EHRM, 01-12-2011, nr. 8080/08, nr. 8577/08

The applicants argued that their detention from 3 to 9 June 2007 had violated Article 5 § 1 of the Convention. It had not been justified under any of the sub-paragraphs of that provision.

The applicants submitted, in particular, that their detention had not been justified under sub-paragraph (c) of Article 5 § 1, as that provision did not authorise a purely preventive deprivation of liberty. They had not been detained in connection with criminal proceedings, as required by that provision as interpreted in the Court's case-law (they referred, inter alia, to Ječius v. Lithuania, no. 34578/97, § 50, ECHR 2000-IX). This was proven by the fact that their detention had not been based on section 112 of the Code of Criminal Procedure, which concerned remand in custody (see paragraph 42 above). On the contrary, the courts had based their detention on sections 55 and 56 of the Mecklenburg Western-Pomerania Public Security and Order Act (‘the PSOA’), which governed detention for preventive purposes without any link to criminal proceedings.

Moreover, the applicants argued that the aim of their detention had not been to bring them promptly before a judge and to try them for potential, future offences, as required by Article 5 § 3, read in conjunction with Article 5 § 1 (c). Nor could their detention have been reasonably considered necessary to prevent their committing an offence under the second alternative of Article 5 § 1 (c). Their potential offences had not been sufficiently outlined with a reasonable degree of specificity as regards, in particular, the place and time of their commission and their victims, as required by the Court's case-law (they cited, inter alia, M. v. Germany, no. 19359/04, § 102, 17 December 2009).

The applicants further submitted that their detention had not been justified under sub-paragraph (b) of Article 5 § 1 either. There had not been any court order that the applicants had failed to comply with. There had also not been any obligation incumbent on them which they had not fulfilled. Even if they had displayed the banners seized in the van, they would not have committed an offence.

In the applicants' submission, their detention had also not met the requirements of sub-paragraph (a) of Article 5 § 1 for lack of a ‘conviction’.

Furthermore, in the applicants' view, their detention had not been ‘lawful’ as required by Article 5 § 1. Section 55(1) of the PSOA, on which their detention had been based, had not been sufficiently precise so as to make it foreseeable to them that they faced detention for their conduct. Furthermore, that provision had not been applied correctly. There had been nothing to indicate that the applicants had been about to commit a specific offence at a given time and place. Even assuming, contrary to the fact that the applicants had themselves been hit by the police officers, that the first applicant had hit the arm and kicked the shin of a police officer, this had not warranted the conclusion that both applicants had been about to commit another completely different offence, a liberation of prisoners by force. In any event, even if the applicants had displayed the banners, this would not have been illegal. Their inscriptions had not advocated violence or harm to anyone. The applicants stressed in that connection that their lawyers had explained the different meaning attributable to the slogans on the banners, both at the hearing before the Regional Court and in their written statement of further appeal.

Moreover, the applicants' detention had also not been indispensable to prevent the imminent liberation of prisoners by force or an incitement of others to do so. There had been nothing to indicate that the applicants, who had not had any tools on them that could have been used to free prisoners, had been about to attack Waldeck prison, which was a high-security institution. There had not been any crowd of people present in the car park who could have been incited to liberate detainees in that prison by force. The assumption that the applicants might have displayed the banners at an unspecified demonstration, possibly attended by individuals prepared to use violence, could not be considered sufficient to have assumed the imminent commission of an offence, as required by section 55(1) paragraph 2 of the PSOA. The applicants further submitted that, contrary to the Government's submissions, none of the domestic courts had suggested that the applicants had intended to liberate prisoners by force themselves. The courts had only stated that there was reason to believe that the applicants had intended to incite others to do so.

The applicants' detention had also been arbitrary, in that it had not been necessary to achieve the aim pursued. The police could simply have ordered the applicants not to enter the area in which the G8 demonstrations had taken place under section 52 of the PSOA (see paragraph 39 above). Alternatively, they could also have seized the banners under section 61 of the PSOA (see paragraph 40 above). The applicants would then have been aware that the police considered the slogans illegal. In view of the chilling effect of such a police measure, it ought not to be assumed that the applicants would have reproduced and used similar banners, as was claimed by the Government. As there had not been further violent demonstrations during the whole week of the G8 summit, the applicants' detention for six days had been disproportionate. They further noted in that connection that the seven Belorussian individuals also present in the van when the applicants had been arrested and to whom the banners could also have belonged had not been arrested and detained.

