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Comparative Study:
Freedom of Peaceful Assembly in Europe

Study requested by the European Commission for
Democracy through Law – Venice Commission

Prof. Dr. Anne Peters & Dr. Isabelle Ley
Max Planck Institute for Comparative Public and International Law

March 2014

With contributions by Elif Askin, Melina Garcin, Prof. Dr. Rainer Grote, Jannika Jahn, Dr.
Steven Less, Esq., Dr. Halyna Perepelyuk, Dr. Orsolya Salát, Maria Sto żek , Evgeniya
Yushkova, Friederike Ziemer

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Table of Contents

Introduction ________________________________ ________________________________ 9
Selection of topics of comparison ________________________________ _____________ 9
Selection of countries ________________________________ ______________________ 9
Nature of the reports and comparison ________________________________ _________ 10

United Kingdom ________________________________ ___________________________ 11
1. Legal bases and scope of the guarantee ________________________________ _____ 11
2. Restrictions ________________________________ ___________________________ 12
Targeted statutory powers ________________________________ ________________ 12
Public order (criminal) offences ________________________________ ___________ 16
Non -targeted statutory powers and offences ________________________________ __ 18
By -laws ________________________________ ______________________________ 20
Common law powers ________________________________ ____________________ 21
3. Implementing the constitutional guarantee and freedom of assembly legislation _____ 22
4. Securing governmental accountability ________________________________ ______ 23
Judicial review and the responsiveness of the democratic process _________________ 23
The Independent Police Complaints Commission and other types o f review _________ 23
5. Conclusions and outlook ________________________________ _________________ 25

France ________________________________ ________________________________ ___ 26
1. Legal bases ________________________________ ___________________________ 26
2. Scope of the guarantee ________________________________ __________________ 27
Ca se-law ________________________________ _____________________________ 27
Flash mobs ________________________________ ____________________________ 28
3. Restrictions ________________________________ ___________________________ 28
Place and time restrictions ________________________________ ________________ 28
Manner restrictions ________________________________ _____________________ 28
Sight and sound restrictions ________________________________ ______________ 29
4. Procedural issues ________________________________ _______________________ 30
Notification/authorization ________________________________ ________________ 30
Decision -making ________________________________ _______________________ 31
5. Specific forms of assemblies ________________________________ ______________ 31
Spontaneous asse mblies ________________________________ _________________ 31
Assemblies gathered by means of new technologies ___________________________ 31
Assemblies taking place on public property ________________________________ __ 32
Counter -demonstrations ________________________________ _________________ 32
6. Implementing freedom of assembly legislation _______________________________ 32
Pre -event planning ________________________________ ______________________ 32
Costs ________________________________ ________________________________ 32
Use of force ________________________________ ___________________________ 32
Liability of organizers ________________________________ ___________________ 33
7. Securing governmental accountability ________________________________ ______ 33
Review and appeal ________________________________ _____________________ 33
Liability and accountability of law enforcement personnel ______________________ 33
Monitoring ________________________________ ____________________________ 33
Media access ________________________________ __________________________ 34
8. Conclusions and Outlook ________________________________ ________________ 34
United States of America ________________________________ ____________________ 35
1. Legal bases and scope of the guarantee ________________________________ _____ 35

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Constitutional right to assemble ________________________________ ___________ 35
Scope of the guarantee ________________________________ __________________ 35
Forms of assemblies ________________________________ ______________________ 36
Assemblies on public property ________________________________ ____________ 36
Assemblies on private property ________________________________ ____________ 36
2. Restrictions ________________________________ ___________________________ 37
Content -based restrictions ________________________________ ________________ 37
Content -neutral restrictions ________________________________ _______________ 38
Place restrictions: restricted zones ________________________________ _________ 39
Vagueness and overbreadth ________________________________ _______________ 39
Prior restraints ________________________________ _________________________ 40
3. Procedural issues ________________________________ _______________________ 41
Notification and spontaneous assemblies ________________________________ ____ 41
Decision -making ________________________________ _______________________ 41
Review of denial of permits ________________________________ ______________ 41
Implementation costs ________________________________ ____________________ 41
4. Implementing the constitutional guarantee and freedom of assembly legislation _____ 42
Use of force by the police ________________________________ ________________ 42
Liability of assemblers ________________________________ __________________ 42
5. Securing government accountabilit y ________________________________ ________ 42
Liability of law enforcement authorities ________________________________ _____ 42
Monitoring ________________________________ ____________________________ 43
6. Conclusions and outlook ________________________________ _________________ 43
Social media ________________________________ __________________________ 43
Unmanned aerial systems (UAS) ________________________________ __________ 44

Belgium ________________________________ ________________________________ __ 45
1. Legal bases ________________________________ ___________________________ 45
2. Scope of th e guarantee ________________________________ __________________ 46
No specific laws on flash mobs ________________________________ ____________ 46
3. Restrictions ________________________________ ___________________________ 47
Place and time restrictions ________________________________ ________________ 47
Manner restrictions ________________________________ _____________________ 47
4. Procedural issues ________________________________ _______________________ 48
Authorization ________________________________ __________________________ 48
Decision -making ________________________________ _______________________ 48
Review and a ppeal ________________________________ _____________________ 49
5. Specific forms of assemblies ________________________________ ______________ 50
Assemblies gathered by means of new technologies (social networks etc.) __________ 50
Spontaneous assemblies ________________________________ _________________ 50
Assemblies taking place on public property ________________________________ __ 50
Counter -demonstrations ________________________________ _________________ 50
6. Implementing the constitutional guarantee and freedom of assembly legislation _____ 51
Pre -event planning ________________________________ ______________________ 51
Costs ________________________________ ________________________________ 51
Use of force by the po lice ________________________________ ________________ 51
Liability of organizers ________________________________ ___________________ 52
7. Securing government accountability ________________________________ ________ 52
Liability and accountability of law enforcement personnel ______________________ 52
Media access ________________________________ __________________________ 53
8. Conclusions and outlook ________________________________ _________________ 53

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Germany ________________________________ ________________________________ _ 54
1. Legal bases ________________________________ ___________________________ 54
2. Scope of the constitutional guarantee ________________________________ _______ 54
Ratione personae ________________________________ _______________________ 54
Rationae materiae ________________________________ ______________________ 55
3. Restrictions ________________________________ ___________________________ 57
4. Implementing the constitutional guarantee: The Federal Assembly Act ____________ 58
Indoor assemblies ________________________________ ______________________ 58
Outdoor assemblies ________________________________ _____________________ 59
5. Impact of other laws ________________________________ ____________________ 60
General provisions concerning liability, costs etc. _____________________________ 60
The recent Assembly Acts of the states (Länder) ______________________________ 60
6. Conclusions and outlook ________________________________ _________________ 61

Turkey ________________________________ ________________________________ ___ 63
1. Introduction ________________________________ ___________________________ 63
Current events: Gezi Park protests ________________________________ _________ 63
Flash mobs ________________________________ ____________________________ 64
2. Legal bases and scope of the guarantee ________________________________ _____ 64
The constitutional guarantee ________________________________ ______________ 64
The Law on Meetings and Demonstrations ________________________________ ___ 65
Case -law ________________________________ _____________________________ 65
3. Restrictions ________________________________ ___________________________ 66
Legitimate grounds for restrictions ________________________________ _________ 66
Time restrictions ________________________________ _______________________ 66
Place restrictions ________________________________ _______________________ 66
Manner ________________________________ ______________________________ 67
Restrictions intended to counter terrorism ________________________________ ___ 68
4. Procedural issues ________________________________ _______________________ 69
Notification ________________________________ ___________________________ 69
Decision -making ________________________________ _______________________ 70
Review and appeal ________________________________ _____________________ 70
5. Specific forms of assemblies ________________________________ ______________ 71
Spontaneous assemblies ________________________________ _________________ 71
Assemblies gathered by means of new technologies ___________________________ 71
Assemblies taking place on private property ________________________________ _ 71
Counter -demonstrations ________________________________ _________________ 72
6. Implementing the guarantee ________________________________ ______________ 72
Use of force by the police ________________________________ ________________ 72
Us e of tear gas ________________________________ _________________________ 72
Liability of organizers ________________________________ ___________________ 74
7. Securing government accountability ________________________________ ________ 75
Accountability of law enforcement personnel ________________________________ 75
Monitoring ________________________________ ____________________________ 76
Media access ________________________________ __________________________ 76
8. Conclusions and outlook ________________________________ _________________ 77

Russia ________________________________ ________________________________ ___ 78
1. Legal bases ________________________________ ___________________________ 78

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Constitutional guarantee ________________________________ _________________ 78
Prim ary legislation ________________________________ _____________________ 78
Secondary legislation ________________________________ ___________________ 79
2. Scope of the guarantee ________________________________ __________________ 79
Ca se-law ________________________________ _____________________________ 79
Experiences with flashmobs ________________________________ ______________ 80
3. Restrictions ________________________________ ___________________________ 81
Legitimate grounds for restrictions ________________________________ _________ 81
Refusal to agree ________________________________ ________________________ 81
Suspension a nd termination ________________________________ ______________ 82
Time, Place and Manner Restrictions ________________________________ _______ 82
4. Procedural issues ________________________________ _______________________ 84
Notification ________________________________ ___________________________ 84
Decision -making ________________________________ _______________________ 84
Review and appeal ________________________________ _____________________ 85
5. Specific forms of assemblies ________________________________ ______________ 85
Spontaneous assemblies ________________________________ _________________ 85
Assemblies gathered by means of new technologies ___________________________ 85
Counter -demonstrations ________________________________ _________________ 85
6. Implementing Freedom of Assembly Legislation ______________________________ 86
Pre -event planning ________________________________ ______________________ 86
Costs ________________________________ ________________________________ 86
Use of force by the po lice ________________________________ ________________ 86
Liability of organizers ________________________________ ___________________ 86
7. Securing government accountability ________________________________ ________ 87
Liability and accountability of law enforcement personnel ______________________ 87
Monitoring ________________________________ ____________________________ 87
Media access ________________________________ __________________________ 87
8. Conclusions and outlook ________________________________ _________________ 87

Ukraine ________________________________ ________________________________ __ 89
1. Legal bases and scope of the guarantee ________________________________ _____ 89
2. Restrictions ________________________________ ___________________________ 92
Time ________________________________ ________________________________ 92
Place ________________________________ ________________________________ 92
Sight and Sound ________________________________ _______________________ 93
3. Procedura l issues ________________________________ _______________________ 93
Notification ________________________________ ___________________________ 93
Decision -making ________________________________ _______________________ 93
Review and appeal ________________________________ _____________________ 94
4. Specific types of assemblies ________________________________ ______________ 94
Spontaneous assemblies ________________________________ _________________ 94
Assemblies organized by means of new technologies __________________________ 94
Assemblies taking place on public properties ________________________________ _ 95
Counter -demonstrations ________________________________ _________________ 95
5. Imp lementing freedom of assembly legislation _______________________________ 95
Pre -event planning ________________________________ ______________________ 95
Costs ________________________________ ________________________________ 96
Use of force by the police ________________________________ ________________ 96
The use of drones during demonstrations ________________________________ ____ 96
Liability of organizers ________________________________ ___________________ 96

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6. Securing government accountability ________________________________ ________ 97
Liability and accountability of law enforcement personnel ______________________ 97
Monitoring ________________________________ ____________________________ 97
Media access ________________________________ __________________________ 97
7. Conclusions and outlook ________________________________ _________________ 98

Poland ________________________________ ________________________________ ___ 99
1. Legal bases ________________________________ ___________________________ 99
2. Scope of th e guarantee ________________________________ __________________ 99
Experiences with flashmobs ________________________________ _____________ 101
3. Restrictions ________________________________ __________________________ 102
4. Procedural issues ________________________________ ______________________ 102
Notification ________________________________ __________________________ 102
Decision -makin g ________________________________ ______________________ 103
Review and appeal ________________________________ ____________________ 103
5. Specific forms of assemblies ________________________________ _____________ 103
Spontaneous assemblies ________________________________ ________________ 103
Assemblies gathered by means of new technologies __________________________ 104
Counter -demonstrations ________________________________ ________________ 104
6. Implementing freedom of assembly legislation ______________________________ 104
Pre -event planning ________________________________ _____________________ 104
Costs ________________________________ _______________________________ 104
No strict liability of the organizers ________________________________ ________ 104
Use of force by the police ________________________________ _______________ 104
7. Securing government accountability ________________________________ _______ 105
Liability and accountability of law enforcement personnel _____________________ 105
Monitoring ________________________________ ___________________________ 105
Media access ________________________________ _________________________ 105
8. Conclusions and outlook ________________________________ ________________ 105

Serbia ________________________________ ________________________________ ___ 107
1. Introduction ________________________________ __________________________ 107
2. Legal b ases and scope of the guarantee ________________________________ ____ 107
3. Restrictions ________________________________ __________________________ 108
4. Procedural issues ________________________________ ______________________ 109
Notification ________________________________ __________________________ 109
Decision -makin g ________________________________ ______________________ 109
Review and appeal ________________________________ ____________________ 110
5. Specific forms of assemblies ________________________________ _____________ 110
Spontaneous assemblies ________________________________ ________________ 110
Counter -demonstrations ________________________________ ________________ 110
LGBTI righ ts/prohibition of Gay Pride Parades ______________________________ 111
6. Implementing Freedom of Assembly Legislation _____________________________ 111
Costs ________________________________ _______________________________ 111
Use of force by the police ________________________________ _______________ 112
Liability of organizers ________________________________ __________________ 112
7. Securing governmental accountability ________________________________ _____ 112
Liability and accountability of law enforcement personnel _____________________ 112
Monitoring ________________________________ ___________________________ 112
8. Conclusions a nd outlook ________________________________ ________________ 112

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Hungary ________________________________ ________________________________ _ 113
1. Legal bases ________________________________ __________________________ 113
Changing constitutional context: problematic constitutional text, uncertain continuity
with previous constitutional jurisprudence ________________________________ __ 113
The Act on the Right to Assembly ________________________________ ________ 114
2. Scope of the guarantee ________________________________ _________________ 115
Peacefulness ________________________________ _________________________ 115
Narrow (or enlarged) notion of assembly ________________________________ ___ 115
Choice of place, time, and circumstances ________________________________ ___ 116
Types of assemblies protected ________________________________ ____________ 116
3. Restrictions ________________________________ __________________________ 116
Legitimate grounds for restrictions ________________________________ ________ 116
Specific place and time restrictions ________________________________ ________ 117
Manner restrictions ________________________________ ____________________ 119
Sight and sound restrictions ________________________________ _____________ 120
3. Procedural issues ________________________________ ______________________ 121
a) Notification ________________________________ ________________________ 121
b) Spontaneo us assemblies ________________________________ ______________ 121
c) Assemblies gathered by means of new technologies (social networks etc.) _______ 122
c) Decision -making ________________________________ ____________________ 122
d) Review and appeal ________________________________ __________________ 122
4. Specific forms of assemblies ________________________________ _____________ 123
5. Implementing freedom of assembly legislation ______________________________ 123
Pre -event planning ________________________________ _____________________ 123
Costs ________________________________ _______________________________ 123
Liability of organizers ________________________________ __________________ 124
Use of force by the police ________________________________ _______________ 124
6. Securing government accountability ________________________________ _______ 125
Liability and accountability of law enforcement personnel _____________________ 125
Monitoring ________________________________ ___________________________ 125
Media access ________________________________ _________________________ 126
7. Conclusions and outlook ________________________________ ________________ 126

Tunisia ________________________________ ________________________________ __ 127
1. Legal bases ________________________________ ________________________ 127
2. Scope of the guarantee ________________________________ _________________ 128
Co mments on the final draft ________________________________ _____________ 128
Experiences with flash mobs ________________________________ _____________ 129
3. Restrictions ________________________________ __________________________ 129
4. Procedural issues ________________________________ ______________________ 129
Notifi cation/authorization ________________________________ _______________ 129
Decision -making ________________________________ ______________________ 130
Review and appeal ________________________________ ____________________ 130
5. Specific forms of assemblies ________________________________ _____________ 131
Spontaneous assemblies ________________________________ ________________ 131
Asse mblies gathered by means of new technologies __________________________ 131
Assemblies taking place on public property ________________________________ _ 131
Counter -demonstrations ________________________________ ________________ 131
6. Implementing freedom of assembly legislation ______________________________ 132
Pre -event planning ________________________________ _____________________ 132
Costs ________________________________ _______________________________ 132

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Use of force by the police ________________________________ _______________ 132
Liability and accountability of organizers ________________________________ ___ 134
7. Securing government accountability ________________________________ _______ 134
Liability and accountability of law enforcement personnel _____________________ 134
Monitoring ________________________________ ___________________________ 135
Media access ________________________________ _________________________ 135
8. Conclusions and outlook ________________________________ ________________ 135

Freedom of Assembly in Europe – Comparison ________________________________ __ 137
1. Constitutional and statutory guarantees ________________________________ ____ 137
Wording ________________________________ _____________________________ 137
Scope of application ________________________________ ___________________ 138
Flashm obs ________________________________ ___________________________ 140
Federal states ________________________________ _________________________ 140
2. Restrictions ________________________________ __________________________ 141
Restrictions “prescribed by law”? ________________________________ _________ 141
Private space ________________________________ _________________________ 141
Prohibition, b ans, and dispersals of assemblies ______________________________ 142
Time, place, and manner restrictions ________________________________ ______ 143
Place restrictions: specifically designated areas in Russia and Serbia _____________ 144
Time restrictions ________________________________ ______________________ 145
Sound rest rictions ________________________________ _____________________ 145
Anonymity of participants ________________________________ _______________ 146
Fringe areas and other restricted zones ________________________________ _____ 146
Use of force by the police ________________________________ _______________ 14 7
State of emergency ________________________________ ____________________ 147
Anti -terrorism legislation ________________________________ _______________ 147
3. Procedural issues ________________________________ ______________________ 148
Notification or authorization requirement ________________________________ ___ 148
Pre -event planning of law enforcement officials with the organizer ______________ 149
Spontaneous assemblies ________________________________ ________________ 150
Counter -demonstrations ________________________________ ________________ 151
Decision -making ________________________________ ______________________ 152
Review and appeal ________________________________ ____________________ 152
4. Implementing freedom of assembly ________________________________ _______ 153
Same sex pride parades ________________________________ _________________ 153
Use of force ________________________________ __________________________ 153
Liability and accountability of law enforcement personnel _____________________ 154
Liability of organizers ________________________________ __________________ 155
Medi a access and documentation ________________________________ _________ 156
Monitoring ________________________________ ___________________________ 157
5. Final Assessment ________________________________ ______________________ 158

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Introduction
In 2010, the European Commission for Democracy through Law of the Council of Europe
(Venice Commission) in co -operation with the OSCE/ODIHR panel issued the 2 nd edition of
their Joint G uidelines on freedom of assembly, a comprehensive overview of the normative
standards for freedom of assembly legislation within the Commission’s m ember states. In the
Commission’s and OSCE/ODIHR estimate, these standards presented the grown, established
and prevalent principles and best practices of freedom of assembly regulations within its
member states. The guidelines are currently being subject to revision by the OSCE/ODIHR
expert panel and the Commission as new questions within the scope of the guidelines arise.
These new questions concern, inter alia, the use of social media in the organization of protests
(flashmobs) or the concept of the orga nizer of demonstrations. The comparative study on
freedom of assembly regulation within the Venice Commission’s Member States is meant to
inform and facilitate this revision of the guidelines which is due in 2014.
Selection of topics of comparison
The cas e studies aim at presenting a comprehensive overview with regard to the legislative
situation in the investigated countries with a special regard on new questions (such as
flashmobs, social networks, content -based restrictions, amongst others). The case st udies
therefore researches into
 the scope of guarantees in constitutional and in primary legislation and case -law,
 legally provided restrictions (legitimate grounds for restrictions; time, place, and manner
restrictions; sight and sound),
 procedural issu es (such as notification requirements, spontaneous assemblies, assemblies
taking place on public property, counter -demonstrations, decision -making, review and
appeal) as well as
 questions of implementation (pre -event planning, costs, use of force by the po lice, liability
of enforcement personnel and organizers, monitoring and media access).

Selection of countries
For reasons of time and resources, the authors had to choose representative countries. The
choice of jurisdicti ons aims at regional represent ivi ty (of Eastern, central, Western European
as well as non -European member states), the inclusion of legislative systems influential in the
shaping of freedom of assembly (such as the Belgium one), integrating the earliest and
therefore pivotal traditions (t he US and the UK) and codifications (France as the earliest
European codification). Since the study aspires to support the revision of the OSCE/ODIHR –
Venice Commission’s guidelines, its selection of states also encompasses Member States
which have in the past received opinions by the Commission (Russia, Serbia) or which have
been party to proceedings before the ECtHR with regard to freedom of assembly questions
(Hungary, Poland, UK, Turkey, Germany). Another reason to include Tunisia and Turkey has
been th eir part in the Arab Spring revolutions or, respectively, the Taksim square protests.
The US and the Ukraine were included in order to find a good balance between “old” and
“new”, “small” and “big” countries. During drafting of the study, protests in Ukrai ne have
erupted and recently gained a new level of seriousness, also with regard to the use of force by
police personnel which we tried to include as comprehensively as possible. The countries are
chronologically ordered, according to the entry into force of the constitutional guarantee of
freedom of assembly.

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Nature of the reports and comparison
The country reports as well as the final comparison focus on the legislative situation but also
include interpretations by national courts and the European Court of Human Rights. Issues of
implementation as well as instances of current administrative, mostly police practice are
included in order to provide for a topical and comprehensive overview of the situation in a
given country. The study was conducted with a v iew to the guidelines and is intended to
provide orientation for legislators and other practitioners. Its nature therefore is a practical
one; lengthy background information on the legal systems have been left out in favour of a
very direct confrontation w ith the regulation of freedom of assembly in each country.

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United Kingdom
by Jannika Jahn

The right to freedom of peaceful assembly is widely exercised in the UK, between ten to
fifteen demonstrations per day on average basis are spontaneous. 1
1. Legal bases and scope of the guarantee
Traditionally, as every civil liberty, the freedom of peaceful assembly used to be a residual
right. 2 For the purpose of securing public order, the right was applied in a restrictive manner
and broad powers and margin s of error were given to the police and other public authorities in
enforcing their powers. A positive right to assemble peacefully was introduced by the Human
Rights Act 1998 (HRA 1998). 3 Meanwhile, the fundamental parameters of the right are
defined with reference to ECtHR case law. By placing the right at the beginning of a
balancing exercise with other rights or interests and by emphasizing its significance, the
courts show that they seem to have accepted the legal presumption in favour of the right, as
was postulated by the ECtHR. 4 Art. 11 ECHR encompasses a positive and a negative right, 5 it
comprises participation in private and public meetings, 6 processions, 7 mass actions,
demonstrations, pickets, rallies, 8 cyber protests and flashmobs, it only exclu des the
participation in violent protests. 9 More recently, the protection of the right to a peaceful
assembly on private grounds has become topical. Originally this was not comprised by the
protected right. 10 Many public spaces are being contracted out to p rivate entities, however,
which leaves the right to demonstrate largely unprotected if the positive dimension of the
right is not properly enforced by the legislator and the courts. 11 In the case of Appleby v.
1 In London, there are ca. 4000 protests per year, see the Report of the UN Special Rapporteur on freedom of
peaceful assembly in the UK, A/HRC/23/39/Add.1, 29 May 2013, para. 18. 2 This meant that everyone was held to be free in his/her actions as long as they did not cause a breach of the
law. Restrictions were not imposed with requirements of legality or fairness, see e.g. Lord Denning in
Hubbard v. Pitt [1976] QB 142; Hirst and Agu v. Chief Constable of West Yorkshire (1986) 85 Cr App R
143; Jones and Lloyd v. DPP [1999] 2 All ER 257. 3 The HRA was adopted to comply with the obligations under the ECHR. S. 6 HRA 1998 obliges all public
authorities to abide by the ECHR obligations (act in compliance with the ECHR), which means that also
courts will have t o take into account the ECHR and the ECtHR’s interpretation of it, when making
decisions with ECHR references. 4 Also underlined as important by the OSCE/ODIHR – Venice Commission Guidelines on Freedom of Peaceful
Assembly, Study no. 581/2010, CDL -AD(2010) 020, 2 nd ed, 2010, para. 30. For ECtHR case law, see e.g.
Christians Against Racism and Facism v. United Kingdom, Application no. 8440/78, Judgment of 2010,
21 DR 138, at p.148; for UK case law, see R (Tabernacle) v Secretary of State for Defence [2009] E WCA
Civ 23. 5 See the Report of the Human Rights Joint Committeee (HRJC) of 2008/2009, Demonstrating respect for rights?
A human rights approach to policing protest, 7th Report, available at
https://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/4702.htm (last accessed: 09 March
2014) , para. 17, with reference to pertinent ECtHR case law. The following Articles are those of the
ECHR unless cited o therwise. 6 Rassemblement Jurassien and Unité Jurassienne v Switzerland , App. No. 8191/78, 17 DR 93. 7 Christians Against Racism and Facism, supra fn. 4. 8 Rai Almond and ‘Negotiate Now v. the United Kingdom, Application no. 25522/94, 6 April 1995. 9 Cirak lar v Turkey , Application no. 19601/92, 80 DR 46. To determine whether a demonstration is peaceful, the
courts look at the organizer’s intention, see Rai Almond and ‘Negotiate Now, supra fn. 8. Apparently,
demonstrations of a merely social character are not excluded by statute or case law. 10 Anderson et al v. UK, Appl. no. 33689/96, 27 October 1997. 11 See D. Mead, A chill through the back door? The privatised regulation of peaceful protest, P.L. 2013, Jan,
100 -118; the HRJC recommended in its report, supra fn. 5, para. 68, that if people were effectively
deprived of their right to peaceful protest, “the Government should consider the position of quasi -public
spaces”; along the same lines, OSCE guidelines, supra fn. 4, paras. 22 -23. The restriction of public

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United Kingdom the applicants were prevented from leafleting in a private shopping centre.
Whilst the English courts as well as the ECtHR held that there was no violation of Art. 11, the
ECtHR held obiter dicta that “a positive obligation could arise for the State to pr otect the
enjoyment of the Convention rights by regulating [private] property rights.” 12
2. Restrictions
UK law holds targeted and untargeted, statutory and common law powers of restraining
demonstrations. When confronting them with human rights standards, concerns of legality,
necessity and proportionality surface here and there concerning the laws’ substance, the scope
of discretion left to the enforcing authorities and their implementation.
Targeted statutory powers
The Public Order Act 1986 (POA 1986) h olds powers to regulate public processions and
assemblies. The strictest controls apply to processions, i.e. moving demonstrations. 13 Only
public processions in a public space are covered. 14 If the procession is held to demonstrate
support for or opposition to the views of any person or body of persons, to publicize a cause
or campaign or to mark or commemorate an event, notice requirements apply to the
organizer. 15 An advance notice of six clear days before the proposed date of the event must be
given to the police, specifying the date, the starting time, the route and the name and the
address of the organizer. If timely notice was not reasonably practicable, it must be delivered
as soon as is reasonably practicable. 16 Failure to conform to the notice requireme nts is a
summary offence for the organizer. 17 No offence can be committed if there is no organizer and
if the procession is spontaneous and lacks a specific route. 18 The notification requirements are
generally deemed to be in compliance with Art. 10 as enshr ined in the HRA 1998, 19 although
the minimum notification period has been found to be too long. 20
Conditions may be imposed by a senior police officer before or during the public procession, 21
but only if he reasonably believes either that the procession may result in serious public
disorder, serious damage to property or a serious disruption to the life of the community, or

protest is exacerbated by injunctions and costly eviction costs, imposed on protesters, see Netpol , Civil
law poses threat to protest freedom, 28 March 2013, available at https://netpol.org/2013/03/28/civil -law –
poses -threat -to-protest -freedom/ (last accessed 09 March 2014) ; hence the call to stop their enforcement,
in t he Report of the UN Special Rapporteur on freedom of peaceful assembly in the UK,
A/HRC/23/39/Add.1, 29 May 2013, para. 93, also directing this recommendation against private
organizations, in para. 94. 12 Appleby v UK , App. No. 44306/98, 6 May 2003, para. 47. 13 No exact definition is given in the POA 1986; the number of persons necessary has never been concretized; in
Flockhart v. Robinson [1950] 2 KB 498, p. 502 it was defined by Lord Goddard as “a body of persons
moving along a route”; in DPP v. Jones [20 02] EWHC 110 (Admin). 14 Section 16 POA 1986. A public place is “any highway… and (b) any place which at the material time the
public or any section of the public has access, on payment or otherwise, as of right or by virtue of express
or implied permission .” This covers a wide range of places, see , e.g. Cawley v. Frost [1976] 3 All ER
743 , where a speedway track surrounding a football pitch was held to be a public place under an almost
identical definition. 15 Section 11(1) POA 1986. If a procession is a fun eral procession or is commonly or customarily held in the
police area, s. 11(2) exempts those processions from the notice requirement. 16 Section 11(6) POA 1986. 17 Section 11(7) POA 1986. 18 Held in the obiter dicta of R (Kay) v. Commissioner for the Metropolitan Police Force [2008] UKHL 69. 19 R. Stone , Civil Liberties and Human Rights, 9 th ed. 2012, p. 382. 20 Report of the UN Special Rapporteur on freedom of peaceful assembly in the UK, A/HRC/23/39/Add.1, 29
May 2013, para. 11. 21 The meaning of Senior Police Officer differs according to the point of time, when the conditions are imposed.
Before the event, the conditions have to be given in writing and be reasoned, as implied by R (Brehony) v.
Chief Constable of Greater Manchester Police [2005] EWHC 640 (Admin).

13
that it was organized for intimidating others. 22 He may impose such conditions as “appear to
him necessary” to prevent the apprehended dis order, damage, disruption, or intimidation,
including the power to change the procession’s route or to prohibit the entering of a specific
public place. 23
Conditions may also be imposed on public assemblies 24 according to section (s.) 14. The
procedure is a lmost identical to that for public processions. 25
Organizing or participating in processions or assemblies without complying with the
conditions as well as the incitement to such participation is a summary offence. 26 In case of
failure, the police are empow ered to arrest those acting in violation of the direction. 27 S. 24 of
the Police and Criminal Evidence Act 1984 conveys a general power of arrest without a
warrant on the police if a police officer reasonably suspects that a person does not follow the
polic e’s directions. 28
Generally, the statutory power to impose conditions by ss. 12, 14 POA 1986 has been deemed
reasonable as to its scope and the discretion that is left to the police. 29 But the HRA 1998 will
require proportionate conditions that do not strip the procession of its purpose. 30 The
organizers liability for others’ breaking of conditions 31 has caused disapproval, as this may
have a chilling effect on the exercise of the right. 32 In practice, the police have been criticized
for using the conditions too extensively as well as for enforcing them with the intimidating
‘Scene Management Barrier System’ and by using force where no violence or disorder was
involved. 33 The police have alleged that conditions were used sparingly and only when
22 Intimidation must have been done with a view to compelling them not to do an act they have a right to do, or
to do an act they have a right not to do; hence there must be a fear of coercion as well as intimidation. 23 Section 12(1) POA 1986. 24 They are defined in s. 16 POA 1986 as an assembly of two or more persons in a public place which is wholly
or partly open to the air. The definition of public is the same as for processions. Until it was amended by
the Anti -Social Behaviour Act 2003, s. 57 , s. 16 POA read “20 or more persons”. Hence, the power now
applies to a very small amount of people that cannot establish a real risk to public order, rendering the
criminal offences, arising in case of a violation of the Act, seem disproportionate, see Liberty’s response
to the HRJC report “Policing and Protest”, June 2008, available at https://www.liberty -human –
rights.org.uk/pdfs/policy08/response -to-jch r-re-protest -2.pdf , at 10 -11 (last accessed: 09 March 2014).
Whether gatherings inside of premises that have a closed circuit television coverage fall within the ambit
of this definition is difficult to ascertain, D. Bonner/R. Stone , The Public Order Act 1 986: Steps in the
Wrong Direction [1987] PL 202, p. 223 25 The power to impose conditions applies irrespective of a certain purpose which is pursued by the assembly. 26 Sections 12 (4) and 14(4), 12(5) and 14(5), 12 (6) and 14 (6) POA 1986. 27 Sections 12(7) and 14(7) POA 1986. 28 In Broadwith v. Chief Constable of Thames Valley Police [2000] Crim LR 924 the police ordered the alteration
of the proposed route in order to avoid the confrontation with a rival demonstration, any person who did
not follow the alter ed route was arrested. 29 In contrast, the UN Special Rapporteur found the threshold too low, suggesting that the powers would not
satisfy the tests of necessity and proportionality under Art. 21 of the ICCPR, Report of the UN Special
Rapporteur on freedom of peaceful assembly in the UK, A/HRC/23/39/Add.1, 29 May 2013, para. 12, 93. 30 “Serious disruption to the life of the community” (section 12(1)(3) POA 1986) is formulated in wide terms
which may cause legal uncertainty and the discretion may be misused; see also R. Stone , supra fn. 19, p.
384; S. S. Foster, Human Rights and Civil Liberties, 3 rd 2011, p. 515; for pertinent case law, see R
(Brehony) v. Chief Constable of Greater Manchester , supra fn. 21; in Austin v. Commissioner of Police of
the Metropolis [2007] EWCA Civ 989, it was held that the power to impose conditions could include a
power to end a protest and that an instruction under s. 14 could include a dispersal direction. 31 If they want to evade this consequence they will have to show that the vi olation arose from circumstances
beyond their control, ss. 12(4), 14(4). 32 This was also criticized by the UN Special Rapporteur, supra fn.29, para. 15. 33 See the case study in the report of the Network for Police Monitoring (Netpol) into the policing of protest
2010/2011, available at https://netpol.files.wordpress.com/2012/07/wainwright -report -final1.pdf , p. 21 -24
(last accessed: 09 March 2014).

14
necessary. 34 Whether , having imposed restrictive conditions, the police try to make a suitable
alternative time or place available in practice, as prescribed by Rai, Almond and “Negotiate
Now” v. United Kingdom ,35 is thus difficult to assess.
The power to ban processions is c onveyed exclusively on the chief officer of police. 36 He
must reasonably believe that because of particular circumstances existing in (part of) the
police area, the powers to impose conditions under s. 12 will not suffice to prevent “serious
public disorder .”37 The consent/approval of the Home Secretary is required, adding an element
of external political control on and highlighting the exceptional character of the ordering of
bans. 38 A ban only applies to a class of public processions in the relevant district for a period
not exceeding three months. 39 The order should be in written form. 40 It need not be made
public. The organization of or the participation in a banned procession, or the incitement of
such a participation are summary offences. 41 It has been point ed out that, although formally,
supervisory mechanisms exist, in practice, the chief constables and the Commissioners have a
wide discretionary power that is unlikely to be seriously challenged under English law. 42
Hence, the ECHR standards are deemed impor tant for holding the police to the principle of
proportionality, 43 especially, since recently the section has been used as legal basis for several
blanket bans. 44
While banning public assemblies in advance is not allowed, 45 s. 70 and 71 CJPOA 1994 have
expand ed s. 14 POA 1986, giving the police the power to stop trespassory assemblies in
advance. 46 Trespassory assemblies are such, where the right to access is not given or limited 47
and the police officer reasonably believes that an assembly might result in serious disruption
to the life of the community, or […] in significant damage to the land, building or
monument. 48 They are banned in a certain district for a specified period not exceeding 4 days.
This does not prevent other peaceful non -trespassory assemblies from taking place in the
district at that time. 49 Importantly, s. 14C gives the police the power to stop persons from
going to a trespassory assembly, if a police officer reas onably suspects a person to be
committing an offence under this section, and to arrest the person without a warrant. It has
34 See the HRJC report that was conducted, after heavy policing of mass protests had been widely criticized. The
police took the opposite view, HRJC Report, supra fn. 5, paras. 1 -10, 47 -51. 35 Application no. 25522/94, Judgment of 6 April 1995. 36 Section 13(1), (4) POA 1986. 37 The procedure to be followed is different for London and the rest of the country. 38 See S. Foster , supra fn. 30 , p. 516. Outside of London, the chief constable must apply to the district council
that will issue the ban, on approval of the Home Secretary. Already at this stage, political control is
involved. 39 This is in order to avoid an overly burdensome and politically motivated restraint of the right to asse mble
peacefully , R. Stone , supra fn. 19 , p. 385. 40 Section 13(6) POA 1986. 41 Section 13(7), (8), (9) POA 1986. 42 S. R. Stone , supra fn. 19 , p. 386; S. S. Foster , supra fn. 30 , 516, with reference to the case of Kent v.
Metropolitan Police Commissioner , The Times, 15 May 1981, where a ban was ordered for 28 days and
the definition of a “class” of processions was ac hieved by excluding certain types of processions. The
unreasonableness standard was handled generously by the Court of Appeal. 43 S. S. Foster , supra fn. 30 , p. 516. 44Criticized by the UN Special Rapporteur in his report, supra fn. 29 , para. 13. 45 The power to ban public assemblies was held to be too infringing on freedom of speech in the White Paper of
the POA 1986, para. 5.3. 46 Under s. 14A POA. 47 I.e. in “any district at a place on land to which the public has no right of access or only a limited right of
access, and when the assembly is likely to be held without the permission of the landowner or to conduct
itself in a way which would exceed that permission or the limit of the public’s right of access.” 48 The latter must be of historical, architectural, archaeological or scientific importance. 49 DPP v Jones and Llyod [1999] 2 All ER 257, s. 14A does not automatically prohibit the holding of an
ass embly where only a limited right of access to the highway exists; s. 14 A (1), (5).

15
been emphasized, that the police should use this forceful power restrictively. 50 A burdensome
use of the pre -emption power of s. 14C has been criticized, however. 51
Raves, i.e. large -scale outdoor musical events, held with the permission of the landowner, are
also subject to certain rules under ss. 63 -67 CJPOA 1994, allowing for an order to prevent
such events from taking place. 52
In the vicinity of Parliament special powers of controlling noise or the camping on the Square
apply under s. 143 Police Reform and Social Responsibility Act 2011. 53 Concerns of
proportionality have been raised. 54
While the authorization of assemblies in the vici nity of Parliament has been repealed, the
authorization requirement still applies to other designated areas. 55 Owing to concerns of
proportionality, the HRJC recommended to amend s. 128(3)(c) SOCPA 2005 so as to permit
the Home Secretary to designate sites on the grounds of national security only where it is
necessary to do so. 56 This has, however, not been implemented yet.
Undercover policing of activist groups is provided for by an intricate legal framework. 57 This
has led to serious scandals in the last yea r, especially the infiltration of non -violent groups
with the purpose of controlling their right to freedom of peaceful assembly has sparked
criticism 58 and calls for reform. 59 Additionally, the wide definition and application of the term
“extremist groups” has allowed the police to use extensive powers against e.g. Occupy
London. 60
Surveillance by Forward Intelligence Teams (FITs) and the management of several databases
on protesters, including peaceful ones, 61 purportedly containing personal information, cau sed
50 S. Foster , supra fn. 30 , p. 520; R. Stone , supra fn. 19 , p. 392. 51 Netpol Report, supra fn. 33 . 52 See section 63(6) CJPOA 1994. The Anti -Social Behaviour Act 2003 (ASBA 2003) extended the powers to
trespassory assemblies not in the open air and reduced the required number of people from 100 to 20. The
failure to comply with banning or altering orders gives rise to summary offences. 53 Ss. 141 -149 Police Reform and Social Responsibility Act 2011 have repealed the Powers of ss. 132.138 of the
Serious Organised Crime and Police Act 2005 to ban on unauthorized assembly in the vicinity of
Parliament w hich was widely held as being incompatible with the Convention. 54 The Special Rapporteur is concerned that this may prevent long -term public protest in front of Parliament,
supra fn. 11 , para. 14. 55 Cf. section 128 Serious Organized Crime and Police Act 2005 (SOCPA 2005). 56 Report, supra fn. 11 , para. 108. 57 See the report of Her Majesty’s Inspectorate Constabulary (HMIC), Policing Public Order, February 2011,
available at https://www.hmic.gov.uk/media/policing -publ ic-order -20110208.pdf , Annex C of the HMIC
report, A review of national police units which provide intelligence on criminality associated with protest,
p. 44 -48 (last accessed: 09 March 2014). 58 See the UN Special Rapporteur report, supra fn. 29 , paras. 24 -28. 59 The UN Special Rapporteur recommended that the undercover policing legislation should be reviewed,
specifying that peaceful pr otestors should not be infiltrated and that a law should be adopted on
intelligence gathering, supra fn. 29 , para. 93. 60 See the Report of the UN S pecial Rapporteur, supra fn. 29 , paras. 34 -35 and the HMIC report, A review of
national police units which provide intelligence on criminality asso ciated with protest, 2012, available at
https://www.statewatch.org/news/2012/feb/uk -hmic -police -undercover -report.pdf (last visited: 09 March
2014) , recommended tha t an adequate definition should be found for “extremism” so that undercover
policing will not apply to peaceful activist groups, rec. 2, at 12, see also the OSCE guidelines, supra fn. 4,
para. 91. The definition, given by the Association of Police Officers (ACPO) 2006, originally directed
against violent animal rights activists, now covering especially the “professional protester”, reads:
“[d]omestic extremism and extremists are the terms used for activity, individuals or campaign groups that
carry out criminal acts of direct action in furtherance of what is typically a single issue campaign. They
usually seek to prevent something from happening or to change legislation or domestic policy, but
attempt to do so outside of the normal democratic process.” 61 The becoming a target of a Forward Intelligence Team does not require criminal activity, but merely a
prominent or frequent involvement in political protest , Netpol Report, supra fn. 33 , p. 43.

16
public disconcertment. 62 The courts have also rejected this practice of intransparent and
illegitimate blanket acquisitions and retention of data, highlighting the chilling effect such
surveillance methods and intelligence data bases may have. 63 Moreover , they raise concerns of
legality. 64 Apparently, Government is working on changes, particularly the clarification of the
role of FITs. 65
Public order (criminal) offences
Part I POA 1986 contains public order offences which impose criminal liability on
demons trators, including riot, violent disorder, affray and the fear or provocation of
violence. 66 The concept of “unlawful violence” is at the core of each offence, defined in s. 8
POA 1986 as meaning “any violent conduct” whether or not intended to cause injury or
damage. 67
There are two offences in the POA 1986 which forbid the causing of harassment, alarm or
distress, ss. 4A 68 and 5. It has been difficult for English courts to find a balance between
peaceful protest and the prevention of public disorder. 69 What is considered to be “reasonable”
has been assessed differently, leaving the suspect in uncertainty. 70 This is exacerbated in cases
of “borderline extremist protest.” 71 Moreover, s. 5 incurs criminal liability which may raise
62 Netpol report, supra fn. 33, p. 42; the Special Rapporteur even reporte d on private security companies
reportedly collecting data on and taking pictures of peaceful protestors, supra fn. 11 , para. 33. In their
report following the policing of the G20 demonstrations, “Adapting to Protest” (2009), the HMIC
recognized these concerns and recommended to clarify the role of FITs, and the remit of evidence
gatherers, available at https://www.hmic.gov.uk/media/adapting -to-protest -20090705.pdf (last accessed:
09 March 2014) , see also V. Swain , Disruption policing: surveillance and the right to protest, 8 August
2013, available at, https://www.opendemocracy.net/opensecurity/val -swain/disruption -policing –
surveillance -and -right -to-protest (last accessed: 09 March 2014) . 63 With respect to Art. 8 and not Arts. 11 or 10. For the latest decision on this issue with further pertinent
references, see Catt v. ACPO & the Commissioner of the Police of the Metropolis [2012] EWHC 1471
(Admin), paras. 17 -18 for the statutory power and paras. 21 -35 for the rival cases and authorities. The
Court of Appeal found that the retention of information which did not contain any suggestion of unlawful
activity was disproportionate, given that the police had failed to show how the information would assist in
the in vestigation or suppression of crime, also in Wood v. MPC [2009] EWCA Civ 414 it was held that
the retention of data would have to be justified. 64 In Wood the Court held that the common law power in combination with the unpublished “Standard Operating
Proce dures for ‘Use of Overt Filming/Photography'” constituted sufficient legal footing for the
surveillance and photography powers and would not contradict the principle of legality, supra fn. 63 ,
para. 55. In Mengesha , even though slightly different on the facts, the court took a more restrictive
approach on the scope of the common law powers. 65 See the HMIC Report 2010/2011, supra fn. 57 , Annex B, Rec. 10. 66 Sections 1 -4 POA 1986. They concretize in black letter law former common law concepts, the principle of
“breach of the pea ce” having been central to them, but considered too vague by the Law Commission, see
The Law Commission: Criminal Law: Offences Relating to Public Order (Law Com. No. 123), The
Modern Law Review, Vol. 47, Issue 3, 1984, pp. 324 –333. 67 Concerning riot, it i s problematic, that besides the requirement of violence, the common intention can be
inferred from conduct, hence a person might face the severe penalties of the offence for relatively
innocuous behaviour. The offences of violent disorder and affray crimin alize minor acts of actual or
threatened violence. This may hinder the exercise of peaceful protest. Yet, as the use or the threat of
violence is required, it is unlikely that this will be called incompatible with the ECHR, S. Foster , supra
fn. 30 , pp. 523 -524. 68 Added by the CJPOA 1994. 69 I.e. the balance between Arts. 10 and 11 and section 5 of the POA 1986. 70 C. Newman , Section 5 of the Public Ord er Act 1986: the threshold of extreme protest, J. Crim.L. 2012, 76(2),
105 -109, p. 108, with further references to case law. 71 In the latest case on the issue, the judicial stance was rather restrictive, in Abdul v DPP [2011] EWHC 247
(Admin) it was held t hat protestors chanting “British soldiers go to hell”, “cowards”, “terrorists” towards
bypassing soldiers fell out of the ambit of exercising legitimate protest, since their words
were “potentially defamatory and undoubtedly inflammatory,” giving rise to a clear threat to public
order.

17
concerns of proportionality, since “harassment, alarm or distress must [only] be likely to result
from the person’s behaviour and the mens rea is already fulfilled if the perpetrator was aware
of th e facts that were likely to cause harassment etc. 72 In order to alleviate the problem of
disproportionate criminalization of only minor offences, 73 s. 5 was amended by s. 57 of the
Crime and Courts Act 2013 after a vigilant campaign against the preservation of the word
“insulting” in s. 5 of the POA. Apart from that, the offences under Part I POA 1986 have been
called a “reasonable set of controls at appropriate levels of disorder.” 74 However, doubts have
been voiced concerning the coverage of behaviour, solel y exercised on private grounds,
saying that here ordinary criminal law offences would suffice. 75
Aggravated trespass criminalizes types of protest, particularly where direct action is used
against the activities of others or actions, employing indirect forc e to determine the behaviour
of others. 76 S. 69 CJPOA 1994 allows the police to direct purported trespassers to leave the
land. 77 These powers have been considered critical, especially with a view to the privatization
of public space. 78
Incitement to racial h atred has been criminalized by the “racial hatred” offences enacted in
Part III POA 1986. 79 They are meant to control racist speech at public assemblies. 80 Racially
aggravated offences are explicitly criminalized under ss. 28 -32 Crime and Disorder Act
1998. 81 The Racial and Religious Hatred Act 2006 82 added a Part 3A to the POA 1986. 83
Offences cover speech, publications plays, recordings and broadcasts, possession of
inflammatory material 84 and the police are given powers of entry, search, and seizure and
powers of forfeiture. 85 While these powers considerably constrain free speech and thus also
the right to freedom of peaceful assembly, the underlying balance between the restriction
72 C. Newman , Section 5 of the Public Order Act 1986: the threshold of extreme protest, J. Crim.L. 2012, 76(2),
105 -109, p. 108, with further references to recent case law. 73 See the Standard Note of Parliament (Home Office Se ction), “Insulting words or behaviour”: Section 5 of the
Public Order Act 1986, 15 January 2012, SN/HA/5760, where the reasons and the history of the process
of repeal are described, available at www.parliament.uk/briefing -papers/SN05760.pdf . 74 R. Stone , supra fn. 19 , p. 403. 75 This is because behaviour on private grounds does not raise concerns for the public order. It is submitted that
even the narrowing of scope in ss . 4 and 5 to exclude dwellings would not go far enough , see R. Stone ,
supra fn. 19 , p. 403 -404. 76 It is enshrined in s. 68 of CJPOA 1994. Mens rea requires the intention to intimidate, obstruct or disrupt. The
offence under s. 68 is summary and punishable with up to three months’ imprisonment, or a fine not
exceeding level 4, section 68 (3) CJPOA 1994. 77 Failing to comply with such order constitutes a n offence, section 69 CJPOA 1994. 78 Report of the UN Special Rapporteur, supra fn. 29 , para. 49. 79 Racial hatred is defined as “hatred against any group of persons defined by reference to colour, race,
nationality (including citizenship) or ethnic or national origins.” 80 Section 17 POA 1986. The offences encompass a publication offence, s. 18, which criminalizes the use of
“words or behaviour or the display of written material that are threatening abusive or insulting and has
either been intended to stir up racial hatred or is likely to do so. 81 Proceedings for these offences may only be instigated with the consent of the Attorney -General, due to the
politically sensitive nature of these issues. An offence is racially aggravated when at the time of
committing the offence, the offender demonstrates towards the victim of the offence hostility based on the
victim’s (presumed) membership of a racial group or where the offence is motivated by hostility towards
members of a racial group based on their membership of that group. 82 Sections 29A -29N. 83 Religious hatred is defined as “hatred against a group of persons defined by reference to religious belief or
lack of religious belief.” Religious belief is not defined. The enactment was triggered by the increasing
religious hatred spurred by the often perceived link between Islam and terrorism and due to some Muslim
clerics who were thought to be stirring up hatr ed against non -Muslims. 84 Sections 29 B -29G of the Racial and Religious Hatred Act 2006. 85 Section 29H -I of the Racial and Religious Hatred Act 2006; the prerequisite requirements are stricter, as
opposed to Part III POA 1986, postulating that the behaviou r must be threatening and the intention to stir
up religious hatred needs to be shown.

