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Max Planck Encyclopedia of Public International Law [MPEPIL]

Assembly, Freedom of, International Protection

Norman Weiß

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 14 December 2019

Subject(s):
Right to vote and to be elected — Right to peaceful assembly — Freedom of expression — Race — Religion — Right to property

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Content and Scope

1.  Background

Both history and daily news tell us that freedom of assembly has always been at risk. Authoritarian States of each ideological kind are paranoid about assemblies of their subjects. This was the case in the 19th century for many European States but is also true for the former communist States (German Democratic Republic 1957, Prague 1968), for China (Beijing 1989) and for today’s Russia (Moscow 2007), Egypt (Cairo 2011) or Iran, to name just a few. Without demonstrations staged against them, such governments tend to claim that they have the unanimous support of the people. On the other hand, even democratic States sometimes take an ambivalent position towards freedom of assembly. It is a freedom guaranteed in their national constitutions and most of them might be additionally obliged by international human rights instruments. Being devoted to that democratic core right, all governments nevertheless know the power of mass demonstrations eventually starting debates and developments that can endanger established democratic structures. The majority rule and legitimate governmental or parliamentarian decisions might be severely attacked in the streets. Furthermore, governments know that citizens who do not take part in demonstrations but have the march passing by their homes or working places often fear for their security and property. Other citizens may want actively to oppose the ideas and opinions presented in a demonstration and want to assemble and to demonstrate themselves. The government has to find a practical solution to give as much room as possible to all the rights of all groups and individuals involved. The Group of Eight (G8) summit at Heiligendamm/Germany in June 2007 may serve as an example for the diverse interests (see also German Constitutional Court [Decision of 6 June 2007] and Schwabe and MG v Germany [ECtHR] App 8080/08 and 8577/08).

Freedom of assembly was guaranteed for the first time in the French Déclaration des Droits de l’Homme et du Citoyen (1789). It is therefore more closely linked to democracy than to parliamentarianism as the British and the earliest American constitutional documents show, which lack a special guarantee for this freedom. In the United States of America, the First Amendment (1791) guarantees ‘the right of the people peaceably to assemble’. Although continental constitutionalism quickly adopted freedom of assembly after the French revolution, governments, especially after the restorative turn in 1815, sought to oppress this—from their point of view—dangerous freedom. In each and every case, it needed democratization in order to let freedom of assembly flourish and become an accepted means of political participation.

Today, freedom of assembly is guaranteed by international human rights law in Art. 20 Universal Declaration of Human Rights (1948) and in Art. 21 I International Covenant on Civil and Political Rights (1966) (‘ICCPR’) on the universal level and in Art. 11 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), Art. 15 American Convention on Human Rights (1969) (‘ACHR’), and Art. 11 African Charter on Human and Peoples’ Rights (1981) (‘Banjul Charter’) on the various regional levels. Additionally, Art. 12 Charter of Fundamental Rights of the European Union (2000), which is not a human rights treaty but nevertheless of major importance to the European States as it has, since 2009, the same legal value as the Treaties (Art. 6 (1) TEU), and declares that every person has the right to assemble (and to associate) with others.

2.  Scope of Protection

An assembly is to be distinguished from a mere gathering of people which occurs by accident. People make a voluntary decision to go to an assembly or not. Freedom of assembly protects both decisions. Thus people who form an assembly come together intentionally and they do so for a specific purpose. All relevant instruments make it quite clear that some forms of assembly are primarily protected by special guarantees. With regard to the ICCPR, church services and religious processions fall into the scope of Art. 18 (1) ICCPR (see also Religion or Belief, Freedom of, International Protection), assemblies by associations are primarily protected by Art. 22 ICCPR (see also Association, Freedom of, International Protection), meetings that have only social purposes are protected by Art. 17 ICCPR, and campaign events by Art. 25 ICCPR (see also Elections, Right to Participate in, International Protection). Taking this into account and bearing in mind that Art. 21 ICCPR follows Arts 19 and 20 ICCPR, freedom of assembly protects intentional gatherings where people discuss or proclaim information or ideas within the meaning of Art. 19 (2) ICCPR that are not protected by other norms. An assembly and the protected contents of the discussions and proclamations are not restricted to party politics or political issues. Although freedom of assembly is closely linked to freedom of expression, it has a narrower focus (see also Opinion and Expression, Freedom of, International Protection). Whereas the ideas protected by freedom of expression are not restricted to political issues, assemblies are a means of taking part in the democratic process. An assembly within the scope of international human rights law might, therefore, aim at the prohibition of fox-hunting or strive for longer opening hours of the local library. However, the issues dealt with must address the public and therefore go beyond the private sphere of the participants.

