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Principles and Guidelines on Protest and the Right to Information

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Principles and Guidelines on Protest and the Right to Information PRINCIPLES AND GUIDELINES ON PROTEST AND THE RIGHT TO INFORMATION: INFORMATION THAT THE POLICE, PROSECUTING AND OTHER DECISION-MAKING AUTHORITIES, AND OVERSIGHT BODIES SHOULD COLLECT OR GENERATE, AND MAKE AVAILABLE TO THE PUBLIC, CONCERNING THE MANAGEMENT OF PROTESTS; AND PROCEDURES FOR IMPLEMENTATION AND OVERSIGHT OF INFORMATION-RELATED RESPONSIBILITIES May 2018 These Principles and Guidelines were developed in order to: (a) assist police, other public authorities, and police reform advocates around the world in evaluating whether the police, prosecuting and other decision- making authorities, and oversight bodies are complying with their obligations to record and make information available concerning their management of protests; and (b) enhance compliance in relation to protest rights and ensure greater public security by providing an effective tool for monitoring and improving relevant policies, practices, and oversight. These Principles and Guidelines are based on international (including regional) and national law, standards, and good practices. They were drafted by the Open Society Justice Initiative and the Committee on the Administration of Justice, in consultation with civil society groups, police professionals, and other experts around the world. PREAMBLE The organizations and individuals involved in drafting the present Principles and Guidelines: Recognizing that social protests, including street demonstrations, marches, occupations, and single person protests, have provided important avenues for the exercise of the rights to freedom of expression, peaceful assembly, association, and public participation that have strengthened democracy and contributed to improving living conditions and the enjoyment of human rights around the world; that protests have increased in recent years; and that in many jurisdictions, new restrictions are being applied that do not comport with international law and standards and do not enhance public safety or other legitimate interests that are invoked to justify them; Affirming that people need to be able to access information held by public authorities concerning the management of protest if they are to be able to monitor the conduct of law enforcement and related bodies, and to participate fully in a democratic society; Recalling that access to information held by public authorities—including law enforcement and oversight bodies—is a right of every person, and that states are obliged to protect this right by laws drafted with precision and with narrowly drawn exceptions, and by independent bodies that have full powers to investigate and resolve disputes concerning refusals to disclose;1 Noting that these Principles and Guidelines are based on international and regional law and standards relating to professional policing and the rights to freedom of expression, assembly, association, public participation, and access to information held by public authorities; Bearing in mind relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples' Rights (HPR), the American Convention on Human Rights, and the European Convention on Human Rights; Further bearing in mind the Joint Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, on the proper management of assemblies;2 the OSCE/ODHIR “Human Rights Handbook on Policing Assemblies” (2016); the OSCE/ODHIR “Guidelines on Freedom of Peaceful Assembly” (2nd Ed., 2010); the draft Report of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) on Protest and Human Rights (February 2017); statements of the UN, IACHR, African Commission on HPR, and OSCE rapporteurs, and special experts on freedom of assembly, expression, and related themes; judgments of the European and Inter-American Courts of Human Rights; national court judgments; and norm-promoting statements of NGOs, including the Tshwane Principles on National Security and the Right to Information and Article 19’s Principles on the protection of human rights in protests; Recalling the UN Human Rights Committee’s General Comment No. 34 on Article 19 (2011); the Model Inter-American Law on Access to Information; and the Model Law on Access to Information for Africa; Recalling the UN Basic Principles for the Use of Force and Firearms by Law Enforcement Officials, and the UN Code of Conduct for Law Enforcement Officials; Recognizing that legal protections of human rights in the protest context have become increasingly codified in recent years, with the development of international and regional jurisprudence, soft law standards, and best practices in relation to the long established rights to freedom of assembly and related matters; and that, at the same time, the right of the public to access information of public interest has ripened into an accepted norm of international law, imposing duties on public authorities to make information available to the public both proactively and in response to requests; Further recognizing that there is a need to codify the interface between these two bodies of law, by developing law and standards concerning the categories of information that should be collected or generated and made publicly available as a tool to ensure compliance with human rights to protest, in a manner consistent with international and comparative law and best practices; Desiring to provide practical guidance to law enforcement and other public authorities, legislative and regulatory drafters, the courts, other oversight bodies, and civil society concerning the categories of 1 See, e.g., Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, Dec. 2004. 2 UN Doc A/HRC/31/66 (4 February 2016), available in English, Spanish, and French. information that the police, prosecuting and other decision-making authorities, and oversight bodies should collect or generate, and make available to the public concerning the management of protests; and procedures for implementation and oversight of information-related responsibilities; Endeavouring to elaborate Principles and Guidelines that are of universal value and applicability; Recommend that appropriate bodies at the national, regional, and international levels take steps to disseminate and discuss these Principles and Guidelines, and endorse, adopt, and/or implement them to the extent possible, with a view to achieving progressively the full realization of the right of access to information concerning the management of protests. Definitions: The term “management” of protests is used to refer to all of the state’s responsibilities and actions concerning protests, including respecting, protecting, promoting, and facilitating the rights to freedom of assembly, expression, association, and public participation.3 The term “proactively publish” means to make information available to the public without the need for a request, for instance by posting online and making available in hard copies in offices to which the public has free access. The term ”protest” 4 is used to cover all types of activity involving an expressive assembly, including one person, ad hoc or spontaneous protests, long-term occupations, and all manifestations in between, including where there is no identifiable or actual organizer(s). The definition includes protests where some participants use civil disobedience or even violence.5 The term “public authorities” (or “relevant public authorities”) is used in this document to refer to decision-making authorities and oversight bodies. The term “Decision-making authorities” refers to any competent official bodies that take decisions on facilitating or imposing restrictions on the right to protest, including police and other law enforcement agencies, and executive offices and officers (e.g., prosecuting authorities, ministers, mayors, and municipal councils).6 The term “Oversight bodies” refers to all bodies 3 See id. 4 These Principles focus on the right to protest rather than, e.g., freedom of assembly, because: (a) they address one-person protests, which under some definitions are not considered a form of assembly; and (b) they address that sub-set of assemblies at which participants exercise their right to freedom of expression, including self-expression, that attract heightened levels of protection. Law enforcement and related authorities have increased obligations in such contexts, not only to facilitate the assembly but also to protect the rights of participants to express themselves where and how they wish, subject only to narrow limitations necessary to safeguard the rights of others or public interests that are internationally recognized as legitimate grounds for restricting protest rights. 5 Even in such situations, law enforcement officers continue to be obliged to ensure that any use of force is necessary and proportionate and are under a continued duty to protect and facilitate the rights of peaceful protestors. When a minority of persons in a protest are non-peaceful, other participants retain their right to free assembly; and even those who do not act in a peaceful manner, and thus lose the protection of the right to free assembly, do not lose other human rights. 6 See the
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