Freedom of Expression and Peaceful
Assembly in Georgia, Ukraine and the
Baltic States
Nika Kvaratskhelia
2012
Tbilisi
[
]
Acknowledgements
I would like to thank the National Endowment for Democracy (NED) and the Policy
Association for an Open Society for the support provided. Without this support the
present research would not have been accomplished. Also, I wish to extend particular
gratitude to the Latvian Centre for Human Rights for cordial reception in Riga and
personally to Anhelita Kamenska, who has greatly contributed to my research as a
supervisor and as a friendly, helpful person. I would like to appreciate the cooperative
efforts of my colleagues in Lithuania (Human Rights Monitoring Institute), Estonia
(Human Rights Centre) and Ukraine (Civic Methodology and Information Centre
‘Vsesvit’), as well as those of my friends and colleagues in Georgia (Youth for Justice –
Georgia, Human Rights Centre, Public Advocacy).
All in All, I am grateful to all those, who inspired me to conduct the present research
and helped me in one way or another. I hope the readers will find the present paper
interesting and helpful.
2
Table of Contents
Summary ......................................................................................................................... 5
1. Standards derived from the Convention ................................................................. 7
1.1. Importance of freedom of expression and peaceful assembly ............................. 7
1.2. Margin of appreciation doctrine ............................................................................ 9
1.3. The concept of liberty-limiting principles ........................................................... 12
1.4. Freedom of peaceful assembly under the Convention ...................................... 18
1.4.1. Scope of the right ................................................................................................ 18
1.4.2. Interference with the right to freedom of peaceful assembly ......................... 19
1.4.3. Balancing conflicting interests........................................................................... 21
2. Domestic Law and Practice ..................................................................................... 28
2.1. Case of Georgia ...................................................................................................... 28
2.1.1. Legal framework ................................................................................................ 28
2.1.2. Practice ................................................................................................................ 32
2.2. Case of Ukraine...................................................................................................... 36
2.2.1. Legal framework ................................................................................................ 36
2.2.2. Practice ................................................................................................................ 42
2.3. Case of Latvia ........................................................................................................ 45
2.3.1. Legal framework ................................................................................................ 45
3
2.3.2. Practice ................................................................................................................ 47
2.4. Case of Lithuania ................................................................................................... 51
2.4.1. Legal framework ................................................................................................ 51
2.4.2. Practice ................................................................................................................ 54
2.5. Case of Estonia ....................................................................................................... 58
2.5.1. Legal framework ................................................................................................ 58
2.5.2. Practice ................................................................................................................ 58
3. Comparative analysis – lessons to be learned ........................................................ 61
Conclusion ..................................................................................................................... 68
4
Summary
After the fall of the Soviet Union the former soviet republics, among them Georgia,
Ukraine and the Baltic States (Latvia, Lithuania and Estonia), publicly announced their
intention to establish democracy and the rule of law. Respect for human rights was
considered to be the point of departure.
However, the recent events in the abovementioned states have brought to the daylight
some major concerns that need to be addressed in appropriate and timely manner.
Restriction of the freedom of peaceful assembly guaranteed by Article 11 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter the ‘Convention’) became a common practice in Ukraine and Georgia.
Compared to Georgia and Ukraine it can be said that the Baltic States are less criticized
in the relevant international documents for violation of these fundamental freedoms,
nevertheless problems remain with respect to the freedom of expression and peaceful
assembly of LGBT groups and there are some major concerns as regards ethnic
Russians. All these restrictions are viewed by the authorities to be necessary in a
democratic society and that they enjoy wide margin of appreciation in this regard.
The public international law respects state sovereignty and leaves some room for acting
as the state may see fit, in other words, there are some critical issues, which fall within
the state’s sole discretion. All treaty bodies established to supervise the fulfillment of
commitments undertaken by the State take into consideration the background in which a
particular measure is employed and respect various needs that do not prejudice the
human rights protection, a major concern of all civilized nations. This approach
acknowledged in the international law is manipulated by the States on various
occasions, as they tend to mask their real intentions under the cover of certain legitimate
aims.
By way of employing comparative analysis of international standards and the domestic
law and practice of the five selected countries, the present paper will attempt to address
the following considerations: What are the major concerns in each selected State with
respect to the freedom of expression and peaceful assembly? Are there any concerns
5
that could be held to be common for the selected states as for the former Soviet
republics? Are there any lessons to be learned from each other’s experience?
The paper is composed of three main parts. The first part will give useful information on
Convention standards with respect to the freedom of expression and peaceful assembly,
along with a brief overview of liberty-limiting principles developed in legal theory. We
will also look at the margin of appreciation doctrine and the concept of necessity in a
democratic society. The second part will be dedicated to the examination of domestic
law and practice of the five selected states. Finally, the last part will constitute a
comparative analysis of the domestic law and practice of the five selected States in the
light of the Convention standards. This part will also include particular
recommendations with respect to the particular issues, which will be drafted according
to the best practice of the other selected states, if any. In the course of comparative
analysis the common concerns of the selected States will be underlined.
6
1. Standards derived from the Convention
In this part of the paper we will look through the standards envisaged by the Convention
and at the same time we will have recourse to the legal theory to review the concept of
liberty-limiting principles. It should be underlined here that the focus of the present
paper is the freedom of peaceful assembly and the freedom of expression is mentioned
hereunder insofar as the former is often considered lex specialis with respect to the
latter. By mentioning the freedom of expression alongside the freedom of peaceful
assembly the importance of the freedom of peaceful assembly to the enjoyment of the
freedom of expression, the inevitable correlation of these freedoms and their cumulative
contribution to the democracy is ultimately emphasized.
1.1. Importance of freedom of expression and peaceful Assembly
The freedom of peaceful assembly constitutes one of the foundations of the functioning
democracy and serves many different objectives that are of vital importance for the
democratic society. The freedom of assembly, together with other fundamental rights
and freedoms, greatly contributes to the personal development and the progress and
welfare of the society at large. It helps ensure that all people in a society have the
opportunity to express their opinions and representing a form of direct democracy, it
facilitates dialogue within civil society, as well as between civil society, political leaders
and government. With appropriate media coverage, public assemblies communicate
with the world at large and in countries, where the media is limited or restricted,
freedom of assembly is vital for those, who wish to draw attention to local issues. This
communicative potential underlines the importance of the freedom of assembly in
advocating and effecting change.1
The European Court of Human Rights (hereinafter referred as the ‘Court’) has on
numerous occasions emphasized the importance of the freedom of expression and
peaceful assembly.
In the case of Handyside v. United Kingdom (1976) the Court stressed the main
rationale underlying the freedom of expression in the following wording:
1
Guidelines on Freedom of Peaceful Assembly, OSCE/ODHIR 2007, available at
www.osce.org/odihr/24523 last visited on 1 April, 2012.
7
‘The Court’s supervisory functions oblige it to pay the utmost attention to the principles
characterizing a ‘democratic society’. Freedom of Expression constitutes one of the essential
foundations of such society, one of the basic conditions for its progress and for the development
of everyman. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ and
‘ideas’ that are favorably received or regarded as inoffensive or a matter of indifference, but
also to those that offend, shock or disturb the State or any sector of population. Such are the
demands of that pluralism, tolerance and broadmindedness without which there is no
‘democratic Society’.2
In the case of Tebieti Muhafize Cemiyyety and Israfilov v. Azerbaijan (2008) the
Court outlined the importance of the interaction of persons and groups with varied
identities for achieving social cohesion and the role of the freedom of peaceful assembly
and association in this regard. The Court stipulated:
‘Harmonious interaction of persons and groups with varied identities is essential for achieving
social cohesion. It is only natural that, where civil society functions in a healthy manner, the
participation of citizens in the democratic process is to a large extent achieved through
belonging to associations in which they may integrate with each other and pursue a common
objectives collectively’.3
All in All, the freedom of peaceful assembly provides the space for development of civil
and political society, an arena for people to express different views, values or interests
and a platform for such views, values or interests to be heard.4
2
Handyside v. the United Kingdom, judgment of 7 December, 1976, application no. 5493/72, para. 49.
Tebieti Muhafize Cemiyyeti and Israfilov v. Azerbaijan, judgment of 8 October, 2009, application no.
37083/03, para. 53.
4
Freedom of Peaceful Assembly and Association under the European Convention on Human Rights
(Article 11), Interights Manual for Lawyers 2011, p. 2, available at
www.interights.org/document/108/intex.html last visited on 2 April, 2012.
3
8
1.2. Margin of Appreciation Doctrine
Although the aim of the present paper is not to go into a deep theoretical consideration
regarding the essence of the margin of appreciation doctrine and reasonableness of its
application, it is necessary to have a brief overview of the doctrine, as it represents the
best argument at the hands of national authorities.
The margin of appreciation is a doctrine the Court uses to interpret certain Convention
provisions. It generally refers to the amount of discretion the Court gives national
authorities in fulfilling their obligations under the Convention.5 In other words, the
margin of appreciation doctrine refers to the latitude allowed to the member states in
their observance of the Convention. The doctrine is one of the judicial review, which
governs the extent to which the Court will scrutinize a complained-of practice.6 Other
scholars assert that margin of appreciation or discretion may be understood as a grant of
“breathing space” or “elbow room” by international authorities.7
The extent of margin of appreciation is defined by the Court on the case-by-case basis.
Generally the Court gives wide margin of appreciation according to the specific grounds
of restrictions. The extent of the margin varies from right to right. Nonetheless, the
Court has established some guiding principles in this regard.
The rationale for allowing margin of appreciation was explained by the European Court
in its judgment in the Handyside case. In this case, the Court had to examine whether
the applicant’s conviction – he had intended to disseminate a publication which was
considered obscene by the English Courts – and the confiscation of copies of the
publication were restrictions on the freedom of expression which were ‘necessary in a
democratic society’ within the meaning of Article 10(2). In the first place the Court
stressed that “the machinery of protection established by the Convention is subsidiary to
the national systems safeguarding human rights”. It went on explaining further that:
5
Jeffrey A. Brauch, the Margin of Appreciation and the Jurisprudence of the European Court of Human
Rights: Threat to the Rule of Law, Columbia Journal of European Law 2004-2005, p. 115. Available at:
Hein online.
6
Thomas A. O’Donnell, the Margin of Appreciation Doctrine: Standards in the Jurisprudence of the
European Court of Human Rights, Human Rights Quarterly 1982, p. 475, available at: Hein online
database.
7
Howard Charles Yourow, the Margin of Appreciation Doctrine in the Dynamics of the European
Human Rights Jurisprudence, Connecticut Journal of Int’l Law 1987-1988, p. 118, available at: Hein
online database.
9
It is impossible to find in the domestic law of the various Contracting States a uniform
European Conception of morals. The view taken by their respective laws of the
requirements of morals varies from time to time and from place to place, especially in
our era which is characterized by a rapid and far-reaching evolution of opinions on the
subject.
At the end of this consideration the Court concluded that by reason of their direct and
continuous contact with the vital forces of their countries, State authorities are in
principle in a better position than the international judge to give an opinion on the exact
content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’
intended to meet them.8
The margin of appreciation doctrine is being criticized by many scholars. Their main
argument is that the doctrine used in a wide scope and differently to certain rights may
leave the room for negative consequences undermining international protection of
human rights. Some of them claim that the margin of appreciation, with its principled
recognition is at odds with the universality of human rights. If applied liberally, this
doctrine can undermine seriously the promise of international enforcement of human
rights that overcomes national policies. This may lead national institutions to resist
external review altogether.9
Despite such a fierce criticism the European Court of Human Rights still applies this
doctrine as a guarantee of maintenance of balance between State discretion and
international supervision. It has developed some more or less established approach to
the application of the doctrine. Although there is no precise scope of margin of
appreciation, the case-law reveals some factors or variables which are of influence.
These variables are: 1. the European common ground, 2. the nature of the right or of the
activities of an individual, 3. the nature of the aim pursued by the contested measure and
the circumstances or the context of that measure.10
8
Handyside v. United Kingdom, judgement of 7 December 1976, Series A. 24, para. 48.
Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal Standards, N.Y.U. J. Int’l L. & Pol.
1998-1999, p. 844.
10
P. van Dijk, G.J.H. van Hoof, Theory and Practice of the European Convention on Human Right, 3rd
edition, Kluwer Law International 1998, p.87.
9
10
As regards to the European common ground, like in Handyside case, in Rasmussen case
the court held that:
‘[…] the scope of the margin of appreciation will vary according to the circumstances, the
subject-matter and its background; in this respect, one of the relevant factors may be the
existence or non-existence of common ground between the laws of Contracting States.’11
The nature of the right or of the activities of an individual implies differentiated attitude
to distinct rights in the light of margin of appreciation. In other words, the margin varies
according to the importance of a particular right. For example, the states are given more
discretion with respect to restriction of Article 1 of Protocol 1. Conversely, in case of
Article 10 margin of appreciation is much narrower.
The nature of the aim pursued by the contested measure and the circumstances or the
context of that measure means that the margin of appreciation may vary according to
which of the aims listed in the restriction clauses apply.12
Although criticized for leaving the room for the national authorities to manipulate with
legitimate aims, the margin of appreciation doctrine is nevertheless called upon to
prevent unreasonable hindrance in the national authorities’ discharge of their duties by
limiting the choice of appropriate measures to address the pressing social need. This is
why the bodies established to supervise the human rights protection always consider
whether national authorities have observed the margin of appreciation afforded to them
in a particular case.
11
Rasmussen v. Denmark, judgement of 28 November 1984, Series A.87, para. 40.
P. van Dijk, G.J.H. van Hoof, Theory and Practice of the European Convention on Human Right, 3rd
edition, Kluwer Law International 1998, p.89.
12
11
1.3. The concept of liberty-limiting principles
Before going to the overview of the approach of the Court towards the notions of
‘necessity in a democratic society’, ‘fair balance between conflicting interests’ and the
‘principle of proportionality’, it is recommended to have a look on the theoretical basis
of restriction of a particular liberty, which stems from the legal philosophy. The notion
of liberty-limiting principles is all the more important in considering the transitional
period, when there must be certain consensus reached with a view to balancing the
conflicting interests.
In the course of transition from any form of governance to the democratic forms of
governance, where pluralism is held to be one of the basic milestones, formerly
excluded, hidden interests find their ways to public space and interact with other
interests having been present in the society long before. Consequently, each actor
present in the public space begins to fear that their interests will be harmed during the
transitional period, thus giving ride to conflict of interests.
During the transitional period any society faces the need for deriving the so called
liberty-limiting principles on the basis of harm/benefit analysis, which will guide the
balancing of conflicting interests in the society and which is so difficult to be
elaborated, since there is no single approach to what is harm and what constitutes the
benefit. It is argued among scholars that ‘while law must assist in settling the definitions
of ‘harm’ and ‘benefit’, it can only do so where there is ethical consensus about the
transitional goals being pursued.’13 In addition, ‘harm’ and ‘benefit’ are closely linked
to the notion of good, most fiercely debated over the centuries. One may take
democracy, tolerance and recognition as a conception of good for a transitional society,
while others may extend this list or exclude the above conceptions at all. In this part of
the paper, we will maintain these three conceptions of good and look at how they are
viewed in the context of deriving the liberty-limiting principles.
