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Guidelines on Freedom of Peaceful Assembly

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Guidelines on Freedom of Peaceful Assembly Guidelines on Freedom of Peaceful Assembly SECOND EDITION E COMMIS IC SI N O E N V Guidelines on Freedom of Peaceful Assembly SECOND EDITION E COMMIS IC SI N O E N V Published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) Al. Ujazdowskie 19 00-557 Warsaw Poland www.osce.org/odihr © OSCE/ODIHR 2010 All rights reserved. The contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the OSCE/ODIHR as the source. ISBN 978-92-9234-785-7 Designed by Homework, Warsaw, Poland Cover design by Agnieszka Rembowska Printed in Poland by Sungraf Guidelines on Freedom of Peaceful Assembly SECOND EDITION Prepared by the Osce/Odihr Panel of experts on the Freedom of Assembly Nina Belyaeva Thomas Bull David Goldberger Michael Hamilton Neil Jarman Muatar S. Khaidarova Serghei Ostaf Vardan Poghosyan Alexander Vashkevich Yevgeniy A. Zhovtis And by the Council of Europe’s European Commission for Democracy through Law (Venice Commission) Warsaw/Strasbourg 2010 Table of contents Foreword. 9 introduction . 11 SECTiON A. Guidelines on Freedom of Peaceful Assembly . 14 1. Freedom of Peaceful Assembly . 15 1.1. Freedom of peaceful assembly 1.2. Definition of assembly 1.3. Only peaceful assemblies are protected 2. Guiding Principles. 15 2.1. The presumption in favour of holding assemblies 2.2. The state’s positive obligation to facilitate and protect peaceful assembly 2.3. Legality 2.4. Proportionality 2.5. Non-discrimination 2.6. Good administration 2.7. The liability of the regulatory authority 3. Restrictions on Freedom of Assembly. 17 3.1. Legitimate grounds for restriction 3.2. Public space 3.3. Content-based restrictions 3.4. “Time, place and manner” restrictions 3.5. “Sight and sound” 4. Procedural issues. 17 4.1. Notification 4.2. Spontaneous assemblies 4.3. Simultaneous assemblies 4.4. Counter-demonstrations 4.5. Decision-making 4.6. Review and appeal 5. Implementing Freedom of Peaceful Assembly Legislation. 19 5.1. Pre-event planning with law-enforcement officials 6 5.2. Costs 5.3. A human rights approach to policing assemblies 5.4. The use of negotiation and/or mediation to de-escalate conflict 5.5. The use of force 5.6. The liability and accountability of law-enforcement personnel 5.7. The liability of organizers 5.8. Stewarding assemblies 5.9. Monitors 5.10.Media access SECTiON B. explanatory Notes. 22 1. The importance of Freedom of Assembly (§1-7). 23 2. The regulation of Freedom of Peaceful Assembly. 25 The legal framework (§8) International and regional standards (§8-9) Regulating freedom of assembly in domestic law (§10-13) Freedom of assembly in the context of other human rights and freedoms (§14-15) Principal definitions and categories of assembly (§16-24) Peaceful and non-peaceful assemblies (§25-28) 3. Guiding Principles (§29). 35 The presumption in favour of holding assemblies (§30) The state’s duty to protect peaceful assembly (§31-34) Legality (§35-38) Proportionality (§39-45) Non-discrimination (§46-60) Groups, unregistered associations and legal entities (§53) Minorities (§54) Non-nationals (§55) Women (§56) Children (§57-58) Persons with disabilities (§59) Law-enforcement personnel and state officials (§60) Good administration and transparent decision-making (§61-65) Review and appeal (§66) The liability of the regulatory authority (§67) 7 4. Restrictions on Freedom of Assembly (§68). 50 Legitimate grounds for restriction (§69-70) Public order (§71-73) Public safety (§74-75) The protection of health (§76-77) The protection of morals (§78-79) The protection of the rights and freedoms of others (§80-84) National security (§85-86) Legislation intended to counter terrorism and extremism (§87-91) Derogations in times of war or other public emergency (§92-93) Types of restriction (§94) Content-based restrictions (§94-98) “Time, place and manner” restrictions (§99-100) “Sight and sound” (§101) Restrictions imposed prior to an assembly (“prior restraints”) (§102-104) Freedom of association and freedom of peaceful assembly (§105-106) Indirect restrictions on freedom of assembly (§107) Restrictions imposed during an assembly (§108) Sanctions and penalties imposed after an assembly (§109) Defences (§110-112) 5. Procedural issues. 63 Advance notification (§113-117) Notification, not authorization (§118-121) Simultaneous assemblies (§122) Counter-demonstrations (§123-124) Exceptions from the notification process (§125) Spontaneous assemblies (§126-131) Decision-making and review processes (§132-140) Part II – implementing Freedom of Peaceful Assembly legislation. 73 introduction (§141-143). 73 6. Policing Public Assemblies (§144) . 