Yassin Conference – Freedom of Peaceful Assembly
Freedom of Peaceful Assembly
The OSCE ODIHR Guidelines and Emerging Good Practice
Neil Jarman
Institute for Conflict Research
March 2009
Freedom of peaceful assembly is one of the fundamental human freedoms and as such is included in each of the international human rights instruments that focus on civil and political rights. Freedom of peaceful assembly is particularly important insofar as the right to assemble, demonstrate, picket, rally, march and protest is an important aspect of all democratic societies. Freedom of peaceful assembly is associated with the right to challenge the dominant views within society, present alternative ideas and opinions, promote the interests and views of minority groups and sections of society, and provide an opportunity for expression of views and opinions in public for those with less power, wealth and status. Public assemblies may be particularly important and prominent at times of wider political tensions or at times of demand for social change. Demonstrations and protests are often factors in variety of political or oppositional campaigns. Assemblies are always important aspects of election campaigns, and often they have also been prominent in the post election period if the results are contested, for example in Kenya in December 2007 and in Armenia in February 2008. But they can also be an important aspect of demands for change in less democratic contexts, for example public protests played an important role in helping to end the Apartheid regime in South Africa in the late 1980s and early 1990s; and also in bringing to an end the Soviet Union and its dominance in eastern Europe over the same period. While more recently public protests were a factor in the resignation of the governments in Iceland and Latvia in the winter of 2008-2009 as people voiced there opposition to the governments handling of the economic crisis. Demonstrations may also be important strategies during a process of political change, as for example during the Northern Ireland peace process from 1995 onwards, when inter-ethnic rivalries led to frequent outbreaks of violence associated with public assemblies. But the mobilisation of people in a public assembly is most often simply a means of trying to influence government or reflect international opinion, to vent opinion without aiming to overthrow an existing regime, for example the massive mobilisations in many countries of the world against the war in Iraq in 2003 or the protests against the Chinese Olympic torch relay in early 2008.
Because assemblies take place in public spaces and because they are used by diverse organisations, groups and people they are very visible indicators of the levels of tolerance and respect that is given to different political, social and cultural views, practices and beliefs. The way that assemblies are treated is thus a clear indication of the respect that any individual state is willing to pay to uphold people’s basic human rights. While many fundamental human rights are restricted or abused by the state at various times, most such abuses take place in private, or in less public circumstances: for example in police cells, or through bureaucratic restraints. However, restrictions on freedom of peaceful assembly very often take place in a very visible manner, they impact on a large number of people at the same time and they are often widely reported in the media. Such restrictions thus all too readily convey a repressive or controlling attitude of a state towards its citizens and a cynical or hostile attitude towards human rights in general. The overt repression of assemblies may also in turn provoke an immediate and public response, which may lead to a spiralling cycle of protest, repression and violence. This is not to argue that freedom of peaceful assembly is more important than other human rights, rather simply that its abuse is often more visible, and is often experienced by a wide range of members of society in a very immediate and often physical manner.
This paper provides an overview of some key issues and recent developments related to freedom of peaceful assembly within the wider region of Europe and Central Asia. It begins by outlining some of the problems associated with public assemblies within Europe and the countries of the former Soviet Union that occurred during 2007, this was not a particularly problematic or notable year for freedom of assembly as similar incidents and issues could have been noted in many previous years, but rather serves to illustrate the impact of freedom of assembly across a wide range of countries. The paper then describes a project initiated by the Office of Democratic Institutions and Human Rights, within the Organisation of Security and Co-operation in Europe, to identify and outline a set of basic guidelines related to law and practice related to freedom of peaceful assembly. Finally, it briefly considers some recent developments that illustrate the dynamic impact of assemblies and protests, before highlighting some elements of best practice that have been established across many parts of the OSCE region and highlighting in particular an ODIHR training project designed to build capacity among human rights defenders to monitor standards and practices related to freedom of assembly.
Protests and Disorder
The problems that can occur when governments, local authorities, the police or other officials attempt to restrict freedom of assembly are evident from a scant review of the media. The following is a list of public assemblies that resulted in prohibition or violence in a range of OSCE participating states and which were reported in the UK media during 2007.
· Belarus: There were clashes at a rally in Minsk to mark the anniversary of the 1918 Belarussian Republic as protesters tried to get through a police cordon (25 March 2007).
· Belgium: The Mayor of Brussels prohibited a march against Islam on the anniversary of 9.11. The police also clashed with around 200 far right anti-Islamic protesters on 11 September as they attempted to mark the anniversary (30 August 2007).
· Czech Republic: A neo-Nazi march through the old Jewish quarter of Prague was banned, and there were disturbances as far right attempted to hold their demonstration (10 November 2007).
· Denmark: Police clashed with young protesters in Copenhagen who were objecting to the demolition of youth centre (1 March 2007). There was further violence in the city on the six-month anniversary of the initial trouble (2 September 2007).
· Estonia: Police used tear gas to disperse protests by ethnic Russians against plans to move a Red Army memorial in Tallinn (26-29 April 2007).
· Georgia: The police used rubber bullets, tear gas and water cannon to break up against protests against the government in Tbilisi after six days of demonstrations (7 November 2007). The government also introduced a state of emergency.