An assembly may take place indoors or outdoors, on private property or in public squares and streets. An assembly may stay at one location or move between different places. However, outdoor assemblies or demonstrations in public spaces are those that are normally perceived as a manifestation of intentions, needs or fears and, therefore, give rise to legal and political debates.

According to the various instruments (apart from the Banjul Charter), an assembly needs to be peaceful in order to be protected. Art. 15 ACHR recognizes the ‘right of peaceful assembly, without arms’. A large gathering of individuals runs a natural risk of leading to clashes and riots to be sparked off by the proclamation of opinions. Peacefulness is to be understood as the absence of violence. Peacefulness does not relate to the contents of the opinions expressed but to the manner in which an assembly is held. Thus, an assembly is no longer peaceful when individuals, including the police, are threatened or physically attacked, cars are set afire, or Molotov cocktails are thrown.

The question is whether an assembly is already not peaceful when the participants are armed—stones, bicycle chains, etc count as weapons—even if they do not use them. If this question is answered in the affirmative, the scope of protection is narrowed and an assembly might be prohibited or broken up without having to observe the requirements for interference in Art. 21 ICCPR. This would lead to unsatisfactory results and eventually allow restrictive governments to prohibit an assembly because flag staffs are regarded as weapons. Therefore, a more liberal approach should interpret ‘peaceful’ broadly so that restrictions of the freedom of assembly have to meet the requirements of the second sentence of Art. 21 ICCPR. Accordingly, an assembly is not to be qualified as violent for the mere fact that the participants are equipped with helmets and other defensive means.

As already indicated, governments not only have to respect freedom of assembly, but also they have to protect the right against interference by private parties (see also Human Rights, Treaties, Third-Party Effect). Even though a demonstration might offend persons who are opposed to the ideas promoted, the participants must be able to hold their demonstration without having to fear that they will be subjected to physical violence. The State has a basic duty to provide public space and—within reasonable limits—to guarantee that highly controversial political issues can be expressed by assemblies and demonstrations. In the near future, the question may arise whether there exists a right to assemble in a private owned property open to the public (see also European Court of Human Rights [ECtHR] Case of Appleby and Others v United Kingdom [Judgment of 6 May 2003] paras 44–50).

The German Constitutional Court held in 2011 that freedom of assembly does apply at Frankfurt Airport which is operated by Fraport Aktiengesellschaft (Fraport AG), a stock corporation (German Constitutional Court [Decision of 22 February 2011] 128 BVerfGE 226). The majority of its shares are in public ownership, divided between the Land (state of) Hessen and the City of Frankfurt am Main. The complainant was a member of an ‘Initiative against Deportations’ and had objected to foreigners being deported with the cooperation of private airlines. The complainant distributed leaflets that were directed against deportation at a check-in desk in the departure lounge of Frankfurt Airport. Fraport AG thereupon imposed an ‘airport ban’ on the complainant. In its relation to the complainant, Fraport AG is directly bound by the fundamental rights. The use of private-law forms of organization does not exempt State authority from its being bound by the fundamental rights pursuant to Art. 1 (3) Basic Law. Like public enterprises that are in the sole ownership of the State and are organized in the forms of private law, enterprises owned both by private owners and the State on which the public authority has a controlling influence, are directly bound by the fundamental rights.

