Guidelines on Freedom of Peaceful Assembly
18 December 2012
Given the context of widespread public protest, now might be an appropriate time to draw attention to internationally recognized guidelines on freedom of assembly, which also have a relevance to the parading issue.
Published by OSCE (Organisation for Security and Cooperation in Europe) in 2010 the Guidelines address the rights and responsibilities relevant to public protest in the context of prevailing international charters, including ECHR. They are exactly what they say, guidelines, not necessarily the definitive law on the subject matter.
The full document can be assessed at http://www.osce.org/node/91361 but the Guidelines themselves are worth reading and are reproduced below:-
Guidelines on Freedom of Peaceful Assembly
1. Freedom of Peaceful Assembly
1.1 Freedom of peaceful assembly is a fundamental human right that can be enjoyed and exercised by individuals and groups, unregistered associations, legal entities and corporate bodies. Assemblies may serve many purposes, including the expression of diverse, unpopular or minority opinions. The right can be an important strand in the maintenance and development of culture, such as in the preservation of minority identities. The protection of the freedom to peacefully assemble is crucial to creating a tolerant and pluralistic society in which groups with different beliefs, practices or policies can exist peacefully together.
1.2 Definition of assembly. For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose.
This definition recognizes that, although particular forms of assembly may raise specific regulatory issues, all types of peaceful assembly – both static and moving assemblies, as well as those that take place on publicly or privately owned premises or in enclosed structures – deserve protection.
1.3 Only peaceful assemblies are protected. An assembly should be deemed peaceful if its organizers have professed peaceful intentions and the conduct of the assembly is non-violent. The term “peaceful” should be interpreted to include conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties.
2. Guiding Principles
2.1 The presumption in favour of holding assemblies. As a fundamental right, freedom of peaceful assembly should, insofar as possible, be enjoyed without regulation. Anything not expressly forbidden by law should be presumed to be permissible, and those wishing to assemble should not be required to obtain permission to do so. A presumption in favour of this freedom should be clearly and explicitly established in law.
2.2 The state’s positive obligation to facilitate and protect peaceful assembly. It is the primary responsibility of the state to put in place adequate mechanisms and procedures to ensure that the freedom is practically enjoyed and not subject to undue bureaucratic regulation. In particular, the state should always seek to facilitate and protect public assemblies at the organizers’ preferred location and should also ensure that efforts to disseminate information to publicize forthcoming assemblies are not impeded.
2.3 Legality. Any restrictions imposed must have a formal basis in law and be in conformity with the European Convention on Human Rights and other international human rights instruments. To this end, well-drafted legislation is vital in framing the discretion afforded to the authorities. The law itself must be compatible with international human rights standards and be sufficiently precise to enable an individual
to assess whether or not his or her conduct would be in breach of the law, as well as the likely consequences of any such breaches.
2.4 Proportionality. Any restrictions imposed on freedom of assembly must be proportional.
The least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference.
The principle of proportionality requires that authorities do not routinely impose restrictions that would fundamentally alter the character of an event, such as relocating assemblies to less central areas of a city.
A blanket application of legal restrictions tends to be over-inclusive and, thus, will fail the proportionality test, because no consideration has been given to the specific circumstances of the case.
2.5 Non-discrimination. Freedom of peaceful assembly is to be enjoyed equally by everyone. In regulating freedom of assembly the relevant authorities must not discriminate against any individual or group on any grounds.
The freedom to organize and participate in public assemblies must be guaranteed to individuals, groups, unregistered associations, legal entities and corporate bodies; to members of minority ethnic, national, sexual and religious groups; to nationals and non-nationals (including stateless persons, refugees, foreign nationals, asylum seekers, migrants and tourists); to children, women and men; to law-enforcement personnel; and to persons without full legal capacity, including persons with mental illnesses.
2.6 Good administration. The public should be informed which body is responsible for taking decisions about the regulation of freedom of assembly, and this must be clearly stated in law. The regulatory authority should ensure that the general public has adequate access to reliable information about its procedures and operation. Organizers of public assemblies and those whose rights and freedoms will be directly affected by an assembly should have the opportunity to make oral and written representations directly to the regulatory authority. The regulatory process should enable the fair and objective assessment of all available information.
