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26 April 1991, Application No. 11800/85 (European Court of Human Rights)

Facts:

The applicant, a lawyer, took part in public demonstrations to protest against sentences that
had been imposed on three independence activists for criminal damage to public buildings.
Unrest occurred during the demonstration; several buildings were defaced and a group of
demonstrators chanted threats against police officers. The applicant had been recognised as
one of the participants, and a judicial investigation into the events was commenced. Although
there was no evidence to suggest that the applicant had taken part in any of the unrest, he was
called to give evidence before the investigation. He refused to make a statement and the
Principal Public Prosecutor wrote to the local Bar Council, asking for a sanction to be
imposed on the applicant. The Bar Council, finding that no acts could be attributed to the
applicant, did not consider that a penalty was warranted, but on appeal by the Principal Public
Prosecutor, a light disciplinary penalty was imposed.

Held:

The disciplinary penalty constituted an interference with the applicant's right to freedom of
assembly ,which included for this purpose the freedom of expression issues were included
within this. The interference was prescribed by law, and pursued the legitimate aim of
preventing disorder. At issue was whether the interference was "necessary in a democratic
society".

Necessity
The Court considered whether, having regard to the special importance of the closely linked
rights to freedom of peaceful assembly and freedom of expression, the interference was a
proportionate response to a "pressing social need". It stressed that:

The proportionality principle demands that a balance be struck between the [legitimate aims
in the pursuit of which rights may be restricted] and those of the free expression of opinions
by word, gesture or even silence by persons assembled on the streets or in other public
places. The pursuit of a just balance must not result in avocats being discouraged, for fear of
disciplinary sanctions, from making clear their beliefs on such occasions. (para. 52)

Although the penalty was at the lower end of the scale of disciplinary penalties available and
did not entail a ban on practising the profession or on sitting as a member of the Bar Council,
the Court considered that the freedom to take part in a peaceful assembly was of such
importance that it could not be restricted in any way, even for an avocat, so long as the person
concerned did not himself commit any reprehensible acts. There was no evidence to suggest
that the applicant had taken part in any of the acts of violence. Therefore, the penalty
constituted a violation of the right to freedom of assembly.