B.  Limits

10  Non-peaceful assemblies fall out of the scope of protection. But even peaceful assemblies may interfere with the freedoms of others (eg in case of the obstruction of a highway). As freedom of assembly is not a licence for people to coerce others or the population at large, it can be limited. These limitations must be justified in terms of the respective human rights treaties. With regard to the ICCPR, the second sentence of Art. 21 states that restrictions must (1) be imposed in conformity with the law, (2) serve one of the listed purposes, and (3) be necessary in a democratic society. Art. 21 ICCPR does not explicitly allow the imposition of lawful restrictions on the exercise of the freedom of assembly by members of the armed forces, the police or the administration of the State (as foreseen in Art. 11 (2) ECHR and as Art. 22 (2) ICCPR does with regard to freedom of association). Nor does the ICCPR allow the States Parties to subject the freedom of assembly of aliens to special restrictions (as foreseen in Art. 16 ECHR). Some European States, however, made reservations to the effect that Arts 19, 21, and 22 ICCPR will be applied provided that they are not in conflict with legal restrictions as provided for in Art. 16 ECHR (see Reservations of the Governments of Austria, Belgium, and France to the ICCPR).

1.  Requirement of a Legal Basis

11  Other parts of the ICCPR require that restrictions are ‘provided by law’ (Arts 12, 18 ICCPR) or ‘prescribed by law’ (Arts 19, 22 ICCPR), whereas Art. 21 ICCPR only reads that the restrictions must be imposed ‘in conformity with the law’. The same wording is to be found in Art. 15 ACHR. The ICCPR chooses this wording in order to give room to the administrative authorities to act on the basis of special and general statutory authorization. Thus, the police might break up an assembly acting on the basis of a general clause allowing protection against threats to public safety if this clause’s conditions are met.

2.  Purposes for Interference

12  Assemblies may be restricted, prohibited or broken up only in order to safeguard the following purposes. National security may serve as a purpose for restrictions only in serious cases of political or military threat to the entire nation, eg in the case of an assembly calling for violent overthrow of the government in an already up-heated atmosphere. Public safety is threatened when an assembly endangers the safety of persons or objects, allowing preventive measures against demonstrations that might become unpeaceful. Ordre public (public policy) is generally understood as those universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based. To fulfil its duty to guarantee freedom of assembly and to protect the various freedoms of others, the State should be informed in advance about an assembly (at least to manage the street traffic). Therefore, a notification system is compatible with freedom of assembly (see Human Rights Committee [‘HRC’] Kivenmaa v Finland para. 9.2). Public morals and public health might be at stake with regard to the route or place of a demonstration. A demonstration at a cemetery might interfere with public morals; one on a water-conservation ground might be in conflict with public health.

13  The rights and freedoms of others at stake are first and foremost their honour and reputation. Here, the content of the opinions expressed is to be taken into account, so that freedom of expression and its limitations (Art. 19 (2) and (3) ICCPR) become relevant. The same is true for Art. 20 (2) ICCPR (see for both Arts 19 and 20 ICCPR, HRC Faurisson v France). Hence, agitation to racial hatred or war which is not protected by freedom of expression is not protected by freedom of assembly either. This is in conformity with Art. 4 (a) International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’; see also Racial and Religious Discrimination). As General Recommendation No XV puts it, Art. 4 (a) ICERD requires States Parties to penalize four categories of misconduct: a) dissemination of ideas based upon racial superiority or hatred; b) incitement to racial hatred; c) acts of violence against any race or group of persons of another colour or ethnic origin; and d) incitement to such acts (see also General Comments/Recommendations).

14  Private property is another right of others that gives room for limitations of freedom of assembly (see also Property, Right to, International Protection). Thus, without the prior consent of the owner, no assembly can take place. The State, however, has an obligation to fulfil this freedom by generally consenting to assemblies on publicly owned property (cf supra para. 8). Whereas the private owner of an assembly hall can refuse to rent the hall to a certain political party, the State has to ensure freedom of assembly without discrimination as long as the assembly is peaceful and no other reason for a limitation arises. The State is under a stronger obligation to ensure political rights such as the freedom of assembly because of its democratic function than civil rights exercised for private interests. Therefore, a demonstration of political extremists must be protected by the police against political opponents. Furthermore, a demonstration directed against the government must not be prohibited for political reasons as it is a means of the democratic process.

