Human Rights Comment

Strasbourg

Over the last year, protests have multiplied across the planet, from Chile to Hong-Kong. Europe is not left out of this wave of demonstrations. Protests are taking different forms, from large and repeated demonstrations to the occupation of public places and spontaneous assemblies. The use of social media is also transforming the way assemblies are organised and managed.

The reasons for this increasing mobilisation of protesters across Europe are manifold. They include economic inequalities, decreasing trust in the traditional political elites and institutions, violations of human rights and democratic rules and, in general, the will of entire segments of our societies to be better heard.

Demonstrating is a way for citizens to engage in public debates on societal and political problems. Protecting the right to freedom of peaceful assembly is therefore crucial for the good health of democratic societies. Council of Europe member states have long acknowledged this fact and this right is therefore enshrined in many national constitutions. Moreover, the European Court of Human Rights (the Court) has over the years developed substantial case-law concerning the right to freedom of peaceful assembly, enshrined in Article 11 of the European Convention on Human Rights (ECHR).

However, faced with the multiplication of protests, the authorities in several countries have taken legal and other measures that jeopardise or tend to erode this right. These measures range from harsh policing of demonstrations, and bans on and dispersals of assemblies, to changes in legislation aimed at increasing the possibilities of sanctioning persons organising or participating in peaceful assemblies.

While the ECHR permits restrictions to freedom of peaceful assembly, these should be very limited so as not to infringe on the enjoyment of this important right: they should be prescribed by law, pursue a legitimate aim, such as the prevention of disorder or crime or the protection of the rights and freedoms of others, and be proportionate.

Protecting the right to peaceful assembly irrespective of the message of the protest: an obligation for the authorities

Restrictions to the right to peaceful assembly cannot in principle be based on the substance of the message which the participants of a protest wish to convey, even when it consists of criticism of the authorities, contestation of the established order by peaceful means or views that are unpopular, disturbing, offensive or shocking to others. The right to peaceful assembly is indeed closely connected with the right to freedom of expression. Assemblies aimed at inciting to violence or rejecting democratic principles are the only exception to this principle.

It is the authorities’ obligation to safeguard the right of all persons to express their views freely in the context of public assemblies, and also to protect assemblies against those who want to deny others the right to demonstrate and to make their views heard. For example, the police should effectively protect assemblies against counter-demonstrators whose aim is to prevent or disrupt a demonstration.

A case in point are Pride marches and other demonstrations advocating for the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons, which have in several countries been banned on grounds of morality and public order. Unfortunately, in places where demonstrations have taken place, participants have sometimes been left unprotected while facing attacks by counter-demonstrators and have even been victims of police violence.

In June this year, I urged the Georgian authorities to ensure the safety of participants in the Pride march in Tbilisi, in a context marked by tensions, hate speech and even threats against those involved or supporting the organisation of the event. After being postponed, the event was eventually spontaneously held in July, but on a smaller scale than planned due to the lack of security guarantees. On the other hand, in September 2019, I welcomed the holding, in a peaceful and dignified manner, of the first Pride march in Sarajevo, Bosnia and Herzegovina, despite public calls against the event, including by members of the government.

Peaceful assemblies should not be criminalised

The Court has established that a peaceful demonstration should not, in principle, be rendered subject to the threat of criminal sanctions. However, in some countries, criminal sanctions have been imposed on the organisers or participants of peaceful demonstrations. These sanctions, together with unnecessary or disproportionately harsh penalties imposed for acts committed during assemblies, constitute violations of the right to freedom of assembly.

Last August, I wrote to the Russian authorities to share my serious concerns regarding excessive interferences with the right to hold peaceful assemblies on the occasion of demonstrations held in Moscow, during which more than 1 000 persons were arrested. I note with concern that some of the persons that were arrested have been sentenced to prison terms, some of them for up to 3½ years on grounds of violence against law enforcement officers, reportedly for acts such as throwing empty plastic bottles at heavily-equipped police officers or simply dragging some of them by hand. I am also particularly worried about the imposition of criminal convictions and prison sentences on activists for repeated violations of the rules governing public events, even though they were reportedly not engaged in violent action.

The recent launching of misdemeanour proceedings against demonstrators who, in 2018, protested for several months against the lack of an effective investigation into the death of a 21-year-old man in Republika Srpska, Bosnia and Herzegovina, is another disquieting example. Prosecutions were launched on grounds of “violation of public peace and order” and demonstrations ended up being dispersed and banned.

Imposing harsh sentences on organisers and participants in assemblies can only have a chilling effect that may prevent participants from attending demonstrations in the future.