18
imposed and the severity of the nature of the prohibited acts appears to be propo rtionate in
abstracto .
Non -targeted statutory powers and offences
Other statutory powers have been used by the police to restrict public protest which were
originally meant for other areas of law. Under the Protection from Harassment Act 1997
(PHA) it is a n offence for a person to pursue a “course of conduct which harasses, and which
the person knows or ought to know amounts to harassment.” 86 The Serious Organised Crime
and Prevention Act 2005 (SOCPA) introduced Section 1A PHA which extends the definition
of harassment to include conduct on one occasion only. 87 While the PHA 1997 was primarily
enacted for dealing with “stalking”, the powers have been used with respect to
demonstrations. 88 Penalties can be incurred 89 and injunctions applied. 90 Concerning
injunctio ns, proceedings are held in private, which is not adequate for public protest issues. 91
Companies have used injunctions broadly to prevent protests against them. 92 Generally, these
powers have been held to bear the potential for overbroad and disproportionat e application. 93
In areas where the impact on public order appears less heavy, recourse has been had to civil
procedures as a means of control, including anti -social behaviour orders (ASOBs), dispersal
orders 94 and football banning orders. 95 Introduced by s. 1 of the Crime and Disorder Act 1998
ASOBs require the acting in an anti -social behaviour. On occasion peaceful protest has been
considered to fall within the very broad statutory definition. 96 The breach of an ASOB is a
criminal offence which carries a hig her maximum penalty than other substantive public order
offences. 97 While the ASOBs have not been used as extensively as anticipated, 98 they still
86 Sections 1 and 2. Harassment is not defined, but includes conduct wh ich causes ‘alarm and distress’. 87 Provided that it involves the harassment of two or more persons and is done with the intention of persuading
them to do something that they are entitled not to do or not to do something which they are entitled to do. 88 Huntington Life Sciences v. Curtin , The Times, 11 December 1997 (research on animals); DPP v. Mosley , The
Times, 23 June 1999 (Farming mink). 89 See ss. 2 and 4 PHA 1997, 90 Notably, an injunction is a civil remedy, but the breach of the injunction is a criminal offence. 91 This is especially so, since protestors may not make representations on the proposed injunction, but when
seeking to have an injunction revoked, protestors may face substantial costs; the HRJC thus also
recommended that this state of law should be reviewe d, so that injunctions cannot be made without notice
being given to those potentially affected, requiring an amendment of the Practice Directions 39 and 25 to
the Civil Procedure Rules, see supra fn. 5, para. 99. 92 Cf “A glut of barristers at Westminster has led to a crackdown on dissent: The harassment law now being used
against anti -dumping protesters in Oxfordshire is turning into the riot act of our day”, Guardian , March
6th 2007. 93 See the HRJC Report, supra fn. 5, para. 99, see the report of the Special Rapporteur, supra fn. 11 , para. 47 -48,
93, 94. 94 Part 4, ss 30 -36 of the Anti -social behaviour Act 2003. 95 See ss. 14 -21 of the Football Spectators Act 1989, as amended by the Foot ball (Disorder) Act 2000, twice the
set of powers were considered in relation to a demonstration, dealing particularly with the power under s.
30 ASBA 2003, R (Singh) v. Chief Constable of West Midlands Police [2006] EXCA Civ 118, [2007] 2
All ER 297; R (W ) v. Metropolitan Police Commissioner [2006] EWCA CIv 458, [2006] 3 All ER 458,
both times, the powers were held to be compatible with Arts 10 and 11, yet only as the use of the powers
had been interpreted strictly. 96 Anti -social behaviour is given if (a) any person over the age of nine has acted in an anti -social manner, that is
so as to cause or be likely to cause “harassment, alarm or distress” to someone in another household and
(b) that the order is necessary to protect other people from further anti -social behaviour.” The discretion
of the magistrate’s court concerning the type of order is wide, concerning the “if” of the order, however,
the court must establish the ASOBs necessity. 97 The maximum penalty on indictment of five years’ imprisonment cause s concern as to the compatibility with
the lower maximum penalty incurred by a violation of ss. 4, 5 POA 1986. Yet, in the latest decision on
the issue, the court held that the ASOB maximum penalty should be considered, see R v. Lamb [2005] EWCA Crim 3000. Being of a hybrid nature, i.e. not merely civil nor criminal, the orders are not subject
to the fair trial requirements of Art. 6. Thus, hearsay evidence is sufficient.

19
constitute an incohesive fragment in the law that may restrict the right to freedom of peaceful
assembly.
The existing dispersal powers in case of anti -social behaviour will be replaced and extended
by s. 33 of the Anti -social Behaviour, Crime and Policing Bill, 99 the only requirement being
that the dispersal is ‘necessary to reduce the likelihood of anti -socia l behaviour’. 100 This has
led to criticism, as anti -social behaviour powers have often been used for constraining
protests. 101
While police have no general powers to oblige protesters to provide personal details s. 50 of
the Police Reform Act 2002 gives the p olice the power to demand the name and address of
anyone they have reason to believe has acted antisocially, the refusal to abide is an offence.
These data acquisition and retention powers must be exercised narrowly as this may also
impair the free exercis e of the right of assembly, 102 but their increased use as a blanket power
has been of major concern recently. 103
A number of stop and search powers are used in relation to protests, including the Police and
Criminal Evidence Act 1984, 104 the CJPOA 1994 105 and the Terrorism Act 2000. 106 After the
ECtHR judgment of Gillan and Quinton v United Kingdom, where the ECtHR held that these
powers were neither sufficiently prescribed by law nor proportionate, 107 sections 44 -47
98 R. Stone , supra fn. 19 , p. 411. But they have been used in a wide range of cases for which they had not been
envisaged, hence, for the purpose of legal certainty, the Home Office contemplated to replace ASOBs by
criminal behaviour orders, crime prevention injunctions and community protection orders in 2011, Home
Office, More Effective Responses to Anti -Social Behaviour, 2011. 99 In connection with ss. 32, 34. It replaces Sections 30 -36 ASBA 2003 that give the police and community
support officers the power, within designated areas, to disperse any group of two or more people whose
behaviour they think is likely to cause harassment, alarm or distress to the members to the public. The
new Bill allows the police to dispe rse without prior notice, and on their discretion alone, it is available at,
https://www.publications.parliament.uk/pa/bills/lbill/2013 -2014/0066/14066.pdf (last a ccessed: 10 March
2014) . 100 Emphasis added by the author. Notably, protections are included in the statute, but these apply only to trade
union pickets or to notified political protest, see s. 34 (4) of the Bill. 101 See Netpol, Police set to get new dispersal powers , 23 July 2013, available at
http: //netpol.org/2013/07/23/police -set -to-get -new -dispersal -powers/ (last accessed: 10 March 2014) . 102 The retention of fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of
offences must be strictly limited by law, see S. a nd Marper v. United Kingdom (2008) in which the
blanket and indiscriminate nature of powers concerning the retention of such data led the ECtHR to find a
violation of Art. 8. The recording of such data and the systematic processing or permanent nature of t he
record kept may give rise to violations of privacy, Perry v. the United Kingdom (2003) at para. 38.
Transferring this to freedom of assembly, it can amount to a chilling effect, seriously infringing the free
exercise of this right, see also para. 161 of the OSCE guidelines for this issue, supra fn. 4. 103 See the Report of Netpol, supra fn. 33 , pp. 6 and 44; this was recognized by the HMIC in their 2010/2011
report, supra fn. 57 , Annex D, recommendations from Nurturing the British Model, 8 (a), available at
https://www.hmic.gov.uk/media/policing -public -order -20110208.pdf (last accessed: 10 March 2014) , who
recommended that the Home Office should clarify the scope and application of this power. 104 Section 1 provides that the police may stop and search people or vehicles where they have a reasonable
suspicion that they are carrying certain stolen or prohibited items. 105 Section 60 allows police to designate an area, in which officers are able to stop and search individuals without
requiring an officer’s “reasonable suspicion of wrongdoing” as is necessary for the PACE powers. This is
used to curtail protests pre -emptively, see S. Laville , Royal wedding: police consider pre -emptive arrests,
The Guardia n, 19 April 2011, available at https://www.theguardian.com/uk/2011/apr/19/royal -wedding –
police -arrests -crusades (last accessed: 10 March 2014) ; see also the Net pol report, at 13 -15; see point 5,
especially 5.2. -5.5 of the Home Affairs Committee, Report on Stop and Search Powers, SN/HA/3878, 21
May 2012, available at www.parliament.uk/briefing -papers/sn03878.pdf , on the recent practice . 106 Provides the police with the power to search people and vehicles in an area designated by a Chief Police
Officer for articles that could be used in connection with terrorism. Currently, the whole of Greater
Lond on is designated as such an area. 107 ECtHR, Gillan v. UK, Judgment of 12 January 2010, Appl. no. 4158/05, the Court held that the police powers
were not sufficiently circumscribed nor subject to adequate legal safeguards against abuse and were not in
accord ance with the law. This was in part due to the breadth of the powers (the exercise of which did not

20
Terrorism Act were repealed under a s. 10 HRA 1998 r emedial order and replaced with a
more targeted and proportionate power under s. 47A Terrorism Act by the Protection of
Freedoms Act in 2012 .108 Still, the extensive use of stop and search powers has been called to
be stopped with respect to peaceful protest ers. 109
Lastly, powers to prohibit uniforms may be used against specific political factions, but also,
under terrorism legislation, to proscribe the wearing of certain emblems. 110 Wearing a black
uniform or looking like an anarchist was found by the police to indicate the intent to carry out
criminal activities and sparked pre -emptive arrests. 111
It has been a recurring problem that the non -targeted powers have not received parliamentary
attention regarding their effect in curtailing protest, and that they largel y operate without
judicial supervision, thus suffering from procedural deficiencies and proportionality defects. 112
By -laws
Public authorities may enact byelaws which restrict the freedom of peaceful assembly on their
grounds. Belonging to the public sphere, they are subject to judicial scrutiny and may not
disproportionately interfere with the right under Art. 11. The Parliament Square Garden
Byelaws 2012 have been criticized for requiring a prior written permission for the
organization of and participation in an assembly within Parliament Square Garden. 113

require reasonable suspicion on the part of the police officer) and also the lack of adequate safeguards
against arbitrariness: ‘such a widely framed power could be misused against demonstrators and
protestors. The case was decided under Art. 8 ECHR, however, the Court held that there was a risk that
such a widely framed power could be misused against demonstrators. The listed deficiencies were also
criticize d by the OSCE in their guidelines, supra fn. 4, paras. 35, 89 -91 (with fn. 149 with further
references), 223. 108 Sections 59 -61 of the Protection of Freedoms Act now introduced s. 47A and 47AA (code of practice). An
authorization for the use of the new stop and search powers can only be given under section 47A, where
the person giving it, reasonably suspects an act of terrorism will take place and c onsiders the powers are
necessary to prevent such an act. An authorization can last for no longer and cover no greater an area than
is necessary to prevent such an act. This represents a significantly higher threshold for giving an
authorization than the “ expediency” test under section 44 of the 2000 Act. As a result, the numbers of
section 47A searches were expected to be greatly reduced from the number of section 44 searches prior to
the remedial order. The use of counter -terrorism powers to curb protest unrelated to terrorism was
extensively documented in the 2009 JCHR Report. Especially the newly adopted code of conduct
addresses the OSCE guidelines’ concern about the discretionary powers afforded to law en forcement
officials by the anti -terrorism legisl ation, supra fn. 4, paras. 90 -91. Despite this positive development, the
Special Rapporteur still underlines that these remaining wide powers should not be used against peaceful
protesters, supra fn. 11 , para. 44. 109 UN Special Rapporteur, supra fn. 29 , paras. 43 -44, para. 93. 110 A prohibition of uniforms, signifying association with any political organization or with the promotion of any
political object is enshrined in the Public Order Act 1936, s. 1 and s. 13 Terrorism Act 2000 forbids the
wearin g of any items of dress, or wearing, carrying or displaying any article in such a way or in such
circumstances as to arouse reasonable apprehension that the person is a member or supporter of a
proscribed organization is set. 111 Netpol report, supra fn. 33 , p. 12. 112 H. Fenwick , Marginalising human rights: breach of the peace, “kettling”, the Human Rights Act and public
protest, P. L. 2009, Oct, 737 -76 5, p. 759. 113 See section 5(1)(j); the Special Rapporteur rejects any authorization regimes in relation to demonstrations,
supra fn. 11 , para. 14. In R (Tabernacle) v Secretary of State for Defence , supra fn. 4, para. 43, the Court
of Appeal ruled in favour of attendees of a protest camp, upho lding their argument that the Ministry’s of
Defence recent byelaws, banning the camp, violated their freedom of assembly rights, as they were not
sufficiently justified; reference to inadequate bylaws was also made by the National Union of Journalists,
in the HRJC Report, supra fn. 5, para. 49.

21
Common law powers
Acting contra bonos mores is a common law power which was held to contradict the criterion
of “prescribed by law” by the ECtHR and has not been used ever since. 114

Breach of the peace is a doctrine which conveys several powers on the police for the purpose
of preserving public order. The leading precedent in this relation is R (Laporte) v. Chief
Constable of Gloucestershire .115 This case has put stricter limits on what was becoming a very
broa d discretionary power. 116 Still, the breach of peace power is wide and can be used to
complement or even circumvent the powers of the POA 1986. 117 Human rights concerns were
already raised in Austin v. Commissioner of Police for the Metropolis. 118 The case dealt with a
more recent contentious police tactic, i.e. “kettling”/constrainment. Concerning the legality of
the power, the European Court of Human Rights (ECtHR) found, that the breach of the peace
doctrine had been sufficiently clarified by the English court s over the decades 119 and it was
never found to be materially violating ECHR rights. 120 The Home Affairs Committee’s (HAC)
Report on the policing of the G20 protests found, however, that the powers of kettling should
be codified. 121 Due to the power’s imprecisio n also other voices have chimed in and urged for
codification which would outline a clear regulatory procedure with appropriate safeguards. 122
Moreover, the power has been criticized for the wide discretion it leaves to the police and its
disproportionate ap plication 123 which has also sparked the call for its abolition. 124
114 Hashman and Harrup v. UK (1999), where a condition was imposed on protesters not to behave contra bonos
mores, ie in a way which is wrong rather than right in the judgment of the majority of fellow citizens.
This was held to violate Art. 10. This issue was also raised as problematic under the head of legality by
the OSCE guidelines, supra fn. 4. 115 [2007] UKHL 55, [2007] a AC 105, the House of Lords considered the decision of the police to prevent a
coach load of peace protestors from travelling to a p rotest at RAF Fairford and forcibly return them to
London. The House of Lords concluded that the police’s action in preventing the protestors from
travelling to the demonstration and forcing them to leave the area was an interference by a public
authority with the exercise of the protestors’ rights under Arts. 10 and 11 which was not prescribed by
law, as the police did not believe that a breach of the peace was imminent. 116 Several elements of the power were established in this decision, the most important being that the breach of
peace has to be imminent; R. Stone , supra fn. 19 9, pp. 415 -419. In R (Moos and Anor) v The
Commissioner of the Police of the Metropolis , the High Court decided that the actions of police in
“kettling” climate change protestors during the G20 summit were unlawful due to the lacking imminence
of a threat to the peace, otherwise a blanket ban would be facilitated, [2011] EWHC 9 57 (Admin). 117 A case of misuse was that of N. P. and C in Steel and others v United Kingdom , 1998 28 EHRR 603. 118 Supra fn. 30 . The English courts held that the containment of a crowd of demonstrators for several hours was
covered by the common law power of preventing an imminent risk of breach of the peace and did not
contradict Convention law. 119 It was thus held to meet the “prescribed by law” tes t in the context of Arts. 5, 8 and 10 in Austin v. the United
Kingdom [GC], App. nos. 39692/09, 40713/09 and 41008/09, 15 March 2012 , but also before in McLeod
v United Kingdom (1998) 27 E.H.R.R. 493 ECtHR, (did however not arise in the matter of protest) , Steel
and Morris v. UK , Application No. 2438/94, 26 June 1996. 120 Breach of the peace is committed “only when an individual causes harm, or appears likely to cause harm to
persons or property, or acts in a manner the natural consequence of which would be to provoke violence
in others”, Laporte , supra fn. 4, p. [42]. 121 Home Affairs Committee, Policing of the G20 Protests, Conclusions and Recommendat ions, Eigth Report,
session 2008 -2009, available at
https://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/418/41802.htm , paras. 16 -22 (last
accessed : 10 March 2014) . 122 Already stated in the OSCE, Guidelines on Freedom of Peaceful Assembly (2007), available at
https://www.osce.org/odihr/24523 , para. 44 (last accessed: 10 March 2014) ; HRJC Report, supra fn. 5,
para76; H. Fenwick , supra fn. 112 , at 757, 758 argues that it would be preferable to rely on the scheme
under the POA ss.11 -14A; R. Stone , supra fn. 19, p. 422; R. Stone , Breach of the Peace: the Case for
Abolition, [2001] 2 W eb JCLI. 123 It has been argued that this power is unsuitable for deciding sensitive human rights issues, since it hands the
police an extraordinarily wide discretion, H. Fenwick , supra fn. 112 , p. 738; seen particularly criticial is

22
In Mengesha v Commissioner of Police of the Metropolis the power to impose conditions for
the release of persons who were lawfully detained, such as requiring the handing over of
personal details or the submission to being filmed for identification purposes, was held to be
unavailable. Statutory powers did no t apply, and although the common law sanctions
containment, the legal requirements are very narrow for the purpose of preserving legal
certainty and avoiding a chilling effect on the exercise of the right of Art. 11. 125
3. Implementing the constitutional gu arantee and freedom of assembly legislation
Several new challenges result from new forms of communication in the new and social media
age. New forms of protest, i.e. flashmobs or cyberprotest constitute a challenge for the police,
especially due to their spontaneity, the missing organizer and the unforeseeable number of
participants 126 and partially, due to the missing legal framework. Concerning cyberprotest, it
has been submitted that police forces shall use the existing powers in a proactive way. 127
Concern ing spontaneous incidents, the 2010 Manual of Guidance on Keeping the Peace,
adopted by the Association of Chief Police Officers of the UK (ACPO), contains specific
sections that give guidance on how to behave in such events. 128 Considering the media
coverag e, flashmobs constitute a regular form of protest in the UK. 129
The use of force and tasers were heatedly discussed after the death of Ian Tomlinson and the
violent arrest of Nicola Fisher during the G20 protests in 2009. 130 Yet, the reproach of heavy –
handed p rotest policing is still voiced. 131 Public confidence may be reduced considerably as

the lacking differentiation between peaceful and violent protestors, OSCE guidelines 2007, supra fn. 122 ,
para 125; also in the obiter dicta of Laporte , supra fn. 115 , the power was denounced by some judges a s
exceptional, if it is directed against people acting lawfully. In the Netpol report, supra fn. 33 , it is
contended, that, in practice, the power is used widely and not as a method of last resort, p. 25, including a
case study on pp. 25 -33. Here, perceptions differ, however, between the police, the courts and the public
and interest groups, see R (Castle and others) v Commissioner of Police for the Metropolis [2011] EWHC
2317, p. 29, where the court held that the police behaved lawfully when using kettling. 124 The UN Special Rapporteur relies on the method’s indiscriminate, disproportionate nature and the chilling
effect for the right to peaceful fre edom of assembly, supra fn. 29 , paras. 37 -38 and para. 93. 125 [2013] EWHC 1695 (Admin) (Lord Justice Moses); the Court did not accept that the information was handed
over voluntarily and that the request for identification was “part and parcel of the containment”, hence no
common law power was available. Neither did a statutory power apply (s. 64A of the Police and Criminal
Evidence Act 1984 and s. 60 of PACE 1984 were considered). The case has left open whether it will be
lawful if a police officer were to ask a member of the public for their personal details in cir cumstances
which might suggest an obligation to comply. 126 L. Kiltz , Flash Mobs: The Newest Threat to Local Governments, ICMA Publications, Cover Story, Vol. 93,
Number 11, 2011, available at
https://webapps.icma.org/pm/9311/public/cover.cfm?author=Linda%20Kiltz&title=Flash%20Mobs%3A%
20The%20Newest%20Threat%20to%20Local%20Governments&subtitle (last accessed: 10 March 2014) ;
Rail police criticise flashmobs, 26 February 2009, available at
https://news.bbc.co.uk/2/hi/uk_news/england/london/7913034.stm (last accessed: 10 M arch 2014) . 127 The HRJC suggested that existing powers be used proactively by the police, HRJC report, supra fn. 5, para.
109; this may only be valid until precise powers have been enacted to deal with the new phenomenon. 128 See ACPO Manual, available at
https://www.acpo.police.uk/documents/uniformed/2010/201010UNKTP01.pdf , e.g. pp. 62 -63 (last
accessed: 10 March 2014) . 129 See e.g. the website where flashmobs are frequently an nounced, available at
https://flashmob.co.uk/index.php/site/regional/category/britain/ (last accessed: 10 March 2014) . 130 Both the HRJC and the HAC came up with several recommen dations in their reports, including the guidance
that weapons shall not be used against peaceful protesters, and the enhancement of accountability by
quarterly reports to Parliament on the deployment and use of tasers, see the HAC report, supra fn. 121 ,
paras. 54 -65; 66 -75; recommendations paras. 23 -29 and the HRJC report, supra fn. 5, paras. 182 -192. 131 See e.g. for a recent incident, M. Taylor /K. Rawlinson /J. Harris , Police accused of using excessive force at
student protests, the Guardina, 5 December 2013, https://www.theguardian.com/uk –
news/2013/dec/05/police -clash -stude nt-london (last accessed: 10 March 2014) . This impression is also

23
police forces are often filmed and the material is uploaded. 132 The improvement of
communication with protesters will be crucial for improving this state of affairs. 133
The use of pre -emptive action was criticized as being excessive, including pre -emptive
arrests, 134 squat raids and an extensive use of warning letters, 135 and has been called to stop
with respect to peaceful protesters. 136
The use of mass arrests under breach of peace o r aggravated trespass powers is criticized. 137
Another way of restraining protest has been the use of excessive bail conditions. 138
On a positive note, the police have started to develop general standards of implementation,
general policing strategies and new forms of communication to educate the people about their
rights, including flashmobs. 139
4. Securing governmental accountability
Judicial review and the responsiveness of the democratic process
In recent cases the courts have taken a strong rights -based approach, 140 interpreting powers
narrowly and asking for interferences to be adequately justified. 141 On the other hand, there
have also been cases where the courts have been quite deferential to the risk assessment of the
police, leaving considerable discreti on to the police. 142 But these cases have become fewer and
the courts as well as the democratic process have reacted to ECtHR judgments 143 and have
been responsive to human rights concerns.
The Independent Police Complaints Commission and other types of revie w
The Independent Police Complaints Commission is in charge of investigating the most serious
complaints and allegations of misconduct by police officers in England and Wales where an

often enhanced by the disproportionate number of police officers present and their uniforms, see also
HRJC report supra fn. 5, para. 187; see also the UN Special Rapporteur, supra fn. 29 , paras. 39 -40. 132 This was also underlined by the HAC report, supra fn. 120 , para. 19; see also Netpol , Force not facilitation,
21 August 2013, available at https://netpol.org/2013/08/21/force -not -facilitation -at-fracking -protests/ (last
accessed: 10 March 2014) . 133 It has been underlined that police officers should be trained in forms of dialogic and peaceful communication,
HAC report, supra fn. 121 , recommendations para. 12; HRC report, supra fn. 5, para.181. 134 This concerned in particular preventive arrests in relation to the Royal Wedding 29 April 2011. The views
differ on this point, however, as in the following court decision, preventive arrests in order to prevent a
breach of th e peace were held to be lawful, Hicks and others v Commissioner of Police for the Metropolis
[2012] EWHC 1947. 135 Netpol Report, supra fn. 33 , pp. 7-12. 136 The UN Special Rapporteur considers them to be neither necessary nor proportionate, supra fn. 29 , paras. 41 –
42 and para. 93. 137 Netpol repo rt, supra fn. 33 , pp. 34 -41. 138 This has been urged to be stopped and to establish a protest ombudsman before whom protestors can
challenge bail conditions, Special rapporteur, supra fn. 11 , para. 93; see also Netpol, Bail conditions used
to restrict protest, 6 June 2013, available at https://netpol.org/2013/06/06/bail -conditions -used -to-restrict –
protest/, paras. 45 -46, 93 (last accessed: 10 March 2014) . 139 See the ACPO Manual of 20 10, supra fn. 128 ; HMIC Report, supra fn. 57 , Annex A, rec. 1, 2, 5 -7, 11; for the
police flashmob, see the campaign “Keep calm and know your rights,”
https://www.hampshire.police.u k/internet/news -and -appeals/campaigns/keep -calm -and -know -your -rights . 140 This is notable, as they operate in a public order oriented legal framework. 141 See Mengesha v. MPC, supra fn. 125 ; R (Moos and Anor) v. The Commissioner of the Police of the
Metropolis , supra fn. 116 ; Catt v. ACPO& MPC , supra fn. 63 ; Wood v. MPC , supra fn. 63 . 142 See Abdul v. DPP , supra fn. 71 (construing “legitimate p rotest” narrowly); R (Castle and others) v. MPC ,
supra fn. 123 ; Austin v. MPC , supra fn. 30 (confirmed by the ECtHR); and Gillan v. MPC [2006] UKHL
12 (reversed by the ECtHR). 143 See e.g. Gillan v. UK and the amendment of s. 44 Terrorism Act, supra fn. 107 and 108 and it remains to be
seen whether parliament or the cou rts will take a stricter approach on “kittling” in the near future which
might enforce a higher threshold than that prescribed by the ECtHR in Austin v. UK .

24
individual can file a complaint after having unsuccessfully rendered it to the police. 144 Civil
society unfortunately appears not to see the Commission as being independent, however,
particularly due to the fact that it does not report to the Parliament, but to the Home
Secretary. 145
In reaction to reproaches of unaccountable poli ce who use onerous and overbroad powers in
an often disproportionate way, ACPO has started a White Paper Process, Policing in the 21 st
century. 146 This led to the enactment of the Police and Social Responsibility Act 2011, one of
the farthest reaching police reforms, instituting a mechanism of democratic accountability by
replacing public authorities with an elected ‘Police and Crime Commissioner’. 147
Going even further, the HRJC recommended that the Government develop a quick and cost
free system for resolvin g complaints and disputes in advance of protests taking place which
has not yet been effected. 148
Finally, judicial review is the most important legal mechanism of police accountability. 149
Since March 2008, police authorities in England and Wales have been r equired to monitor
police compliance with the HRA 1998, however. Additionally, the police have developed the
laudable practice to invite non -governmental organizations, to monitor protests, and the
policing around them. 150
Moreover, the importance of persona l accountability of police personnel has been pointed
out. 151 Crucial for holding police officers to account is the possibility to identify them by their
identification numbers, 152 officers’ non -identification at the G20 protests consequently spurred
intensive criticism. 153 But the police appear to have made progress in this respect. 154
144 From April to September 2012, the IPCC upheld 44% of appeals made before it at the national level . IPCC,
Police complaints statistics for police forces and the PCC, available at
https://www.ipcc.gov.uk/en/Pages/police_complaints_stats.aspx (last accessed: 10 March 2014) . The
Commission also issues recommendations to the police about the policing of protest and public order
incidents as a result of its investigations. However, the police are not required to respond to the IPCCs
recommendations. 145 The UN Special Rapporteur regret s this, supra fn. 29 , para.55. He recommends to allow the Commission to
report before the Parliament, and increasing its resources; protestors sho uld be able to bring complaints
directly to the Commission; and a greater mixed nature of investigators should be achieved, para. 93. 146 Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/175441/policing –
21st -full -pdf.pdf (last accessed: 10 March 2014) . 147 This is meant to serve the people’s needs more directly, particularly by way of enhanced democratic as
opposed to bureaucratic accountability; see the HMIC report, supra fn. 57 , Annex B, recommendations 2,
11. For the background of the Act, see the report of Liberty, points 10 -11, available at https://www.liberty –
human -rights.org.uk/pdfs/policy10/policing -in-the -21stc -reconnecting -the -people -and -the -police -sept –
2010.pdf. (last accessed: 10 March 2014) Especially ss. 11 -14 enhance in formation transparency and thus
allow for more accountability 148 See HRJC report, supra fn. 5, para. 157. 149 In administrative proceedings the claim ant may only apply for judicial review after having followed the pre –
action protocol which prescribes the sending of a letter to the defendant, giving the latter the opportunity
to reply to the allegations which may lead to an agreement of the parties befo re the court proceedings take
place, see s. 2 of the Administrative Court Guidance, available at
https://www.justice.gov.uk/downloads/courts/adm inistrative -court/applying -for -judicial -review.pdf (last
accessed: 10 March 2014) and the pre -action protocol, available at
https://www.justice.gov.uk/courts/procedure -rules/civil/protocol/prot_jrv (last accessed: 10 March 2014) ,
given effect by the Practice Direction Protocols annexed to the Civil Procedure Rules 1998. For a claim to
be admissible, leave must be given by the High Court. 150 Report of the UN Special Rappor teur on freedom of peaceful assembly in the UK, A/HRC/23/39/Add.1, 29
May 2013, para. 52, although evidence has also been provided that this is not always effected as such,
para. 53. 151 UN Special Rapporteur, supra fn. 150 , para. 93. He believes in the courts and a democratic oversight body. 152 This has also been emphasized by the Special Rapporteur, supra fn. 11 , para. 93. 153 See HAC report, supra fn. 121 , paras. 17 -23. 154 Th e HMIC report highlights that numerals are worn by police officers, otherwise they would incur liability,
supra fn. 57 , Annex A, recommendation 12 .

25
Regarding accountability, the improvement of the police’s communication strategies with the
media 155 is an important topic. 156 According to the HMIC report, the police have made
progress in entering into a dialogic relationship with the media. 157
5. Conclusions and outlook
The law on public protest has continuously been developed in a human rights friendly
fas hion. The general trend appears positive, particularly when analysing the structure and
ductus of court decisions as well as the close scrutiny of the democratic process, the public,
international and non -governmental organizations that have held the polic e to account and
have triggered change. 158 In many respects, the UK system has shown to be responsive in an
exemplary fashion. Yet, some problems remain, particularly concerning the legality of certain
powers, their proportionality as well as a legal framewo rk, the focus of which is more on
ensuring public order, thus providing many broad and discretionary powers, rather than on
protecting freedom of assembly. 159 This approach also seems to determine the police’s
practice, which has led to disproportionate resp onses to protest 160 and the courts have been
willing to be deferential to the police’s risk assessment. Thus, a changing attitude towards
policing public protest in a facilitating way is important. Moreover, having regard to the
powers being very scattered, it could be sensible to codify a law on freedom of peaceful
assembly which would go through the democratic process, rendering the law more
comprehensive and cohesive and enabling all stakeholders to participate. 161 Last but not least,
procedural safeguards a nd forms of legal redress need review, especially with regard to the
non -targeted powers, accountability mechanisms should continue to be strengthened and the
potential threat of the privatization of public space needs to be contained.

155 The NUJ raised the problem that journalists were often prevented by the police to cover protests, see HRC
report, supra fn. 5, para. 193. 156 It has been highlighted that police forces should ensure that their officers follow the media guidelines which
have been agreed between the ACPO and NUJ and hold those, not following these guidelines, to account,
see HRJC report, supra fn. 5, para. 200, or have a designated media contact point, HAC report, supra fn.
121 , recommendations para. 2. 157 See Annex A, recommendations 2, 3, 7, 9 with reference to the ACPO Manual, supra fn. 128 . 158 See the parliamentary report, the HRJC report supra fn. 5 and the HAC report supra fn. 121 . 159 See also UN Special Rapporteur, supra fn. 150 , para. 17. 160 This is also underlined by K. Bullock /P. Johnson , The Impact of the Human Rights Act 1998 on Policing in
England and Wales, Br J Criminol (2011) 52(3); but in the report of HMIC, Adapting to protest, supra fn.
62 , p. 7, it is submitted that the police as a service has adopted the presumption in favour of facilitating
peaceful protest as a starting point for policing protest. 161 This was also recommend ed by the UN Special Rapporteur, supra fn. 150 , para. 93.

26
France
by Melina Garcin

In 2012, 3.382 protest demonstrations took place in Paris, and 883 in the first quarter of 2013.
In 2012, 12 demonstrations were prohibited, either because of the planned itinerary, or
because of threats to public order. 4 were prohibited in the fi rst quarter of 2013. 162
1. Legal bases
In Europe, the guarantee of freedom of assembly is a result of the French Revolution. This
fundamental right later on spread to other constitutions, especially on the basis of the Belgian
Constitution from 1831. In Fra nce, freedom of assembly first appeared in a draft that
Mirabeau presented to the National Assembly on 17 August 1789, but the Constituent
Assembly did not endorse it in the Declaration of the Rights of Man and of the Citizen of 26
August 1789 (DRMC). A ri ght to assemble nonetheless was granted in the Decree of 14
December 1789 on the constitution of the municipalities. 163 The Constituent Assembly
proclaimed freedom of assembly and association in a 1790 law, before enshrining it in the
1791 Constitution, and again in the 1848 Constitution. Freedom of assembly then disappeared
from the constitutional provisions, probably resulting from an amalgam between assembly
and association. 164
The 1958 Constitution does not include any provision on freedom of assembly. The Preamble
quotes the Preamble of the 1946 Constitution, which has constitutional value. It recognizes
“the rights and freedoms of Man and the citizen enshrined in the DRMC and the fundamental
principles acknowledged in the laws of the Republic”. 165 Freedom of assembly is not
guaranteed as such in the Declaration, but the “free communication of ideas and opinions is
recognized as being one of the most precious of the rights of Man; every citizen may,
accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of
this freedom as shall be defined by law”. 166
According to the wording, freedom of expression is recognized to “citizens”. However, the
French legal doctrine (which is not a direct source of law but which influences the legi slator
and the courts) assumes that Art. 11’s freedom of expression is a human right applicable to
all, and therefore freedom of assembly (as lex specialis to freedom of expression) is as well 167.
French law differentiates between public meetings, provided by an 1881 Act on freedom of
assembly 168 (“liberté de réunion”) and a 1907 Act on public meetings 169 (“réunions
publiques”); and demonstrations (“manifestations”), enshrined in different texts. While
freedom of assembly and freedom to demonstrate are similarly recognized by French law,
their legal regime differs, due to the fact that the use of public roads is more likely to disturb
public order and to infringe freedoms (freedom of movement, freedom of work, etc.) than the
use of public or private facilities. T he 1881 Act provides that public meetings are free 170 and
the 1907 Act states that public meetings, regardless of the object, can be held without prior
notification. 171 Electoral meetings are included in the protection. 172 All marches, rallies, and,
162 Communication Service of the Pre fecture of police (2013) Le 1er mai et ses traditionnelles manifestations!
Paris: Le Panorama hebdomadaire de la préfecture de police n° 265, 24 April. 163 RIPKE, S. (2012) Europäische Versammlungsfreiheit . Tübingen: Mohr Siebeck. 164 COLLIARD, C.A. (2005) Libertés publiques. 8th ed. Paris: Dalloz, p. 495. 165 Constitution of 1946, Preamble, para. 1. 166 DRMC, Art. 11. 167 WÖLKER, U. (1987) Zu Freiheit und Grenzen der politischen Betätigung von Ausländern . Berlin: Springer,
p. 58. 168 Act of 30 June 1881 on freedom of assembly. 169 Act of 28 March 1907 on pu blic meetings, in its consolidated version of 16 May 2009. 170 Act of 30 June 1881 on freedom of assembly, Art. 1, supra fn. 168 . 171 Act of 28 March 1907 on public meetings, Art. 1, supra fn. 169 .

27
generally sp eaking, all demonstrations on public roads are subject to prior notification. 173
Static meetings could take place on public squares but not on public roads.
2. Scope of the guarantee
Case -law
Freedom of assembly refers to “public meetings” in France. The French highest judicial Court
(Cour de Cassation) stated that a public meeting, within the meaning of the 1881 Act, implied
the intentional gathering of people in a public or private place accessible to the public. 174 The
delimitation with a private meeting does not result from the location – which can be public or
private, but depends on the access to the meeting. To be considered a private meeting, the
participants should have been invited personally, 175 as opposed to public meetings or
demonstrations without any participatory restrictions. 176 The distinction is sometimes difficult
to make and in some cases, the highest administrative jurisdiction (Conseil d’Etat) extended
the definition to private meetings which could actually constitute or degenerate in public
ones. 177 A public meeting is organized or concerted; it is not a chance encounter between
individuals. This criterion distinguishes a meeting from a crowd. 178 A meeting is a temporary
gathering, as opposed to an association or a company, which have a long -ter m or a continuous
nature. 179 Its purpose can lie in the exchange of views and ideas, as well as in the defence of
an interest. 180 The subject of the debate can be political, religious, moral, artistic, or
economical. 181 To be encompassed in the definition, publi c entertainment events should have
the aim of disseminating an intellectual message to be discussed or to be defended. 182 The
distinction between a public meeting and a demonstration lies in the fact that a demonstration
takes place on public roads, whereas public meetings cannot be held on public roads 183 and
take place in private or public facilities accessible to the public . Freedom of demonstration is
enshrined in French legislation together with freedom of assembly; the Penal Code penalizes
any “breach […] of the enjoyment of freedom of […] assembly or of demonstration”. 184 This
distinction in France between public meetings (as the equivalent to the English word
“assembly”) and demonstrations differs from the European Court of Human Rights’
interpretation (ECtHR). According to the ECtHR, the freedom to demonstrate is included
within the right to freedom of peaceful assembly, 185 which encompasses indoor meetings and
172 Act of 30 June 1881 on freedom of assembly, Art. 5, supra fn. 168 . 173 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gathe rings , Sect. 1 – Demonstrations on
public roads , Art. L.211 -1. 174 Cass. crim., 14 March 1903, Du Halgouët , Rec. Dalloz 1903 I, p. 168. 175 Cass. Crim., 9 January 1869, Larcy , S. 1869.281. 176 COLLIARD, supra fn. 164 , p. 498. 177 CE, 23 December 1936, Bucard , Rec. p. 1151. 178 Cass. crim., 13 December 1923, Castex , DP 1924.I.121. 179 CE, 6 August 1915 , Delmotte et Senmartin , Rec. 275. 180 Conclusions of the Gov ernment Commissioner MICHEL in CE, 19 May 1933, Benjamin , Rec. Lebon, p. 541;
Cass. crim., 14 March 1903, Du Halgouët , Rec. Dalloz 1903 I, p. 168. 181 Cf. COLLIARD, supra fn. 164 , p. 493; DUFFAR, J. (1996) L es libertés collectives . Paris: Montchrestien, p.
20. 182 MENANTEAU, M. (1937) Les nouveaux aspects de la liberté de réunion . Paris: Librairie technique et
économique, p. 119. 183 Act of 30 June 1881 on freedom of assembly, Art. 6, supra fn. 168 . 184 Penal Code in its Consolidated version of 13 October 2013, Vol. IV – Offences against the Nation, the State
and public peace , Title III – Offences against the authority of the State , Chap. I – Breaches of public
peace , Sect. 1 – Impediments to freedoms of expression, of labour, of association, of assembly or of
demonstration , Art. 431 -1. 185 ECtHR, Barraco v France (2009) App. No. 31684/05, para. 39.

28
those taking place on public roads, and can be exercised by individuals and organizers. 186 Any
demonstration on public roads can cause some disruption and the ECtHR considers that a
certain tolerance is required from th e authorities in such circumstances. 187
Flash mobs
There is no legal provision on flash mobs in France, nor any case -law on the matter. It is
therefore not clear whether flash mobs on public roads would follow the same procedure
requirements as indoor flash mobs (a lot of them take place in malls, airports, etc.). While
most of the flash mobs taking place in France are staged as entertainment (and might
therefore neither be included in the definition of a public meeting, nor of a demonstration),
they are some times used to raise awareness about important issues. 188 Flash mobs are
generally formed through the Internet 189 and social media web sites, such as Facebook 190 and
Twitter. 191
3. Restrictions
Freedom of assembly and freedom of demonstration are linked to freedom of expression, 192 as
their purpose is to express a common claim, belief, thought, or protest. 193 According to Article
11 of the DRMC, legal restrictions are admissible.
Place and time restrictions
Restrictions to freedom of assembly are enshrined in Article 6 of the 1881 Act, pursuant to
which meetings cannot be held on public roads and cannot be extended beyond 11 pm.
However, in the localities where public premises close later, meetings can be extended until
that closing time. Although it is not provided by law, demonstrations have been prohibited
because of their planned itinerary. 194
Manner restrictions
Only electors of the district, members of the chambers, candidates, and their agents are
allowed to attend electoral meetings. 195 The Constitutional Council a ffirmed that a
“neighbourhood -visit” by a candidate for election constituted an electoral meeting held on
public roads and therefore was prohibited by the 1881 Act. 196 Preventive measures, and even
prohibitions, are admissible in cases of serious threats to public order. 197 Holding a
186 supra fn. 185 , para. 41. 187 supra fn. 18 5, para. 43. 188 AllOut, Inter -LGBT, Act -Up Paris (2012) Mardi 28 février – Flashmobs contre les lois homophobes à Saint –
Pétersbourg . 27 février, Act -Up Paris. Available at: https://www.actupparis.org/spip.php?article4773 . 189 Website on flash mobs in France: https://flashmob.info/fr/ (last accessed: 10 March 2014) . 190 Facebook group on flash mobs in France: https://www.facebook.com/flashmobs (last accessed: 10 March
2014) . 191 Twitter page on flash mobs in: https://twitter.com/flashmob_fr . 192 COLLIARD, supra fn. 164 , p. 499. 193 RIPKE, S. (2012) Europäische Versammlungsfreiheit . Tübingen: Mohr Siebeck, pp. 344 -345. 194 Communication Service of the Prefecture of police (2013) Le 1er mai et ses traditionnelles manifestations!
Paris: Le Panorama hebdomadaire de la pr éfecture de police n° 265, 24 April. 195 Act of 30 June 1881 on freedom of assembly, Art. 5, supra fn. 168 . 196 Cons. Const., 58 -22 AN, 12 December 1958, OJ 16 December 1958, p. 11329; Cons. Const., 78 -845 AN, 12
July 1978, OJ 17 July 1978, p. 2840. 197 Cf. CE, 19 May 1933, Benjamin , Rec. Lebon, p. 541; CE, 5 February 1937, Bujadoux ; CE, Sect. 23 January
1953, Naud ; CE, 19 June 1953, Houphouët -Boigny ; CE, 29 December 1997, Maugendre ; Code of
Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention of
disturbances of public order during demonstrations and gatherings , Sect. 1 – Demonstrations on public
roads , A rt. L.211 -4.

29
demonstration that was prohibited previously is punishable. 198 In its Benjamin decision, the
Conseil d’Etat (CE) paved the way to the approach used to apply freedom of assembly by
exercising a strict scrutiny of the restrictions resu lting from police measures, notably to
maintain public order. 199 Freedom is the rule, restriction the exception. 200 The CE takes into
consideration the circumstances of the case, the balance of powers, and the political
environment at the time of the decision when conducting the proportionality check. 201
Referring to Art. 11 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), the CE recalled that lawful restrictions could be imposed by
members of the armed forces, police , or the State administration. The CE found that a
measure re -establishing border control between France and Spain to avoid renewed violence
during a demonstration was necessary and proportionate, considering the threats to public
order. 202 Carrying a weapon during a demonstration or a public assembly is prohibited. 203 In
circumstances where there are reasons to fear serious public order disturbances, carrying
objects that could be used as weapons is prohibited in the area where the demonstration is
taking plac e.204 The participation in a “crowd” (“attroupement”), which is a gathering of
persons on public roads or in a public place likely to disrupt public order, constitutes a
misdemeanour and the crowd can therefore be dispersed by law enforcement authorities. 205
Once legal warnings have been made to the demonstrators, it is an offense to continue
participating in that crowd. 206 The penalties increase if the perpetrators continue engaging
deliberately in the crowd after the authorities’ warning, if they conceal their face, or if they
are armed. 207
Sight and sound restrictions
On the prohibition of a public meeting held by the Front National, the CE stated that this
meeting was not likely to threaten public order in a manner that could not be controlled by
appropriate po lice measures. 208 It applied the same argument to sectarian groups. 209 While
detainees are not deprived of the right to exercise their fundamental freedoms on the sole
basis that they are detained, the exercise of those freedoms is subordinated to the constrai nts
inherent to their detention; therefore, they cannot invoke freedom of assembly provisions. 210
198 Penal Code, Vol. IV – Offences against the Nation, the State and public peace , Title III – Offences against
the authority of the State , Chap. I – Breaches of public peace , Sect. 3 – Unlawful demonstrations and
criminal involvement in a demonstration or a public assembly , Art. 431 -9. 199 CE, 19 May 1933, Benjamin , Rec. Lebon, p. 541. 200 CE, 5 February 1937, Bujadoux ; CE, Sect. 23 January 1953, Naud ; CE, 29 July 1953, Damzière et autres . 201 CE, 19 June 1953, Houphouët -Boigny ; CE, 23 July 1993 , M. Saldou , n° 107126; CE, 3 July 2009, n° 329315. 202 Cf. CE, 30 July 2003, n° 237649; ECtHR, Gurekin a.o. v France (2006) App. No 9266/04. 203 Penal Code, Vol. IV – Offences against the Nation, the State and public peace , Title III – Offences against
the a uthority of the State , Chap. I – Breaches of public peace , Sect. 3 – Unlawful demonstrations and
criminal involvement in a demonstration or a public assembly , Art. 431 -10. 204 Code of Homeland Security, Vol. II – Public order and security , Title I – Public o rder , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 1 – Demonstrations on
public roads , Art. L.211 -3. 205 Penal Code, Vol. IV – Offences against the Nation, the State and public peace , Title III – Offences a gainst
the authority of the State , Chap. I – Breaches of public peace , Sect. 2 – Criminal involvement in a crowd ,
Art. 431 -3. 206 Penal Code, Regulatory Part, Vol. IV – Offences against the Nation, the State and public peace , Title III –
Offences against th e authority of the State , Chap. I – Breaches of public peace , Sect. 2 – Criminal
involvement in a crowd , Art. R.431 -1. 207 Penal Code, Vol. IV – Offences against the Nation, the State and public peace , Title III – Offences against
the authority of the State , Chap. I – Breaches of public peace , Sect. 2 – Criminal involvement in a crowd ,
Art. 431 -4 and 431 -5. 208 CE, 29 December 1997, Maugendre , Rec. p. 826; CE, 29 December 1995, n° 129759. 209 CE, 30 March 2007, n° 304053. 210 CE, 27 May 2005, Section française d e l’Observatoire international des prisons , n° 280866.

