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Freedom to demonstrate is a human right – even when the message is critical

Human Rights Comment
Strasbourg 26/10/2010
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Sunday 31 October will be a test for the effectiveness in practice of the right to peaceful assembly, which is enshrined in Article 31 of the Russian Constitution. For more than a year “Strategy 31” rallies have been held in Moscow, St Petersburg and some other Russian cities on months with that date. The plight of these rallies so far has illustrated the limitations to the right to assembly in practice. This problem is not unique to Russia.

In Moscow the “Strategy 31” meetings have regularly ended with crackdowns by riot police, and a number of persons have been detained and participants beaten. On 31 August 2010 media reported that 400 persons demonstrated and 70 of them were apprehended by the police, among them opposition politicians, journalists and activists. During one of the “Strategy 31” rallies (31 December 2009), Lyudmila Alexeyeva - the 83 year old dissident of the Soviet era, veteran of human rights activism and current chairperson of the Moscow Helsinki Group - was detained.

Obstacles placed on the exercise of the right to freedom of assembly

The right to peaceful freedom of assembly is a fundamental right in a democratic society. This right belongs to all people, not just to the majority or to those advocating views pleasing to those in power. 

In Russia – as in most other European countries – the prevailing legislation on assemblies merely requires the organisers of a meeting to notify the authorities of their intention to hold the meeting. In other words, there is no need to seek authorisation for a rally. This is a fact which the Russian Federal Ombudsman, Vladimir Lukin, has highlighted on several occasions.

However, in many countries where the law foresees a notification procedure for assemblies, the authorities incorrectly – and unlawfully - regard such notifications as requests for permission to hold a rally and, by extension, as a possibility for them to deny such permission and to consider a rally as “unauthorised”. For example, the Strategy 31 activists in Moscow have in the past regularly received rejections after notifying the relevant authorities of their intention to arrange a rally.

Even when there is no explicit “rejection”, local authorities have, in several countries, often resorted to other ways of curbing the impact of a demonstration. One approach is to allow a demonstration to go ahead, but at another time and at a less central location, rendering the rally and its message more or less invisible to the general public. 

Another method is to allow or even encourage alternative events at the same time and venue - sometimes by hostile groups. Such means have been used in different countries to limit the freedom of assembly of disfavoured or stigmatised groups, such as the LGBT community.

Sometimes permission is denied because of concerns for the safety of the demonstrators. If this is the case the authorities should provide protection. A general ban of a peaceful demonstration can only be justified if there is a real danger of disorder that cannot be prevented by reasonable and appropriate measures.

Standards and guidelines on freedom of peaceful assembly

The right to assemble peacefully is enshrined in Article 11 of the European Convention on human rights and in the Universal Declaration of Human Rights. The overarching principle is the need for authorities to respect the peaceful and collective expression of opinions by people on a broad range of topics, be they political, religious, cultural, social, or anything else.

The European Court of Human Rights has made it clear that the state has a duty to protect participants in peaceful demonstrations, specifying that “this obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation”. 
The OSCE Office for Democratic Institutions and Human Rights, ODIHR, together with the Council of Europe’s Venice Commission, have published a set of Guidelines on Freedom of Peaceful Assembly which could serve as a useful tool for legislators and practitioners responsible for implementing laws. They specify the obligations of the state, such as the duty to protect a peaceful assembly, to provide good administration by informing the public clearly which body is responsible for taking decisions on the regulation of freedom of assembly (regulatory authority), and to act without discrimination.

We should be wary of any tendency to restrict the right to peaceful assembly which may go against the basic ideas set out in the above-mentioned standards and guidelines. I understand that the Russian parliament has recently discussed amendments to the law on rallies; in this context, it is crucial that the existing human rights standards on freedom of assembly are fully  reflected in any modifications to the law.

31 October in Moscow

The new authorities in Moscow have given some indications that the rallies which have been announced for 31 October can take place. This is indeed an opportunity to show a renewed commitment towards upholding and protecting the right to freedom of assembly, as enshrined in the Russian Constitution as well as international human rights instruments.

Peaceful meetings and demonstrations are one of the most important forms of dialogue between the authorities in power and civil society. Freedom of assembly must be protected as crucial to supporting pluralism and democracy. 

Thomas Hammarberg