201203.16
Off
0

(Polizeirecht) EGMR vom 15.3.2012:Containment within police cordon during violent demonstration did not amount to deprivation of liberty (39692/09)

Die große Kammer des EGMR hatte sich am 15.3.2012 mit der Frage auseinanderzusetzen, ob die Einkesselung von Demonstranten („not allowed to exit a police cordon) eine freiheitsentziehende Maßnahme (deprivation of liberty) nach der MRK darstellt.  Die Maßnahme sei verhältnismäßig gewesen (am wenigstens einschneidend – least instrusive and most effective). Interessant die Ausführungen zur MRK, wonach diese ein „lebendiges Instrument“ sei, die im Lichte der Gegenwart betrachten werden müsse. Hierbei betrachtet der EGMR auch die „wachsenden Gefahren“ durch die Mobilisierung von Demonstranten durch moderne Telekommunikationsmittel (?).

„Even by 2001, advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale“

 
In today’s Grand Chamber judgment in the case Austin and Others v. the United
Kingdom (application nos. 39692/09, 40713/09 and 41008/09), which is final1, the
European Court of Human Rights held, by a majority, that there had been:
No violation of Article 5 (right to liberty and security) of the European Convention
on Human Rights.
The case concerned a complaint by a demonstrator and some passers-by that they were
not allowed to exit a police cordon for almost seven hours during a protest against
globalisation in London.
The Court notably found that the people within the cordon had not been deprived of their
liberty within the meaning of the Convention. In particular, the police had imposed the
cordon to isolate and contain a large crowd in dangerous and volatile conditions. This
had been the least intrusive and most effective means to protect the public from
violence. Although the police tried to start dispersing the crowd throughout the
afternoon, they had been unable to do so as the danger had persisted.
Principal facts
The four applicants are Lois Austin, a British national who was born in 1969 and lives in
Basildon; George Black, a Greek and Australian national who was born in 1949 and lives
in Melbourne; Bronwyn Lowenthal a British and Australian national who was born in
1972 and lives in London; and, Peter O’Shea, a British national who was born in 1963
and lives in Wembley.
The police became aware that on 1 May 2001 activists from environmentalist, anarchist
and left-wing protest groups intended to stage various protests based on the locations
from the Monopoly board game. The organisers of the “May Day Monopoly” protest did
not make any contact with the police or attempt to seek authorisation for the
demonstrations. By 2 p.m. on that day there were over 1,500 people in Oxford Circus
and more were steadily joining them. The police, fearing public disorder, took the
decision at approximately 2 p.m. to contain the crowd and cordon off Oxford Circus.
Controlled dispersal of the crowd was attempted throughout the afternoon but proved
impossible as some members of the crowds both within and outside the cordon were
very violent, breaking up paving slabs and throwing debris at the police. The dispersal
was completed at around 9.30 p.m.
Ms Austin, a member of the Socialist Party and a frequent participant in demonstrations,
attended the protest on 1 May 2001 and was caught up in the Oxford Circus cordon.
Mr Black wanted to go to a bookshop on Oxford Street but, diverted by a police officer
on account of the approaching demonstrators, met a wall of riot police and was forced
into Oxford Circus where he remained until 9.20 p.m. Similarly, Ms Lowenthal and Mr
O’Shea had no connection with the demonstration. Both on their lunch-break, they were
held within the cordon until 9.35 p.m. and 8 p.m., respectively.
In April 2002 Ms Austin brought proceedings against the Commissioner of Police of the
Metropolis, claiming damages for false imprisonment and for a breach of her rights under
Article 5 (right to liberty and security) of the European Convention of Human Rights. In
March 2005 her claims were dismissed. Her subsequent appeals were then also
dismissed both by the Court of Appeal and finally in January 2009 by the House of Lords.
The House of Lords concluded that Ms Austin had not been deprived of her liberty and
that Article 5 of the Convention did not therefore apply.
Complaints, procedure and composition of the Court
The applicants complained that they were deprived of their liberty without justification,
in breach of Article 5 § 1.
The applications were lodged with the European Court of Human Rights respectively on
17 and 27 July 2009.
On 12 April 2011 the Chamber relinquished jurisdiction in favour of the Grand Chamber2.
Judgment was given by the Grand Chamber of 17, composed as follows:
Françoise Tulkens (Belgium), President,
Nicolas Bratza (the United Kingdom),
Jean-Paul Costa (France),
Josep Casadevall (Andorra),
Nina Vajić (Croatia),
Dean Spielmann (Luxembourg),
Lech Garlicki (Poland),
Ineta Ziemele (Latvia),
Päivi Hirvelä (Finland),
Giorgio Malinverni (Switzerland),
Luis López Guerra (Spain),
Ledi Bianku (Albania),
Kristina Pardalos (San Marino),
Ganna Yudkivska (Ukraine),
Vincent A. de Gaetano (Malta),
Angelika Nußberger (Germany),
Erik Møse (Norway), Judges,
and also Michael O’Boyle, Deputy Registrar.
Decision of the Court
Article 5
The Court observed that this was the first time it was called to consider the application
of the Convention in respect of the “kettling” or containment of a group of people carried
out by the police on public order grounds. In that connection, it first had to assess

