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International Journal on Minority and Group Rights 10: 97–109, 2004. 97© Koninklijke Brill NV. Printed in the Netherlands.

The European Court of Human Rights and Minority Rights:

The ‘Special Consideration’ Standard in Light of Gypsy Council

ALEXANDER H. E. MORAWA*

1. Introduction

On 14 May 2002, the European Court of Human Rights (Fourth Section), by a

majority, declared an application by The Gypsy Council et al. v. the United Kingdominadmissible.1 This article reviews that case as one example of recent pronounce-ments of the Court in matters related to minority rights and, in particular, in lightof an emerging, but not yet consequentially applied standard that would requiredomestic authorities to give ‘some special consideration . . . to [the] needs and . . .different lifestyle’2 of members of minority groups when applying general laws.3

The particularities of the case will be placed in the context of the level of protec-tion of specic minority rights by the European normative system governing human

rights and a slowly developing sensitivity to such issues by the Council of Europe’s judicial body. In this context, Gypsy Council must be seen as an unfortunate setback.

2. The Case

The Gypsy Council, another gypsy organization, and two individuals had com-plained about the British authorities’ decision, approved ultimately by the Home

Ofce, to prohibit any assemblies ‘within a 5 mile radius of Horsmonden VillageGreen’4 on the weekend that the traditional5 Horsmonden Horse Fair in Kent was

* LL.M., University of Salzburg, Austria, S.J.D. (George Washington University), Senior ResearchAssociate at the European Centre for Minority Issues (ECMI), Flensburg, Germany; Visiting Professorof International Law, Arcadia University, Philadelphia, PA, USA. The author serves as counsel and legaladvisor in proceedings before international tribunals, including the European Court of Human Rightsand the United Nations Human Rights Committee.

1 Appl. No. 66336/01.2 ECHR., Chapman v. the United Kingdom, judgment [grand chamber] of 18 January 2001,

para. 96.3 For a discussion of several related cases see Alexander H. E. Morawa, ‘The Evolving Human Right

to Equality’, 1 European Yearbook of Minority Issues (2001/2), pp. 157–205, 178 et seq.4 Gypsy Council, ‘A. The Circumstances of the Case’, referring to the Order of the Tunbridge Wells

Borough Council of 4 September 2000.5 The applicants claimed that the fair had taken place in Horsmonden for at least 50 years, but prob-

ably as many as 300 years. See the witness statement of Chitra Karvé, solicitor, dated 6 September 2000,containing the statements of Eli Frankham, president of the National Romani Rights Association, in the

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scheduled to take place. According to the applicants, the planned assembly was tobe a ‘signicant cultural and social event in the life of Romany Gypsy communityin the United Kingdom’,6 and was to be attended primarily by gypsies. Some tenyears prior to the events at issue here, the Parish Council had taken over the ‘organ-ization , administration and running of the event’, its size had grown steadily, and

had ultimately, as the authorities reasoned, ‘become a victim of its own success’,primarily due to safety concerns.7 The fair had been prohibited, and was ultimatelyprevented by police in what was called ‘Operation Ascot’,8 on the basis of the fol-lowing reasons:

‘Based on previous years’ experience, concerns of residents and intelligence . . .serious disruption to the life of the community will result because of:

i. Incidents related to feuding groups of “travellers” in 1997, 1998 and 1999, withan escalating level of policing required to prevent serious crime (200 ofcers

in 1999).ii. The racing of horses on the highway.iii. The illegal and indiscriminate parking of cars throughout the village . . .iv. Concerns over public health due to poor hygiene, litter, discarded nappies and

cleaning up;v. Anti-social behaviour by visitors.

vi. Closure of local public houses and shops for fear of theft.vii. Necessary road closures contributing to a negative nancial impact in the area.viii. The threat that “travellers” will defy the cancellation.ix. Fear expressed by residents . . .x. A background level of increased crime which occurs over the event weekend.xi. The normal social interactions between villagers being suspended as a conse-

quence of the sheer volume of visiting “travellers”.’9

The Gypsy Council’s challenge of the order in the High Court was admitted on 7September 2000, but was dismissed the same day. The Strasbourg Court summa-rized the applicants’ submissions as follows: ‘The[y] alleged that there had been noevidence to support claims of risk to safety or disruption to the local community

and no consideration given to alternative ways in which the fair might have beenstaged on the site. Among the relevant factors that the rst applicant claimed therespondents failed to take into account were the applicants’ rights under Articles 8,11, and 14 [ECHR] and the Framework Convention for the Protection of National

98 ALEXANDER H. E. MORAWA

matter of Regina v. Tunbridge Wells Borough Council et al., ex parte Eli Frankham, ‘Bundle’, SectionB, pp. 11–15, at 12, para. 5 (on le with the author).

6 Letter dated 7 August 2000 by the Chief Constable to the Tunbridge Wells Borough Council, reprintedin Gypsy Council, ‘A. The Circumstances of the Case’.