30
The CE confirmed, in two 2013 decisions, the legality of a presidential Decree ordering the
dissolution of associations that spread an ideology inciting hatred and discrimination through
gatherings, demonstrations, meetings, and forums, among others. 211 On 9 January 2014, the
CE confirmed a prefectural order which prohibited the holding of a performance of the French
comedian Dieudonné M’Bala M’Bala, containing ant i-Semitic remarks. Freedom of
expression and freedom of assembly were invoked in that case, and were put into balance
with the reality and the seriousness of the risks of public order disturbances and the serious
risk of offense to the dignity of the human person, enshrined in the DRMC. 212 From a legal
point of view, it seems doubtful to quote freedom of assembly next to freedom of expression
in this case, as only public meetings are regulated by French legislation, whereas a
performance by a comedian , only opened to persons in possession of a ticket, should be seen
as a private meeting. 213 As the CE does not refer expressively to the 1881 Act though, it
probably intended to refer to the guarantee of freedom of assembly derived from the freedom
of expression, a s encompassed in Art. 11 of the DRMC, without taking into consideration the
exact definition of the freedom of assembly in France. In any event, it will be interesting to
find out what the ECtHR will decide on that case if seized. For the ECtHR, the term
“restrictions” within the meaning of Art. 11 -2 ECHR must be interpreted as including the
measures – such as punitive measures – taken following a meeting. 214 A restriction within the
meaning of Art. 11 -2 ECHR cannot find its legitimate aim in the peaceful dem onstration
against a legislation which has been contravened by the protestor. 215
4. Procedural issues
Notification/authorization
The 1881 Act provides that public meetings can take place without prior authorization under
the conditions provided by law. 216 As f or the 1907 Act, public meetings, regardless of the
subject, can be held without prior notification. 217 However, all marches, rallies, and gatherings
of persons, and, generally speaking, all demonstrations on public roads, are subject to prior
notification. 218 The organizer of a demonstration must notify the prefect (or the Préfet de
Police in Paris) of the reason, date, time, location, and itinerary of the demonstration 15 to 3
days beforehand. 219 Demonstrations following local customs are exempted from the
requ irement. 220 Organizing a demonstration on public roads without prior notification, or
introducing an incomplete or erroneous notification, both constitute punishable acts. 221
211 CE, 25 October 2013, n° 372319 and n° 372321. 212 CE, Order of 9 January 2014, n° 374508. 213 LETTERON, R. (2013) Dieudonné: la censure, dernière tentation de Manuel Valls . 29 December, Liberté,
Libert és chéries, Veille juridique sur les droits de l’homme et les libertés publiques. Available at:
https://libertescheries.blogspot.fr/2013/12/dieudonne -la-censure -derniere -tentation.html (last accessed: 10
March 2014) . 214 ECtHR, Ezelin v France (1992) 14 EHRR 362, para 39. 215 ECtHR , Cisse v France (2002) App. No 51346/99, para 50. 216 Act of 30 June 1881 on freedom of assembly, Art. 1, supra fn. 168 . 217 Act of 28 March 1907 on public meetings, in its consolidated version of 16 May 2009, Art. 1. 218 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 1 – Demonstrations on
public roads , Art. L.211 -1. 219 Ibid , Art. L.211 -2. 220 Ibid , Art. L.211 -1. 221 Penal Code, Vol. IV – Offences against the Nation, the State and public peace , Title III – Offences against
the authority of the State , Chap. I – Breaches of public peace , Sect. 3 – Unlawful demonstrations and
criminal involvement in a demonstration or a public assembly , Art. 431 -9; Code of Homeland Security,
Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention of disturbances of public
order during demonstrations and gatherings , Sect. 5 – Penal provisions, Art. L. 211 -12.

31
However, the ECtHR stated that a demonstration could take place without prior notific ation if
the authorities were aware of the demonstration and did not stop it. 222 ECtHR judgments can
lead to the re -examination of the case by the French judge. They also often influence the
evolution of national law.
Decision -making
If the authority vested with police powers considers that the projected demonstration is likely
to disturb public order, it can prohibit it, notifying that to the signatories of the notification.
The mayor transfers the notification to the prefect and, if applicable, attaches th e copy of the
prohibition order. If the mayor abstained from taking a prohibition order, the prefect has the
power to do so. 223 The prefect (or the Préfet de Police in Paris) is responsible for the
prohibition of carrying objects which could be used as weapo ns during demonstrations. 224 The
prefect, the mayor, or police officers are responsible for the legal warnings prior to the
dispersal of a crowd. 225
5. Specific forms of assemblies
Spontaneous assemblies
French legislation does not envisage spontaneous assem blies. Precautionary measures for the
maintenance of public order are put in place in case of large -scale gatherings that could
possibly deteriorate. In 2012, 719 out of the 3382 demonstrations (21.26%) and 179 out of the
883 in the first quarter of 2013 ( 20.27%) were spontaneous demonstrations. In February 2013,
opponents to same -sex marriage decided not to give prior notification and to assemble
spontaneously in Paris before the police arrived to disperse them. 226 A spontaneous
demonstration took place agai nst a neo -Nazi gathering. The police remained on alert to avoid
any misconduct, although the location was unknown. 227 Even police officers have
demonstrated spontaneously without prior notification. 228 They are allowed, but are disbanded
if they cause disturba nces to public order.
Assemblies gathered by means of new technologies
Information on the previously -quoted spontaneous demonstrations spread rapidly on social
media 229 or through text messages or emails. 230 Many public meetings, demonstrations, or
222 EC tHR, Barraco v France (2009) App. No. 31684/05, para. 45. 223 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 1 – Demonst rations on
public roads , Art. L.211 -4. 224 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 1 – Demonstrations on
public r oads , Art. L.211 -3. 225 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 3 – Crowds , Art. L.211 -9. 226 QUEGUINER, C. (2013) Manifestation spontanée anti -mariage pour tous dimanche: “Maintenant, nous
n’allons plus demander l’autorisation”. 10 February, France Info. Available at:
https://www.franceinfo.fr/politique/manifestation -spontanee -anti -mariage -pour -tous -dimanche –
maintenant -nous -n-a-888265 -2013 -02 -10 (last accessed: 10 March 2014) . 227 BADINIER, E. (2013) Manifestation spontanée contr e le rassemblement néo -nazi . 17 May, France Bleu
Roussillon. Available at: https://www.francebleu.fr/societe/neo -nazis/manifestation -spontanee -contre -le-
rassemblement -neo -nazi -571206 (last accessed: 10 March 2014) . 228 MOREAU, V. (2012) Malaise dans la police française: entre manifestations encadrées et actions
“spontanées”. 17 May, RFI. Available at: https://www.rfi.fr/france/20120511 -malaise -police -entre –
manifestations -encadrees -actions -spontanees (last accessed: 10 March 2014) . 229 BADINIER, E. (2013), supra fn. 227

32
other typ es of events are now organized or advertised through social networks. 231 The
“Dieudonné” case shows that public order disturbances are nowadays strongly influenced by
the mobilization of different actors through social media. Information on the actual conten t of
Dieudonné’s words was indeed spread on social media, before being used by the Conseil
d’Etat to decide on the case.
Assemblies taking place on public property
Public meetings can be held in public facilities. Demonstrations on public roads can genera lly
take place if they are notified in advance.
Counter -demonstrations
Counter -demonstrations are not regulated by French law. Public authorities sometimes use the
possible occurrence of counter -demonstrations as a justification to the prohibition of
meet ings. The Conseil d’Etat held that by refusing to make a room available for meetings of
the “collectif Palestine ENS”, the director of the “Ecole Normale Supérieure” did not impair
students’ freedom of assembly, as it had been balanced with the prevention of disturbances of
public order and took especially into account possible counter -demonstrations. 232
6. Implementing freedom of assembly legislation
Pre -event planning
Every meeting shall have a board (“un bureau”) of at least three people responsible for
maintaining order, preventing any breach of the law, prohibiting any speech that is contrary to
public order or morals or containing any incitement to commit an act constituting a serious
crime or other major offence. 233 In Paris, the direction of public ord er and traffic regulation
(“direction de l’ordre public et de la circulation”), which is part of the Prefecture of Police,
can contact the organizer of a demonstration to discuss certain points, as the itinerary, the
evaluation of potential risks, etc.
Co sts
The State pays for the costs falling under the obligations of public authorities to maintain
public order.
Use of force
The use of force is appropriate only if absolutely necessary to the maintenance of public
order. The deployed force shall be propo rtionate to the disturbance. 234 Weapons can be used
by authorities only under strict conditions. 235 Law enforcement authorities responsible for the
dispersal of a crowd can directly make use of force if they are victims of violence or if they
cannot secure the location they are occupying in another manner. 236 Military means can be
230 MOREAU, V. (2012) Malaise dans la police française: entre manifestations encadrées et actions
“spontanées”. 17 May, RFI. Available at: https://www.rfi.fr/france/20120511 -malaise -police -entre –
manifestations -encadrees -actions -spontanees (last accessed: 10 March 2014) . 231 I.e. a de monstration organized by Belgians supporting same -sex marriage and the LGBT community in
France: https://www.facebook.com/events/338081072957774/ (last accessed: 10 March 2014) . 232 CE, 7 Marc h 2011, n° 347171. 233 Act of 30 June 1881 on freedom of assembly, Art. 8, supra fn. 168 . 234 Penal Code, Regulatory Part, Vol. IV – Offences against the Nation, the State and public peace , Title III –
Offences against the authority of the State , Chap. I – Breaches of public peace , Sect. 2 – Criminal
involvement in a crowd , Art. R.431 -3. 235 Ibid. 236 Code of Homeland Security, Vol. II – Public order and s ecurity , Title I – Public order , Chap. I – Prevention
of disturbances of public order during demonstrations and gatherings , Sect. 3 – Crowds , Art. L.211 -9.

33
used in case of threats or serious public order disturbances. 237 The Parliamentary Assembly of
the Council of Europe (PACE) has deplored “recent cases of excessive use of force to
dispers e demonstrators” 238, referring to demonstrations against same -sex marriage staged in
Paris in 2013, which resulted in the intervention of law enforcement forces who used tear gas
on demonstrators. Four persons were injured and several hundred were arrested. But violence
also rose from the demonstrators’ side (throwing of glass bottles at policemen, insults towards
journalists and policemen, direct attacks against policemen). 239
Liability of organizers
Members of the board of a public meeting are accountable f or infringements to the
prescriptions set in Articles 6 and 8 of the 1881 Act. 240
7. Securing governmental accountability
Review and appeal
Administrative orders can be challenged before the administrative tribunals. Appeals are
made before the administrat ive courts of appeal, and the Conseil d’Etat, as the highest
administrative jurisdiction, is the final judge on acts taken by local authorities. If a
demonstration is prohibited, the administrative judge has to make sure that there is a risk of
disturbance to public order and that no other measure to maintain order is sufficient or
adapted to guarantee the security of persons and goods. Civil cases are brought before the
judicial courts of first instance, which may be appealed before a court of appeal and f inally go
before the Cour de Cassation, which decides whether the rules of law have been correctly
applied by the lower courts. The Constitutional Council is seized when there is a doubt on
whether a legislative provision violates the rights and freedoms g uaranteed under the
Constitution, including the freedoms enshrined in the Preamble of the 1946 Constitution and
in the DRMC.
Liability and accountability of law enforcement personnel
The State bears civil liability for damages and harm caused by armed or non -armed crowds or
gatherings to people or goods. The State can file a recourse action against the municipality
when the latter bears responsibility. 241
Monitoring
In France, the Office for Democratic Institutions and Human Rights’ observation teams could
not be deployed to monitor the particular assemblies that had been selected for observation.
This was the result of decisions by the respective authorities not to facilitate and to assist the
deployment of ODIHR monitoring teams during such events. 242
237 Ibid , Art. R.431 -5. 238 PACE Resolution 1947 (2013) Popular protest and challenges to freedom of assembly, media and speech . 27
June (25 th Sitting). Available at: https://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=20002 (last
accessed: 10 March 2014) . 239 Editorial Board ( 2013) Manifestation anti -mariage gay: violents heurts après la dispersion des cortèges . 27
May, France 24. Available at: https://www.france24.com/fr/20130526 -heurts -eclatent -apres -dispersion –
manifestation -anti -mariage -gay -police -crs -frigide -bardot -homo -/ (last accessed: 10 March 2014) . 240 Act of 30 June 1881 on freedom of assembly, Art. 8, supra fn. 168 . 241 Code of Homeland Security, Vol. II – Public order and security , Title I – Public order , Chap. I – Prevention
of disturbances of public order during dem onstrations and gatherings , Sect. 3 – Crowds , Art. L.211 -10. 242 OSCE/ODIHR (2012) Report Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating
States (May 2011 – June 2012) Warsaw, 9 November, para. 228. Available at:
https://www.osce.org/odihr/97055 .

34
Media access
Independent coverage of public meetings and demonstrations is not regulated by the law, even
though they are largely covered by the media in France but also by international media, as it
was the case during the demonstrations against same -sex marri age in 2013 for example. The
current news on the comedian Dieudonné M’Bala M’Bala is also widely covered by the
media, which has some influence on the public’s reactions.
8. Conclusions and Outlook
Freedom of assembly is not quoted as such in the Constitu tion, but is derived from another
constitutionally recognized freedom, which is freedom of expression. The distinction between
public meetings and demonstrations in French legislation is not the most explicit one, as
public meetings are guaranteed by two a cts, whereas the right to demonstrate is not regulated
by a specific act, but in different ones, its guarantee being affirmed within the Penal Code.
French rules on freedom of assembly are liberal. Public meetings can be held freely; the board
only has to find a location and to ensure the smooth process of the event. Demonstrations on
public roads are subject to prior notification. A demonstration is lawful, if it has not been
prohibited due to the risk of public order disturbances. The implementation of fr eedom of
assembly in France is generally speaking liberal, as protests have played an important part in
France’s history. But depending on the political context and on the issues at stake, the right to
demonstrate, as well as its restrictions, can take dif ferent proportions (as shown by the
protests against same -sex marriage or the “Dieudonné” case for example). Also, although the
law only requires a notification from organizers of most demonstrations, public authorities
tend to interpret it as a request fo r authorization 243, leading to a decision on whether to permit
or prohibit the event. 244

243 Cf. https://vosdroits.service -public.fr/associations/F21899.xhtml#N10083 ;
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&ved=0CIABEBYwC
A&url=http%3A%2F%2Fmedia.strasbourg.eu%2Falfresco%2Fd%2F a%2Fworkspace%2FSpacesStore%
2F57c63e97 -61e1 -4373 -91c4 -026433563deb%2Fformulaire -demande -organisation -grand –
evenement.pdf&ei=sRSzUuK7BoSihgf6sIC4Bg&usg=AFQjCNGGGEr8BRL_pbIjBlDrZv0qdwhFrw&si
g2=Nakauqf7RxSYs5kbBi5ARg (last accessed: 10 March 2014) . 244 https://vosdroits.service -public.fr/associations/F21899.xhtml#N101F7 (last accessed: 10 March 2014) .

35
United States of America
by Dr. Steven Less, Esq.

1. Legal bases and scope of the guarantee
Constitutional right to assemble
The First Amendment to the US Constitution expressly mentions the right of “the people” to
“assemble,” while simultaneously listing other fundamental areas of expressive activity that
are protected from governmental interference: “Congress shall make no law … abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” 245
No ranking prioritizes the freedoms protected. Rather, the guarantees of petition, assembly,
speech and press are seen as applying t o coequal or “cognate” freedoms, 246 the protection of
which additionally implies a right of association. Whether gatherings across time and place
are more appropriately secured under a non -derivative right to freedom of association 247 as
opposed to a temporall y broader concept of assembly has been debated. 248 For brevity’s sake,
this report focuses on the First Amendment’s protection of physical gatherings for expressive
purposes.
The Amendment’s wording suggests that “peaceable assembly” plays only a facilitatin g role
in allowing individuals on a collective level to ask for responsive and accountable
government. Nevertheless, this portion of the provision has generally been designated as the
“Assembly and Petition Clause,” 249 indicating a broader view of the expres sion guaranteed.
Despite scholarly characterization of the Clause as “the very essence of the Bill of Rights,” 250
little case law 251 or academic literature focuses specifically on either petition or assembly
rights. 252
Scope of the guarantee
Traditionally, guara ntees of assembly and petition were understood as referring to activities
aimed at influencing the government. 253 A wider conception now prevails under which
controversies involving speech, press, assembly or petition are all analysed in terms of free
speech or expression. 254 As a result, judicial application of the First Amendment adheres to the
speech -framework also in cases of assembly taking such forms as political meetings, marches,
rallies, gatherings in public parks, labour pickets, leafleting, door -to-door solicitation, etc. 255
245 U.S. Const., amend. I (ratified 1791). Under the ‘incorporation doctri ne,’ the protections secured by the Bill
of Rights against Congress (and other organs of the federal government) have generally been interpreted
to apply to the states and their political subdivisions by virtue of the Due Process Clause of the Fourteenth
Amendment. 246 De Jonge v. Oregon , 299 U.S.353, 364 (1937); M. M. Russell (ed.), Freedom of Assembly and Petition (The
First Amendment): Its Constitutional History and the Contemporary Debate (2010) (hereinafter Freedom
of Assembly and Petition ). 247 See D. Col e, ‘Hanging with the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association,’ in
Freedom of Assembly and Petition , id., 207, at 208 -209. 248 See J. D. Inazu , Liberty’s Refuge: The Forgotten Freedom of Assembly (2012). 249 See M. M. Russell, ‘Editor’s Introduction,’ in Freedom of Assembly and Petition , supra fn. 246 , 21, at 22, 43. 250 See id ., at 23. 251 Cf. M. M. Russell, ‘Editor’s Note, Part III,’ in Freedom of Assembly and Petition , supra fn. 246 , 185, at 185. 252 See M.M. Russell, ‘Editor’s Introduction,’ in Freedom of Assembly and Petition , supra fn. 246 , at 21. 253 United States v. Cruikshank , 92 U.S.542 (1875). 254 De Jonge v. Oregon , supra fn. 246 . 255 See J. Mazzone, ‘Freedom’s Associations,’ in Freedom of Assembly and Petition , supra fn. 246 , 26, at 29.

36
The Assembly and Petition Clause suggests that, while government may not interfere with an
inherent right of people “peaceably” to assemble, no general right exists to assemble per se.
Because of this qualification, ensuring public safety and preventing disturbances to the public
order remain appropriate objects of governmental regulation. 256
Even where regulation does not amount to a prohibition, however, the constitutional
guarantee of assembly may be invalidly compromised. By narro wing the definition of
“peaceable” and imposing cumbersome conditions, governmental authorities can subvert
public assemblies, transforming them into irrelevant “symbolic performance[s].” 257 The
Supreme Court has determined that peaceable assemblies need not have peace as their
purpose: “[A] function of free speech under our system of government is to invite dispute. It
may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even st irs people to anger….’ 258
Forms of assemblies
Assemblies on public property
Where an assembly occurs on government or public property, the courts will consider whether
the setting constitutes a public or a non -public forum. Public forums either have a
long standing tradition of being used by the public for purposes of expression guaranteed by
the First Amendment (e.g. streets, sidewalks and parks) 259 or they have been specially
designated by the government for such uses (e.g., municipal auditoriums or public m eeting
halls). Non -public forums are properties used for other public purposes (e.g., court -buildings,
government offices, municipal hospitals, municipal airports, police stations, military
installations, school buildings, jails, etc.).
For non -public foru ms, the courts will examine whether restrictions on expression are
reasonable with respect to the people served by the forum and neutral with respect to
viewpoint. 260 Restrictions on assembly are generally upheld under this test.
Public forums enjoy favoured status in First Amendment law. Where restraints are imposed
on their use, the restraints’ constitutionality is determined using the above -mentioned
standards for content -neutral restrictions. Applying the time, place and manner test, the Court
has, for ex ample, upheld a proscription of loud demonstrations on a sidewalk in front of a
school during school -hours. 261
Assemblies on private property
Nothing in the First Amendment prevents private parties free to forbidding assembly on their
property. In Lloyd Corp . v. Tanner , a split Supreme Court upheld a ban on distribution of anti –
Vietnam -war handbills in a privately -owned shopping centre. 262 The dissenters, however, saw
access to the mall as necessary for effective communication in this situation, where they
cons idered the location as the “functional equivalent” of a town’s business district. Grounding
themselves on state constitutional provisions and the theory that owners have voluntarily
256 See id ., at 27 -28. 257 T. A. El -Haj, ‘The Neglected Right of Assembly,’ in Freedom of Assembly and Petition , supra fn. 246 , 255, at
256 -257. 258 Terminiello v. Chicago , 337 U.S. 1, 4 (1949). 259 See , e.g., Hague v. CIO , 307 U.S. 496 (1939). 260 International Society for Krishna Consciousness [ISKCON] v. Lee, 505 U.S. 672 (1992) and Lee v. ISKCON ,
505 U.S. 830. 261 Grayned v. City of Rockford , 408 U.S. 104 (1972). 262 407 U.S. 551 (1972). See also , Hudgens v. NLRB , 424 U.S. 507 (1976).

37
opened their property to the public, a few state courts have upheld state statutory limits on
private -property owners’ power of exclusion. 263
2. Restrictions
Content -based restrictions
A core -principle of First Amendment law forbids any regulation of expression directed at
the message being communicated. 264 While the prohibition appears to be absolute, it has been
subject to qualifying interpretation. According to the Supreme Court, some categories of
expression are excluded from protection under the First Amendment. Where assembly –
participants communicate f ighting words, threats of violence, or an incitement to riot, police
suppression presumptively conforms with the First Amendment. Restrictions affecting
protected categories of expression, on the other hand, require the balancing of the legitimate
governme ntal interest to regulate conduct and the individual interest in unfettered expression.
Over time, the Court has established particular balancing standards which apply depending on
the category at issue in the relevant case. Essentially, restrictions on un protected categories of
expression are subject to low -level (rational basis) judicial review. Where protected categories
are subject to content -based restrictions, the highest level of judicial review (strict scrutiny)
applies.
The “fighting words” doctrin e,265 for example, precludes the police from arresting people who
have merely insulted them. 266 Rather, the insults must be made in an individualized, face -to-
face encounter inherently likely to provoke listeners into responding with immediate violence.
The “t rue threats” excluded from First Amendment’s protection are serious expressions of
intent to commit an act of unlawful violence to a particular individual or group of individuals,
where the speaker means to intimidate. 267 The “clear and present danger” stand ard 268
originally provided courts with a guideline to analyse the validity of restrictions on
communication seen as constituting an “incitement to riot.” Under Brandenburg v. Ohio , the
standard was more precisely and narrowly formulated as expression meant and likely to incite
immediate unlawful action. 269 General fears of possible lawless action are considered
premature under the contemporary approach and do not justify governmental interference. 270
When the threat of lawlessness arises from the reaction of a hostile audience, the police are
obliged to maintain order so that the assembly can take place. They cannot constitutionally
disperse or arrest demonstrators for the disorderly conduct of spectators. 271 Rather, their
peacekeeping efforts must focus on the he cklers. As long as the police have the means to
maintain order, suspending an assembly should be a last resort. 272
Assemblies whose participants propagate hate speech – i.e., words or expressive conduct
intended to communicate denigration, belittlement, con tempt or loathing for others because of
their race, religion, ethnic origin, gender, sexual orientation or other characteristics –
generally fall within the protection of the First Amendment. Notwithstanding substantial
263 See , e.g., Golden Gateway Center v. Golden Gateway Tenants Association , 29 P.3d 797 (Cal. 2001); Green
Party v. Hart z Mountain Industries, Inc ., 752 A.2d 315 (N.J. 2000); cf. Pruneyard Shopping Center v.
Robins , 447 U.S. 74 (1980). 264 See , e.g., Police Dept. of Chicago v. Mosley , 408 U.S. 92 (1972). 265 Chaplinksky v. New Hampshire , 315 U.S. 568 (1942). 266 See , e.g., Lewis v. City of New Orleans , 415 U.S. 130 (1974), Gooding v. Wilson , 405 U.S. 518 (1972), City of
Houston v. Hill , 482 U.S. 451, cert. denied, 483 U.S. 1001 (1987). 267 Virginia v. Black , 538 U.S. 343 (2003). 268 Schenck v. United States , 249 U.S. 47 (1919). 269 395 U.S. 444 (1969). 270 Collins v. Jordan , 110 F.3d 1363 (9 th Cir. 1996). 271 Wright v. Georgia , 373 U.S. 284 (1963). 272 Gregory v. Chicago , 394 U.S. 111 (1969).

38
criticism of the Court’s “market -pla ce -of -ideas” 273 approach to such expression, the Supreme
Court has struck down legislation criminalizing the display of symbols likely to provoke
anger, resentment or alarm based on race, colour , ethnicity or religion; 274 it has upheld the
right of National S ocialist Party members to march in uniform through areas with a large
Jewish population, including many Holocaust survivors; 275 and it has upheld the right to hold
cross -burning ceremonies at Ku Klux Klan rallies. 276 Hate speech during assemblies can be
abridg ed, however, where it goes beyond the communication of beliefs and falls into a
category of unprotected speech. A split Court, nevertheless, invalidated a law which
sanctioned only hate -speech within the category of fighting words, finding this to be an
un constitutional viewpoint -selective regulation of words or symbols. 277
Content -neutral restrictions
In establishing the scope of the constitutional guarantee of assembly, the courts have
distinguished between speech and conduct. United States v. O’Brien 278 prov ided a test for
determining when government can validly interfere with expression in cases involving
content -neutral regulation directed at conduct which has an expressive dimension and where
the basic dispute concerned the regulation’s application. O’Brie n was convicted for having
knowingly destroyed his selective service registration certificate (draft card). He did this
before a crowd on the steps of a court building in Boston, thereby engaging in nonverbal
conduct intended to communicate a message, i.e. symbolic speech. Upholding O’Brien’s
conviction, the Supreme Court found that the regulation, which prohibited wilful damaging of
draft cards, was content -neutral, served a substantial governmental purpose unrelated to
suppressing speech, and was narrowly tailored to achieve this purpose. This standard
essentially parallels a second standard which has been used for cases where expression is also
incidentally abridged by time, place and manner restrictions on conduct and the restrictions
are challenged on t heir face. 279
Regulations that entirely foreclose a medium of expression, although content -neutral, would
generally not meet either of these standards. 280 Such restrictions potentially discriminate
against financially weaker groups unable to employ more expens ive means of
communications. The complete prohibition of public marches, for example, has been found
unconstitutional under this rationale. 281 However, where there is no indication of
discrimination, some total medium bans have been sustained. 282
Time, place a nd manner restrictions are typically imposed on assemblies to maintain public
order and protect against nuisances. Such restrictions, which have generally survived
constitutional challenge, may be found in the form of anti -noise ordinances 283 – ordinances
protecting residential privacy, 284 anti -littering laws, 285 laws protecting against interference with
273 Abrams v. United States , 250 U.S. 616, 630 (1919)(Holmes, dissenting). 274 R.A.V. v. City of St. Paul , 505 U.S. 377 (1992). 275 National Socialist Party of America v. Skokie , 432 U.S. 43 (1977). 276 Virginia v. Black , supra fn. 267 277 R.A.V. v. City of St. Paul , supra fn. 274 . But see Wisconsin v. M itchell , 508 U.S. 476 (1993) (upholding
enhanced criminal sentencing for racially motivated assault under state law). 278 391 U.S. 367 (1968). 279 See infra , text accompanying fn. 286 . 280 See , e.g., City of Ladue v. Gilleo , 512 U.S. 43 (1994); Loper v. New York City Police Dept ., 999 F.2d 699 (2d
Cir. 1993). 281 Shuttlesworth v. Birmingham , 394 U.S. 147 (1969). 282 See , e.g., Clark v. Community for Creative Non -Violence , 468 U.S. 288 (1984) (upholding prohibition on
camping in a park). 283 Ward v. Rock Against Racism , 491 U.S. 781 (1989); Kovacs v. Cooper , 336 U.S. 77 (1949). 284 Frisby v. Schultz , 487 U.S. 474 (1988). 285 See Schnei der v. State of New Jersey , 308 U.S. 147 (1939); cf. City Council v. Taxpayers for Vincent , 466
U.S. 789 (1984).

39
traffic as well as ingress to and egress from buildings, 286 anti -solicitation regulations, 287
regulation of signs and billboards, 288 ordinances making permits a prereq uisite for
assembling, 289 etc. 290 In addition to the above -mentioned O’Brien standard, the Court has
employed a “time, place and manner test” in such cases. The latter allows for reasonable
restraints on expression where such restraints are content -neutral, “narrowly tailored to serve
a significant government interest” and “leave open ample alternative channels for
communication.” 291 The intermediate -level review applied to content -neutral restrictions under
either approach is generally deferential to the government.
Criminal laws enacted to maintain public safety may, likewise, inte rfere with the right of
assembly. Enforcement of statutory provisions on trespass, breach of the peace, disorderly
conduct, and blocking public passage will generally be upheld when they are clear and not
intended to suppress expression.
Place restrictions : restricted zones
Spatial bans on assembly have been upheld in US law. Some of these ‘frozen zones,’
‘buffers,’ etc., appear in connection with time, place and manner restrictions on expression
near schools, 292 health clinics 293 and private residences. 294 Similar restrictions on assembly
have been deemed constitutional also in regard to polling places. 295
Nevertheless, the Supreme Court has often found spatial regulations unsustainable as content –
based, 296 failing to promote a significant governmental interest ,297 or overbroad. 298 They have
also drawn criticism for rendering protest ineffective and being arbitrary.
Although Snyder v. Phelps pertained to a civil suit rather than a municipal ordinance, 299 this
decision throws doubt on the constitutionality of recent at tempts to restrict the exercise of
First Amendment rights near funerals. It also suggests that the Court may be disinclined to
uphold broad zonal approaches to ensuring access to abortion clinics in the future. 300
Vagueness and overbreadth
Restrictions on as sembly must be precise. Arrests based on criminal law, for example, require
narrow, clear language which provides sufficient notice of what is prohibited. The vagueness
doctrine implicates a fair notice requirement derived from the Due Process Clause. 301 It also
286 Hill v. Colorado , 530 U.S. 730 (2000). 287 Martin v. City of Struthers , 319 U.S. 141 (1943). 288 Ladue v. Gilleo , supra fn. 280 . 289 See I.C.6. 290 See NY Penal Law §240.35(4) (generally forbidding people from publically assembling while wearing
masks); see also , upholding the provision, Schuman v. State of N. Y ., 270 F.Supp. 730 (S.D.N.Y. 1967)
and Church of the American Knights of the Ku Klux Klan v. Kerik , 356 F.3d 197 (2d Cir. 2004). 291 Clark v. Community for Creative Non -Violence , supra fn. 282 . 292 Grayned v. City of Rockford , supra fn. 261 . 293 See Hill v. Colorado , supra fn. 37; Schenck v. Pro -Choice Network of Western New York , supra note 62;
Madsen v. Women’s Health Center, Inc ., infra fn. 313 . 294 See Frisby v. Schultz , supra fn. 284 . 295 See Burson v. Freeman , 504 U.S. 191 (1992). 296 See Boos v. Barry , 485 U.S. 312 (1988) (invalidating ordinance that prohibited display within 500 feet of a
foreign embassy of signs that bring „the foreign government into public disrepute“). 297 See United States v. Grace , 461 U.S. 171 (1983) (striking down ban on carrying signs, flags and banners on
sidewalk outside the Supreme Court). 298 See Board of Airport Commissioners v. Jews for Jesus, Inc. , 482 U.S. 569 (1987) (invalidating a Los Angeles
International Airport resolution prohibiti ng all assembly and speech activities in the airport’s central
terminal). 299 131 S.Ct. 1207 (2011) (holding that communication about a public issue on public property near a cemetary
was protected from tort liability by the 1st Amend.). 300 See McCullen v. Coakley , S.Ct. Docket No. 12 -1168, October Term 2013) (decision pending). 301 Connally v. General Construction Co ., 269 U.S. 385 (1926); Grayned v. City of Rockford , supra fn 261 .

40
facilitates consideration of the chilling effect on expression 302 that results from arbitrary and
discriminatory enforcement of restrictions by officials who have been improperly delegated
authority to make basic policy decisions in the absence of objec tive guidelines. 303
Statutes that authorize police to arrest persons for “loitering,” 304 “annoying, 305? EHLQJ
?RIIHQVLYH? 306 or causing “anger” or “a condition of unrest,” 307 are invalid and may be
challenged even when the conduct of the person claiming a First Ame ndment violation falls
outside the Amendment’s protections. The overbreadth of such laws stems from their
potential application to both protected and unprotected expression. By causing those whose
expression is constitutionally protected to fear that their lawful activity will expose them to
criminal prosecution, overbroad laws chill expression the First Amendment was designed to
secure. 308
Likewise, statutes permitting arrest for failure to obey a police officer’s order to disperse are
invalid in the absence of an objective, clear and precise standard for when such an order can
be issued. 309
Prior restraints
A central feature of the First Amendment’s protection of expression is its rejection of the use
of governmental authority to prevent public dissemination o f disfavoured ideas. Seen against
this backdrop, prior restraints on expression are a form of censorship and, therefore,
presumptively invalid. Mandatory permits or licensing requirements for assemblies, and
injunctions imposed on assemblies by courts, are potentially censorial and invalid under the
prior restraints doctrine when based on the content of the message that the participants intend
to convey.
Nevertheless, permits offer a practical way to prevent scheduling conflicts, plan for traffic
diversion and ensure the deployment of sufficient resources to maintain order. Requiring
larger assemblies to obtain advance approval through permit applications has become
commonplace. The courts have generally upheld content -neutral permit prerequisites which
ser ve the above -mentioned governmental interests, considering these to be reasonable time,
place and manner restrictions. 310
Even content -neutral permit schemes may, of course, be abused to discriminate against
disfavoured assemblies, thereby becoming unconstit utional prior restraints. In reviewing time,
place and manner restrictions, the courts will, thus, examine the amount of discretion they
vest in an administrator to consider the applicant’s identity, the content of the assembly’s
message and the potential hostility which the message may provoke, 311 as well as the degree to
which a permit’s cost and notice requirements 312 and fulfilment of its substantive conditions 313
impede free expression.
As with permits, court injunctions directing parties to act or refrain f rom certain acts can
suppress disfavoured expression. First Amendment challenges in the context of anti -abortion
protests have given rise to a special rule that seems to demand slightly more rigorous
examination of content -neutral injunctions than other co ntent -neutral restrictions on
302 Id., at 109. 303 Id., at 108 -109. 304 Chicago v. Morales , 527 U.S. 41 (1999). 305 Coates v. Cincinnati , 402 U.S. 611 (1971). 306 Texas v. Johnson , 491 U.S. 397 (1989). 307 Terminiello v. City of Chicago , supra fn. 258 . 308 Gooding v. Wilson , supra fn. 266 . 309 Shuttlesworth v. City of Birmingham , supra fn. 281 . 310 Cox v. New Hampshire , 312 U.S. 569 (1941); Thomas v. Chicago Park District , 534 U.S. 316 (2002). 311 Thomas v. Chicago Park District , id. 312 See , e.g., Forsyth County v. Nationalist Movement , 505 U.S. 123 (1992). 313 See , e.g, Madsen v. Women’s Health Center, Inc ., 512 U.S. 753 (1994).

41
expression: Valid injunctions may not “burden … more speech than necessary to serve a
significant government interest.“ 314 On this basis, the Supreme Court has provided detailed
guidelines for injunctions which restrict assembly near health clinics, accepting as
constitutional restrictions aimed at preventing physical obstruction or severe harassment
which would prevent physical access. 315
3. Procedural issues
Notification and spontaneous assemblies
Courts have rejected permit/not ice requirements of more than a couple of days. 316 A
“spontaneous assembly,” which ignores such requirements, invites arrest for trespass,
disturbing the peace or blocking traffic, etc. Nevertheless, persons charged with these
offenses may challenge the cons titutionality of the underlying law, in contrast to those who
violate an injunction on assembly. 317
Unrest resulting from hecklers and counter -demonstrations cannot “veto” or nullify a permit
or justify dispersing those who otherwise have a right to be where they are for purposes of
assembly. 318
Decision -making
Permit systems dependent on an administrator’s discretion constitute prior restraints. 319 Thus,
permits based on considerations other than resource allocation and scheduling conflicts may
be constitutiona lly defective. The Supreme Court has invalidated ordinance vesting
administrators with authority to consider applicants’ identity, their message, or the hostility
which the assembly might arouse in the public, and to withhold permits in order to secure
“pu blic welfare, peace, safety, health, decency, good order, morals or convenience” 320 or to
prevent “riots, disturbances or disorderly assemblage.” 321
Review of denial of permits
In a different permit context (licensing of movies), the Supreme Court recognized that where
content is likely to play a role in deciding on the abridgment of First Amendment rights, a full
hearing and prompt review are required. 322 Similar procedural requirements pertain to
injunctions. 323
Implementation costs
Beyond incorporating the basic procedural requirements mentioned above, a permit scheme
must also be specific and objective when imposing charges in order to avoid being invalidated
as a prior restraint. Fees can validly cover the costs of processing an application as well as
314 Id.; cf. Clark v. Community for Creative Non -Violence , supra note 33 (requiring that restrictions be “narrowly
tailored to serve a significant government interest,” etc. ). 315 See Schenck v. Pro -Choice Network of Western New York , 519 U.S. 357 (1997). 316 See , e.g., Church of the Knights of the Ku Klux Klan v. City of Gary , 334 F.3d 676 (7th Cir. 2003); Local
32B -32J v. Port Authority of N.Y. & N.J ., 3 F. Supp. 2d 413 (S.D.N. Y. 1998); Santa Monica Food Not
Bombs v. City of Santa Monica , 450 F. 3d 1022 (9 th Cir. 2006). 317 See supra I.C.6. 318 See Wright v Georgia , supra fn. 22; see also supra I.C.1. 319 See supra I.C.6. 320 See Shuttlesworth v. Birmingham , supra fn. 281 . 321 See Hague v CIO , supra fn. 259 . 322 See Freedman v. Maryland, 380 U.S. 51 (1965). Cf. Thomas v. Chicago Park District, supra fn. 310 . 323 See , e.g., Carroll v Princess Anne, 393 U.S. 175 (1968); National Socialist Party v. Village of Skokie, supra
fn. 275 .

42
traf fic regulation and police protection. 324 Where the amount varies according to the estimated
expense of controlling a hostile audience, however, the First Amendment is invalidly
compromised. 325 Flat fees intended to recoup administrative costs and insurance req uirements
with amounts based on the size of the event and the type of facilities involved have been
upheld. 326
4. Implementing the constitutional guarantee and freedom of assembly legislation
Use of force by the police
Given the circumstances of a particula r assembly, police may constitutionally resort to force.
According to the US Department of Justice (DOJ), “Police officers should use only the
amount of force that is reasonably necessary to bring an incident under control while
protecting the lives of the officers and others.” 327 The standard of reasonableness in this
context is governed by the Fourth Amendment. 328 It entails an objective test which requires a
court to envision a reasonable officer and, based on the totality of the facts and circumstances,
ask whether such an officer could believe that the use of force was reasonable. 329
Liability of assemblers
In addition to imposing administrative fees for permits, local governments may require a bond
or insurance and demand reimbursement of costs to clean or repair a venue after an
assembly. 330 Liability for such charges is unobjectionable in the absence of discrimination
among groups and events of a similar type and size.
Civil liability cannot be imposed on participants in an assembly merely because they all
belong to the same group, when some members have committed illegal acts. Rather, liability
requires that the group had illegal goals and the individual member specifically intended to
help them occur. 331
5. Securing government accountability
Liability of law enforcement authorities
Police who use excessive force to disperse, arrest or take people demonstrators into custody
without cause, expose themselves to criminal 332 as well as civil liability. 333 Even where there
is no false arrest or application of excessive force, interference with First Amendment rights
by state and local officials acting under colour of state law may establish grounds for a
lawsuit for civil (monetary) damages under federal law. 334 While 42 U.S.C. §1983 does not
cover federal law enforcement agents, the Supreme Court has held that they may be sued
directly under the Constitution. 335 Police officers have qualified immunity and may thereby
324 See Cox v. New Hampshire , supra fn. 310 . 325 See Forsyth County v. Nationalist Movement , supra fn. 312 . 326 See T. A. El -Haj, ‘The Neglected Right of Assembly,’ 56 UCLA Law Review 543 (2009), at 549 n. 18. 327 DOJ, Principles for Promoting Police Integrity: Examples of Promising Practices and Poli cies, (Jan. 2001).
See also , Tony Narr et al., Police Management of Mass Demonstrations: Identifying Issues and
Successful Approaches , Police Executive Research Forum (2006) 56 -57. 328 US Const, amend IV (‘The right of the people to be secure in their perso ns, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated ….’). 329 Graham v. Connor , 490 U.S.386 (1989). 330 See , e.g., NYC Rules §2 -08, p and t.(7), Ch. 2, Title 56. 331 NAACP v. Clairborne Hardware Co., 458 U.S. 886 (1 982). 332 18 U.S.C. §242 (making it a crime to wilfully violate federal constitutional rights while acting under colour of
law. 333 42 U.S.C. §1983 (allowing civil lawsuits for violations of constitutional rights). 334 Id. 335 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971).

43
avoid liability when the constitutional right they are accused of violating was not clearly
established 336 or when the officers’ conduct was objectively reasonable in light of the relevant
constitutional standard.
Monitoring
Monitoring or surveillance of assemblies by law enforcement agencies is often advocated for
purposes of ensuring public or national safety a nd defending against charges of abuse. 337
However, unwarranted monitoring constitutes harassment and chills the expression of persons
innocently exercising their First Amendment rights. While rejecting a claim challenging the
military’s domestic monitoring o f civilians on procedural grounds, the Court in Laird v.
Tatum 338 left open a remedial possibility where surveillance results in objective harm or
threatens specific future harm. Governmental surveillance of anti -war and civil rights
demonstrations, proteste rs and organizations became the subject of intense congressional
scrutiny in 1975 -1976, culminating in the Church Committee’s revelation of the extreme
lengths to which the federal government went at the time to discredit and undermine activities
protected by the First Amendment. 339
Videotaping or photographically documenting assemblies by the news media, on the other
hand, may effectively promote governmental accountability. Nevertheless, journalists usually
do not have a constitutional right of access to go vernment property or governmental
operations, except in the case of traditional public forums 340 which are generally accessible to
the public. Exclusion of the media from places otherwise open to others is probably
unconstitutional. 341
6. Conclusions and outlo ok
Social media
Allegedly fearing a recurrence of violence by protesters trying to impede train traffic, officials
of Bay Area Rapid Transit (BART) in San Francisco shut down cell phone service in several
subway stations for a few hours in August 2011 to d isrupt protests against police brutality. 342
This appears to be the first time American authorities blocked cell phone and Internet activity
in the context of a public demonstration. The incident provoked extensive legal debate over
the proper governmental r eaction to “flashmobs,” in view of concerns that BART’s actions
violated both the First Amendment and the Communications Act of 1934. 343
In the absence of case law and guidelines from the Federal Communications Commission, the
issue remains open to further d ebate. Forum analysis would be key to assessing whether
BART’s actions violated assembly rights, whereby the Supreme Court’s precedents provide
some authority for characterizing subway stations as non -public forums. The incident, in any
336 See Pierson v. Ray , 386 U.S. 547 (1967) (recognizing immunity where the police enforce laws later declared
unconstitutional). 337 See , e.g., DOJ, The Attorney General’s Guidelines for Domestic FBI Operations (2008); M. Masterson,
‘Crowd Management,’ in FBI Law Enforcement Bulletin , Aug. 2012. 338 408 U.S. 1 (1972). 339 See C. A. Benoit, Picketers, Protesters, and Police, in FBI Law Enforcement Bulletin , Aug. 2012, referring to:
Hearings Before the Subcommittee on Civil and Constitutional Rights of the House Committee on the
Judiciary , 94th Cong. 257 (1976). 340 See supra I C. 3. 341 See Houchins v. KQED, Inc. , 438 U.S. 1 (1978). Cf. Dinler v. City of New York , 2012 WL 4513352
(S.D.N.Y., 2012). 342 See T. Collins, BART Cell Phone Shutdown: Safety Issue or Free Speech Violation, Aug. 15, 2011,
www.huffingtonpost.com/2011/08/12/bart -cell -phone -shutd own -free -speech_n_927294.html (last
accessed: 18 November 2013). 343 47 U.S.C. § 151 (2006).

44
event, poses the qu estion whether the Brandenburg approach to incitement requires
modification in light of individuals’ capacity via mobile and Internet -based communications
technology and social media to reach large numbers of people quickly and anonymously,
irrespective of logistical constraints. Such a modification would represent a dramatic
departure from the normative framework described above in Section I.
Unmanned aerial systems (UAS)
Recent legislation requires the Federal Aviation Administration (FAA) to regulate th e
operation of civil and public UAS or ‘drones’ 344 in the national airspace by 2016. 345 This
legislation also makes it fairly easy for police departments to receive authorization to operate
drones. 346
The prevailing privacy approach under the Fourth Amendment h as until now accorded the
police wide flexibility with respect to aerial surveillance. Over the last decade, helicopters and
blimps have, in fact, been used to support live monitoring of assemblies. 347 Problems arise,
however, where police collect literature , take photos, make videos or audio recordings, or
otherwise collect personally identifiable information about individuals or groups exercising
their First Amendment rights, where there is no reasonable law enforcement purpose (i.e.,
reasonable suspicion t hat criminal activity is occurring or will take place) or this is not done
in a manner narrowly tailored to achieve the government’s legitimate objectives (e.g.
maintaining public order, enforcing traffic control, preventing criminal activity, protecting
persons or property, and ensuring compliance with permits and reasonable restrictions on the
time, place and manner for conducting an event). 348
Under modern surveillance jurisprudence, privacy rights under the Fourth Amendment are
implicated when a person has a subjective expectation of privacy and that expectation would
generally be recognized as reasonable. 349 Following Katz v. United States , it was widely
accepted that individuals located in public spaces can have no objective expectation of
privacy. Aeria l surveillance of private property was also consistently upheld as constitutional
under the ‘plain view’ doctrine. 350 Recently, however, has the Court accepted some
limitations on searches involving more sophisticated technology. 351 This suggests that it may
be willing to adopt a more restrictive approach to governmental intrusion in light of drones’
capacity to employ powerful sensory -enhancing equipment and the technically limitless
storage, retrieval and dissemination possibilities which exist for any data t hey generate.

344 ‘Aerostats,’ i.e. moored balloons, used for surveillance raise related legal questions. See C. Timberg,
‘Floating eyes in the sky heighten privacy worries,’ The Wa shington Post , Jan. 23, 2014, p. A1. 345 FAA Modernization and Reform Act of 2012, Pub. L. 112 -95. 346 See id., Sects. 333 -334. 347 Police Executive Research Forum, Managing Major Events: Best Practices from the Field , June 2011, at 35,
38. 348 See Global Justice Information Sharing Initiative, Recommendations for First Amendment -Protected Events
for State and Local Law Enforcement Agencies (Dec. 2011), at 16 -19; cf. Handschu v. Special Servs.
Div. , 2007 U.S. Dist. LEXIS 43176 (S.D.N.Y. 2007)(involving continued li tigation with respect to
guidelines included in the Handschu 1985 consent decree, which was modified after 9/11 and re -modified
subsequently); 28 CFR Part 23, § 23.20 (operating principles). 349 Katz v. United States , 389 U.S. 347 (1967) (finding unconstitut ional warrantless eavesdropping on
conversations occurring in a public telephone booth). 350 See California v. Ciraolo , 476 U.S. 207 (1986); Dow Chemical Co. v. United States , 476 U.S. 227 (1986);
and Florida v. Riley , 488 U.S. 445 (1989). 351 Kyllo v. United States , 533 U.S. 27 (2001) (finding a violation of the 4 th Amend. in the warrantless use of a
not commonly available thermal imaging device to detect the growth of marijuana in a home); United
States v. Jones , 132 S. Ct. 945 (2012)(finding attachment of a G PS device to a car to track its movements
on a public road for 4 weeks, exceeding the time -limit set by a warrant, constituted a search within the
protection of the 4 th Amend.).

45
Belgium
by Melina Garcin

1. Legal bases
After the 1830 Belgian Revolution broke out, a temporary government was established and
convened a national congress in charge of drafting a constitution. For the first time in the
genesis of freedo m of assembly, the criterion of an open air gathering entered into force. 352
This provision was absorbed by a number of constitutions ratified in the 19th century, and has
been part of the Constitution which has been in force ever since its adoption by the N ational
Congress in 1831. A consolidation took place in 1994, and a last amendment in 2012.
Art. 26 of the Constitution gives Belgians “the right to assemble peaceably and without arms,
in accordance with the laws that can regulate the exercise of this ri ght, without submitting it
to prior authorization”. 353 However, the provision “does not apply to open air gatherings,
which are entirely subject to police regulations”. 354
While the Constitution guarantees the respect of its fundamental freedoms to every human
being, only Belgian citizens are entitled to the freedom of assembly 355. Art. 191 of the
Constitution stipulates that “all foreigners on Belgian soil benefit from the protection
provided to persons and property, except for those exceptions provided for by the law”. Art.
26 of the Constitution does not apply to non -Belgians, but pursuant to Art. 191 of the
Constitution, they have the right to exercise freedom of assembly, unless it is limited by the
law. 356
The constitutional provision defines “assembly” as the temporary gathering of several persons
in a public place, accessible to everyone. 357 The provision therefore applies to public
meetings, as opposed to private meetings taking place in private places and accessible to
people who have been personally in vited by the organizer of the meeting. The provision
applies to indoor meetings, as opposed to open air gatherings which are also guaranteed, but
which are submitted to police regulations. The police authority can therefore regulate open air
gatherings, su bmit them to prior authorization, and prohibit them if needed; to maintain public
order.
There is no specific assembly law in Belgian legislation ; freedom of assembly is recognized
and regulated in different legal texts not pertaining to assemblies in par ticular. Art. 141ter of
the Penal Code 358 prohibits an interpretation of the other provisions under Title Iter on terrorist
offences that would lead to a breach of freedom of assembly without any justification. This
provision refers to Art. 11 of the Europea n Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). 359 The Alien Act states that the lawful exercise of
352 RIPKE, S. (2012) Europäische Versammlungsfreiheit , Tübingen: Mohr Siebeck, p. 20. 353 Constitution, Art. 26, para. 1. 354 Ibid. , para. 2. 355 Constitution, supra fn. 353 , Art. 26, para. 1,. 356 Cf. DE ME YER, J. (1963) Staatsrecht , Leuven: Wouters, 4th ed., p. 459; LAVALLEYE, P., i n: PELLOUX,
R. (1959) Essais sur les droits de l’homme en Europe , Paris: Bibliothèque Européenne, p. 19; WIGNY, P.
(1973) Cours de droit constitutionnel , Brussels: Bruylant, p. 1 79; ORBAN, O. (1911) Le droit
constitutionnel de la Belgique , Liège: Dessain, Vol. III, p. 161; PIETERS, D., in: GRABITZ, E. (1986)
Grundrechte in Europa und USA , Kehl: Engel, p. 34. 357 DELPEREE, F. (2000) Le droit constitutionnel de la Belgique , Brussels: Bruylant, p. 254. 358 Penal Code of 8 June 1867, Vol. II – Offences and their Repression in Particular, Title Iter – Terrorist
Offences , Art. 141ter. 359 Of 4 November 1950. Available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf (last accessed:
10 March 2014).