Any restrictions placed on an assembly should be communicated promptly and in writing to the event organizer, with an explanation of the reason for each restriction. Such decisions should be taken as early as possible so that any appeal to an independent court can be completed before the date provided in the notification for the assembly.
2.7 The liability of the regulatory authority. The regulatory authorities must comply with their legal obligations and should be accountable for any failure – procedural or substantive – to do so. Liability should be gauged according to the relevant principles of administrative law and judicial review concerning the misuse of public power.
3. Restrictions on Freedom of Assembly
3.1 Legitimate grounds for restriction. The legitimate grounds for restriction are prescribed in international and regional human rights instruments. These should not be supplemented by additional grounds in domestic legislation.
3.2 Public space. Assemblies are as legitimate uses of public space as commercial activity or the movement of vehicular and pedestrian traffic. This must be acknowledged when considering the necessity of any restrictions.
3.3 Content-based restrictions. Assemblies are held for a common expressive purpose and, thus, aim to convey a message. Restrictions on the visual or audible content of any message should face a high threshold and should only be imposed if there is an imminent threat of violence.
3.4 “Time, place and manner” restrictions. A wide spectrum of possible restrictions that do not interfere with the message communicated is available to the regulatory authority. Reasonable alternatives should be offered if any restrictions are imposed on the time, place or manner of an assembly.
3.5 “Sight and sound”. Public assemblies are held to convey a message to a particular target person, group or organization. Therefore, as a general rule, assemblies should be facilitated within “sight and sound” of their target audience.
4. Procedural Issues
4.1 Notification. It is not necessary under international human rights law for domestic legislation to require advance notification about an assembly. Indeed, in an open society, many types of assembly do not warrant any form of official regulation. Prior notification should, therefore, only be required where its purpose is to enable the state to put in place necessary arrangements to facilitate freedom of assembly and to protect public order, public safety and the rights and freedoms of others.
Any such legal provision should require the organizer of an assembly to submit a notice of intent rather than a request for permission.
The notification process should not be onerous or bureaucratic. The period of notice should not be unnecessarily lengthy, but should still allow adequate time for the relevant state authorities to make the necessary plans and preparations to satisfy their positive obligations, and for the completion of an expeditious appeal to (and ruling by) a court should any restrictions be challenged.
If the authorities do not promptly present any objections to a notification, the organizers of a public assembly should be able proceed with their activities according to the terms presented in their notification and without restriction.
4.2 Spontaneous assemblies. Where legislation requires advance notification, the law should explicitly provide for an exception from the requirement where giving advance notice is impracticable. Such an exception would only apply in circumstances where the legally established deadline cannot be met. The authorities should always protect and facilitate any spontaneous assembly so long as it is peaceful in nature.
4.3 Simultaneous assemblies. Where notification is provided for two or more unrelated assemblies at the same place and time, each should be facilitated as best as possible. The prohibition of a public assembly solely on the basis that it is due to take place at the same time and location as another public assembly will likely be a disproportionate response where both can be reasonably accommodated. The principle of non-discrimination requires, further, that assemblies in comparable circumstances do not face differential levels of restriction.
4.4 Counter-demonstrations. Counter-demonstrations are a particular form of simultaneous assembly in which the participants wish to express their disagreement with the views expressed at another assembly. The right to counter-demonstrate does not extend to inhibiting the right of others to demonstrate. Indeed, demonstrators should respect the rights of others to demonstrate as well. Emphasis should be placed on the state’s duty to protect and facilitate each event where counter-demonstrations are organized or occur, and the state should make available adequate policing resources to facilitate such related simultaneous assemblies, to the extent possible, within “sight and sound” of one another.
4.5 Decision-making. The regulatory authorities should ensure that the decision-making process is accessible and clearly explained. The process should enable the fair and objective assessment of all available information. Any restrictions placed on an assembly should be communicated promptly and in writing to the event organizers, with an explanation of the reason for each restriction. Such decisions should be taken as early as possible so that any appeal to an independent court can be completed before the date for the assembly provided in the notification.
