Ohter – Fundamental Rights

Judicial Interaction Techniques

Městský soud v Praze

Municipal Court Prague

14 A 166/2023‑84

18.12.2023

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Freedom of Assembly – Banning protest rally – From the River to the Sea

Can a protest with the slogan "From the River to the Sea" be banned as denying and restricting the personal and political rights of persons on account of their nationality, origin, political opinion and religion?

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Art. 17; art. 19(2) of the (Czech) Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod)

The applicant wanted to hold a protest in front of the Ministry of Interior with the slogan "From the river to the sea, Palestine will be free". The stated intention was to show, in the non-violent original form of the slogan, support for equality, freedom and justice for all people living from the Jordan River to the Mediterranean Sea.
The Municipality of Prague banned the protest on the grounds that it was calling for the denial and restriction of the personal and political rights of people on the basis of their nationality, origin, political opinion and religion. The Municipality considered that the main meaning of the slogan was to call for an end not only to Jewish sovereignty but also to Jewish ethnicity in the region by any means, including violence, as demonstrated by the Hamas terrorist attacks of 7 October.
Disagreeing with the decision to ban the protest, the applicant challenged the decision.

In reviewing the decision, the Municipal Court first emphasised the importance of freedom of expression and the right to peaceful assembly, referring to national and international case law. According to ECtHR jurisprudence, it is possible to disseminate ideas that are disturbing, hurtful or shocking. The majority must be able to work with the minority opinion, and any restrictions on the right of assembly must be considered with the utmost caution. On the other hand, the State has a duty to defend itself and the society it represents by appropriate means against destructive attacks by those movements and individuals who deny and challenge fundamental democratic values.
The Court divided its assessment of the case into two parts. First, the court considered the slogan "From the river to the sea, Palestine will be free" and its meaning. On the one hand, the court acknowledged that the slogan and its variants are used by various extremist groups or Hamas and are widely condemned by academics. On the other hand, the court criticised the work of the Municipality's evidence - it quoted some information from an academic article out of context and used an article written in Arabic writing by Al-Jazeera without any translation and proof that everyone understood it. As the evaluation of the slogan was beyond the expertise of the Court, an expert report was drawn up. The expert concluded that up to five different meanings of the slogan could be identified, but that only two of them were clearly linked to calls for violence or genocide against Jews. Although it is not always possible to determine with a high degree of precision the intention of the speaker of the slogan, the expert concluded that a more moderate meaning of the slogan prevails in the Czech Republic. The Court then used comparative reasoning with decisions from Germany, France and the Netherlands to conclude that European courts were not unanimous in their assessment of the slogan, but that the prevailing view was that it could not be perceived in such a negative way as to justify restricting freedom of expression or the right of assembly.
The second part concerned an assessment of the context in which the slogan was to be used. The Court explained that, since the meaning of the slogan was not generally straightforward, the defendant could not mechanically prohibit a meeting which sought to support the slogan in its non-violent meaning. In doing so, it impermissibly attributed to the applicant the characteristic of supporting a radical solution to which it was opposed. The fact that Hamas, which recently perpetrated a despicable terrorist attack in Israel, uses part of the slogan certainly adds to the meaning and context of the slogan. However, it cannot be concluded that Hamas has permanently 'hijacked' the slogan, or that the slogan does not and cannot have any meaning after 7 October 2023 other than that in which Hamas uses it. The Court also noted that the organiser of the protest is not an extremist or linked to a radical milieu. At the same time, the rally was to be held in front of the building of the authority that announced the change in the state's approach to the slogan, and there is nothing to suggest that there could be an imminent threat to the Jewish community at that location. It should also be noted that previous pro-Palestinian rallies in the Czech Republic have been peaceful and non-radicalised, which tends to indicate that the slogan was used in a moderate manner.
The Court therefore found that the rally had been unlawfully banned. It therefore overturned the municipality's decision and concluded that the rally could take place.

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The Municipal Court relies on the case law of the ECtHR and the Constitutional Court to establish the general limits of freedom of expression and assembly and the issues to be taken into account when banning an assembly.
The Municipal Court also refers to the case law of the Supreme Administrative Court on some procedural aspects.

This case was the first of its kind in the Czech Republic, so the use of foreign case law was to provide a broader legal grounding for the decision. The human rights jurisprudence was then used to provide a consistent interpretation of the legal norms on assemblies.

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Ondřej Kadlec, Šimon Chvojka, Masaryk University

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