4.5.1 Limitation or banning of assemblies/ gatherings/public demonstrations (ICCPR art 21)
Condensed entry: Everyone has the right to peaceful assembly. Assemblies include meetings, both private and public, gatherings, demonstrations and other forms of public procession for any purpose including political objectives. Assemblies that are violent or have violent intentions are not protected. The right to peaceful assembly may be restricted based on a law to the extent necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. These are the only grounds that may justify restrictions and should be construed narrowly. The mere risk of disorder is not sufficient to ban a demonstration. Legal requirements that organizers need to notify the authorities of the intention to demonstrate in a public place sometime before the demonstration do not constitute a violation of the freedom of assembly. The dispersal of a peaceful assembly will not be justified simply because it is unlawful.
Comment: While the legal requirements that organizers need to notify the authorities of the intention to demonstrate in a public place sometime before the demonstration do not constitute a violation of the freedom of assembly, but, it limits the exercise of this right and give a legal backgroung to authorities to disperse a peaceful demonstration. In fact, it is not the notificaiton that creates problem, but the authorization that organizers have to receive before organizing the demonstrations. I think this is a clear violation of the right of assembly. Comprehensive entry: Article 21 of the ICCPR provides:[1] The right to peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Assemblies cover both private meetings and meetings in public;[2] and both static meetings and public processions or demonstrations (assemblies in motion) for any purpose.[3] The freedom protects both active participants in meetings or public procession and those who organize it.[4] The existence or non-existence of assemblies is a question of fact to be determined in each case.[5] Assemblies that are violent or have violent or obstructive intentions or effect are not protected[6] but inconvenience to others will not deprive an assembly of protection.[7] The right to peaceful assembly may be restricted based on law to the extent necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. These are the only grounds that may justify restrictions. A legal norm can constitute a ‘law’ only if it is formulated with sufficient precision to enable a citizen to foresee, to a reasonable degree, the consequences which a given action could entail.[8] A legal requirement that organizers of meetings or demonstrators need to notify the intention to demonstrate in a public place sometime before the demonstration may be justifiable.[9] Such requirements may be necessary to arrange the necessary safety measures for the demonstrators and to ensure the peaceful nature of the meeting or procession. However, banning of an assembly may violate the right to assembly if no legal remedy exists to challenge any refusal of permission or the ban before the assembly is due to be held.[10] A total ban on assemblies in public or private for a political purpose will not be justified,[11] but more specific bans and refusals of permission must also be shown to be necessary for one or more of the reasons listed above. In Alekseyev v Russia,[12]the applicants had on several occasions submitted a notice to the mayor of Moscow stating the date, time and route of a Gay Pride Parade. The Mayor’s office however refused permission noting that ‘numerous petitions had been brought against the march by representatives of legislative and executive State bodies, religious denominations, Cossack elders and other individuals; the march was therefore likely to cause a negative reaction and protests against the participants, which could turn into civil disorder and mass riots’. The ECtHR ruled that the ban was not necessary in a democratic society founded on pluralism, broadmindedness, and ‘harmonious interaction of persons and groups with varied identities’.[13]The Court noted that ‘the mere existence of a risk is insufficient for banning the event: in making their assessment the authorities must produce concrete estimates of the potential scale of disturbance in order to evaluate the resources necessary for neutralising the threat of violent clashes’.[14] Furthermore a minority should not be prevented from assembling in order to avoid discontent on the part of the majority.[15] The right to counter-demonstrate may not extend to inhibiting the right to demonstrate of others. The ECtHR has held that the criminalization of acts of preventing or disrupting a meeting was an appropriate and reasonable measure. Furthermore there is a positive obligation to take reasonable and appropriate measures to prevent such disruption from occurring.[16] On the other hand, unconditional wholesale banning of counter-demonstrations constitutes a violation of freedom of assembly.[17] The dispersal of a peaceful assembly will not be justified simply because it is unlawful.[18] (See *excessive or disproportionate use of force*).
[1] See also ACHPR art 11, ACHR art 15, ECHR art 11. [2]Rassemblement Jurassien & UnitéJurassien v Switzerland application 8191/78 (ECmHR 1979) DR 17, 93 119 para 3. [3] Christians against Racism and Fascism v United Kingdom application 8440/78 (ECmHR 1980) DR 21, 138 148 para 4. [4]Christians against Racism and Fascism v United Kingdom para 4. [5]Kivenmaa v Finland communication 412/1990 (HRC 1994)para 9.2. [6] G v Germany application 13079/87(ECmHR 1989). [7]Oya Ataman v Turkey application 74552/01 (ECtHR 2006). [8]Ezelin v France application 21/1990 (ECtHR 1991) para 45. [9]Kivenmaa v Finland para 9.2. [10]Baczkowski v Poland application 1543/06 (ECtHR 2007). [11] Amnesty International and Others v Sudan communications 48/90, 50/91, 52/91, 89/93 (ACHPR 1999) para 82. [12] Alekseyev v Russia applications 4916/07, 25924/08 and 14599/09 (EtCHR 2010). [13] Alekseyev v Russia paras 69 & 70. [14] Alekseyev v Russia para 75. [15]Barankevich v Russia application 10519/03 (ECtHR 2007). [16]United Macedonian Organization Ilinden and Ivanov v Bulgaria application 44079/98 (ECtHR 2005). [17] Öllinger v Austria application 76900/01 (ECtHR 2006) para 47. [18]Oya Ataman v Turkey.