75 A human rights approach to policing (§145-146) Training (§147-148) Policing assemblies – general principles of good practice (§149-170) Use of force (§171-178) Liability and accountability (§179-184) 8 7. Responsibilities of the Organizer. 90 The organizer (§185-186) Ensuring the peaceful nature of an assembly – principles of good practice (§187-190) Stewarding assemblies (§191-196) Liability (§197-198) 8. Monitoring Freedom of Peaceful Assembly (§199-200). 94 Independent monitors (§201-205) Media (§206-210) Annex A – enforcement of international human rights standards. 101 Annex B – cases cited. 108 Annex c – english-russian glossary of key terms. 116 Annex d – expert Panel composition . 122 endnotes. 125 Foreword The right to assemble peacefully, together with freedom of expression and freedom of association, rests at the core of any functioning democratic system. The right to free- dom of assembly, as well as its limits, are clearly stated in Article 11 of the European Convention on Human Rights and in the OSCE’s 1990 Copenhagen Document. Most national constitutions and fundamental laws echo these documents or establish simi- lar principles. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Coun- cil of Europe’s Commission for Democracy through Law (Venice Commission) have been providing legislative support to OSCE participating states and Council of Europe mem- bers to assist them in ensuring that their legislation on freedom of peaceful assembly complies with European and international standards and OSCE commitments. The de- velopment of these Guidelines is a cornerstone of this assistance, adding to ODIHR’s LegislatiOnline.org database, where lawmakers can obtain good examples from other countries’ legislation that can help them frame their own choices. Existing international standards certainly offer a clear general framework; however, too little guidance is available to legislators and executive branches on how the exercise of freedom of peaceful assembly may be regulated in practice at the local and national lev- el. Good laws, by themselves, cannot mechanically generate improvements in practice. But even at the legislative level, in a number of cases an inclination towards a so-called command-and-control approach can be identified, as reflected in more regulations, more control and more bureaucratic hurdles. Public demonstrations and rallies, for instance, are not always seen as part of the routine that makes up a pluralistic democ- racy. In some states, freedom of assembly is still regulated in a way that often results in its de facto denial. 10 Approaches to regulating the right to freedom of assembly vary greatly across Europe and the OSCE area. Legislators in different countries have chosen a variety of models. These stretch from adopting specific laws to govern the exercise of this fundamental right to introducing provisions across a diverse array of relevant legislation, such as, most im- portantly, acts pertaining to the police and general administrative law. This prompted ODIHR, together with the Venice Commission, to develop Guidelines aimed at formulat- ing thresholds that should be met by national authorities in their regulation of the right. This document is the second, revised edition of the ODIHR-Venice Commission Guidelines on Freedom of Peaceful Assembly, which were first published in 2007. The Guidelines are designed for practitioners in many sectors, i.e., drafters of legislation and those implementing it, as well as those affected by the implementation. Recogniz- ing the great diversity of country contexts, the Guidelines do not attempt to provide ready-made solutions but, rather, to clarify key issues and discuss possible ways to ad- dress them. Even when the legislative framework is in compliance with European and international standards and OSCE commitments, challenges to the practical implemen- tation of those laws persist in the region. The Guidelines offer a practical toolkit for legislators and practitioners responsible for implementing laws by drawing on good-practice examples from national legislations in European and OSCE participating States and the case-law of the ECtHR to illustrate the various legislative options used to regulate issues pertaining to the freedom of assembly. The Guidelines are a living instrument. They demarcate parameters for implementation consistent with international standards and illustrate key principles with examples of good practice from individual states. We are pleased to publish these Guidelines and hope they will find many users – drafters of legislation, law-enforcement personnel, municipal-gov- ernment officials, judges, academics and members of civic organizations – and count on them to contribute their expertise and experience in order to further enrich
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