4.6 Review and appeal. The right to an effective remedy entails the right to appeal the substance of any restrictions or prohibitions on an assembly. An initial option of administrative review can both reduce the burden on courts and help build a more constructive relationship between the authorities and the public. However, where such a review fails to satisfy the applicant, there should be a mechanism for appeal to an independent court. Appeals should take place in a prompt and timely manner so that any revisions to the authorities’ decision can be implemented without further detriment to the applicant’s rights. A final ruling, or at least relief through an injunction, should, therefore, be given prior to the date for the assembly provided in the notification.
5. Implementing Freedom of Peaceful Assembly Legislation
5.1 Pre-event planning with law-enforcement officials. Wherever possible, and especially in cases of large assemblies or assemblies related to controversial issues, it is recommended that the organizer discuss with the law-enforcement officials the security and public-safety measures that are to be put in place prior to the event.
Such discussions might, for example, cover the deployment of law-enforcement personnel, stewarding arrangements and particular concerns relating to the policing operation.
5.2 Costs. The costs of providing adequate security and safety (including traffic and crowd management) should be fully covered by the public authorities. The state must not levy any additional financial charge for of non-commercial public assemblies should not be required to obtain public-liability insurance for their event.
5.3 A human rights approach to policing assemblies. The policing of assemblies must be guided by the human rights principles of legality, necessity, proportionality and non-discrimination and must adhere to applicable human rights standards.
In particular, the state has a positive duty to take reasonable and appropriate measures to enable peaceful assemblies to take place without participants fearing physical violence. Law-enforcement officials must also protect participants of a peaceful assembly from any person or group (including agents provocateurs and counter-demonstrators) that attempts to disrupt or inhibit the assembly in any way.
5.4 The use of negotiation and/or mediation to de-escalate conflict. If a stand-off orother dispute arises during the course of an assembly, negotiation or mediated dialogue may be an appropriate means of trying to reach an acceptable resolution.
Such dialogue – although not always successful – can serve as a preventive tool to help avoid the escalation of conflict, the imposition of arbitrary or unnecessary restrictions, or recourse to the use of force.
5.5 The use of force. The use of force must be regulated by domestic law, which should set out the circumstances that justify its use (including the need to provide adequate prior warnings) and the level of force acceptable to deal with various threats.
Governments should develop a range of responses that enable a differentiated and proportional use of force. These responses should include the development of nonlethal incapacitating weapons for use in appropriate situations where other more peaceful interventions have failed.
5.6 The liability and accountability of law-enforcement personnel. If the force used is not authorized by law, or more force was used than necessary in the circumstances, law-enforcement personnel should face civil and/or criminal liability, as well as disciplinary action. Law-enforcement personnel should also be held liable for failing to intervene where such intervention might have prevented other officers from using excessive force. Where it is alleged that a person is physically injured by law-enforcement personnel or is and prompt investigation must be conducted.
5.7 The liability of organizers. Organizers of assemblies should not be held liable forfailure to perform their responsibilities if they have made reasonable efforts to do so. The organizers should not be liable for the actions of individual participants or for the actions of non-participants or agents provocateurs. Instead, there should be individual liability for any individual who personally commits an offence or fails to carry out the lawful directions of law-enforcement officials.
5.8 Stewarding assemblies. It is recommended that the organizers of assemblies be encouraged to deploy clearly identifiable stewards to help facilitate the holding of the event and ensure compliance with any lawfully imposed restrictions. Stewards do not have the powers of law-enforcement officials and should not use force but, instead, should aim to obtain the co-operation of assembly participants by means of persuasion.
5.9 Monitors. The independent monitoring of public assemblies provides a vital source of information on the conduct of assembly participants and law-enforcement officials.
This information may be used to inform public debate and, usefully, can also serve as the basis for dialogue among government, local authorities, law-enforcement officials and civil society. NGOs and civil society organizations play a crucial watchdog role in any democracy and must, therefore, be permitted to freely observe public assemblies.
5.10 Media access. The role of the media as a public watchdog is to impart information and ideas on matters of public interest – information that the public also has a right to receive. Media reports can thus provide an otherwise absent element of public accountability for both organizers of assemblies and law-enforcement officials.
Media professionals should, therefore, be guaranteed as much access as is possible to an assembly and to any related policing operation
