, and thus public authorities are entrusted with the obligation to protect freedom of assembly regardless of the degree of controversy of the publicly-expressed opinions, provided that legal prohibitions are not transgressed.[27]

14. Finally, in the Baregg Tunnel case[28] the Swiss Federal Supreme Court found that the blocking of the Baregg tunnel for more than one hour, without any prior warning, had caused mass chaos, and therefore the criminal punishment of the demonstrators had not been excessive.

15. Taking into account the Court’s precedent and the other European case-law cited, it can be affirmed that the Convention protects freedom of peaceful assembly on roads and highways, but this freedom is not unlimited. While freedom of peaceful assembly is essential for the manifestation of political and civil rights in a democratic society, its exercise must not endanger public safety and the free and safe movement of persons and goods. Restrictions on the place, time and manner of holding assemblies are admissible for that purpose.[29] Unauthorised blocking of highways and roads in order to cause serious public disorder is not a legitimate means of furthering a political cause in a democratic society. That is what happened in the present case. The demonstrators, including the applicants, were able, from 19 to 21 May 2003, to exercise their right to peaceful assembly in designated areas without any restrictions. There was neither a blanket ban on assemblies nor a content-based control of the applicants’ initiative to organise the demonstrations. The administrative authorities duly exercised their competence to manage traffic in the public space and related security risks, mindful of the rights of the demonstrators and the competing rights of those who work and circulate on the public highways and roads. However, on 21 May 2003 the demonstrations turned into an unlawful movement to disrupt traffic on three major highways and other roads in the country, causing grave damage to the public at large and especially to transporters of goods, and even compromising the normal functioning of State border control posts.

16. The public authorities and the general public were caught by surprise by the farmers’ aggressive measure to block major highways without any prior warning. It was clearly impossible for the administrative authorities to re-route the traffic or take any alternative measures, given the surprise factor and the farmers’ choice to target the country’s three main highways.[30]

17. Moreover, criminalisation of “wild” roadblocks does not appear per se to be an excessive criminal policy measure, bearing in mind that the aim is to avoid damage to life, physical integrity and property. The same applies to the general interest of public order, which is also protected by the provision. Causing mere inconvenience to the public is one thing; causing general chaos is another. The former is socially tolerable, and must not be criminalised;[31] the latter is socially intolerable, and may be criminalised.[32]

18. Furthermore, the applicants could not rely, as they argued, on the defence of necessity, which is provided for in Article 31 of the Criminal Code of Lithuania. Since the roadblocks were not staged in order to avert an immediate danger which threatened the farmers, their conduct cannot be justified under the defence of “immediate necessity”. Even assuming, for the sake of argument, that there was such an immediate danger to farmers, that danger could have been averted by means other than the unlawful blocking of major highways and other roads and the resulting paralysis of the country for forty-eight hours.

19. Lastly, the criminal sanctions imposed on the applicants were lenient custodial sentences, which were proportionate to the gravity of their conduct.[33] Furthermore, none of the applicants even had to serve their respective sentences, because the trial judge considered that the aims of punishment could be achieved by suspending the execution of the sentences.[34]

Conclusion

20. In view of the compatibility with the Convention of criminalising roadblocks if and when they cause a grave breach of public order, and the legality and proportionality of the penalties imposed on the applicants, we find that neither Article 7 nor Article 11 of the Convention were violated.

[1] See, in particular, §§ 33 and 34 of the judgment.

[2] See § 27 of the judgment.

[3] See § 33 of the judgment.

[4] Ruiz Garzia v. Spain [GC], no. 30544/96, §§ 26, 28-29, ECHR 1999-I; Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 540, § 59; case Bykovv. Russia [GC], appl. No. 4378/02, judgment of 10 March2009, § 88.

[5] Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX.

[6] Galstyan v. Armenia, no. 26986/03, § 77, 15 November 2007.

[7] In para. 82 of the judgment, the majority assumes that “good faith negotiations between the farmers and the Government” went on during the demonstrations. The alleged “good faith” of the negotiations is mere speculation, not proven in the file.

[8] On 4 December 2012 the Lithuanian Supreme Court dealt with a riot caused by a violent mob. The present case relates to a “grave violation of public order” caused by a non-violent group of people, and therefore these cases cannot be assimilated.