7 Report from the Director of Operational Services of the Tunbridge Wells Borough Council dated14 August 2000, reproduced in: Applicants’petition for judicial review in the High Court of Justice, Queen’sBench Division, dated 5 September 2000, ‘Bundle “A”’ [hereinafter: ‘Applicants’ petition, ‘Bundle “A”’],p. 4 of Exhibit MCM 1 to witness statement of Mike McIlvaney, and in: High Court of Justice, Queen’sBench Division, case CO/3213/2000, CO/3230/2000, Regina v. Turnbridge Wells Borough Council et al., ex parte Gypsy Council, judgment of 7 September 2000, para. 9 (both on le with the author).

8 Letter of the Tunbridge Wells Borough Council to Stewart Baxter, Public Order Section, HomeOfce, dated 16 August 2000, ref. JS/12147, p. 2 (on le with the author).

9 Gypsy Council, ‘A. The Circumstances of the Case’.

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Minorities[10]’. Apart from that, the applicants argued that ‘the majority of thosepeople attending the Horse Fair are Romany Gypsies and members of a [domesti-cally] recognized ethnic minority’11 and that the fair was a part of their traditionallife style that was to be protected in order to develop the culture and preserve theessential elements of the identity of a national minority pursuant to the Framework

Convention.12 Furthermore, the applicants submitted that the prohibition order ‘wouldhave a disproportionately adverse impact upon the members of the Gypsy commu-nity . . .’.13 It is noteworthy in this respect that the internal report of the Home Ofcestates: ‘Whilst the Order may disproportionately impact on gypsies and travellersin respect of this event, it is not in itself discriminatory in that it applies equally toany person trespassing or intending to trespass within the area to which the Orderapplies.’14 Under the topic ‘Handling’, the same report advises: ‘[T]here may besome criticism that freedom of speech and assembly is being curtailed or that the

action is discriminatory against gypsies. In these circumstances our line to takeshould be that the primary consideration is to prevent disorder and serious disrup-tion to the life of the local community; and that the police and local council shouldbe supported in their efforts to this effect.’15

The High Court, having heard the parties, ruled against the Gypsy Council, nding‘that sufcient relevant information was before both the Borough Council and theHome Secretary to enable them to properly exercise their discretion in decidingwhether to issue the order’. The police had expressed the fear that ‘serious disrup-

tion to the community would result’ and the ‘Borough Council were entitled to thinkthat the need to avoid disruption to the local settled community should take prior-ity’. The court ‘considered that the fact that the Romany Gypsy Community couldgo to an alternative site some 20 miles away . . . which was approved by the localauthority and the police, served to limit the impact upon the Romany Gypsy com-munity’.16 The High Court’s original judgment contains the following more detailedor additional considerations: ‘The plain reality is that both the Borough Council andthe Secretary of State considered, in the light of the policing concerns, that the dis-

ruption to the life of the local community was of paramount concern and the needto avoid such disruption should take priority over the interests of the Romany com-munity. In any event . . . it is not the case that the Romany community will not beable to gather at all this weekend anywhere in the area . . . albeit [the alternativevenue] does not provide a complete answer to their concern or indeed any answer

SPECIAL CONSIDERATION STANDARD IN GYPSY COUNCIL 99

10 Adopted on 1 February 1995, entered into force on 1 February 1998, E.T.S. No. 157 (hereinafter‘Framework Convention’).

11 Applicants’ petition, ‘Bundle A’, Form 86A, p. 5A, para. 19 (c) (on le with the author).12 See ibid., at paras. 19(d) and (e).13 Ibid., at para. 19(g).14 Report on the ‘Application for Consent to an Order Prohibiting Trespassory Assemblies: Horsmonden

Horse Fair’, by Stewart Baxter, Home Ofce, Public Order Section, dated 29 August 2000, p. 2. (on lewith the author).

15 Ibid., at p. 3.16 Gypsy Council, ‘The Facts’.

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which is satisfactory to them’.17 Articles 5 and 20 of the Framework Convention,the court concluded, had to be viewed in light of ‘the reality . . . that difcult issuesarise as to how to balance the very real interests and rights of the Romany com-munity with the interests and the rights of other members of the community . . .’.18

The court nally ‘noted that Articles 8 and 11 of the Convention recognised that a

balance had to be struck between the interests of the individual, in this case, theinterests of the gypsy community and the interests of society generally, but foundno reason on that basis to interfere on public law grounds with the assessmentreached’ by the authorities.19

‘Subsequently, on Sunday, 10 September 2000, a parade took place at Horsmonden,which was limited by the police to only 60 persons while measures taken by thepolice controlling entry to the village severely restricted the numbers of personsfrom the gypsy community wishing to watch the parade. An alternative fair appar-

ently took place peacefully the same day at Dartford [some 20 miles away] attendedby an estimated 1000 gypsies.’20

The applicants complained principally that the prohibition order violated theirrights under Articles 8, 11, and 14 ECHR, pointing out that it ‘had a dispropor-tionate effect on the gypsy Romany community and that the authorities could haveaccommodated the fair by imposing reasonable conditions on its conduct, e.g. byregulating car parking, limiting the number of stall holders, ensuring sufcient polic-ing, ensuring that there were sufcient stewards provided by the organizers and

ensuring that the village was cleaned afterwards by liasing with the gypsy repre-sentatives’.21