It is asserted in the relevant literature that ‘the assertion that transition is never unitary
or linear process. Instead, transition is dynamic and multi-layered.’14 The law, which is
13
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 76.
14
Ibid, p. 77.
12
thought to settle the definition of ‘harm’ and ‘benefit’, may face a crisis of legitimacy, if
complicit in past wrongs. It is argued that ‘the law must at once extricate itself from this
legacy, establish its legitimacy in the present, and provide the basis for a more just
future.’15
It is generally recognized that in a pluralist democracy, restrictions on the civil liberties
should be narrowly tailored to legitimate aims and the more intrusive the intervention,
the greater burden lies on the authorities to provide evidence that justifies the contested
intervention. It is also debated that the transitional period requires rather differentiated
approach and that the liberty-limiting justifications need not be so rigorously proven, as
legally prescribed aims may well suffice.16 It is difficult to assess the justifiability of
interventions as there is no precise and accurate method of measurement of harms and
benefits and as the latter terms are being framed depending upon the particular
transitional goals being pursued.
Restrictions to public events are usually imposed because of the need to prevent harm to
third parties. Michael Hamilton asserts that the ‘harm principle’ is straightforward –
preventing harm to parties other than the actor is always an appropriate reason for legal
coercion.’17 It has to be noted here that the risk of harm may, in many cases, be
exaggerated, speculative or imaginary. Authorities often claim that sometimes tense
political climate precludes peaceful assembly and contend that the national security
considerations or a high risk of public disorder justify the imposed restrictions. In
connection to the notion of ‘harm’, Joel Feinberg has introduced ‘the benefit-to-others
principle’18 According to the Michael Hamilton’s wording, ‘Harm is conceived as
benefit unattained, not simply deterioration caused.’ It is also contended that ‘benefits’
might also refer to discrete strategies aimed at securing particular goods, for example,
facilitating inter-group contact (including dialogue between the main protagonists),
promoting desegregation, bridging social capital, expanding relations of recognition and
encouraging emphatic rehumanization.19
15
Ibid
Ibid, p. 78
17
The harm principle was first articulated by J.S. Mill (J.S. Mill, On Liberty (1972) [1859] at 123-124)
18
Joel Feinberg, Harms to Others: The Moral Limits of the Criminal Law (1984), p. 27
19
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 79
16
13
The complexity of the notion of ‘harm’ is underlined by scholars, who suggest that ‘a
‘harm’ calculus arguably requires the enumeration of direct and indirect harms; minor,
aggregative and serious harms; simple, composite and accumulative harms; possible and
probable harms; individual and group harms; physical, emotional and psychological
harms; and so forth.20
The human rights framework envisages directly some of the ‘serious harms’ that may
become a ground for restriction of a particular right or freedom. The example of such
‘serious harm’ is the advocacy of national, racial or religious hatred, inciting
discrimination, hostility or violence. Where a conflict of rights takes place, one of the
rights shall be limited in favor of the other right or rights. That is why it is strictly
necessary to define the threshold of interference. International treaty bodies supervising
the protection of human rights on some occasions accord wide margin of appreciation to
the national authorities. This margin of appreciation can be said is wider with respect to
regulation of public events during the period of political instability. 21 It is suggested that
‘the meaning and relative importance of rights will vary in different social, cultural, and
political contexts, it follows that the point at which specific rights properly become
engaged – the threshold of legal intervention – is necessarily contingent upon
deliberatively achieved consensus about their scope.’22
A context specific interpretation of human rights standards makes it necessary to
consider whether the legal interference shall give priority to personal autonomy over the
public goods and social community. Michael Hamilton has put this dilemma in the
following fashion: ‘Should, for example, the right to private life extend so far as to
prevent frequent and unwanted noisy processions along a public road adjacent to a
housing estate? If all residents of the estate object to the incursion on their private life,
should this more ‘representative’ objection hold any greater sway than an individual
complaint?’
20
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 80.
21
Rai, almond and ‘negotiate now’ v. UK (1995), by contrast Stankov case.
22
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 83.
14
It is accepted in the theory that ‘liberty-limiting principles must conform to a reasonable
(rather than State-oriented) political conception of justice.’23 Axel Honneth suggests
that to avoid ‘Theoretical cul-de-sac … is to adopt a formal model of ethical life’.24
Three such models have been closely scrutinized in relevant literature. These are the
argument for democracy, the argument for tolerance and the argument for recognition.
The argument for democracy has fiercely been criticized on the account that it fails to
provide normative framework for justifying interferences with liberty, especially during
the periods of transition. It is suggested that rights can be seen as internal to democracy
– developing and protecting the autonomy of the agent.25 Despite this fact the
interrelation of rights and democracy is rather problematic. Democracy, inclusive of
rights, may be relied upon in restricting a particular right or freedom. Michael Hamilton
argues that ‘a more subtle and pernicious conflict between rights and democracy occurs
when democratically determined policies, pursuing ostensibly laudable objectives,
produces outcomes which compromise the protection of fundamental rights.’26
Frederick Schauer contends the following:
‘Rights are no longer just an unqualifiedly desirable impediment to the evil and the ill-informed,
but an impediment to what appear to be wise policies, an impediment whose virtues are either
virtues in and of themselves independent of consequences … or virtues whose long-run benefits
are less likely to be perceived in the face of more salient short-term costs.’27
The problem of interrelation of rights and democracy is even more evident during the
period of transition, when political transition takes place. In such period, the conflict
between rights and democracy is more easily masked as policies, which seek not only to
23
Ibid. p. 84.
Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (1995), pp. 24546.
25
Joseph Raz’s perfectionist theory of harm, in Raz, ‘Autonomy, Toleration, and the Harm Principle’ in
Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of HLA Hart (1987) 313 at
329–31.
26
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 85.
27
F. Schauer, ‘The Cost of Communicative Tolerance’ in Raphael Cohen-Almagor (ed.), Liberal
Democracy and the limits of tolerance (Ann Arbor: University of Michigan Press, 2000) at 31. See also
Simon Lee, The Cost of Free Speech (1990) at 130.
24
15
prevent harm, but also to produce some positive benefit, may have more profound
appeal.28
It follows from the aforementioned that the argument for democracy is not always
satisfactory when dealing with the restriction of a liberty. This gap, as argued, may be
filled in with the help of the argument for tolerance and the argument for recognition.
The argument for tolerance recognizes the value of certain liberties. It presupposes that
‘there are certain inviolate principles that cannot be sacrificed even in pursuit of
democratically determined policies and that these principles should calibrate our
measurement of potential harms.’29 Some scholars base the argument for tolerance on
the right to freedom of conscience.30 Others rely on ‘autonomy’ or ‘dignity’. However
welcome, this argument is also criticized for it is difficult to achieve the consensus
about the limits of tolerance. It is also hard to address ‘the question of how far one
should tolerate the intolerable.31 Basically, it is argued that ‘the argument for tolerance
errs close to tautology – we value tolerance because it includes those conceptions of the
good which we are prepared to tolerate and excludes those which we are not.’32
Another problem with the argument for tolerance is that it does not answer the question
about extent of threshold of tolerance in the context of the period of transition. In
relation to the freedom of speech, some scholars argue that the speech may be harmful
to the audience under some conditions. Simon Lee contends that ‘at some times free
speakers can help us become more autonomous … at other times, when we are weak,
autonomy is better served by building up self-confidence than by undermining selfrespect’.33 One may argue that the argument for tolerance is ‘context-blind’, whereas
others may suggest that ‘the tolerance threshold inevitably set from the transitional
28
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 85.
29
Ibid. p. 86.
30
David Richards, Free Speech and the Politics of Identity (1999), p. 25.
31
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 86.
32
Ibid. p. 87.
33
Simon Lee, The Cost of Free Speech (1990), p. 130.
16
vantage point, and so (depending on the quality and inclusiveness of the debate)
implicitly takes account of contextual factors’.34
Finally, the rationale of the argument for recognition lies in recognizing, acknowledging
the counterpart as a ‘self’ and thus, aiming at achievement of positive recognition
between members of opposing groups. In this process, as suggested by Michael
Hamilton ‘liberties are valued, and restrictions upon them justified, if they advance not
merely the goal of formal equality (for which the argument for tolerance might be
sufficient) but also the goal of solidarity—of expanding relationships across ethnic
boundaries.’35
In the light of the foregoing, it can be concluded that notwithstanding the theoretical
discussion over the pros and cons of the liberty-limiting principles, these principles may
have practical value. By understanding the rationale of these principles in a proper way,
the national authorities may develop an appropriate approach to the restriction of human
rights and freedoms that best ensures the minimization of harms that follow the collision
of different interests in a pluralist society.
34
Michael Hamilton, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting
Principle in the Context of Transition, Oxford Journal of Legal Studies, Vol. 27, No. 1 (2007), p. 88.
35
Ibid. p. 89.
17
1.4. Freedom of peaceful assembly under the Convention
1.4.1. Scope of the right
The freedom of expression and peaceful assembly, however vital for democracy, is not
absolute. These freedoms can be restricted if it is evidenced that the restriction is
necessary in a democratic society in pursuit of one of the legitimate aims enlisted
respectively in Article 10(2) and Article 11(2). These legitimate aims include the
interests of national security, territorial integrity or public safety, the prevention of
disorder or crime, the protection of health or morals, the protection of the reputation or
rights of others, the prevention of disclosure of information received in confidence, the
maintenance of the authority and impartiality of the judiciary. The last clause of Article
11 allows the contracting States to lawfully restrict the right to freedom of peaceful
assembly and association of certain categories of people, namely members of the armed
forces, the police and members of the administration of the state. As shown by the caselaw of the Court, the interests of national security or public safety and the prevention of
disorder and crime are most often invoked by the national authorities when restricting
the freedom of assembly. Below, we will look at the case-law of the Court and make a
brief overview of the principles and standards employed by the Court.
The freedom of assembly under Article 11 covers the organization of and participation
in marches or processions36, static assemblies or sit-ins37 and both public and private
events, whether formal or informal.38 It is also accepted that Article 11 applies to
gatherings of persons for a common economic or political purposes, it is less likely to
cover gatherings, which bear purely social or sporting character. Above all, as it is
manifested directly in the wording of Article 11, the protection is afforded only to
assemblies that are ‘peaceful’. The latter term shall not be interpreted broadly and the
Court has introduced such notions as ‘violent intentions’ and ‘public disorder’. It will
consider the assemblies peaceful unless the participants or organizers have ‘violent
intentions that result in public order.’39 Thus, The Court has made emphasis on the
36
Christians against Racism and Fascism v. United Kingdom (1980), application no. 8440/78.
G. v. Germany (1989), application no. 13079/87.
38
Rassemblement Jurassien and Unite Jurassienne v. Switzerland, decision of 10 October, 1979,
application no. 8191/78.
39
Christians against Racism and Fascism v. United Kingdom (1980), application no. 8440/78.
37
18
intention to hold peaceful assembly and consequently, only the likelihood of violence
because of the reactions of the groups or other factors shall not suffice.
Although the assembly itself may be peaceful, but nevertheless the tension coming from
counter-demonstrators may pose threat to public order. In such cases, the State has
positive obligations to protect those exercising their right to freedom of assembly from
the threat of counter-demonstrations.40 In the case of Christians against Racism and
Fascism v. United Kingdom, the Commission found that the threat of disorder coming
from opposing groups does not in itself justify the contested interference. However, it is
recognized that the State may legitimately interfere with the groups’ freedom of
assembly, if they try to disrupt one peaceful demonstration through organizing their
own assembly, which is aimed at creating disorder.41
In the case of United Macedonian Organization Ilinden and Ivanov v. Bulgaria
authorities appeared somewhat reluctant to protect the members and followers of UMO
Ilinden from a group of counter-demonstrators. The Court stressed that genuine,
effective freedom of peaceful assembly could not be reduced to a mere duty not to
interfere on the part of a State, which had ratified the Convention. It was the State’s
obligation to take reasonable and appropriate measures to enable demonstrations to
proceed peacefully. The Court found that although the authorities had taken certain
steps, they did not take all appropriate measures, which could reasonable have been
expected from them under the circumstances.42
1.4.2. Interference with the right to freedom of peaceful assembly
According to the Court’s well-established case-law, there may be the following types of
interferences with the freedom of peaceful assembly: denial to authorize or permit the
assembly, dispersal, evacuation from the place of assembly, bans and post-assembly
penalties, whether administrative or criminal.
Plattform ‘Artze fur das Leben’ v. Austria, judgment of 21 June, 1988, application no. 10126/82, para.
34.
41
Christians against Racism and Fascism v. United Kingdom (1980), application no. 8440/78.
42
United Macedonian Organization Ilinden and Ivanov v. Bulgaria, judgment of 20 October, 2005,
application no. 44079/98, para. 115.
40
19
In the case of Nurettin Aldemir and Others v. Turkey the demonstration was forcibly
ended by the security forces on the ground that the demonstration on the chosen location
was not permitted by law. It was held by the Court that the force used and the
subsequent persecution of the applicants could have chilling effect and discouraged the
applicants from participating in similar meetings, thus there had been a violation of
Article 11 of the Convention.43
In the case of Cisse v. France the applicant was a member of a group of aliens that had
organized a collective action, which resulted in the occupation of a church. This group
was subsequently evacuated from the church. The Court, however not sharing the
respondent government’s view that the mere fact that the applicant had been an illegal
immigrant was not sufficient to justify a breach of her right to freedom of peaceful
assembly and association, concluded that taking into account the hunger-strikers’
deteriorated health and poor sanitary conditions, the interference with the applicant’s
freedom of assembly was not disproportionate.44
In the case of Ollinger v. Ausrtia the applicant, who was a parliamentarian at the
material time, had notified the authorities that he would be holding a meeting at the
Salzburg municipal cemetery in front of the war memorial on All Saints’ Day. The
meeting would be held at the time another gathering, held by people commemorating
soldiers died in World War II, would also take place. The applicant sought to
commemorate the Salzburg Jews killed by SS during World War II and he thought that
the other gathering was unlawful. The authorities banned the meeting on the ground
that it would pose threat to public order and security. Taking into account the fact that
the applicant had no hostile and violent intentions, as he was expecting a small number
of participants and envisaged peaceful and silent means of expressing their opinion, the
Court found that the respondent government, instead of ensuring its positive obligation
to protect and secure the gathering, had breached its obligation under Article 11 of the
Convention. The Court noted:
‘The domestic authorities imposed an unconditional prohibition on the applicant’s assembly.
The Court therefore finds that they gave too little weight to the applicant’s interest in holding
43
Nurettin Aldemir and Others v. Turkey, judgment of 18 December, 2007, application nos. 32124/02,
32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, para. 34-35.
44
Cisse v. France, judgment of 9 April, 2002, application no. 51346/99.