[9] See, for instance, Article 237 of the Swiss Penal Code, Article 290 of the Portuguese Penal Code and Article 412-1 of the French Code de la Route.

[10] Barraco, cited above, § 46.

[11] Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004.

[12] This is what differentiates this case from the Akgöl and Göl v. Turkey case, cited by the majority. It is true that the Court established, in principled terms in Akgöl and Göl, that participation in unauthorised, peaceful demonstrations should not be criminalised. This principle presupposes, however, that there is no serious breach of public order. Where the demonstrators have wilfully caused considerable public disorder, seriously jeopardising public safety and causing major traffic chaos, the principle established in Akgöl and Göl does not apply.

[13] Oya Ataman v. Turkey, no. 74552/01, § 35, ECHR 2006-XIV.

[14] See, mutatis mutandis, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 85-86, ECHR 2001-IX.

[15] Éva Molnár v. Hungary, no. 10346/05, § 34, 7 October 2008.

[16] Barraco v. France, no. 31684/05, 5 March 2009.

[17] Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I.

[18] Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, § 31.

[19] On this aspect of the case, see Dissenting Opinion of Judge Gyulumyan in Bayatyan v. Armenia, [GC], No. 23459/03, 7 July 2011.

[20] Barraco v. France, no. 31684/05, 5 March 2009.

[21] C-112/00, judgment of 12 June 2003.

[22] According to the Luxembourg Court, “the inconvenience may in principle be tolerated provided that the objective pursued is essentially the public and lawful demonstration of an opinion” (paras. 90-91).

[23] C-265/95, judgment of 9 December 1997.

[24] House of Lords, judgment of 4 March of 1999.

[25] German Constitutional Court, judgment of 24 October 2001.

[26] The German Constitutional Court had already established the case-law in the Sitzblockade I and II judgments, having evolved from a dematerialised concept of violence to a more physical concept, in line with the exigencies the principle of legality placed on the interpretation of § 240 of the German Criminal Code. In a recent judgment of 7 March 2011 the Constitutional Court reiterated the criteria set forward in its Sitzblockade III judgment.

[27] Polish Constitutional Court judgment of 18 January 2006, K 21/05.

[28] Swiss Federal Supreme Court judgment of 3 April 2008.

[29] Venice Commission, Compilation of Venice Commission Opinions concerning Freedom of Assembly, 2012, para. 5.2, and Venice Commission and OSCE/ODIHR Guidelines on Freedom of Peaceful Assembly, 2008, para. 80.

[30]Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association by Maina Kiai, 2012, para. 41, and the Inter-American Commission on Human Rights’ Report on Citizen Security and Human Rights, 2009, para. 193. Both the Special Rapporteur and the Inter-American Commission call for an effort of the administrative authorities to re-route traffic in this type of case. While the free flow of traffic should not automatically take precedence over freedom of peaceful assembly, the former precedes the latter when no alternatives to roadblocks can be provided by the administrative authorities, as in the present case.

[31] Venice Commission, Compilation of Venice Commission Opinions concerning Freedom of Assembly, 2012, para. 5.2.

[32] The condition for proportionate criminalisation, according to international standards, is that the risk to public order is not a hypothetical risk, but a clear and imminent one (Venice Commission and OSCE/ODIHR Guidelines on Freedom of Peaceful Assembly, 2008, paras. 63 and 86-90, and Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information). In the present case, the risk culminated in serious damage to public order for forty-eight hours.

[33] Compare and contrast with Barraco, for instance.

[34] The majority argue that another farmer, A.D., was convicted of an administrative offence, a road traffic offence, and sentenced to a minor fine, and that this fact brings the applicants’ criminal convictions into question. First, the Court ignores the exact circumstances of the farmer A.D.’s case, which was not the subject of the Court’s judgment. Second, the facts imputed to the farmer A.D. are in fact much less serious than the ones imputed to the applicants, who organised the blockage of the highways and roads. Third, the mere fact that national authorities take different approaches to personal cases does not per se raise an issue under the Convention, unless the applicants can provide evidence of discriminatory application of the criminal provision to them. No such evidence was produced.

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