The Government took the view that the applicants' detention had complied with Article 5 § 1 of the Convention. It had been justified under the second alternative of sub-paragraph (c) of Article 5 § 1 as detention reasonably considered necessary to prevent the applicants from committing an offence.

The Government contested the applicants' assertion that detention for preventive purposes was only authorised under Article 5 § 1 (c) of the Convention in connection with criminal proceedings. The applicants' detention had not been effected in connection with criminal proceedings and their preparatory acts undertaken to free prisoners by force or to incite others to do so had not been punishable. Under the wording of Article 5 § 1 (c), second alternative, detention for preventive purposes was justified if it was necessary to prevent a person from committing a concrete and specific offence, which, if carried out, would entail criminal proceedings. It was not necessary for the person concerned to have already committed an offence; the second alternative of Article 5 § 1 (c) would otherwise be superfluous in addition to the first alternative of that provision. Article 5 § 3 of the Convention had to be interpreted in the context of Article 5 § 1 (c) as requiring a prompt examination of the lawfulness of the detention of the person concerned: a criminal trial was not necessary, as the person was not charged with a criminal offence.

The Government further argued that in Germany such detention for preventive purposes was necessary, as acts preparing criminal offences were, as a rule, not yet punishable, contrary to the criminal law applicable in other Contracting Parties to the Convention. This served to encourage potential offenders to give up their plans to commit an offence. Without the possibility to detain persons for preventive purposes, the State would therefore be unable to comply with its positive obligation to protect its citizens from impending criminal offences — for instance, in the context of the transport of castor containers or football hooligans setting up an arranged brawl.

Referring to the case of Guzzardi v. Italy (6 November 1980, § 102, Series A no. 39), the Government submitted that the applicants' detention had been justified under the second alternative of sub-paragraph (c) of Article 5 § 1. There had been specific facts warranting the conclusion that it had been necessary to prevent them from committing an offence in the imminent future. The applicants had been found by the police standing next to a van in a car park in front of Waldeck prison in the company of seven other people one day after violent riots in Rostock city centre. The first applicant had violently resisted the police's identity check. The police had found folded-up banners bearing the inscriptions ‘freedom for all prisoners’ and ‘free all now’ in the van. In these circumstances, it had been reasonable for the police to assume that the applicants had been about to join the ongoing demonstrations in Rostock and to display the banners to demonstrators, some of whom had been violent. This would have amounted to an incitement of others to free prisoners, punishable under Article 120 of the Criminal Code.

The Government submitted that the wording of the banner bearing the inscription ‘free all now’ could have reasonably been interpreted as a call upon other demonstrators to violently free prisoners, rather than as a call upon the State authorities to order their release. The first applicant had violently resisted the identity check and proceedings had previously been brought against the second applicant for dangerous interference with rail traffic arising in the context of the transport of castor containers. Therefore, it had to be assumed that the applicants had wanted to disturb the summit by violent means and had wanted to incite other violent demonstrators present in Rostock to free prisoners held in the holding pens for prisoners which had been set up in the city centre or individuals arrested during a demonstration by force. The applicants had not explained in the proceedings before the domestic courts that the inscriptions on their banners had had a different meaning.

The Government further argued that the applicants' detention had also been justified under sub-paragraph (b) of Article 5 § 1. It had been necessary to secure the fulfilment of an obligation prescribed by law. Having regard to the circumstances of the case, it was certain that the applicants would not have fulfilled their legal duty to comply with an order to report to a police station in their town of residence at regular intervals (Meldeauflage) or with an order not to enter a particular area (Platzverweis). The applicants had travelled several hundred kilometres in order to reach the venue of the G8 summit and had resisted the identity check. They had thus demonstrated that they would not follow orders made by the police. Having regard to the exceptional situation at hand, it had not been necessary to wait until the applicants had in fact breached such an order. Bearing in mind the great number of demonstrators present, it would not have been possible to prevent the applicants from committing offences upon their doing so. Therefore, compliance with their legal duties to respect such an order and the prevention of specific offences could only have been secured by their instantaneous detention.