20
the intended assembly and expressing his protest against the meeting of Comradeship IV, while
giving too much weight to the interest of cemetery-goers in being protected against some rather
limited disturbances.’45
In the case of Galstyan v. Armenia the applicant was subjected to three days of
detention for participating in a peaceful demonstration, which was prohibited by the
government. The Court found that the conviction that followed his participation in the
peaceful demonstration was in breach of Article 11 of the Convention.46
In the case of Baczkowski and Others v. Poland the authorities refused to holding of a
planned march and several stationary assemblies. The appellate authorities quashed the
contested decisions on banning on the account that they were poorly justified and in
breach of applicable laws. The assembly was held despite it being banned and the
aforementioned decisions on quashing the decisions of lower instances were made
afterwards. The Court observed that the refusals to give authorization could have had
chilling effect on the applicants and other participants in the assemblies. It could also
have discouraged other persons from participating in the assemblies on the grounds that
they did not have official authorization and that, therefore, no official protection against
possible hostile counter-demonstrators would be ensured by the authorities. The Court
was of the view that the legal remedies available to the applicants could not ameliorate
their situation as relevant decisions were given in the appeal proceeding after the date
on which the assemblies were held, therefore there had been a violation of Article 11 of
the Convention. 47
1.4.3. Balancing conflicting interests
The balancing of conflicting interests is one of the main tasks of all constitutional courts
throughout the world. The problem of balancing is also at issue in all of the international
human rights courts. The judges have to resolve conflicts between human rights
themselves as well as between human rights and competing public interests. The
importance of balancing in the light of Human Rights Act was comprehensively shown
by Lord Irvine of Lairg:
45
Ollinger v. Ausrtia, judgment of 29 June, 2006, application no. 76900/01, para. 49.
Galstyan v. Armenia, judgment of 15 November, 2007, application no. 26986/03.
47
Baczkowski and Others v. Poland, judgment of 3 May, 2007, application no. 1543/06.
46
21
‘The present arrangements … represent our reconciliation of effective rights protection with
parliamentary sovereignty. The balancing of these is central to the act … In examining what
impact the Act has had on the Courts, and on our system of law, the overriding theme that
emerges is balance: balance between scrutiny and deference; between the individual and the
community; and between interpretation and declarations of incompatibility … The balance
between intense judicial scrutiny and reasonable deference to elected decision-makers is a
delicate one to strike. But the judiciary have struck it well … In drafting … (sections 3 and 4 of
the Human Rights Act 1998) … as we did, we were again asking the courts to chart a careful
course between two extremes. Once again they are doing that well; they are striking a sound
balance … (The Human Rights Act) … was drafted sensitively to the balance of forces within
our substantially unwritten constitution.48
R. Alexy also outlines that from a ‘methodological point of view’ balancing is central to
the judicial process of the German Federal Constitutional Court.49 Similarly, the former
President of the Court, R. Ryssdall has stressed that the issue always present through the
Convention and the Court’s case-law is “the need to strike a balance between the
general interest of the community and the protection of the individual’s fundamental
rights.”50
The concept of balancing, however widely applied in judicial process, is open to
criticism from the scholars. The critics assert that ‘it should be regarded as an irrational
and illegitimate renunciation of law in favor of a largely arbitrary judicial discretion.’51
Supporters of balancing suggest that ‘although the current judicial practice of balancing
may be difficult both to describe and to defend, the concept of balancing, when properly
understood, is neither irrational nor illegitimate.’52
As already mentioned, the concept of balancing has been employed as a judicial
solution of conflicting interests by the Court. The Court’s extensive case-law is the
proof of the importance of balancing, which is rather specific in the context of the
Lord Irvine of Lairg Q.C. ‘The Impact of the Human Rights Act: Parliament, the Courts and the
Executive’ [2003] P.L. 308, 310, 313-314, 316, 319, 323. Italics in original. Cited in ‘Balancing’ and the
European Court of Human Rights: A Contribution to the Habermas-Alexy Debate’, Steven Greer,
Cambridge Law Journal 63(2), July 2004, pp.412-413.
49
R. Alexy, ‘Constitutional Rights, Balancing and Rationality’ (2003) 16 Ratio Juris 131 – 140, p. 134.
50
R. Ryssdall, ‘Opinion: The Coming Age of the European Convention on Human Rights’ [1996]
E.H.R.L.R. 18-29, p. 23.
51
Steven Greer, ‘Balancing’ and the European Court of Human Rights: A Contribution to the HabermasAlexy Debate’, Cambridge Law Journal 63(2), July 2004, p. 413.
52
ibid.
48
22
Convention system. The constitutional tradition and the judicial practice of a particular
country may also contain specific features of balancing. For example, based on the
analysis of the jurisprudence of the German Federal Constitutional Court, the R. Alexy
concludes that the constitutional rights and collective goals ‘have the character of
principles’ and that ‘principles’ are essentially ‘optimization requirements’ and argues
that conflicts between interests can only be reasonably resolved by balancing each
against other according to the ‘principle of proportionality’, which in its turn includes
three sub-principles: ‘suitability’, ‘necessity’ and ‘proportionality in the narrow sense’.
The principle of suitability excludes the use of means to realize any given principle (P1)
which are factually incapable of doing so where this would interfere with the fulfillment
of any other principle (Px). The adjudication according to the principle of
proportionality will not take place, if there is no conflict between principles. The
principle of necessity implies that if there are several suitable means (Mx) of realizing
P1, which interfere with the realization of principle P2, the means (M1) least interfering
with P2 should be opted for. Finally, the principle of ‘proportionality in the narrow
sense’ requires that the extent of the interference must be justified by the importance of
satisfying P1 and the greater the interference with a constitutional right, the more
empirically certain evidence shall be furnished as to the successful realization of a
collective goal.53
The Court has often used the concept of balancing in its judgments in a manner which is
somewhat open to criticism. The problematic approach to balancing may be conditioned
by the problematic approach of the interpretation of the Convention, which is a ‘living
instrument’ and shall be interpreted progressively. In the process of interpretation the
Court uses various notions such as ‘effective protection of individual rights’, the ‘rule of
law’ and ‘democracy’.
The analysis of the Court’s well-established case-law makes us believe that within the
Convention system the conflicts occur on two scores. On the one hand, there may be
conflict between Convention rights and collective goods such as ‘national security’ and
‘public order’ and Convention rights themselves on the other. The probable conflict is
expressly foreseen in Articles 8 to 11 of the Convention. Article 11(2) stipulated that no
53
Ibid. p. 416.
23
restriction shall be placed on the exercise of the 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. The collective goods
from ‘national security’ to ‘health or morals’ are limitations to the freedom of peaceful
assembly and association, whereas the last wording – ‘the protection of the rights and
freedoms of others’ – indicates that there may be conflicts with other Convention rights
and in this context the other Convention rights can be held to be limitation of the
freedom of peaceful assembly and association.
Before proceeding to examine whether the respondent government has struck fair
balance, the Court commences proceedings by defining whether there has been an
interference with the freedom of peaceful assembly at all. This issue may be settled
relatively easily and the parties rarely contest the assertion.
However, in the case of Ezelin v. France the applicant, a French lawyer, participated in
the demonstration against two court decisions, where protesters used violent language
against police officers and painted insulting and offensive graffiti on various
administrative buildings. Afterwards, the applicant was sanctioned by the Bar
association. Consequently, the respondent government argued that there was no
interference with the right to freedom of peaceful assembly since the applicant was able
to freely participate in the demonstration. He was reprimanded only after the event and
on the account of personal conduct that was deemed to be inconsistent with the
obligations of his profession. The Court held that the ‘restriction’ may also include
measures, such as punitive measures, taken not before or during, but after a meeting.54
After having established that there had been an interference with the right, the Court
will consider whether the interference has been prescribed by law. In the case of Adali
v. Turkey the Court found that there was no law regulating the issuance of permits to
Turkish Cypriots to cross the ‘green line’ to engage in peaceful assembly with Greek
54
Ezelin v. France, judgment of 26 April, 1991, application no. 11800/85, para. 39.
24
Cypriots. Consequently, the manner in which restrictions were imposed on the
applicant’s exercise of the freedom of assembly was not ‘prescribed by law’.55
The only condition that the interference is prescribed by law does not suffice to justify a
particular restriction. The law itself should be of a certain quality, which means it
should be foreseeable and accessible. The Court has reiterated that ‘a law is
‘foreseeable’ if it is formulated with sufficient precision to enable the individual – if
need be with appropriate advice – to regulate his conduct’.56
Having satisfied the requirement of being prescribed by law, the interference shall be
held to pursue one of the so called legitimate aims as laid down in Article 11(2), the list
of which is necessarily exhaustive.57
In the case of Grande Oriente d’Italia di Palazzo Giustiniani v. Italy the Court
stressed that since the law in question was introduced to ‘reassure’ the public at a time
when there was controversy surrounding the role played by certain Freemasons in the
life of the country, the interference was intended to protect national security and prevent
disorder.58 In the case of Cisse v. France, the Court found that the interference with the
applicant’s right pursued the legitimate aim of the prevention of disorder, as the
domestic court ordered to put an end to the continuing occupation of the church by
person who had broken French law.59
In the admissibility decision in Larmela v. Finland the Finnish Minister of Justice
refused to register the Cannabis Association of Finland. The Commission held that the
Finnish government had pursued the legitimate aim of protecting the health and morals
of the country.60 Similarly, in the case of Open Door Counseling and Dublin Well
Women v. Ireland, the applicants were restrained from providing information to
pregnant women about abortion clinics outside Ireland. As abortion was declared a
crime in Irish law following the referendum of 1983, it was established that the
55
Adali v. Turkey, judgment of 31 March, 2005, application no. 38187/97.
Hasan and Chaush v. Bulgaria [GC], no. 30985/96, para. 84, ECHR 2000-XI.
57
Sidiropoulos and Others v. Greece, judgment of 10 July, 1998, para. 38.
58
Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, judgment of 2 August, 2001, application no.
35972/97.
59
Cisse v. France, judgment of 9 April, 2008, application no. 51346/99, para. 44-46.
60
Larmela v. Finland, judgment of 28 May, 1997, application no. 26712/95.
56
25
restriction pursued the legitimate aim of the protection of morals.61 The protection of
health was at issue in the case of Stambuk v. Germany, where the Court held that the
domestic courts pursued the legitimate aim of the protection of health when imposing a
fine upon the applicant for disregarding the ban on advertising of medical treatment.62
With regard to the protection of rights and freedoms of others and problem of balancing
individual rights, the Court has stressed:
‘In assessing the necessity of a given measure a number of principles must be observed. The
term ‘necessary’ does not have the flexibility of such expressions as ‘useful’ or ‘desirable’. In
addition, pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’.
Although individual interests must on occasion be subordinated to those of a group, democracy
does not simply mean that the view of a majority must always prevail: a balance must be
achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a
dominant position.’63
The analysis of the Court’s case-law reveals that when the Contracting states are aiming
to protect rights that are envisaged in the Convention, they have a wide margin of
appreciation. By contrast, when they seek to protect rights of others falling outside the
Convention, their margin of appreciation is limited.64
If the Court is satisfied that the given interference had been prescribed by law and
pursued one of the legitimate aims, it must determine whether the interference was
necessary in a democratic society. The Court has ruled in this regard, that ‘the only type
of necessity capable of justifying an interference with any of those rights is, therefore,
one which may claim to spring from ‘democratic society’.65
The notion ‘necessary in a democratic society’ shall be understood as implying the
concept of ‘pressing social need’ and the ‘principle of proportionality’. Whether there is
a pressing social need, first of all, shall be determined by the national authorities,
however, this goes hand-in-hand with the Court’s supervision. The Court must look at
61
Open Door Counseling and Dublin Well Women v. Ireland, judgment of 29 October, 1992, Series A no.
246-A.
62
Stambuk v. Germany, judgment of 17 October, 2002, application no. 37928/97.
63
Chassagnou and Others v. France, judgment of 29 April, 1999, application no. 25088/94, para. 112.
64
W.P. and Others v. Poland, admissibility decision of 2 September, 2004, application no. 42264/98.
65
United Communist Party of Turkey and Others v. Turkey, judgment of 30 January, 1998, application
no. 19392/92.
26
the interference in the light of the case as a whole and determine whether it was
‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the
national authorities to justify the interference are ‘relevant and sufficient’.66
The test of proportionality is the most effective tool at the disposal of the Court to
determine whether the respondent government has discharged its obligation under the
Convention as a Contracting Party. The test of proportionality is a method of assessing
the justifiability of a particular interference that is derived from the principle of
proportionality stipulating that restrictions must be proportional to the aim pursued. It
means that the least restrictive measure shall be employed by the authorities in
achieving the legitimate aim. The authorities are called upon to strike fair balance
between the conflicting interests and in doing so, they enjoy a certain degree of margin
of appreciation.67
66
Handyside v. United Kingdom, judgment of 7 December, 1976, application no. 5493/72.
Young, James and Webster v. United Kingdom, judgment of 13 August, 1981, application no. 7601/76;
Ezelin v. France, judgment of 26 April, 1991, application no. 11800/85; National Union of Belgian Police
v. Belgium, judgment of 27 October, 1975, application no. 4464; Christian Democratic People’s Party v.
Moldova, judgment of 14 February, 2006, application no. 28793/02; United Macedonian Organization
Ilinden and Others v. Bulgaria, judgment of 19 January, 2006, application no. 59591/00; Ollinger v.
Austria, judgment of 29 June, 2006, application no. 76900/01.
67
27
2. Domestic law and practice
This part will be dedicated to the overview of the domestic law and practice of the
following five selected countries: Georgia, Ukraine, Latvia, Lithuania and Estonia.
2.1. Case of Georgia
2.1.1. Legal framework
The freedom of peaceful assembly is secured by Article 25 of the Constitution of
Georgia, which stipulates:
‘Everyone, except members of the armed forces and Ministry of Internal Affairs, has the right to
public assembly without arms either indoor or outdoor without prior permission’.68
The Constitution allows for the necessity of prior notification of the authorities as
prescribed by law, in case where a public assembly or manifestation is held on a public
thoroughfare.69 It also foresees that only the authorities have the right to discontinue a
public assembly or manifestation in case it assumes an illegal character.70
On 12 June, 1997, the Parliament of Georgia adopted a Law on Assemblies and
Manifestations71, which defined precise legal framework of holding assemblies and
manifestations. The very first article of this Law acknowledges that the rule of conduct
of assemblies and manifestations are established by the Constitution of Georgia,
international treaties and other laws of Georgia.72 The Law defines the conditions that
must be satisfied by the restrictive measure. Namely, (a) the restrictive measure shall be
aimed at securing community goods that are envisaged in Article 24(4)73 of the
68
Article 25(1) of the Constitution of Georgia, adopted on 24 August, 1995, official English translation
available at www.parliament.ge/files/68_1944_951190_CONSTIT_27_12.06.pdf last visited on 1 April,
2012.
69
Ibid. Article 25(2)
70
Ibid. Article 25(3)
71
Georgian Law on Assemblies and Manifestation, adopted on 12 June, 1997, available only in Georgian
at www.parliament.ge
72
Ibid. Article 1
73
Article 24 of the Constitution of Georgia:
‘1. Everyone has the right to freely receive and impart information, to express and impart his/her opinion
orally, in writing or by any other means.
2. Mass media shall be free. The censorship shall be impermissible.
3. Neither the state nor particular individuals shall have the right to monopolize mass media or means of
dissemination of information.
