CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 2 mars 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s9AA0C774 { width:151.77pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 23896/21 Ruth GOZALBO MOLINER against Spain   The European Court of Human Rights (Fifth Section), sitting on 2   March   2023 as a Committee composed of:   Carlo Ranzoni , President ,   Lado Chanturia,   María Elósegui , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   23896/21) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26   April   2021 by a Spanish national, Ms Ruth Gozalbo Moliner (“the applicant”), who was born in 1983, lives in Barcelona and was represented by Mr   B.   Salellas   I   Vilar, a lawyer practising in Girona; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s criminal conviction for preventing the lawful exercise of freedom of assembly or seriously disturbing the proceedings of a lawful assembly or demonstration. The   applicant complained of a violation of Articles   10 and   11 of the Convention, claiming that she had been convicted for an assembly carried out in the legitimate exercise of her rights to freedom of assembly and freedom of expression. She further alleged that she had been convicted by the appellate court without a hearing, in violation of Article   6   §   1, and that she had no possibility to appeal her conviction, in violation of Article   2 of Protocol   no.   7. 2.     On 21   March 2013 a group of students, including the applicant, forced a door open on the premises of the Faculty of Law of the University of Barcelona and interrupted a round table on the university model which had been organised by a private association. The protesters read out a manifesto using a megaphone, shouted and whistled. They refused to leave the premises, so the university authorities agreed with the organisers to suspend the round table in order to avoid a greater risk. The protesters’ actions did not cause harm to any person or damage to any property. 3.     On 3 August 2018 Barcelona Criminal Court no.   16 found the applicant guilty of the minor offence of coercion ( falta de coacciones ), which was time ‑ barred, as it had been committed more than six months earlier. It found that the applicant had not committed the criminal offence of coercion ( delito   de coacciones ), as her conduct had not reached the required threshold of violence, and that her actions did not constitute the criminal offence of preventing or disturbing the lawful exercise of freedom of assembly ( delito de impedimento o perturbación del ejercicio de la libertad de reunión ), given that the organisers and participants of the round table had agreed to suspend their assembly. 4.     Both the public prosecutor and the private prosecutor appealed against the first ‑ instance judgment. 5.     On 28   December 2018 the Barcelona Audiencia Provincial , without holding a hearing, quashed the first-instance judgment, found the applicant guilty of the criminal offence of disturbing the lawful exercise of freedom of assembly and imposed a fine on her in the amount of 1,050   euros. 6.     The offence in question is provided for in Article   514   §   4 of the Spanish Criminal Code, which reads as follows: “Persons who prevent the lawful exercise of freedom to assemble or demonstrate, or who seriously disturb the proceedings of a lawful assembly or demonstration, shall be punished by a sentence of imprisonment of between two and three years if the acts were perpetrated with violence, and by a sentence of imprisonment of between three and six months or a fine [under the day-fine system] amounting to between six to twelve months if committed by illegal means [ vías de hecho ] or any other unlawful procedure.” 7.     The Audiencia Provincial stated that Article   514   §   4 of the Criminal Code was applicable to acts which prevented attendees of a meeting from legally exercising their freedom of assembly or which seriously disturbed them during such exercise, regardless of whether violence had been used, and found that the acts of breaking into a closed room by forcing a door open and interrupting a meeting fell within its ambit. 8.     The applicant filed a plea of nullity with the Audiencia Provincial , alleging that she had been convicted on appeal without having been heard. The Audiencia Provincial found that she had not been acquitted at first instance and that the judgment on appeal had merely modified the legal classification of the facts. Her complaints regarding the interpretation of Article   514   §   4 of the Criminal Code and the exercise of her right to freedom of expression and freedom of assembly had been declared inadmissible, as they had already been addressed in its judgment. 9.     The Constitutional Court declared the amparo appeal inadmissible on the grounds that the applicant had not duly justified the constitutional relevance of the case. 10.     The applicant complained of a violation of her right to a public hearing (Article   6   §   1), her right of appeal in criminal matters (Article   2 of Protocol   No.   7), her right to freedom of expression (Article   10) and her right to freedom of assembly (Article   11). THE COURT’S ASSESSMENT Complaints under Article   6   §   1 of the Convention 11.     The applicant complained under Article   6   §   1 of the Convention that she had been sentenced by the appellate court ( Audiencia Provincial ) without a hearing. She alleged that the appellate court had implicitly modified and reassessed the facts established by the first ‑ instance court. 12.     The Court observes that the Audiencia Provincial dispensed with a hearing and provided its own legal assessment of the facts already established by the first-instance court. It held, contrary to the first ‑ instance court’s conclusion, that the offence of preventing the lawful exercise of freedom of assembly of others did not necessarily require the use of violence or a high level of intensity of conduct, given that, under Article   514   §   4 of the Criminal Code, the offence could be committed by illegal means or any other unlawful procedure. The Audiencia Provincial considered that the applicant’s actions, as established by the first ‑ instance court, met the criteria of the criminal offence under Article   514   §   4 of the Criminal Code. 13.     The Court is satisfied that the appellate court provided a legal interpretation of the above-mentioned provision which differed from that given by the lower court, and did not carry out a fresh assessment of the facts established at first instance (see Bazo González v.   