In the Government's submission, following the decision of the District Court ordering the applicants' detention, their deprivation of liberty had also been justified under sub-paragraph (a) of Article 5 § 1. They argued that the term ‘conviction’ in that provision, contrary to the Court's case-law (they referred, inter alia, to M. v. Germany, no. 19359/04, §§ 87, 95, 17 December 2009), did not only comprise criminal convictions, but also court decisions ordering detention for preventive purposes.

The Government further argued that the applicants' detention had been lawful and in accordance with a procedure prescribed by law. It had been based on section 55(1) paragraph 2 (a) of the PSOA. The detention of the second applicant, who had been arrested in 2002 on suspicion of dangerous interference with rail traffic, had been based, in addition, on section 55(1) paragraph 2 (c) of the PSOA.

In the Government's view, the applicants' detention had also been proportionate and not arbitrary. There had not been any less intrusive means available to prevent them from freeing prisoners by force or inciting others to do so during the whole duration of the G8 summit. In particular, as shown above (see paragraph 65), obliging them to report to a police station outside the G8 area at regular intervals would not have been sufficient to prevent them committing an offence. For the same reasons set out above, an order made against them not to enter a particular area — that of the G8 summit — had not been suitable to avert the offence. The same applied to the seizure of the banners, which the applicants could have reproduced.

The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008-…).

Under the second alternative of sub-paragraph (c) of Article 5 § 1, the detention of a person may be justified ‘when it is reasonably considered necessary to prevent his committing an offence’. That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence (see Guzzardi, cited above, § 102; Ciulla v. Italy, 22 February 1989, § 40, Series A no. 148; and Shimovolos v. Russia, no. 30194/09, § 54, 21 June 2011 (not yet final)) as regards, in particular, the place and time of its commission and its victim(s) (see M. v. Germany, no. 19359/04, §§ 89, 102, 17 December 2009). This can be seen both from the use of the singular (‘an offence’) and from the object of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi, ibid.; and M. v. Germany, cited above, § 89).

Under the Court's well-established case-law, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’, a requirement which qualifies every category of detention referred to in Article 5 § 1 (c) (see Lawless v. Ireland (no. 3), 1 July 1961, pp. 51–53, § 14, Series A no. 3, and, mutatis mutandis, Ječius v. Lithuania, no. 34578/97, §§ 50–51, ECHR 2000-IX, and Engel and Others v. the Netherlands, 8 June 1976, § 69, Series A no. 22).

Sub-paragraph (c) thus permits deprivation of liberty only in connection with criminal proceedings (see Ječius, cited above, § 50). It governs pre-trial detention (see Ciulla, cited above, §§ 38–40). This is apparent from its wording, which must be read in conjunction both with sub-paragraph (a) and with paragraph 3, which form a whole with it (see, inter alia, Ciulla, cited above, § 38; and Epple v. Germany, no. 77909/01, § 35, 24 March 2005). Paragraph 3 of Article 5 § 1 stipulates that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5 shall be brought promptly before a judge — in any of the circumstances contemplated by the provisions of that paragraph — and shall be entitled to trial within a reasonable time (see also Lawless, cited above, pp. 51–53, § 14).

Furthermore, detention is authorised under the second limb of sub-paragraph (b) of Article 5 § 1 to ‘secure the fulfilment of any obligation prescribed by law’. It concerns cases where the law permits the detention of a person to compel him to fulfil a real and specific obligation already incumbent on him, and which he has until then failed to satisfy (Engel and Others, cited above, § 69; Guzzardi, cited above, § 101; Ciulla, cited above, § 36; and Epple, cited above, § 37). The arrest and detention must be for the purpose of securing the fulfilment of the obligation and not punitive in character (see Gatt v. Malta, no. 28221/08, § 46, ECHR 2010-…). As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003; and Epple, cited above, § 37). It does not justify, for example, administrative internment meant to compel a citizen to discharge his general duty of obedience to the law (Engel and Others, cited above, § 69). Finally, a balance must be drawn between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (Vasileva, cited above, § 37; and Epple, cited above, § 37).