46
freedom of peaceful assembly cannot be held against a foreign national to justify his/her
return or removal. 360
2. Scope of th e guarantee
The Belgian supreme administrative jurisdiction (Conseil d’Etat) recalls that freedom of
assembly is a fundamental right guaranteed by the Constitution, which cannot be undermined
as long as the assembly is peaceful and unarmed. A general proh ibition of a political congress
would present an infringement to freedom of assembly. 361 For the Conseil d’Etat, public
entertainment events are included in the protection of Art. 26 of the Constitution 362, although
the highest judicial court (Cour de cassatio n) showed some reluctance admitting it. 363 In two
different decisions 364, the Belgian Constitutional Court referred to an explanatory statement on
Art. 4 of the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), 365 in whic h Belgium confirmed the recognition of this Article, as
long as it was in compliance with the right to freedom of peaceful assembly, pursuant to Art.
20 of the Universal Declaration of Human Rights, 366 to Art. 21 of the International Covenant
on Civil and Po litical Rights 367 and to Art. 5 (d) (ix) of the ICERD. The Belgian Anti -Racism
Act 368 aims at fighting efficiently against organizations defending racist theories. The Court
stated that the contested provision of this Act did not prevent an association from ex isting, nor
from meeting, even if one or several of its members had been sentenced on the basis of the
provision. 369 It noted that the contested provision was considered necessary in a democratic
society for the protection of the rights of others. The provis ion was proportionate to the
objective, which consisted in fighting against organizations encouraging racial
discrimination. 370
No specific laws on flash mobs
There is no legal provision on flash mobs in Belgium, nor any case -law on the matter. It is
theref ore not clear whether open air flash mobs would follow the same requirements as indoor
flash mobs (a lot of them take place in malls, airports, etc.). While most of the flash mobs
taking place in Belgium are staged as entertainment, they are sometimes used to raise
awareness about important issues. 371 Flash mobs are generally formed through social media
web sites, such as Facebook 372 and Twitter. 373
360 Act of 15 December 1980 on the entry, stay, permanent residence and removal of aliens, Titel I – General
Provisions, Chap. VI – Returns and Removals, Art. 20 . 361 CE, 7 November 1998, n° 76815. 362 Cf. CE, 24 March 1953, Pas. Belge 1954, IV, 103 (105); DELPEREE, F., supra fn. 357 , p. 254; WIGNY,
supra fn. 356 , p. 181; DUPRIEZ, L. (1887) La liberté de réunion , Brussels: Lesigne, p. 3. 363 Cass., 16 November 1920, Pas., 1921, I, p. 126. 364 Const. 12 Fe bruary 2009, n° 17/2009 and Const., 11 March 2009, n° 40/2009. 365 Of 7 March 1966. Available at: https://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf (last accessed:
10 March 2014) . 366 Of 10 December 1948. Available at: https://www.un.org/en/documents/udhr/ (last accessed: 10 March 2014) . 367 Of 16 December 1966. Available at: https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf last
accessed: 10 March 2014 . 368 Act of 30 July 1981 on the punishment of acts of racism and xenophobia. 369 Const., 12 February 2009, n° 17/2009, para. B.83.5. 370 Ibid, para. B.83.6. 371 i.e. on the protection of animals: https://www.gaia.be/fr/gaia -tv/flashmob -no -cruel -cosmetics (last accessed: 10
March 2014). 372 Facebook group on flash mobs in Belgium: https://www.facebook.com/groups/318226533597/ (last accessed:
10 March 2014) . 373 Twitter page on flash mobs in Belgium: https://twitter.com/Flashmobbelgium (last accessed: 10 March 2014) .

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3. Restrictions
Place and time restrictions
The general rule is that open air gatherings are permitted in Belgium , although submitted to
police regulations. 374 Open air gatherings and individual demonstrations are generally
prohibited on Saturdays and on certain public venues of Brussels. 375 But gatherings caused by
the fulfilment of a public service, military parades, ceremonies, celebrations and
entertainments organized by the public authority, funeral ceremonies, and gatherings
specifically authorized by a mayor’s decree are excluded from that general prohibition. 376
Manner restrictions
The Belgian Cour de Cassation admitted at an early stage that the Constitution allowed a
restriction to freedom of worship in the form of an open air religious procession to ensure the
maintenance of public o rder. 377 Likewise, laws can regulate the exercise of the right to
assemble peaceably with the purpose of maintaining public safety, policy, and health. 378 The
Conseil d’Etat (CE) confirms public authorities’ decisions to restrict freedom of assembly
when it is justified by public security imperatives and maintenance of public order. The CE
does not substitute its own assessment to the one made by the competent authority, as long as
the restriction to the freedom is duly justified. 379 When the competent authority fails to carry
out the balance of interests between freedom of assembly and the guarantee of public order,
the CE decides on the proportionality of the measure taken 380 using the European Court of
Human Rights’ standards – whether the measure is necessary, i n a democratic society, to
maintain public order. It recalls that freedom of assembly is not an absolute right and that
authorities can exercise their competence to regulate it. In that case, it is for the claimant to
prove the violation of Art. 26 of the Constitution and Art. 11 of the ECHR by the authorities’
regulations. 381 When the safety and the well -being of inhabitants, as well as prevention from
disturbance of public order do not excessively affect freedom of assembly, the CE will not
find a violation of the proportionality principle. 382 In case of a serious threat to public order,
police officers are allowed to conduct security searches on individuals participating in public
gatherings. 383 Police services are present at large -scale gatherings and take nec essary
measures for their peaceful proceedings. They are in charge of disbanding all armed crowds
(“attroupements”); those which result in crimes and offences against persons or goods, or to
breaches to the Act prohibiting private militias, 384 and those whic h are set up with the purpose
of devastation, killing, looting, or attempts against the physical integrity or the life of
individuals. Police services are in charge of disbanding crowds interfering with the law, a
police order, a police measure, a Court de cision, or a constraint. 385 In cases of extreme
urgency, the Circular on surveillance cameras allows police officers to use surveillance
374 Constitution, supra fn. 353 , Art. 26, para. 2. 375 Cf. Act of 2 March 1954 to prevent and respond to breaches of the unimpeded exercise of sovereign powers
set out in the Constitution, Art. 3; General Police Regulation of the City of Brussels, Chap. III – Public
safety and convenience of passage , Sect. 1 – Assemb lies, demonstrations, processions , Art. 31. 376 Act of 2 March 1954 to prevent and respond to breaches of the unimpeded exercise of sovereign powers set
out in the Constitution, Art. 3. 377 Cass. 23 January 1879, Pas., I, 1879, p. 75. 378 Cf. Constitution, supr a fn. 353 , Art. 26, para.1; Cass. 18 May 1988, Pas., I, 1988, p. 1139. 379 CE, 15 June 2000, n° 97.974. 380 CE, 14 December 2001, n° 101887. 381 CE, 10 November 2010, n° 208.910. 382 CE, 30 September 2009, n° 196.527. 383 Act of 5 August 1992 on the police function, Art. 28. 384 Act of 29 July 1934 prohibiting private militias. 385 See supra fn. 383 , Art. 22.

48
cameras in closed but public places to determine if a large -scale gathering requires immediate
intervention of police ser vices (e.g., police services did not know in advance about the
meeting of an extremist group or about the meeting of bikers in a zoning). 386 Such measures
can only be used for large -scale gatherings within the meaning of Art. 22 of the Act on the
police func tion and for a limited time (demonstrations, concerts, and football games). 387
General Police Regulations regulate public safety in each Belgian municipality. Municipal
powers are indeed very broad in Belgium and encompass everything which is of municipal
interest. A municipality can do everything which is not prohibited; under the control of the
federal State, the communities, the regions and provinces. 388 Some rules can therefore differ
from one municipality to the other. Thus, in Brussels, it is prohibited t o provoke or to
participate in crowds in public space that hamper traffic or inconvenience pedestrians without
prior authorization. 389 Additionally, unless authorization has been granted, concealment of the
face in public space is prohibited. 390
4. Procedural issues
Authorization
Every gathering, demonstration, or procession on public space is subject to prior authorization
by the mayor. The authorization request has to be addressed to the mayor at least 10 days
before the intended date and has to include the following elements: the name, address and
phone number of the organizers, the topic of the event, the date and time of the planned
gathering, the planned itinerary, the planned location and time of the event’s end, the
evaluation of the number of participa nts, the intended means of transport, and the planned
organizational measures. If a meeting is taking place at the end of the event, it also has to be
notified in the authorization request. 391 Any concert, show, entertainment, assembly taking
place on public roads, but which have received an authorization by the municipality, cannot
be disrupted. 392
Decision -making
The mayor of each Belgian municipality issues the authorization to hold gatherings,
demonstrations, or processions on public space on request. Aut horization is usually not
granted for gatherings and processions taking place on Saturdays in some parts of Brussels;
but the mayors can make exemptions in exceptional cases. If the conditions settled in the
delivered authorization are not met, the mayor c an withdraw this authorization. 393 Most of the
decisions are taken at municipality level. However, the municipalities have to be careful not
to establish discriminatory measures which would only apply to certain groups (e.g., young
386 Circular of 10 December 2009 on the Law of 21 March 2007 governing the installation and use of
surveillance cameras, para. 3.2. 387 Ibid , para. 3.3. 388 https://www.belgium.be/fr/la_belgique/pouvoirs_publics/communes/competences/ (last accessed: 10 March
2014) . 389 General Police Regulation of the City of Brussels, Chap. III – Public safety and convenie nce of passage , Sect.
1 – Assemblies, demonstrations, processions , Art. 30. 390 Ibid. , Art. 32. 391 Cf. Cass., 23 January 1879, Pas., I, 1879, p. 75; General Police Regulation of the City of Brussels, Chap. III –
Public safety and convenience of passage , Sect. 1 – Crowds, demonstrations, processions , supra fn. 389 ,
Art. 31. 392 General Police Regulation of the City of Brussels, Chap. III – Public safety and convenience of passage , Sect.
2 – Inconvenient and dangerous activities on public space , Art. 40. 393 General Police Regulation of the City of Brussels, Chap. III – Public safety and convenience of passage , Sect.
1 – Crowds, demonstrations, proces sions , supra fn. 389 , Art. 31.

49
people) 394 and which would b e contrary to the law. In the event of riots, hostile crowds, or
public order disturbances, the 1988 New Municipal Act stipulates that the mayor can issue
police orders, which are communicated to the municipal council. 395 Municipalities must
prevent breaches to public peace resulting in brawls or street fights, chaos, and
disproportionate noise and nocturnal crowds disturbing inhabitants’ rest. 396 When the police
disband crowds or are present at large -scale gatherings, they inform the mayor and the chief
of loc al police forces beforehand or, if not possible, at the earliest opportunity, and stay in
permanent contact with them during the intervention 397. The police are responsible for taking
decisions based on an assessment between the protection of fundamental rig hts 398 and the
maintenance of public order.
Review and appeal
Verifying that the action (or inaction) by the administrative authorities is legal and in the
public interest is carried out first by the authorities themselves, exercising their official or
sup ervisory powers over municipal administration. The supervisory powers are based on
legislation and local authorities (provinces and municipalities) are submitted to
it.399 Municipalities’ regulations and acts are therefore subject to the supervisory authorit y.400
A decision by a subordinate authority that violates the law or undermines the public interest
can be suspended or annulled. 401 The courts, whether or not under the purview of the
judiciary, have jurisdiction to conduct a judicial review of the legality o f administrative acts
and regulations. The basis for this supervision is provided by Art. 159 of the Constitution. 402
The jurisdiction of judicial courts is based primarily on Arts. 144 and 145 of the
Constitution. 403 The application of these provisions has le d the judicial courts and tribunals to
hear a sizeable portion of administrative disputes. This is because many cases involving
citizens and the administrative authorities pertain to subjective rights and many of these were
considered to be civil rights. 404 The jurisdictional competence of the Conseil d’Etat (CE) is
based on Art. 160 of the Constitution. 405 The CE has the power to annul acts and regulations,
on appeal by any stakeholder. The CE may also hear appeals against decisions handed down
in the final in stance by the administrative courts. 406 Judicial supervision may finally be carried
out by the Constitutional Court, whose primary task is to make sure that the different
legislators of federal Belgium comply particularly with Title II of the Constitution – public
liberties. 407 It has jurisdiction to verify the legality of administrative acts and regulations. 408
394 https://www.belgium.be/fr/justice/securite/evenements_publics/manifestations/ (last accessed: 10 March
2014) . 395 New Municipal Act of 24 June 1988, Art. 134, para.1. 396 Ibid , Art. 135, para. 2, n° 2. 397 Act of 5 August 1992 on the police function, supra fn. 383 , Art. 22. 398 Cf. Act of 5 August 1992 on the police function, supra fn. 383 , Art. 1; Act of 7 December 1998 organising a
two -level structured integrated police service, Art. 123. 399 LEWALLE, P. (2009) La Justice Administrative en Europe – Le Droit Belge . 25 Août, p. 5. 400 Order of 14 May 1998 organising the administrative supervision of the municipalities in the Brussels -Capital
Region. 401 LEWALLE, supra fn. 399 , p. 5. 402 Constitution, supra fn. 353 , Art. 159: “Courts only apply general, provincial or local decisions and regulations
provided that they are i n accordance with the law.” 403 Constitution, supra fn. 353 , Art. 144: “Disputes about civil rights belong exclusively to the competence of the
courts.”; Art. 145: “Disputes about political rights belong to the competence of the courts, except for the
exceptions established by the law.” 404 LEWALLE, supra fn. 399 , p. 9. 405 Constitution, supra fn. 353 , Art. 60: “[…]The Conseil d’Etat makes decisions by means of judgments as an
administrative court and provides an opinion in the cases determined by the law.” 406 Cf. https://www.raadvst -consetat. be/?page=proc_admin&lang=fr (last accessed: 10 March 2014) ; LEWALLE,
supra fn. 399 , p. 6. 407 https://www.const -court.be/ (last accessed: 10 March 2014) .

50
5. Specific forms of assemblies
There are more than 650 protest demonstrations in Brussels -Capital which take place
peacefully every year. 409
Assemblies gathered by means of new technologies (social networks etc.)
A lot of public assemblies, open air demonstrations, or other kind of events are now organized
or advertised through social networks, even among different countries. 410
Spontaneous assemblies
Whi le spontaneous assemblies are generally allowed, 411 they can be prohibited if they take
place in an area where gatherings are generally banned. 412 Taxi drivers in Brussels scheduled a
spontaneous assembly through text messages and radio exchanges to protest ag ainst police
violence. The assembly escalated when a taxi driver was stabbed by a storekeeper, and the
police used force against the protesters. 413
Assemblies taking place on public property
As already mentioned, open air gatherings and individual demonstrations are banned on some
public venues of the capital. 414 Municipalities are responsible for the maintenance of order in
places where large -scale gatherings take place, such as fairs, markets, public celebrations,
shows, games, coffee shops, and chu rches. 415
Counter -demonstrations
Counter -demonstrations are not regulated by Belgian law. Public authorities sometimes use
them as a justification for prohibiting assemblies, based on the risk of public order
disturbance. The Conseil d’Etat indeed confirmed the refusal to hold a demonstration because
of prior incidents and the risk of disorder caused by counter -demonstrators to the march. 416
The decision to prohibit a demonstration against the construction of a mosque had been based,
among other elements, on t he risks of counter -demonstrations from the Muslim community
and far left groups. 417
408 C.A., 4 April 1995, no. 31/95, roll no. 738, Belgian Official Gazette, 16 May 1995. 409 Cf. Editorial Board (2012) Thielemans demande une enquête concernant les violences policières . 18 June,
LaLibre.be. Available at: https://www.lalibre.be/regions/bruxelles/thielemans -demande -une -enquete –
concernant -les -violences -policieres -51b8ecaee4b0de6db9c6f888 ;
https://www.bruxelles.be/artdet.cfm/4 389 (last accessed: 10 March 2014) . 410 i.e. a demonstration organized by Belgians supporting same -sex marriage and the LGBT community in
France: https://www.facebook.com/events/33808107295777 4/ (last accessed: 10 March 2014) . 411 Editorial board (2008) Gaza: manifestation spontanée à Heusden -Zolder . 7 sur 7, 29 December. Available at:
https://www.7sur7.be/7s7/fr/1502/Belgique/article/detail/579483/2008/12/29/Gaza -manifestation –
spontanee -a-Heusden -Zol der.dhtml (last accessed: 10 March 2014) . 412 Cf. Editorial board (2009) Le bourgmestre de Renaix interdit une manifestation spontanée . 7 sur 7, 16
January. Available at: https://www.7sur7.be/7s7/fr/1502/Belgique/article/detail/620234/2009/01/16/Le –
bourgmestre -de-Renaix -interdit -une -manifestation -spontanee.dhtml (last accessed: 10 March 2014) ;
General Po lice Regulation of the City of Brussels, Chap. III – Public safety and convenience of passage ,
Sect. 1 – Crowds, demonstrations, processions , supra fn. 389 , Art. 31. 413 Manifestation spontanée des chauffeurs de taxi cette nuit à Bruxelles (2010) Video RTL.be. 28 May. 414 Cf. Act of 2 March 1954 to prevent and respond to breaches of the unimpeded exercise of sovereign powers
set out in the Constitution , Art. 3; General Police Regulation of the City of Brussels, Chap. III – Public
safety and convenience of passage , Sect. 1 – Assemblies, demonstrations, processions , supra fn. 389 , Art.
31. 415 New Municipal Act of 24 June 1988, supra fn. 395 , Art. 135, para. 2, n ° 3. 416 CE, 28 September 2012, n° 220.792. 417 Editorial board (2013) Une manifestation « anti mosquée » in terdite à Glain . 7 sur 7, 26 March. Available at:
https://www.7sur7.be/7s7/fr/1502/Belgique/article/detail/1603827/2013/03/26/Une -manifestation -anti –
mosquee -interdite -a-Glain.dhtml (last accessed: 10 March 2014) .

51
6. Implementing the constitutional guarantee and freedom of assembly legislation
Pre -event planning
The police management of events in the area of public order is describe d within a Circular by
the Ministry of Home Affairs, pursuant to which organizers, authorities, and police services,
among others, ensure a safe and easy conduct of the event, with total respect for freedom of
assembly and expression, in compliance with th e ECHR and the Belgian Constitution.
Demonstrations or public entertainment events have to be managed and protected, implying a
balance between the demands, the expectations and the interests of the different actors
participating or involved in the event. 418 The police have to maintain public order through
dialogue, consultation and transparency, and remain discreet and tolerant towards peaceful
gatherings and demonstrations. The police maintain the communication with the organizer
throughout the organization process and the organizer agrees to deploy all possible efforts for
the safe and easy conduct of the event. 419 The organization of a gathering has to follow a non –
discrimination policy. It is punishable to promote any discourse instigating hatred,
segregati on, or violence; discrimination on the access to goods and services; or the belonging
to groups or associations that engage in or defend racial discrimination or segregation. 420
Costs
Organizers of public assemblies are not required to purchase liability in surance, 421 but are
responsible for the good organization of the event and deploy all physical measures to this
end. 422
Use of force by the police
Art. 37 of the Act on the police function foresees that the police can make use of force only
when the protectio n of a legitimate aim would render it necessary. This use of force has to be
exercised reasonably and proportionally to the legitimate aim. It has to be preceded by a
warning. 423 Art. 31 of the same Act states that the police can undertake arrests of people
disturbing public peace and keep them away from the gathering. 424 In 2010, several “No
Border” demonstrations (about the European migration policy) took place in Brussels and
hundreds of individuals were arrested. These arrests were called “preventive arrest s” and,
despite Art. 31 of the mentioned Act, they were conducted before any misbehaviour or
damage had occurred. 425 The police used tear gas, violence, and intimidation measures;
causing security misconduct 426. Following those events, the United Nations Human Rights
Committee published its recommendations to Belgium; the Committee was “particularly
concerned by reports of excessive use of force and preventive arrests during the
418 Circular of 11 May 2011 concerning the negotiat ed management of public space for the two -level structures
integrated police service, para. 3. 419Ibid. , para. 4. 420 https://www.belgium.be/fr/justice/securite/evenements_publics/manifestations/ (last accessed: 10 March
2014) . 421 Ibid. 422 Circular of 11 May 2011 concerning the negotiated management of public space for the two -level structures
integrated police service, supra fn. 418 , para. 4. 423 Act of 5 August 1992 on the police function, Art. 37. 424Ibid. , Art. 31. 425 Entrave au droit de manifester ? (2012) Video. Télébruxelles. 28 November. 426 La Ligue des Droits de l’Homme (2012) Le droit de manifestation mis à mal : Citation contre l’Etat Belge et
la zone de police Bruxelles Capitale -Ixelles , 28 November. Available at:
https://www.liguedh.be/2012/1603 -le-droit -de-manifestation -mis -a-mal -citation -contre -letat -belge -et-la-
zone -de-police -bruxelles -capitale -ixe lles (last accessed: 10 March 2014) .

52
demonstrations that took place from 29 September to 1 October 2010”. 427 Recently, pea ceful
protests of Afghan asylum -seekers deteriorated when the police reacted violently during the
dispersal of demonstrators (use of tear gas and baton -charging). Around 60 persons were
arrested. 428
Liability of organizers
The organizer of an open air gath ering has to contact the municipality where the gathering is
supposed to take place, as the regulations vary from one municipality to another. The
organizer of indoor public assemblies must take necessary measures to prevent disturbances
of residents in th e area; otherwise, it is considered a “lack of precaution”. However, the
organizer is not liable for the actions of individual participants. The organizer can inform
guests that disturbance of public tranquillity is subject to penalization. The organizer m ust
comply with the noise standards prescribed for the location. 429
7. Securing government accountability
Liability and accountability of law enforcement personnel
The State is liable for the damage caused by law enforcement officials in the performance of
their duties. 430 Law enforcement officials are personally liable for the damage caused to the
State, the municipalities, or to third parties when they commit an intentional or a serious
misconduct. 431 According to Arts. 46 and 49 of the Police Service Code of Ethics, 432 the use of
force can never be automatic, since it always requires the judgment of the official or police
officer and must always meet the conditions of legality, proportionality and necessity. Any
violation of these rules may lead to legal and/or disciplinary proceedings in accordance with
the law. In order to ensure that policing is conducted properly, and in particular that the rules
on the use of force and the protection of human rights are respected, the State also has
mechanisms and bodies tha t are independent of the police, known as external monitoring
mechanisms. 433 One of them, the Standing Committee on the Supervision of the Police
427 HRC, 100th Session, Geneva, 11 – 29 October 2010, Consideration of reports submitted by State parties
under article 40 of the Covenant , Draft concluding observations of the Human Rights Committee,
Belgium . 16 Novembe r 2010. CCPR/C/BEL/CO/5, para. 14. Available at:
https://daccess -dds -ny.un.org/doc/UNDOC/GEN/G10/467/12/PDF/G1046712.pdf?OpenElement (last accessed:
10 March 2014) . 428 La manifestation des demandeurs d’asile afghans dégénère (2013) Video. RTL Info. 25 September, 1825 hrs. 429 https://www.belgium.be/fr/justice/securite/evenements_publics/manifestations/ (last accessed: 10 March
2014) . 430 Act of 5 August 1992 on the police function, supra fn. 383 , Art. 47. 431Ibid. , Art. 48. 432 Royal Decree of 10 May 2006 establishing the Police Service Code of Ethics, Art. 46: “In all situations, and
especially those requiring an infringement of the rights and freedoms guaranteed under the Co nstitution,
the members of the operational unit shall ensure in advance that the orders they give and the actions they
perform are based on a legal or regulatory framework and that the methods used in the operation are
proportionate to the aim. They shall neither order nor commit arbitrary acts that may infringe such rights
and freedoms, such as illegal arrests and detentions or violations of the privacy of the home.”; Art. 49:
“Service staff who are authorized to use force or coercion in accordance with th e law shall ensure that:
the objective of the operation is legal; this objective cannot be achieved in a less violent way, such as
through persuasion or dialogue; and the means used are reasonable and proportionate to the aim and
circumstances of the parti cular case. They must thus seek the appropriate methods of intervention
involving the least possible violence, and must apply various distinctions and degrees of force in the
methods used.” 433 HRC, Consideration of reports submitted by State parties under a rticle 40 of the Covenant , Concluding
observations of the Human Rights Committee, Belgium, Addendum, Information received from Belgium
on the implementation of the concluding observations of the HRC (CCPR/C/BEL/CO/5) . 13 November
2012. CCPR/C/BEL/CO/5/Add. 1, para. 11. Available at: https://daccess -dds –

53
Services, received various complaints relating to the 2010 “No Borders” demonstrations. Its
investigation focuse d on the overall handling of the demonstrations, including the measures
taken by the police to prepare for the event, the measures taken by the administrative
authorities, the number of officers assigned to the events and the policing measures used. 434
The i nvestigation was completed in June 2011 and sent along with general and specific
recommendations to the Minister of Home Affairs and the different police services
concerned. 435 A Circular was then issued by the Ministry of Home Affairs 436 providing a frame
of reference for the handling of complaints to satisfy the recommendations 437 put forward by
the Committee 438.
Independent monitoring of public assemblies is not provided for by law, but there are no
restrictions either.
Media access
Independent coverage of publi c assemblies is not regulated by the law, but public assemblies
and open air gatherings are largely covered by the media in Belgium, especially in Brussels,
at both national and European level.
8. Conclusions and outlook
While all types of peaceful assem blies deserve protection, 439 the Belgian constitutional
provision on freedom of assembly distinguishes between public meetings – which can be held
freely – and open air gatherings, which are subject to police regulations and which can be
submitted to differe nt rules, depending on the police regulation of the municipality in which
they are taking place. Moreover, the laws entailing provisions on freedom of assembly do not
always make clear whether “public space” always corresponds to “open air” or also to indo or
locations, and therefore which assemblies exactly are subject to prior authorization. This
might lead to legal uncertainty for the citizens. In addition, all open -air gatherings are subject
to prior authorization from the mayor, and not only to prior no tification, as foreseen by the
2010 Guidelines on Freedom of Peaceful Assembly. 440 Generally speaking and in practice
though, the implementation of freedom of assembly is liberal in Belgium. In Brussels,
demonstrations are massively covered by the media, con sidering the important impact they
have on the European scene.

ny.un.org/doc/UNDOC/GEN/G12/475/93/PDF/G1247593.pdf?OpenElement (last accessed: 10 March
2014) . 434Ibid. , para. 19. 435 HRC, Consideration of reports submitted by State parties under article 40 of the Covenant , Concluding
observations of the Human Rights Committee, Belgium, Addendum, Information received from Belgium
on the implementation of the concluding observatio ns of the HRC (CCPR/C/BEL/CO/5) . 13 November
2012. CCPR/C/BEL/CO/5/Add.1, supra fn. 433 , para. 20. 436 Circular of 29 March 2011 relating to the internal monitoring system in the integrated, two -tier police force.
Moniteur Belge , 21 April 2011. 437 Standing Committee on the Supervision of the Police Services, Annual Report 2010. Available at:
https://www.comitep.be/2010/fr/rapport/2010fr.pdf (last accessed: 10 March 2014) . 438 HRC, Consideration of reports submitted by State parties under article 40 of the Covenant , Concluding
observations of the Human Rights Committee, Belgium, Addendum, Information received from Belgium
on the implementation of the concluding observations of the HRC (CCPR/C/BEL/CO/5) . 13 November
2012. CCPR/C/BEL/CO/5/Add.2, supra fn. 433 , para. 8. 439 Venice Commission Guidelines on Freedom of Peaceful Assembly, para. 1.2. 440Ibid ., para. 118.

54
Germany
by Prof. Dr. Rainer Grote, LL.M.

1. Legal bases
The freedom of assembly is guaranteed in Art. 8 of the Basic Law of the Federal Republic of
Germany. The first paragraph of the provision recognizes in general terms the right of
Germans to assemble peacefully while the second paragraph allows for restrictions to this
right in the case of outdoor assemblies: “(1) All Germans shall have the right to assemble
peacefully and unarmed w ithout prior notification or permission. (2) In the case of outdoor
assemblies, this right may be restricted by or pursuant to a law.” The constitutional guarantee
is implemented by the Federal Act on Assemblies and Processions ( “Gesetz über
Versammlungen und Aufzüge ”)441 of July 24, 1953. The constitutional reform of August 28,
2006, has transferred the power to regulate the exercise of the right of assembly from the
federal government to the Länder . At the time of writing, four of the sixteen federal states had
made use of this new competence. 442
Measures taken by the competent administrative and police authorities on the basis of the
applicable federal and Land legislation concerning assemblies are subject to review by the
courts on the application of indivi duals who allege that their right of assembly has been
violated in a specific case. Since the relevant statutes form part of public law it is primarily up
to the administrative law courts to decide in contentious cases whether the applicable
statutory prov isions have been observed. However, when doing so they must stay within the
normative framework established by constitutional guarantee of freedom of assembly in the
BL, as interpreted by the Federal Constitutional Court (FCC). 443 If the applicant believes t hat
the courts have failed to properly assess the scope and the effect of the constitutional freedom
of assembly on the application of the statutory law in the case at hand, he or she may appeal
to the FCC by way of the constitutional complaints procedure once the ordinary remedies
have been exhausted. The FCC will quash the decision by the specialized court if it arrives
that the conclusion that it is indeed based on a flawed understanding of the scope of the
constitutional guarantee. 444 In special circumsta nces individuals may challenge new statutory
provisions restricting freedom of assembly directly before the FCC, without having to wait for
their application by the administrative authorities in an individual case. 445
2. Scope of the constitutional guarante e
Ratione personae
Art. 8 of the Basic Law grants the freedom of assembly only to Germans. This is at odds with
Art. 11 of the Convention which provides that “everyone” within the jurisdiction of a member
state shall have the right of peaceful assembly. Ho wever, the Convention does not require that
441 All translations of individual provisions of the Assembly Act in the text are provided by the author. 442 State assembly acts have been enacted by Bavaria (Bayerisches Versammlungsgesetz of July 22, 2008, as
amended on April 22, 2010), Lower Saxony (Niedersächsisches Versammlungsgesetz of October 7,
2010), Saxony (Gesetz über Versammlungen und Aufzüge im Freistaat Sachsen of Jan uary 25, 2012) and
Saxony -Anhalt (Gesetz des Landes Sachsen -Anhalt über Versammlungen und Aufzüge of December 3,
2009). 443 Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany,
Volume 2/Part 1: Freedom of S peech, 284 (295) – Brokdorf Demonstration Case . 444 Ibid ., 284 (296) – Brokdorf Demonstration Case . 445 An example is provided by the decision of the Federal Constitutional Court of February 17, 2009, suspending
provisions of the newly adopted Bavarian Assembl ies Act in the interim relief procedure. The Bavarian
Parliament did not wait for the decision of the Constitutional Court on the merits but amended the act on
the basis of the remarks provided by the Constitutional Court in its decision on interim relief.

55
the rights and freedoms guaranteed in the Convention are given constitutional status in the
domestic legal systems of member states. In Germany the European Convention for the
Protection of Human Rights and Funda mental Freedoms has been incorporated in the rank of
an ordinary federal statute. 446 In addition, the relevant federal and Land legislation on
assemblies grants the right to organize public assemblies and to take part in such
manifestations to everybody. 447 Th e right of non -nationals to assemble peacefully is thus
legally protected in Germany. That it does not enjoy explicit 448 constitutional protection does
not raise problems under the Convention. 449
The protection of freedom of assembly is not limited to natural persons. Corporations,
companies, associations with and without legal personality may also organize an assembly
and call upon their members to take part in the manifestation. 450 However, public law entities
like administrative authorities, municipalities et c. may not validly invoke this right which is
primarily directed against interferences by state organs and all other persons and bodies
exercising public authority. 451
Rationae materiae
To enjoy the constitutional protection of freedom of assembly at least two people must come
together for a common purpose. 452 “Coming together” in this context requires the physical
presence of several persons in a specific place at a specific time. By contrast, the coming
together of several people in the virtual world, for example in a chat room in the Internet,
lacks the elem ent of physical presence of a potentially huge number of people in the same
place at the same time that gives collective manifestations a particular weight, but also creates
specific risks which justify a separate constitutional guarantee. 453
The FCC has def ined the necessary purpose of the assembly by reference to the fundamental
significance of the right for the shaping of public opinion and the formation of the political
will in a democratic society. 454 It thus understands the freedom of assembly as the righ t to the
collective exercise of the freedom of opinion. This protection is not limited to events at which
446 BVerfG, Order of 14 October 2004, 2 BvR 1481/04 – Görgülü Case , available at:
www.bundesverfassungsgericht.de/ entscheidungen /rs20041014_2bvr148104en.html (last accessed: 10
March 2014) . 447 § 1 (1) Versammlungsgesetz; Art. 1 (1) Bayerisches Versammlungsgesetz; § 1 (1) Niedersächsisches
Versammlungsgesetz; § 1 (1) Gesetz über Versammlungen und Aufzüge im Freistaat Sachsen; § 1 (1)
Gesetz des Landes Sachsen -Anhalt über Versammlungen und Aufzüge. 448 According to the majority opinion in German constitutional law doctrine, the right of assembly of non –
nationals is protected as forming part of their general right to free development of t heir personality under
Art. 2 para. 1 of the Basic Law; however, this view is contested. In any case the legislator enjoys wider
discrection in limiting freedom of assembly under Art. 2 para. 1 than it would under Art. 8, see J.
Bröhmer, in: Dörr/Grote/Mar auhn (eds.), EMRK/GG, 2 nd edition, 2013, chap. 19 para. 17. 449 However, such limited protection in the case of EU nationals is hardly consistent with European Union law
which prohibits any discrimination on grounds of nationality within the scope of application of the EU
treaties (Art. 18 Treaty on the Functioning of the European Union), see H. Schulze -Fielitz, in: H. Dreier
(ed.), Grundgesetz -Kommentar, vol. I. 3 rd edition 2013, Art. 8 para. 52; Bröhmer, supra fn. 448 ), chap. 19
para. 16. 450 Schulze -Fielitz, supra fn. 449 , Art. 8 para. 57. 451Ibid. . 452 Art. 2 (1) Bayerisches Versammlungsgesetz now contains an express definition of an assembly which is to be
understood as a “gathering of at least two persons for a joint discussion or manifestation that is primarily
intended to contribute to the formation of public opinion.” See also § 2 Niedersächsisches
Versammlungsgesetz; § 1 (3) Sächsisches Versammlungsgesetz. On previous case law and literature
which sometimes required a greater number of people see S. Ott&H. Wächtler&H. Heinold, Gesetz ü ber
Versammlungen und Aufzüge, 7 th edition 2010, § 1 para. 3. 453 Amtsgericht Frankfurt, Multimedia und Recht 2005, 863 (866); Bröhmer, supra fn. 448 , chap. 9 para. 25. 454 BVerfGE (=Entscheidungen des Bundesverfassungsgerichts) vol. 104, 92 (194) – Sit -down Demonstrations
III.

56
there will be arguments and disputes; it includes diverse forms of communal behaviour
extending to non -verbal forms of expression (silent marches, sit -ins etc.). It also applies where
the freedom to meet is claimed for the purpose of expressing opinions in a striking or
sensational way. 455
By contrast the constitutional freedom of assembly does not protect public gatherings whose
primary purpose is mere c rowd entertainment or mass partying. The FCC has qualified events
like the “Love Parade” as music festivals designed to attract huge crowds who wanted nothing
else than to dance and to party to the sounds of electronic (“techno”) music. The fact that on
the occasion of the music festivals the organizers also lobbied for the support of participants
for further events of this kind could not change the character of the event from a party to a
collective exercise of freedom of opinion. 456 The courts have been mor e favourable towards
private concerts organized by skinhead bans as assemblies, arguing that in this case the music
is used to convey political messages and serves as an important instrument for their
dissemination. 457
The qualification of flashmobs and sma rtmobs depends on the purpose of the spontaneous
gathering. Smartmobs are designed to replace traditional forms of protest by modern forms of
social interaction. They have an explicit political purpose and thus fall within the scope of
application of Art. 8 BL. 458 The German labour courts have therefore recognized that a smart
mob organized by trade union representatives may constitute a legitimate form of industrial
action. 459 By contrast, the flashmob is defined as a spontaneous gathering arranged via the
soc ial media for the purpose of celebrating and partying together. It will thus not normally fall
within the narrow concept of assembly adopted by the Federal Constitutional Court. 460
Peaceful character of assembly
The assembly must take place “peacefully and u narmed”. The prohibition to carry arms is the
direct and perhaps the most important consequence of the requirement of peaceful assembly.
However, the prohibition is not absolute. The Federal Act on Assemblies and the
corresponding Land laws allows the part icipants of demonstrations to carry arms following
prior authorization of the competent authorities. 461
The explicit reference to the prohibition on arms which exemplifies the requirement of a
peaceful assembly suggests that the threats resulting for public peace and order resulting from
an assembly must be substantial in order to justify its dispersal. 462 In view of the wide
formulation of the legal proviso in Sect. 2 of Art. 8 of the Basic Law there is no room to
455 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (292) – Brokdorf. 456 Decision of the Bundesverfassungsgericht, 1 BvQ 28/01, paras. 19, 22 available at:
www.b verfg.de/ entscheidungen/ qk20010712_1bvq002801.html (last accessed: 10 March 2014) . The
Federal Administrative Court arrived at a different conclusion with regard to the “Fuck Parade” whose
organizers had prepared banners and leaflets arguing for the need for a less commercialized version of the
Love Parade, see Bundesverwaltungsgericht, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2007, 1431
(1433). The Court held that in ambiguous cases in which the event did not exclusively pursue
entertainment purposes but also included elements designed to influence public opinion it should benefit
from the protection as assembly. 457 Verwaltungsgerichtshof Baden -Württemberg 1 S 349/10 of 12 July 2010, available at www.juris.de (last
accessed: 10 March 2014) . 458 C. Neumann, Die rechtliche Beurteilung moderner Kommunikations – und Interaktionsformen, NVwZ 2011,
1171 (1173). 459 BAGE (=Decisions of the Federal Labour Court) vol. 132, 140. 460 Neumann, supra fn. 458 ), 1173. 461 § 2 (3) Versammlungsgesetz; Art. 6 Bayerisches Versammlungsgesetz; § 3 (1) Niedersächsisches
Versammlungsgesetz; § 2 (3) Gesetz über Versammlungen und Aufzüge im Freistaat Sachsen; § 2 (3)
Gesetz des Landes Sachsen -Anhalt über Versammlungen und Aufzüge. 462 Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany,
Volume 2/Part 2: Freedom of Speech 1958 -1995, 357 (376/ 77) – Mutlangen Demonstration Case.

57
interpret the term “peaceful” extensively, th ereby limiting from the start the scope of
application of the basic right guarantee to such an extent that the legal proviso becomes
largely meaningless. 463 Demonstrations involving a limited measure of physical force
therefore do not automatically lose the protection of Art. 8 Basic Law. The protection of Art.
8 ends (only) at the point where the conduct of the participants is intended not to promote but
to stifle public discourse and to impose their collective views on bystanders and non –
participants by phy sical force. 464
Protected activities
The freedom of assembly protects the right of individual persons to take part in an assembly
and thus to have access to the place where the demonstration takes place. 465 In addition, it
covers all activities related to the preparation of a demonstration, including the public
announcement of the event, and the right to freely determine the object, the place, the time
and the manner of the assembly. 466 Finally the freedom of assembly protects the various
assembly -specific activi ties taking place at the assembly itself, like the pronouncement of
speeches, the distribution of leaflets, the chanting of slogans or songs, the display of posters
etc. 467 On the other hand, the freedom to stay away from a demonstration is also protected. 468
While the freedom of assembly guarantees the holders of the fundamental right inter alia the
right to freely determine the location of the assembly, it does not thereby provide them with
the right of access to any location, including private property. But it is not restricted to public
street space, either. Communication activities take increasingly place in a wide array of
different venues, including shopping centres or other meeting places. The Federal
Constitutional Court has therefore ruled that assemb lies may also be held in places in which a
public enterprise has opened a general public traffic. By contrast, places the access to which is
controlled individually and is only permitted for individual purposes are excluded from such
use. 469
3. Restrictions
All measures which effectively prevent or deter people from participating in an assembly or
make access to such demonstrations exceedingly difficult by setting up road controls or
comprehensive registrations systems for participants constitute interference s with the freedom
of assembly which have to be measured against Art. 8 BL. 470 Similarly, sanctions which the
public authorities impose on participants of an assembly in respect of their role in the
preparation, organization or realization of the manifestati on or procession, whether they take
the form of criminal sanctions or of disciplinary action in the workplace, also interfere with
the unfettered exercise of the freedom of assembly. 471
With regard to restrictions of the freedom of assembly, Art. 8 BL disti nguishes between
outdoor assemblies which may be restricted by or pursuant to a law, and indoor assemblies
463 Decisions of the Bundesverfassungsgericht , supra fn. 462 , 357 (377) – Mutlangen Demonstration Case . 464 BVerf GE 104, 92 (103) – Sit -down Demonstrations III. 465 By contrast the protection afforded by Art. 8 BL ends where at issue is not participation, even critical
participation, but prevention of the assembly see Decisions of the Bundesverfassungsgericht ( fn. 462 ),
535 (539) – Assembly Dispersal Case. 466 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (292); Schulze -Fielitz, supra fn. 449 , Art. 8
para. 33. 467 Schulze -Fielitz, supra fn. 449 , Art. 8 paras. 31, 34. 468 Bröhmer, supra fn. 448 , chap. 19 para. 35. 469 BVerfGE, Judgment of 22 February 2011, 1 BvR 699/06 – Frankfurt Airport Decision , Press release no.
18/2011 of 22 February 2011, sect. III. 2. a), available at:
www.bundesverfassungsgericht.de/pressemitteilungen/bvg11 -018en.html (last accessed: 10 March 2014) . 470 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (296) – Brokdorf Demonstration Case . 471 Bröhmer, supra fn. 448 , chap. 19 para. 34.

58
which are not subject to such restrictions. This does not mean however, that indoor assemblies
may never be prohibited or dispersed. But such assembl ies are subject only to such
restrictions as can be derived directly from the Basic Law, especially those derived from the
need to preserve the life, liberty and property of outsiders and of the peaceful demonstrators
themselves. 472 By contrast Art. 8 BL exp ressly provides for restrictions on outdoor assemblies
by or pursuant to law because of their manifold contacts with the outside world which creates
specific risks which need to be regulated. 473 However, measures restricting the freedom of
assembly must alwa ys take into account its paramount importance in the democratic order.
The legislature may only authorize limitations of the freedom of assembly for the protection
of other legal interests of equal value and in strict observance of the principle of
proport ionality. The establishment of such statutory limits as well as their implementation is
subject to strict judicial scrutiny. 474
4. Implementing the constitutional guarantee: The Federal Assembly Act
In accordance with the constitutional regulation the Feder al Act on Assemblies distinguishes
between indoor assemblies (title II) and outdoor assemblies (title III).
Indoor assemblies
With regard to indoor assemblies , the Act specifies that somebody must be in charge of the
assembly ( Versammlungsleiter ). Normall y this will be the individual or the chairman of the
association organizing the event, although the organizer may delegate the supervisory
functions to another person (§ 7 Act on Assemblies). The most important function of the
person in charge of the assem bly is the maintenance of order during the demonstration (§ 8).
To this end he/she may direct orders to the participants (§ 10) and even exclude persons who
are responsible for grave disturbances from further participation in the assembly (§ 11).
He/she is also the person to which the competent authorities have to address their
communications concerning the assembly (see § 12).
Indoor assemblies may only be prohibited for the reasons specified in § 5 of the Act: if the
organizer of the assembly is a political party or association which has been banned in the
procedure provided for this purpose by the Constitution (Art. 9, 21 BL), a person who has
forfeited his or her right to freedom of assembly under Art. 18 BL, or tries to promote the
objectives of a political party which has been banned under Art. 21 BL; if the organizer
allows persons carrying weapons without the required perm ission to participate in the event;
if there is reason to believe that the organizer or his followers envisage a violent or riotous
development of the demonstration; or if there is reason to believe that the organizer will
express or tolerate views which h ave a criminal offense as their object. For the same reasons,
the police may order the dispersal of an indoor assembly which is already under way.
However, in the latter case the dispersal is only admissible if other, less far -reaching measures
have proved unsuccessful or are likely to be insufficient.
In addition, the police may record videotapes and audiotapes of participants of an assembly if
specific facts suggest that they constitute a substantial threat to public safety or order. The
records have to be destroyed immediately after the end of the demonstration unless they are
472 Schulze -Fielitz, supra fn. 449 , Art. 8 para. 72. 473 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 28 4 (297) – Brokdorf Demonstration Case . 474 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (296) – Brokdorf Demonstration Case .
Outdoor assemblies within the meaning of Article 8 (2) BL must not necessarily take place in open air but
may also be held in closed buildings. What is decisive is that such assemblies take place in a public space,
i.e. surrounded by the general public and not sp atially separated from it, see BVerfGE, Judgment of 22
February 2011, 1 BvR 699/06 – Frankfurt Airport Decision , Press release no. 18/2011 of 22 February
2011, sect. III. 2. a), available at: www.bundesverfassungsgericht.de/pressemitteilungen/bvg11 –
018en.html (last accessed: 10 March 2014) .

59
needed to prosecute criminal offenses committed by participants of the demonstration or to
prevent future offenses by the person concerned (§ 12a).
Outdoor assemblies
Similar provi sions apply to outdoor assemblies (§ 18). Unlike indoor assemblies, however,
outdoor assemblies have to be notified to the competent authority at least 48 hours prior to the
event. The notification must indicate the object of the assembly (§ 14). The notif ication shall
enable the authorities to make up their mind which precautions have to be taken for the event
to run as free from disturbance as possible while preserving the interests of non –
participants. 475 According to § 15 (3) of the Act, a demonstration o r procession may be
dispersed by the competent authority if it has not been duly notified. However, the courts
have ruled that the duty to notify does not apply to spontaneous demonstrations
(Spontanversammlung ) which form without any prior planning or preparation. 476 In relation to
urgent assemblies ( Eilversammlungen ) which are organized at short notice to respond to
current events only a reading of the Assembly Act which requires that notification occurs as
soon as an opportunity arises, without fixed de adline, is compatible with Art. 8 BL. 477
Most importantly an assembly may be prohibited or dispersed only if it constitutes a direct
threat to public safety or order (§ 15 (1), (3) Assembly Act). The concept of “public safety”
includes the protection of cen tral legal interests like life, health, freedom, honour, property
and wealth of the individual as well as maintaining the legal order and the state institutions
intact. “Public order” is to be understood as including the totality of unwritten rules,
obedie nce to which is regarded, according to social and ethical opinions prevailing at the
time, as an indispensable prerequisite for an orderly communal human existence within a
defined area. 478 These measures are subject to strict scrutiny in terms of their prop ortionality.
In particular, bans and dispersals presuppose that the less severe method of imposing
conditions on the organizers designed to remove the threat to public safety emanating from
the assembly has been exhausted. The freedom of assembly must only take second place
when a balancing of interests which takes into consideration the importance of the freedoms
shows that this is necessary for the protection of other legal interests of equal value. It would
therefore be inadmissible to ban demonstrations for considerations of traffic regulations, since
the use of public streets and places by demonstrators can normally be harmonized with the
needs of the participants of the normal traffic by way of conditions ( Auflagen ) within the
meaning of § 15 (1) Assem blies Act. 479 Similarly, the fear that the demonstration may be
disturbed by a violent counterdemonstration does not normally justify its prohibition or
dispersal; the police measures must be directed against the counterdemonstration in the first
place. 480
Th e power of the authorities to intervene is further limited by the fact that bans and dispersals
are only permitted when there is a “direct threat” to public safety or order. A prognosis of the
dangers based on “recognizable circumstances”, i.e. on facts an d other particulars instead of
mere suspicions or assumptions, is necessary in each case. What standards are required in the
individual case has to be determined primarily by the specialist courts. However, the
475 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (297) – Brokdorf Demonstration Case . 476 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (297) – Brokdorf Demonstration Case . 477 BVerfGE vol. 85, 69 (75/76) – Urgent Assemblies Case ; see English summary available at
https://legislationline.org/ documents/action/popup/id/16276 (last accessed: 10 March 2014) . 478 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (298/99) – Brokdorf Demonstration Case. 479 Decisions of the Bundesverfassungsgericht, supra fn. 443 , 284 (299) – Brokdorf Demonstration Case. 480 Only as a means of a last resort, if violence and major damage to the life, liberty and property of peaceful
demonstrators and bystanders cannot be avoided by other means, e.g. the modifica tion of the proposed
meeting place, may the authorities ban a peaceful assembly for fear of a violent counterdemonstration
which they cannot police effectively with the disposable manpower and resources, see Decisions of the
Bundesverfassungsgericht, 443 , 284 (304) – Brokdorf Demonstration Case .