The European Court rst reviewed the complaint under Article 11 of the Conventionand found that the ‘prescribed by law’ criterion was fullled, and the interferencewas ‘based on public order considerations, i.e. a “legitimate aim” . . .’ within themeaning of Article 11(2) ECHR.22 It then proceeded to assess the necessity of theinterference in a democratic society and its proportionality:

‘The Court notes that the Horsmonden fair was a traditional gathering of longstand-ing and as such of considerable cultural and social importance to the gypsy com-munity. However, the exercise of the right to freedom of assembly is not absoluteand where large gatherings are concerned the impact of the event on the commu-nity as a whole may legitimately be taken into consideration.[23] The horse fair had


17 Regina v. Turnbridge Wells Borough Council . . ., judgment of 7 September 2000, paras. 25–26.See also the letter of Grattan Puxon, of the Gypsy Council, to Neil Robins, Chairman of the HorsmondenParish Council, dated 21 August 2000, reproduced in: Applicants’ petition, ‘Bundle A’, p. 11 of ExhibitMCM 1: ‘the holding of a so-called “alternative” at Dartford, twenty miles away, I’m sorry to say justdoes not ll the bill’.

18 Regina v. Turnbridge Wells Borough Council . . ., at para. 29.19 Gypsy Council, ‘The Facts’.20 Ibid .21 Ibid., ‘Complaints’, 1.22 Ibid., ‘The Law’, II. A. 1.23 Reference is made, mutatis mutandis, to Eur.Comm.H.R., Appl. 20490/92, Iskcon v. the United

Kingdom, decision of 8 March 1994, 76 Decisions and Reports 90 (1994), and 31416/96, Pendragon v.the United Kingdom, decision of 19 October 1998.

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been growing in size over the years and in 2000 the police had identied concernsabout the disruption to the local community caused inter alia by the ‘sheer volume’of visitors, indiscriminate parking, littering, a background level of increased crimeand road closures. The Court observes that the authorities made available a site some20 miles from Horsmonden, where large numbers of persons could assemble with-out causing disruption. It also appears that the police permitted a limited processionto take place in Horsmonden on the day in question. While the applicants argue thatit would have been possible to allow the fair to take place as usual subject to rea-sonable conditions regulating car parking, ensuring sufcient stewards, policing andlitter collection, the Court is not persuaded that this would have necessarily pre-vented the disorder and disruption which was anticipated. In the circumstances, theresponse of the authorities was proportionate, striking a fair balance between therights of the applicants and those of the community generally.’24

With respect to Article 14 of the Convention, the Court added:

‘The Court has found above that the measure pursued the legitimate aim of pre-venting disorder and protecting the rights of other. It prevented any persons attend-ing the horse fair irrespective of their origin. It is not persuaded that the prohibitionorder . . . was imposed with any discriminatory intent or effect. This part of the appli-cation must also be rejected as manifestly ill-founded . . .’25

3. The ‘Special Consideration’ Standard Pursuant to Chapman

After acknowledging in 1996 in Buckley26 that the ‘traditional lifestyle’ of minori-ties falls within the ambit of Article 8 of the Convention,27 the Court in January2001 in its Chapman judgment28 established its special consideration standard inthe eld of minority protection under the Convention in the following terms:

‘[A]lthough the fact of being a member of a minority with a traditional lifestyle differ-ent from that of the majority of a society does not confer an immunity from general lawsintended to safeguard assets common to the whole society such as the environment, it


24 Gypsy Council, ‘The Law’, II. A. 1.25 Ibid., ‘The Law’, II. A. 2. That the applicants also alleged that ‘the judicial proceedings violated

their right to fair trial under Article 6 [because] the Deputy Judge who heard their case could not beconsidered independent and impartial, since he has served as counsel for the United Kingdom Governmentin numerous cases brought before the European Court of Human Rights involving gypsies, in which hehad argued that public authorities had not infringed the rights of gypsies’ (ibid., II. A. 3.) cannot be con-sidered further in the given context. Sufce it to say that it may be argued that the ‘subjective’ inde-pendence and impartiality of a tribunal within the meaning of Article 6 ECHR should also be subjectto a different, that is special standard of review in such circumstances.

26 ECHR, Buckley v. the United Kingdom, judgment of 25 September 1996, 1996–IV Reports.27 For a discussion of the Buckley–Chapman line of thought see Sia Spiliopoulou Åkermark, ‘The

Limits of Pluralism – Recent Jurisprudence of the European Court of Human Rights with Regard toMinorities: Does the Prohibition of Discrimination Add Anything?’, 2002 Journal of Ethnopolitics and

Minority Issues in Europe (Issue 3), at: <www.ecmi.de/jemie/download/Focus3–2002_Akermark.pdf>,at p. 18 et seq.