28
Constitution, (b) must be prescribed by law, (c) necessary in a democratic society, (d)
non-discriminative, (e) proportionally restrictive, (f) and the good protected by the
restriction must exceed the harm inflicted.74 The law also defines the meaning of
‘proportionality of the restriction’ and says that under the proportionality of the
restriction the most effective and the least restrictive means shall be employed to
achieve one of the legitimate aims envisaged in Article 24(4) of the Constitution of
Georgia.75
The Law on Assemblies and Manifestations establishes the obligation of organizers of
assemblies and manifestations to submit prior notification to local authorities five days76
before holding an assembly or manifestation, if the latter is held on the road or impedes
the traffic movement, save the cases where it is due to some other reasons unrelated to
the assembly or manifestation.77
The local authority may refuse to accept the notification, if (a) the notification does not
contain data required by Article 8(2) of the Law on Assemblies and Manifestations, (b)
the assembly or manifestation, according to its type, time and place of its holding,
coincides with the other assembly or manifestation, the notification of which has
already been submitted to the relevant authorities, (c) if the assembly or manifestation
poses substantial threat to the public safety and order, or constitutional rights and
freedom of others.78
The assembly or manifestation shall take place at the time and place mentioned in the
notification according to the aims and routes indicated. The organizers and participants
shall abide by the legislation of Georgia.79 The Law does not permit holding assemblies
and manifestations in the building and within 20 meters from the entrances of
prosecutor’s offices, police stations and prisons, railway stations, airports and ports. It is
4. ‘The exercise of the rights enumerated in the first and second paragraphs of the present Article may be
restricted by law on such conditions which are necessary in a democratic society in the interests of
ensuring state security, territorial integrity or public safety, for the prevention of crime, for the protection
of the rights and dignity of others, for prevention of the disclosure of information acknowledged as
confidential or for ensuring the independence and impartiality of justice.’
74
Article 2(3) of the Law on Assemblies and Manifestations.
75
Ibid. Article 3(h).
76
Ibid. Article 8(1)
77
Ibid. Article 5(1)
78
Ibid. Article 8(5)
79
Ibid. Article 8(9)(10)
29
also prohibited to organize assemblies and manifestations within 100 meters from
military units and objects. In addition, the Law does not allow for blocking entrances of
buildings, highways and railway. The administrative body may order organizers and
participants of assemblies to hold the assembly up to 20 meters away from the
administrative building in order to avoid blocking of the building and obstruction of
normal functioning of the institution. The same applies to the court buildings.80
According to Article 10 of the Law on Assemblies and Manifestation, the local
authorities, within three days after the receipt of the notification, may consider the issue
of reasonableness of changing the date and time of holding the assembly or
manifestation for the purpose of the prevention of disorder and ensuring the normal
functioning of state and public institutions, enterprises and transport. The persons
responsible for holding the assembly or manifestation shall be present at the hearing.
They may be given the recommendation on change of the date and time, if (a) the
assembly or manifestation poses a threat to the normal functioning of enterprises,
institutions and organizations, or the other public gathering has already been notified to
the relevant local authorities.
The participants of an assembly or manifestation are prohibited to have firearms,
explosives, inflammables, radioactive substances, cold arms, tear, neuroparalytic or
intoxicating substances, or any other item or substance, which is normally used or can
be utilized for the purposes of inflicting damages to participants or to other persons. It is
also prohibited to have alcoholic beverages and to willfully obstruct traffic movement.81
In case the participants partially or fully block the road, the local authorities are entitled
to make decision on the restoration of the traffic movement, where the number of
participants in the assembly or manifestation allows holding the meeting without
blocking the road. If the local authorities are unable to exercise this power, the decision
shall be adopted by the government of Georgia. Where it is impossible to hold the
assembly or manifestation without blocking the road, the local authorities shall ensure
the safety of participants and define the alternative routes for traffic. The Law also
stipulates that when adopting the aforementioned decision, the local authorities and the
80
81
Ibid. Article 9
Ibid. Article 11
30
government of Georgia shall take account of the surrounding circumstances and the
public interest.82
The local authorities are required to strike a balance between the right to freedom of
assembly and manifestation and the rights of those, who live, work and manage
enterprise at the place of holding an assembly or manifestation. They should enjoy their
rights freely, without interference. In doing so, it is permissible to impose restrictions on
the time and place of conduct of a meeting and in such case the options shall be
furthered. The restriction may be imposed in case of holding two, unrelated assemblies
or manifestations. No restrictions shall be applied for the purpose of the protection of
the rights of others, if those rights are being affected for the short period of time.83
The Law provides that the local authorities are called upon to ensure adequate
conditions for organizing an assembly or manifestation. The state institutions, officials
and citizens may not obstruct holding of the assembly and manifestation.84
Article 13 of the Law on Assemblies and Manifestations provides legal grounds for the
interference with the ongoing assembly or manifestation. Namely, where there is a
widespread violation of the requirements set forth by Article 11(2)(a) to (c)85, the
assembly or manifestation shall be terminated immediately upon the request of an
authorized representative to this effect. In case of failure to abide by this request, the
police authorities may use all measures envisaged by the Georgian legislation and
international law. If the violation is not widespread, but sporadic, and also there is a
violation of Article 11(2)(d) and Article 11(3), the organizer of an assembly or
manifestation is obliged to address the participants and take all reasonable measures to
put an end to violations within 15 minutes after having been warned by the authorized
representative. Where there is a violation of Article 11(2)(e) and/or a decision envisaged
82
Ibid. Article 111
Ibid. Article 112
84
Ibid. Article 12
85
Ibid. Article 11(2): The participants of an assembly or manifestation are not allowed:
(a) To have firearms, explosives, inflammables, radioactive substances and cold arms;
(b) To have any such item or substance that is normally used or can be utilized for the purpose of
inflicting harms to the life and health of participants of an assembly or manifestation or of any
other person;
(c) To have tear, neuroparalytic and/or intoxicating substances;
(d) To have alcoholic beverages;
(e) To willfully obstruct traffic movement, inter alia, to breach the requirements set forth by Article
111.
83
31
Article 111(1)86 is adopted, the organized, within 15 minutes after having been warned,
shall take all reasonable measures to ensure the participants free the road and let traffic
move. If the organizer fails to address participants and take all reasonable measures
within 15 minutes, he will be held responsible under the Georgian legislation. Then the
failure will be followed by police authorities taking steps as envisaged by the Georgian
legislation and international law. The decision on termination of an assembly or
manifestation may be appealed before the court, which shall examine the lawfulness of
the decision within three business days in each instance.
The local authorities are entitled to ban an assembly or manifestation, if the data
verified by police authorities suggest that the imminent threat is posed to the
constitutional order and to the life and health of civilians. A decision on banning may be
appealed before the court, which shall render its judgment within two business days.87
2.1.2. Practice
It has been repeatedly reported by local and international organizations that the
enjoyment of the freedom of peaceful assembly remains problematic in Georgia over
the years. The criticism is directed both to the legislative process and, most importantly,
towards the actual application of the relevant legislation.
The Law on Assemblies and Manifestations has been amended several times, mainly
following some major large-scale protest rallies. The government tended to introduce
more restrictive legal framework to discourage and confine future large-scale
assemblies. The first set of amendments was introduced in 2009, allegedly in response
to mass protests and the political crisis in the country. The Parliament of Georgia
adopted the amendments without waiting for the requested opinion from the Venice
Commission, but made a commitment to make further changes in line with
recommendations provided by the Venice Commission.88 The Venice Commission
remained particularly critical towards unnecessary restriction on the possibility to block
roads during assemblies.
86
Ibid. Article 111(1):
Ibid. Article 14
88
Monitoring Freedom of Peaceful Assembly in Georgia – Legislation and Practice, Human Rights
Centre (HRIDC), Tbilisi, 2012, p. 12, available at
www.humanrights.ge/admin/editor/uploads/pdf/English.pdf last visited on 6 April, 2012.
87
32
In March 2010, a new revised draft was sent to the Venice Commission, which had been
reconsidered in the light of the recommendations provided by the Venice Commission
in 2009. A new opinion published in March, 2010, contained fewer objections, but
again was critical as regards the basically unchanged restrictive rule concerning the use
of public roads in the course of assemblies. The revised draft was adopted later in 2011.
Importantly, in 18 April 2011, the Constitutional Court of Georgia delivered a judgment
and declared several provision of the Law on Assemblies and Manifestation
unconstitutional.89 The Constitutional Court declared void the most fiercely criticized
provision on banning of holding an assembly within 20 meters from a large number of
public administration buildings, which are enumerated in the Law and a clause on
immediate termination of a protest, if an assembly blocked a public thoroughfare or
violated other requirements of the law.
Further amendments were made to the Law on Assemblies and Manifestations after the
violent dispersal of the protesters in 26 May, 2011. As argued, these amendments
reintroduced some of the provisions abolished by the Constitutional Court in a less
restrictive manner.90
The two grounds have been invoked by the authorities to justify interference with two
large-scale assemblies that were dispersed respectively in 2007 and 2011. In November,
2007, as argued by the authorities, the police commenced to use physical coercion in
order to free the public thoroughfare.91 It was suggested that since the assembly could
have been held without blocking the carriageway, the blockage was unlawful and the
police were obliged to free the public thoroughfare. In May, 2011, the authorities
asserted that the time of holding of the assembly on the Rustaveli Avenue was expiring
and this fact rendered the assembly unlawful. The participants were required to disperse
to enable the authorities to celebrate the Independence Day of Georgia on the same
place. In both cases, the police resorted to disproportionate use of force that resulted in
protesters receiving various bodily injuries. Besides, a range of administrative
89
The judgment of the Constitutional Court of Georgia dated 18 April, 2011, available only in Georgian
at http://www.constcourt.ge/act_files/382.383,387,502.doc last visit on 6 April, 2012.
90
Monitoring Freedom of Peaceful Assembly in Georgia – Legislation and Practice, Human Rights
Centre (HRIDC), Tbilisi, 2012, p. 13.
91
Crossing the Line, Human Rights Watch Report, 2007, pp. 24-25, available at
www.hrw.org/sites/default/files/reports/georgia1207web.pdf last visited on 5 April, 2012.
33
detentions took place throughout Tbilisi, the capital of Georgia. From that time on, the
use of force and administrative detentions became serious detriment to the unimpeded
enjoyment of the freedom of assembly in Georgia.
In 2012, the Human Rights Watch issued a new reported titled - Administrative Error,
Georgia’s Flawed System for Administrative Detention. It is outlined in the summary
that ‘the report describes the lack of due process protections in Georgia’s administrative
offences code, which authorities have used in recent years to lock up protestors and
activists at times of political tension.’92 It is clear from the foregoing wording that the
Human Rights Watch has observed that the enjoyment of the freedom of peaceful
assembly in Georgia is impaired by mass administrative detentions.
The problems affecting the enjoyment of the freedom of peaceful assembly has been
echoed in the international plane. The two critical Reports of the Human Rights Watch
have already been mentioned above. Besides, the situation has critically been assessed
by the U.S. Department of State. The events that took place on 7 November, 2007 were
described in the annual report of the U.S. Department of State of 2007.93 In the next
year’s Report it was mentioned that although the investigation had been opened on
bodily injuries sustained by the protestors on 7 November, 2007, no tangible results
were made public.94 The U.S. Department of State has also emphasized the increase of
the term of administrative detentions from 30 to 90 days, which was done in parallel
with the ongoing protest rallies.95 According to the same source, administrative
detentions and imposition of fines have continued in response to the enjoyment of
freedom of assembly in 2010.96
Administrative Error - Georgia’s Flawed System for Administrative Detention, Human Rights Watch,
2012, p. 1, available at www.hrw.org/sites/default/files/reports/georgia0112forUpload.pdf last visited on
5 April, 2012.
93
Country Reports on Human Rights Practices, Georgia 2007, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2007/100560.htm last
visited on 2 April, 2012.
94
Country Reports on Human Rights Practices, Georgia 2008, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2008/eur/119080.htm last
visited on 4 April, 2012.
95
Country Reports on Human Rights Practices, Georgia 2009, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2009/eur/136032.htm last
visited on 5 April, 2012.
96
Country Reports on Human Rights Practices, Georgia 20010, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2010/eur/154425.htm
last visited on 5 April, 2012.
92
34
The parliamentary Assembly of the Council of Europe has welcomed the cooperation
between the government of Georgia and the Venice Commission with respect to the
problems related to the Law on Assemblies and Manifestations and has urged both
parties to cooperate in future to eliminate discrepancies in the legislation.97
It has to be mentioned here that the Court did not have an opportunity to rule on the
alleged systematic violations of the freedom of peaceful assembly in Georgia. As
reported by Georgian human rights NGOs, a considerable number of applications have
been submitted to the Court and judgments are still to come in the nearest future. Before
that time, all parties concerned shall rely generally on the case-law of the honorable
Court. The only case, where the Court approached the issue of protection of a peaceful
meeting, was the case of 97 members of the Gldani Congregation of Jehovah’s
witnesses. In this case the Jehovah’s witnesses were attacked and assaulted during their
peaceful gathering. The Court ruled that the Georgian government had failed to respect
its obligations under Articles 3 and 9 of the Convention. Consequently, it arrived at the
conclusion that it was not necessary to examine the application also under Articles 10
and 11 of the Convention.98
97
The honouring of obligations and commitments by Georgia, Parliamentary Assembly, Council of
Europe, 28 March, 2011, available at
www.assembly.coe.int/Documents/WorkingDocs/Doc11/EDOC12554.pdf last visited on 5 April, 2012.
98
97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, judgment of
3August, 2007, appl. no. 71156/01, para. 144.
35
2.2. Case of Ukraine
2.2.1. Legal framework
The Constitutional Court of Ukraine phrased the essence of the freedom of assembly in
the following fashion: ‘The right of citizens to assemble peacefully without arms and
hold meetings, rallies, marches and demonstrations, enshrined in the article 39 of the
Constitution of Ukraine is the inalienable and the inviolable right, guaranteed by the
Supreme Law of Ukraine.’99 Article 39 of the Constitution of Ukraine provides:
‘Citizens have the right to assemble peacefully without arms and to hold meetings, processions
and demonstrations, upon notifying in advance the bodies of executive power or bodies of local
self-government. Restrictions on the exercise of this right may be established by a court in
accordance with the law and only in the interests of national security and public order, with the
purpose of preventing disturbances or crimes, protecting the health of the population, or
protecting the rights and freedoms of other persons.’
According to Article 8 of the Constitution of Ukraine the above provision, together with
other provisions of the Constitution, has a direct effect. Besides, Ukraine is a
Contracting Party to the Convention, which is a part of the domestic legislation under
Article 9 of the Constitution of Ukraine, which states:
‘Current international agreements of Ukraine, the binding nature of which has been ratified by
the Verkhovna Rada of Ukraine, are a part of domestic legislation and shall be applied under the
procedure provided for the norms of domestic legislation. If the international agreement of
Ukraine, which has come into force under the set procedure, sets the rules other than those
envisaged in the respective act of Ukrainian legislation, the rules of international agreement
shall apply.’
Although the Constitution of Ukraine precisely defines the scope of the right to peaceful
assembly, there is no precise procedure for unhindered exercise of this right. There is no
unified law on assemblies, but instead there are dozens of acts, where one should look
for the relevant provisions. It is reported that the local authorities rely on several acts
when dealing with assemblies. These acts include the Constitution of Ukraine, the ruling
of the Constitutional Court of Ukraine of 19 April, 2011, Code of Administrative
99
The decision of the Constitutional Court of Ukraine of 19 April, 2011.