Spain , no.   30643/04, §   36, 16   December   2008). The Court is further satisfied that the proceedings against the applicant were adversarial, given that the applicant had an opportunity to present her version of the events orally before the first ‑ instance court and to supply written observations in response to those of the public and private prosecutors (ibid., §   37). 14.     Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and   4 of the   Convention. Complaint under Article 2 of Protocol No. 7 to the Convention 15.     The applicant further complained under Article   2 of Protocol   No.   7 that, as she had been convicted on appeal, she had not been given an opportunity to appeal against her conviction. 16.   The Court observes that the applicant was found guilty of a minor offence by Barcelona Criminal Court no.   16 and subsequently found guilty of a more serious offence by the Audiencia Provincial . As observed in paragraph   13 above, the proceedings before the appellate court were adversarial and the Audiencia Provincial issued a motivated decision (see   Borcea v.   Romania (dec.), no.   55959/14, §   50). The applicant’s criminal responsibility was thus examined by a higher court, as required by Article   2 of Protocol   No.   7. The Court notes in this connection that neither this Article nor any other provision of the Convention or its Protocols guarantees the right to have a case examined by three levels of jurisdiction (ibid.). 17.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and   4 of the   Convention. Complaints under Articles 10 and 11 of the Convention 18.     The applicant complained under Articles   10 and   11 of the   Convention that the proceedings that had led to her conviction for a criminal offence and the fine imposed on her had had a chilling effect on her freedom of expression and assembly. She argued that the Audiencia Provincial had interpreted Article   514   §   4 of the Criminal Code too broadly and that she had not behaved violently when expressing her opinion regarding the increase of tuition fees. 19.     The Court considers that in the circumstances of the case the complaint should be examined under Article 11 alone, in the light of Article   10 (see Ekrem Can and Others v.   Turkey , no.   0613/10, §   68, 8   March   2022). 20.     The guarantees of Article   11 apply to all gatherings except those where the organisers and participants have violent intentions, incite violence or otherwise reject the foundations of a democratic society (see   Kudrevičius   and   Others v.   Lithuania [GC], no.   37553/05, §   92, ECHR   2015). Nothing in the case file suggests that the gathering in which the   applicant participated was not intended to be peaceful or that the organisers had violent intentions, that the applicant had violent intentions when joining the gathering, or that the applicant inflicted bodily harm on anyone (see Gülcü v.   Turkey , no.   17526/10, §   97, 19   January   2016, and Shmorgunov   and   Others v.   Ukraine , nos.   15367/14 and 13 others, §   491, 21   January   2021). The   Court thus readily accepts that the criminal proceedings against the applicant and the fine imposed in those proceedings amounted to an interference with the right enshrined in Article 11 of the   Convention (see Kudrevičius and Others , cited above, §   100). 21.     The interference in question was based on Article   514   §   4 of the   Spanish   Criminal   Code and thus had a legal basis in domestic law. The   applicant disagreed with the interpretation of this provision, arguing in particular that participating in a round table could not be considered an exercise of freedom of assembly. However, the interpretation of the   Audiencia Provincial cannot be considered arbitrary or unpredictable (ibid., §   114). The applicant could have foreseen, to a degree reasonable in the circumstances, that her interrupting the round table could have been deemed to amount to the offence of preventing the lawful exercise of freedom of assembly or seriously disturbing the proceedings of a lawful assembly, attracting the application of Article   514 §   4 of the Criminal Code. The   Court is therefore satisfied that the interference with the applicant’s right to freedom of assembly was “prescribed by law”. 22.     Since the interference was aimed at protecting the rights of others, specifically the right to freedom of assembly of the participants of the round table, it pursued a legitimate aim within the meaning of Article   11   §   2 of the   Convention. 23.     In examining the necessity of the impugned interference with the right to freedom of assembly in the present case, the Court will examine, on the basis of the relevant principles summarised in   Kudrevičius   and Others   (cited above, §§   142-60), whether the measures taken against the applicant were proportionate to the legitimate aim pursued. 24.     The Court emphasises that the structuring of a demonstration, or of part of it, in a way that causes disruption to other activities to a degree exceeding that which is inevitable in the circumstances constitutes conduct which cannot enjoy the same privileged protection as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters. On the contrary, States enjoy a wide margin of appreciation in their assessment of the necessity in taking measures to restrict such conduct (ibid., §   156). Furthermore, the intentional serious disruption by demonstrators of activities lawfully carried out by others might be considered a “reprehensible act” and might justify the imposition of penalties, even of a criminal nature (ibid., §   173). 25.     The Court considers in the circumstances of the present case that the   applicant, together with other students, engaged in a “reprehensible act” because, after forcing a door open and disrupting the round table, they remained in the room, making it impossible for the participants to continue their meeting. 26.     The Court is satisfied that the domestic authorities struck a fair balance between the legitimate aim of the protection of the rights and freedoms of others and the requirements of freedom of assembly. They based their decisions on an acceptable assessment of the facts and on reasons which were relevant and sufficient. Thus, they did not overstep their margin of appreciation in relation to the subject matter (ibid., §   182). The fine imposed on the applicant, even if of a criminal nature, was not disproportionate to the legitimate aim pursued. 27.     In the light of the above, it follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and 4   of the   Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 March 2023.     Martina Keller   Carlo Ranzoni   Deputy Registrar   President