For the purposes of sub-paragraph (a) of Article 5 § 1, the word ‘conviction’, having regard to the French text (‘condamnation’), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and M. v. Germany, cited above, § 87).

The Court is called upon to determine, first, whether the applicants' detention under section 55(1) paragraph 2 of the PSOA in order to prevent them from committing a criminal offence fell within one of the permissible grounds for deprivation of liberty listed in sub-paragraphs (a) to (f) of Article 5 § 1.

The Court observes that in the Government's submission, the applicants' detention was justified, in the first place, under sub-paragraph (c) of Article 5 § 1. It further notes that the applicants, by being in the possession of folded-up banners bearing the inscriptions ‘freedom for all prisoners’ and ‘free all now’, had not yet committed a criminal offence and were subsequently never charged with having incited others to liberate prisoners by force. This is uncontested between the parties. Their detention therefore falls to be examined under the second alternative of Article 5 § 1 (c) as detention reasonably considered necessary to prevent them committing an offence.

In determining whether the offence that the authorities sought to prevent the applicants from committing can be considered as sufficiently concrete and specific, as required by the Court's case-law in respect of, in particular, the place and time of its commission and its victim(s) (see paragraph 70 above), the Court observes that the domestic courts appear to have diverged on the specific offence the applicants were about to commit. The Rostock District and Regional Courts appear to have considered that the applicants, with the help of the impugned banners, had intended to incite others to free prisoners detained in Waldeck prison by force (see paragraphs 14 and 17 above). This was inferred from the applicants' presence in the car park in front of that prison — in which, however, apart from the seven passengers in the van, no other people were present (see paragraph 12 above). On the contrary, the Rostock Court of Appeal considered that the applicants had intended to drive to Rostock and display the banners at the partly violent demonstrations there and thus incite the crowd present in Rostock to liberate prisoners by force (see paragraph 19 above).

In addition, in determining whether the applicants' detention could be ‘reasonably considered necessary’ in order to prevent them from inciting others to liberate prisoners by force, the Court cannot but note that the applicants were detained for some five and a half days for preventive purposes and thus for a considerable time. Moreover, as was also accepted by the Court of Appeal (see paragraph 22 above), the inscriptions on the banners could be understood in different ways. The applicants, represented by counsel in the proceedings, had explained that the slogans had been addressed to the police and the authorities, urging them to end the numerous detentions of demonstrators, and had not been meant to call upon others to free prisoners by force. It is also uncontested that the applicants had not themselves carried any instruments which could have served to liberate prisoners violently. In these circumstances, the Court is not convinced that their continuing detention could reasonably be considered necessary to prevent them from committing a sufficiently concrete and specific offence. The Court is further not convinced of the necessity of the applicants' detention because it would, in any event, have been sufficient to seize the banners in question in order to make them aware of potential negative consequences and prevent them from inciting others — negligently — to liberate prisoners.

The Court further refers to its long-established case-law under which, in order to be justified under Article 5 § 1 (c), the applicants' detention must have been effected for the purpose of bringing them before the competent legal authority in the course of their pre-trial detention and aimed at committing them to a criminal trial (see paragraphs 71–72 above). Having regard to its above finding that the applicants' detention could not reasonably be considered necessary in the circumstances of the present case, it does not, however, consider it necessary to respond to the parties' detailed arguments on that point, especially the Government's arguments advocating a revision of the Court's long-standing case-law.

Consequently, the applicants' detention was not justified under sub-paragraph (c) of Article 5 § 1.

