Affaire Batou c. Suisse
A selection of key paragraphs can be found below the judgment.
73. In the present case, the Court notes that the demonstration, attended by around a thousand people (see paragraph 8 above), took place on 8 March 2019, without acts of violence. It notes at the outset that it has not been alleged that the excesses committed by the demonstrators, namely the affixing of tags to shop windows, the use of pyrotechnic devices and the attempt to deviate from the planned route, had disrupted the daily life or lawful activities of others, nor that they were therefore analysed as behaviour that could be described as “reprehensible” or, even less violent.
76. In any event, and taking into account the general nature of paragraphs 15 and 16 of the authorisation relating to the establishment of a security service and the applicant’s duty to ensure compliance by the participants with the terms of the authorisation, the Court is not convinced that the applicant’s failures to comply with the obligations set out in the authorisation have been sufficiently established and, above all, that they constituted a reprehensible act within the meaning of its case-law (see paragraph 70 above). In the specific context of the liability which may reasonably be required of an organiser of a demonstration, the Court considers that the fact, even if it is established, of having been ‘exceeded by the burden’ represented by that liability cannot be regarded as a reprehensible act (see paragraph 12 in fine).above). In the Court’s view, the present case thus demonstrates an excessive latitude which the national authorities seem to enjoy in interpreting the scope of the conditions laid down by an authorisation to demonstrate, in particular those based on Article 5(4) of the LMDPu, and in having recourse to the penalties of a criminal nature provided for in Article 10 of that law.
77. As regards the conduct of the authorities, the Court notes that the fact that they issued the authorisation to hold the event at the times and places specified enabled them to take effective preventive measures.
78. It is thus apparent from the documents before the Court that the police were present throughout the demonstration, and there is no indication that they were caught off guard by the incivilities committed by some of the demonstrators. It seems to be accepted that, since the police complied with the injunctions calling them to order and put an end to these acts, they did not make any arrests.
86. The Court notes that the reasoning adopted by the national courts does not contain a sufficient explanation as to why it was for the appellant, in her capacity as organiser, and her security service to thwart ‘all unlawful manoeuvres committed by the demonstrators, having regard in particular to the duty of the police to maintain order (see paragraph 20 above and the judgment of the Federal Tribunal of 10 July 2013, cited in paragraph 24 above, in which it is recognised that the purpose of the security service is not to force the organisers to ensure public safety themselves). Then, criticising the applicant for failing to fulfil her duty to cooperate with the police, the courts did not address the question of whether or not the police needed the applicant or her security service to inform them of the excesses which had occurred in order to intervene (see, mutatis mutandis, İmrek, cited above, § 36), or how the applicant’s alleged lack of cooperation with the police had affected the latter’s ability to maintain order and to ensure the smooth running of the event in general (see, mutatis mutandis, Şolari v. Republic of Moldova, no 42878/05, § 33, 28 March 2017).
87. In the Court’s view, the domestic courts did not balance the applicant’s right to freedom of assembly against the alleged aim of protecting the rights and freedoms of others, nor did they take into account the characteristics of the demonstration (see Russ, cited above, § 56), in particular its perfectly peaceful character.
88. In the light of those considerations and the fact that the applicant did not commit any wrongdoing, and in view of the fact that the demonstration had not caused any significant disruption or danger, the Court considers that the applicant’s criminal conviction, even if the fine imposed was of the minimum amount in relation to the threshold set by law, was not proportionate to the legitimate aim alleged (see Şolari, cited above, §§ 37-38). It was also likely to have a ‘deterrent effect’, discouraging not only the applicant but also others from organising public events in the future. The applicant has in fact refrained from organising further demonstrations and states that no one volunteered to request a permit to demonstrate for the feminist march of 8 March 2022 (see paragraph 48 in fine above).
90. Accordingly, there has been a violation of Article 11 of the Convention.