Thus, in observations I submitted to the Court in 2018, I expressed my serious concerns regarding attempts to criminalise, with retroactive effect, the large demonstrations that took place in Turkey in 2013 (known as “the Gezi events”). I stressed that proceedings launched in connection with these demonstrations were likely to create a climate of fear for the very large number of persons who peacefully participated in these demonstrations and discourage the exercise of the right to peaceful assembly in the country.

Peaceful demonstrations sometimes give rise to acts of violence and vandalism, carried out by groups which often have no link with the other protesters. It is obviously the authorities’ duty to sanction such reprehensible behaviour. However, this does not mean that the demonstration as a whole should automatically be considered as violent. The organisers of these demonstrations, as well as other peaceful participants, cannot be held responsible and sanctioned for such acts of violence. Moreover, the authorities should adopt a narrow definition of behaviour that constitutes violence in the context of demonstrations.

Misuse of notification requirements and other hindrances to the right to peaceful assembly

I am concerned about the misuse, in various countries, of procedures for the notification of demonstrations, resulting in unnotified or unauthorised demonstrations being banned, and organisers and participants being sanctioned. In the Russian Federation, my predecessor deplored, in a Memorandum of 2017, that the notification procedure had become for critics of the government’s policies a de facto obligation to seek authorisation for holding public events. Moreover, holding a public event without prior notification became punishable with administrative detention for up to twenty days. Similarly, I recently objected to the dispersal by the authorities of Azerbaijan of demonstrations which took place in October 2019, on grounds that they had not been authorised. I called on the authorities to apply the notification procedure in compliance with European standards and to refrain from turning it into a system of authorisation.

In France and Spain, new laws on assemblies (see remarks below) toughened the legislation for calling unnotified assemblies.

It is to be recalled that, as highlighted in the Venice Commission and OSCE/ODIHR Guidelines on freedom of peaceful assembly, it is not necessary under international human rights law for legislation to require advance notification of an assembly. Should a notification procedure be in place, it should mainly serve the purpose of facilitating assemblies. In any case, it should never be turned into a de facto authorisation procedure.

Spontaneous, unnotified assemblies, often in response to developments requiring immediate reaction, are also likely to multiply, notably because of the use of social media. They are a way for citizens to express themselves in a timely manner regarding certain events, and should therefore be regarded as a feature of democratic societies. As such, they should be protected in the same way as other assemblies, rather than dispersed and banned.

While states can legitimately impose certain restrictions as regards the use of public space, and thus the location and timing of assemblies, such restrictions should remain proportionate. An example of a clearly disproportionate measure is the power granted to provincial governors in Turkey to indiscriminately ban public assemblies. Although this possibility was introduced during the two-year state of emergency (2016-2018), it has become part of the ordinary legislation and is used frequently and arbitrarily.

In some countries, the authorities also only allow demonstrations in remote places out of the sight of the general public, or block access to demonstrations for the public. These practices, as well as blanket bans on demonstrations in certain places, such as in front of parliaments, government buildings, city centres, etc, seriously hinder the holding of peaceful assemblies.

Additionally, access to websites or social media posts giving information about a demonstration has, in some countries, been restricted. Such practices are likely to infringe on the right to peaceful assembly. As highlighted in Committee of Ministers Recommendation (2016)5 on Internet freedom, the standards established by the Court with regard to peaceful assemblies apply both online and offline, including as regards restrictions to assemblies.

Legislating on assemblies should not restrict the right to peaceful assembly

Several member states have adopted laws that could lead to disproportionate restrictions of the right to freedom of peaceful assembly. Some of these laws turn behaviour which is commonly seen in demonstrations, such as taking pictures of police officers or peaceful resistance to police officers, into offences, for which sanctions can be imposed.

Spain for instance adopted a Law on citizens’ safety in 2015 following a series of large demonstrations in 2011-2013. The law introduces the possibility of imposing administrative sanctions and fines for certain types of behaviour in the context of public assemblies. These include minor disruptions in an assembly or resisting or disobeying police officers. Large fines can also be imposed in case of public disorder occurring in the context of demonstrations carried out in the vicinity of elected bodies, even when they are not in sitting. A substantial number of fines have been imposed since the entry into force of the law. In a letter of November 2018 to the Spanish Parliament, I stressed that the law could have a chilling effect on the right to peaceful assembly.

In March 2019, France also amended its legislation as a reaction to the “yellow vests” protest movement. In my Memorandum of February 2019 on maintaining public order and freedom of assembly in the context of the “Yellow vests” movement, I expressed concerns about the then bill (adopted as a law in April 2019), whose provisions may have a deterrent effect on the exercise of the right to peaceful assembly. The law notably provides for more severe punishments for offences already prohibited by the Criminal Code, such as intentionally hiding one’s face in the context of a demonstration “without a legitimate reason”. While understanding the desire of the authorities to make it possible to identify perpetrators of violence, re-categorising this offence as a more serious offence makes it possible to take persons covered by this measure into police custody, thereby possibly preventing them from participating in an assembly.