28 ECHR, Chapman v. the United Kingdom, judgment (‘grand chamber’) of 18 January 2001; an iden-tical reasoning may be found in several parallel cases: see <www.echr.coe.int/Eng/EDocs/2001SUR-VEY(COURT).pdf>, at para. 19.

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may have an incidence on the manner in which such laws are to be implemented. . . .[T]he vulnerable position of gypsies as a minority means that some special considera-tion should be given to their needs and their different lifestyle both in the relevant reg-ulatory planning framework and in arriving at the decisions in particular cases.[29] Tothis extent there is thus a positive obligation imposed on the Contracting States by virtueof Article 8 to facilitate the gypsy way of life[30]’.31

It should be noted, however, that in the Chapman decision, the majority of the Courtfound that Article 8 had not been violated in the situation of a Gypsy family’s evic-tion from land it owned in a green belt area. A minority of seven judges voiced astrong dissent explaining, inter alia, the relationship of Articles 8 and 14 ECHR:

‘[W]e cannot agree with the view expressed by the majority that to accord protectionunder Article 8 to a gypsy in unlawful residence in a caravan on her land would raiseproblems under Article 14 where planning laws continued to prevent individuals from

setting up houses on their land in the same area. . . . This approach ignores the factor . . .that in this case the applicant’s lifestyle as a gypsy gives a wider scope to Article 8,which would not necessarily be the case for a person who lives in conventional hous-ing, the supply of which is subject to fewer constraints. The situations would not belikely to be analogous. On the contrary, discrimination may arise where States, withoutobjective and reasonable justication, fail to treat differently persons whose situationsare signicantly different’.32

4. The Concrete Meaning of the ‘Special Consideration’ Standard

Does ‘special consideration’ amount to afrmative action? Or is it merely one of the Court’s so frequent intra-right differentiations? Although the Court remainslargely silent as to the concrete meaning of its standard – even if it speaks of a pos-itive obligation to ‘facilitate’the Gypsy way of life, and the split amongst the judgeswhen it came to applying it leaves little clarity – it may be assumed that what wasintended was in fact to create a basis for granting somewhat different levels of the

right at issue (i.e. higher levels of rights to privacy and home in cases of peoplebelonging to minority groups). That resembles the various levels of protection of free speech under Article 10 ECHR: while everyone enjoys the right to voice hisor her opinions, for instance by demonstrating,33 some people, such as journalists34

and elected representatives in democratic states,35 may go further in their criticism


29 Reference is made to Buckley, paras. 76, 80, and 84.30 With reference, mutatis mutandis, to the Marckx v. Belgium judgment of 13 June 1979, Series A,

No. 31, para. 31, the Keegan v. Ireland judgment of 26 May 1994, Series A, No. 290, para. 49, and theKroon and Others v. the Netherlands judgment of 27 October 1994, Series A. No. 297–C, para. 31.

31 Supra note 28, at para. 96.32 Supra note 28, at para. 8, joint dissenting opinion of judges Pastor Ridruejo, Bonello, Tulkens,

Strá†znická, Lorenzen, Fischbach and Casadevall, with reference to Appl. 34369/97, Thlimmenos v. Greece, judgment of 6 April 2000, 2000–IV Reports.

33 See ECHR, Chorherr v. Austria, judgment of 25 August 1993, Series A, No. 266–B, for a caseexploring the limits of that right.

34 See ECHR, Lingens v. Austria, judgment of 24 June 1986, Series A, No. 103.35 See ECHR, Castells v. Spain, judgment of 23 April 1992, Series A, No. 236.

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and any restrictions placed upon them by the authorities ‘call for the closest scrutinyon the part of the Court’.36 Also, who is being verbally attacked makes a difference:Politicians, while allowed broader free speech, must also tolerate more.37 TheChapman standard seems to fall into the same category: While everyone enjoys therights under Article 8 ECHR, and Gypsies or other minorities must in principle also

abide by countries’ laws in force, when it comes to appraising the conformity of acertain measure with the Convention, one must attach more signicance to theirparticular status and must more closely scrutinize the justications advanced for aparticular restriction. In essence, that is the Chapman standard.

5. The ‘Special Consideration’ Standard after Chapman

Following establishment in Chapman, the ‘special consideration’standard never re-emerged, although the Court had various opportunities when deciding a number of cases related, at least in part, to the status of (members of ) ethnic or religious minori-ties. Since it has been done elsewhere,38 a comprehensive review of the practicewill not be offered here, but the following examples should sufce. In Stankov and the United Macedonian Organization Ilinden v. Bulgaria,39 for instance, the com-plaint, under Article 11 ECHR, related to a ban on gatherings of ethnic Macedoniansin the Pirin region of Bulgaria and was resolved, in favour of the applicants, on the

basis of the standard ‘proportionality’test; that the case concerned a group of mem-bers of an ethnic minority was at least not explicitly taken as a decisive factor.Rather, the Court reasoned that ‘[t]he national authorities must display particularvigilance to ensure that national public opinion is not protected at the expense of the assertion of minority views no matter how unpopular they may be’.40 ‘Minorityviews’ is used here in its broadest sense, encompassing democratic dissent in itsentirety; thus, the minority opinion of an ethnic minority would not – prima facie –be deserving of special protection in light of Stankov. In Gorzelik 41 (now pending

on appeal before the Grand Chamber), the Fourth Section, after recapitulating thecase law,42 concluded that the applicants, who had attempted to found an association