60
Constitutional Court has indicated that espec ially with regard to large demonstrations a
positive assessment by the police may depend on the willingness of the organizers to co –
operate with the police in taking the necessary precautions to ensure a peaceful
demonstration. The police, for its part, sh ould keep a low profile and avoid excessive
reactions (de -escalation strategy). In particular, contact should be made at an early stage, at
which both sides get to know one another, exchange information and possibly find their way
to a co -operation based o n mutual trust. The more the organizers are ready on the occasion of
the notification of a large demonstration to take unilateral confidence -building measures or
even ready for “demonstration -friendly” co -operation, the higher is the threshold for
interven tion by an authority because of danger to public safety and order. 481
Outdoor assemblies and processions in the proximity of the national and state parliaments are
prohibited (§ 16). They may be prohibited in places dedicated to the memory of the victims of
the National Socialist rule of violence and arbitrariness, if the place is of paramount historical
importance and if there is reason to believe that the dignity of the victims will be negatively
affected by the assembly (§ 15 (2)).
The recording of person s taking part in an outdoor assembly by the police on video or
audiotape is admissible in the same conditions as in indoor assemblies (§ 19a).
5. Impact of other laws
General provisions concerning liability, costs etc.
The Act on Assemblies does not cont ain specials provisions on costs and liabilities (of both
the organizers and of the law enforcement personnel). The ordinary provisions of police law,
civil law and criminal law thus apply to liability issues arising in the context of
demonstrations. Howev er, it is generally recognized that the application of these provisions
may not result in a disproportionate burden on the exercise of the freedom of the assembly:
they have to be interpreted in the light of the paramount importance of the constitutional
freedom of assembly for a functioning democracy and may not be used to deter people from
organizing an assembly or participating in it. The liability for damages caused to private or
public property by a demonstration may thus not be extended to participant s who were not
involved in the acts causing the damage. 482 On the other hand, Art. 8 does not per se exclude
the liability of the organizer for the costs resulting from the cleaning up of public streets or
places following a lawful outdoor assembly. 483
The rec ent Assembly Acts of the states (Länder)
Since 2008, several Länder have enacted their own statutes on the exercise of the freedom of
assembly (see above). Among the most salient features of these new laws are the formal
definition of the concept of assem bly in the light of the recent case law of the Federal
Constitutional Court, 484 the incorporation of specific provisions dealing with spontaneous and
instant assemblies 485, and the creation of legal bases for the adoption of restrictive measures
for the protec tion of the dignity of the victims of National Socialist rule. 486
481 Decisions of the Bundesverfassungsgericht, 443 , 284 (302) – Brokdorf Demonstration Case 482 BGHZ (=Decisions of the Federal Supreme Court in civil matters) vol. 89, 383 (395); BGH, Neue Juristische
Wochenschrift 1998, 377 (381). 483 Bundesverwaltungsgeri cht, Neue Juristische Wochenschrift 1989, 52 (52); 53 (54). 484 Art. 1 (2) Bayerisches Versammlungsgesetz; § 2 Niedersächsisches Versammlungsgesetz; § 1 (3) Sächsisches
Versammlungsgesetz. 485 Art. 13 (3), (4) Bayerisches Versammlungsgesetz; § 5 (4), (5) Nied ersächsisches Versammlungsgesetz; § 14
(3), (4) Sächsisches Versammlungsgesetz; § 12 Abs. 1 Landesversammlungsgesetz Sachsen Anhalt. 486 Art. 15 (2) Bayerisches Versammlungsgesetz; § 8 Abs. 4 Niedersächsisches Versammlungsgesetz.

61
While most of these laws remain within the framework established by the FCC and the
federal Assembly Act, the Bavarian Assembly Act contains some novel features, including a
detailed list of t he duties of the persons in charge of the Assembly (Art. 4), an express
prohibition to disturb lawful assemblies from within or without (Art. 8), extended powers of
the police to monitor and record public meetings (Art. 9), and the codification of the duty of
the organizer to co -operate with the competent public authorities in the preparation of the
assembly (Art. 14). The extended duties of the organizers and the wide powers of the police
could conceivably deter people from exercising freedom of assembly. In an important ruling
of February 2009, the FCC suspended by way of interim relief the provisions which allowed
the authorities to impose fines on the organizers in case of violation of their far -reaching
notification and cooperation duties and to film th e entire assembly, including indoor
assemblies, even in the absence of a clear and present danger to public safety or order
(“anlasslose Übersichtsaufnahmen”). 487 The Bavarian legislature swiftly amended the
Assembly Act. The revised provisions allow the pol ice only to film outdoor assemblies where
this is necessary in view of the size of the assembly and the unclear situation on the ground.
The identification of individual persons on the film or picture is only admissible if they
constitute a real danger to public safety or order. The powers to impose fines have been
limited to cases of failure to comply with substantial duties of the organizer.
While the Bavarian case confirms that the FCC will ensure the respect of freedom of
assembly also by the new State laws on assemblies, it also demonstrates the risk of growing
legal uncertainty inherent in the fragmentation of the hitherto unified statutory framework.
The Länder as well as constitutional law experts have therefore established working groups in
order t o prepare a model code on assemblies which may serve as point of reference to the
Länder in the exercise of their new legislative powers. 488
6. Conclusions and outlook
The most important development in Germany concerning the freedom of assembly has been
the transfer of the implementing powers from the federal government to the Länder . While
most Länder have limited to codify the organizational and procedural aspects of the freedom
of assembly in line with the established case law of the Federal Constitutional Court, others
have tried to modify the concept of freedom of assembly itself, in particular by imposing
additional burdens on the organizers in the preparation and management of the assembly
while at the same time granting the police extended powers in th e monitoring and recording
of the event (Bavaria). 489 While the Constitutional Court has indicated clear constitutional
limits to such reforms at the state level, this has not entirely banned the risk of growing
uncertainty through competing legal frameworks for the exercise of this fundamental freedom
in each of the 16 states.
With regard to the substance of freedom of assembly, the development has been characterized
by a high degree of continuity. The reading of the freedom of assembly as a collective
exerc ise of the freedom of opinion, as opposed to crowd gatherings for party and
entertainment purposes, has become firmly entrenched in the case law as well as in the
legislation. The courts have continued the emphasize the procedural and organizational
aspect s of the right in order to strike a balance between the effective exercise of freedom of
assembly on the one hand and the need to manage the risks emanating particularly from
outdoor assemblies on the other. The cooperation between the organizers and the p olice is
487 BVerfG, Order of 17 Febru ary 2009, 1 BvR 2492/08 – Bavarian Assembly Act , Press release no. 17/2009 of
27 February 2009, sects. 1, 3, available at: www.bundesverfassungsgericht.de/pressemitteilungen/bvg09 –
017en.html (last accessed: 10 March 2014) . 488 Schulze -Fielitz, supra fn. 449 , Art. 8 para. 23. 489 Ott&Wächtler&Heinhold, supra fn. 452 speak with regard to the Bavarian case of a „thorough failure“(at
291).

62
seen as a vital tool to educate both the organizers and the authorities and to give maximum
protection to peaceful assemblies. However, as the Bavarian example shows, it can also be
used as a tool to put an excessive burden on the organizers, thus putting at risk the concept of
assembly as a contribution to the formation of public opinion which must stay free of state
regimentation.

63
Turkey
by Elif Askin
1. Introduction
In Turkey, the right to freedom of peaceful assembly continues to be severely restricted. 490
For instance, in 2012, 424 peaceful assemblies were dispersed by police forces. 491 In the same
year, a total of 252 people were sentenced to 1’163 years of imprisonment in 46 cases for
exercising this right. 492
With 61 violations of Art. 11 of th e European Convention on Human Rights found by the
European Court of Human Rights (ECtHR) between 1959 and 2013, Turkey has the highest
number of violations of freedom of peaceful assembly in Europe. 493 130 applications against
Turkey concerning the right to freedom of peaceful assembly are still pending before the
ECtHR. 494 This chapter provides an overview of the national legislation governing the right to
freedom of peaceful assembly in Turkey with special focus on the recent developments in the
summer of 20 13.
Current events: Gezi Park protests
On 30 May 2013 the police broke up a demonstration by a group of environmentalists’ sit -in
at Gezi Park, in Istanbul’s Taksim Square. The protests began as part of a longstanding
campaign against the destruction of t he Gezi Park, one of the last green spaces in central
Istanbul, as part of the redevelopment of the Taksim Square. 495 The subjects of the
demonstrations then broadened beyond the development of Gezi Park into wider anti –
government protests. By the middle of June 2013, 3.5 million people had taken part in almost
5000 “Gezi Park protests” that spanned almost every one of Turkey’s 81 provinces. 496 The
nationwide demonstrations were fanned by the authorities’ aggressive dismissal of the
integrity of those protestin g peacefully in these demonstrations and the crude attempts to deny
them the right to freedom of peaceful assembly. 497
490 The Observatory for the Pro tection of Human Rights Defenders (obs), Turkey Human Rights Defenders,
Guilty until Proven Innocent, International Fact -Finding Mission Report, May 2012, p. 14. 491 Insan Haklari Dernegi (IHD), 2012 Insan Haklari Ihlalleri Bilancosu (Human Rights Associati on in Turkey,
Account of the Human Rights Violations in Turkey in 2012, available at:
https://www.ihd.org.tr/images/pdf/2012/2012bilanco.pdf (last accessed: 5 March 2014); see also The
Ob servatory for the Protection of Human Rights Defenders (obs), Turkey Human Rights Defenders,
Guilty until Proven Innocent, International Fact -Finding Mission Report, May 2012, p. 14. 492 Ibid. 493 ECtHR, Violations by Article and by State, Statistical Informa tion on Turkey, available at:
https://echr.coe.int/Documents/Stats_violation_1959_2013_ENG.pdf (last accessed: 5 February 2014). 494 Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and its
Repression, May -July 2013, II. 6. 495 The plans include the building of a replica 19th century Ottoman barracks and said by the Prime Minister
Recep Tayyip Erd ogan to include the construction of a shopping centre and mosque. Anger was caused
not just by the destruction of the park but also the opaque way in which the decision for the
redevelopment project was taken, which critics described as characteristic not just of urban regeneration
projects but, more generally, of a government unwilling to respect or listen to opposing opinion; Amnesty
International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, October
2013, with a timeline at p. 54 et seq .; Ayata Gökcecicek et. al., Gezi Park Olaylari: Insan Haklari Hukuku
ve Siyasi Söylem Isiginda bir Inceleme, Istanbul Bilgi Üniversitesi Yayinlari, 2013, p. 55. 496 De Bellaguie Christopher, Turkey: Surreal, Menacing…Pompous, The New York Re view of Books, 19
December 2013, available at: https://www.nybooks.com/articles/archives/2013/dec/19/turkey -surreal –
menacing -pompous/?pagi nation=false (last accessed: 5 February 2014). 497 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, p. 6.

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Taksim Square in Istanbul constitutes a traditional gathering point for demonstrations, and
bears an important value for protestors and political organizations. For long periods, the
current Turkish AKP -government banned all politically -motivated assemblies in T aksim. 498
On 31 May 2013, people were prevented from accessing the Taksim area and joined the Gezi
Park protests. 499 After 15 June 2013, access to the Gezi Park was totally blocked, and any
gathering in Taksim square was prevented or immediately dispersed .500 Si nce that time, the
authorities have frequently denied permission for assemblies to go ahead, and police have
cleared them using force, force, especially water cannons and tear gas. 501
Flash mobs
During the Gezi Park protests in June 2013, people gathered spo ntaneously in the Taksim
Square and stood still and motionless for hours. 502 The “Standing Man” protest began when a
Turkish actor performed the “Standing Man” facing the Atatürk Cultural Centre in Taksim.
Shortly thereafter, more than hundred people partici pated in this flash mob informed through
the social media 503 as well as by word of mouth. There were also other flash mobs such as the
“Piano Concert” in Taksim and the “Dance the Tango” in the Gezi Park. In all these cases, the
police dispersed the spontane ous assemblies with gas bombs and detained the persons. The
pianist reported that his piano was being held in custody and a letter of permission from the
security forces was necessary as well as the payment of a 160 Turkish Lira to get it back. 504
2. Legal b ases and scope of the guarantee
The constitutional guarantee
The freedom of peaceful assembly is regulated in Art. 34 (1) of the Constitution of the
Republic of Turkey of 7 November 1982 (hereafter “the Constitution”), which lays down that
498 In the case of DISK and KESK v. Turkey , which concerns the trade unions’ complaint about the police
intervention in the Labour Day celebrations on 1 May 2008 in Istanbul, the police took extensive
measures to deter the demonstration and made declarations that they would use force against the
demonstrators if they insisted on holding the demonstrations in the Taksim Square. To this end, on 1 May
2008, upon the order of the Istanbul Governor, operations of ferries and subways were stopped, the roads
leading to Taksim Square were blocked and extra police were deployed to the area to block th e entrance
to Taksim. The ECtHR takes note that in 1977, during Labour Day Celebrations in the Taksim Square 37
people had died when a clash had broken out. As a result, the Taksim Square became a symbol of that
tragic event, and it is for this reason that the applicants insisted in organising the Labour Day celebrations
in Taksim in commemoration; ECtHR, DISK v. KESK v. TR , judgment of 29 April 2013, App. No
38676/08. 499 All public transportation such as metro, ferries as well as the Galata motorway bridge were interrupted.
People and vehicles were stopped around Taksim by checkpoints of the police. 500 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, 2013,
supra fn. 497 , p. 13 et seq. ; Euro -Mediterranean Human Rights Network, Mission Report on the Protest
Movement in Turkey and its Repression, May -July 2013, supra fn. 494 , III. 1. 501 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, 2013,
supra fn. 497 , p. 14. See also for the recent protests in Istanbul New York Times, Protesters Clash With
Police in Turkey, 27 December 2013, available at:
https://www.nytimes.com/2013/12/28/world/europe/protesters -clash -with -police -in-turkey.html (last
accessed: 5 February 2014): „Thousands of protesters calling for the resignation of Prime Minister R ecep
Tayyip Erdogan of Turkey over a corruption scandal clashed with the police on Friday night as they tried
to reach Taksim Square in central Istanbul, suggesting that the growing political crisis could converge
with street unrest“ (emphasis added). 502 Hu man Rights Watch, The Turkish Protests – Still Standing, 21 June 2013, available at:
https://www.hrw.org/news/2013/06/21/turkish -protests -still -standing (last accessed: 5 February 2014). 503 For example on Twitter, #duranadam. 504 Hürriyet Daily News, Police release ‘detained’ Gezi Park pia no, 18 June 2013, available at:
https://www.hurriyetdailynews.com/police -release -detained -gezi -park -piano –
.aspx?pageID=238&nID=49055&NewsCatID=341 (last accessed 5 February 2014).

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“[e]veryone has the right to hold unarmed and peaceful meetings and demonstration marches
without prior permission.” 505 According to Art. 34 (3) of the Constitution “[t]he formalities,
conditions, and procedures to be applied in the exercise of the right to hold meetings an d
demonstration marches shall be prescribed by law.” 506
Art. 90 of the Constitution provides for the supremacy of international law standards above
domestic law on the subject of rights and freedoms, thus requiring the direct application of
international la w standards on the right to assemble peacefully in Turkey. 507
The Law on Meetings and Demonstrations
Issues related to the right to freedom of peaceful assembly are regulated by the Law on
Meetings and Demonstrations of 6 October 1983 (hereafter “the Law”). 508 Art. 3 of the Law
provides for the right of all persons to hold peaceful assemblies without obtaining prior
permission. 509 The Law defines under its Art. 2 a) meetings: “means that (…) meetings that
are organised in open and closed places in the framework o f this law by real and juridical
persons on specific issues to enlighten people and to create public opinion” and under Art. 2
b) demonstrations: “demonstrations (marches) that are organised in the framework of this law
by real and juridical persons on spe cific issues to enlighten people and create public
opinion.” 510 Art. 10 of the Law requires the organizers of the assemblies to notify the
authorities in detailed terms of the nature of the demonstration and its time and location. 511
According to the Law each assembly requires an organising committee consisting of at least
seven persons (organizers). 512 The right to organize assemblies is granted to persons, who
have full capacity to legal acts and who are at least 18 years of age. 513 An assembly is a
gathering at which at least seven persons participate, excluding the organising committee. 514
The right to organize assemblies is granted to persons, who have full capacity to legal acts
and who are at least 18 years of age. 515
Case -law
According to the case -law of the Su preme Court of Turkey, peaceful meetings and
demonstrations as well as spontaneous assemblies are protected under Art. 34 (1) of the
Constitution. This was confirmed in a landmark decision in 2002, in which the Supreme Court
emphasized that assemblies shou ld be protected and facilitated by the authorities as long as
505 Art. 34 of the Constitution of the Republic of Turkey (Türkiye Cum huriyeti Anayasasi), 7 November 1982 (as
amended to 12 September 2010), Law No. 2709, the official English translation is available at:
https://global.tbmm.gov.tr/docs/constitution_en.pdf (last accessed: 5 March 2014); Art. 26 of the
Constitution guarantees the right to issue “public statements”: “Everyone has the right to express and
disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media,
indivi dually or collectively. This freedom includes the liberty of receiving or imparting information or
ideas without interference by official authorities. This provision shall not preclude subjecting
transmission by radio, television, cinema, or similar means to a system of licensing”. 506 Art. 34 (3) of the Constitution, supra fn. 505 . 507 Ibid., Article 90. 508 Law on Meetings and Demonstrations (Toplanti ve Gösteri Yürüyüsleri Kanunu), 6 October 1983, Law No.
2911, for the official text in Turkish see : https://www.mevzuat.gov.tr/MevzuatMetin/1.5.2911.pdf (last
accessed : 5 March 2014). 509 Art. 3 of the Law on Meetings and Demonstrations, supra fn. 508 . 510 Ibid., Art. 2; Euro -Mediterranean Human Rights Network, Regional Study, The Right to Freedom of
Assembly in the Euro -Mediterranean Region, Part I Legislation Review, 2013, p. 139. 511 Supra fn. 508 , Art. 10. 512 Ibid., Art. 9. Pursuant to Art. 3 (2) of the Law on Meetings and Demonstrations foreigners are restricted from
organising and participating in assemblies and have to be authorized by the Ministry of Interior Affairs. 513 Ibid., Art. 9. 514 Art. 11 of the Law on Meet ings and Demonstrations, supra fn. 508 . 515 Ibid., Art. 9.

66
they are peaceful. 516 However the Turkish courts changed this ruling of the Supreme Court, as
the constitutional protection of freedom of assembly was restricted to cover only assemblies
with a pr ior notification. 517
3. Restrictions
Legitimate grounds for restrictions
The second paragraph of Art. 34 of the Constitution states that “[t]he right to hold meetings
and demonstrations shall be restricted only by law on the grounds of national security, pu blic
order, prevention of committing of crime, protection of public health and public morals or the
rights and freedoms of others.” 518 However, there is no mention of the condition of necessity
and proportionality of such restrictions, leaving the door open to arbitrary interferences. 519
The Constitution also fails to mention the positive obligation of the State to protect peaceful
assemblies established by the ECtHR. 520
In fact, the Law introduces extensive restrictions. The regional governor or district
commiss ioner has the right to ban a specific meeting or postpone it for up to a maximum of
one month for reasons of national security, public order, prevention of crime, public health
and public morals or protection of rights and freedoms of others. 521 Art. 17 of t he Law limits
the restrictive measures to legitimate aims, but the provision does also not foresee
proportionality and leaves therefore a wide margin of discretion to the administrative
authorities. 522
Time restrictions
The timeframe of an assembly set out in Art. 7 of the Law states that meetings should start at
sunrise and should be concluded an hour before sunset in open spaces, and by 11 p.m. in
closed spaces. 523
Place restrictions
Local authorities have large discretionary powers to unilaterally determi ne the location of an
assembly and the organizers have not the right to take part in this determination. 524 The
authorities can also decide on general bans of assemblies in certain places. 525
516 Türkiye Barolar Birligi, Insan Haklari Merkezi, Insan Haklari Raporu (Turkey Bar Associ ation, Human
Rights Centre, Human Rights Report), 2013, p. 468 (with further references to the Turkish case -law). 517 See for example Council of State of Turkey, E. 2000/5980, 27 January 2003; E. 2006/946, 15 September
2008; E. 2006/8821, 21 February 2007. 518 Art. 34 of the Constitution, supra fn. 505 . 519 Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and its
Repression, May -July 2013, II. 1, supra fn. 494 ; but see Art. 13 of the Constitution: „Fundamental rights
and freedoms may be restricted only by la w and in conformity with the reasons mentioned in the relevant
articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary
to the letter and spirit of the Constitution and the requirements of the democratic order of the society and
the secular republic and the principle of proportionality “ ( emphasis added ). 520 Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and its
Repression, May -July 2013, II. 1, supra fn. 494 ; ECtHR, Case of Plattform Ärzte für das Leben v.
Austria , judgment of 21 June 1988, App. No. 10126/82, para. 34. 521 Art. 17 of the Law on Meetings and Dem onstrations; see also Art. 19 which states that the regional governor
may postpone all meetings in one or more districts of a province in the region, for a maximum of one
month for reasons of national security, public order, prevention of crime, public hea lth and public morals
or for the protection of rights and freedom of others. 522 Euro -Mediteranean Human Rights Network, Turkey, November 2013, p. 5. 523 Art. 7 of the Law on Meetings and Demonstrations, supra fn. 508 . 524 Ibid ., see i.e. Art. 6 (2).

67
Specific restrictions for assemblies in public space
Art. 22 of the Law prohibits meetings and demonstrations on public streets, in parks, places of
worship, buildings in which public services are based and in the area surrounding one
kilometre of the Grand National Assembly of Turkey. Demonstrations organized in public
sq uares have to comply with security instructions and not disrupt individuals’ movements or
public transport. 526
Place restrictions concerning Cyprus and the “Green Line”
Regarding the situation in Cyprus, the ECtHR stated in Djavit An v. Turkey 527 that the refusals
by the Turkish Cypriot authorities to allow Djavit An to cross the “green line” into southern
Cyprus and participate in bi -communal medical meetings organized by the UNHCR violated
the right to freedom of peaceful assembly. The ECtHR note d that “all the meetings the
applicant wished to attend were designed to promote dialogue and an exchange of ideas and
opinions between Turkish Cypriots living in the north and Greek Cypriots living in the south,
with the hope of securing peace on the isla nd. The refusals to grant these permits to the
applicant in effect barred his participation in bi -communal meetings, preventing him from
peacefully assembling with people from both communities. (…) As there seemed to be no law
regulating the issuing of per mits to Turkish Cypriots living in northern Cyprus to cross the
“green line” into southern Cyprus to assemble peacefully with Greek Cypriots, the manner in
which restrictions were imposed on the applicant’s exercise of his freedom of assembly was
not “pres cribed by law (…)”. 528
Manner
Art. 23 of the Law lists the circumstances under which a meeting or demonstration will be
regarded as illegal, and includes the absence of notification as well as holding a meeting or a
demonstration outside the times declared i n the notification, possession of weapons or
explosives, sharp objects, stones, sticks, iron or plastic bars, metal ropes or chains that can
cause injuries or be used to strangle, toxic substances that can burn, corrode or injure, or any
other poisonous su bstances or smoke, gas and other similar substances. 529 Anyone shall be
punished with prison if bearing symbols of illegal organizations, uniforms with these
symbols, chanting illegal slogans with amplifiers, carrying illegal posters, signs and
pictures. 530 Re lating to this provision the ECtHR emphasized in Incal v. Turkey that “[t]he
limits of permissible criticism are wider with regard to the government (…). In a democratic
system the actions or omissions of the government must be subject to the close scrut iny (…)
also of public opinion.” 531
Participants of demonstrations are not allowed to cover their faces completely or partially
specially intended to conceal their identity. 532
Illegal meetings and demonstrations are to be cleared following a warning to di sperse, using
force if necessary. 533
525 Euro -Mediteranean Human Rights Network, Turkey, November 2013, supra fn. 522 , p. 5; Akbulut Olgun,
Toplanti ve Örgütlenme Özgürlükleri, in: Inceoglu Sibel, Insan Haklari Avrupa Sözlesmesi ve Anayasa,
Istanbul 2013, p. 389; see also infra public space. 526 Art. 22 of the Law on Meetings and Demonstratio ns, supra fn. 508 . 527 ECtHR, Djavit An v. TR , judgment of 9 July 2003, App. No. 20652/92. 528 Ibid ., para. 1, 61; see also ECtHR, Djavit An v. TR , Pre ss Release, 20 February 2003; see for other Cyprus
cases for example ECtHR, Adali v. TR , judgment of 12 October 2005, App. No. 38187/97. 529 Art. 23 of the Law on Meetings and Demonstrations, supra fn. 508 . 530 Ibid. ; Euro -Mediteranean Human Rights Network, Turkey, November 2013, p. 5, supra fn. 522 . 531 ECtHR, Incal v. TR , judgment of 9 June 1998, App. No. 41/1997/825/1031, para. 54. 532 Art. 23 of the Law on Meetings and Demonstrations, supra fn. 508 . 533 Art. 24 of the Law on Meetings and Demonstrations, supra fn. 508 .

68
Some stop and search powers of the police are also used in relation to demonstrations and
against peaceful protestors. The revised Law on the Duties and Powers of the Police of 14
June 2007 534 gave the police powers to car ry out identity checks, to establish a bank of
fingerprints and photographic identification of individuals, and to carry out preventive
searches of public places. 535 In cases where a delay might prove an obstacle, this power was
granted to the police without the need for judicial authorization. 536 Although in practice some
of the stop and search powers were already extensively used by the police in demonstrations,
this was the first time such provisions had been codified in the law. 537
Restrictions intended to co unter terrorism
Pursuant to Art. 220 of the Turkish Penal Code of 26 September 2004 538 , a person who
commits an offence on behalf of an organized criminal group without being a member of that
organization shall be punished as a member of that organization. 539 The extensive use of Art.
220 of the Turkish Penal Code by courts against participants of demonstrations of Kurdish –
related organizations as well as leftist organizations follows a precedent ruling of the Court of
Cassation (Supreme Court of Appeals) in Ma rch 2008, which indicated that individuals
participating in demonstrations should be also brought into the ambit of the Turkish Penal
Code. 540 In practice, Turkish courts also apply Art. 220 of the Turkish Penal Code to cover
non -violent statements during de monstrations, when they are seen to overlap with any one of
the aims of a terrorist organization. Acts such as requesting mother -tongue education in
Kurdish, or displaying a banner requesting free education have been subject to criminal
proceedings against the protestors. 541
Demonstrators convicted under anti -terrorism laws 542 have typically been sentenced to
between 7 and 15 years in prison. 543 Since the Gezi Park protests, a number of criminal
534 The Law on the Duties and Powers of the Police (Polis Vazife ve Salahiyet Kanunu), 4 July 1934, Law No.
2559, for the official text in Turkish see
https://www.nvi.gov.tr/Files/File/Mevzuat/Nufus_Mevzuati/Kanun/pdf/polis_vazife_selahiyet_kanunu.pdf
(last accessed: 5 February 2014). The revisions entered into law as the Law amending the Law on the
Duties and Powers of the Police (Polis Vazife ve Sal ahiyet Kanununda Deg is iklik Yapılmasına Dair
Kanun), Law No. 5681, approved by the Turkish Parliament on 2 June 2007, and published in the Official
Gazete on 14 June 2007, for the official text in Turkish see
https://www.resmigazete.gov.tr/eskiler/2007/06/20070614 -1.htm (last accessed: 5 February 2014). 535 Human Rights Watch, Closing Ranks against Accountability, Barriers to Tackling Police Violence in Turkey,
p. 24. 536 The provision was included in Art. 1 of the Law amending the Law on Duties and Powers of the Police and
inserted as Article 4 (a) in the Law on the Duties and Powers of the Police; Ibid. , p. 24. 537 See Human Rights Watch, Closing Ranks against Accountability, Barriers to Tackling Police Violence in
Turkey, supra fn. 535 , p. 24. 538 Turkish Penal C ode (Türk Ceza Kanunu), 26 September 2004, Law No. 5237, for the official text in Turkish
see https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5237.pdf (last accessed: 5 February 2014). 539 Art. 2 20 (6) of the Turkish Penal Code; Art. 220 (7) of the Turkish Penal Code which states: “A person who
aids and abets the organization knowingly and willingly, although he or she does not belong to the
hierarchical structure of the organisation, shall be pun ished as though a member of the organisation“;
article 220 (8) of the Turkish Penal Code: “A person who makes propoganda for the organization or its
objectives shall be punished to imprisonment of one to three years. If the crime is committed through
media and press, the sentence will be increased by half“ (emphasis added); see also Article 1 of the Anti –
Terror Law (Terörle Mücadele Kanunu), 12 April 1991, Law No. 3713, the official text in Turkish is
available at: https://www.mevzuat.gov.tr/MevzuatMetin/1.5.3713.pdf (last accessed: 2 February 2014). 540 See CoE, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe,
Following his visit to Turkey from 10 to 14 Octo ber 2011, 10 January 2012, CommDH(2012)2, para. 64
(with further references). 541 Ibid. 542 Art. 314 of the Turkish Penal Code: ”(1) Any person(s) who forms an armed organisation to commit the
offenses listed in the fourth and fifth sections of this chapter [s ection four: crimes against state security;
section five: crimes against the constitutional order and its functioning], and commands this group, is

69
investigations against the participants of the Gezi Park protests h ave been brought under anti –
terrorism laws and related provisions. 544
4. Procedural issues
Notification
Art. 10 of the Law requires the organizers of meetings and demonstrations to notify the
authorities in detailed terms about the nature of the demonstratio n, its time and location. The
organizers must provide the notification to the governor’s office or authorities within at least
48 hours and during working hours, stating the aim of the meeting, date, start and end times as
well as the names, home and if av ailable work addresses of the organizers. 545 Art. 23 lists the
circumstances under which a meeting or demonstration will be regarded as unlawful, and
includes the absence of prior notification. 546 The ECtHR has repeatedly held in cases
involving the breaking u p of demonstrations in Turkey that the absence of prior notification is
not sufficient to impose restrictions on a peaceful assembly. 547 The Court decided in Oya
Ataman v. Turkey that “where demonstrators do not engage in acts of violence it is important
for the public authorities to show a certain degree of tolerance towards peaceful gatherings if
the freedom of assembly guaranteed by Art. 11 of the Convention is not to be deprived of all

punished with imprisonment of 10 to 15 years. (2) Members of the organisation defined in the first
paragraph are sentenced to imprisonment of five to 10 years. (3) Other provisions relating to the offense
of forming an organisation for the purpose of committing crimes are treated [punished] in the same way
as this offense“. 543 In addition to the charge of „member ship in an armed organisation “for „committing a crime on behalf of an
organisation“, the defendant can also faces other charges for being in violation of the Law on Meetings
and Demonstrations. The combination of charges means that a defendant could face 28 years of
imprisonment or more, Human Rights Watch, Protesting as a Terrorist Offense. The Arbitrary Use of
Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey, November 2010, p. 22; in the
context of the prosecution of children Amnesty I nternational stated that „since 2006, thousands of
children in Turkey, some as young as 12, have been prosecuted under anti -terrorism legislation solely for
their alleged participation in demonstrations ” (emphasis added), Amnesty International, All Childre n
Have Rights: End Unfair Prosecutions of Children under Anti -terrorism Legislation in Turkey, June 2010,
EUR 44/011/2010, p. 15. In 2010, after civil society groups campaigned against the prosecution of
children under terrorism laws, the Turkish Parliamen t adopted several amendments to limit the
applicability of such laws to child demonstrators, Human Rights Watch, Protesting as a Terrorist Offense.
The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey, 2010, p. 3. 544 Amn esty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, 2013,
supra fn. 497 , p. 42; European Commission , Turkey 2013 Progress Report, 16 October 2013,
SWD(2013)417final, p. 5; see also the statement of Egemen Bagis, former Minister for EU Negations on
15 June 2013, Hürriyet Egemen Bag ıs 'tan Taksim protestolarıyla ilgili ac ıklama, 16 June 2013, available
at: https://www.hurriyet.com.tr/gundem/23517868.asp (last accessed: 5 February 2014 ): „I am specifically
calling on all our citizens who have been giving support to these protests. They should return to their
homes. Unfortunately, at this stage the state will have to consider every individual there [Taksim] as
members of terrorist organi sations “ (emphasis added). 545 Art. 10 of the Law on Meetings and Demonstrations, supra fn. 508 ; Art. 4 describes the exceptions: Indoor
meetings of political parties, trade unions, foundations, scientific, sportive, trading and economic
activities, national or religious days and wedding ceremonies do not require a notification; see in this
context the judgment of the Council of State of Turkey, E. 200 2/1966, 7 October 2005, in which the court
explicitly emphasized that indoor meetings of political parties do not require a notification. 546 Art. 23 (a) of the Law on Meetings and Demonstrations, supra fn. 508 ; Akbulut Olgun, supra fn. 525 , p. 387. 547 For example ECtHR, Oya Ataman v. TR , judgm ent of 5 December 2006, App. No. 74552/01, para. 42; Izci v.
TR , judgment of 23 July 2013, App. No. 42606/05, para. 39: „The Court considers, in the absence of
notification, the demonstration was unlawful, a fact that the applicant does not contest. Howeve r, it points
out that an unlawful situation does not justify an infringement of freedom of assembly (…)“; see also
Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 11.

70
substance”. 548 The legal provisions concerning the advance notification in Turkey empower
the authorities to refuse to accept a notification and to ban an assembly. In practice, the
notification procedure constitutes a request for permission resulting in an overly onerous and
bureaucratic de facto authorization process of the authorities. 549
Decision -making
According to Art. 18 of the Law, restrictions or ban decisions should be handed to the
organising committee at least 24 hours before the meeting or demonstration. 550
Review and appeal
Restrictions or ban decisions can be appeal ed against before a court. 551 Penal courts of first
instance examine the cases of individuals who have allegedly violated the Law, while
administrative courts examine the practices of authorities when implementing the Law. 552
The Constitution of 1982 did not recognize the right to put forward a complaint of human
rights violations for individuals. However in 2010 a new mechanism was created into the
Turkish legal system by constitutional amendments of 13 May 2010, whereby individual
applications regarding huma n rights violations may be presented to the Constitutional
Court. 553 This Court can be referred to once all other domestic remedies have been exhausted.
Although the introduction of constitutional complaint could be a positive step in the access to
effective remedy, it is worrying that a further domestic step has been added, delaying possible
recourse to the ECtHR. The relatives of Gezi Park victims have already initiated an appeal to
the ECtHR, arguing that the domestic remedies are not effective. 554 The ECtHR however has
already declared an application inadmissible for non -exhaustion of domestic remedies of this
new constitutional mechanism. 555

548 The case of Oya Ataman v. Turkey concerned the dispersal of a demonstration for which prior notice had not
been provided. ECtHR, Oya Ataman v. TR , judgment of 5 December 2006, App No 74552/01, para. 42
(emphasis added); Izci v. TR , judgment of 23 July 2013, App No 42606/05, para. 89; Samüt Karabulut v.
TR, judgment of 27 April 2009, App No 16999/04, para. 35. 549 Türkiye Barolar Birli gi, Insan Haklari Merkezi, Insan Haklari Raporu (Turkey Bar Association, Human
Rights Centre, Human Rights Report), 2013, p. 468; Amnesty International, Gezi Park Protests. Brutal
Denial of the Right to Peaceful Assembly in Turkey, October 2013, EUR 44/022 /2013, supra fn. 497 , p.
11. 550 Art. 18 of the Law on Meetings and Demonstrations. 551 Euro -Mediterranean Human Rights Network, Turkey, November 2013 , supra fn. 522 , p. 6. 552 Ibid., p. 9. 553 Art. 148 of the Constitution reads: “Everyone may apply to the Constitutional Court on the grounds that on e
of the fundamental rights and freedoms within the scope of the European Convention on Human Rights
which are guaranteed by the Constitution has been violated by public authorities. In order to make an
application, ordinary legal remedies must be exhauste d. In the individual application, judicial review shall
not be made on matters required to be taken into account during the process of legal remedies. Procedures
and principles concerning the individual application shall be regulated by law”; the details r elated to
constitutional complaints have been regulated by Law on the Establishment and Rules of Procedure of the
Constitutional Law (Anayasa Mahkemesinin Kurulusu ve Yargilama Usullari Hakkinda Karar), 30 March
2011, Law. No. 6216, available at: https://www.resmigazete.gov.tr/eskiler/2011/04/20110403 -1.htm (last
accessed: 5 March 2014); see also Özbudun Ergun/ Türkmen Füsün, Impact of the ECtHR Rulings on
Turkey`s Democratization: An Evaluation, in: Human Rights Quarterly, 35 (2013), p. 1004 et. seq. 554 Hürriyet Daily News, Relatives of Gezi Park victims appeal to ECHR, 11 October 2013, available at:
https://www.hurriyetdailynews.com/relatives -of-gezi -park -victims -appeal -to-
echr.aspx?pageID=238&nID=56118&NewsCatID=339 (last accessed: 5 March 2014). 555 ECtHR, Uzun v. TR , judgment of 30 April 2013, App. no. 10755/13; ECtHR, Annual Report 2013
(Provisional Version), p. 81, available at:
https://www.echr.coe.int/Documents/Annual_report_2013_prov_ENG.pdf (last accessed: 5 March 2014).

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5. Specific forms of assemblies
Spontaneous assemblies
The current Law does not allow for spontaneous assemblies to ta ke place. 556 On the contrary,
by virtue of Art. 23 (a) of the Law, spontaneous assemblies are illegal and give rise to
sanctions. 557
Assemblies gathered by means of new technologies
Officially established in 2007, the Law on Regulating Broadcasting in the Internet and
Fighting Against Crimes Committed through Internet Broadcasting focuses on banning key
words and blocking access to certain websites. 558 Websites can be blocked by court orders
and administrative decisions made by Turkey’s Internet regulator, th e High Council for
Telecommunications (TIB).
Social media networks have played a major role in the Gezi Park protests. The protestors
made a call through social media for a major gathering at the Gezi Park. 559 The Government
attacked social media companies a nd during the first weekend of the demonstrations websites
are blocked and Facebook and Twitter 560 were nearly impossible to access in Istanbul,
particularly in Taksim Square. 561 A number of citizens were placed in custody for posting
Twitter messages about th e Gezi Park protests. 562
In reaction to the Gezi Park protests and the corruption scandal in December 2013 the Turkish
Parliament passed a new law, which allows the government to block websites without a court
order. 563
Assemblies taking place on private property
The Law contains in Art. 22 general restrictions on places 564 and does not regulate assemblies
that take place on private property. 565
556 Art. 10 of the Law on Meetings and Demonstrations, supra fn. 508 ; Türkiye Barolar Birligi, Insan Haklari
Merkezi, Insan Haklari Raporu (Turkey Bar Association, Human Rights Centre, Human Rights Report),
2013, p. 468. 557 Arts. 23, 32 of the Law on Meetings and Demonstrations, supra fn. 508 .. 558 Law on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet
Broadcasting (İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yaynlar Yoluyla İşlenen
Suçlarla Mücadele Edilmesi Hakkında Kanun), 4 May 2007, Law No. 5651, for the official text in
Turkish see https://www.resmigazete.gov.tr/eskiler/2007/05/20070523 -1.htm (last accessed: 5 February
2014). 559 On the evening of 30 May 2013, more than 10`000 people were at the Gezi Park, Hürriyet Daily News,
Timeline of Gezi Park protests, available at: https://www. hurriyetdailynews.com/timeline -of-gezi -park –
protests -.aspx?pageID=238&nID=48321&NewsCatID=341 (last accessed: 5 February 2014). 560 See for example #OccupyGezi . 561 BBC, Social media plays major role in Turkey protests, 4 June 2013, available at:
https://www.bbc.co.uk/news/world -europe -22772352 (last accessed: 5 February 2014); Prime Minister
Recep Tayyip Erdogan called Twitter a „menace“, BBC, Social media plays major role in Turkey
protests, 4 Ju ne 2013, available at: https://www.bbc.co.uk/news/world -europe -22772352 (last accessed: 5
Febraury 2014); see also CoE, Parliamentary Assembly, Popular protest and challenges to freedom of
asse mbly, media and speech, Resolution 1947 (2013), 27 June 2013, para. 9.5. 562 European Commission, 2013 Turkey Progress Report, p. 52; Amnesty International, Gezi Park Protests.
Brutal Denial of the Right to Peaceful Assembly in Turkey, October 2013, EUR 44/0 22/2013, supra fn.
497 , p. 50: „The majority of those under investigation are being investigated under Penal Code Article
214 (encouraging the com mission of a crime) and Article 217 (encouraging breaking of the law). The
investigations relate to tweets expressing support for the protests and providing information on where
police were intervening against protestors, injuries and medical needs, and wh ich areas were safe to
protest in”. 563 Freedom House, Turkish Parliament Restricts Free Expression Online, 5 February 2014, available
at:https://www.freedomhouse.org/article/turkish -parliament -restricts -free -expression –
online#.UvTQus1bmZI (last accessed: 5 February 2014).

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Counter -demonstrations
According to Arts. 29 and 30 of the Law, it is permitted that third parties intervene in
assemblies. As such, the current law does not allow counter -demonstrations. 566
6. Implementing the guarantee
Use of force by the police
The use of force is regulated by the Law on the Duties and Powers of the Police of 14 June
2007. 567 According to Art. 17 the police can resort to forceful measures if a person or a group
attacks police officers. 568 This provision foresees a gradually increasing level of bodily force,
material force (e.g. tear gas) and, where the legal conditions are in place, arms may be utilized
against illegal demonstrators. 569 The police can use firearms in self -defence, and concerning
the capture of people the police may shoot for warning purposes. If the person ignores the
warning and attempts to escape, firearms may be used in a proportional ex tent to ensure that
he/she is caught. 570 This provision fails to incorporate the international standards that use of
lethal force must be a last resort and only permissible in order to protect life. 571
The order on rapid intervention forces of 30 December 198 2572 establishes procedures for the
dispersal of demonstrators, such as two or three warnings (except in cases of effective attack
and resistance against police officers). 573
Use of tear gas
On 15 February 2008, the Ministry of the Interior issued a directive to law enforcement
personnel on the use of tear gases. 574 It is noted in the directive that, according to Art. 16 (3)
of the Law on the Duties and Powers of the Police, tear gases are listed among the weapons
which law enforcement officials are permitted to use in the execution of their duties. 575
However, the Law on the Duties and Powers of the Police does not set out any specific
564 It could be presumed that the wording in Art. 2 (a) of the Law on Meetings and Demonstrations “meetings
(…) in open and closed places (…)” covers meetings that take place on public and on private property, for
example in private buildings. However the Law on Meetings and Demonstrations provides for a general
and vague definition of an assembly and does not include definitions of individual types of meetings or
demonstrations. See also supra , part public space. 565 Art. 22 of the Law on Meetings and Demonstrations, supra fn. 508 ; Akbulut Olgun, supra fn. 525 , p. 389. 566 Akbulut Olgun, supra fn. 525 , p. 394. 567 The Law on the Duties and Powers of the P olice (Polis Vazife ve Salahiyet Kanunu), 4 July 1934, supra fn.
534 . 568 Art. 16 (1) of the Law on the Duties and Powers of the Police, supra fn. 534 . 569 Ibid., Article 16 (1). 570 Ibid., Article 16 (1) (c). 571 Human Rights Watch, Closing Ranks against Accountability, Barriers to Tackling Police Violence in Turkey,
supra fn. 535 , p. 25. The UN Special R apporteur on extrajudical summary or arbitrary executions has
stated that „[t]hese relatively recently adopted provisions grant the police and security forces vague and
therefore potentially wide powers to use force, beyond those permitted under internatio nal law .
Specifically, article 16 (c) of the Law on the Duties and Powers of the Police appears to legitimize the use
of lethal force against, inter alia, a suspected thief escaping. Although proportionality is mentioned, the
omission of the required objec tive of protecting life and the ambiguity of the “stop warning” result in a
dangerously large power grant. “ (emphasis added), UN Office of the High Commissioner for Human
Rights, Preliminary Observations on official visit to Turkey by Mr. Christof Heyns, U nited Nations
Special Rapporteur on extrajudicial, summary or arbitrary executions, 26 -30 November 2012, para. 2. 572 Order on rapid intervention forces (Polis Cevik Kuvvet Yönetmeligi), 30 December 1982. 573 Ibid ., para. 25. 574 Circular No. 19 (E.G.M. Genelge r:No. 19), 15 February 2008. 575 ECtHR, Izci v. TR, judgment of 23 July 2013, App No 42606/05, para. 32.

73
circumstances regulating its use. 576 The directive of 2008 sets out the circumstances in which
tear gases may be used in open and con fined spaces and stipulates that tear gases may not be
used against persons who have stopped putting up resistance. 577 The ECtHR emphasized in
the case of Abdullah Yasa v. Turkey that the use of tear gas must be exceptional and cannot be
fired from close dis tance. According to the Court’s case -law the law enforcement officers
have to respect the 45° angle by using tear gases and not aim the spray directly at people`s
face. 578 However, this was not the case in the Gezi Park protests.
The authorities’ response to the Gezi Park protests has been characterized by the extreme
level of abusive use of force by law enforcement officials during the protests. 579 From the
starts of the protests the police used without adequate prior warnings water cannons 580 , pepper
spray, tea r gas as well as plastic bullets and live ammunition in a clearly unnecessary and
disproportionate manner, as they were for the most part used to disperse peaceful
protesters. 581 Police trade union representatives admitted intervening without prior
warnings. 582 Police officers and civilians acting in cooperation with the police were also seen
576 Ibid. para. 65: „It thus appears that the only framework regulating the use of tear gas by police officers at the
time of the events was the Law on the Duties and Powers of the Police which allow police officers to use
tear gas. Nevertheless, beyond listing tear gas as one of the weapons which can be used by police officers,
that Law does not set out any specific circumstances in which tear gas may be us ed in accordance with
Turkey’s international obligations .“ (emphasis added); Euro -Mediterranean Human Rights Network,
Mission Report on the Protest Movement in Turkey and its Repression, May -July 2013, II. 3. 577 ECtHR, Izci v. TR, judgment of 23 July 2013, App No 42606/05, supra fn. 575 , para. 32. 578 ECtHR, Abdullah Yasa and Others v. TR , judgment of 16 July 2013, App No 44827/08, paras. 22; 48 -50. 579 The Turkish Medical Association stated that as of 10 July 2013 in the Gezi Park protests more than 8`000
people had been injured, more than 61 were severe injuries such as having lost an eye and having
received serious head injuries. Five people have died, including one police officer. Three of them have
died as a result of the use of force by police. One person was shot in the head by a police officer with live
ammunition and another was beaten to death. The Ministry of the Interior also reported that more than
600 police officers had been injured; for further information with references to the facts Amnesty
International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, October
2013, EUR 44/022/2013, supra fn. 497 , p. 15; UN News Centre, UN rights office calls on Turkish
government to ensure freedom of assembly, 4 June 2013; see also the statement of Prime Minister Recep
Tayyip Erdogan, 15 June 2013, a vailable at: https://www.akparti.org.tr/site/haberler/basbakan -eroganin –
milli -iradeye -saygi -erzurum -mitingi -konusmasini n-tam -metn/46327 (last accessed: 5 February 2014):
„They were still all there. The limits of tolerance have been exceeded. I told my Minister of the Interior:
within 24 hours, you will clean up the Atatürk Cultural Centre. You will clean up the square. You will
clean up the statue. After that, you will clean up Gezi Park. They ask: who gave the order to the police? I
did. I did. Yes. Were we supposed to sit and watch the forces of occupation? Were we supposed to wait
until the whole world would join in and celebrate?“ ( emphasis added ). 580 Pressurized water was used repeatedly and unnecessarily against peaceful demonstrators over a number of
hours, including against demonstrators fleeing from the police and bystanders who were close to the
demonstrations. Wate r cannons have also been recorded targeting people inside buildings such as the
German Hospital (close to Taksim Square) and the Divan Hotel (where doctors were treating injured
demonstrators). The injuries caused by water cannons have been resulted in fal ls and burns to the skin
(first degree). There is strong evidence, that chemical irritants have been added to water used against
demonstrators during the Gezi Park protests; Amnesty International, Gezi Park Protests. Brutal Denial of
the Right to Peaceful Assembly in Turkey, October 2013, EUR 44/022/2013, supra fn. 497 , p. 18 et
seqq. ; Hürriyet Daily News, Substance in water cannons in Gezi Park pro tests harmful and criminal,
experts say, 18 June 2013, available at:
https://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (accessed on 5 February
2014). 581 See UN News Centre, Senior UN officials urge restraint, dialogue to defuse tensions fuelling protests in
Turkey, 18 June 2013, available at:
https://www.un.or g/apps/news//story.asp?NewsID=45200&Cr=Turkey&Cr1=#.UsCHys1bmZI (last
accessed: 5 February 2014). 582 They also explained that the intervention was justified by the presence of known leftist and pro -Kurds
organizations (“marginals“ and “ terrorists“) and a pe rception that the protests were unlawful.