36
Procedure of Ukraine, the Decree of the Presidium of Verkhovna Rada of the USSR
from 28.08.1988 #9306-XI ‘on the order of organizing and holding meetings, rallies and
street processions and demonstration in the USSR’, the Convention, the Law on the
Improvements of Human Settlements, the Decree of Verkhovna Rada of 17 December,
1993 and International Covenant on Civil and Political Rights. As suggested, local
regulations on the procedure for dealing with applications for meetings has been found
in 11 out of 26 cities of Ukraine.100
This vague situation as regards the regulation of the enjoyment of the freedom of
peaceful assembly may soon come to an end, as the draft Law on Peaceful Assemblies
of Ukraine (‘draft Law’) is expected to be enacted in the nearest future. Accordingly, it
is interesting to have a look what the legal framework will be, when the new law
becomes effective. Below, we will go through the draft Law.
The draft Law defines the notion of a ‘peaceful assembly’ as gatherings, meetings,
crusades, demonstrations and other forms of peaceful assemblies, which are held in
public peacefully and without arms aimed to free expression of the participants’ views
before a certain recipient, advocacy of their views, support of the opinion of others or
protesting against the views of others and realization of other rights and freedoms. The
draft Law also provides the legal definition of ‘due notice’, ‘counter-demonstration’,
‘simultaneous peaceful assembly’, ‘organizer of peaceful assembly’, ‘notification on
holding a peaceful assembly’, ‘public place’ and ‘spontaneous peaceful assembly’,
‘participant of a peaceful assembly’.101 Article 2(2) of the draft Law protects the
freedom of assemblies of a peaceful nature. The assembly, the participants of which
widely and intentionally resort to physical violence towards other persons or their
property, shall be considered as such that has lost the peaceful nature.
Importantly, Article 4 of the draft Law contains a list of principles for the exercise and
protection of the freedom of peaceful assembly. These principles include the priority of
holding a peaceful assembly, voluntary participation in a peaceful assembly, lawfulness
of restrictions and the proportional limitation of the freedom of peaceful assembly. The
100
Information available at www.world.maidan.org.ua/2011/the-right-inalienable-and-inviolabe last
visited on 2 April, 2012.
101
Article 1 of draft Law on Freedom of Peaceful Assembly of Ukraine, available in English at
www.venice.coe.int/docs/2010/CDL(2010)081-e.pdf last visited on 2 April, 2012.
37
priority principle provides that the freedom of assembly shall be exercised in any form
and manner, if not expressly restricted by the law. It also implies that the failure to
submit notification on holding a peaceful assembly may not constitute a ground for the
imposition of restrictions. It is stipulated in Article 5 that a due notice on holding a
peaceful assembly shall obligate the respective authorities to protect the participants of a
peaceful assembly.
The draft Law, taking into account the relevant provision of the Constitution of Ukraine,
sets judicial guarantees as to the restriction of the freedom of peaceful assembly. The
freedom of peaceful assembly may be limited by the court only on the basis of the
Constitution of Ukraine and the Law on Peaceful Assemblies in the interests of national
security and public order to prevent public disorder or crime, to protect the health or the
rights of others and if it is necessary to do so in the democratic society. Interestingly, the
draft Law contains the list of what may not constitute a ground for restriction of the
freedom of peaceful assembly. The list includes (a) place of a peaceful assembly, (b)
time of holding the peaceful assembly and (c) its duration, (d) absence of an organizer
in the event of spontaneous peaceful assembly, (e) absence of notification, (f) existence
of counter-demonstration or a simultaneous peaceful assembly; (g) holding of sports,
concerts, festivals, folk holidays, official visits and other public and state sponsored
events at the same time of the peaceful assembly, (h) blocking of streets and roads by
the participants if it continues for a short time and (i) failure of law-enforcement
agencies to ensure public order. The list is followed by the provision, which provides
that ‘the court may prohibit holding of a peaceful assembly only in the event, when
imposition of other types of freedom of peaceful assembly limitation has not removed
the threat to the protected interests. The court decision may not be grounded on
assumptions and must contain the evidence of the threat posed to the aforementioned
interests.
In its turn, Article 9 of the draft Law establishes the principle of proportionality worded
as ‘proportional limitation of the freedom of peaceful assembly’. Paragraph 2 of Article
9 provides that if the threats to the interests enlisted in Article 7(1) cannot be eliminated
by any other means, as a measure of last resort, the court may adopt a decision on
restricting the freedom of peaceful assembly relying on the principle of proportional
38
limitation, according to which the freedom of peaceful assembly may be limited only to
the least extent necessary.
Article 10 of Section II enumerates the rights of the participants of a peaceful assembly,
among which there are the right to freely participate in and leave the assembly; the right
to use various symbols and other means to express their views, as well as propaganda
means not prohibited by the active legislation; the right to pass and forward resolutions,
suggestions, requests and petitions to state authorities and local self-government bodies,
organizations, institutions enterprises regardless of the form of ownership. Importantly,
this Article establishes the participant’s right to be protected from opponents and claim
compensation of moral and material damages inflicted on them during a peaceful
assembly. If the damage is inflicted due to the authorities’ failure to discharge their
obligations, the respective authorities shall be held liable for such damage. Along with
the rights of participants, Article 11 of the draft Law sets forth the obligation of
participants not to carry weapons, explosives, special personal defense devices or
special devices used for public order protection.
Article 14 of the draft Law contains the obligations of the organizer of a peaceful
assembly, which includes the obligation to ensure public order as much as possible (not
an obligation to replace law-enforcement agencies). If a peaceful assembly is held on
the driveway of a street or road, the organizer shall submit to the respective authority
the notification on holding a peaceful assembly indicating its route. The organizer and
participants are under an obligation to let vehicles of special task forces pass through,
where it is needed. The organizer shall observe the noise level established by the
sanitary norms at the night time and not to use loudspeakers, audio and video equipment
near healthcare or resort facilities, boarding schools and educational establishments.
Further, Article 15 is called on to ensure that authorities and any other entity consider
and respond to the resolutions, proposals, demands and appeals of the participants of a
peaceful assembly.
The draft law has explicitly given preference to the ‘notification system’. Notifications
have nothing to do with the restriction of the freedom of peaceful assembly, as the
relevant authorities are not entitled to refuse to register the notification. The aim of
notification is to keep relevant authorities informed, so they could protect the
39
participants of the assembly and take all appropriate measures. The power to ban a
peaceful assembly rests solely with the Ukrainian courts.
Article 18 envisages different time-limits according to the special circumstances
surrounding an assembly. Article 18(9) provides that the notification on holding a
peaceful assembly within the territory of one settlement or one district shall be
submitted not less than six hours prior to its beginning, and if approximate number of
peaceful assembly participants exceeds 1000 persons, the notification shall be submitted
not less than twenty-four hours prior to its beginning. According to Article 18(10), the
notification on holding a peaceful assembly on the territory of more than one district
(circuit) of an oblast, cities of Kyiv and Sevastopol shall be submitted not less than
twenty-four hours before its beginning. Paragraph 11 of the same Article states that the
notification on holding a peaceful assembly on the territory of more than one oblast,
Autonomous Republic of Crimea, or if such a peaceful assembly exceeds the territory of
the cities of Kyiv and Sevastopol, it shall be submitted not less than forty-eight hours
prior to its beginning. The last Paragraph 12 of Article 18 governs notifications
regarding peaceful assemblies at the penitentiary establishment. In this case the
notification shall be submitted twenty-four hours before the beginning of an assembly.
Article 21 of Section II provides that immediately after having received the notification
on holding a peaceful assembly, the relevant authorities shall notify police authorities.
The relevant authority, together with the organizer of a peaceful assembly and police,
shall ensure public order and safety of peaceful assembly participants and other persons.
For this purpose, the relevant authority may apply to the organizer with the proposal to
agree the matters related to holding of a peaceful assembly. In case of simultaneous
peaceful assemblies, counter-demonstrations are held or peaceful assemblies are located
near the venues of other public or state events, the respective authority may, if
necessary, create an approval commission including the organizer in order to approve
the place, duration and time of holding of the assembly to secure exercise of the
freedom of peaceful assembly and ensure protection of public order. Importantly, this
Article states that the decision of the approval commission shall be of advisory nature.
In addition, the relevant authorities are required to provide emergency medical aid to the
participants and other persons, where this is necessary. Furthermore, they shall also
ensure cleaning of the territory of holding a peaceful assembly and it is prohibited to
40
demand payment for the above services from the organizer or participants of a peaceful
assembly. It has to be underlined that the draft Law contains a provision that entitles an
organizer, participants and other persons to claim damages from authorities for the
improper performance of their duties as regards holding of peaceful assemblies.
Similarly, Article 22 of the draft Law defines powers and duties of police authorities.
The police shall ensure protection of organizers and participants of a peaceful assembly
and their property. In case of spontaneous peaceful assembly, the police authorities have
duty to protect organizers and participants as soon as they receive information on the
beginning of the spontaneous peaceful assembly. This Article outlines the positive
obligation of the police authorities with respect to counter-demonstration. In the event
of public disorder during a peaceful assembly, the police shall isolate and stop the
disturbance of public order without terminating a peaceful assembly. It is important to
mention here that the police authorities are entitled to terminate a peaceful assembly to
enforce a final court decision on restriction of the freedom of peaceful assembly and in
the absence of such decision, where the assembly has lost peaceful nature and posed a
threat to the people’s life or health may restrict or terminate the assembly, if other
measures to control the persons who disturb public order have turned to be ineffective.
In such case, the police authorities shall be governed by the principle of proportionality.
Besides, the police may resort to physical coercion in limited circumstances as defined
by the Ukrainian legislation. Here again, the draft law allows the possibility of holding
liable the police for the failure to discharge or improper performance of their duties.
The draft Law affords the beneficiaries of the freedom of peaceful assembly the court
protection. It establishes a special standard of proving the necessity in a democratic
society of restricting the freedom of peaceful assembly. Article 23(3) stipulates that the
relevant authorities must prove, based on the facts, the necessity to restrict the freedom
of peaceful assembly.
The final provisions of the draft Law envisages a requirement to amend Articles 182
and 183 of the Code of Administrative Proceedings of Ukraine to foresee specific
features of proceedings regarding imposition of s restriction and specific features of
proceedings where the elimination of obstacles to and interference with the exercise of
the freedom of peaceful assembly is concerned. The claim concerning restriction of the
41
freedom of peaceful assembly shall not be considered by the courts, if the claim is
submitted on the day of or after the peaceful assembly. The hearing shall be resumed
within three days or even immediately, if the claim is lodged with the court less than
three days before the contested event.
The draft Law sets precisely what shall be included in a court decision. It shall contain
(a) a statement of facts and evidence proving the threat to the protected interests, (b)
reasoning as regards extreme necessity to restrict the freedom of peaceful assembly in
democratic society taking into account the case-law of the Court and (c) the manner of
restriction of the freedom of peaceful assembly and the issue of proportionality.
The court decision may be appealed before a court of appeals, which shall consider the
appeal within three days and if the appellate proceedings are initiated less than three
days prior to the date of the event, the court of appeals shall adjudicate the appeal
immediately. The same time-limits apply to the proceedings before the courts of the first
and appellate instances in cases concerning elimination of obstacle to and interference
with the exercise of the freedom of peaceful assembly.
2.2.2. Practice
The Ukrainian NGOs assert that the practical implementation of the freedom of peaceful
assembly remains problematic over the years. According to the data102 available in the
public domain, in 23 cities of Ukraine, city councils appealed to courts to ban 64
assemblies in 2011. Courts supported such applications in 53 cases (82%). In some
cities, local authorities did not apply to the court and banned the assemblies without
court order.103 As reported, Kharkiv city council even refused to accept an application
for a meeting.104
As to the grounds for banning assemblies, ‘the threat to interests of national security or
public safety’, ‘cases of several applications for a public meeting in the same place’,
‘cases where the number of participants is higher than territorial capacities’ and
102
Information available at http://world.maidan.org.ua/2011/the-right-inalienable-and-inviolable last
visited on 5 April, 2012.
103
Information available in Russian at http://gorod.lugansk.ua/index.php?newsid=5047 last visited on 5
April, 2012.
104
Information available in Russian at http://glavnoe.ua/news/n83150 last visited on 5 April, 2012.
42
‘incompatibility with local regulations’ was most often invoked. It was observed that
the local authorities misused the ground for banning the assembly where there were
several applications for a public meeting in the same place. It is alleged that when
someone applies for a public meeting that local authorities do not want to take place, an
organization affiliated with the authorities also submits an application for a public
meeting in the same place and at the same time, subsequently, the local authorities apply
to the court with a request to ban both public meetings and obtain an order on banning
of both meetings. As a result, the freedom of peaceful assembly is impaired in Ukraine.
There are no uniform rules governing the freedom of peaceful assembly and the local
authorities have adopted local regulations, which, in many cases, contradict the
Constitution of Ukraine. Existing local regulations make it overly complicated to hold a
public meeting. For example, in Dnipropetrovsk and Rivne a meeting can be banned if
the ‘organizers statute does not foresee the activities related to organization of events’;
in Zhytomyr ‘an organizer is required to enter into agreements with organizations
recommended by the authorities in order to ensure public order, traffic safety, fire
protection, sanitary norms, etc.’ In Kyiv, regulations of 2005 prohibit assemblies in the
city centre and the use of tents and megaphones. The time-limits of application to the
local authorities concerning holding of a public meeting vary from 10 to 30 days.
The U.S Department of State has been monitoring the course of events in Ukraine as
regards the freedom of peaceful assembly. The country reports on human rights
practices of the U.S. Department of State always include a chapter solely dedicated to
the freedom of assembly.
The U.S. Department of State has constantly noted that there is no national law
governing the freedom of peaceful assembly and the local authorities often applied
regulations of the Soviet era, which are more restrictive than the constitution of
Georgia. This is outlined in all annual reports concerning Ukraine.
As reported by the U.S Department of State, according to the Department of Civil
Defense of the Ministry of Internal Affairs, in 2005 administrative charges were brought
against 40 organizers and active participants for infringements in organizing and
holding gatherings. In November 2005, the Kyiv city authorities decided to allow events
43
only in downtown areas that had been approved either by a decree from the president or
Cabinet of Ministers or by a decision of the Kyiv city council or city administration.
The Kyiv city administration tried to impose restrictions on demonstrations on several
occasions during the year, but the courts overruled the city government. In May 2005,
the mayor of Kherson banned a rally by market vendors because they did not inform the
city council 25 days in advance and they were not allowed to protest in front of the city
council. On October 13, the Shevchenkivskyi neighborhood court in Kyiv prevented
communists, nationalists, and Chornobyl organizations from holding protests in
downtown Kyiv on the anniversary of the founding of the Ukrainian Insurgent Army.