It is also important to avoid adopting legislation that can have a discriminatory impact on the enjoyment of the right to peaceful assembly by treating assemblies differently depending on their conveners. In 2016, my Office criticised amendments to the Polish legislation giving priority to gatherings organised by public authorities, churches and religious organisations, and to so-called “recurrent assemblies” – those that take place on a regular basis – as being to the possible detriment of the right of others to organise assemblies.

Moreover, legislation regulating the right to peaceful assembly sometimes uses vague and imprecise wording, thus giving a wide margin of discretion to law enforcement officials when it comes to implementation, and increasing the risks of arbitrary restrictions to this right.

The need for human rights compliant policing of demonstrations

The excessive use of force in the policing of demonstrations has been a long-standing concern of my Office. In recent months, I have raised questions about the use of force in policing of demonstrations in several countries, including Azerbaijan, France, Georgia, Russia and Spain.

While policing demonstrations is in some places an increasingly challenging task, it is the duty of the police to facilitate demonstrations, while ensuring adequate protection of demonstrators and containing possible disorders. In order to fulfil these missions, the police should apply the principles of restraint, proportionality, minimisation of damage and preservation of life.

Unfortunately, many instances of disproportionate use of force against peaceful demonstrators continue to be reported across Europe, including beating of demonstrators and using techniques of crowd containment which can put their safety at risk.

Moreover, in a large number of countries, the police are increasingly using less-lethal weapons, such as batons, tear gas, hand-held sting grenades, electroshock weapons, water cannons and rubber bullets, to control or disperse crowds of demonstrators. I believe that some of these weapons are unsuitable for the purposes of maintaining public order because of their indiscriminate effect and the danger they present for the safety of peaceful demonstrators. The number of persons seriously wounded in demonstrations in recent years as a result of the use of rubber bullets is particularly striking. Additionally, the use of such weapons does not contribute to de-escalating tensions, which should be a major objective of policing of demonstrations.

I also find it worrying that journalists and independent human rights observers have experienced harassment and violence during demonstrations, either from demonstrators or police officers. It is crucial to guarantee the safety of journalists during demonstrations so that they can perform their duties properly.

How to safeguard freedom of peaceful assembly?

Laws and practices on assemblies need to adapt to a rapidly changing environment. However, they should always abide by international human rights standards on freedom of assembly and policing of demonstrations. Facilitating assemblies and allowing peaceful demonstrators to express their views freely are core obligations of the authorities, which should remain at the heart of any regulation of the right to peaceful assembly.

Accessible, transparent and swift remedies should be available against measures disproportionately or arbitrarily restricting freedom of assembly, such as misusing the notification procedure and imposing bans.

The policing of demonstrations should be based on communication and collaboration with the organisers and participants in demonstrations and approaches aimed at de-escalating tensions. The use in several member states of police liaison teams embedded in demonstrations in order to anticipate possible problems, maintain dialogue with demonstrators and minimise disruptions is a good example of a de-escalation approach. The authorities should ensure that police officers operating in the context of demonstrations receive specialised training both on the negotiated management of assemblies and on the proportionate use of force in this context. Human rights compliant policing of demonstrations also requires that police officers be provided with substantial human rights training.

Member states should make a thorough assessment of the dangers posed by the use of less-lethal weapons in the context of assemblies. In doing so, they can base themselves on the Venice Commission and OSCE/ODIHR Guidelines on freedom of peaceful assembly, the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the 2019 UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement.

Impunity for excessive use of force by the police should never be tolerated. This is crucial to strengthen or restore the population’s trust in law enforcement. Therefore, all allegations of police misconduct in the context of demonstrations must be adequately investigated and sanctioned. This implies that police officers operating in demonstrations are clearly identified, through visible numbers or name tags. The setting up of independent police complaint mechanisms is a useful tool to promote accountability of law enforcement.

Last but not least, respect for the economic and social rights of law enforcement officers is a key factor in reducing the risk of misconduct and excessive use of force. They should be paid a sufficient salary and granted periods of rest and recuperation along with appropriate psychological support.

Protests of different kinds are not likely to disappear. While they can generate disorder and disruptions of public order, they also attest to the willingness of citizens to engage in public affairs and express their views through peaceful means. Repressing them means limiting democratic space and the resilience of societies to deal with problems.

Dunja Mijatović

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