74
beating suspected protestors 583 – these protestors also included professionals carrying out
their duties such as doctors, journalists and lawyers. 584 Force was used not just t o disperse
crowds and in response to individual acts of violence, but also often in a targeted manner
against those clearly fleeing the scene of protest and against small groups of individuals
caught in the vicinity of protests but not taking part of them. 585 Women detained by the police
explained that they had been sexually harassed by the police. 586
In particular, since the beginning of the Gezi Park protests, tear gas had been used against
peaceful protestors. Children were also affected by the tear gas. 587 Police officers were seen
firing tear gas canisters horizontally and directly at people, fired at close range. 588
During and after the Gezi Park protests the Ministry of the Interior issued two directives of 26
June 2013 and 22 July 2013 for use of force by law enforcement authorities against
unauthorized demonstrations. 589 The directives include instructions for the police to warn
demonstrators before firing tear gas, to use water cannons before using tear gas, and to avoid
targeting enclosed spaces, as well a s people not participating in the demonstrations. 590
However the circulars do not mention close -range shooting, which was a major cause for
injuries during the Gezi Park protests. 591
Finally, law enforcement officers enjoy an extraordinary large decision margin for the
forceful dispersal of assemblies in Turkey. 592 The ECtHR reiterated in Izci v. Turkey that a
great number of applications against Turkey concerning the excessive use of force by law
enforcement officials during demonstrations were currently pe nding. Considering the
systemic aspect of the problem, the Court therefore requested the Turkish Government to
adopt general measures, in order to prevent further similar violations in the future. 593
Liability of organizers
Article 23 of the Law regulates th e grounds for sanctions (in general 594 ) and Article 28 of the
Law provides several sanctions for the organizers. 595 The failure to disperse upon request is a
583 Police officers were also observed intervening in demonstrations wearing civilian clothes . During the Gezi
Park protests, serious allegations were also received of police officers hiding their identification. 584 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 16. 585 Ibid., p. 16. See also https://www.youtube.com/watch?v=dEtBM7wCr3E (last accessed: 5 February 2014). 586 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 25 et seq. 587 CNN iReport, Children af fected by tear gas tonight in Taksim Square, 15 June 2013, available at:
https://ireport.cnn.com/docs/DOC -989235 (last accessed: 5 February 2014); CNNiReport, Police attack
divan hotel where children ar e, 15 June 2013, available at: https://ireport.cnn.com/docs/DOC -989050 (last
accessed: 5 February 2014). 588 Human Rights Watch, Turkey: End Incorrect, Unlawful Use of Teargas, Dozens Injured as Police Fi red
Teargas Canisters Directly at Protesters, 17 July 2013, available at:
https://www.hrw.org/news/2013/07/16/turkey -end -incorrect -unlawful -use -teargas (last access ed: 5
February 2014). 589 Circulars of the Ministry of the Interior of Turkey, 26 June 2013 and 22 July 2013. 590 Human Rights Watch, Turkey: End incorrect, Unlawful Use of Teargas, 17 July 2013, supra fn. 588 . 591 Ibid. ; Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and
its Repression, May -July 2013, III. 2, supra fn. 494 . 592 Euro -Mediterranean Human Rights Network, Turkey, November 2013, supra fn. 522 , p. 7. 593 ECtHR, Izci v. TR , judgment of 23 July 2013, App No 42606/05, para. 97 et seq ; Press Release, Izci v.
Turkey, 23. July 2013, ECHR 233 (2013). See also ECtHR, Abdullah Yasa and Other s v. TR , judgment of
16 July 2013, App No 44827/08; DISK and KESK v. TR , judgment of 29 April 2013, App No 38676/08;
Ali Günes v. TR, judgment of 10 April 2012, App No 9829/07; Oya Ataman v. TR , judgment of 5
December 2006, App No 74552/01. 594 Art. 23 of the Law on Meetings and Demonstrations, supra fn. 508 : „a) Holding an assembly without
notification, or holding it before or after the notified date and time; b) Bearing any kind of firearms,
explosives, cutting and perforating tools, stones, sticks, poisons, gas or fog materials, as well as symbols
of illegal organisations, uniforms with these symbols, covering faces to prevent identific ation, chanting

75
criminal offence punishable by imprisonment for a period of between six months to three
years, increas ed by half for the organizers of the protest. 596 Individuals are held responsible
individually, but organizers (as a committee) have a collective responsibility pursuant to Art.
28 of the Law. Organizers face a special liability, for example to pay for clean ing and
security, and criminal responsibility for violence or material damage. 597
Many of those accused of organising the Gezi Park protests are being investigated under anti –
terrorism legislation. 598 According to Amnesty International, it is still unclear ho w many of
those detained and questioned will ultimately stand trial. 599
7. Securing government accountability
Accountability of law enforcement personnel
Law enforcement personnel are theoretically accountable for excessive use of force and
human rights viol ations according to the Art. 94 (1) of the Turkish Penal Code. 600 However,
pursuant to Art. 129 (6) of the Constitution, prior authorization of the administrative authority
is required to initiate investigations of public officials. 601 In practice, police offi cers enjoy a de
facto immunity from prosecution, particularly in the context of demonstrations. 602 Although

illegal slogans, carrying illegal posters, pictures etc.; c) Holding an assembly outside of the timing
restrictions foreseen in article 7 or d) Outside the places mentioned in articles 6 and 10; e)
Noncompliance to the methods and condition s mentioned in Article 20 and to the prohibitions and
measures mentioned in article 22; f) Transgressing ist own aims, rules and limits defining meetings that
are not required authorisation according to Article 4; g) Gatherings aiming at committing a crime defined
by law; h) Transgressing the aim mentioned in the notification; i) Holding an assembly before the end of
the postponing or banning period; j) Maintaining the Assembly after the government`s commissariat
finalized it; k) The meetings that do not co mply with the paragraph 2 of article 3 (about foreigners) will
be considered as illegal“. 595 Such as 18 months to 3 years of imprisonment for those organize and lead illegal meetings, up to 12 months
of imprisonment for who do not conform to specific requir ements yet organize meetings and for the
members of the organising committee who do not have the necessary conditions such as the juridical
capacity, 6 months to 2 years of imprisonment for the members of the organising committee who were not
present durin g the meeting and who fail to perform their duties and 2 to 5 years of imprisonment who
uses violence against law -enforcement officials. 596 Art. 32 of the Law on Meetings and Demonstrations, supra fn. 508 . 597 Euro -Mediterranean Human Rights Network, Turkey, p. 8. 598 See the statement of the Ruling and Development Party (AKP) deputy chair and former Minister of Justice
Mehmet Ali Sahin, 31 July 2013, a vailable at:
https://www.radikal.com.tr/turkiye/mehmet_ali_sahin_gezi_eylemleri_muebbetlik_suc_kapsaminda –
1144298 (last accessed: 5 February 2014): “I believe those who have started these protests and are giving
them direction/leading them are aiming to overthrow the government and remove it from office . But the
security services and the cautious approach by the government have prevented those harbouring this aim
from achieving it. I don’t believe they will attempt to engage in such action anymore ” (emphasis added). 599 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 42. 600 Art. 94 (1) of the Turkish Penal Code: „Any public officer who causes severe bodily or mental pain, or loss of
conscious or ability to act, or dishonors a person, is sentenced to imprisonment from three years to twelve
years“. 601 Art. 129 of the Constitution: „Prosecution of public servant s and other public officials for alleged offences
shall be subject, except in cases prescribed by law, to the permission of the administrative authority
designated by law.“ The Law on the Trial of Officers and Other Public Officials reiterates this
authori zation system, Memurlar ve diger kanun görevlilerinin yargilanmasi hakkinda kanun (Law on the
Trial of Officers and Other Public Officials), 2 December 1999, Law no. 4483, for the official text in
Turkish see : https://mevzuat.meb.gov.tr/html/38.html (last accessed: 5 February 2014). 602Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 35; Human Rights Committee, Concluding
observations on the initial report of Turkey adopted by the Committee at ist 106th session, 13 November
2013, CCPR/C/TUR/CO/1, par a. 14: „The Committee is concerned that despite progress made, the
number of allegations of torture and other inhuman and degrading treatment at the hands of law

76
recent reforms in the Turkish Code of Criminal Procedure were introduced, the findings of the
ECtHR confirm the structural nature of the problem of im punity in Turkey against members
of security forces. 603 By the end of August 2013, prosecutors had only responded to two
complaints in the context of the Gezi Park protests and a number of investigations had been
closed without examination of the cases. 604
Mon itoring
In Turkey civil society organizations reported that they faced fines, closure proceedings and
administrative obstacles on the basis of a Ministry of Interior circular of November 2012,
which provides a legal basis for visual and voice recording of activities by the police where
there is a threat to public order or evidence of a crime. 605 As illustrated during the Gezi Park
protests NGOs were fined for disobeying orders under the Law on Misdemeanours and
reported that they were prevented by the authori ties from holding demonstrations and issuing
press statements. Many court cases were launched against human rights defenders and civil
society representatives in cases relating to freedom of peaceful assembly. In June 2013, anti –
terror police raided multip le addresses, detaining dozens as part of an investigation into the
Gezi Park protests. A high number of human rights defenders also faced prosecution and legal
proceedings on charges of making propaganda for terrorism during demonstrations and
meetings an d following their attendance at press conferences. 606
The newly created Ombudsman in November 2012 received 23 complaints relating to the
Gezi Park protests, which were found eligible, without requiring prior exhaustion of
administrative remedies. 607
Media ac cess
The mainstream national media conveyed little of the Gezi Park protests. 608 Journalists
reported serious difficulties in disseminating information on the events. Journalists’ unions
and associations announced that they were exposed to police violence, d etained and thus
prevented from doing their job. There were also some censorship policies followed by some
media agencies. 609 As a result of the reporting of the Gezi Park protests, journalists were fired
or had to resign. 610

enforcement officers is still high. The Committee is also concerned that a genuinely independe nt
complaints mechanism to deal with cases of alleged torture or ill -treatment by public officials is absent,
that the number of prosecutions of such cases remains low“. 603 Özbudun Ergun/ Türkmen Füsün, Impact of the ECtHR Rulings on Turkey`s Democratizati on: An
Evaluation, in: Human Rights Quarterly, 35 (2013), p. 1006. 604 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, supra fn. 497 , p. 35. 605 European Commission, Turkey 2013 Progress Report, 16 October 2013, SWD(2013)417final, p. 11. 606 Ibid. 607 See for further information on the Ombudsman https://www.ombudsman.gen.tr/ (last accessed: 5 February
2014); European Commission, Turkey 2013 Progress Report, 16 October 2013, SWD(2013)417final, p.
10. 608 CNN Tu rk’s decision to air a pre -scheduled two -hour documentary on penguins during the first weekend of
mass protest across Turkey became a symbol in the eyes of many protestors and the wider public for self –
censorship in the national media in general, Al -Monitor, S hameful Examples of Press Censorship Emerge
in Turkey, 3 July 2013, available at: https://www.al -monitor.com/pulse/originals/2013/07/turkish -press –
censored.html# (last accessed: 5 February 2014). 609 Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and its
Repression, May -July 2013, III. 2, supra fn. 494 . 610 The Independent, Turkish journalists fired over coverage of Gezi Park protests, 23 July 2013, available at:
https://www.independent.co.uk/news/world/europe/turkish -journalists -fired -over -coverage -of-gezi -park –
protests -8727133.html (last accessed: 5 February 2014).

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8. Conclusions and outlook
As sta ted by the Commissioner for Human Rights of the Council of Europe, Nils Muižnieks,
the peaceful Gezi Park protests in 2013 were met with fierce repression by police forces and
numerous judicial and administrative investigations against peaceful protestors. 611 These
events have shed light on the authoritarian ways of Turkish authorities, their disproportionate
use of excessive force against peaceful demonstrators and their use of the judiciary as a means
of retaliation against criticism, which may have a profo und chilling effect on those who want
to legitimately exercise their right to freedom of peaceful assembly in Turkey. 612 Moreover, it
must be noted that there is a tendency to authorize use of force by police when a protest is
deemed illegal even when the pr otest is peaceful. The alleged violations of human rights in
the context of the Gezi Park protests as well as in meetings and demonstrations organized by
Kurdish activists, students, unionists, human rights and left -wings groups underline the need
for far -reaching reforms in order to ensure respect for freedom of peaceful assembly in line
with European standards. Several important aspects of the right are lacking, such as the
positive obligation of the State to protect peaceful assemblies and the proportion ality principle
established by the ECtHR. The reforms should therefore cover primarily a substantial review
of the Law on Meetings and Demonstrations and its implementation and ensuring that anti –
terrorism laws are not used to prosecute people participatin g in demonstrations. In a more
general manner, the ECtHR stated in Izci v. Turkey that “in order to ensure full respect for the
rights guaranteed in Arts. 3 and 11 of the Convention, the Court considers it crucial that a
clearer set of rules be adopted con cerning the implementation of the directive regulating the
use of tear gas, and a system be in place that guarantees adequate training of law enforcement
personnel and control and supervision of that personnel during demonstrations, as well as an
effective ex post facto review of the necessity, proportionality and reasonableness of any use
of force, especially against people who do not put up violent resistance.” 613
611 See Council of Europe, Press release, CommDH018(2013), 8 July 2013. 612 Euro -Mediteranean Human Rights Network, Turkey, November 2013, supra fn. 522 , p.2. 613 ECtHR, Izci v. TR , judgment of 23 July 2013, App. No. 42606/0 5, para. 99.

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Russia
by Evgeniya Yushkova

1. Legal bases
Constitutional guarantee
In the Russian Federation freedom of assembly is guaranteed by Art. 31 of the Constitution of
12 December 1993. It stipulates that “citizens of the Russian Federation shall have the right to
assemble peacefully, without weapons, hold rallies, meetings and demonstrations, marches
and pickets”. 614
Primary legislation
On 19 June 2004 the Federal Law No.54 -FZ “On Assemblies, Meetings, Demonstrations,
Marches and Picketing” (in the following Assembly Law) was adopted which currently
presents the central primary legislation on the procedure of preparation and conduct of
assemblies and the status of the involved parties. On 8 June 2012, the Assembly Law and the
corresponding provisions of the Code of Administrative Offences were amended by Federal
Law No.65 -FZ excluding several g roups of persons from the possibility to be an organizer of
an assembly; introducing specially designated sites for assemblies, civil liability of the
organizer, mass simultaneous presence/movement as administrative offence and raising the
fines of adminis trative offences. The June 2012 amendments prompted wide criticism. 615
The Assembly Law applies to “public events” defined in Art. 2 No.1 as “open, peaceful action
accessible to everyone that is implemented as an assembly, meeting, demonstration, march or
picketing or by using various combinations of those forms that is undertaken at the initiative
of citizens of the Russian Federation, political parties, other public or religious
associations”. 616 The definition moreover requires an objective of the event “to exercise the
free expression and shaping of opinions and to put forward demands concerning various
issues of political, economic, social and cultural life of the country and also issues of foreign
policy”.
In Art. 2 the Assembly Law determines three stat ic (assembly, meeting, picket) and two
moving (demonstration, march) forms of public events.
An assembly is a gathering of citizens in a place especially allocated or adjusted for the
purpose to collectively discuss socially important questions (Art. 2 No .2) whereas a meeting
is a mass gathering of citizens at a certain place to publicly express a common view regarding
614 English version of the Russian Constitution, https://www.constitution.ru/en/10003000 -01.htm (last accessed:
10 March 2014) . 615 See e.g. European Commission for Democracy through La w (Venice Commission), Opinion on Federal Law
No.65 -FZ of 8 June 2012 of the Russian Federation, CDL -AD(2013)003 (11 March 2013); Amnesty
International, Freedom under Threat – Clampdown on Freedoms of Expression, Assembly and
Association in Russia (April 2 013), AI Index: EUR 46/011/2013, p.8 -12;
https://www.amnesty.org/en/library/asset/EUR46/011/2013/en/d9fb0335 -c588 -4ff9 -b719 –
5ee1e75e8ff5/eur460112013en.pdf (last accessed: 10 March 2014) ; Human Rights Watch, Laws of
Attrition – Crackdown on Russia’s Civil Society after Putin’s Return to the Presidency (April 2013),
p.46 -53, https://www.hrw.org/by -issue/publications/209?date_filter[value]2024=2013 (last accessed: 10
March 2014) . 616 The study refers to the translation provided by t he Venice Commission: Venice Commission, Federal Law on
Assemblies, Meetings, Demonstrations, Marches and Picketing No.54 -FZ of 19 June 2004 of the Russian
Federation as amended by Federal Law No.65 -FZ of 8 June 2012, CDL -REF(2012)029 (7 August 2012).
For the Russian original see https://letters.kremlin.ru/acts/23 (last accessed: 10 March 2014) .

79
current problems mostly of social or political character (Art. 2 No.3). A picket is a form of
public expression of opinion without using so und -amplifying devices by stationing one or
more citizens carrying placards, streamers and other aids of visual campaigning outside an
object being picketed (Art. 2 No.6).
A demonstration is an organized public manifestation of a common sentiment of a grou p of
citizens using placards, streamers and other aids of visual campaigning while they move (Art.
2 No.4). A march is a mass passage of citizens along a route specified beforehand with the
aim of attracting attention to certain problems (Art. 2 No.5).
Any public event without the required objective falls outside the scope of the Assembly Law
and can qualify as a mass simultaneous presence and/or movement which can constitute an
administrative offence under Art. 20.2.2 (1) of the Code of Administrative Offe nces
introduced by the June 2012 amendment. 617
Secondary legislation
In accordance with Art. 1 (1) of the Assembly Law the President, the Government and the
State power bodies of the Subjects of the Russian Federation 618 have the authority to pass
regulatory l egal acts concerning the conditions for holding a public event in cases where the
Assembly Law envisages it. This mostly concerns restrictions regarding the place (Art. 8 of
the Assembly Law). The Subjects shall determine specially designated sites for pub lic events
and regulate the procedure for their use, the norms for their maximum capacity and the
maximum number of people participating in a public event without a notification (para.1.1).
They can prohibit assemblies at certain sites in order to safeguar d human rights and freedoms,
preserve lawfulness and public safety (para.2.2), regulate the procedure for holding a public
event at a site of public transport infrastructure (para.3.1); the executive power bodies of a
Subject can regulate the procedure for holding a public event at a cultural site (para.3). The
President determines the procedure of the holding of a public event at the Moscow Kremlin,
the Red Square and the Alexander Garden (para.4). The Subjects define the minimal distance
between picketers (Art. 7 (1.1)) and the procedure for submitting a notice of holding the
public event (Art. 7 (2)). The Government of the Russian Federation or the Subjects can pass
legislation concerning the material and technical support of an assembly (Art. 11 (1)).
2. Scope of the guarantee
Case -law
The Constitutional Court considers freedom of peaceful assembly as „one of the basic and
inalienable elements of the legal status of a person in the Russian Federation as a democratic
law -governed State“. 619 It is of fundam ental value to the ideological and political diversity and
multi -party system ensuring a real possibility for the citizens to influence the activity of
bodies of public authority. 620 In the view of the Constitutional Court freedom of assembly
should create a peaceful dialogue between the civil society and the State allowing for protest
and criticism of singular actions and decisions or policy as a whole. 621
617 Venice Commission, Opinion on Federal Law No.65 -FZ, CDL -AD(2013)003 (11 March 2013), para.56. 618 According to Ar t. 5 (1) of the Constitution Russia consists of republics, territories, regions, cities of federal
importance, autonomous regions and autonomous areas which are commonly referred to as Subjects of
the Russian Federation. 619 Constitutional Court of the Russi an Federation, Judgment of 14 February 2013 No.4 -П, p.13
(Постановление Конституционного Суда от 14 февраля 2013 года № 4 -П), the English translation
provided by the Court, https://www .ksrf.ru/en/Decision/Judgments/Pages/2013.aspx (last accessed: 10
March 2014) ; Judgment of 18 May 2012 No.12 -П, p.5. 620 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p.13. 621 Ibid.

80
However, the right to assemble peacefully is „not absolute and may be restricted by federal
law with the aim to protect constitutionally significant values with obligatory observance of
the principles of necessity, proportionality and commensurateness, so that the restrictions
introduced by it do not encroach upon the very essence of this constitutional right “.622 In light
of the preamble of the Russian Constitution, which proclaims the goal of securing civil peace
and accord, and the very nature of public events, which can breach rights and lawful interests
of a broad circle of persons, restrictions respecting the requirements of Arts. 17 (3) 623 , 19
(1) 624 , (2) 625 and 55 (3) 626 of the Constitution may be established. 627 The Court evaluates this
approach as in conformity with Art. 20 (1) of the Universal Declaration of Human Rights,
Art. 21 of the International Covenant on Civil and Political Rights and Art. 11 of the
European Convention on Human Rights. It refers to the jurisprudence of the European Court
of Human Rights substantiating the state’s obligation to protect freedom of peaceful
assembly, to ensure effective real ization and to refrain from excessive control. 628
The Constitutional Court affirms that in accordance with the Constitution the federal
legislator enjoys broad discretion for the regulation of the realization of freedom of assembly
and of the corresponding responsibility. 629 In the view of the Court the executive authorities
are not allowed to prohibit/allow a public event. 630 They have the power to suggest changes to
the place and time if the changes are necessary to uphold the functioning of vital objects of
the municipal or transport infrastructure, of law and order, of the security of citizens or other
similar reasons. 631 The Court holds that including a catalogue of such grounds in the
Assembly Law would unduly restrict the discretion of the authorities. 632
Expe riences with flashmobs
Many flashmobs (dancing, pillow/snowball fights etc.) were staged in Russia so far. After
June 2012 amendments arrests and detentions of participants were reported during actions
which have been already taking place for several years without police interference. 633 During
a pillow fight in St. Petersburg staged by students several people were detained and three of
them were sentenced to administrative fines of 10.000 -15.000 roubles (approximately 222 –
333 Euro) by a St. Petersburg Justic e of the Peace. The fines were legally based on Article
20.2.2 (1) of the Code of Administrative Offences as the judge found that the students
622 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p.16; Judgment of 18
May 2012 No.12 -П, p.7. 623 Stating „the exercise of the rights and freedoms of man and citizen shall not violate the rights and freedoms of
other people“. 624 Stating „all people shall be equal before the law and court“. 625 Stating „the State shall guarantee the equality of rights and freedoms of man and citizen, regardless of sex,
race, nationality, language, origin, property and official status, place of resid ence, religion, convictions,
membership of public associations, and also of other circumstances. All forms of limitations of human
rights on social, racial, national, linguistic or religious grounds shall be banned“. 626 Stating „the rights and freedoms of m an and citizen may be limited by the federal law only to such an extent
to which it is necessary for the protection of the fundamental principles of the constitutional system,
morality, health, the rights and lawful interests of other people, for ensuring defence of the country and
security of the State.“ 627 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p.14; Judgment of 18
May 2012 No.12 -П, p.5; Decision of 2 April 2009 No.484 -O-П, pp.2 -3. 628 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, pp.15 -16. 629 Constitutional Court of the Russian Federation, Decision of 24 October 2013 No.1618 -O, pp.2 -3, Decision of
4 April 2013 No.485 -O, p.3. 630 Constitutional Court of the Russian Federation, D ecision of 2 April 2009 No.484 -O-П, p.5. 631 Ibid. 632 Ibid. 633 Сf. Amnesty International, Freedom under Threat, AI Index: EUR 46/011/2013, p.25.

81
participated in a mass simultaneous presence resulting in a breach of health standards due to
arising of dust and loose feathers. 634
3. Restrictions
Legitimate grounds for restrictions
Art. 55 (3) of the Constitution provides that “rights and freedoms of man and citizen may be
limited by the federal law only to such an extent to which it is necessary for the protecti on of
the fundamental principles of the constitutional system, morality, health, the rights and lawful
interests of other people, for ensuring defence of the country and security of the State”. The
Constitutional Court laid down that if the organizers or p articipants behave destructively the
State is discharged of the duty of protection and must use all lawful means for non -admission
or interruption of such manifests. 635
The Assembly Law provides for three far reaching restrictions: refusal to agree on the holding
of the public event, suspension and termination of the public event.
Refusal to agree
Under Art. 12 (3) of the Assembly Law the executive authorities of a subje ct or the local
authorities may refuse to agree on the holding of a public event only in cases in which the
notice is submitted by an individual who is not entitled to be an organizer, or if the notice
states that the public event is to be held at a site o n which the holding is prohibited by federal
law or the law of the subject.
Persons which are not entitled to be an organizer of a public event are legally (limited)
incapable individuals by declaration of a court, persons kept in detention under a court verdict
or banned political parties, public and religious organizations (Art. 5 (2.1) and (2.2)).
The newly inserted Art. 5 (2.1.1) adds that persons “with an unsquashed or outstanding
conviction for the committing of a premeditated crime against the funda ments of the
constitutional order and security of the State or a crime against public safety and public order
or having been prosecuted under administrative law twice or more for administrative offences
(…) during a period when that person is subject to ad ministrative punishment” are not entitled
to be an organizer of a public event.
Art. 12 (3) in conjunction with Art. 5 (2.1.1) excludes whole categories of people from the
right to organize assemblies for breaches of not only criminal but also administrat ive norms
without any differentiation in respect of the gravity of the breach. 636
The Constitutional Court upheld the amendment arguing that the norm does not encroach the
very essence of the right to peaceful assembly. 637 In the view of the Court the legisla tor
rightly dealt with the issue that the persons envisaged by Art. 5 (2.1.1) have the ability to
organize a peaceful assembly in case of doubt 638 and observed the principle of proportionality
by requiring two or more instances of administrative offences dur ing one year from the day of
the termination of execution whereas only one criminal charge is required. 639
As for the second alternative of the refusal of a public event it constitutes an absolute ban on
assemblies on certain sites without regard to legitim ate reasons of a certain case, thus limiting
the autonomy of the organizer.
634 Газета.ru, Пух и перья на тысячи рублей (Fuzz and Feathers for thousands roubles),
https://www.gazeta.ru/politics/2012/09/07_a_4758821.shtml (last accessed: 10 March 2014) . 635 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p. 16. 636 Venice Commission, Opinion on Federal Law No.65 -FZ, CDL -AD(2013)003, paras. 17 -18. 637 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p. 20. 638 Ibid ., p. 18. 639 Ibid ., pp. 21 -22.

82
Suspension and termination
An authorized representative of the executive authority has the right to suspend a public event
if a violation of law and order not entailing a threat to life and health has occurred through the
fault of the participants and was not amended by the organizer or jointly with the authorized
representative of the internal affairs body upon his demand until the violation is remedied
(Art. 15 (2) in conjunction with Art. 15 (1)). If the violation is not rectified in the affixed time
the authorized representative of the executive authority terminates the public event.
Further grounds for the termination of a public event is the creation of a real threat to life an d
health of citizens and to property of individuals and legal persons (Art. 16 No.1); perpetration
by participants of illegal actions and deliberate violation by the organizer of the provisions of
the Assembly Law concerning the procedure for holding the p ublic event (Art. 16 No.2) and
failure of the organizer to fulfil his obligations provided for in Art. 5 (4) of the Assembly Law
(Art.16 No.3).
Art. 5 (4) of the Assembly Law contains a catalogue of obligations including the submission
of a notification, compliance with the conditions of the holding of the event as specified in the
notice or in the rules of procedure as agreed with the authorities and compliance with the
norm of maximum holding capacity of the premises at the place of holding of the public
event. The organizer further has a broad variety of obligations pertaining to participants’
conduct which he will normally neither have the capacity nor the competence to enforce. Any
violation no matter how grave it might be can serve as a ground for ter mination.
The public event can also be terminated in case of commission of extremist acts during the
conduct (Art. 16 of the Federal Law No.114 -FZ “On Countering Extremism” of 25 July
2002).
Time, Place and Manner Restrictions
Place
In principle a public event can be held at any venue suitable for holding the event if the
conduct does not create a threat of collapse of buildings or structures or other threats to safety
of the participants (Art. 8 (1) of the Assembly Law).
The June 2012 amendments brought a major novelty of “specially designated places” which
shall be determined by the executive authorities of the subjects (Art. 8 (1.1) of the Assembly
Law). These shall be common sites specially designated or adapted for collective discussion
of publicly si gnificant questions and the expression of public sentiment and for mass
gatherings, thus places for the holding of assemblies and meetings. After the specially
designated places are determined as a rule public events shall be held there (Art. 8 (2.1) of th e
Assembly Law). Public events at other sites are permitted only after agreement with the
executive authorities of the Subject or the local authorities.
The Constitutional Court approved the possibility to determine and regulate such sites per se
since it facilitates the conduct of a public event for all involved parties. 640 Nonetheless, the
Court proclaimed the norm unconstitutional as it did not provide clear criteria for the
executive authorities which would guarantee equal legal conditions in all Subjects .641 The
norm shall remain in force until it is revised by the federal legislator in so far as the Subjects
are required to provide special sites as a minimum in every city circuit and municipal
district. 642 The changes brought to the State Duma so far foresee that such places shall be
provided in every settlement, city circuit and municipal region. 643
640 Constitutional Court of the Russian Fede ration, Judgment of 14 February 2013 No.4 -П, pp. 44 -47. 641 Ibid ., pp. 47 -48. 642 Ibid ., p.48. New amendments incorporating the judgment of the Constitutional Court have been introduced in
the State Duma on 13 December 2013 but were not adopted yet. See on the progress of the legislative

83
Art. 8 (2) of the Assembly Law prohibits public events at territories directly adjacent to
hazardous production facilities and to other projects the operation of w hich requires
compliance with special labour safety rules; at territories directly adjacent to residencies of
the President, at courts, at territories and buildings of agencies executing criminal penalties
and at the border zone. 644
Time
Public events may n ot commence earlier than 7 a.m. and end later than 22 p.m. with the
exception of public events devoted to commemorative dates of Russia or public events with
cultural content (Art. 9 of the Assembly Law). The provision constitutes a problematic
blanket res triction excluding any possibility of a multi -day event. 645
Manner
The organizer has the right to use sound -amplifying technical devices during assemblies,
demonstrations and marches (Art. 5 (3) No. 5 of the Assembly Law).
Art. 29 of the Constitution prohi bits propaganda or agitation instigating social, racial, national
or religious hatred. This provision is specified by the Federal Law No.114 -FZ “On
Countering Extremism”. Art. 16 of the Law No.114 -FZ prohibits extremist action during an
assembly and impose s the responsibility to ensure that on the organizer. Art. 16 of the Law
No.114 -FZ prohibits carrying weapons or any other weapon -like instruments designed.
On 30 June 2013 the Federal Law No.135 -FZ has entered into force adding Art. 6.21 to the
Code of Ad ministrative Offences. 646 The article imposes fines on citizens, officials and legal
entities of 4.000 -1.000.000 roubles (approximately 89 -22.416 Euro) for the propaganda of
untraditional sexual relations between minors by the means of dissemination of material about
untraditional sexual relations. This amendment culminates years of political strife between the
gay rights movement and the executive as shown by the case Alekseyev v. Russia .647
The participants are not allowed to conceal their faces and wear masks or other items intend ed
to impede identification (Art. 6 (4) No.1 of the Assembly Law). It is not to carry or drink
alcoholic beverages or to be in a state of inebriation at the site of a public event (Art.6 (4)
No.2 and 3 of the Assembly Law).
“Sight and Sound”
With regard t o the determination of the specially designated places and establishment of rules
for their use Art. 8 (1.2) of the Assembly Law stipulates that the executive authorities have to
provide the possibility that the public event attains its aims, transport acc ess to the sites, the
possibility for the organizers or participants to use infrastructure facilities, compliance with

process https://asozd2.duma.gov.ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=329301 -6&02 (last
accessed: 10 March 2014) . 643 Draft of the n ew amendment,
https://asozd2.duma.gov.ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=329301 -6&02 (last
accessed: 10 March 2014) . 644 The norm has be criticized by the Ven ice Commission as too broad and not adapt to accommodate every
special case, see Venice Commission, Opinion on the Federal Law No. 54 -FZ of 19 June 2004 on
Assemblies, Meetings, Demonstrations, Marches and Picketing of the Russian Federation, CDL –
AD(2012)0 07 (20 March 2012), para. 34. 645 Venice Commission, Opinion on Federal Law No. 65 -FZ, CDL -AD(2013)003, para. 33. 646 The Russian text, https://www.zakonrf.info/koap/ (last accessed: 10 March 2014) . 647 ECtHR, Alekse yev v. Russia , Judgment of 21 October 2010, Application Nos 4916/07, 25924/08 and
14599/09. The ECtHR found a violation of Article 11 of the European Convention of Human Rights by
Russian authorities as they banned any gay rights movement event during 2006 -2008. Another
application concerning the refusal of authorities to agree on the holding of events organized by gay rights
activists throughout 2010/2011 is currently pending before the Court, Lashmankin and others v. Russia
and 14 other applications, lodg ed Applications on various dates, Application No.19700/11.

84
health norms and rules, and the safety of public event organizers, participants and other
persons.
Otherwise, the Assembly Law does not ensure the principles of proportionality or the
presumption in favour of the assembly. It does not contain any other provisions which aim to
facilitate the assembly within “sight and sound” of its object or target audie nce.
In contrast the practice of the authorities often hinders assemblies within the sight and sound
of its targets. Arbitrary reasons are used by the authorities to alter the place 648 and time 649 of
the events 650 or the authorities abstain from further communi cation with the organizers until
the planed date of the event has passed. 651
4. Procedural issues
Notification
The organizer has to submit a notification on holding the public event to the executive
authority of the Subject or to the local self -government bo dy (Art. 5 (4) No. 1 of the
Assembly Law) except for an assembly or picket participated by one person not earlier than
fifteen and not later than ten days prior to the planned event (Art. 7 (1) of the Assembly Law).
If a picket by a group is planned the no tice has to be submitted no later than three days prior
to the event. The notification shall be submitted in written signed form and must provide
extensive information (Art. 7 (1), (3), (4) of the Assembly Law).
Decision -making
Upon receiving the notifica tion the executive authority of the Subject or the municipal body
has to confirm receipt indicating the date (Art. 12 (1) of the Assembly Law). The authorities
have the right to make a reasoned proposal to the organizer to alter the venue and/or time of
the public event or any other proposal to bring the aims, form or other conditions for holding
the event in line with the requirements of the Assembly Law. The proposals must be
submitted within 3 days of the receipt of the notice or on the same day in case of a
notification of a group picket in less than five days (Art. 12 (2) of the Assembly Law).
If the proposal disregards the “sight and sound” of the assembly it might constitute a de facto
ban as Art. 5 (5) of the Assembly Law prohibits the holding of an assembly if agreement was
not reached.
The concerns regarding the formulation “reasoned proposal” and the uncertainty on how an
agreement process with the authorities should proceed, so that Art. 5 (5) of the Assembly Law
does not alter the notification p rocedure into a permission procedure have been subject of
proceedings before the Constitutional Court. It stated that the authorities cannot permit or not
permit the holding of a public event; they can only change the time and venue if there are
necessary reasons to do so. 652 The reasons for the alteration have to render the holding not
only unpreferable but impossible. 653 To reach an agreement the authority has to propose
648 Cf. ECtHR, Kasparov and others v. Russia, Judgment of 3 October 2013, Application No.21613/07, para. 9
(the authorities disregarded four alternative routes in central Moscow proposed by the organ izer and
suggested to hold the event in the suburbs). 649 Cf. ECtHR, Yevdokimova v. Russia, lodged Application of 23 April 2012, Application No.31946/12, A. 650 Cf. ECtHR, Lashmankin and others v. Russia and 14 other applications, Application No.57818/09 (the
authorities refused to approve a 7 person picket in a park since on the date of the picket, a public holiday,
many families were expected in the park and the picket could have posed a danger to their health and
life). 651 Cf. ECtHR, Malofeyeva v. Russia, Ju dgment of 30 May 2013, Application No. 36673/04, para. 32 (the
authorities provided a notification of receipt but no documentation of their agreement); Lashmankin and
others v. Russia and 14 other applications, Application No. 51169/10. 652 Constitutional Court of the Russian Federation, Decision of 2 April 2009 No.484 -O-П, p.5. 653 Ibid ., p.6.

85
alternatives which enable the organizer to reach his aims. 654 Also, the organizer has a dut y to
communicate with the authority and to undertake all available means to reach an
agreement. 655
The executive authority or the municipal body are obliged to submit information concerning
the maximum holding capacity of the territory at the place of the pl anned event to the
organizer (Art. 12 (1) No. 4 of the Assembly Law).
The executive authority or the municipal body can issue a warning to the organizer regarding
his possible responsibility/liability if the information in the notification or obtained othe rwise
suggests that the assembly will violate either the Constitution, the Code of Administrative
Offences or the Criminal Code (Art. 12 (2) of the Assembly Law).
Review and appeal
Per Article 19 of the Assembly Law decisions, actions or inactions of state authorities, local
self -government bodies, public associations and officials may be appealed against in court.
The effectiveness of remedies can be infringed by the fact that the authorities are not bound
by a time -frame during the agreement proceedings. 656 Relief via court injunctions is not
available. 657
5. Specific forms of assemblies
Spontaneous assemblies
The organizer of a public event has the right to hold the event as specified in his notice or as it
has been altered by the agreement with the executiv e authority of the Subject or the body of
local self -government (Art. 5 (3) No.1 Assembly Law). He has no right to hold the event if
the notification was not filed in due time or an agreement was not reached (Art. 5 (5) of the
Assembly Law). Strict applica tion of the Assembly Law renders spontaneous assemblies
impossible.
Assemblies gathered by means of new technologies
The organizer has the right to conduct prior campaigning through mass information media
upon the agreement on holding with the authorities (Art. 5 (3) No. 2, 10 (1), (2) of the
Assembly Law).
Counter -demonstrations
The provision of Art. 8 (1.2) of the Assembly Law may pose an infringement to the right to
hold a counter -demonstration within the “sight and sound” of the demonstration as it
stipulates that if notifications are sent by organizers of several events seeking to hold an event
at a specially designated place the time of receipt determines the use of the venue.
In practice possible counter -demonstrations have been used as a reason to refuse
permission. 658
654 Ibid. 655 Ibid ., p.7; Comments of the Institute of Legislation and Comparative Law under the Russian Federation
Government on the Federal Law of the Russian Federation on Assemblies, Meetings, Demonstrations,
Marches and Picketing, CDL(2012)023 (5 March 2012), question 5. 656 Cf. ECtHR, Alekseyev v. Russia, Judgment of 21 October 2010, Application Nos . 4916/07, 25924/08 and
14599/09, para. 99. 657 Venice Commission, Opinion on Federal Law No. 65 -FZ, CDL -AD(2013)003, para. 37; Opinion on the
Federal Law No. 54 -FZ of 19 June 2004, CDL -AD(2012)007, para. 27. 658 Cf. ECtHR, Alekseyev v. Russia, Judgment of 21 October 2010, Application Nos 4916/07, 25924/08 and
14599/09, paras. 9, 12, 30, 41, 72 -77.

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6. Implementing Freedom of Assembly Legislation
Pre -event planning
Art. 14 (1) of the Assembly Law provides that the executive authority or the municipal body
can suggest that the chief of the law enforcement body that is servicing th e territory in which
the event is to take place appoints an authorized representative of the law enforcement body
for purposes of rendering assistance to the organizer in maintaining public order and security
of citizens. The suggestion is binding upon the chief of the law enforcement body. From the
wording of Art. 14 (3) No. 1 of the Assembly Law it is unclear whether the appointed official
supports the organizer in the planning of the event or only in conduct. A representative of the
executive authority i s also obliged to facilitate the conduct of the event (Art. 13 (2) No.2 of
the Assembly Law).
Costs
The maintenance of public order, regulation of road traffic, sanitary and medical service with
the objective of ensuring the holding of the public event are carried out on a free basis
according to Art. 18 (3) of the Assembly Law.
Use of force by the police
The use of force is regulated by the Federal Law No.3 -FZ of 7 February 2011 „On Police“.
In relation to assemblies following situations are probable in which the following special
methods can be used according to Art. 21 (1): to repel an attack on a person or a police
member, to prevent a crime or an administrative offence, to overcome force d irected at a
police member, to avert a mass disorder and another unlawful acts interfering with
transportation or methods of communication, and to reveal persons committing crime or
administrative offences (clubs, special agents, tasers, lightshockers, tra ined animals, methods
constraining movements, et cetera). In so far as any violation of the Assembly Law can
constitute an administrative offence it is possible that special methods are applied quite often.
The aforementioned special methods cannot be used during the dispersal of unlawful
assemblies of peaceful character not interfering with public order and the functioning of
transportation and infrastructure (Art. 22 (1) No. 2). A water cannon cannot be used if the
temperature is below zero Celsius (Art. 22 (2) No. 2). The use of water cannons and armoured
vehicles has to be authorized by the chief of the law enforcement body of the territory in
question with a notification of the public prosecutor within 24 hours.
Liability of organizers
Art. 5 (6) of the Assembly Law establishing civil liability of the organizer for failure to fulfil
his obligations under Art. 5 (4) has been found unconstitutional. 659
Any violation of the established procedure of the Assembly Law for organizing or holding a
public event ge nerally entails the imposition of an administrative fine or community service.
The Federal Law No. 65 -FZ of 8 June 2012 amending Art. 20.2 of the Code of Administrative
Offences increased the fines excessively (222 -6.652 Euro for a citizen) 660 and introduced
community service as a new administrative penalty.
The Constitutional Court of the Russian Federation ruled that only the minimum monetary
value of the fines was unconstitutional as it did not allow the courts to individualize the fine
659 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p. 37 -38; 39 -41
(citing jurisprudence of the ECtHR and the Venice Commission Guidelines on the Freedom of Peaceful
Assemblies). 660 The average monthly income in Russia is approximately 629 Euro, https://www.rg.ru/2013/04/28/zarplata –
site.html.

87
in a manner compati ble with the Constitution. 661 As long as an amendment is not passed by
the State Duma the courts may reduce the fines lower than the lowest bound established. 662
Community work as an administrative punishment for administrative offences not resulting in
damage to health or property but only in violation of formalities of the process for organizing
or conducting a public event was held unconstitutional. 663
7. Securing government accountability
Liability and accountability of law enforcement personnel
Under Art. 18 (8), (9) of the Federal Law No.3 -FZ the police official is not liable for the use
of physical force, special methods or firearms if it is founded in the law unless he oversteps
his powers.
Monitoring
International NGOs such as „Amnesty International“ and „Human Rights Watch“ compiled
reports on the recent developments concerning the freedom of assembly. 664 Also Russian
NGOs gained popularity such as the “Levada -Center“ or the “Centre of the Development of
Democracy and Human Rights“. 665 Their work has recently faced excessive control and
restrain due to the Federal Laws No.121 -FZ of 20 July 2012 („The Foreign Agents Law“),
No.190 -FZ of 12 November 2012 („Treason Law“) and No.272 -FZ of 28 December 2012
(banning Russian NGOs that either en gage in „political“ activities and receive funding
emanating from the US or engage in activities that threaten Russia’s interests). 666
The implementation of the freedom of assembly is monitored by the Ombudsman for Human
Rights in the Russian Federation. 667
Me dia access
In the context of the 2011 -2012 oppositional protests „PEN International” reports detentions
and arrests of journalists. 668 “Amnesty International” reports that several journalists were
injured by the police during an unauthorized meeting in Mosco w on 5 March 2012. 669
8. Conclusions and outlook
The protest movement in Russia has grown considerably throughout 2011 -2013 and shown
the strife for more voice and participation on Russia’s political and social arena. The citizens
discover the power they can have in this relatively young democracy. The June 2012
amendments and the practice of authorities and courts, however, quash any willingness and
readiness to take to the streets. It seems that the European Court of Human Rights is currently
661 Constitutional Court of the Russian Federation, Judgment of 14 February 2013 No.4 -П, p.51 -59. 662 Ibid ., p.59. 663 Ibid ., p.90. 664 See for example Amnesty Internationa l, Freedom under Threat, AI Index: EUR 46/011/2013; Human Rights
Watch, Laws of Attrition. 665 Homepage of the Levada -Center: https://www.levada.ru/eng/ (last accessed: 10 March 2014) ; homepage of the
Center of the De velopment of Democracy and Human Rights: https://www.demokratia.ru/ (Центр
Развития Демократии и Прав Человека ) (last accessed: 10 March 2014) . 666 Summary of the laws and its impacts, see Human Rights Watch, Laws of Attrition, p.12 -45. 667 Уполномоченный по правам человека в Российской Федерации, https://ombudsmanrf.org/ (last accessed:
10 March 2014) . 668PEN International, Вклад Международного ПЕН -клуба и Русского ПЕН -центра в 16 -ю сессию рабочей
группы Универсального периодического обзора, Российская Федерация (Report of the International
PEN -Club and the Russian PEN -Center to the 16th session of the working group of Universal Periodic
Review, Russian Federation), paras. 6 -7, https://www.pen -international.org/newsitems/pen -international –
advocacy -at-united -nations -16th -upr -session/ (in Russian) (last accessed: 10 March 2014) . 669 Amnesty International, Freedom under Threat, AI Index: EUR 46/011/2013, p.16.

88
preparing a pi lot judgment on the freedom of assembly in the case of Lashmankin and others
v. Russia comprising 15 different applications 670 all showing the deplorable state of Russian
Assembly Law and its implementation. Hopefully, this will be the long needed wakeup cal l
for the Russian authorities.

670 See https://hro.rightsinrussia.info/archive/european -court/assembly/pilot (la st accessed: 10 March 2014) .

89
Ukraine
by Dr. Halyna Perepelyuk, LL.M. (Int.)

1. Legal bases and scope of the guarantee
In Ukraine, the right to freedom of assembly is a fundamental right guaranteed by the
Constitution of Ukraine, 671 the main law of the s tate with the highest legal status in the
normative hierarchy. 672 According to Art. 39 of the Constitution “citizens shall have the right
to assemble peacefully without arms and to hold rallies, meetings, processions, and
demonstrations after having notified executive or local self -government bodies in advance”.
The second part of Art. 39 provides for restrictions on the exercise of this right which “may be
established by a court in accordance with law and only in the interests of national security and
public order, for the purpose of prevention of disturbances or crimes, protection of the health
of the population, or protection of the rights and freedoms of other persons”. 673
Although some types of assemblies have been listed in Art. 39 of the Constitution (“r allies,
meetings, processions, and demonstrations”), this list cannot be regarded as complete, and
according to Art. 22 of the Constitution, human and citizens’ rights and freedoms affirmed by
the Constitution shall not be exhaustive. In other words, adopt ion of new laws or introduction
of amendments to the ones in effect can broaden the scope of this right. Besides, the
Constitution prescribes in its Art. 92 that “human and citizens’ rights and freedoms and the
guarantees of these rights shall be determine d exclusively by Ukrainian laws”, not by
secondary legislation or any other type of legal acts.
It is important to mention that international agreements ratified by Ukrainian parliament are
an integral part of the national legislation of Ukraine 674 and are applied in the same manner as
the norms of national laws. 675 For example, the European Convention on Human Rights and
Fundamental Freedoms of 1950 (henceforth the ECHR) was ratified by the parliament in
1997 and therefore became part of Ukrainian le gislation. 676 Besides, case law of the European
Court of Human Rights (henceforth the ECtHR) is a source of Ukrainian law and should be
applied by the national courts. 677 It means that Art. 11 of the ECHR and case law of the
ECtHR on freedom of assembly should be applied together with the national legislation while
deciding cases on the right to freedom of assembly.
One of the main tasks of the Constitutional Court of Ukraine is to provide an official
interpretation of the Constitution and Ukrainian laws. In it s decision on timely notification of
peaceful assemblies, 678 the Constitutional Court defined the right to assemble peacefully as
671 The Constitution of Ukraine of 28 June 1996 (last amendment by the law no. 586 -18 of 6/10/2013), available
at: https://zakon4.rada.gov.ua/laws/show /254%D0%BA/96 -%D0%B2%D1%80 (last accessed: November
17 2013). 672 Art. 8 of the Constitution of Ukraine of 28 June 1996. 673 The Constitution of Ukraine is available in English on the official website of the President of Ukraine:
https://www.president.gov.ua/en/content/constitution.html (last accessed: November 15 2013). 674 Art. 9 of the Constitution of Ukraine of 28 June 1996. 675 Art. 19 (1) of the Law of Ukraine “On International Treaties” of 29 June 2004, available at:
https://zakon2.rada.gov.ua/laws/show/1906 -15 (last accessed: 17 January 2014). 676 The Law “On Ratification of the European Convention on Human Rights and Fundamental Freedoms 1950
and Additional Protocols 1,2,4,7 and 11” of 17 June 1997, available at:
https://zakon1.rada.gov.ua/laws/show/475/97 -%D0%B2%D1%80 (last accessed: 15 January 2014). 677 Articl e 17, the Law “On Execution of the Decisions of the European Court of Human Rights” of 23 February
2006, available at: https://zakon1.rada.gov.ua/laws/show/3477 -15 (last accessed: 15 January 2014). 678 The Decision of the Constitutional Court of Ukraine no. 4 -рп/2001 of 19 April 2001 in a case regarding
timely notification of peaceful assembly, available at: https://zakon2.rada.gov.ua/laws /show/v004p710 -01
(last accessed: 15 November 2013).