The Court further notes that, in the Government's submission, the applicants' detention was also justified under sub-paragraph (b) of Article 5 § 1 ‘in order to secure the fulfilment of any obligation prescribed by law’. They argued that the applicants would neither have respected an order to report to a police station in their respective towns of residence at regular intervals nor an order not to enter the area in which the G8-related demonstrations took place. It had therefore been justified to secure their compliance with such an order by their detention. In this respect, the Court cannot but note that the police in fact neither ordered the applicants to report to a police station in their town of residence nor prohibited them from entering the area in which G8-related demonstrations took place. The applicants therefore cannot be considered to have been under an ‘obligation prescribed by law’, for the purposes of Article 5 § 1 (b), to report to a police station or to not enter the area of the G8-related demonstrations and which they failed to satisfy.

The Court observes that the Government further argued that the applicants had been detained in accordance with Article 5 § 1 (b) in order to secure the fulfilment of their obligation not to commit a specific offence — the incitement of others to liberate prisoners. In this respect, the Court refers to its case-law, cited above, under which the ‘obligation prescribed by law’, for the purposes of the said provision, must be real and specific, already incumbent on the person concerned and which the person has until the time of detention failed to satisfy (see paragraph 73). It notes that the applicants were detained under section 55(1) paragraph 2 of the PSOA, which authorises detention if ‘this is indispensable in order to prevent the imminent commission … of a criminal offence’ (see paragraph 37 above), such as an offence under section 120 of the Criminal Code. The Court considers that the duty not to commit a criminal offence in the imminent future cannot be considered as sufficiently concrete and specific, as defined in the Court's case-law, so as to fall under Article 5 § 1 (b), at least as long as there are not any specific measures ordered which have not been complied with. It reiterates in that connection that a wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration (see Engel and Others, cited above, § 69). Moreover, the applicants cannot be considered to have previously failed in their duty not to commit such an offence. The applicants' detention was therefore not covered by sub-paragraph (b) of Article 5 § 1 either.

The Court further notes the Government's argument that following the District Court's order authorising the applicants' deprivation of liberty under section 55(1) paragraph 2 of the PSOA, their detention was also justified under sub-paragraph (a) of Article 5 § 1. They submitted that, under its wording, that provision had also covered court decisions ordering detention for preventive purposes. The Court, however, refers to its well-established case-law stating that a ‘conviction’, having regard to the French text (‘condamnation’), has to be understood as a finding of guilt of an offence (see paragraph 74 above). It observes that in the proceedings at issue, the domestic courts did not find the applicants guilty of any criminal offence, but rather ordered their detention in order to prevent them from committing an offence in the future. Their detention thus did not fall under sub-paragraph (a) of Article 5 § 1.

The Court considers — and this is uncontested by the parties — that the applicants' detention for preventive purposes was not justified under any of the other sub-paragraphs of Article 5 § 1 either.

The Court further takes note of the Government's argument that without the possibility of detaining individuals for preventive purposes, the State would be unable to comply with its positive obligation to protect its citizens from impending criminal offences. In the case at hand, however, even taking into account the general situation before and during the G8 summit, it has not been sufficiently demonstrated that a liberation of prisoners had been imminent. Therefore, the commission of that offence could not justify an interference with the right to liberty, especially as less intrusive measures could have been taken (see paragraph 78 above). The Court reiterates that, in any event, the Convention obliges State authorities to take reasonable steps within the scope of their powers to prevent criminal offences of which they had or ought to have had knowledge. However, it does not permit a State to protect individuals from criminal acts of a person by measures which are in breach of that person's Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1 (see Jendrowiak v. Germany, no. 30060/04, §§ 37–38, 14 April 2011 with further references) and as at issue in the applicants' case.

There has accordingly been a violation of Article 5 § 1 of the Convention.

The applicants argued that their detention had violated both their freedom of expression under Article 10 of the Convention and their freedom of peaceful assembly under Article 11 of the Convention. The interference with those rights by their detention had not been justified. It had not been ‘prescribed by law’ and had not pursued a legitimate aim for the reasons they set out in relation to Article 5 § 1 (see paragraph 57 above). In particular, it had been uncertain if, when and where the applicants would display the banners ‘freedom for prisoners’ and ‘free all now’. Doing so would, furthermore, not have been an offence under the Criminal Code. The slogans could not have been understood as an incitement to a very uncommon crime but had had a different, more obvious meaning. With more than 1,000 demonstrators having been detained in connection with the G8 summit but only 100 detentions having been approved by the courts, there had been more than enough reason to criticise the deprivations of liberty that had taken place in connection with the summit.