The court argued that this decision was based on an assumption by the Kyiv city
administration, police, and president's secretariat that such rallies would result in
violence and bloodshed as had occurred in 2005.105
The following developments were observed in the report of 2007. According to the
Ministry of Interior, during the year administrative charges were brought against 91
individuals for infringements of the law on organizing and holding public gatherings. Of
these, 64 received warnings, 13 were fined, three were placed under administrative
arrest and three cases were forwarded to court; seven criminal cases were initiated. In
March the Babushkinskiy Court in Dnipropetrovsk upheld an appeal by the NGO
Republic to abolish the Dnipropetrovsk city council requirement that public rallies be
held in a specially designated area with one designated route for rally participants. To
meet the requirement, organizers had to receive approval from eight municipal agencies.
On September 25, the district administrative court in Kyiv overruled an appeal by the
Kyiv city administration to restrict public demonstrations in the city's Independence
Square and other central squares during September 24-30 (the period surrounding the
parliamentary elections). The court argued that, during electoral campaigns, political
parties and blocs were allowed to hold public demonstrations as long as they did not
violate any laws.
In many cases, local authorities' prohibitions of public rallies were politically motivated.
On May 29, Kharkiv city authorities did not allow a charitable foundation led by
105
Country Reports on Human Rights Practices, Ukraine 2006, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2006/78846.htm last
visited on 6 April, 2012.
44
opposition politician Oleksandr Feldman to conduct public events marking International
Child Protection Day. According to Feldman's charitable foundation, this was the first
such incident in ten years.
Public rallies by the opposition People's Self Defense Movement were banned in the
eastern cities of Kharkiv and Vasylkivtsi during the spring. On September 21, riot
police in Odesa violently broke up a demonstration of 300 persons calling themselves
Cossacks who protested the erection of a monument to Russian Empress Catherine II.
The clash occurred after a Primorsk district official announced that a court banned any
public rallies at the site of the demonstration.
Police in Odesa also failed to protect demonstrators from violence. On September 4, the
Odesa city police opened a criminal case after 50 activists from the nationalist Freedom
(Svoboda) NGO and pro-Ukraine Enlightenment (Prosvita) NGO were beaten by
members and supporters of the pro-Russia Unified Motherland organization while
police and city officials stood nearby.106
The same situation was maintained in 2008107, 2009108 and 2010109. The banning of
assemblies, bringing charges against organizers and participants of assemblies, clashes
between opposing groups remained a common practice.
2.3. Case of Latvia
2.3.1. Legal Framework
The freedom of peaceful assembly is governed by the Constitution of the Republic of
Latvia and by the Law on Meetings, Street Processions and Pickets („Par sapulcēm,
gājieniem un piketiem”) (hereinafter ‘Latvian Law on Assemblies’). Article 103 of the
106
Country Reports on Human Rights Practices, Ukraine 2007, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2007/100590.htm
lasted visited on 6 April, 2012.
107
Country Reports on Human Rights Practices, Ukraine 2008, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2008/119110.htm
lasted visited on 6 April, 2012.
108
Country Reports on Human Rights Practices, Ukraine 2009, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2009/eur/136063.htm
lasted visited on 6 April, 2012.
109
Country Reports on Human Rights Practices, Ukraine 2010, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2010/eur/154456.htm
lasted visited on 6 April, 2012.
45
Constitution stipulates: ’The State shall protect the freedom of previously announced
peaceful meetings, street processions and pickets’. 110
Latvian Law on Assemblies recognizes three forms of assemblies, which include
meetings, street processions and pickets. 111 Notification of the State or local authorities
is not required for (a) closed meetings, (b) meetings without public announcement, (c)
meetings and processions organized by State or local authority, (d) meetings organized
by a trade union on its workplace, (e) open indoor meetings. By contrast, notification of
the State or local authorities is required for (a) a picket with public announcement, (b)
Meeting, street procession or picket, which disturbs traffic. 112
Notification should be given to the local authority, a territory of which will be used for
the assembly. Written notification should be given no later than 10 working days before
the date of an assembly. If within the relevant time-limit the purpose of the assembly
could not be identified, a notification should be given not later than 24 hours before date
of an assembly.113
After receiving a notification, local authority shall review its compliance with legal
requirements. Furthermore, local authorities shall assess how the proposed assembly
affects other public events or events organized by the State or local authority; how the
assembly affects traffic; and how the assembly affects human rights, democratic values,
public security or moral values. The local authority shall also consult with the police.
If during consideration of a notification the circumstances come out, because of which
an assembly may not be organised in specified form, in the indicated time or place,
special requirements to an assembly may be introduced and considered, but only in
participation of organizers of an assembly, local authority and police. 114
The local authority may prohibit an assembly, in case an assembly negatively affects
human rights, democratic values, public security or moral values. If the local authority
110
Constitution of Latvia, adopted on 15.02.1992, official English translation available at
http://www.likumi.lv/doc.php?id=57980
111
Law on Meetings, street processions and pickets, adopted on 16.01.1997, available in Latvian at
http://www.likumi.lv/doc.php?id=42090
112
Ibid. Article 12.
113
Ibid. Article 13.
114
Ibid. Article 15.
46
prohibits an assembly, a decision may be appealed before the court. The court shall
deliver its judgment within 3 days.115
The Latvian Law on Assemblies prohibits blocking of an approach or entrance to the
building of the State or local authority. Also it is prohibited to negatively affect security
and working processes in a building of the State or local authority. 116
As regards conduct of intended activities for the purposes of the assembly, importantly,
the organizer of an assembly is required to employ at least two security guards, if there
are more than one hundred participants at the assembly.
117
The organizers and
participants are not allowed to (a) appeal against independency of the Republic of
Latvia, propose to forcibly change the political system of the Republic of Latvia,
propose to ignore laws and rules, propagandize ideas of nationalism, racism, fascism or
communism, propagandize war etc;
118
(b) to hold arms, substances or other objects,
which are designed to cause bodily injuries or material damages; (c) to have special
equipment (helmets, hard hats, bullet-proof vest etc.); (d) to hide faces behind masks;
(e) use symbols, flags, emblems or national anthems of ex-USSR, Latvian SSR or Nazi
(also stylized symbols); (f) to disregard public moral; (g) to endanger health or security
of the participants of an assembly. 119
In case participants of an assembly violate rules or do not obey requirements of the
organizer of the assembly, organizer should interrupt an assembly or ask police (if
police is controlling an assembly) to restore order. 120
2.3.2. Practice
The law must be supported by the appropriate practice of its application. The rights and
safeguards established by the law shall be practical, not illusory. Therefore, the
assessment of effectiveness of legal remedies is primarily linked to the domestic
practice. In this part of the paper, we will look at the practice established in Latvia as
regards the freedom of peaceful assembly.
115
Ibid. Article 17.
Ibid. Article 14.
117
Ibid. Article 9.
118
Ibid. Article 10.
119
Ibid.
120
Ibid. Article 23.
116
47
According to the data provided by the Latvian Centre for Human Rights (hereinafter
‘LCHR’) there is a persistent problem related to the enjoyment of the freedom of
peaceful assembly in Latvia. The LCHR has long been producing annual reports on
major human rights issues the counrty. In its report of 2005, the LCHR concluded the
following:
‘The right to freedom of assembly, arguably the main civil liberties problem in the past few
years, continued to raise concern. Parliamentarians had already in the previous year shown their
propensity to increase restrictions on this right as a response to the demonstrations on minority
education.’121
It was suggested that the necessity to restrict protest actions originated after the first
confrontational counter-demonstrations took place on 16 March, 2005, a controversial
date when some Latvians commemorate the World War II Legionnaires, who, although
seen by sympathizers as nationalists fighting for Latvian independence, were a unit of
the Nazi German Waffen military.122
In 2005, the radical nationalist youth groups ‘Klubs 415’ and ‘Visu Latvijai!’ (all for
Latvia!) were denied to organize a march. The decision on denial was appealed before
the court successfully. The court stressed that the refusal to grant the permission
violated the freedom of assembly. Consequently, the event took place in parallel with
the organization ‘Homeland-Russian National Union’ dressed in what was supposed to
symbolize concentration camp prisoner uniforms held an anti-fascist picket for which
they had not received the required permission. They attempted to block the march of
nationalist youth by forming a human chain. The police interfered and as a result, 35
persons were detained.123
Some other assemblies that were planned for that period did not receive the required
permission on various grounds. For example, one of the assemblies was denied to take
place on the basis of the organizer having a record of administrative violations. Others
were refused on the ground they disturbed traffic and pedestrians. In some cases, the
121
Human Rights Report 2006, Latvian Centre for Human Rights, p. 242.
ibid. 242.
123
Human Rights Report 2006, Latvian Centre for Human Rights, p. 243.
122
48
participants were charged for variety of reasons ranging from the failure to observe
regulations of public events to making too much noise and trampling lawns.124
Problems remained as to the freedom of assembly in 2006, as the planned ‘Riga Pride
2006’ gay event triggered controversy. The event was refused to take place by the local
authorities. The administrative court upheld the decision on banning the event.
Importantly, along with existing problems the year of 2006 was marked with positive
developments. Namely, the parliamentarians successfully challenged before the
Constitutional Court of Latvia several restrictive amendments to the Latvian Law on
Assemblies made in 2005.125 The Constitutional Court declared several provisions
unconstitutional, including the requirement to apply for permit, and supported instead a
system of simple notification. Furthermore, it found unconstitutional the 50 meter
distance prescribed with respect to official buildings; the requirements of organizers of
an event to submit a contract on hiring security guards before applying for a permit; and
the time-limits for municipality to prohibit an event.126
In 2007, the authorities denied to hold a march planned by the ethnic-Russian Latvian
Nationalist Democratic Party to demand citizenship for all residents. The denial was
grounded on the applicants’ alleged record of activities instigating racial hatred.127 It has
to be noted here that the Party was allowed to hold the rally only at one location.
On 13 January, 2009, 10 000 people gathered in Dome Square, Riga to protest the
country’s worsening economic situation. The rally turned violent, as a crowd of several
hundred persons threw stones at government buildings and smashed police cars and
windows. Police used truncheons and mace and detained approximately 120 protesters,
many of whom were reported to be intoxicated.
124
Ibid. p. 244.
Human Rights Report 2007, Latvian Centre for Human Rights, p. 104.
126
Judgment of the Constitutional Court of Latvia dated 23 November, 2006, case no. 2006-03-0106.
127
Country Reports on Human Rights Practices, Latvia 2007, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2007/100567.htm lasted
visited on 7 April, 2012.
125
49
In May 2009, the local authorities denied to hold Baltic gay pride to which they had
previously consented two days before the event was to take place.128 The court
overturned the local authorities’ decision on banning the Baltic gay pride stressing that
once the street procession had been allowed, the local authorities did not have any
reasons to ban the event, as they did not acquire any new information, which would lead
to the conclusion that the street procession would have endangered rights of others,
democratic system of the State, public safety, health and morals. The court emphasized
that the decision did not contain facts and it was based only on general phrases about
danger to public order and security. It also outlined that the authorities are not allow to
assess the announced assemblies by their content. The guarantees of the freedom of
assembly shall be afforded to all assemblies irrespective of the fact whether or not the
content is in conformity with the general state policy or attitude of the majority of the
society.129
Importantly, in May 2010, the organizer of a protest in support of hacker Ilmars Poikans
and reporter Ilze Nagle was detained for the failure to notify the local authorities about
the planned event. Charges were later dropped. The problems remained with respect to
the commemoration of Latvian soldiers serving in German Waffen SS units and
marking the anniversary of the German army’s entry into Riga in 1941. In both
instances, the court protected the enjoyment of the freedom of peaceful assembly by
quashing the decisions of the local authorities on banning the abovementioned events.130
128
Country Reports on Human Rights Practices, Latvia 2009, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2009/eur/136040.htm
lasted visited on 7 April, 2012.
129
Decision of the District Administrative Court of 15 May, 2009, case no. A43781509 A7815-09/18.
130
Country Reports on Human Rights Practices, Latvia 2009, Bureau of Democracy, Human Rights, and
Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2010/eur/154433.htm
lasted visited on 7 April, 2012.
50
2.4. Case of Lithuania
2.4.1. Legal Framework
The freedom of peaceful assembly is governed by the Constitution of Lithuania and the
Law on Meeting. The Law lays down condition of ensuring the constitutional right of
the citizens of the republic of Lithuania to assemble unarmed in peaceful meetings. It
recognizes various forms of meetings, which include meetings, pickets, demonstrations,
parades, various processions, other peaceful unarmed meetings.131 According to Article
5 of this Law, meetings organized in accordance with the procedure laid down by this
Law shall not require advance permission of the State or local authorities. Organizers
shall simply coordinate the place of meetings (itinerary of parades and processions),
time and any other procedure of organization thereof with the local authorities.
The Law envisages a special rule, which governs the selection of the place of a peaceful
meeting. Article 6 of the Law defines that meetings can be organized in public places,
i.e. streets, squares, parks of cities and townships as well as other public places and
common-use buildings. Local authorities may define permanent places or premises for
meetings. Article 6 also stipulates that it shall be prohibited to organize meeting, pickets
and other actions of groups or individual persons in state government and administration
establishments, premises of local authorities, police, penal institutions, social
rehabilitation, national defense, security service, prosecutor’s office, courts, military
units and facilities, national banks, enterprises and nuclear power and other enterprises
of special labor safety regime or protected by the armed guard. Meetings near the
Seimas of the Republic of Lithuania, the residency of the President of the Republic,
buildings of the Government or courts may be organised not closer than 75 meters and
near other state government and administration establishments, foreign diplomatic
missions, establishments of local authorities, prosecutor’s office, the Ministry of the
Interior, the Ministry of National Defence, military units and other facilities of special
labour safety regime or protected by the armed guard – not closer than 25 meters from
the main entrance to these buildings or facilities; in all cases free access to the said
buildings shall be guaranteed.
131
Article 3 of the Law on Meetings of the Republic of Lithuania, 1993, available in English at
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=324123 last visited on 5 April, 2012.
51
Article 7 of the Law provides that public meeting may be held from 8 am to 11 pm and
only at the time coordinated by the organizers with local authorities. After coordination
meetings may also be organised at a different time, but only in lighted places and
without disturbing the rest of other people. A local authority may fix a set time for
meetings in permanent places or premises designated for that purpose.
Importantly, the Law foresees certain circumstances, the existence of which may call for
the prohibition of a meeting. Article 8 states that the meeting shall be prohibited, if
participants (a) hold arms (firearms or silent arms, things specially designed to cause
bodily injuries, set fire or case material damage or things that although not specifically
suited for the said purposes, can be practically used for said purposes) or possess
inflammable, potent or radioactive materials, alcoholic beverages; (b) wear military
uniforms or are armed with passive weaponry (helmets, bulletproof vests, etc.); (c) hide
their faces behind masks or are otherwise camouflaged so they cannot be recognised –
that proves their readiness to make violations of law; (d) drive vehicles in a way which
causes threat to road safety, endangers safety and health of the participants of a meeting
and other persons, violates public order and peace; (e) are naked or otherwise cynically
violates morals with their appearance or things they possess or demonstrate; (f) during
meetings evidently instigate to violate or violate the Constitution or laws of the
Republic of Lithuania by speeches they deliver, posters, slogans, audiovisual measures
and other actions; (g) demonstrate the flag or coat of arms of Nazi Germany, the USSR
or the Lithuanian SSR, or a flag, coat of arms or uniform the constituent part of which is
the flag or coat of arms of Nazi Germany, the USSR and the Lithuanian SSR, the
images of the leaders of the German National Socialist Party or the USSR Communist
Party, responsible for repressions of the Lithuanian population, the symbols or uniforms
of the Nazi or Communist organisations, or the flags or badges composed on the basis
of the flag or coat of arms of Nazi Germany, the USSR or the Lithuanian SSR, the
symbols of the Nazi swastika, the Nazi SS, the Soviet hammer and sickle, the Soviet
five-pointed red star, perform the national anthem of Nazi Germany, the USSR or the
Lithuanian SSR.