3.  Necessity in a Democratic Society

15  This additional requirement is to be found in Arts 14, 21, and 22 ICCPR. Here, the ICCPR leans upon the ECHR, where this clause is regularly used. The ICCPR does not aim at a uniform and universal understanding of democracy (as a political system) but wants to safeguard some minimum democratic standards and principles. One of these principles is that freedom shall constitute the rule and its restrictions shall be the exception. Additionally, restrictions shall meet the principle of proportionality. The ECtHR held that the imposition of a subsequent disciplinary punishment for a lawyer who had taken part in a demonstration that had not been prohibited was an infringement of Art. 11 ECHR as he did not commit any reprehensible act on this occasion (Ezelin v France [Judgment of 26 April 1991] paras 51–53). More recently, the ECtHR dealt with the ban of a silent assembly of protesters at a cemetery. The assembly was directed against the meeting of SS veterans; its prohibition was justified by the domestic authorities in order to protect the right of members of the public who would be visiting the graves of their relatives to manifest their religion. The ECtHR held that this ban was disproportionate as the assembly was organized as a silent protest. The Austrian authorities should have searched for a viable alternative which would have preserved the applicant’s right to freedom of assembly. The ECtHR pointed at the necessity to find a balance between the interests of the demonstrators, counter-protestors and the affected public (Öllinger v Austria [Judgment of 29 June 2006] paras 47–51).

C.  International Practice

16  Although freedom of assembly is a fundamental right in a democratic society and one of the foundations of such a society (see also European Commission on Human Rights Rassemblement jurassien et Unité jurassienne), there is not much case-law available referring to Art. 21 ICCPR, Art. 11 ECHR, or Art. 15 ACHR.

17  The first case on Art. 21 ICCPR was Kivenmaa v Finland. On the occasion of a visit of a foreign Head of State and his meeting with the President of Finland, 26 members of the Social Democratic Youth Organization, amid a larger crowd, gathered across from the place where the leaders were meeting, where they distributed leaflets and raised a banner critical of the human rights record of the visiting Head of State (see also Heads of State). The police immediately took the banner down and charged the leader of the group (Ms Kivenmaa) with violating the Act on Public Meetings by holding a public meeting without prior notification. She was found guilty and fined. The applicant contested that the gathering was a public meeting under the Act on Public Meetings so that the restriction was not in conformity with the law. The HRC held that ‘a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant’ (Kivenmaa v Finland para. 9.2). But with regard to the circumstances of the case ‘it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration’ (ibid).

18  The HRC did not really explain the reasons for overruling the findings of the municipal courts. This is far more surprising since the HRC’s own findings are not convincing, as the dissenting opinion of committee member Herndl shows. He explains that the group gathered intentionally in order to express a political opinion and thus formed an assembly in the traditional sense. The fact that the major part of the people gathering in front of the President’s palace just wanted to catch sight of the foreign Head of State must not change the character of the applicant’s acting. Furthermore, the HRC’s view—mere gathering, no assembly—has the consequence that in the case under review the scope of protection was not affected and thus the State Party could not violate the freedom of assembly.

19  The second case is Patrick John Coleman v Australia. The applicant delivered a public address at a pedestrian mall. He loudly spoke for some 15 to 20 minutes on a range of subjects including bills of rights, freedom of speech, and mining and land rights. He was charged for taking part in a public address in a pedestrian mall without written permission from the town council. Subsequently, he was convicted for delivery of an unlawful address and fined $400, with 14 days’ imprisonment on default, plus costs. The applicant claimed that his conviction amounted to a violation of, among others, Art. 21 ICCPR. Australia held that one person does not form an ‘assembly’. It pointed to the various court decisions which stated that the applicant was acting alone and that the mere fact of an audience, passively listening, could not be considered to be taking part in an assembly with the speaker. The HRC held that ‘the author has not advanced sufficient elements to show that an “assembly”, within the meaning of article 21 of the Covenant, in fact existed’ (at para 6.4) and dismissed the application as inadmissible with regard to Art. 21 ICCPR.

20 In October 2010, the Human Rights Council adopted resolution 15/21 in which the right to assembly was reaffirmed and its importance for a democracy was recognized (UN Doc A/RES/HRC/15/21). The Human Rights Council established the mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and of association. Since May 2011, the Special Rapporteur has the task to gather information, study trends, developments and challenges and make recommendations related to the freedom of peaceful assembly and association. So far, he has made a country visit to Georgia. While acknowledging that the country is still undergoing a process of transformation, the Special Rapporteur had the impression that a climate of fear and intimidation of human rights activists and members of both trade unions and opposition political parties might arise. Thus, he recommended amending several laws, to implement proposals from the Council of Europe and to restrict the use of force by law enforcement officials.

