Main principles of the future law on peaceful assemblies and demonstrations in the context of the European standards on human rights
Today our state does not deny the existence of this or that right. Instead of that it narrows the sense of rights or widens the circle of the grounds for restriction of these rights.
The right for peaceful assemblies and demonstrations is stipulated by scores of international documents. The main tool for guaranteeing of this right in Europe is Article 11 of the European Convention on the protection of human rights and fundamental freedoms in the light of practices of the European Court of human rights.
Article 11 of the European Convention reads: “Everyone has the right to freedom of peaceful assembly… No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society:
1) in the interests of national security or public safety;
2) for the prevention of disorder or crime;
3) for the protection of health or morals;
4) for the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.
It should be noted that the term “everyone” means all persons that stay on the territory of Ukraine legally. So, the restriction of the right of foreigners to participation in or organization of any demonstrations is a violation of the European Convention.
Both private and public assemblies must be included into the concept “peaceful assemblies”. Yet, the number of restrictions concerning public assemblies is much more, and the restrictions of private assemblies are imposed only for the prevention of crime.
Public meetings and demonstrations are used by the persons, who have the restricted access to mass media, for expression of their position to a great number of people and, thus, for attraction of attention of public. That is why the Convention regards the right to peaceful demonstrations as a fundamental right.
Only one general restriction is established in the connection with realization of this right: such assembly must be peaceful. So, the assemblies, which are accompanied with destruction, violence or imply such violent actions, are not protected by Article 11 of the Convention.
However, even peaceful assemblies may be restricted under the above-mentioned four conditions, which the power, especially in the post-Soviet countries, tries to widen. The power does not understand that these restrictions must be imposed taking into account their necessity in a democratic society.
Naturally, every demonstration, march or other action of this kind causes a lot of problems for the power. Yet, the European Court of human rights confirms that this article imply the positive obligations of the state to protect those, who are realizing their right to peaceful assemblies, from the violence on the side of their opponents, in particular, from counter-demonstrations (the case organization “Platform “Doctors for life”” vs. Austria, 1985, paragraphs 65-72).
Since the both sides realize the same right guaranteed by Article 11 of the European Convention, then if one side tries to impede the actions of another, the power must, before all, guarantee the rights of the side that conducts the assembly peacefully:
“Any demonstration can irritate or offend those, who protest against the ideas and demands, which are endorsed by this demonstration. Nevertheless, the participants of the action must have the possibility to conduct it without fear of using physical force to them by the opponents: such fear would hinder them from expression of their opinions on socially important questions. In a democratic society the right for conduction of counter-demonstrations may not restrict the right for demonstrations. Therefore, guaranteeing of the real, efficient freedom of peaceful assembly may not consist only in the non-interference of the power: the purely negative conception of the role of the state contradicts the subject and goal of Article 11”, reads the above-mentioned decision of the European Court of human rights.
Thus, the widespread practice of prohibition of peaceful assemblies only on the basis of the fact that peaceful assemblies of two opposite sides will be conducted at the same place cannot be the ground for restriction of the right to peaceful assemblies. Such practice may be regarded as one contradicting the European standards. Yet, such principle underlies almost all prohibitions of peaceful assemblies throughout Ukraine: in Mukachevo, Lviv, Kyiv, Kharkov, etc.
In this connection it is necessary to introduce the legal tools for the protection of the right for peaceful assemblies. For example, the laws of Austria envisage a number of crimes: activists of counter-demonstrations are the subjects of these crimes. At that it is important, which side was the first, who handed the application for the conduction of an action at this or that place. Yet, the choice of such tools and methods for guaranteeing of the right to peaceful assemblies fully depends on a state. The European Court of human rights only obligates to take the proper measures, and the choice of these measures is carried out on the national level. Naturally, this obligation of the state must be fulfilled gratis for the organizers of peaceful assemblies.
In particular, the norm about the duty of the organizers to inform the power about the conduction of public peaceful assemblies does not contradict the European practices. Yet, obviously, the terms of informing must be more reasonable and flexible. For instance, it should be advisable to introduce the legal norm about the terms, but it should be also pointed out that the term may be decreased after the agreement with law-enforcing organs. It should be also more reasonable to inform not a representative of the local power, but, first of all, the law-enforcing organs, especially, when the conduction of the action is connected with the blocking of traffic or other influence on the life of settlement. Another alternative of regulation can envisage different term of informing depending on the prospective number of participants of the actions and on its type.
On the whole, the power may not prohibit in general the conduction of peaceful assemblies in these or those places. Such prohibitions may be issued temporarily under certain conditions and on the basis of certain facts. This especially concerns the central districts of towns, since the permission to conduct public actions in outlying districts or outside the town contradicts the goal and essence of the right to peaceful assemblies.
The establishment of time limits of the conduction of peaceful assemblies, which are stipulated by law draft No. 5242-2, also seems improper in the context of Article 11 of the European Convention.
The greatest number of conflicts is aroused by the question concerning the conduction of peaceful assemblies on a private territory. Here the European Court rather inclines to the idea that the proprietary right is not important as regards public places: halls, sport arenas, shops, markets, etc., which are formally privately owned. This means that the status of publicity cannot restrict the right for peaceful assemblies. However, in the USA this question was solved in favor of the proprietary right.
Taking into account everything above-said, we reckon that law draft No. 5242-2 absolutely does not agree with these principles and conceptually does not conform to the spirit and letter of Article 11 of the European Convention on the protection of human rights and fundamental freedoms, since this law draft violates almost all demands of Article 11. On the other side, law draft No. 5242-2 takes into account, to a great extent, the European standards on realization of the right to peaceful assemblies and can be considered by the Parliament as a basis.