36 Ibid., at para. 42 (emphasis added).37 See, for instance, ECHR, Appl. 42409/98, Wolfgang Schüssel v. Austria, decision on the admissi-

bility of 21 February 2002.38 See Geoff Gilbert, ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human

Rights’, 24 HRQ (2002) 736–80, Roberta Medda-Windischer, ‘The Jurisprudence of the European Courtof Human Rights’, 1 European Yearbook of Minority Issues (2001/2), pp. 487–534, and Morawa, ‘TheEvolving Human Right to Equality’, at p. 178 et seq.

39 ECHR, Appl. 29221/95 and 29225/95, Stankov and the United Macedonian Organization Ilindenv. Bulgaria, judgment of 2 October 2001.

40 Ibid., at para. 107.41 ECHR, Appl. 44158/98, Gorzelik et al. v. Poland , judgment of 20 December 2001.42 A fairly inconsequential recapitulation indeed; for instance, the Chamber, after speaking of a ‘rig-

orous supervision by the Court’ of domestic practices relating to the necessity of restrictions of the free-dom of assembly pursuant to Article 11 ECHR on the basis of a ‘convincing and compelling reasons’standard (supra note 41, at para. 58), subsequently found that balancing ‘conicting individual interests

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called ‘Union of People of Silesian Nationality’ intended to represent ‘the Silesiannational minority’ in Poland, should have been ‘prepared to compromise on pointsthat were particularly sensitive for the State’43 by ‘slightly changing the name of their association and by sacricing, or amending, a single provision of the memo-randum of association’.44 It is obvious that nothing in the Chamber’s reasoning sug-

gests that it would have applied any special consideration; quite to the contrary,unlike associations aiming at the overthrow of a democratic government or the alter-ation of international boundaries, which enjoy full protection under Article 11 unlessthey actively advocate violence, an ethnic group not recognized as a national minor-ity by the State would be required to yield to that State’s ‘sensitivity’.

6. Gypsy Council in Light of the ‘Special Consideration’ Standard

In order to illustrate whether the Court in Gypsy Council applied a standard thatwould qualify as special, within the meaning of the Chapman standard, referencemay be made to two – possibly crucial – statements it made in the context of Article8: holding that the gathering under a stricter regime would not ‘have necessarily

prevented the disorder and disruption which was anticipated ’,45 and Article 14:the measure ‘prevented any persons attending the horse fair irrespective of their origin’.46

The need to prevent anticipated disorder may justify the prohibition of assem-blies under the general standard if other measures are judged to be ineffective bythe authorities for reasons which the Court, exercising its review powers, nds con-vincing.47 That test extends to both the levels of ‘anticipation’ and of ‘likelihood of failure’ of alternative, less restrictive means to prevent such disorder. Nowhere inthe case law concerning non-special situations has a standard been applied thatrequires applicants to provide positive proof that other measures will ‘necessarily’prevent any trouble.

As for the measure at issue having prevented ‘any persons attending the horsefair irrespective of their origin’, it sufces to say that the Horsmonden Horse Fairtraditionally was a Gypsy event with mostly Gypsy attendance48 in order to foster


and rights’ in that context involves ‘consideration of political and social issues on which opinions withina democratic society differ signicantly’ and, consequently, the states should enjoy a ‘broad margin of appreciation . . .’ (ibid., at para. 59).

43 Supra note 41, at para. 64.44 Ibid., para. 65.45 Gypsy Council, ‘The Law’, II. A. 1 (emphasis added).46 Ibid., ‘The Law’, II. A. 2 (emphasis added).47 The term ‘convincing’ is here used in a non-technical sense. For a more precise analysis of the

exact standards the Court uses generally, see infra, 3 (d) iii.48 See the statements of Eli Frankham, Regina v. Tunbridge Wells Borough Council et al., ex parte

Eli Frankham, at 12, para. 5: ‘Mr Frankham is now in his seventies, and has been attending HorsmondenFair . . . as long as he can remember, as did his father and family before him. He believes that the Fairhas been a Romani event for at least 300 years . . .’; he adds that ‘[t]he evidence that it has been goingon for centuries is probably not a matter of public record, since the information is part of the oral his-

tory of the Romani people.’ Ibid.

, p. 13, para. 6. The letter of Chief Constable Sir David Phillips of the

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their culture and tradition. Of course any non-Gypsy who would have wanted toattend was also deprived of an opportunity to partake in the event, but it is appar-ent that the measure not only indirectly, but quite openly targeted the Gypsies;every-one else may well have walked away saying: ‘Oh, well, there will be other events’.49

It was the Gypsy tradition and culture, however, that was at stake and would have

required the Court to review the restrictive measures under the special considera-tion standard.

