Everyone in Europe has the right to freedom of expression, assembly and association, protected by Articles 9 to 11 of the European Convention on Human Rights. However, the same Convention also protects the right to property (in Article 1 of Protocol 1). There is therefore a difficult issue to be resolved when protestors want to demonstrate on private land but the land-owners want them gone.
This is the situation for the Occupy London protestors at the moment. Indeed, the very future of the camp is under threat: rumours abound of an eviction notice already handed down, and the Corporation of the City of London is seeking long-term legal action which could last until spring next year. It is therefore vital that the protestors know their legal situation if they are to successfully survive the legal assault being brought against them.
Like in any conflict of rights, the two competing claims of protest rights and property rights must be balanced out. How this will be done is unique to each individual case, but the European Court of Human Rights has offered guidance on this issue in the case of Appleby v UK from 2003.
That case differs from the present predicament of Occupy London in several ways. Firstly, it concerns the right to collect signatures for a petition in a privately owned shopping mall, rather than the right to camp outside a privately owned cathedral. Secondly, the mall in question had been built on land originally owned by the State and subsequently sold to a private company; this was central to the protestors' argument, as they claimed that the State was directly responsible for the violation of their rights as it was the State which had sold the land to a private company, leading directly to the interference with the protestors' freedom of expression.
Yet the principles enunciated in the Appleby case will be the same for all cases, including Occupy London. In reaching a judgement, although eventually finding in favour of the privately owned mall, the European Court admitted that, in the right circumstances, there may possibly be a positive obligation on the government to limit property rights in order to allow the exercise of protest rights.
Whether the government has this obligation depends entirely on the facts of the case. In Appleby, the company's property rights trumped the protestors' free expression rights as it was relatively easy for the protestors to go elsewhere and continue their demonstration. If the Occupy London camp could just as easily move elsewhere and continue their protest, then the European Convention of Human Rights may offer very little protection from an eviction order.
The task is always to find a balance between the Occupiers' right to protest and the Cathedral's right to deal with its property as it wishes. It should be noted that the bar was set quite high in interpreting this balance. The Court judged that there would only be a positive obligation on the government to interfere with property rights if "the bar on access to property had the effect of preventing any effective exercise of freedom of expression", and even then this would not justify an "impossible or disproportionate burden" on the authorities. They further emphasised that there was no automatic right to enter private, or even publicly-owned, property.
This puts Occupy London in a difficult position. Unless they can demonstrate that evicting them would effectively end the demonstration as they would have nowhere else to go, it is likely that if the issue came to court, the judges would find in favour of the Cathedral's property rights rather than the Occupiers' protest rights.
However, this would never justify a forceful or violent eviction. International Human Rights Law forbids that, and in European Human Rights Law the authorities would only ever be justified in taking "proportionate" measures to evict- that being, the least violent or intrusive measures required.
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