The applicants further submitted that their detention had been disproportionate and thus not ‘necessary’ in terms of paragraph 2 of Articles 10 and 11. The public interest in preventing the uncertain commission of an offence at an indefinite place and time had not outweighed their interest in showing their disagreement with many unlawful deprivations of liberty in the course of the G8 summit and in taking part in protests against that summit. The slogans ‘freedom for prisoners’ and ‘free all now’ had been well-known, conventional leftist slogans in respect of such detentions and could not have been interpreted as a call for violent liberation of prisoners. Depriving them of their liberty in the given circumstances had discouraged an open discussion of matters of public interest.

The Government considered that neither Article 10 nor Article 11 of the Convention had been breached. The interference with the applicants' freedom of expression and freedom of assembly by their detention had been justified. It had been based on section 55(1) paragraph 2 (a) of the PSOA, a provision which had been sufficiently precise to be foreseeable in terms of its application to the applicants. It had pursued legitimate aims, as the applicants' detention had been in the interest of public safety and for the prevention of crime.

The Government further argued that the interference had been ‘necessary in a democratic society’ for the purposes of Article 10 § 2 and Article 11 § 2. They stressed that there had not been a less restrictive measure than the applicants' detention available in order to achieve the said legitimate aims. In particular, it had not been sufficient to seize the banners in question, as the applicants could easily have drawn up new, comparable banners at any time and could have used them immediately during the demonstrations in Rostock. It had also been proportionate to detain the applicants. There had been riots in Rostock city centre the day before. The applicants, who had shown themselves to be prepared to use violence, had been on their way to Rostock to participate in the demonstrations. There had been reason to fear that the applicants' banners would have incited other violent demonstrators to liberate prisoners detained in the prisoner holding pens in Rostock by force. In these circumstances, the public interest in maintaining public order and in the prevention of crime had outweighed the applicants' interest in participating in the demonstrations.

The Court reiterates that the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202; Djavit An v. Turkey, no. 20652/92, § 39, ECHR 2003-III; Women On Waves and Others v. Portugal, no. 31276/05, § 28, ECHR 2009-… (extracts); Barraco v. France, no. 31684/05, § 27, ECHR 2009-…; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52, 12 September 2011).

The Court notes that in cases in which applicants complained that they had been prevented from participating in and expressing their views during assemblies, including demonstrations, or that they had been sanctioned for such conduct, it has taken several elements into account in determining the relationship between the right to freedom of expression and the right to freedom of assembly. Depending on the circumstances of the case, Article 11 has often been regarded as the lex specialis, taking precedence for assemblies over Article 10 (see, for instance, Ezelin, cited above, § 35, concerning a disciplinary sanction imposed on the applicant, a lawyer, after having participated in a demonstration to protest against two court decisions; Osmani and Others v. ‘the former Yugoslav Republic of Macedonia’ (dec.), no. 50841/99, ECHR 2001-X, concerning the conviction of the applicant, an elected official, for having stirred up national hatred in a speech he delivered at an assembly he had organised; Djavit An, cited above, § 39, concerning the refusal of the Turkish and Turkish-Cypriot authorities to allow the applicant to cross the ‘green line’ into southern Cyprus in order to participate in inter-community meetings; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007, concerning a sanction of three days' detention for having participated in a demonstration; and Barraco, cited above, § 26, concerning the applicant's conviction for having participated in a traffic-slowing operation organised as part of a day of protest by a trade union).

In other cases, the Court, having regard to the specific circumstances of the case and the way in which the applicants formulated their complaints, has considered that the main focus of the respective applicants' complaints lay on the right to freedom of expression and thus examined the case under Article 10 alone (see, for instance, Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 26, ECHR 2005-I, concerning a criminal sanction for having read out a statement during an assembly in front of a school, and Yılmaz and Kılıç v. Turkey, no. 68514/01, § 33, 17 July 2008, concerning the applicants' criminal conviction for having participated in demonstrations in support of Abdullah Öcalan).