7. Gypsy Council in Light of General Standards

It is now in order to consider whether the Court’s holding in Gypsy Council is evenconsistent with the general rules developed in jurisprudence regarding the prohibi-

tion of, or substantive, limitations placed upon the time, place, and manner in whichassemblies, broadly dened, are held. It should be noted at the outset that free-dom of assembly routinely encompasses elements of other rights, in particularfreedom of speech (Article 10 ECHR), which has been identied as a fundamentalfreedom of paramount importance early on in the Court’s jurisprudence.50 Whethergroups of individuals wish to gather to express a political opinion, to inform thepublic about a topic they deem important, or to undertake activities that are anexpression of their traditions and culture, be it for their own enjoyment or to pre-

sent themselves to the general public, there always is an ‘expression’ element inassemblies. Article 11 is not only a lex specialis51 but resembles, in a way, an acces-sory norm to Article 10, since assemblies are one of the means to communicateopinion and information.52 The standards are, accordingly, relatively high,53 and a


Kent County Constabulary dated 7 August 2000 to Rodney Stone, Chief Executive of the TunbridgeWells Borough Council (on le with the author), states quite explicitly that ‘in 1999, approximately3,500 “travellers” and others attended on one day’ and adds as the rst reason for applying for an orderprohibiting the event: ‘[i]ncidents involving feuding groups of “travellers” in 1997, 1998 and 1999 with

an escalating level of policing required to prevent serious crime . . .’ (p. 2).49 The Chief Constable’s letter also contains a list of grievances expressed by local residents (p. 3),

included as one of the reasons for applying for the order; it is obvious that the ‘fears’ expressed thererelate to the Gypsies, and not to other visitors who might come to Horsmonden to see the parade. TheCourt also had before it the report of Stewart Baxter of the Home Ofce who states explicitly that themeasure ‘may disproportionately impact on gypsies and travellers in respect of this event’.

50 See ECHR, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A, No. 24,para. 23, where the Court spoke of freedom of expression as an ‘essential foundation’ of a democraticsociety and ‘one of the basic conditions for its progress’.

51 See the discussion by the Eur.Comm.H.R. in Young, James and Webster v. the United Kingdom

case, report of 14 November 1979, Series B, No. 39, p. 48, and by the Court in the same case, judg-ment of 13 August 1981, Series A, No. 44, at para. 57.

52 According to the Court, the ‘protection of opinions and the freedom to express them is one of theobjectives of the freedoms of assembly and association as enshrined in Article 11.’ Stankov and theUnited Macedonian Organization Ilinden v. Bulgaria, at para. 85, with reference to Appl. 23885/94,Freedom and Democracy Party (ÖZDEP) v. Turkey, judgment (grand chamber) of 8 December 1999,Reports 1999–VIII, at para. 37. For a more thorough discussion of the relationship of Articles 9, 10, and11 ECHR see Pieter van Dijk and G. J. H. van Hoof, Theory and Practice of the European Conventionon Human Rights (The Hague, London, Boston, 3rd ed. 1998), pp. 586–587.

53 See, amongst many others, ECHR., Appl. 23462/94,

Arslanv.

Turkey, judgment (grand

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comparatively heavy burden is placed upon governments seeking to justify correc-tive, and in particular prohibitive interferences.

While the practice fails to set forth exact guidelines how public authorities areto deal with assemblies intended to take place at locations or under circumstancesthat might warrant preventive prohibition orders, a few general standards have so

far emerged. Prominent among them is that total bans on assemblies, including their‘relocation’ to a place so distant or different that it would amount to a de facto totalban, are the ultimate means and must not be used unless all other means to achievethe authority’s legitimate goals have proven unsuccessful. Much in line with thatgeneral stipulation, while authorities certainly have the power to sanction trans-gressions of the law in the course of assemblies, that in principle involves adequatepolicing – jointly with the organizers, who may be seen to have reporting dutiesbefore, as well as the obligation to employ reasonable care to maintain ‘order’ dur-

ing assemblies – rather than preventive measures, i.e. the prohibition of a gather-ing. If and as far as prohibitive measures are permissible, they will regularly involvebans on gatherings in certain locations; such a limited interference is clearly prefer-able to a total ban. Nevertheless, as the practise suggests, limitations of the free-dom of those who wish to assemble to pick the location they deem most feasiblefor conveying their particular message to a suitable audience must be carefully con-sidered and alternative means to maintain law and order must be ruled out by theauthorities beforehand.54

As regards the ‘ultimate means’ standard, the Stonehenge cases, which in turnare intertwined with less locale-specic assembly matters such as those discussedin the Trafalgar Square / City of London cases, are indicative. In its 1987 Chappell55

ruling, the Commission had to deal with the closing of the Stonehenge area and theprevention of the midsummer solstice ceremony and the fact that the authoritieswere faced with what was called ‘extreme problems’or ‘great difculties’ concerningthe various festivals and religious ceremonies taking place at that day. Only afterextensive consultations with all parties involved and the ultimate conclusion that

there was no feasible way to accommodate the various gatherings did the authori-ties decide to close the area. The Commission lists the following considerationswhen accepting that that measure was indeed the only suitable one: the ‘duty toprotect Stonehenge’, the fact that the authorities ‘sought a solution for the holding


chamber) of 8 July 1999, at para. 44, emphasizing that exceptions to the right to freedom of speech mustbe ‘construed strictly’ and the need for them must be explained by respondent states ‘convincingly’.