Article 9 of the Law on Meetings imposes an obligation on the organizer of a meeting to
provide written notification no later than five working days before the date of holding a
meeting. If a meeting is organised in a permanent place or premises designated by the
52
local authority for that person and at the set time, and the number of participants is
limited (up to 100 individuals), local authorities shall be informed about organisation of
a meeting, but a written notification shall not be necessary. In addition, it shall not be
necessary to inform about pickets in which not more than 10 individuals participate. The
local authorities are obliged to consider the notification within three working days and
not later than 48 hours before the beginning of a meeting. If during consideration of a
notification the circumstances come out because of which a meeting may not be
organised in the form specified in the notification, in the indicated time or place, then
proposals concerning other forms, place and time of a meeting may be introduced and
considered, but only in participation of organizers of a meeting.
After having considered the notification, the local authority may either issue a
certificate concerning the coordinated place, time and form of a meeting or refuse to
issue such certificate.132 The decision to refuse to issue the certificate may be appealed
before the court within 10 days and the court shall deliver its judgment on the issue
within 3 days.133
Even when the appropriate certificate has already been issued and everything is set to
hold a meeting, local authorities may still ask the organizer to cancel the meeting, if it is
established that new circumstances provided for in the Law come to exist, because of
which a meeting may not be organized in the coordinated place, at the coordinated time
and in the coordinated form. If the organizers of a meeting refuse to cancel the meeting,
then the organizer shall assume all responsibilities as to the consequences of such
meeting.134
Organizers of a meeting shall end the meeting in case the meeting has lost the character
indicated in the notification, trespassers are still present at the meeting and the violation
of laws and morals take place. If the organizers fail to end the meeting, this will be done
by the police.135 Besides, the police shall terminate the meeting after warning the
organizer and participants of the meeting that they grossly violate the procedure for
organizing meetings, either attempt to commit or commit crime against the
132
Ibid. Article 11
Ibid. Article 13
134
Ibid. Article 14
135
Ibid. Article 16
133
53
independence, territorial integrity and constitutional order of the State of Lithuania or
other deliberate criminal acts to person’s life, health, freedom, honour and dignity,
public safety, governance order and public order, disturb or causes an actual threat to
disturb traffic, activities of state establishments, organisations and local authorities.136
The Law on Meetings envisages a special provision, which governs cash deposit for
compensating material damages. Article 21 stipulate that If an administrative penalty
has already been imposed on the organizers of a meeting (the subject who organises
meetings) for the committed violations of law and order or the meetings organised by
them were terminated because of the infringements of the procedure for organising the
meeting, committed by the organizers, or the considerable material damage caused
through the fault of organizers, when taking a decision to issue a certificate for a
meeting the organizers of such meetings may, during one year, be requested to deposit
the sum from LTL 10 000 to 50 000 for compensation of possible material damage or
losses. In the event of failure to meet such requirement, a meeting shall not be
organised.
The Law sets forth duties of the police that include safety measures to protect
participants of a peaceful assembly. The police are also called upon to take preventive
steps that may require security checks at the place of the meeting, if they possess
information that the participants in the meeting may hold arms. The police shall be held
liable for the failure to discharge their duties according to the legislation of the Republic
of Lithuania.
2.4.2. Practice
The Lithuanian authorities basically respect the freedom of peaceful assembly, but
problems remain mainly as to LGBT public events. In its Report of 2007, the U.S.
Department of State notes that in April, 2007, the Vilnius municipality banned a public
event sponsored by the European Commission to promote tolerance and respect for
persons with disabilities, homosexuals and persons of different religions. The authorities
grounded their decision on banning the event on the fear of possible counterdemonstrations. Indeed, the group of approximately 50 persons calling itself ‘For
136
Ibid. Article 17
54
Morals and Nation’ distributed anti-homosexual flyers to passersby on the day of the
planned event.
Similarly, in October, 2007, a gay rights NGO requested a permit to unfurl a rainbow
flag in Town Hall Square as part of the annual conference of the European division of
the International Lesbian and Gay Association. The municipality refused stating that the
construction work underway in Town Hall Square could jeopardize the safety of
participants. The court upheld the decision.
In October, 2006, during the visit of the British Queen Elizabeth II, two activists
dressed as bears protested against making Welsh Guard caps from bearskins. As the
Law on Meetings forbade wearing masks during assemblies, the activist were taken into
custody and later sanctioned. It is specially outlined in the Report that the Human
Rights Monitoring Institute criticized the decision on sanctioning the activists, noting
that the provision against wearing masks requires evidence on intent to commit an
offence, which was not the case in the given instance.137
On March 4, 2009, the Human Rights Monitoring Institute and the Centre for Equality
Advancement requested the Vilnius municipality to allow holding a rally and march
supporting democracy, human rights, and tolerance on the Independence Day of
Lithuania, March 11. The local authorities, while banning a requested rally and march,
issued a certificate for march scheduled the same day to the Lithuanian National Centre,
a group that demonstrated intolerance towards other racial, ethnic and religious groups,
claiming that human rights and antifascism were examples of extremism and
sympathized with neo-Nazi groups. The decision on banning the rally and march was
appealed before the court, which subsequently upheld the decision stating that the police
would not have been able to preserve public order, if the two events had taken place on
the same day.138 Later, on 4 April 2011, the Supreme Court of Lithuania concluded that
both Vilnius Regional Court and Vilnius District Court erred in law when applying the
Law on Meetings. The Supreme Court, having regard to the case-law of the Court and
137
Country Reports on Human Rights Practices, Lithuania 2007, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2007/100569.htm
lasted visited on 6 April, 2012.
138
Country Reports on Human Rights Practices, Ukraine 2009, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2009/eur/136042.htm
lasted visited on 6 April, 2012.
55
the decision of the Constitutional Court of Lithuania, ruled that the refusal to issue
certificate on the grounds of a danger to the State security, public safety, public order,
public health, morals and the rights and freedoms of others, as argued by the
municipality, had to be based on the convincing evidence rather than assumptions based
on classified information. The Supreme Court also stressed the positive obligation of the
State to ensure practical enjoyment of the freedom of assembly.139
On 8 May, 2010, the Baltic Pride parade took place. Initially, the court prohibited the
parade at the request of the Office of the Prosecutor, which claimed that it might be
impossible to maintain public order. The police asserted that they were well prepared to
protect participants and ultimately, the higher court overturned the prohibition.140
The Human Rights Monitoring Institute suggests in its human rights overview of 20092010 that there were serious issues of legal regulation and practical implementation of
the freedom of assembly. As reported, on 16 January, 2009, a peaceful demonstration of
labour unions has turned into a riot. 34 protesters and several police officers received
various injuries. The damage was estimated at 2 million Litas. 119 persons were
charged with administrative offences and 29 were accused of committing crime.
Although the organizers were charged with administrative offences, the court closed the
case, as it held that the organizers had observed law and in any event, the law does not
oblige the organizers to discontinue demonstration, when another unauthorized
assembly breaks through, even if the latter interferes with the former.141 Serious
concerns were raised as to the security measures and the police were criticized for
publishing pictures of suspected offenders and witnesses on the police website.
The Human Rights Monitoring Institute asserts that the local authorities fearing
repetition of similar incidents refused to issue a certificate on numerous occasions. For
example, the Socialist People’s Front party was denied to hold an assembly on the
assumption that the assembly would cause a threat to public safety and security of the
139
Information available at www.hrmi.lt/en/new/631 last visited on 6 April, 2012.
Country Reports on Human Rights Practices, Ukraine 2010, Bureau of Democracy, Human Rights,
and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/2010/eur/154435.htm
lasted visited on 6 April, 2012.
141
Human Rights in Lithuania 2009-2010 overview, the Human Rights Monitoring Institute, p.57,
available in English at
www.hrmi.lt/uploaded/PDF%20dokai/apzvalgos/Human%20Rights%20in%20Lithuania%2020092010_OVERVIEW.pdf last visited on 7 April, 2012.
140
56
State, public order, public health and morals and the rights and freedoms of others. In
another instance, the Lithuanian Association of Small Entrepreneurs and Traders was
requested by the Vilnius municipality to organize their rally not at the Gediminas
Avenue, but by the entertainment facility outside the centre. Thus, the Vilnius city
municipality attempted to set a permanent location for all assemblies and the permanent
locations were changed several times thereafter before the Constitutional Court stressed
that the provision of the Law on Meetings concerning the right of authorities to set a
permanent location for assemblies should not be understood as giving municipality the
discretion to prevent people to hold assemblies elsewhere. The Human rights
Monitoring Institute further suggests that despite the flawed practice of denying the
issuance of a certificate on holding an assembly, the courts have on numerous occasions
failed to ensure the enjoyment of the freedom of peaceful assembly due to the timelimits of adjudication and the lack of time actually left before beginning of the
assembly.142
The major developments as regards the freedom of assembly have been constantly
observed by the U.S. Department of State in its annual human rights reports. Besides,
the problems outlasting in this regard were echoed by the Amnesty International 143 and
the Commissioner for Human Rights of the Council of Europe as well. The Human
Rights Watch has also expressed its concern and urged Lithuania to comply with its
obligations and stop discriminating gays.144
142
Ibid. p.60.
Information available at www.amnesty.org/en/library/info/EUR53/001/2011/en also
www.amnesty.org/en/news-and-updates/lithuanias-baltic-pride-march-gets-green-light-2010-05-07 last
visited on 7 April, 2012.
144
Information available at www.hrw.org/news/2009/12/08/lithuania-reject-homophobic-law-proposal
last visited on 7 April, 2012.
143
57
2.5. Case of Estonia
2.5.1. Legal framework
Article 47 of the Constitution of Estonia provides for the freedom of assembly. It states
that ‘Everyone has the right, without prior permission, to assemble peacefully and to
conduct meetings.’ The main act that gives more detailed regulation of the freedom of
assembly is the Public Assemblies act, which was adopted in 1997. According to this
Act an assembly means ‘a demonstration, meeting, picket, a religious event, procession
or any other protest taking place on a square, in a park, on a road, in the street or any
other public place in open air (Article 2).
The aforementioned Act underwent major amendment in 2008. According to the
amendments of 13 July, 2008, there are two deadlines for notification of public
assemblies depending on their scope and nature. If holding of an assembly requires
traffic diversion, setting up a marquee, stage, tribune or some other construction or use
of sound or lighting equipment at least four days before the set date of holding an
assembly. In other cases, the police shall be notified at least two hours in advance.
The public assembly may be prohibited if it ‘incites hatred, violence or discrimination
based on nationality, race, colour, gender, language, origin, creed, sexual orientation,
political opinion or proprietary or social status.’ As reported by the Human Rights
Centre (Estonia), regulation of the prohibition of public assemblies has been more
flexible since the amendments to the act were made. The officials no longer have the
duty to prohibit a meeting if it contradicts provisions of Public Assemblies Act, but they
are given a certain amount of discretion to decide and even make proposals to the
organizers required to bring the assembly in compliance with the law.145
2.5.2. Practice
Despite the positive changes in the legislation governing the freedom of peaceful
assembly, problems remained as regards the practical application of law. One of the
controversial cases was a case of the Circus Tour and their rivals Animal Rights
145
Human Rights in Estonia 2008-2009, Human Rights Centre (Estonia), p. 32, available at
http://humanrights.ee/wp-content/uploads/2011/09/I%C3%95_aruanne_EN_final_2008-09.pdf last visited
on 9 April, 2012.
58
Activists. The members of the Circus Tour being bored with protests of Animal Rights
Activists registered an assembly at the place they were staying, thus to make it
impossible for the Animal Rights Activists to hold a protest rally. When doing so, these
persons did not conceal their real motives. The same happened the next year, in 2009.
As a result of this action, the Animal Rights Activists were prevented to hold an
assembly.
The abovementioned case was reviewed by the Chancellor of Justice of Estonia and a
recommendation was made to Tallinn City Government. The Chancellor of Justice
found the denial to register the assembly on the ground of another assembly being
registered to take place at the same time and invocation of public safety was unlawful.
The Chancellor stressed that the applicant shall be advised to choose another time, or if
in such case the assembly loses its intended meaning, a new place may be chosen in the
vicinity of the assembly to take place simultaneously.
As reported by the Human Rights Centre, similarly, holding of competing events of
opposing groups for the same date and for the same location remained a major concern
through 2009 and 2010.146 Another concern was related to the enactment of the
amendment to the Penal Code that established criminal liability for the organizer of an
assembly. Going through the extensive debate, the provision was worded as follows:
‘organizing or preparing or inciting to participate in a disorder involving a large number
of persons, if it has resulted in desecration, destruction, arson or other similar acts, is
punishable by 3 to 8 years of imprisonment.’ This amendment was thought by the
representatives of the Human Rights Centre to have chilling effect on the enjoyment of
the right to freedom of peaceful assembly.147
At the end, it has to be noted that the major developments in Estonia as regards the
freedom of assembly has constantly been observed by the U.S. Department of State,
146
Human Rights in Estonia 2010, Human Rights Centre (Estonia), p. 74, available at
http://humanrights.ee/wp-content/uploads/2011/09/aruanne2010-en-3.pdf last visited on 9 April, 2012.
147
Ibid. p. 79.
59
which, on most occasions, concluded that the Estonian government generally respected
the freedom of assembly.148
148
Country Reports on Human Rights Practices, Estonia 2002-2010, Bureau of Democracy, Human
Rights, and Labor, the U.S. Department of State, available at www.state.gov/j/drl/rls/hrrpt/ lasted visited
on 7 April, 2012.
60
3. Comparative analysis – lessons to be learned
After having reviewed the domestic law and practice of the five selected countries, in
this part of the paper we will attempt to make some observations with respect to the
each country’s law and practice, outline some major problems, which, we believe, are
detrimental to the freedom of peaceful assembly, and set particular recommendations
towards each country according to the best practice of other countries, if any.
The very first general impression, when looking though all five countries’ law and
practice, is that the law and practice of these countries can be seen as that of the States
having experienced transition from one political order to another. It is no secret in the
modern society that the laws must meet the changing need of the society, i. e. the
legislative authorities shall seek a best legislative solution to the pressing social need.
This process is inevitable and full of controversies and discrepancies.
The aim of the present paper is to assess the overall situation as regards the freedom of
peaceful assembly in five post Soviet countries, which have different geographical
location, cultural background and ethnic composition. This is a particular opportunity to
look at the authorities’ approach towards liberty-limiting and balancing in the countries,
which were united in past under one system.
It has to be mentioned from the very beginning that the four selected countries, except
Ukraine, have already enacted laws regulating the freedom of assembly, which are
generally acceptable. Latvia, Lithuania, Estonia and Georgia have subsequently
introduced a new legal framework, which was different from that of the Soviet era. In
this way, they have ensured so called legal discontinuity.