90
“an inalienable and inviolable right”. 679 Furthermore, the court said that this right “relates to
the constitutional safeguards of the civil rights to freedom of opinion, religious belief,
thought, and speech, and the freedom to use and impart information through speech or in
written form or by any other means of choice”. 680
Despite the clear requirement contained in Arts. 39 and 92 o f the Constitution that a
procedure for organizing and holding peaceful assemblies must be regulated by law,
unfortunately there is no legal act which would regulate such a procedure. The existing
provisions in Ukrainian legislation are not sufficient to f ully regulate the procedure for
organizing and holding peaceful assemblies. Besides, they are either archaic or do not comply
with European standards. Below it will be shown that, for example, persons wishing to hold
an assembly have to notify local author ities ten days before it is planned to be held, that
existing secondary legislation does not allow spontaneous and simultaneous demonstrations,
assemblies during the night, etc.
Ukraine became an independent and sovereign state in 1991 and it started to b uild up its
statehood by creating new legislation, based on international principles and standards. 681
Certainly, this process is difficult and long, but even the ECtHR noted that delay of more than
two decades is not justifiable, especially when such a fund amental right as freedom of
peaceful assembly is at stake. In its Vyerentsov judgment the ECtHR held that the
Constitution of Ukraine provides for some general rules as to the possible restrictions on the
freedom of assembly, but those rules require furthe r elaboration in the domestic law. 682 After
this judgment, which was actually the first judgment of the ECtHR against Ukraine that found
violation of Art. 11 of the ECHR (freedom of assembly), the Committee of Ministers obliged
Ukraine to implement urgently specific reforms in legislation and administrative practice in
order to fill in the legislative lacuna concerning the freedom of assembly in the Ukrainian
legal system. 683
The issue of adopting a special law on peaceful assemblies is not a new topic for Ukr aine.
The draft law on peaceful assemblies was already developed in 2006, after having been
assessed by the Venice Commission and the OSCE/ODIHR, 684 in May 2009 it was submitted
to the Ukrainian parliament, and on 3 June 2009 it passed the first reading. 685 Af ter the draft
was amended following the conclusions of the Main Scientific and Expert Department of the
679 §2, the Decision of the Constitutional Court of Ukraine no. 4 -рп/2001 of 19 April 2001 in a case regarding
timely notification of peaceful assembly. English translation of the Decision is available at :
https://legislationline.org/documents/action/popup/id/6861 (last accessed: 17 November 2013). 680 Ibid . 681 For example, the Constitution of Ukraine and especially the second chapter of the Constitution ” Human and
Citizen Rights, Freedoms and Duties “, was very much appreciated by the Venice C ommission: “the
catalogue of rights protected is very complete and it shows a willingness to protect the full scope of rights
guaranteed by the European Convention on Human Rights”. Source: Opinion on the Constitution of
Ukraine adopted by the Venice Commi ssion on its 30 Plenary Meeting in Venice, on 7 -8 March 1997,
available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL -INF%281997%29002 -e (last
accessed: 20 November 2013). 682 §54 -55 of the Vyerentsov judgment. Vyerentsov v. Ukraine, application no. 20372/11, 11 April 2013.
HUDOC: https://hu doc.echr.coe.int/sites/eng/pages/search.aspx?i=001 –
118393#{%22itemid%22:[%22001 -118393%22]} (last accessed: 15 November 2013). 683 Committee of Ministers , Case no. 23 1179th meeting – 26 September 2013 , available at:
https://wcd.coe.int/ViewDoc.jsp?id=2103807&Site=CM&BackColorInternet=C3C3C3&BackColorIntran
et=EDB021&BackColorLogged=F5D383 (last accessed: 15 November 2013 ). 684 Joint Opinion on the Draft Law on Peaceful Assemblies in Ukraine by the Venice Commission and the
ODIHR of 13 -14 October 2006, Opinion 385/2006, available at:
https://ww w.venice.coe.int/webforms/documents/?opinion=385&year=all (last accessed: 15 November
2013). 685 The Resolution (postanova ) of the parliament of Ukraine on adopting as a basis for future law the draft Law
of Ukraine on the organization and conduct of peacefu l activities, available at:
https://zakon4.rada.gov.ua/laws/show/1434 -17 (last accessed: 15 November 2013).

91
parliament, it was sent to the Venice Commission for an assessment 686 and afterwards
submitted again to the Ukrainian parliament for the second reading on 3 June 2010. The
second reading was to take place on 15 March 2012, but the national deputies voted to
postpone the reading. As of January 2013, the law on peaceful assemblies has still not been
adopted by the parliament.
Since there is no special law, s ome procedures for holding assemblies in Ukraine are
regulated by the Decree ( ukaz ) of the Presidium of the Supreme Soviet of the USSR of 28
July 1988 concerning the procedure for organizing and holding meetings, rallies, street
marches and demonstrations in the USSR 687 (henceforth the Decree of 1988) and by local
regulations. The legal bases for validity of Soviet Union normative legal acts in Ukraine are
Chapter XV. “Transitional Provisions” of the Constitution of Ukraine 688 and the Resolution 689
(postanova ) of the parliament of Ukraine “On temporary application of certain legislative acts
adopted by the USSR”. 690 However, there is no common position among higher Ukrainian
courts and authorities as to the applicability of the Decree of 1988. 691 Neither do courts of
general jurisdiction have a common position, thus, some regard the act as valid, 692 while the
others do not, 693 The most acceptable official position as to the validity of the Decree is that of
the Ministry of Justice, which proposes to use only those provisio ns of the Decree that do not
contradict the Constitution, 694 as it has the highest legal force in Ukraine. The main problem
created by the Decree of 1988 is that according to it, persons wishing to hold a peaceful
assembly have to get a permit of intention f rom local executive authorities, while Art. 39 of
the Constitution requires only advance notification. The other problem is that according to the
686 Joint Opinion on the Law on the Order of Organizing and Conducting Peaceful Events of Ukraine by the
Venice Commission and the ODIHR of 14 December 2009, Opinion no. 556/2009, ODIHR Nr.: FOA –
UKR/144/2009, available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL –
AD%282009%29052 -e (last accessed: 15 November 2013). 687 The Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for
organizing and holding meetings, rallies, street marches and demonstrations in the USSR, available at:
https://zakon4.rada.gov.ua/laws/show/v9306400 -88 (last accessed: 15 November 2013). 688 “Laws and other normative legal acts enacted prior to the entry into force of this Constitution shall apply
insofar as they do not conflict with the Constitution”. 689 The Resolution of the Verhovna Rada of Ukraine of 12 September 1991 “On temporary applicat ion of certain
legislative acts adopted by the USSR”, available at: https://zakon4.rada.gov.ua/laws/show/1545 -12 (last
accessed: 17 November 2013). 690 The legislation of the USSR shall be applicable in Ukraine with respect to issues that have not been regulated
by the legislation of Ukraine and insofar as they do not contradict the Ukrainian Constitution and laws;
the legislation of the USSR is applicable until relevant legislation is adopted by Ukra ine. 691 The Supreme Court held in “The Review of the practice of the Supreme Court in cases concerning
administrative offences (Articles 185 -185² of the Code on Administrative Offences)” of 1 March 2006
that the Decree is in force, available at:
https://www.scourt.gov.ua/clients/vsen.nsf/0/88DE37EDF92C0BE2C32572C900333D8F?OpenDocu ment
&CollapseView&RestrictToCategory=88DE37EDF92C0BE2C32572C900333D8F&Count=500& (last
accessed: 15 November 2013), while the Higher Administrative Court of Ukraine, however, holds the
Decree of 1988 to contradict the Constitution of Ukraine and therefore opines that it should not be applied
by the courts (Information note of April 2012 by the Higher Administrative Court of Ukraine on a study
and summary of the jurisprudence of administrative courts applying the relevant legislation deciding
cases concernin g the exercise of the right to peaceful assembly (meetings, rallies, marches,
demonstrations, etc.) in 2010 and 2011, available at: https://zakon1.rada.gov.ua/laws/show/n0002760 -12
(last access ed: 15 November 2013). 692 The District Administrative Court of the Autonomous Republic of Crimea in its Decision no. 801/9176/13 -а
of 19 September 2013 referred to the Decree of 1988 in deciding the case, available at:
https://www.reyestr.court.gov.ua/Review/33574171 (last accessed: 15 November 2013). 693 The District Administrative Court of Khmelnytskyy in its Decision no. 822/3199/13 -a of 2 August 2013
denied the validity of the Decree of 1988, a vailable at: https://www.reyestr.court.gov.ua/Review/32883506
(last accessed: 15 November 2013). 694 Letter no.1823 -0-1-09 -18 of Ministry of Justice of Ukraine of 26 November 2009 , available at:
https://zakon4.rada.gov.ua/laws/show/v823 -323 -09 (last accessed: 15 December 2013).

92
Decree of 1988, local authorities can ban a peaceful assembly, while Art. 39 of the
Constitution says that onl y a court can do so.
Some city councils of oblast’ 695 centres in Ukraine 696 adopted their own regulations on holding
assemblies, despite Constitutional provisions that human and citizens’ rights and freedoms,
and the guarantees of these rights, are determined exclusively by Ukrainian laws (Art. 92 of
the Constitution). Besides, the restrictions as to place and time for holding assemblies
contained in these rules clearly contradict the Guidelines on Freedom of Peaceful Assembly.
These regulations are valid and a re used by public authorities and referred to by district
courts.
2. Restrictions
Time
In Kiev 697, Sumy 698, Rivne 699, Kharkiv 700 it is allowed to hold assemblies from 8 -9 a.m. till 10 –
11 p.m. In other words, it is not allowed to hold an assembly in these cities during the night.
Place
In Kiev a special permission is needed from the city council for holding assemblies near the
buildings of the following bodies: the parliament, the Administration of the President, the
Cabinet of Ministers, the Supreme Court and th e Kiev City Council. Moreover, from 14 June
2013 until the end of 2013 it was prohibited to hold any kind of assemblies on the streets
close to the building of the presidential administration by a decision of the Kiev district
administrative court, 701 In Kha rkiv it is prohibited to hold assemblies near buildings of local
administrations, if such assemblies disturb their normal functioning.
Massive pro -EU rallies have gripped Ukraine following the delay of an association agreement
with the EU announced by Pri me Minister Mykola Azarov on 21 November 2013. The same
day the Kiev City Council appealed to the Kiev Administrative Court to restrict the holding of
assemblies in Independence Square and the court ruled in favour of the plaintiff. The next day
the Mayor of Kharkiv issued an order that prohibits holding mass events on the pretext of an
increase in incidence of flu and acute respiratory infections. In other Ukrainian cities –
Odessa, Lviv, Mykolayiv – local administrative courts prohibited any kinds of demo nstrations
near administrative buildings .702 Usually such bans on demonstrations were intended to
695 “Oblast’ ” is an administrative unit in Ukraine. Ukraine is subdivided into 24 oblast’, Autonomous Republic of
Crimea and two cities with special status (Kiev and Sevastopol). 696 As to October 2013 in the following oblast’ city centers were valid own regulations on regulation of holding
assemblies: Kiev, Kharkiv, Rivne, Sumy, Zaporizhzhya. 697 The Decision of the Kiev City Council no. 317/418 “On determining the order of organization and holding
non -state mass public events of political , cultural, educational , sports, entertainment, and other character
in Kiev” of 24 June 1999, available at: https://kmr.gov.ua/decree_gol.asp?Id=2998 (last accessed: 15
November 2013). 698 The Decision of the City Council of Sumy no. 214 “On the procedure for organizing and holding mass events
in Sumy” of 7 Apr il 2009, available at: www.sumy.ua/engine/download.php?id=3537 (last accessed: 15
November 2013). 699 The Decision of the City Council of Rivne no. 53 “On organization and holding of mass events in Rivne” of
14 April 2009, available at: https://www.city -adm.rv.ua/RivnePortal/ukr/documents_view.aspx?id=27546
(last accessed: 15 November 2013). 700 The Decision of the City Council of Kharkiv no. 541 “On temporary regulations of the procedure for
organizing and holding meetings, rallies, marches and demonstrations” of 6/6/2007, available at:
https://www.gov.lica.com.ua/b_text.php?type=3&id=32028&base=27 (last accessed: 15 November 2013). 701 Decision of the Kiev district administrative court no. 826/9127/13 -а of 13 June 2013, available at:
https://www.reyestr.court.gov.ua/Review/31870298 (last accessed: 15 November 2013). 702 Ukrainian Helsinki Human Rights Union (2013), Monitoring of violation of the right to peaceful assembly
during European maidans (renewed) , 27/11/2013, available at:
https://helsinki.org.ua/index.php?id=1385707213 (last accessed: 29 December 2013).

93
prevent any rallies organized by opposition parties that were not satisfied with the decision of
the Prime Minister.
Sight and Sound
According to Art. 24 of th e Law “On Sanitary and Epidemiological Welfare of the
Population” 703, any restrictions as to sound should not be applied to meetings, rallies,
demonstrations and other mass events, of which local executive authorities were notified in
advance.
Despite the above -mentioned law, the City of Sumy set its own limits to sound, which must
not be higher than 40 dB. In Rivne, the use of loudspeakers or sound -amplifying devices is
prohibited if they were not foreseen in the program submitted to authoritie s. Moreover, in
Rivne organizers have to notify in advance whether they intend to use tents, canopies and
objects of external advertisement (screens, stands, shields etc.).
3. Procedural issues
Notification
Art. 39 (1) of the Constitution of Ukraine stat es that executive or local self -government
bodies should be notified of an assembly in advance. The Ministry of the Interior referred to
the Constitutional Court of Ukraine for an official interpretation of this constitutional
provision and the court ruled that “organizers of an event should inform executive authorities
or bodies of local self -government in advance, that is, within reasonable time prior to the date
of the planned event”. 704 Furthermore, the court held that such time limits should serve not as
limits to the right but as a guarantee of the right to assemble peacefully, in order to provide
relevant authorities with an opportunity to take measures to ensure that citizens may freely
hold assemblies and to protect order and the rights and freedoms o f others. The court stressed
that only laws can set up exact deadlines for timely notification with regard to the specifics of
peaceful assemblies. Unfortunately, since 2001 no law on this matter has been adopted yet.
Usually local authorities require to b e notified of an assembly ten days before it. This time
limit is set in the Decree of 1988. The local executive authorities shall examine the
application and notify the representatives (organizers) of its decision no later than five days
prior to the date of the event.
Decision -making
Local executive authorities have delegated power to resolve, in accordance with the law,
issues of holding meetings, manifestations and demonstrations, 705 Therefore, if a local
authority decides that an assembly for some reaso n should not be held, it can place a claim
before an administrative court to ban such an assembly. Such claims have to be resolved
within three days or immediately, and an organizer is to be informed immediately of a
703 Law “On Sanitary and Epidemiological Welfare of the Population” of 24 February 1994 (last amendment by
the law no. 5395 -17 of 06/12/2012), available at: https://zakon2.rada.gov.ua/laws/show/4004 -12 (last
accessed: 15 November 2013). 704 Decision of the Constitutional Court of Ukraine no. 4 -рп/2001 of 19 April 2001 in a case regarding timely
notification of peaceful assembly, available at: https://zakon2.rada.gov.ua/laws/show/ v004p710 -01 (last
accessed: 15 November 2013). 705 Art. 38 (b (3)) of the Law of Ukraine “On local self government” of 21 May 1997 (last amendment by the law
no. 563 -18 of 23/10/2013), available at: https://zakon4.rada.gov.ua/laws/show/280/97 -%D0%B2%D1%80
(last accessed: 15 November 2013).

94
proceeding. If the claim was submitted the same day of the assembly, or after it, the court will
not consider it, 706
According to the Ukrainian Helsinki Human Rights Union, in 2012 Ukrainian authorities
sought successfully to restrict peaceful assembly in 88 % of cases, in 2011 in 89 % and in
201 0 in 83 %, 707 Grounds on which local executive authorities claim to ban an assembly may
be, for example, a simultaneous assembly, a counter -assembly, an assembly which would
disturb normal functioning of a company or public authority, or a number of particip ants
which is higher than a relevant territory could host, potential traffic jams etc .708
Review and appeal
The organizer of an assembly can appeal to an administrative court for the removal of
restrictions on the right to peaceful assembly by the executiv e authorities. Such claims have to
be resolved within three days or immediately. 709
4. Specific types of assemblies
Spontaneous assemblies
The Statute of patrol service of police in Ukraine 710 permits the police to stop an assembly if a
local executive author ity has not been notified in advance: “The reasons for which a meeting,
rally, street march or demonstration will be stopped are holding it without actual permission
from the local executive authorities…" [ transl. by author ].
A similar provision can be found in the regulations of the City of Zaporizhzhya, which allow
stopping an assembly if the local executive authorities were not notified in advance.
Assemblies organized by means of new technologies
In Ukraine organizers oft en use social networks to hold an assembly or to organize a flash
mob; however, none of these types of assemblies are regulated by existing legislation, or
foreseen in the draft law on peaceful assemblies. The most recent example of a spontaneous
assembly organized by means of social networks such as Twitter and Facebook is the protests
throughout Ukraine following the delay of an association agreement with the EU announced
by Prime Minister Mykola Azarov on 21 November 2013. The announcement was made at
ab out 3 p.m., and almost immediately afterwards there was created a tweet such as, for
example, the “@euromaidan” and several pages of facebook dedicated to the Euromaydan
rallies (one of the facebook pages: “ ЄвроМайдан – EuroMaydan” ). In Kiev the same day a t
about 10 p.m., more than 500 protesters were gathered by means of social networks in
Independence Square (the main square of Kiev). On Sunday 24 November 2013 the number
of demonstrators had reached 50,000 .711 Furthermore, following violence from governmen t
706 Art. 182 of the Code on Administrative Legal Proceedings of Ukraine of 6 July 2005 (last amendment by the
law no. 406 -18 of 11/08/2013), available at : https://zakon0.rada.gov.ua/laws/show/2747 -15 (last accessed:
15 November 2013). 707 Statistical data is taken from §11. Peaceful Assemblies of the “Annual Report on Human Rights. Human
Rights in Uk raine 2012. Reports of Human Rights NGOs”, available at:
https://helsinki.org.ua/index.php?id=1362646268 (last accessed: 15 November 2013). 708 Ukrainian Heslinki Group (2012), 11. Freedom of Peac eful Gatherings, Annual Report on Human Rights.
Human Rights in Ukraine 2012, available at: https://helsinki.org.ua/en/index.php?r=3.3.1.9 (last accessed:
29 December 2013). 709 Art. 183 of the Code on Administrative Legal Proceedings of Ukraine of 6 July 2005. 710 The Statute of police patrol service in Ukraine approved by the decree no. 404 of the Ministry of Interior of
28 July 1994, available at: https://zakon2.rada.gov.ua/laws/show/z0213 -94/page (last accessed: 15
November 2013). 711 Deutsche Welle. Ukrainian march for closer EU ties , 24 November 2013, available at:
https://www.dw.de/ukrainians -march -for -closer -eu-ties/a -17248871 (last accessed: 28 December 2013).

95
forces in the early morning of 30 November, the level of protests in Kiev on the weekends of
1 December and 8 December rose respectively to 100,000 712 and 300,000 713 protesters, despite
the Kiev Administrative Court decision to ban any kinds of rallies in In dependence Square
until 7 January 2014. 714 Later, the Euromaydan would be called the most significant rally in
Ukraine since the Orange revolution in 2004 and “the largest ever pro -European
demonstration”. 715
A new type of assembly – the flash mob – is quite popular in Ukraine. One of the latest
examples of a flash mob was the singing of the national anthem in one of the subway stations
in Kiev. The flash mob was organized to support Euromaydan rallies. 716
Assemblies taking place on public properties
Ukrainian legislation does not contain provisions to regulate peaceful assemblies on public
properties. In this case a principle of general permission is applied: “everything is permitted if
it is not prohibited by a law”. 717
Counter -demonstrations
Neither laws nor local regulations contain any provisions as to counter -demonstrations; in
practice they would be treated like simultaneous ones. For example, in Zaporizhzhya, Rivne
and Kharkiv simultaneous assemblies are not allowed and local executive authorities would
propose another place to the organizers of one of the assemblies.
5. Implementing freedom of assembly legislation
Pre -event planning
Chapter XV of the Ukrainian Statute of police patrol service 718 prescribes the organization of
public order security during ma ss events. § 309 -318 of the Statute regulate pre -event
planning, in which according to § 310 (1) the police first check the permission of the
organizer to hold an assembly. Afterwards “police together with the organizer of the event
inspect the buildings, structures or other objects where the event is to be held; study the best
options for securing public order during the event; take measures to eliminate the deficiencies
observed” (§310 (2)) [ transl. by author ].
712 Deutsche Welle. Tens of thousands rally in Kyiv in pro -Europe protest , 1 December 2013, available at:
https://www.dw.de/tens -of-thousands -rally -in-kyiv -in-pro -europe -protest/a -17264317 (last accessed: 28
December 2013). 713 Deustche Welle. Ukraine protesters keep u p the pressure on President Yanukovych , 8 December 2013.
Available at: https://www.dw.de/ukraine -protesters -keep -up -the -pressure -on -president -yanukov ych/a –
17279277 (last accessed: 28 December 2013). 714 Ukrainian Helsinki Human Rights Union (2013), Monitoring of violation of the right to peaceful assembly
during European maidans (renewed) , 27/11/2013, available at:
https://helsinki.org.ua/index.php?id=1385707213 (last accessed: 29 December 2013). 715 Bildt, Carl (2013) Ukraine deserves better , KyivPost, 28 Dec, available at:
https://www.kyivpost.com/opinion/op -ed/carl -bildt -ukraine -deserves -better -334360.html (last accessed: 29
December 2013). 716 Summeronlinestream. (2013) Flash mob in Kiev: thousands of subway passengers sing the national anthem
of Ukraine [online video], availa ble at: https://www.youtube.com/watch?v=rbRjgFnXlXc (last accessed:
17 December 2013). 717 Theory of state and law . Academic Course : Ed. O. Zaichuk , N. Onishchenko . (Kiev: Inter Yurinkom , 2006),
528. 718 The Statute of police patrol service in Ukraine approved by the decree no. 404 of the Ministry of Interior of
28 July 1994, available at: https://zakon2.rada.gov.ua/laws/show/z0213 -94/page (last accessed: 15
November 2013).

96
Costs
According to Art. 38 (b) 3 of the Law “On local self -government “719, “local authorities
exercise control over public order during meetings, rallies, manifestations, demonstrations
and other mass events”, 720 Therefore, the costs for keeping public order rest with the state and
no additional financi al charges for providing adequate policing should be paid by the
organizers of assemblies.
Use of force by the police
Use of force by law enforcement officials is regulated by the Law of Ukraine “On police” 721,
and by the Statute of police patrol service in Ukraine, 722
According to Art. 10 of the Law “On Police” the main duty of the police, among others, is to
ensure public order and the security of citizens. The third section of the law “Use of force,
special means and weapons” contains provisions according to which the police have the right
to use physical force to stop an offence (Art. 13) and special means for stopping mass
disorders and disruption of public order (Art. 14(2)). Such special means according to Art. 14
include: “handcuffs, rubber batons , metho ds of restraint , tear gas , light and distraction
devices , devices to open doors and force vehicles to stop , water cannons, armoured vehicles
and other special vehicles as well as sniffer dogs” [transl. by author] . Before starting the use of
force or special methods a policeman is obliged to notify the intention to use force in a loud
voice or through loudspeakers at least twice, in order to give enough time for an offence or
disorder to be stopped by itself (§ 200 and 201 of the Statute of police patrol service in
Ukraine of 28 July 1994) .
The use of drones during demonstrations
The use of drones in Ukraine is regulated by the Air Code of Ukraine, 723 Art. 1(23) of the
Code defines “unmanned aerial vehicle” as an airc raft without a human pilot on board, which
is controlled by the special control station situated outside the aircraft. Drones less than 20 kg
used for an entertainment or for sports do not need to be registered in the State Register of the
Aircraft of Ukra ine (Art. 39). A special permit of the Ministry of Defence is needed for use of
foreign drones in Ukraine (Art. 46).
Drones are often used by media during demonstrations in Ukraine. One of the latest images
taken by a drone is a panoramic view of the Eurom aydan rally in Kiev, 724 which gave an idea
about the number of participants in the rally that day.
Liability of organizers
Art. 185 ¹ “Violation of the procedure for organizing and holding meetings, rallies, street
marches and demonstrations” of the Code on Administrative Offences of Ukraine 725:
719 The Law of Ukraine “On local self -government” of 21 May 1997 (last amendment by the law no. 563 -18 of
23/10/2013), available at: https://zakon4.rada .gov.ua/laws/show/280/97 -%D0%B2%D1%80 (last
accessed: 15 November 2013). 720 English translation of the law on local self -government of Ukraine is available at:
https://www.urban.org/PDF/ukr_locgov.pdf (last accessed: 17 December 2013). 721 The Law “On police” of 20 December 1990 (last amendment by the law no. 5178 -17 of 11/10/2013),
available at: https://zakon0.rada.gov.ua/laws/show/565 -12 (last accessed: 15 November 2013). 722 The Statute of police patrol service in Ukraine approved by the decree no. 404 of the Ministry of Interior of
28 July 1994, available at: https://zakon2.rada.gov.ua/laws/show/z0213 -94/page (last accessed: 15
November 2013). 723 The Air Code of Ukraine of 19 May 2011, available at: https://zakon4.rada.go v.ua/laws/show/3167 -12 (last
accessed: 29 December 2013). 724 Yura Yakymets. (2013) Euromaidan from the bid’s -eye view. Day 15/12/2013 [online video], available at:
https://www.youtube.com/watch?v=rG NjV1TCYXc (last accessed: 29 December 2013).

97
“Violation of the established procedure for organising and holding assemblies, meetings,
rallies and demonstrations is punishable by a warning or by a fine of no less than 10 and no
more than 25 tax -free minimal wages.
In case of this offence being committed repeatedly within one year after an administrative
sentence has been passed, or it being committed by the organizer of the assembly, meeting,
rally or demonstration, it is punishable by a fine of no less than 20 and no more than 100 tax –
free minimal wages or by correctional labour for a term of no less than one and no more than
two months with twenty percent of the salary deducted in favour of the state, or by an
administrative arrest for up to fifteen days”. 726
6. Sec uring government accountability
Liability and accountability of law enforcement personnel
According to Art. 340 “Illegal interference with the organization or holding of meetings,
rallies, marches and demonstrations” of the Criminal Code of Ukraine, 727 “ille gal interference
with the organization or holding of meetings, rallies, street marches and demonstrations,
where this act was committed by an official or with the use of physical violence, shall be
punishable by correctional labour for a term of up to two years, or arrest for a term of up to
six months, or restraint of liberty for a term of up to five years, or imprisonment for the same
term”. 728
Monitoring
Human Rights NGOs actively monitor assemblies in Ukraine. A lot of useful information can
be found on their websites, as, for example, how many applications to hold an assembly were
made, and how many of them were banned, the reasons for restricting a certain assembly, the
use of force during assembly, etc. Here are some of the NGOs which monitor assemblie s in
Ukraine:

– Ukrainian Helsinki Human Rights Union ;729
– Maidan ;730
– Association of Ukrainian Monitors on Human Rights Conduct in Law Enforcement
(Association UMDPL) .731
Media access
Art. 26 of the Law of Ukraine “On printed mass media in Ukraine” of 16 November 1992 732
prescribes the rights and duties of editorial journalists. According to Art. 26(7) a journalist has
725 The Code on Administrative Offences in Ukraine of 7 December 1984 (last amendment by the law no. 656 -18
of 16/11/2013), available at: https:// zakon4.rada.gov.ua/laws/show/80731 -10/page13 (last accessed: 15
November 2013). 726 English translation of the Code on Administrative Offences is available at:
https://legislationline.org/t opics/country/52/topic/15 (last accessed: 15 November 2013). 727 The Criminal Code of Ukraine of 1 September 2001 (last amendment by the law no. 228 -18 of 04/07/2013),
available at: https://zakon4. rada.gov.ua/laws/show/2341 -14 (last accessed: 15 November 2013). 728 English translation of the Criminal Code of Ukraine is available at:
https://www.legislationline.org /en/documents/action/popup/id/16257/preview (last accessed: 18 December
2013). 729 https://helsinki.org.ua/en/ (last accessed: 24 December 2013). 730 https://maidanua.org/category/monitor/ (last accessed: 24 December 2013). 731https://umdpl.info/eng/index.php?r=3.1 (last accessed: 24 December 2013);
https://en.wikipedia.org/wiki/Association_of_Ukrainian_Monitors_on_Human_Rights_Conduct_in_Law_
Enforcement (last accessed: 10 March 2014).

98
the right, inter alia , “upon presentation of editorial credentials or other document confirming
his affiliation with printed media , to be present in the places of disaster , catastrophes,
accidents , mass riots , rallies and demonstrations, and in territories in state of emergency”
[transl. by author ].
7. Conclusions and outlook
After analysis of the available primary and secondary legislation regulating the procedure of
organizing and holding peaceful assemblies in Ukraine, the conclusion can be drawn that it is
not “clear and foreseeable” 733 and Ukraine urgently needs a special law on peaceful
assemblies. Human rights activists already called the draft law 734 which awaits its reading in
parliament the most liberal law on peaceful assemblies in Europe. 735 The draft law on peaceful
assemblies will finally define spontaneous and counter -assemblies, assemblies on public
property. Besides, it will regulate the figure of organizers of an assembly and their rights and
duties. The notification period for an assembly will be two days. The draft provides for the
restrictions on holding an assembly, the procedure for applying to the court against such
restrictions, and the responsibility for violation of the right to freedom of peaceful assembly.
In general terms the draft law is d eveloped according to European and international standards
on freedom of peaceful assembly, and its last version considered most of the comments
expressed by the Venice Commission in its joint opinions. 736 The only question remaining
open is whether and when the parliament will adopt the law.

732 The Law of Ukraine “On printed mass media in Ukr aine” of 16 November 1992 (last amendment by the law
no. 409 -18 of 28/07/2013), available at: https://zakon2.rada.gov.ua/laws/show/2782 -12 (last accessed: 17
November 2013). 733 § 28, Shmushkovych v. Ukraine, application no. 3276/10 , 14/11/2013, available at HUDOC:
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -128050 #{%22itemid%22:[%22001 –
128050%22]} (last accessed: 30 December 2013). 734 Draft law on peaceful assemblies in Ukraine is available in English from:
https://legislationline.org/download/action/download/id/3358/file/Ukraine_Draft%20Law%20on%20Peace
ful%20Assemblies_2010_en.pdf (last accessed: 30 December 2013). 735 Ukrainian Helsinki Human Rights Union (2013), Human rights : T he law “On freedom of peaceful assembly”
may be the most liberal in Europe , 22/10/2013. Available at:
https://helsinki.org.ua/index.php?id=1382426506 (last accessed: 29 December 2013. 736 §6 of the Joint Opinion on the Law on Peaceful Assemblies of Ukraine by the Venice Commission and the
ODIHR of 19 October 2010, Opinion no. 592/2010, ODIHR Opinion Nr.: FOA –UKR/168/2010 (MA),
available at: https://www.venice.coe.int/WebForms/documents/?pdf=CDL -AD%282010%29033 -e (last
accessed: 15 November 2013).

99
Poland
by Maria Sto żek

1. Legal bases
In Poland freedom of assembly is regulated in Art . 57 of the Constitution: “The freedom of
peaceful assembly and participation in such assemblies shall be ensured to everyone.
Limitations upon such freedoms may be imposed by statute.” 737
According to the Law on Assemblies, 738 an assembly is a gathering in wh ich at least 15
persons participate, in order to confer over something or with an aim to express their position.
The right to organize assemblies is granted only to persons who have full capacity to legal
acts, to legal persons, other organizations, as wel l as groups of persons. Everybody, except
persons carrying a gun, explosive materials, pyrotechnic materials, hazardous fire materials or
other dangerous tools, can participate in an assembly.
2. Scope of the guarantee
Polish administrative courts genera lly assert that the freedom of assembly is of such
fundamental constitutional value that the authorities dispose of very limited discretion in
prohibiting an assembly. 739 Similarly, the Polish Supreme Court found that a decision of
prohibiting an assembly sh ould be based on provisions that guarantee freedom of assembly,
and not merely on the rights and freedoms of other persons. 740
The Polish Constitutional Court found that “[f]reedom to organize assemblies means in
particular to ensure the freedom to choose th e time and place of the assembly, the form of
expressing views and freedom in setting the agenda of an assembly. Freedom to participate in
assemblies includes also the freedom to refuse to participate in an assembly”. 741
In Poland there was an incident of pr ohibiting, for ideological reasons, a gay pride parade
(“Equality Parade”) in Warsaw in June 2005, which was brought before the ECtHR in
Bączkowski and Others v. Poland .742 A group planned to hold a march and several assemblies
to draw society’s attention to the situation of various groups of persons who were
discriminated against, especially gays and lesbians. The assemblies were initially banned by
the mayor of Warsaw who required submitting “a traffic organization plan”. The assemblies
were held despite th e ban and were protected by the police. Applicants filed an appeal arguing
that the requirement to submit “a traffic organization plan” lacked a legal basis and the
737 The Constitution of the Republic of Poland as adopted by the National Assembly on 2nd April 1997 –
Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Dz.U. 1997, Nr 78 poz. 483 ze zm.),
hereinafter: Constitution. 738 Law on Assemblies of 1 August 1990 – Ustawa z dnia 5 lipca 1990 r. Prawo o zgromadzeniach (Dz.U. 1990,
Nr 51, poz. 297 ze zm. ), hereinafter: Law on Assemblies. 739 See judgments of the Polish Supreme Administrative Court (I OSK 329/06, I OSK 1907/10, I OSK 448/11)
and Polish Regional Administrative Courts (IV SA/Po 983/05, IV SA/Wr 216/08, IV SA/Po 888/09, VII
SA/Wa 1856/10, VIII SA/Wa 78/09, III SA/Gd 68/11). 740 See judgments of the Polish Supreme Administrative Court (I OSK 329/06, I OSK 1907/10, I OSK 448/11)
and Polish Regional Administrative Courts (IV SA/Po 983/05, IV SA/Wr 216/08, IV SA/Po 888/09, VII
SA/Wa 1856/10, VIII SA/W a 78/09, III SA/Gd 68/11). See also Polish Supreme Court Judgment of 5
January 2011 (III RN 38/00) where the President of the city T. prohibited an assembly based on the fact
that it would constitute a nuisance for a group of residents of the house next to the place, where the
assembly was planned to take place (residents protested against the place of the assembly). The
President’s decision was supported inter alia by Art . 31 para . 2 of the Polish Constitution (“No one shall
be compelled to do that which i s not required by law.”). 741 See Judgment of the Constitutional Court of 28 June 2000, K 34/99, (OTK 2000, Nr 5, poz. 142). 742 Bączkowski and Others v. Poland , Application No. 1543/06, Judgment of 3 May 2007, violation of Arts . 11,
13 and 14.

100
mayor’s decision was ideologically motivated. The Governor overturned the mayor's decision.
The ECtHR found that: “[T]he assemblies were held without a presumption of legality, such a
presumption constituting a vital aspect of effective and unhindered exercise of freedom of
assembly and freedom of expression. The Court observes that the refusals to give
authorization could have had a chilling effect on the applicants and other participants in the
assemblies” (at 67).
In 2006, the Polish Constitutional Court also discussed the incident of banning the “Equality
Parade”. 743 The case was initiated by the Commissioner for Citizens’ Rights who challenged
the requirement to obtain permission for an assembly that hinders road traffic or requires the
use of a road 744. The Commissioner argued that local authorities refused to grant permission
for assemblies du e to the failure to fulfill the requirements (e.g. in the case of the “Equality
Parade”). At the same time, events of a religious nature do not require such permissions. The
Court found that the reviewed provision placed different types of events on the sa me level,
even though they are not of the same constitutional nature. Freedom of assembly is a
fundamental political freedom, and therefore may not be subject to the same regulations as
politically neutral events, such as the organization of athletic compe titions, rallies, races. The
legislator rightly noticed the difference between the latter and events of religious nature (such
as processions, pilgrimages, funeral processions). 745 However, the legislator had failed to
account for the constitutional nature o f the freedom of assembly. There are no grounds to
differentiate between the statutory regulation of enjoyment of the constitutional freedom of
conscience and religion (Art . 53 para . 1 and para . 2 of the Constitution) and the enjoyment of
the constitutiona l freedom to organize peaceful assemblies (Art . 57 of the Constitution). The
restrictions on freedom of assembly imposed by the Road Traffic Law were in breach of the
requirement of proportionality and incompatible with the Constitution in so far as it app lied to
assemblies.
The Constitutional Court specified, “moral convictions of the public officials are not a
synonym for „public morality” as a limitation to the freedom to assemble”. 746 Similarly, the
Supreme Administrative Court adjudicating the case of „ Equality Parade” found that: “In the
context of freedom of organizing peaceful assemblies, it is not the role of public
administration or administrative courts to analyze slogans, ideas and concepts expressed at an
assembly, that are in accordance to laws, by the prism of own moral convictions of public
officials or judges adjudicating the case, or by the prism of convictions of the majority of the
743 See Judgment of the Constitutional Court of 18 January 2006, K 21/05 (OTK -A 2006, Nr 1, poz. 4). 744 According to Art . 65 of the Road Traffic Law of 20 June 1997 – Ustawa z dnia 20 czerwca 1997 r. Prawo o
ruchu drogowym (Dz.U. z 2003 r. Nr 58 poz. 515 ze zm.) a n assembly that creates difficulties in the road
traffic or requires specific use of the road, may be held upon prior permission issued by authority, which
manages traffic on the given road, and on condition of providing security and order during the whole time
of the assembly ( See Art. 65 of the Road Traffic Law: “Sports competitions, rallies, races, assemblies and
other events that cause traffic problems or require a special use of the road may only be held if safety and
order during the event have been s ecured and permission has been obtained for holding that event”). 745 Cf. CDL -AD(2009)035 Opinion on the Draft Law on Meetings, Rallies and Manifestations of Bulgaria, para.
14: “The (…) Law shall not apply to cultural and sport events, weddings, family and friendly
celebrations, funeral rites, religious ceremonies (…). These exceptions are consistent with the idea of
assemblies under Article 11 ECHR that does not include assemblies for social purposes.” 746 Cf. Judgment of the Constitutional Court of 28 June 2000, supra Fn. 741 . The case was initiated by a group
of Members of the Polish Parliament who claimed the Art .65 para s. 1-5 of the Road Traffic Act 1997 was
inconsistent with the constitutional provisions of the freedom to organize peaceful assemblies. The
applicants called to distinguish between organizing sporting and recreative events, on one hand, and
events that involve exercising political a nd cultural rights, on the other. They alleged that the obligations
as stipulated in the Art . 65 para s. 1-5 of the Road Traffic Act 1997 restrict the right of the less affluent
members of society to organize such assemblies. The Tribunal found that regardl ess of the character of an
event the road has to be prepared for the purpose of an assembly, and for the participants of the road
traffic a substitute route should be ensured.

101
society. Such analysis would violate the constitutional freedom of assembly, and the Law on
Assemblies”. 747
Beca use of the violent character of assemblies, there is a tendency to restricting the freedom
to assemble. These restrictions include examples of prohibiting assemblies for fear of
violence, suggestions of restricting anonymous assembly participation, 748 and su ggestions to
collect monetary deposits from organizers to secure the peaceful character assemblies. 749
The Constitutional Court in 2004 disapproved restricting the anonymous participation in
assemblies. 750 The case was initiated by the President of the Republi c of Poland, who
requested primary review of an act prohibiting the organization of assemblies in which
persons participate, whose appearance renders their identification impossible. 751 The
President alleged that these provisions failed to conform to the fre edom of assembly as
guaranteed by Art . 57 of the Constitution, read in conjunction with the principle of
proportionality (Art . 31 para 3), and the principle of the rule of law (Art . 2). The Court found
that the right of a demonstrator to remain anonymous presents an essential element of the
content of the constitutional freedom of assembly. The Court observed that the prohibition
also concerned persons who do not disturb the peaceful character of the assembly, but may
not want to be identified for other reasons. Additionally, the Police Law provides the
possibility for the police to determine the identity of persons participating in the assembly if a
threat to its peaceful nature occu rs.

Experiences with flashmobs
In Poland flashmob participants do not exercise the same rights as participants of an
assembly, as they do not share an intention to participate at a public debate (e.g. flashmob in
Krakow on 30 January 2011 when people “froze” after the sound of the trumpe t signal from
St. Mary’s towers 752 ).
747 See Judgment of the Supreme Administrative Court of 25 May 2006, I OSK 329/06. 748 On wearing masks during the assembly see BODNAR A., (2008) Shaping the Freedom of Assembly:
Counter -Productive Effects of the Polish Road towards Illiberal Democracy. In: SAJO, A. (ed) Free to
Protest: Constituent Power and Street Demonstration . Utrech t: Eleven International Publishing, pp. 165 –
187. 749 Regarding contemporary discussions on restrictions of assemblies in Poland see generally e.g. HFHR (2012)
Public hearing on the Assemblies Act , [WWW]. Available at:
https://humanrightshouse.org/Articles/17770.html (last accessed: 03 December 2013) ; HFHR (2012)
Poland: Appealing against a ban on an assembly [WWW]. Available at:
https://humanrightshouse.org/Articles/18364.html (last accessed: 03 December 2013) ; HFHR (2012) 32
non -governmental organisations has issued an open letter on the Assemblies Act [WWW]. Available at:
https://humanrightshouse.org/Articles/18357.html (last accessed: 03 December 2013) . 750 See Judgment of the Polish Constitutional Court of 10 November 2004, Kp 1/04 (OTK -A 2004, Nr 10, poz.
105). Proposal of prohibiting d emonstration of participants covering up their faces and the establishment
of joint and several civil liability of the assembly organizer and perpetrator of any damage, gained
parliamentary approval and took the form of the Assemblies and Road Traffic Amen dment Act of 2004
that was challenged before the Court. 751 Cf. CDL -AD (2012)006 OSCE/ODIHR – Venice Commission Joint Opinion on Law on Mass Events in the
Republic of Belarus, para. 108: “Article 11 further provides that people may not protect their identit y by
wearing masks. Such prohibition is in violation of the right to freedom of expression and also the right to
personal identity, a person’s manner of appearance under Article 17 of the ICCPR and Article 8 of the
ECHR respectively. As stated by the OSCE/ ODIHR – Venice Commission Guidelines, “The wearing of a
mask for expressive purposes at a peaceful assembly should not be prohibited, so long as the mask or
costume is not worn for the purpose of preventing the identification of a person whose conduct creat es
probable cause for arrest and so long as the mask does not create a clear and present danger of imminent
unlawful conduct”. 752 MAJ, W. (2011) Flash Mob: Freeze – Kraków (Poland), 30.01.2011 [YOUTUBE] 30th January. Available at:
https://www.youtube.com/watch?v=izOGgrAmc4g (last accessed: 03 December 2013) .

102
3. Restrictions
The municipality prohibits a public assembly if its goal or holding is incompatible with the
Law on Assemblies or violates pro visions of penal laws; or if the holding of an assembly may
pose a substantial threat to the life or health of people or property of considerable value.
Art . 233 of the Constitution allows for limitation of the freedom of assembly in times of
martial law a nd states of emergency, and during states of natural disaster. The limitations as a
part of the extraordinary measures may be introduced only by a regulation, issued upon the
basis of a statute, which regulates the principles of activity by organs of publi c authority as
well as the degree to which freedoms and rights of persons and citizens may be subject to
limitation for the duration of a period requiring any extraordinary measures, and which shall
additionally require to be publicized (Art . 228 of the Co nstitution). Propagating nazi, fascist
or communist views is forbidden by the Constitution (Art . 13 of the Constitution). 753
There are no limitations (other than procedural ones) concerning types of gatherings or places
where the freedom of assembly can be exercised. Freedom of assembly may be subject to
limitations only if those limitations are provided by law and are necessary for the protection
of state security or public order or public health or public morality or rights and freedoms of
other people. Mo reover, according to the Law on the protection of the areas of the former
Nazi Extermination Camps 754, assemblies near the Monument of Extermination, require prior
consent – through administrative decision – of a responsible Governor. The Governor refuses
the consent if the assembly violates the Law on the protection of the areas of the former Nazi
Extermination Camps, Law on Assemblies or the provisions of penal law; the holding of that
assembly may pose a threat to the life or health of individuals or to pr operty of considerable
value, or if the purpose or fact of the holding of that assembly may disturb the dignity or
nature of the Monument of Extermination. If the assembly is to be held in the neighborhood
of an embassy, consular offices, or international organizations which enjoy diplomatic
immunity, the municipality is obliged to notify the responsible Police commander and
Ministry of Foreign Affairs. If the assembly is organized near the buildings which are under
the protection of the Bureau for the Prot ection of the Government, the municipality informs
the Chief of the Bureau for the Protection of the Government about the place, date, and the
estimated number of participants.
4. Procedural issues
Notification
The organizer of an assembly is obliged to n otify the relevant municipal council ( Rada
Gminy ) about the planned gathering not earlier then 30 days and not later than 3 days before
the date of the planned assembly. The notification should include: name, birth date, address of
the organizer; name, bir th date, address and photograph of the leader 755; and name and address
753 Cf. CDL -AD(2010)049 Interim Joint Opinion on the Draft Law on Assemblies of the Republic of Armenia,
by the Venice Commission and OSCE/ODIHR , paras. 29 -30: “(…) it is important to mention that events
aimed to make public calls to war, to incite hatred towards racial, ethnic, religious or other groups, or for
other manifestly bellicose purposes would be deemed unlawful and their prohibition would be justified in
the light of the requirement to balance the freedom of assembly against other human rights, including the
prohibition on discrimination. There is, however, a fine line between the degree of restriction necessary to
safeguard other hum an rights, and an encroachment on the freedom of assembly and expression. The test
is the presence of the element of violence. (…) In order for the Draft Law to be consistent with the
Guidelines, the text should include the reference to the “element of vio lence” requirement”. 754 Law on the protection of the areas of the former Nazi Extermination Camps of 7 May 1999 – Ustawa z dnia 7
maja 1999 r. o ochronie terenów byłych hitlerowskich obozów zagłady (Dz.U. 1999, Nr 41, poz. 412 ze
zm.) 755 Each assembly has a leader who is responsible for the lawful conduct of the assembly. A leader may be the
organizer of the assembly.

103
of a legal persona or other organization, if he is organizing assembly on its behalf; goal and
agenda and language in which the participant of the assembly will communicate; place and
dat e, exact hour of the beginning of an assembly, planned duration of an assembly, planned
number of participants, planned route of march, description of measures, which ensure
peaceful run of an assembly, and measures, which the organizer requests from the m unicipal
authorities.
According to the Law on Higher Education, 756 assemblies held in the buildings of universities
require prior consent of the rector of the university. Organizers need to notify the rector no
later than 24 hours before the planned start o f that assembly.
Decision -making
The municipal council may decide that in certain areas, organization of an assembly does not
require notification.
Review and appeal
The decision on prohibition of an assembly issued by a municipality may be appealed to the
Governor ( wojewoda ) and complaints about decisions on assemblies are filed directly to the
administrative court.
5. Specific forms of assemblies
Spontaneous assemblies
The Law on Higher Education is the only Polish statutory law that mentions an “urgent”
assembly: in urgent cases, the rector may accept a shorter notice. In Poland, holding an
assembly without prior notification is penalized (Art . 52 para 1(2) of the Code of
Contraventions 757). This penalization was challenged before the Constitutional Court. 758 The
Court found that penalization was in accordance with the constitutional freedom of assembly.
At the same time, the Court observed that “the assembly that was not registered (without
notification) cannot be identified as illegal” 759, and therefore sponta neous assemblies have the
same constitutional protection as those that were planned and organized after notification. It is
the court’s responsibility to determine whether in concrete circumstances there was a
possibility of notification. Similarly, the EC tHR found in Skiba v. Poland 760 that “(…) the
obligation [of notification] on the applicant under domestic law could not be considered an
excessive or unreasonable requirement capable of surreptitiously restricting his right to
freedom of peaceful assembly” and “applicant’s criminal conviction did not appear
disproportionate to the legitimate aims pursued”. 761
756 Law on Higher Education of 27 September 1990 – Ustawa z dnia 12 września 1990 r. o szkolnictwie
wyższym (Dz. U. 1990, Nr 65, poz. 385 ze zm. ) 757 Code of Contraventions of 20 May 1971 – Ustawa z dnia 20 maja 1971 r. Kodeks wykroczeń (Dz. U. z 2007
r. Nr 109, poz. 756 ze zm.), hereinafter: Code of Contraventions. 758 Judgement of the Polish Constitutional Court of 10 July 2008, P 15/08 (OTK 2008, N r 6, poz. 105). For the
background of this case see BODNAR A., supra Fn. 748 , pp. 165 -187. 759 Cf. Bukta and Others v. Hungary (Application No. 25691/04). 760 See ECtHR , Skiba v. Poland , Application no. 10659/05, decision of 7 July 2009 ( inadmissible), where the
Court examined imposition of a fine for presiding over a peaceful meeting without giving prior notice to
the authorities. The applicant organized a spontaneous peaceful assembly before an art gallery against
defamation of religion at an exhibition. Applicant was fined for organizing a public meeting without
notifying the authorities. 761 Cf. CDL -AD(2009)034 Joint Opinion on th e Draft Law on Assemblies of the Kyrgyz Republic by the Venice
Commission and OSCE/ODIHR, para. 36: “Spontaneous assemblies by definition are not notified in
advance since they generally arise in response to some occurrence which could not have been reaso nably
anticipated”.