54 To gather in public, in particular on public streets and squares, may be regarded as a conditio sinequa non for quite a few types of assemblies which, if moved to a less prominent location, would bedeprived of the desired, and indeed protected, purpose. See, inter alia, the decision of the Eur.Comm.H.R.in Appl. 8440/78, Christians against Racism and Fascism v. the United Kingdom, 21 Decisions andReports 138, 148 et seq., and the ECHR’s, Plattform ‘Ärzte für das Leben’ v. Austria judgment of 25May 1988, Series A, No. 139, at para. 32 et seq. See also Jochen Abr. Frowein and Wolfgang Peukert,

Europäische Menschenrechtskonvention, EMRK Kommentar (Kehl, Strasbourg, Arlington, 2nd ed. 1993),411, MN 3.

55 Eur.Comm.H.R., Appl. 12587/86, A.R.M. Chappell v. the United Kingdom, decision of 14 July1987.

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of the midsummer solstice ceremony’, albeit unsuccessfully, ‘the absence of a suit-able site in the vicinity where a festival could be held without threatening the mon-ument and the risk of harm to the public through disruption’, and the resultingimpracticability of an alternative measure. Finally, the Commission adds the cru-cial sentence to this list: ‘This decision reected the unique historical and archae-

ological importance of Stonehenge’.56

The Commission’s smart ruling in Chappell was upheld and somewhat renedin the 1998 Pendragon57 case, although there it saw t to quote two cases con-cerning sites that are not ‘unique’ like Stonehenge to emphasize that far-reachingprohibition orders, such as a two-month ban on public processions other than cus-tomary ones in London,58 or a general ban on demonstrations concerning NorthernIreland in Trafalgar Square, were in line with the right guaranteed by Article 11 of the Convention.59 This time the authorities had abstained from closing Stonehenge

altogether, but had instead established a four-mile-zone around it within whichgatherings of more than 20 people were prohibited. The applicant’s religious groupof more than 20 persons had intended to convene for the purpose of performingreligious rites outside the monument’s perimeter fence, yet inside the four-mile zone.Thus, they somehow posed a problem not properly envisaged by the drafters of themeasure, since the parties before the Commission agreed that they were mostdenitely peaceful and indeed ‘wished to use the site for the purpose for which itwas in all likelihood originally intended’. The Commission, recalling Chappell and

the ‘considerable disorder’at Stonehenge throughout the years found that the author-ities’ decision ‘cannot be considered to be an unreasonable response’. It did so by‘assessing the overall proportionality of the restriction on the applicant’s Article 11rights’ rather than the lack of exibility of the rule, which might well have led toa different result. What is crucial, however, is the limited scope of the prohibitivemeasure.

The limited scope criterion is also the underlying consideration when it comesto assessing the probability of disorder or, non-technically speaking, ‘inconvenience’

for others as grounds for prohibiting assemblies as opposed to sanctioning thosewho do in fact violate the law, or cause disruption, or damage property, during sucha gathering. The Commission’s holding in several related cases against Germany in1989 that certain activities during a per se perfectly lawful assembly (here: a demon-stration), such as ‘the blocking of a public road, thereby causing more obstructionthan would normally arise from the exercise of the right of peaceful assembly’60


56 Ibid., (emphasis added). The Commission applied the same reasoning to the complaints underArticles 9 and 11 ECHR.

57 Eur.Comm.H.R., Appl. 31416/96, Arthur U. Pendragon v. the United Kingdom, decision of 19October 1998.

58 Eur.Comm.H.R., Christians against Racism and Fascism v. the United Kingdom, 21 Decisions andReports 138.

59 Eur.Comm.H.R., Appl. 25522/94, Milan Rai, Gill Allmond and ‘Negotiate Now’ v. the United Kingdom, decision of 6 April 1995.

60 Eur.Comm.H.R., Appl. 13079/87, M C v. Germany; 13235/87, W M and H O v. Germany; 13389/87,Schiefer v. Germany, and 13858/88,C S v. Germany, decisionsof 6 March 1989, at para 2 (emphasis added).

