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GUIDELINES on FREEDOM of PEACEFUL ASSEMBLY (3Rd EDITION) This Version May Be Subject to Editorial Revision

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GUIDELINES on FREEDOM of PEACEFUL ASSEMBLY (3Rd EDITION) This Version May Be Subject to Editorial Revision Strasbourg / Warsaw, 8 July 2019 CDL-AD(2019)017 Study n° 581/2010 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (OSCE/ODIHR) GUIDELINES ON FREEDOM OF PEACEFUL ASSEMBLY (3rd EDITION) This version may be subject to editorial revision CDL-AD(2019)017 - 2 - Introduction ......................................................................................................................................... 4 The Importance of the Right to Freedom of Peaceful Assembly .................................. 4 Freedom of assembly and the right to freedom of expression...................................... 4 Freedom of assembly and the right to freedom of association ..................................... 5 Freedom of assembly, the right to vote and the right to participation ........................ 6 Freedom of assembly and protest ......................................................................................... 6 Civil disobedience ..................................................................................................................... 7 The Focus of these Guidelines ...................................................................................................... 7 Section A: Overview and Guiding Principles ............................................................................. 8 The Right to Freedom of Peaceful Assembly .............................................................................. 8 Assemblies and New Technologies .............................................................................................. 9 Core State Obligations .................................................................................................................... 9 Notification, Good Administration and Legal Remedies ........................................................... 10 Restrictions on an Assembly ........................................................................................................ 11 Policing Assemblies ....................................................................................................................... 11 Roles and rights of third parties at assemblies .......................................................................... 12 Arrest and Detention of Assembly Participants ......................................................................... 12 Penalties Imposed After an Assembly ........................................................................................ 12 Accountability of State Authorities ............................................................................................... 12 Section B: Guiding Principles: Interpretive Notes………………………………….…………………………..13 The Right to Freedom of Peaceful Assembly ............................................................................ 13 Defining Assembly ................................................................................................................... 13 Defining ‘peacefulness’ .......................................................................................................... 15 Participation in assemblies ................................................................................................... 17 Planning and organisation of assemblies ......................................................................... 17 The location of assemblies.................................................................................................... 19 Assemblies and new technologies .............................................................................................. 21 Requirements of the legal framework ................................................................................ 34 Protection based on equality and non-discrimination ................................................... 36 Notification, Good Administration and legal Remedies ............................................................ 40 Notification procedures .......................................................................................................... 41 Legal remedies ......................................................................................................................... 46 Restrictions Imposed Prior To or During an Assembly............................................................. 47 Grounds for Restricting Freedom of Peaceful Assembly ............................................. 50 - 3 - CDL-AD(2019)017 Restrictions on Organisers ................................................................................................... 61 A Human Rights-based Approach to Policing Assemblies .................................................. 62 Duty to establish effective channels of communication ............................................... 64 Digital image recording by the authorities ........................................................................ 67 Use of undercover law enforcement personnel ............................................................... 68 Restraint, Intervention and Dispersal ................................................................................. 68 The Use of Force ...................................................................................................................... 71 Roles and rights of third parties at assemblies .......................................................................... 74 Duty to protect and facilitate the work of journalists and media personnel ............ 75 Facilitating independent monitoring of assemblies ....................................................... 78 Duty to facilitate access to medical care and protect the work of medical practitioners .............................................................................................................................. 81 Arrest and detention of assembly participants ........................................................................... 82 Penalties Imposed After an Assembly ........................................................................................ 85 Accountability of state authorities and/or state officials .............................................. 89 Accountability of law enforcement authorities and personnel .................................... 90 Annex .................................................................................................................................................. 94 CDL-AD(2019)017 - 4 - Introduction The Importance of the Right to Freedom of Peaceful Assembly 1. The right to freedom of peaceful assembly protects the many ways in which people gather together in public and in private. It has been recognised as one of the foundations of a democratic, tolerant and pluralist society in which individuals and groups with different backgrounds and beliefs can interact peacefully with one another.1 The right to freedom of peaceful assembly can thus help give voice to minority opinions and bring visibility to marginalized or underrepresented groups. 2. Effective protection of the right to freedom of peaceful assembly can also help foster a culture of open democracy, enable non-violent participation in public affairs,2 and invigorate dialogue on issues of public interest. Public assemblies can help ensure the accountability of corporate entities, public bodies and government officials and thus promote good governance in accordance with the rule of law. Assemblies often also have symbolic importance for different sections of society in commemorating particular events or marking significant anniversaries. 3. The right to freedom of peaceful assembly complements and intersects with other civil and political rights. The right to freedom of expression is of particular relevance given the expressive nature of the assemblies that impact public opinion (whereupon these two rights are engaged simultaneously).3 Freedom of assembly also interrelates with the right to freedom of association,4 the right to participate in public affairs,5 and the right to vote.6 In addition, it is one of a cluster of rights that underpins a broader ‘right to protest’.7 Furthermore, the right to freedom of assembly may overlap with the right to manifest one’s religion or belief in community with others.8 Recognizing the interrelation and interdependence of these different rights is vital to ensuring that the right to freedom of peaceful assembly is afforded practical and effective protection.9 Freedom of assembly and the right to freedom of expression 4. Freedom of expression includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers.10 Given the expressive nature of many assemblies and the role that they play in protecting opinion, the European Court of Human Rights (ECtHR) has recognised in its case law that freedom of peaceful assembly and freedom of expression are often, in practice, 1 See, for example, Djavit An v. Turkey, Application No 20652/92, 20 February 2003, para. 56. 2 “Report on factors that impede equal political participation and steps to overcome those challenges”, UN Doc. A/HRC/27/29, Office of the United Nations High Commissioner for Human Rights, (OHCHR), 30 June 2014, para. 22. 3 Article 19 (2) and (3) of the International Covenant on Civil and Political Rights (ICCPR), 16 December 1966; Article 10, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 4 November
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