Security and Duty of Protection

Ouranio Toxo and Others v Greece, 20 October 2005 [ECtHR]

Case no 74989/01

31.  The applicants complained of interference with their freedom of association on account of the acts directed against them, the participation of the clergy and municipal authorities in those acts, and the inactivity of the police when a group of demonstrators broke into and ransacked the party headquarters. They relied on Article 11 of the Convention ...

1. General principles

34.  The Court has, on a number of occasions, confirmed the essential role played by political parties in democratic systems, where they are afforded rights and freedoms under Article 11 of the Convention and also under Article 10. Political parties are a form of association essential to the proper functioning of democracy (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, § 25). It is in the nature of the role they play that political parties, the only bodies which can come to power, also have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena. In view of their role, any measure taken against them affects freedom of association and therefore the state of democracy in the country concerned (see Socialist Party of Turkey (STP) and Others v. Turkey, no. 26482/95, § 36, 12 November 2003).

35.  Further, the notion of “democratic society” is devoid of any meaning if there is no pluralism, tolerance or open-mindedness. In particular, pluralism is built on, for example, the genuine recognition of, and respect for, diversity and the dynamics of traditions and of ethnic and cultural identities. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-I). Accordingly, the fact that their activities form part of a collective exercise of freedom of expression also entitles political parties to seek the protection of Article 10 of the Convention (see United Communist Party of Turkey and Others, cited above, pp. 20-21, § 43). As the Court has often reiterated, the protection of opinions and the freedom to express them is one of the objectives of the freedom of association as enshrined in Article 11.

36.  The Court habitually acknowledges that Article 11 of the Convention also takes on a negative aspect: public authorities must abstain from arbitrary measures capable of interfering with the right of free assembly and association. In this context the Court has had occasion to examine measures under Article 11 which involve the restriction of an individual's participation in a peaceful assembly (see Ezelin v. France, judgment of 26 April 1991, Series A no. 202, p. 23, § 53), the refusal to register an association (see Gorzelik and Others, cited above, §§ 104 et seq., and Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports 1998‑IV, pp. 1617-18, §§ 46-47), and the dissolution of a political party (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 135, ECHR 2003-II). In view of the essential nature of freedom of association and its close relationship with democracy there must be convincing and compelling reasons to justify such interference with this freedom.

37.  Moreover, the Court has often reiterated that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33, and, more recently, United Communist Party of Turkey and Others, cited above, pp. 18-19, § 33). It follows from that finding that a genuine and effective respect for freedom of association cannot be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the purpose of Article 11 nor with that of the Convention in general. There may thus be positive obligations to secure the effective enjoyment of the right to freedom of association (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V) even in the sphere of relations between individuals (see Plattform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988, Series A no. 139, p. 12, § 32). Accordingly, it is incumbent upon public authorities to guarantee the proper functioning of an association or political party, even when they annoy or give offence to persons opposed to the lawful ideas or claims that they are seeking to promote. Their members must be able to hold meetings without having to fear that they will be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right of association (see, mutatis mutandis, Plattform “Ärzte für das Leben”, ibid.).

2. Application of the above principles to the instant case

38.  In the present case it is for the Court to examine whether the obligations arising from Article 11 of the Convention were fulfilled by the domestic authorities.

39.  The Court notes that, on 13 September 1995, the Florina police removed the sign on which the party's name was written in Macedonian. The Government justified that act by the negative historical connotation of the word vino-zito written on the sign in Macedonian. In particular, they argued that the word had been used as the rallying cry of forces seeking to capture the town of Florina during the civil war in Macedonia. In the Government's view, reference to this term was capable by itself of provoking feelings of discord among the inhabitants of Florina.

40.  The Court considers that mention of the consciousness of belonging to a minority and the preservation and development of a minority's culture cannot be said to constitute a threat to “democratic society”, even though it may provoke tensions (see Sidiropoulos and Others, cited above, p. 1615,  § 41). The emergence of tensions is one of the unavoidable consequences of pluralism, that is to say the free discussion of all political ideas. Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing political groups tolerate each other (see Plattform “Ärzte für das Leben”, cited above, p. 12, § 32, and Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).

41.  In the instant case the Court observes that the Ouranio Toxo party is a lawfully constituted party, one of whose aims is the defence of the Macedonian minority living in Greece. Affixing a sign to the front of its headquarters with the party's name written in Macedonian cannot be regarded as reprehensible or considered to constitute in itself a present and imminent threat to public order. The Court accepts that the use of the term vino-zito certainly aroused hostile sentiment among the local population. Its ambiguous connotations were liable to offend the political or patriotic views of the majority of the population of Florina. However, the risk of causing tension within the community by using political terms in public does not suffice, by itself, to justify interference with freedom of association.

42.  An additional question raised by this case is whether the attitude of the public authorities contributed to exacerbating the tension. In this connection the Court notes that the local authorities, two days before the incidents, had clearly incited the population of Florina to gather in protest against the applicants and some of their members had taken part in the protests (see paragraphs 13-14 above). They thus contributed through their conduct to arousing the hostile sentiment of a section of the population against the applicants. The Court considers that the role of State authorities is to defend and promote the values inherent in a democratic system, such as pluralism, tolerance and social cohesion. In the present case, it would have been more in keeping with those values for the local authorities to advocate a conciliatory stance, rather than to stir up confrontational attitudes.

43.  Lastly, the Court must examine whether the police sufficiently guaranteed the protection of the party's premises. In this connection it notes that they could reasonably have foreseen the danger that the tension would boil over into violence and clear violations of freedom of association. The day that the sign in question was put back, groups of people had gathered in front of the party headquarters shouting insults and threats at the applicants. The State should therefore have taken appropriate measures to prevent or, at least, contain the violence. However, the Court cannot but find that the public authorities failed to take the measures necessary in the circumstances of the case. The Court thus observes that, when the headquarters were being attacked, the applicants allegedly called several times for the assistance of the police, who were located 500 metres away. They justified their failure to intervene by claiming that no officers were available to be dispatched to the scene. However, the Government gave no explanation for the lack of police manpower even though the incidents had been predictable. Further, the Court cannot overlook the fact that the public prosecutor did not consider it necessary to start an investigation in the wake of the incidents to determine responsibility. It was only once the applicants had lodged a complaint that the investigation began. In cases of interference with freedom of association by acts of individuals, the competent authorities have an additional obligation to take effective investigative measures (see, mutatis mutandis, Özgür Gündem v. Turkey, no. 23144/93, § 45, ECHR 2000-III).

44.  For the foregoing reasons, the Court finds that by both their acts and their omissions the national authorities breached Article 11 of the Convention.

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