21  Under the ECHR, the Strasbourg organs have had to deal with freedom of assembly only on few occasions. The ECtHR examines whether a State can claim that an assembly is or is not peaceful. This issue is not part of the national courts’ discretion. In the Stankov and the United Macedonian Organisation Ilinden v Bulgaria Case the ECtHR held that it ‘does not find that those involved in the organisation of the prohibited meetings had violent intentions’ (Judgment of 2 October 2001 para. 78). A hostile environment therefore may be a reason for preventive measures but does not per se exclude an assembly from the scope of protection. Thus, Bulgaria violated Art. 11 ECHR. Four years later, in United Macedonian Organization Ilinden and Others v Bulgaria, the ECtHR held that the applicants’ rights to freedom of assembly had been violated (Judgment of 19 January 2006). In 2010, the Court underlined that the mere existence of a risk of violent counter-demonstration does not allow the authorities to ban the assembly. They are obliged to ensure that both events could proceed peacefully and lawfully (Alekseyev v Russia (ECtHR) App 4916/07, 25924/08 and 14599/09). In 2011, the ECtHR clarified the notion of ‘peaceful assembly’ and held that ‘the possibility of extremists with violent intentions who are not members of the organising group joining a demonstration cannot as such take away’ the right to freedom of assembly. The Court added that the applicants themselves had no violent intentions and thus held that their detention which could not be justified amounted to a violation of their right to freedom of assembly (Schwabe and MG v Germany [ECtHR] App 8080/08 and 8577/08, paras 103, 105, 119).

22  Another complaint concerned two demonstrations by an association of medical doctors campaigning against abortion, which were disrupted by counter-demonstrators. During the first demonstration supporters of the right to abortion disrupted the demonstration, using loudspeakers and throwing eggs. The police intervened only when tempers had risen to the point where physical violence nearly broke out. A second demonstration of the association was also disrupted by people expressing their opposition to the association’s views. In the application lodged with the ECtHR the association claimed that the Austrian government failed to secure the demonstrators’ right to freedom of assembly under Art. 11 ECHR. The government claimed that Art. 11 ECHR does not create any positive obligation to protect demonstrators. According to the government’s submission, it was sufficient to protect demonstrators from direct interference by the State. In this regard the ECtHR held: ‘genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11. Like Article 8 Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be’ (Plattform ‘Ärzte für das Leben’ v Austria [Judgment of 21 June 1988] para. 32; see also, mutatis mutandis, X and Y v the Netherlands [Judgment of 26 March 1985] para. 23). This was restated by the ECtHR in 2012 in Disk and Kesk v Turkey (App 38676/08):

The authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens (para. 26).

The Court added that the authorities ‘must refrain from applying unreasonable indirect restrictions upon that right’ (para. 27).

23  The Inter-American Court of Human Rights (IACtHR) had to deal with Panamanian Law No. 25 (1990) that allowed it ‘to declare non subsistent the appointments of those public servants who took part and who may take part in the organisation, convocation or implementation of actions that attempt against democracy and the constitutional order’ (Art. 1 Panamanian Law No. 25 [1990]). On that basis, 270 government employees who had participated in a demonstration for labour rights, and who were accused of complicity in perpetrating a military coup, were dismissed. In the case of Baena-Ricardo et al v Panama (Judgment of 2 February 2001), the IACtHR held that Art. 15 ACHR was not violated as the assembly took place without any interruptions or restrictions (paras 146–149).

D.  Assessment

24  Freedom of assembly is one of the core elements of democratic entitlement. Together with the principles of non-discrimination, participation in public life, popular elections, association and the moral foundation of political authority, freedom of assembly entitles the individual to live in a democratic State. Furthermore, it is one of the freedoms essential for the functioning of a democratic State and society. The international provisions on this freedom (together with those of freedom of association) show that human rights are interdependent and indivisible, as they combine a genuine political freedom with elements of freedom of religion and conscience.

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