· Germany: Police in Hamburg used water cannon and batons in fights with anti-globalisation protesters who threw bottles and stones in return (29 May 2007). A few days later there was violence in Rostok at anti-globalisation protests, in which the police used tear gas and batons (2 June 2007).
· Hungary: There was violence in Budapest after the police blocked far-right demonstration marching to a venue where the Prime Minister was giving speech. Police used tear gas and water cannon; while the protesters used petrol bombs (23 October 2007).
· Kyrgyzstan: Police in Bishkek used tear gas and batons to disperse anti-government protests and to clear a week-long tent camp in front of the President’s office (19 April 2007).
· Lithuania: The Mayor of Vilnius banned a Lesbian, Gay and Transsexual rally citing safety concerns due to building works (26 October 2007).
· Russia: Riot police arrested dozens of demonstrators at an opposition rally in Nizhny Novgorod (25 March 2007). Opposition activists were also arrested in Moscow after an anti-government rally banned (14 April 2007), while attempts to hold the rally the following day were prevented by the police. The following month a number of gay activists were arrested and there was violence at protests after the Pride event in Moscow was banned by the Mayor (27 May 2007). Opposition leaders again arrested for organising an unauthorised protest in Moscow in November and the following day opposition protesters in St Petersburg were arrested when police attempted to remove banners at rally (24-25 November 2007).
· Turkey: Police in Istanbul used tear gas to stop left wing protesters trying to hold a demonstration, with 600 people arrested (1 May 2007). In Diyarbakir in November the police used water cannon and tear gas to disperse pro-Kurdish protesters (25 November 2007).
· United Kingdom: Armed police were authorised to use anti-terrorism powers to control climate change protesters who were threatening to disrupt Heathrow airport in London (11 August 2007).
The media reports illustrate that while there was a diversity of contentious assemblies across the different countries, a relatively small number of recurrent responses by the state can be noted. These include the banning of opposition events; the dispersal of anti-government protests; prohibitions of events organised by far right groups, restrictions on assemblies organised by left wing groups; prohibitions on events by LGBT groups; restrictions imposed on the locations in which assemblies may be held and the use of repressive and / or anti-Terrorism laws to deal with peaceful protests. One of the notable facts that occurred at many of the events noted above was that the assemblies ended in outbreaks of violence. At time the violence was initiated by the demonstrators, but in many cases the violence broke out as the police intervened, some times to enforce the law, sometimes to restrict an assembly and sometimes to disperse participants[1].
In some cases the use of force by the state may be considered as a necessary and proportionate response to concerns for public order or disruption to the rights of other sections of the community, this is because although the freedom of peaceful assembly is a fundamental human right, it is not an unlimited right. Article 11.2 of the European Convention on Human Rights makes it clear that it is possible to restrict the freedom of assembly in a variety of circumstances, which are similar to the legitimate grounds that may be invoked to restrict the related freedoms of thought, conscience and religion (Article 9) and of expression (Article 10). The full text of Article 11 of the Convention is as follows:
Article 11 Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the state.
Article 11.2 sets out a number of limited grounds under which it is possible and legitimate to impose restrictions on freedom of peaceful assembly. Furthermore, the state always also has some scope (or ‘margin of appreciation’) for how it might interpret the need to impose restrictions on freedom of assembly in the particular circumstances that occurred at the time. However, any restrictions that are imposed may in turn be challenged, if not always immediately, and the European Court of Human Rights has been asked to determine the legitimacy of a growing number of cases related to Article 11[2] and their judgements in turn provide guidance and opinion for people working on issues associated with freedom of assembly. The complex inter-relationship between principles, practice and context means that the boundaries of legitimacy and of limitation on the right to assemble is always subject to interpretation, and thus to dispute, contest and challenge.
OSCE ODIHR Guidelines Project
In 2004 the Office of Democratic Institutions and Human Rights in Warsaw drafted a set of guidelines on freedom of peaceful assembly. The aim of the draft guidelines was to inform people responsible for drafting legislation about basic principles and best practice related to this particular right. Later, in response to comments from a variety of sources, it was decided to convene a panel of experts to review, revise and formalise the guidelines and thus to establish a benchmark for standards within the region. The panel on freedom of peaceful assembly, included members from Armenia, Belarus, Kazakhstan, Moldova, Poland, Russia, Tajikistan, United Kingdom and United States of America. It was convened in early 2006 and, with the support of an independent secretary and members of the Legislative Support Unit and the Human Rights Department within ODIHR, the panel held four public consultative events in Georgia, Serbia, Kazakhstan and Poland between May and September 2006. These events were designed to enable the panel to gather information and perspectives from a wide range of people and from a diverse range of countries; those contributing to the discussions included government representatives, police officers, academics, human rights activists and representatives of NGOs from twenty-nine OSCE participating states. Following the consultation process the final version of the guidelines was published in English in March 2007 and in Russian in September of the same year.
The published document begins with a brief text, which sets out the formal Guidelines on Freedom of Peaceful Assembly. This was deliberately kept as a short document and is limited to outlining the basic core of the principles and practices that it was agreed underpin freedom of peaceful assembly. However, this initial text is followed by a longer set of ‘interpretative notes’, which elaborate on the themes and the thinking behind the Guidelines, while the document also includes an annex of all the legal cases that were cited and other reference documents.