The Court notes that in the present case, the parties submitted arguments in relation to Articles 10 and 11 together in the proceedings before the Court. It finds that the applicants essentially complained of the fact that, owing to their detention throughout the duration of the G8 summit, they were unable to express their views together with the other demonstrators present to protest against the summit. They also protested against the prohibition to express their views concerning the detention of demonstrators as expressed on the banners. The main focus of their complaints lies, however, on their right to freedom of assembly as they were prevented from taking part in the demonstrations and expressing their views. It will therefore examine this part of the application under Article 11 alone. It notes, however, that the issue of freedom of expression cannot in the present case be entirely separated from that of freedom of assembly. Notwithstanding its autonomous role and particular sphere of application, Article 11 must therefore also be considered in the light of Article 10 (see, mutatis mutandis, Ezelin, cited above, § 37).

The Court considers that, by their detention, ordered by the domestic courts for the entire duration of the G8 summit, the applicants were prevented from taking part in demonstrations against that summit.

The Court reiterates that Article 11 of the Convention only protects the right to ‘peaceful assembly’. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001-IX; and Galstyan, cited above, § 101). However, the possibility of extremists with violent intentions who are not members of the organising group joining a demonstration cannot as such take away that right. Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision (see Christians against Racism and Fascism v. the United Kingdom, no. 8440/78, Commission decision of 16 July 1980, Decisions and Reports (DR) 21, pp. 148–149; and, mutatis mutandis, Ezelin, cited above, § 41).

The Court notes that at the time of their arrest, the applicants intended to take part in future demonstrations against the G8 summit. There is nothing to indicate that the organisers of the demonstrations in which the applicants intended to participate had violent intentions. As shown above (paragraphs 8 and 103), the fact that the police also expected extremists with violent intentions to join the otherwise peaceful demonstrations does not result in those demonstrations losing the protection of Article 11 § 1.

As for the applicants' own aims in joining the demonstrations, the Court is not satisfied that it has been shown that the applicants had violent intentions in seeking to participate in G8-related demonstrations. In this connection, it notes, first, that the domestic courts did not consider that the applicants, by carrying banners bearing the inscriptions ‘freedom for all prisoners’ and ‘free all now’, intended to liberate prisoners by force themselves. It also observes that no weapons were found on the applicants. It further takes note of the Court of Appeal's finding that a crowd which was ready to use violence might be incited by the banners to liberate prisoners by force, but further notes that that court conceded that the slogans on the banners at issue in the present case could be understood in different ways (see paragraphs 19, 21 and 22 above). It also takes into account the declaration made by the applicants, represented by counsel, in the proceedings before the domestic courts. They had explained that the slogans on the banners had been addressed to the police and the authorities, urging them to end the numerous detentions of demonstrators, and had not been meant to call upon others to attack prisons and to free prisoners by force (see paragraphs 18 and 25 above). In the Court's view, the applicants gave a plausible interpretation of the inscriptions on their banners, which themselves clearly did not openly advocate violence. Having regard also to the domestic court's finding of the slogans' ambivalent content allowing for different interpretations, the Court considers that it has not been proven that the applicants deliberately intended to incite others to violence. Neither could, in the Court's view, such a conclusion be drawn from the fact that one of the applicants was considered to have resisted the police's identity check by force and was thus considered to have used force himself — in different circumstances and in a different manner than by displaying banners to others at a demonstration. It further notes in this connection that neither of the applicants was shown to have previous convictions for violent conduct during demonstrations or in comparable situations.

The applicants' detention thus interfered with their right to freedom of peaceful assembly under Article 11 § 1. This is uncontested between the parties.

Such an interference gives rise to a breach of Article 11 unless it can be shown that it was ‘prescribed by law’, pursued one or more legitimate aims as defined in paragraph 2 of that Article, and was ‘necessary in a democratic society’.