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supports the view that authorities would in principle have to look at whether a cer-tain individual’s ‘particular behaviour’61 was out of the ordinary to justify a sanc-tion, and only in exceptional circumstances would the likelihood of such behaviour

justify proactive measures preventing the assembly from happening altogether, ordissolving a gathering, be it on public or private grounds.62 In order to enable the

authorities to make such assessments, prior notication of planned assemblies havegenerally been regarded as permitted by Article 11 ECHR,63 unless such a require-ment were to be found to place an undue burden on organizers due to, for instance,excessive reporting duties or prohibitive deadlines. A case concerning the permis-sibility of prior notication is W G v. Austria,64 decided in 1992, which also con-tains some of the elements of Gypsy Council: an environmental activist had set up‘an information desk of 1 ´ 3 m in the Schottentorpassage’,65 a particularly busypart of the old town’s pedestrian zone in Vienna, and was ned for not having sought

prior approval. The domestic authorities had relied on the ‘obstruction of pedes-trian trafc’ and ‘the size of the information table’ to justify their decisions. TheCommission, balancing the interests of the prevention of disorder, in particular of an unhindered and safe trafc on public streets, and the applicant’s freedom of expression interests, found that ‘the requirement of prior authorization of his activ-ities . . . could be regarded as justied.’66

With respect to the ‘place’ and corresponding ‘stewarding’elements , the Trafalgar Square case67 provides guidance: the authorities had prohibited a controversial polit-

ical rally on the square despite the organizers’ offer to help ‘avoid any potentialproblems by using for example stewards and co-operating with the police as to organ-ization al details’.68 Shortly before the intended gathering another special permis-sion had been abused by the then organizers and the authorities feared that wouldhappen again. The Commission, ‘[h]aving regard to the fact that the refusal of per-mission did not amount to a blanket prohibition on the holding of the applicants’rally but only prevented the use of a high prole location (other venues being avail-able in central London) [concluded] that the restriction in the present case may be

regarded as proportionate and justied as necessary in a democratic society . . .’.69


61 Ibid.62 In ECHR, Appl. 51346/99, Cisse v. France, decision on the admissibility of 16 January 2001, at

(b), the applicants challenged a decision of the Paris police to remove some 300 demonstrators, amongthem ten hunger strikers, from a church inter alia on the ground that no ‘disturbances [had] been wit-nessed in the vicinity of the church or on the public highway. Had any disturbances occurred, the policecould have intervened to restore order without having to evacuate the church.’ The Court declared thecomplaint admissible.

63 See the Eur.Comm.H.R’s decision in Appl. 8191/78, the Reassemblement jurassien v. Switzerland case, 17 Decisions and Reports 93, 105 (1980), EuGRZ 1980, 36.

64 Eur.Comm.H.R., Appl. 15509/89, W G v. Austria, decision of 30 November 1992.65 Ibid ., ‘The Law’.66 Ibid ., (emphasis added).67 Eur.Comm.H.R., Milan Rai et al. v. the United Kingdom, decision of 6 April 1995.68 Ibid ., at, para. 2.69 Ibid.

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Three elements are combined in the Commission’s decision: abuse of previous per-missions, the availability of a bit less ‘high prole’, but suitable sites, and the ndingthat the ‘stewarding’ offered by the proponents was not likely to prevent distur-bances. Only a combination of these factors led the Commission to conclude thatthe interference was justied. On the other hand, even informational activities, such

as the setting up of a stand to gather signatures for a petition against a building pro- ject, on private grounds are not necessarily outside the scope of Article 11 ECHR(as Appleby et al.70 demonstrates). The use of private grounds – in Appleby a shop-ping centre that had become the ‘town center’ – undoubtedly imposes a heavier bur-den on its owners that a gathering on public grounds that may have adverse effectson either private property or other elements of ‘privacy’, broadly dened.

8. Conclusions

As we have seen, the Section in Gypsy Council failed to review the domestic han-dling of the matter in light of the Court’s own ‘special consideration’ standard. Inlight of the above assessment under general standards, it cannot even be said tohave been decided consistently with the Court and Commission’s general, but admit-tedly far from precise line of jurisprudence in cases involving gatherings. WhileHorsemonden may be a lovely village, it certainly has not the status of either a cul-

tural monument resembling that of Stonehenge or a high prole location like TrafalgarSquare. The fair was undoubtedly a social and cultural event of exceptional signicancefor the Gypsies in the region and had a longstanding tradition of being held there,with the active support of the local authorities and population, which, it appears,also beneted economically from it. No part of the evidence adduced in the domes-tic or Strasbourg proceedings suggests that disturbances of a kind were likely, bywhatever standard, to occur that would have warranted a preventive total ban of thegathering; the breaches of the law that had happened in previous years were of a

kind which, if accepted as a justication for such a total ban, would also sufce toprevent every single soccer match or rock concert in the foreseeable future. Theorganizers had, furthermore, displayed a degree of exibility in accommodating theauthorities’ public safety concerns. That the fears expressed by the local populationfeatured, albeit not very prominently, in the documents produced by the nationalauthorities to justify the interference display at least a degree of xenophobia addsan additional feeling of unease if one reads the case le.

In sum, Gypsy Council was clearly wrongly decided. Apart from the injustice

perpetuated in the individual case, the Section’s reasoning unfortunately contributesto the un-doing of the already weak Chapman standard by not mentioning it, andthereby failing to rmly establish it as a bare minimum in the Court’s practice.


70 ECHR, Appl. 44306/98, Appleby et al. v. the United Kingdom. See Press Release No. 496 of 15October 2002 (hearing on the admissibility and the merits).

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