Although a new framework has been introduced ensuring that desired legal
discontinuity, the political context remained to be that of the transition period. This
necessitated the need for appropriate changes to be made in the legal framework to
correct deviations from the reality of political life. For example, it was shown above that
in 2009, the restrictive legislative changes were introduced by the Georgian authorities
in response to the political tension and mass protest. Similarly, the Latvian authorities
also amended legislation in restrictive manner in 2005, allegedly as a response to the
challenges that were associated with an increase of protest rallies.
61
The amendments thus made to the legal framework quite often appeared to be
disproportionate and the constitutional courts came into play. They proved to be
safeguards against the disproportionate interference with the freedom of assembly. The
judgment of the Constitutional Court of Latvia delivered in 2006 was a judicial reaction
to amendments introduced in 2005 and in its turn, the judgment of the Constitutional
Court of Georgia played a role of judicial watchdog balancing policy vis-a-vis the
freedom of people to assemble and express their opinion. The Georgian Constitutional
Court’s judgment was a response to the restrictive amendments made in 2009.
The comparative analysis of the legal framework of Latvia, Lithuania, Estonia, Georgia
and the draft Law of Ukraine has revealed that the Georgian legislation is more liberal
with respect to the freedom of assembly than the law of Latvia, Lithuania and Estonia.
No assemblies were reported to have been banned in Georgia, whereas there is a
systemic problem of assemblies being banned in Latvia and Lithuania. Besides, it is
argued that the local authorities in Latvia and Lithuania do not want to assume
responsibilities related to holding of assemblies. They do not seem motivated to
undertake duties to protect the participants of an assembly from counter-demonstrations
and they are rather inclined to opt for the easiest way that is the refusal to hold an
assembly. The authorities often seem to be overwhelmed by the ‘public safety’ and
‘public order’ considerations.
When touching the issue of seemingly liberal legislation of Georgia and even more
liberal and sophisticated draft Law of Ukraine, one cannot neglect the political past of
these two countries. The so cold Rose Revolution and Orange Revolution was an apex
of political protest respectively in Georgia and Ukraine. The freedom of assembly often
seen as a form of direct democracy proved to trigger major political change. One may
conclude that the role of the freedom of assembly was initially overestimated in Georgia
and Ukraine, as the large-scale assemblies became an integral part of the country’s
political life. One may also observe that the governments have consequently faced the
necessity to control protest in some direct or indirect form. The above argument can be
strengthened by reference to the restrictive amendments made by the Georgian
authorities in 2009 in response to mass protest. However, we will not go to in-depth
analysis of reasonableness of this restrictive policy and limit our discussion to
62
identification of problems that may run counter Article 11 of the Convention and setting
recommendations from the most acceptable experience of another selected countries.
To begin with, the current state of the Ukrainian legal framework and practice expressly
runs counter the Ukraine’s commitments under the Convention. Nonexistence of
uniform regulation of the freedom of peaceful assembly raises question as regards
prescription of a particular interference by law and the quality of laws, which implies
accessibility and foreseeability of laws. However, it is expected that the draft Law will
give precise answer to these questions in the nearest future. Obviously, the draft Law
can be held to be progressive, as it reflects the standards of OSCE guidelines on
freedom of peaceful assembly more than laws of any other selected country.
The most striking problem with the Georgian legal framework and practice is that there
is insufficient regulation as to the proportionality of interference with the ongoing
assemblies. This is particularly so when the law-enforcement agencies resort to physical
coercion with a proclaimed goal of restoring public order. As the events of 7 November,
2007 and 26 May, 2011 have revealed, the law-enforcers have caused more disorder
when interfering with the course of a peaceful assembly. It also appeared that the
authorities misinterpret the notion of ‘peaceful assembly’ and lack the proper
understanding of balancing of conflicting interests.
On 26 May, 2011, as well as on 7 November, 2007, the crowd became aggressive after
violent interference of law-enforcers with the course of the assembly. Some government
agents attempted later to label these assemblies as lacking requisite peacefulness and
endangering public safety and security. Evidently, the authorities neglected the issue of
proportionality of the interference. It has to be noted in this connection that even when
some participants of the assembly violate law and pose threat to public order, the lawenforcers should not immediately interfere with the assembly at large, but to the extent
that is necessary to put an end to the threats coming from a particular trespasser.
Unfortunately, the Georgian Law on Assemblies and Manifestations does not envisage
such regulation. Instead, the law says that in case the participants violate law and the
organizer cannot put an end to the ongoing violations, the police may take all reasonable
measures in accordance to the relevant domestic and international law.
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In the light of the above considerations, it is highly recommendable to include a clause
in the Law on Assemblies and Manifestations similar to that contained in the draft Law
of Ukraine, which says that in the event of public disorder during a peaceful assembly,
the police shall isolate and stop the disturbance of public order without terminating a
peaceful assembly. The police shall be entitled to terminate the assembly, where the
assembly has lost peaceful nature and posed a threat to the people’s life or health and if
other measures to control the persons who disturb public order have turned to be
ineffective. It can be said that this approach best reflects the rationale of the principle of
proportionality.
As noted above, the Georgian authorities evidently lack the proper understanding of the
concept of balancing. Some officials have tried to invoke an argument of balancing to
justify the interference with the protest rally of 26 May, 2011 that was held on the
Rustaveli Avenue, in front of the building of the Parliament of Georgia. They attempted
to convince public that the right to freedom of assembly of the participants was
balanced against the public interest of celebration of the Independence Day of Georgia
and particularly, of holding Military Parade. Those supporting this idea have evidently
omitted that the balancing is not a process of giving automatic preference to a particular
good over another good, but rather a process of resolving a conflict with minimal harm.
Georgian authorities have consequently opted for celebration of the Independence Day
of Georgia at costs of two lives and injuries of tens following violent dispersal.
Similarly, in November, 2007, authorities allegedly made preference to the right of
others to drive on Rustaveli Avenue over the right to freedom of assembly of thousands
gathered resulting in disorder, personal injury and material damage. Hence, it can be
assumed that, at least, these two instances raise questions as regards the authorities’
capability of balancing conflicting interests.
Another striking problem of the Georgian legal framework is a lack of judicial
safeguards against interferences with ongoing assemblies. There is no effective
domestic remedy149 to claim damages resulting from the interference with an ongoing
assembly. In theory, a person may claim damages, which is the result of misconduct of
Article 13 of the Convention stipulates that ‘everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.’
149
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an official, including police agent, but in this case, a claimant has to prove the personal
guilt of a particular police agent150, which in the event of large-scale police operation is
simply impracticable. Therefore, it is highly recommendable to introduce a special
provision, which will entitle a victim to claim damages without proving personal guilt.
The model included in the draft Law of Ukraine can be used as an example. In any
event, it is important that a disproportionate interference with the right to freedom of
peaceful assembly can be invoked as a ground for claiming material and moral
damages. In addition, it is also crucial that a precise standard of proof of proportionality
is established.
If we observe problems related to interference with ongoing assemblies in Georgia,
there are obstacles as to the obtaining of a certificate on holding an assembly and the
local authorities’ unwillingness to assume responsibilities of protecting participants
from outsider interference in Latvia, Lithuania and partly in Estonia. Although courts
safeguard the sanctity of the freedom of assembly, the authorities continue to ban
assemblies on the ground of public safety and security. It is reported that the persistent
denial of holding assemblies is partly conditioned by the ethnic, political, social and
other factors. Controversial issues of Gay Pride and celebration of some Holidays, also
a protest of Russian population have greatly influenced the local authorities’ approach
towards balancing of conflicting interests.
Apparently, the local authorities are prejudice by the public safety and security
considerations to the detriment of the enjoyment of the freedom of peaceful assembly.
Decisions on banning constitute cautious considerations rather than substantiated
reasoning of the local authorities, which is supported by appropriate evidence.
It is also symptomatic that the authorities more often invoke public safety and security
in case of Gay Pride, which can be argued to run counter morals rather than instigate
public disorder. Although there were some aggressive actions against Gay Prides, the
local authorities should not rely on the public safety and security when banning Gay
Pride, as the protection of the participants from opposing groups is a positive obligation
of the State. To build the public confidence in good governance and rule of law, it is
more reasonable to invoke morals as a ground of restriction of the freedom of assembly
150
Article 1005 of the Civil Code of Georgia, available only in Georgian at www.parliament.ge
65
of LGBT groups and attempt to develop reasoning on balancing conflicting interests.
This could be seen as more logical and reasonable approach to the controversial issue.
In the light of local authorities’ permanent denial to hold an assembly, it is highly
recommendable that the power of prohibition of assemblies is given to the
administrative courts of Latvia, Lithuania and Estonia, when the local authorities
adduce sufficient evidence necessitating the prohibition. This is a model, which is
included in the draft Law of Ukraine and most importantly, foreseen by the Constitution
of Ukraine. If the model effective at the moment is to be maintained, it could be
reasonable to introduce a special provision on claiming damages resulting from
unjustified prohibition of an assembly and the relevant authorities’ failure to properly
discharge their duty. This could serve as a safeguard against arbitrariness, since the risk
of imposition of compensation may prove compelling for the local authorities.
It is of utmost importance that the authorities in Latvia, Lithuania and Estonia, as well
as in some parts of Ukraine, deviate from the malpractice of banning assemblies solely
on the ground of another assembly, in most cases that of the opposing group having
already been registered at the same time and place. Both groups shall be given an
opportunity to hold assemblies in a way to reach their addressees. In this connection, it
would be indeed a step forward if Latvian, Lithuanian and Estonian authorities included
a special provision, as it was done in the draft Law of Ukraine, which would contain the
grounds that cannot be invoked solely to justify the restriction on the freedom of
assembly. Such formulation of law could, in principle, make a better guideline for
authorities when deciding upon the restriction of the freedom of assembly.
Other issues, which attract attentions is the limitation of time of holding assemblies and
the distance allowed from various buildings, as well as termination of ongoing
assemblies in Lithuania, and the prohibition of assemblies due to the organizer’s record
of administrative violations in Latvia. As regards, the limitation of time from 8 am to 11
pm with a possibility of holding an assembly at another time in exceptional
circumstances, in the well-lit area may seem restrictive at the first glance, however, it
cannot be said that it automatically violates Article 11 of the Convention, since it
pursues the legitimate aim of protecting rights and freedoms of others. Unless the
practice reveals that this provision leaves the room for speculations by the local
66
authorities, it may be deemed harmless to the freedom of assembly. Distance permitted
from various buildings shall, by all means, allow reaching the addressee of the protest
voiced during assemblies. In other words, the distance shall not be excessive to the
extent that the assembly is derived of its actual meaning.
Finally, it has to be mentioned in connection with the prohibition of holding an
assembly on the ground of the organizer’s record of administrative violations that this
ground, however raising serious concerns of the risk of reoccurrence of administrative
violations, when taken alone, cannot be said to justify the prohibition. Accordingly, it
could be reasonable to introduce a special provision similar to that of the Lithuania Law
on Meetings that envisages the certain amount of security cash deposit in the event an
organizer has a record of administrative violations.
67
Conclusion
The overview in the first part of some important points, such as the margin of
appreciation doctrine, the concept of liberty-limiting in the legal theory and the
substantive standards of the Convention has revealed the difficulty of dealing with
conflicting interests in compliance with the pressing social need emerged in the multilayered social and political life. National authorities confront a task of establishing legal
framework and then ensuring that the relevant organs abide by this legal framework.
Since it is impossible to foresee all cases that may emerge in practice, the legal
framework provides for the authorities’ discretion to resolve issues on case-by-case
basis. The presumption in favor of holding assemblies, the concept of balancing
conflicting interests and the principle of proportionality, couple with the standard of
proof of such proportionality, as well as judicial review, shall serve as a safeguard
against arbitrariness.
It can be said that Georgia, Latvia, Lithuania and Estonia generally respect their
obligation undertaken under the Convention to set an appropriate legal framework
regulating the freedom of assembly. In this sense, these countries, with common past
associated with Soviet era, have made a progress towards harmonization of their
legislation with the Convention standards. Regretfully, it is all the more surprising why
Ukraine, having allegedly the best regulation of the freedom of assembly in its
Constitution, has not made further steps so far to establish a unified and comprehensive
legal framework regulating freedom of assembly. Despite this shortcoming, it is highly
probable that the most criticized Ukraine will have more sophisticated legal framework
than Georgia, Latvia, Lithuania and Estonia in the nearest future.
Notwithstanding these positive changes in legal framework, it can be observed that the
practical application of the relevant laws is, on many occasions, prejudiced by public
safety and public order considerations, which, one can argue, may be seen as a legacy of
past political culture taking its origins from the Soviet era. Others may conclude that
this cautiousness is specific to transition, which may be chaotic in some sense.
Sympathizers of government’s policy may well advance an argument that as the
absolute freedom is absolute anarchy and the absolute democracy is absolute order,
there must be an ultimate control over public order. In any event, respecting the need for
68
regulation and control, the national authorities shall not forget that the more they restrict
the freedom of assembly, the greater there will be incentives to gather and protest. The
national authorities shall facilitate the process of reaching public consensus on libertylimiting principles and thus, to the building of confidence in the rule of law, not in the
rule by law.
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70
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71
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72
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April, 2012;
73
2. Crossing the Line, Human Rights Watch Report, 2007, available at
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at www.state.gov/j/drl/rls/hrrpt/2007/100560.htm last visited on 2 April, 2012;
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Democracy, Human Rights, and Labor, the U.S. Department of State, available
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at www.state.gov/j/drl/rls/hrrpt/2006/78846.htm last visited on 6 April, 2012;
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at www.state.gov/j/drl/rls/hrrpt/2007/100590.htm lasted visited on 6 April, 2012;
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74
at www.state.gov/j/drl/rls/hrrpt/2009/eur/136063.htm lasted visited on 6 April,
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at www.state.gov/j/drl/rls/hrrpt/2007/100567.htm lasted visited on 7 April, 2012;
16. Country Reports on Human Rights Practices, Latvia 2009, Bureau of
Democracy, Human Rights, and Labor, the U.S. Department of State, available
at www.state.gov/j/drl/rls/hrrpt/2009/eur/136040.htm lasted visited on 7 April,
2012;
17. Country Reports on Human Rights Practices, Lithuania 2007, Bureau of
Democracy, Human Rights, and Labor, the U.S. Department of State, available
at www.state.gov/j/drl/rls/hrrpt/2007/100569.htm lasted visited on 6 April, 2012;
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at www.state.gov/j/drl/rls/hrrpt/2009/eur/136042.htm lasted visited on 6 April,
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at www.state.gov/j/drl/rls/hrrpt/2010/eur/154435.htm lasted visited on 6 April,
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75
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Miscellaneous
1. Guidelines on Freedom of Peaceful Assembly, OSCE/ODHIR 2007, available at
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2. Freedom of Peaceful Assembly and Association under the European Convention
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visited on 5 April, 2012;
4. Information available at www.world.maidan.org.ua/2011/the-right-inalienableand-inviolabe last visited on 2 April, 2012;
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5 April, 2012;
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76
www.venice.coe.int/docs/2010/CDL-AD(2010)033-e.asp last visited on 12
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of Georgia, the Venice Commission (CDL-AD(2011)029), available at
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April, 2012.
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