whether the applicants had been deprived of their liberty, within the meaning of Article 5 § 1.
In deciding whether there had been a “deprivation of liberty” within the meaning of
Article 5 § 1, the Court referred to a number of general principles established in its caselaw.
First, the Convention was a “living instrument”, which had to be interpreted in the
light of present day conditions. Even by 2001, advances in communications technology
had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown
scale. Article 5 did not have to be construed in such a way as to make it impracticable
for the police to fulfil their duties of maintaining order and protecting the public.
Secondly, the Convention had to be interpreted harmoniously, as a whole. It had to be
taken into account that various Articles of the Convention placed a duty on the police to
protect individuals from violence and physical injury. Thirdly, the context in which the
measure in question had taken place was relevant. Members of the public were often
required to endure temporary restrictions on freedom of movement in certain contexts,
such as travel by public transport or on the motorway, or attendance at a football match.
The Court did not consider that such commonly occurring restrictions could properly be
described as “deprivations of liberty” within the meaning of Article 5 § 1, so long as they
were rendered unavoidable as a result of circumstances beyond the control of the
authorities, were necessary to avert a real risk of serious injury or damage, and were
kept to the minimum required for that purpose.
The Court further emphasised that, within the Convention system, it was for the
domestic courts to establish the facts and the Court would generally follow the findings
of facts reached by the domestic courts.
In this case, the Court based itself on the facts found by Mr Justice Tugendhat from the
High Court, following a three week trial and the consideration of substantial evidence. It
was established that the police had expected a hard core of between 500 and 1000
violent demonstrators to gather at Oxford Circus at around 4 p.m. The police had also
anticipated a real risk of serious injury, even death, and damage to property if the
crowds were not effectively controlled. Given that, about two hours earlier, over 1,500
people had already gathered there, the police had decided to impose an absolute cordon
as the only way to prevent violence and the risk of injured people and damaged
property.
There had been space within the cordon for people to walk about and there had been no
crushing. However, the conditions had been uncomfortable with no shelter, food, water
or toilet facilities.
Although the police had tried, continuously throughout the afternoon, to start releasing
people, their attempts were repeatedly suspended because of the violent and
uncooperative behaviour of a significant minority both within and outside the cordon. As
a result, the police had only managed, at about 9.30 p.m., to complete the full dispersal
of the people contained. Nonetheless, approximately 400 individuals who could clearly be
identified as not involved in the demonstration or who had been seriously affected by
being confined, had been allowed to leave before that time.
The Court found that the cordon was imposed to isolate and contain a large crowd in
dangerous and volatile conditions. Given the circumstances that had existed at Oxford
Circus on 1 May 2011, an absolute cordon had been the least intrusive and most
effective means available to the police to protect the public, both within and outside the
cordon, from violence.
In this context, the Court did not consider that the putting in place of the cordon had
amounted to a “deprivation of liberty”. Indeed, the applicants had not contended that,
when it was first imposed, those within the cordon had been immediately deprived of
their liberty.
Furthermore, the Court was unable to identify a moment when the containment could be
considered to have changed from what had been, at most, a restriction on freedom of
movement, to a deprivation of liberty. It was striking that some five minutes after an
absolute cordon had been imposed, the police had been planning to start a controlled
dispersal. Shortly afterwards, and fairly frequently thereafter, the police had made
further attempts to start dispersing people and had kept the situation under permanent
close review. As the same dangerous conditions at the origin of the absolute cordon had
continued to exist throughout the afternoon and early evening, the Court found that the
people within the cordon had not been deprived of their liberty within the meaning of
Article 5 § 1.
Notwithstanding the above finding, the Court emphasised the fundamental importance of
freedom of expression and assembly in all democratic societies and underlined that
national authorities should not use measures of crowd control to stifle or discourage
protest, but rather only when necessary to prevent serious injury or damage.
Since Article 5 did not apply, the Court held – by 14 votes to three – that there had been
no violation of that provision.
Separate opinion
Judges Tulkens, Garlicki and Spielmann expressed a joint dissenting opinion, the text of
which is annexed to the judgment.
The judgment is available in English and French.
This press release is a document produced by the Registry. It does not bind the Court.
Decisions, judgments and further information about the Court can be found on
www.echr.coe.int.

Source: Press release of the ECHR

1 Grand Chamber judgments are final (Article 44 of the Convention).
All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of
their execution. Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution

2 Under Article 30 of the European Convention on Human Rights, “Where a case pending before a Chamber
raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the
resolution of a question before the Chamber might have a result inconsistent with a judgment previously
delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish
jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. ”