Condensed entry:
Everyone has the right to peaceful assembly. Assemblies include meetings, both private and public, gatherings, demonstrations and other forms of public procession for any purpose including political objectives. Assemblies that are violent or have violent intentions are not protected. The right to peaceful assembly may be restricted based on a law to the extent necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. These are the only grounds that may justify restrictions and should be construed narrowly.
The mere risk of disorder is not sufficient to ban a demonstration. Legal requirements that organizers need to notify the authorities of the intention to demonstrate in a public place sometime before the demonstration do not constitute a violation of the freedom of assembly. The dispersal of a peaceful assembly will not be justified simply because it is unlawful.
Comment: While the legal requirements that organizers need to notify the authorities of the intention to demonstrate in a public place sometime before the demonstration do not constitute a violation of the freedom of assembly, but, it limits the exercise of this right and give a legal backgroung to authorities to disperse a peaceful demonstration. In fact, it is not the notificaiton that creates problem, but the authorization that organizers have to receive before organizing the demonstrations. I think this is a clear violation of the right of assembly.
Comprehensive entry:
Article 21 of the ICCPR provides:[1]
The right to peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Assemblies cover both private meetings and meetings in public;[2] and both static meetings and public processions or demonstrations (assemblies in motion) for any purpose.[3] The freedom protects both active participants in meetings or public procession and those who organize it.[4] The existence or non-existence of assemblies is a question of fact to be determined in each case.[5] Assemblies that are violent or have violent or obstructive intentions or effect are not protected[6] but inconvenience to others will not deprive an assembly of protection.[7]
The right to peaceful assembly may be restricted based on law to the extent necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. These are the only grounds that may justify restrictions. A legal norm can constitute a ‘law’ only if it is formulated with sufficient precision to enable a citizen to foresee, to a reasonable degree, the consequences which a given action could entail.[8]
A legal requirement that organizers of meetings or demonstrators need to notify the intention to demonstrate in a public place sometime before the demonstration may be justifiable.[9] Such requirements may be necessary to arrange the necessary safety measures for the demonstrators and to ensure the peaceful nature of the meeting or procession. However, banning of an assembly may violate the right to assembly if no legal remedy exists to challenge any refusal of permission or the ban before the assembly is due to be held.[10]
A total ban on assemblies in public or private for a political purpose will not be justified,[11] but more specific bans and refusals of permission must also be shown to be necessary for one or more of the reasons listed above. In Alekseyev v Russia,[12]the applicants had on several occasions submitted a notice to the mayor of Moscow stating the date, time and route of a Gay Pride Parade. The Mayor’s office however refused permission noting that ‘numerous petitions had been brought against the march by representatives of legislative and executive State bodies, religious denominations, Cossack elders and other individuals; the march was therefore likely to cause a negative reaction and protests against the participants, which could turn into civil disorder and mass riots’. The ECtHR ruled that the ban was not necessary in a democratic society founded on pluralism, broadmindedness, and ‘harmonious interaction of persons and groups with varied identities’.[13]The Court noted that ‘the mere existence of a risk is insufficient for banning the event: in making their assessment the authorities must produce concrete estimates of the potential scale of disturbance in order to evaluate the resources necessary for neutralising the threat of violent clashes’.[14] Furthermore a minority should not be prevented from assembling in order to avoid discontent on the part of the majority.[15]
The right to counter-demonstrate may not extend to inhibiting the right to demonstrate of others. The ECtHR has held that the criminalization of acts of preventing or disrupting a meeting was an appropriate and reasonable measure. Furthermore there is a positive obligation to take reasonable and appropriate measures to prevent such disruption from occurring.[16] On the other hand, unconditional wholesale banning of counter-demonstrations constitutes a violation of freedom of assembly.[17]
The dispersal of a peaceful assembly will not be justified simply because it is unlawful.[18] (See *excessive or disproportionate use of force*).
[1] See also ACHPR art 11, ACHR art 15, ECHR art 11.
[2]Rassemblement Jurassien & UnitéJurassien v Switzerland application 8191/78 (ECmHR 1979) DR 17, 93 119 para 3.
[3] Christians against Racism and Fascism v United Kingdom application 8440/78 (ECmHR 1980) DR 21, 138 148 para 4.
[4] Christians against Racism and Fascism v United Kingdom para 4.
[5]Kivenmaa v Finland communication 412/1990 (HRC 1994)para 9.2.
[6] G v Germany application 13079/87(ECmHR 1989).
[7] Oya Ataman v Turkey application 74552/01 (ECtHR 2006).
[8]Ezelin v France application 21/1990 (ECtHR 1991) para 45.
[9]Kivenmaa v Finland para 9.2.
[10] Baczkowski v Poland application 1543/06 (ECtHR 2007).
[11] Amnesty International and Others v Sudan communications 48/90, 50/91, 52/91, 89/93 (ACHPR 1999) para 82.
[12] Alekseyev v Russia applications 4916/07, 25924/08 and 14599/09 (EtCHR 2010).
[13] Alekseyev v Russia paras 69 & 70.
[14] Alekseyev v Russia para 75.
[15] Barankevich v Russia application 10519/03 (ECtHR 2007).
[16]United Macedonian Organization Ilinden and Ivanov v Bulgaria application 44079/98 (ECtHR 2005).
[17] Öllinger v Austria application 76900/01 (ECtHR 2006) para 47.
[18] Oya Ataman v Turkey.