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Assemblies gathered by means of new technologies
Recently gatherings called up by means of new technologies have been discussed in Poland,
after a case of a gathering of an entertaining character organized on 27 April 2013 through
social media – “Facebook” – in Zakrzówek. Around 22,000 people gathered at one spot, and
as a result several participants were injured. Organizer Anna K. is currently facing ch arges for
organizing a mass gathering without permit 762).
Counter -demonstrations
The municipality might summon the organizer of the assembly to amend the time and place of
the assembly or the walking route of the participants if notifications for assemblies
coincide. 763 If the organizer fails to conform, the municipality prohibits an assembly. The
Polish Constitutional Court in 2006 pointed out that the risk of a counter -demonstration
should not lead to the prohibition of a peaceful assembly, even if there is a serious threat to
public order. 764
6. Implementing freedom of assembly legislation
Pre -event planning
The notification of an assembly includes information about measures, which the organizer
requests from the municipal authorities.
Costs
There are no fees for organizing an assembly in Poland.
No strict liability of the organizers
In 2004, the Constitutional Court disapproved strict liability of assembly organizer. 765 The
Court found that the provision stating, “the assembly organizer and p erpetrator of damage
shall be held jointly and severally liable for any damage committed by a participant in the
course of an assembly or directly following its dissolution” lacks specificity and legal
certainty. The Court noted that even the utmost dilige nce of the assembly organizers would
not preclude their liability. Such a provision might discourage potential assembly organizers.
Use of force by the police
Poland is currently challenged with the problem of extremists joining assemblies or counter –
demo nstrations, and ensuing violence. 766 Even though the main responsibility for the safety
762 INSIDE POLAND (2013) Woman faces eight years in jail for organizing ‘illegal’ party via Facebook,
[WWW]. 7th November. Available at: https://inside -poland.com/t/woman -faces -eight -years -in-jail -for –
organising -illegal -party -via -facebook/ (last accessed: 03 December 2013) . 763 Cf. CDL -AD(2005)007 Opinion on the Draft Law making Amendments and Addenda to the Law on
Conducting Meetings, Assemblies, Rallies and Demonstrations of the Republic of Armenia, para. 20:
“The right to counter -demonstrate should only be limited in connectio n with genuine security or public
order consideration.”, CDL -AD(2010)049 Interim Joint Opinion on the Draft Law on Assemblies of the
Republic of Armenia by the Venice Commission and OSCE/ODIHR, para. 25: “Whilst the right to
counter -demonstrate does not ex tend to inhibiting the right of others to demonstrate, an “imminent danger
of a clash” should not necessarily be a reason for prohibiting one of the assemblies from taking place at
the same time and in the same vicinity. Emphasis should be placed on the st ate’s duty to protect and
facilitate each event and the state should make available adequate policing resources to facilitate both to
the extent possible within sight and sound of one another”. 764 See Judgment of the Constitutional Court of 18 January 2006, supra Fn. 743 . 765 See Judgment of the Polish Constitutional Court of 10 November 2004, supra Fn. 750 . 766 See e.g. recent assemblies on Polish Independence Day turned violent: RADIO FREE EUROPE (2013)
Moscow Demands Apology From Poland Over Embassy Violence [WWW]. Available at:

105
stays with the organizer of the event, the police may ensure peace in public places during the
assembly, according to the Police Law. The police can restore public order when the assembly
is illegal, the assembly was disbanded by its leader or a municipality, in the situation, when its
continuation constitutes a threat for the life or health of people 767 or to property, or when the
assembly disturbs the regulations laid down in the Law on Assembly or the regulations of the
penal provisions, when the gathering refuses to disperse.
7. Securing government accountability
Liability and accountability of law enforcement personnel
In case of exceeding its prescribed competences, th e police officer bears a disciplinary and a
criminal responsibility. 768 (For example in May 2013, the police officer Andrzej C. was found
guilty and sentenced for attacking Daniel K., participant of an assembly during the Polish
Independence Day of 11 Febru ary 2011 769).
Monitoring
The NGO that monitors freedom of assembly in Poland is Helsinki Foundation of Human
Rights with a program: “Observation of Public Assemblies in Poland”
([WWW] https://programy.hfhr.pl/zgromadzenia/about -project/).
Media access
In Poland p ublic assemblies are largely covered by the representatives of the media , and there
is no i ndependent provision on media coverage of public assemblies.
8. Conclusions and outlook
Poland currently faces several challenges regarding the freedom of a ssembly. The first
pertains to how to properly balance the constitutional freedom to assemble with the need to
appropriately respond to assemblies that might lose their peaceful character. There is the
tendency to limit the application of the guarantee to assemblies that are unlikely to turn
violent. 770

https://www.rferl.org/content/russia -poland -tension -diplomacy -nationalism/25165359.html (last accessed:
03 December 2013) ; BBC (2012) Poland Independence Da y march turns violent [WWW]. Available
from: https://www.bbc.co.uk/news/world -europe -20286409 (last accessed: 03 December 2013) . 767 Police Law of 6 April 1990 – Ustawa z dnia 6 kwietnia 1990 r. o Policji (Dz.U. 1990, Nr 30, poz. 179 ze
zm.). 768 Cf. CDL -AD(2009)052 Joint Opinion on the Order of Organising and Conducting Peaceful Events of Ukraine
by the Venice Commission and OSCE/ODIHR, para. 71: “International standards require that law
enforceme nt officials should use force only as a last resort, in proportion to the aim pursued, and in a way
that minimizes damage and injury. While it is not indispensable for the provision, a reference to liability
for unlawful or excessive use of force by law en forcement bodies might be beneficial, though such
liability is necessarily already contained in laws governing conduct of officials”. 769 GAZETA WYBORCZA (2013) Policjant skazany za pobicie uczestnika Marszu Niepodległości. "Bił z furią i
agresją" [WWW]. Ava ilable at:
https://wyborcza.pl/1,75478,13956681,Policjant_skazany_za_pobicie_uczestnika_Marszu_Niepodleglosci
_.html (last accessed: 03 December 2013) . 770 Cf. CDL -AD (2010)050 OSCE/ODIHR – Venice Commission Joint Opinion of Draft Law on Peaceful
Assemblies of the Kyrgyz Republic, para. 19: “The OSCE/ODIHR and the Venice Commission, would
like to note, that since that time, in their assessm ent of legislation on freedom of assembly, they have
recommended, in relation to laws relating to assembly that they have examined, that the title be “law on
freedom of assembly”. By removing the term ”peaceful”, legislation acknowledges and covers not onl y
peaceful assemblies, but also addresses the cases where assemblies are not peaceful, or degenerate into
non -peaceful assemblies. Ideally therefore, the title of the law should be amended to “Law on Freedom of
Assembly”, CDL -AD(2012)007 Opinion on the Fed eral Law on assemblies, meetings, demonstrations,
marches and pickets of the Russian Federation, para. 37: “The Venice Commission agrees, in general, that

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Another problem is the reaction of Polish local authorities to assemblies that do not comply
with their ideological beliefs (e.g. in the case of “Equality Parade” 771 ), even though Polish
laws fall within the “n otification” scheme, rather than requiring an authorization. It is
established case law that the banning of assemblies cannot be based on the moral convictions
of public officials or judges. 772
In Poland, spontaneous assemblies are not specifically regulated .773 They are protected by the
constitutional guarantee of the freedom of assembly as long as they are truly spontaneous and
the purported spontaneity is not a circumvention of the notification requirement. In that case,
organizers of unnotified, not spontan eous assemblies face a penalty up to 14 days of
imprisonment. 774 However, if an assembly truly formed spontaneously in relation because
spontaneous protest to a current event arose so that the character of the assembly would have
been changed or the assembly would not have taken place altogether if postponed, courts
accept these events and desist from penalization. A shorter period of notification for
spontaneous assemblies (currently it is three days before the assembly), including the
possibility of using n on -formal means of communication (phone/fax/email), would improve
this somewhat unclear situation.

provision for a timeframe for the notification of public events may be helpful as it enables the auth orities
to take reasonable and appropriate measures in order to guarantee their smooth conduct. It recalls
however that there may be cases in which a public event is organized as an urgent or spontaneous
response to an unpredicted event, in which case it m ay not be possible to respect the ordinary timeframe
for notification. Spontaneous and urgent assemblies are protected by Article 11 ECHR”. 771 On this topic see mostly BODNAR A., supra Fn. 748 , pp. 165 -187. See also GRAFF, A. (2006) We Are (Not
All) Homophobes: A Report from Poland. Feminist Studies , 32 (2), p. 436 (who argues that decisions of
Warsaw mayor Lech Kaczynski, who banned gay rights marche s in 2004 and 2005, were not arbitrary,
but were well -planned moves in his political career), and for an overview see GRUSZCZYNSKA, A.
(2006) Living La Vida Internet. Some Notes on the Cyberization of Polish LGBT Community. In:
KUHAR, R., TAKACS, J. (eds.) Beyond the Pink Curtain: Everyday Life of LGBT People in Eastern
Europe . Peace Institute, pp. 95 -115. Available format :
https://www.policy.hu/takacs/books /isbn9616455459/pdf/peace -mirror/07_Gruszczynska.pdf
(last Accessed 03 December 2013) . 772 See Judgment of the Constitutional Court of 18 January 2006, supra Fn. 743 and Judgment of the Supreme
Administrative Court of 25 May 2006, supra Fn. 747 . 773 The only exceptions are urgent assemblies held in the buildings of universities. 774 See e.g. Skiba v. Poland , supra Fn. 760 .

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Serbia
by Friederike Ziemer

1. Introduction
Freedom of Assembly in Serbia presents an interesting case in so far as the constitutional
right is not defined as a human, but as a citizen’s right . This distinction is criticised by
international organizations; 775 however, it is undisputed in Serbia. The focus of public debate
on human rights in Serbia does not lie on Freedom of Assembly, which can be seen b y the
merely marginal mentioning of this topic in human rights reports. Nevertheless, Freedom of
Assembly has been an issue during the last years because of the various bans of Belgrade
[Gay] Pride Parades which have been criticized by the public in Serbia as well as by
numerous international organizations. Violent counter -demonstrations remain a problematic
issue for many assemblies held by minority groups.
Furthermore, the Public Assembly Act which governs Freedom of Assembly is in itself
controversial fo r reasons discussed below. 776 Its constitutionality has been disputed and it
might have to be altered in the near future which could lead to important improvements in the
handling of the Freedom of Assembly.
2. Legal bases and scope of the guarantee
Freedom of Assembly is guaranteed in Art. 54 of the Serbian Constitution which reads as
follows:” Citizens may assemble freely. Assembly held indoors shall not be subjected to
permission or registering.
Gathering, demonstrations and other forms of assembly held ou tdoors shall be reported to the
state body, in accordance with the law. Freedom of assembly may be restricted by the law
only if necessary to protect public health, morals, rights of others or the security of the
Republic of Serbia.
The interpretation of F reedom of Assembly is further laid out in the Public Assembly Act 777
(henceforth PAA).
The Constitutional Court interprets Freedom of Assembly under Art. 54 of the Serbian
Constitution as protecting the freedom of citizens to assemble peacefully. 778 It clarifi es that an
assembly is peaceful when its participants plan a peaceful gathering, notwithstanding the fact
that violent reactions by others are likely to occur. 779 Where restrictions to this freedom are
concerned, it is, however, mostly reluctant to declare t hem as a violation of the Freedom of
Assembly. For example, the Constitutional Court decided that restrictions on time and
location of an assembly do not violate the Freedom of Assembly. 780 Furthermore, it gives the
local authorities a lot of leeway in deter mining whether or not an assembly should be banned.
The ban of an assembly for reasons under Art. 11 (1) PAA is not examined with a high level
of scrutiny; the Constitutional Court usually determines only whether the local authorities
decided arbitrarily. 781 Therefore, the ban of an assembly by the organization “women in black”
has been held to violate the Freedom of Assembly because the decision to ban the assembly
775 Venice Commission, Opinion on the Constitution of Serbia, Opinion No. 405/2006, pp. 9 -10. 776 Cf. Venice Commission and OSCE/ODIHR, Joint Opinion on the Public Assembly Act of the Republic of
Serbia, Opinion No. 597/2010. 777 Official Gazette RS Nos. 51/92, 53/93, 67/93, 17/99, 33/99, 48/94, Official Gazette FRY No. 21/2001,
Official Gazette RS Nos. 29/2001, 101/2005. 778 Decision Уж -5284/2011 of 18 April 2013; Decision IУз -204/2013 of 30 May 2013. 779 Decision Уж -4078/2010 of 29 February 2012. 780 Decision IУ -201/2004 of 7 October 20 04. 781 Cf. Decision Уж -5284/2011 of 18 April 2013.

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lacked a sufficient statement of reasons. 782 A violation of the Freedom of Assembly has also
bee n seen in the insufficient possibility of organizers to contest the local authorities’ decision
on a ban. The Constitutional Court stated that this violated the organizers’ right to judicial
protection under Art. 22 (1) and their right to a legal remedy un der Art. 36 (2) of the Serbian
Constitution amounting also to a violation of their Freedom of Assembly. 783
When interpreting the Freedom of Assembly, the Constitutional Court is reluctant to make
many references to ECtHR case -law which might be because the E CtHR has yet to rule on
Serbian cases concerning Freedom of Assembly. Nevertheless, both parties arguing that their
Freedom of Assembly has been violated and the Constitutional Court frequently cite not only
the guarantee as found in Art. 54 of the Serbian Constitution, but also Art. 10 ECHR. 784
Furthermore, the Constitutional Court has cited ECtHR case -law when deciding on the ban of
radical organizations. 785 In these decisions, the radical organizations’ violent reactions to
peaceful assemblies are cited as a further ground for establishing the unconstitutionality of
said organizations. 786
A recent important development can be seen in the Constitutional Court’s decision of 30 May
2013: With this decision, the Constitutional Court initiated a procedure under Art. 168 (1) of
the Serbian Constitution in order to assess whether the PAA is compatible with Art. 54 of the
Serbian Constitution. 787 It expressed concerns that the grounds for a temporary ban as
expressed in Art. 9 (1) PAA which depend on the purpose of an ass embly are not expressly
provided for in Art. 54 of the Serbian Constitution. It also stated that the type of legal
restrictions may have to depend on the reasons for restrictions; this particular concern might
be interpreted as an attempt to include the cr iterion of proportionality for restrictions. Further
concerns expressed in the Constitutional Court’s decision are related to the legal remedies
organizers have in order to contest a ban of an assembly, namely in relation to the time in
which a court decis ion can be obtained since under the current law, the decision might only be
delivered after the scheduled beginning of the assembly. Finally, the current praxis of
allowing local authorities to designate locations adequate for public assemblies is conteste d,
since it might be necessary to allow assemblies in all locations except when constitutionally
defined reasons for a restriction of the Freedom of Assembly are apparent.
3. Restrictions
Freedom of Assembly is firstly restricted by the Serbian Constitutio n in so far as only
peaceful assemblies of citizens are protected. 788 Further restrictions are set out by the
definitions set out in Arts. 2 and 3 PAA and assemblies that have been registered can be
restricted due to the reasons listed in Arts. 9 and 11 PAA.
Art. 2 (1) PAA defines public assemblies under the PAA as the organization and holding of a
meeting or other type of gathering in a location adequate for the purpose. Therefore, Freedom
of Assembly is guaranteed merely in locations adequate for public as semblies under Art. 2
(2), (3) PAA. These locations are designated by municipality or city regulations under Art. 2
(8) PAA (see e.g. for Belgrade: Decision on Determining the Area for Assemblies of Citizens
in Belgrade 789).
Furthermore, Freedom of Assembly can be restricted in regard of the time assemblies can be
held: According to Art. 2 (6) PAA, assemblies in a location in which public transport takes
782 Decision Уж -4078/2010 of 29 February 2012. 783 Decision Уж -5284/2011 of 18 April 2013. 784 Cf. Decision IУ -201/2004 of 7 October 2004; Decision VIIУ -249/2009 of 12 June 2012. 785 Decision VIIУ -279/2009 of 17 March 2011; Decision VIIУ -249/2009 of 12 June 2012. 786 Ibid. 787 Decision IУз -204/2013 of 30 May 2013. 788 Cf. Constitutional Court, Decision Уж -5284/2011 of 18 April 2013; Decision IУз -204/2013 of 30 May 2013. 789 Official List of t he City of Belgrade No. 13/97.

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place may only be held between 8 a.m. and 2 p.m. and between 6 p.m. and 11 p.m. with a
maximum duration of three hours. Also, under Art. 2 (4) PAA, assemblies may not be held in
the vicinity of the Federal Assembly and the National Assembly of the Republic of Serbia
immediately before and during sessions. This particular provision has been contested before
the Constitutional Court which upheld it, stating that the provision ensures the conditions or
undisturbed activities of the National and Federal Assemblies and does not prevent Freedom
of Assembly since assemblies can be held either at another place or at an other time. 790
Moreover, under Art. 3 (2) PAA, assemblies that move from one location to another (public
processions) may only be held in an uninterrupted motion, i.e. the assembly may only halt at
the start and finishing points of the procession.
While Arts . 2 and 3 PAA define the term of public assembly protected under the PAA, Arts. 9
(1) and 11 (1) PAA list grounds for the temporary and final ban of assemblies.
A temporary ban under Art. 9 (1) PAA shall be issued if the assembly in question is directed
toward violent changes of the constitutional order, violation of territorial integrity and the
autonomy of the Republic of Serbia, a breach of human or civil rights and freedoms
guaranteed by the Constitution or the provoking or inciting of national, racial or religious
animosity or hatred.
Assemblies may be banned under Art. 11 (1) PAA in order to prevent an obstruction of public
transport or threats to health, public moral or the safety of persons and property. These
reasons are seen to correspond with the grounds for restriction as defined in Art. 54 of the
Serbian Constitution. 791
A further restriction has been introduced by a 2009 law prohibiting assemblies by neo -Nazi
and fascist organizations and associations. 792
4. Procedural issues
Notification
Public As semblies have to be notified by the organizers under Arts. 4, 6 PAA. According to
Art. 6 (1) PAA, the notification has to be submitted to local organizational units adjacent to
the Ministry of Interior at least 48 hours before the scheduled beginning of th e assembly. If
the assembly is scheduled to take place in a location where public transport takes place, the
notification has to be submitted at least five days prior to the assembly.
Art. 6 (4) PAA lays down the required content of the notification which covers program and
purpose of the assembly, location, time and duration, estimated number of participants and
information on the measures taken by the organizer for the purpose of maintaining order. If
the organizer fails to include relevant information, h e is warned by the authorized body to
complete the application; according to Art. 7 (2) PAA, the assembly is only regarded as
notified after the submission of a complete form.
Reported assemblies do not have to be authorized; however, they can be banned or
temporarily banned, of which the organizer has to be informed at least 12 hours before the
scheduled beginning of the assembly under Art. 9 (2) or Art. 11 (2) PAA.
Decision -making
The decision whether a complete application has been filed and whether an a ssembly should
be banned or temporarily banned lies with organizational units of the Ministry of Interior.
These units are dispersed throughout Serbia and organizers have to address the organizational
units responsible for the territory in which the assemb ly is to be held. If the organizational
790 Decision IУ -201/2004 of 7 October 2004. 791 Constitutional Court, Decision IУз -204/2013 of 30 May 2013. 792 Law Prohibiting the Holding of the Manifestations of Neo -Nazi and Fascist Organisations and Associations
and Using the Neo -Nazi or Fascist Emblems and Designations, Official Gazette of RS No. 41/09.

110
unit deems an application to be incomplete, it will set a time period for the completion of the
application under Art. 7 (1) PAA. If a change of the contents of the application is submitted, it
will be considered as the submission of a new application according to Art. 7 (3) PAA. This
new application also has to be filed within the time period discussed above. 793
A temporary ban of an assembly for reasons listed in Art. 9 (1) PAA has to be announced to
the organizer by the organizational unit not later than 12 hours before the scheduled beginning
of the assembly. Also within this time period, the organizational unit has to submit a
substantiated claim to the competent district court which will decide on the banning of th e
assembly.
If the organizational unit decides to ban an assembly under Art. 11 PAA, it also has to inform
the organizer at least 12 hours before the scheduled beginning of the assembly. Possible
complaints against the ban do not delay its execution.
Revie w and appeal
All temporary bans on assemblies have to be decided on by a County Court. The procedure
for such hearings is set out in Art. 10 PAA: The hearing has to be held within the 24 hours
upon receiving the claim by the organizational unit. It can be held even in absence of the
summoned parties. The County Court will decide to either annul the decision on the
temporary ban or to ban the assembly.
The same procedure applies if an assembly is terminated because grounds for the temporary
ban of an assembl y arise in the course of the assembly. In this case, under Art. 12 (4) PAA,
the competent district court has to decide on the ban of the terminated assembly within 12
hours after its termination.
Complaints against the decision to ban an assembly can be lodged within 24 hours after
receiving the decision. According to Art. 10 (6) PAA, a panel of three judges of the Supreme
Court decides on the complaint within 24 hours upon its receipt.
5. Specific forms of assemblies
Spontaneous assemblies
Spontaneous As semblies are not permitted under the PAA which does not provide for any
exceptions to the application period of at least 48 hours. Moreover, under Art. 14 PAA,
assemblies which are not properly applied for shall be prevented by the authorized body and
meas ures shall be taken to re -establish public order and peace. According to Art. 15 No. 1
PAA, the organizer of an assembly without previous application may also have to pay a
monetary fine or be imprisoned for up to 60 days.
Nevertheless, spontaneous assembl ies and even processions have taken place. For example,
after the recent ban of the 2013 Belgrade Pride Parade, LGBTI organizations spontaneously
held a midnight march with about 250 participants from the government building to the
parliament building. The participants were protected by police officers rushing to the scene
who did not dissolve the assembly. 794
Counter -demonstrations
Counter -demonstrations constitute an issue mainly where the safety of an assembly is
concerned. They often form without prior re gistration and have on occasion led to violence
against the original assembly. This has been problematic in the prominent case of the 2010
793 See above, 5. Procedural Issues – Notification. 794 The European Parliament’s Intergroup on LGBT Rights, 30 September 2013, https://www.lgbt -ep.eu/press –
releases/belgrade -pride -banned -for -third -year -sends -wrong -signal -for -accession -meps -say/ (last ac cessed:
10 March 2014) .

111
Belgrade Pride Parade when several thousand counter -demonstrators attacked the assembly, 795
but also other organization s suffer from violent counter -demonstrators. Therefore, assemblies
are sometimes banned with reference to a threat to personal safety after violent organizations
announce counter -demonstrations. 796
LGBTI rights/prohibition of Gay Pride Parades
LGBTI rights a re the most controversial topic related to Freedom of Assembly in Serbia.
Belgrade Pride Parades have been scheduled to take place over the last years; however, only
the 2010 Pride Parade was held whereas the parades in 2009, 2011, 2012 and 2013 were
eithe r banned or, as in the case of the 2009 parade, their location was changed shortly before
the scheduled beginning of the assembly which amounted to a de facto ban of the event. 797 In
the course of the 2010 parade, participants were kept safe due to heavy pol ice protection, but
the event nevertheless escalated due to violent reactions by spectators, resulting in physical
injuries of 150 police officers and members of the public, damage to the public infrastructure
amounting to over 1 Million € and 250 arrests. 798 In 2013, although the parade was once again
banned, a Belgrade Pride Festival could be held. 799 Before the parades could take place, there
have always been threats by right -wing associations and therefore, the Ministry of Interior
argues that the parades c onstitute a high security risk and even a heavy police escort of 6,500
to 7,000 officers in full protective gear would be unable to prevent an escalation of
violence. 800
6. Implementing Freedom of Assembly Legislation
Pre -Event Planning with Law Enforcement Officials (Freedom of the Organizer to Arrange
Freely (with Respect to Location, Form…)), Dynamic Concept of Organizer
The freedom of the organizer to arrange freely with respect to location and form of the
assembly is not guaranteed under Serbian law. As stated above, arrangements of the organizer
can be severely restricted under the PAA. 801 Furthermore, the Constitutional Court decided
that restrictions on time and location of an assembly do not violate Freedom of Assembly. 802
Costs
The costs for ensuring th e safety of the participants and other citizens are covered by the
Ministry of Interior. However, according to Art. 4 (2) PAA, if the organizer of an assembly
wishes to hold the assembly in a location in which public transport takes place, he has to bear
the costs incurred by temporary alteration of traffic and other costs incurred by an additional
performance of public services. He is also responsible for maintaining order within the
assembly.
795 Freedom House, 2011 Report on Serbia, https://www.freedomhouse.org/report/freedom -world/2011/serbia
(last accessed: 10 March 2014) . 796 Cf. the several Belg rade Pride Parades, e.g. Constitutional Court, Decision Уж -5284/2011 of 18 April 2013;
see also Decision Уж -4078/2010 of 29 February 2012. 797 On this last case see Constitutional Court, Decision Уж -1918/2009 of 22 December 2011. 798 The European Parliament’s Intergroup on LGBT Rights, 11 October 2010, https://www.lgbt -ep.eu/news –
stories/belgrade -pride -serbia -first -safe -pride -event/ (last accessed: 10 March 2014) ; 30 September 2011,
https://www.lgbt -ep.eu/press -releases/belgrade -pride -banned -meps -express -deep -regret/ (last accessed: 10
March 2014) . 799 European Commission , Serbia 2013 Progress Report, COM(2013) 700 final, p. 44. 800 See Ministry of Interior, Information on the Circumstances and Reasons that lead to the banning of Gay
Parade “Pride 2012” from the Point of View and Field of Jurisdiction of the Ministry of Inte rior, available
at https://wcd.coe.int/ViewDoc.jsp?id=2065499 (last accessed: 10 March 2014) . 801 See above, 4. Restrictions; cf. also Venice Commission and OSCE/ODIHR, Joint Opinion on the Public
Assembly Act of the Republic of Serbia, Opinion No. 597/2010, p. 8. 802 Decision IУ -201/2004 of 7 October 2004.

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Use of force by the police
Use of force is allowed within the limits of the Police Law 803 in order to ensure the protection
of the safety of persons and property of the participants of the assembly and of other citizens,
in order to maintain public order and peace, the safety of traffic or other activities related to
secure the assembly. Furthermore, use of force can be applied under Arts. 12 (2) and 14 PAA
in order to terminate assemblies that are either banned or not registered and to re -establish
order and peace.
Liability of organizers
According to Art. 15 PAA, orga nizers are liable for failing to maintain order in the assembly,
i.e. not organising a monitoring service, for gathering citizens without an application, for
holding an assembly regardless of a ban issued under Arts. 9 (1) or 11 (1) PAA or for not
terminat ing an assembly when so instructed under Art. 12 (1) PAA. In these cases, a monetary
fine of a maximum of 10,000 – 500,000 Dinars (depending on whether or not the organizer is
a legal entity) or imprisonment of up to 60 days are the penalty
7. Securing gov ernmental accountability
Liability and accountability of law enforcement personnel
Law Enforcement Personnel can be held accountable for a violation of participants’ rights.
Under Art. 180 Police Law, everyone can file a complaint to the Ministry of Interi or,
whereupon Internal Affairs will initiate a complaint resolution procedure. 804 After receiving a
notice of the outcome of said procedure, the complainant may pursue the usual legal remedies
to preserve his rights.
Monitoring
As follows from Art. 15 No. 1 PAA, monitoring the assembly falls within the maintaining of
order in the assembly and is therefore a duty of the organizer. If the organizer fails to organize
a monitoring service, he has to pay a monetary fine or can even be imprisoned for up to 60
days.
8. Conclusions and outlook
All in all, Freedom of Assembly is protected in Serbia. There are, however, numerous
restrictions of the freedom which are not all compatible with its scope under Art. 10 ECHR.
Nevertheless, important steps for the improvement of the legal protection of the Freedom of
Assembly have been taken. The Constitutional Court’s decision to initiate a procedure
assessing the constitutionality of the Public Assembly Act in its entirety could well lead to the
establishing of new rules conc erning Freedom of Assembly.
The problems regarding LGBTI rights have been addressed. The government has established
a new anti -discrimination agenda focusing also on police training in this matter. 805
Furthermore, the ban of violent organizations by decisio ns of the Constitutional Court as well
as the law banning neo -Nazi and fascist organizations will hopefully ensure that future events
are less often cancelled due to security concerns.

803 Official Gazette RS No. 101/2005. 804 The Complaint Resolution Procedure is then governed by the Complaints Procedure Regulation, Official
Gazette RS No. 54/2006. 805 European Commission, Serbia 2013 Progress Report, COM(2013) 700 final, p. 45.

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Hungary
by Orsolya Salát

1. Legal bases
Changing constitutional context: problematic constitutional text, uncertain continuity
with previous constitutional jurisprudence
After the 2010 election, a new government backed by 2/3 of the Parliament, a constitution –
amending majority, adopted a new constitution and hundreds o f laws in many respects
fundamentally rewriting the Hungarian legal order. The new 2012 constitution, entitled
Fundamental Law, protects freedom of assembly in its para. (1) Art. VIII, 806 when it spells out
that “everyone has the right to peaceful assembly.” Paras. (2) -(5) of the same article regulate
the right to freedom of association, including the right to form and join organizations, parties,
and trade unions.
Some specificities of the constitutional text and recent constitutional developments will be
mentioned at the outset, as some of them might question the assumption that fundamental
rights and rule of law are guaranteed in Hungary nowadays.
Two general developments have to be noted regarding the relation of the old and the new
constitution, includi ng their interpretation. In 2012, the Constitutional Court of Hungary
(HCC) ruled on the relation between its jurisprudence under the old constitution and the FL,
that it will take into account its earlier reasoning unless the applicable FL provision
contr adicts or departs from the provision in the former constitution. 807 In case of substantively
equivalent provisions, the HCC “shall provide justification not for following the principles
laid down in previous jurisprudence but for departing from those princi ples.” 808
However, since then the Fourth Amendment to the FL was adopted which “repealed”
constitutional rulings handed down prior to the entry into force of the FL, though “without
prejudice” to their legal effect. 809 This questioned the status of the whole body of previous
constitutional jurisprudence. The HCC reacted by reversing the previously cited approach,
and claiming that the reference to previous case law in case of substantively equivalent
provisions is still possible , but needs to be justified in d etail. Earlier arguments, legal
principles and established constitutional logic might be – though need not necessarily be –
relied upon, if (i) the two constitutional texts are substantively overlapping, and this overlap is
spoiled by (ii) neither differen t context in the FL, (iii) nor by that of the specific interpretative
806 The FL applies a mixed system of numbering. Paragraphs of the preamble – entitled National Avowal – are
not listed, while the second part, entitled Foundatio ns is divided into articles of the alphabet (Art. A, Art.
B etc.). The third part, entitled Freedom and Responsibility (including a bill of rights, and, weirdly, of
obligations), has its articles listed by Roman numbers (Art. I, Art II. Etc.), and the arti cles of the fourth
part, entitled The State, come in Arabic numerals (Art. 1, Art. 2, etc.). The last part, i.e. the Closing
provisions are simply numerically listed (1., 2., etc.), without having “articles”. To minimize the chances
of confusion, this stud y will adhere to the original numbering, without an attempt of transforming it into
some more commonly recognized system. 807 Decision Nr. 22/2012 (V. 11.) AB, ABH 2012/2, 94, 97, as translated in Miklós Bánkuti, Tamás Dombos,
Gábor Halmai, András Hanák, Zs olt Körtvélyesi, Balázs Majtényi, László András Pap, Eszter Polgári,
Orsolya Salát, Kim Lane Scheppele, Péter Sólyom, Amicus Brief for the Venice Commission on the
Fourth Amendment to the Fundamental Law of Hungary, April 2013, available at:
https://fundamentum.hu/sites/default/files/amicus_brief_on_the_fourth_amendment4.pdf , p. 80, fn. 144
(last accessed: 10 March 2014) . 808 Id. 809 Art. 19 of the Fourth Amendm ent to the FL, point 5 of the Closing and Miscellaneous Provisions, effective
from 1 April 2013. In English translation available at :
https://www.venice.coe.int/webforms/d ocuments/?pdf=CDL -REF(2013)014 -e (last accessed: 10 March
2014) .

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rules contained in the FL, (iv) nor by the particular circumstances of the case. 810 In the future,
the influence of previous jurisprudence on the present one might loosen even further, as
judges elected solely with the votes of the current government parties 811 are now in the
majority. This study cannot but take as starting point that previous case law will be
understood to be still “valid”, “citable”, and having an at least persuasive author ity.
As to the Fourth Amendment, it also has to be noted that it is threatening the rule of law and
the basic rights protection in many other regards as well which might affect freedom of
assembly. Just to refer to the Venice Commission’s observations, th e measures included in the
4th Amendment “amount to a threat for constitutional justice”, it “endangers the constitutional
system of checks and balances”, and, “is the result of an instrumental view of the Constitution
as a political means of the governmen tal majority and is a sign of the abolition of the essential
difference between constitution -making and ordinary politics.” 812
A further general remark about the FL which affects the legal bases of freedom of assembly is
the general limitation clause in Art. I para. (3) 813 which applies to all fundamental rights:
The rules for fundamental rights and obligations shall be determined by special Acts. A
fundamental right may be restricted to allow the exercise of another fundamental right or to
defend [protect — OS] any constitutional value to the extent absolutely necessary, in
proportion to the desired [pursued — OS] goal and in respect of the essential content of such
fundamental right.
Finally, the FL also contains interpretative rules : the preamble, entitled ‘National Avowal’
and so -called ‘achievements of the historical constitution’ are mandatory guidelines in the
interpretation of the FL as stipulated in para. (3) Art. R. 814 This might be rather problematic as
the preamble reaffirms conservative value choice s of the majority ethnic nation, and of
Christianity, which in interpretation might endanger individual rights and rights of minorities.
Achievements of the historical constitution might turn out to mean a restrictive understanding
of rights as the concept is unclear and includes anti -constitutionalist traditions as well.
Specifically about the assembly guarantee, it has to be noted that the right to freedom of
assembly precedes the right to freedom of expression, guaranteed in Art. IX. This order is
quite unusual, if not unheard of in international comparison. Furthermore, it goes counter to
the logic of constitutional interpretation which in Hungary – similarly to Germany, and in line
with the ECtHR’s view that Art. 11 is lex specialis to Art. 10 – consid ers freedom of
expression a mother right of communicative freedoms, among them freedom of assembly. 815
The Act on the Right to Assembly
On the statutory level, freedom of assembly in Hungary is guaranteed in Act III/1989 on the
right of assembly (ARA in the following). It is a law which played a fundamental and
810 Decision Nr. 12/2013. (V. 24.) AB. 811 In one case with the support of the extreme right wing: https://www.politics.hu/20130326/mps -in-secret -vote –
approve -new -top -court -judge -endorsed -by -fidesz -jobbik/ (last accessed: 10 March 2014) . But that will
not affect the point here on the generally deferential approach of the new ju dges (except maybe one judge
regularly) towards the current government. 812 Conclusions 145 -147 of OPINION ON THE FOURTH AMENDMENT TO THE FUNDAMENTAL LAW
OF HUNGARY Adopted by the Venice Commission at its 95th Plenary Session (Venice, 14 -15 June
2013) CDL -AD(2013)012 https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL –
AD(2013)012 -e. 813 In English translation available at:
https://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNG
ARY.p df (last accessed: 10 March 2014). 814 “(3) The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the
National Avowal and the achie vements of our historical constitution.” English translation available at:
https://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNG
ARY .pdf . (last accessed: 10 March 2014) 815 E.g. Constitutional Court’s (HCC) Decision Nr. 55/2001. (XI. 29.) AB, ABH 2001, 442, 449.

115
symbolic role in the transition to democracy in 1989, but which also bears on itself signs of
hastiness in its adoption and is considered partly too liberal, partly too restrictive by many in
academia and the civil sphere, and gave rise to anomalies in application, most vividly during
the 2006 riots and protests. This made the ombudsman conduct a large scale project
examining the right of assembly in practice. 816 Despite criticisms of the 1989 act, no ne w law
on assemblies was adopted in the legislative rush of the last three years after the coming into
power of Viktor Orbán as Prime Minister (which resulted in an unprecedented rewriting of
basically every important piece of legislation in the range of se veral hundreds).
The previous constitution required the ARA to be adopted by the two -third majority of
members of parliament present, but this requirement was abolished in the FL. Overall the
number of issues requiring such entrenchment (renamed “cardinal laws”) increased in the new
constitution (to the point that the Venice Commission found it might endanger democracy 817),
freedom of assembly belonging to the few issues where the earlier requirement of an
enhanced majority was abandoned.
2. Scope of the gu arantee
The scope of freedom of assembly has only changed in the text of the guarantee in the
Fundamental Law in that Art. VIII does not contain a reference to the guarantee of free
exercise of the right as it used to be from 1989 till 2012. However, the general rights
provision in Art. I (1) stipulates that the protection of fundamental rights is the primary
obligation of the state, i.e. as if the specific obligation to guarantee freedom of assembly
would be now covered by the general duty to protect fund amental rights. Thus, freedom of
assembly is logically interpreted the same way as before. Accordingly, the HCC stated in
2012 that statements in its previous jurisprudence on freedom of assembly are considered
guidelines in the interpretation of the FL’s assembly provision. 818 However, there is no
decision on freedom of assembly from after the Fourth Amendment “repealed” constitutional
rulings handed down prior to the entry into force of the FL (see above), thus some
uncertainties remain.
Peacefulness
Hunga rian law only protects peaceful assemblies. The constitution itself does not explicitly
ban wearing arms or similar devices at an assembly, but the ARA prohibits participants from
wearing arms (shotgun or explosives) or other device capable of taking the l ife or assaulting
of others if worn with the intent of threat or violence. 819 In such cases, police are entitled to
disperse the assembly, just as when the assembly realizes a criminal offense or incitement to
it, or it violates rights and freedoms of others .820
Narrow (or enlarged) notion of assembly
The jurisprudence, strongly under German influence, interpreted freedom of assembly as “part
of freedom of expression of opinions in the broad sense, which guarantees the peaceful,
common expression of opinion wi th regard to public issues. Constitutional protection is thus
accorded to events aimed at participating at the public debate on matters political, which help
gathering and distributing information on issues of public interest and their common
816 HAJAS B. ed., Gyülekezési jogi projekt. (Országgyűlési Biztos Hivatala, Budapest 2009) [Project on the
right to assembly. Of fice of the Parliamentary Commissioner, Budapest, 2009]. 817 CDL -AD(2011)016 Opinion on the new Constitution of Hungary adopted by the Venice Commission at its
87th Plenary Session (Venice, 17 -18 June 2011) . 818 Decision 3/2013. (II. 14.) AB, [38]. 819 Art. 12 (2) in conjunction with Art. 15 b) ARA. 820 Art 14. ARA.

116
expression.” 821 Thus, an event qualifies as assembly when it affects a public matter, which
depends on the expressed opinion’s “content, form and context.” The HCC embraces the so –
called narrow (or maybe enlarged) concept of assembly in that it does not grant constitutio nal
protection to events unrelated to public discussion, such as sport events. 822
Choice of place, time, and circumstances
It belongs to the freedom of assembly of the individual to organize and participate in
assemblies, including the choice of purpose, place, time, and of the circumstances of the
assembly. Referring to ECtHR case law, 823 the HCC emphasizes that the place of the assembly
is also covered by the scope of the right, as the purpose of the assembly might be closely
related to the place. For inst ance, the assembly might aim to recall events happened at that
very place, or the place might have symbolic meaning.
Specifically, the ARA protects assemblies on any (i) “public area” (“közterület”), which
includes roads, streets, squares and any area ope n to all without restrictions 824 and also (ii) on
private property if it is freely accessible for the public. This view is supported – according to
the HCC – by Art. 21 ICCPR and Art. 11 ECHR, including their interpretation, and by the
Venice Commission. 825
Th e HCC indicated that the time frame during which an assembly might take place has its
limits, however, this is not included in the law. In fact, demonstrators can circumvent the
HCC decision by “rotating”. 826
Types of assemblies protected
Constitutional practice and the ARA protect assemblies in any form, what is “peaceful
gathering, procession, and protest”, i.e. both moving and stationary assemblies are covered,
and regulated the same way. Even though constitutionally protected by either freedom of
asse mbly, religion or at least by general freedom of action, some assemblies are exempted
from the scope of the ARA These are (i) assemblies regulated by the law on election
procedure; (ii) religious rituals, events, and processions organized in a church or ot her place
of worship; (iii) cultural and sport events; and (iv) family events are exempted from the scope
of the ARA (Art. 3. ARA). Assemblies falling under (i) and (ii) are regulated less by other
laws, those falling under (iii) more than assemblies under the ARA, and family events are as
such not regulated at all.
3. Restrictions
Legitimate grounds for restrictions
At the constitutional level , the FL’s general limitation clause 827 allows for restriction of
fundamental rights in the interest of another fund amental right or constitutional value. A
821 Id. at [39] referring to 55/2001. (XI. 29.) AB határozat, ABH 2001, 442, 449.; 75/2008. (V. 29.) AB
határozat, A BH 2008, 651, 662 –663. 822 The latter would be the wide notion of assembly, advocated by Judge András Bragyova in his dissent to
Decision 75/2008. (V. 29.) AB . 823 Sáska against Hungary, § 21, Appl. No. 58050/08, 27 November 2012 as referred to by Decision 3/2013. (II.
14.) AB at [40]. 824 Art. 15 ARA. 825 The HCC refers to Rassemblement Jurassien Unité v. Switzerland, Appl. No. 8191/78, 10 October 1979, and
to the Compilation of Venice Commission Opinions concerning Freedom of Assembly, Strasbourg, 04
October 2 012, CDL(2012)014rev2, 2. at [42] Decision 3/2013. (II. 14.) AB . 826 This happened to the perpetuated few members demonstration in front of the headquarters of top managing
organ of all Hungarian public media. See https://mediamonitor.ceu.hu/2012/12/demonstration -outside –
mtva -building -marks -a-year/ and https://www.bbc.co.uk/news/world -europe -1635419 2 (last accessed: 10
March 2014) .

117
constitutional value corresponds to such usual legitimate aims like public order, public health,
prevention of crime etc. The necessity -proportionality test in Hungarian constitutional law
traditionally accorded mor e weight to competing fundamental rights than to such abstract
values as public order. In the latter case, a stronger justification was required. 828 In case of
communicative rights, including the right to assembly, the principle of content -neutrality
allowed only “external limits” on the exercise of the right, 829 and by and large disallowed
limits based on such vague and abstract notions like public order, or public morals, but this
might change completely after the 4 th Amendment. 830
At the statutory level , the ARA regulates in more detail the possible restrictions. Among the
“General provisions”, Art. 2. para. 3. of the ARA states that the exercise of freedom of
assembly shall not realize a criminal act, or shall not incite others to commit a criminal act,
and i t shall not cause the violation of the rights and freedoms of others. Consequently, danger
of criminal acts or threat of violation of rights and freedoms of others are legitimate grounds
for police intervention, at least if the assembly is already ongoing. This latter ground (rights
of others) is however considered to give too much discretion to police, and results in
questionable application. 831
Art. 12 states that the organizer is obliged to dissolve the assembly if the conduct of
participants endangers th e legality of the event, and order cannot be re -established otherwise.
Although the text does not include imminence of the endangerment, the second condition
ensures that the obligation imposed on the organizer is proportionate. If the organizer fails to
dissolve the assembly under these circumstances, police are entitled to intervene.
Specific place and time restrictions
More specific restrictions are also regulated in the ARA which ought to be largely understood
as content -neutral place restrictions. Acc ording to Art. 8, if the planned assembly (i) seriously
endangers the undisturbed functioning of representative organs (parliament and local and
municipal self -governing bodies) or courts; or (ii) traffic cannot be rerouted, police might ban
the assembly a t the time or place signalled in the notification.
There is thus no general ban on demonstrating at specific sites, for instance around
parliament. The ombudsman is of the view that whether an assembly seriously endangers the
functioning of parliament or courts needs to be assessed individually and in detail, taking into
account the effect of the assembly on the functioning, and, if possible, having requested the
opinion of a representative of the affected organ. 832
Police practice diverges from this recomm endation. For instance, a planned laser projection of
a political slogan to the façade of parliament by a political movement was considered a
“serious endangerment” without police having had assessed the circumstances in detail or
asked the opinion of parl iamentarians. 833 In contrast, when members of the Hungarian Guard
827 See supra fn. 813 . Error! Bookmark not defined. . 828 See , e.g., Decision Nr. 30/1992. (V. 26.) AB. 829 75/2008. (V. 29.) AB határozat, ABH 2008, 651, 667. 830 See Miklós Bánkuti, Tamás Dombos, Gábor Halmai, András Hanák,Zsolt Körtvélyesi, Balázs Majtényi,
László András Pap, Eszter Polgári, Orsolya Salát, Kim Lane Scheppele, Péter Sólyom, Renáta Uitz,
Amicus Brief for the Venice Commission on the Fourth Amendment to the Fundamental Law of Hungary
(eds. Gábor Halmai & Kim Lane Scheppele), available
https://fundamentum.hu/sites/default/files/amicus_brief_on_the_fourth_amendment4.pdf (last accessed: 10
March 2014) . 831 Such as the ban of a one -hour event for it would endanger others’ “right to rest” HAJAS, B. A gyülekezési jog
egyes aktuális elméleti és g yakorlati kérdései, doktori értekezés, PTE ÁJK (2012), 189. 832 Report of the Ombudsman OBH 5593/2008,
https://www.ajbh.hu/documents/10180/103448/200805593.rtf/6e63e634 -9c5f -42b3 -8b09 –
7953948b8b7a;jsessionid=DDEA9F48593DC8BAD7521441CFAAEA23?version=1.0 (last accessed: 15
November 2013). 833 Id.

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notified police that several persons will be “waiting in a non -demonstrative manner” in front
of the Metropolitan Court (while the hearing on the dissolution of the Guard is ongoing),
police r emained passive, not reacting in any way to the notice. Later, police argued that the
“waiting in a non -demonstrative manner” does not fall under the ARA, thus they were not
competent to react to the notice, neither to examine if the event disturbed the fu nctioning of
the court. 834
The impossibility of rerouting traffic also often serves as ground for prior ban. Sometimes,
however, this ground is used to cover up for other, content -based concerns. Recurring
advance bans on the Budapest Pride, 835 and a 2005 ba n on demonstrating in front of the prime
minister’s residence 836 are examples of that reasoning.
A series of openly content -based bans were issued in 2009 against 10 planned Rudolf Hess
memorial marches, 837 based on the general provisions of the ARA conceptu alizing rights and
freedoms of others and crime prevention as limits of freedom of assembly.
A further way to circumvent the narrow scope of the ARA is to recurrently disallow
demonstration in “operational zones” imposed by police 838 or the Counter -Terroris m Centre, 839
despite almost consistent court reversals in such cases. 840
834 The Ombudsman interprets rights and freedoms of other s as including the undisturbed functioning of
parliament and courts, thus an assembly can not only be banned in advance, but also dispersed if such a
disturbance occurs. Police were of the view they lack the power to disperse an assembly for the reasons
they are entitled to ban in advance. HAJAS , ed., Project of the Ombudsman, at 51 -52. 835 The Budapest Pride was banned for alleged impossibility of diverting traffic in 2011, and, despite quick court
reversal, the police banned the event again the following year, again reversed in court. See 39 -41 in
https://tasz.hu/files/tasz/imce/full_report_ -_english.pdf (last accessed: 10 March 2 014) . Other marches,
e.g., pro -government rallies on basically the same route were not banned, thus the ban was clearly
viewpoint -discriminatory, too. ( Cf. e.g. the so -called Peace March for Hungary,
https://www.bbc.co.uk/news/world -europe -16669498 (last accessed: 10 March 2014) .)The Metropolitan
Court found that this way police not only discriminated against, but even harassed Pride marchers
because of their sexual identity. Decision of 16 Janu ary 2013 (not available), see
https://helsinki.hu/zaklato -modon -diszkriminalt -a-rendorseg -2012 -pride (last accessed: 10 March 2014) . 836 Impossibility of rerouting traffic w as the alleged reason to ban a few person demonstrating on the wide
pavement in front of the residence of the prime minister on the afternoon of 24 December when there is
no public transport. ECtHR found an evident violation of Art. 11. Patyi v. Hungary, A pplication no.
5529/05, Judgment of 7 October 2008. 837 See Hungary police ban neo -Nazi marches Aug. 12, 2009 at 2:39 PM
https://www.upi.com/Top_News/2009/08/12/Hungary -police -ban -neo -Nazi -marches/UPI –
51191250102356/ (last accessed: 10 March 2014). The court of review also accepted the prior ban,
although with different reasoning, namely that the Paris peace treaty obliges Hu ngary to dissolve fascist
organizations – despite the fact that in the present case the organization notifying the march had never
been dissolved. That’s why Hajas, B. (2012) 215 thinks the decision is wrong. The Helsinki Committee
finds the prior ban unlawful, but thinks the march, once ongoing, would have likely been possible to be
dispersed for incitement to crime and violation of rights of others. Álláspont a 2009. augusztus 15 -re
tervezett felvonulással kapcsolatban https://helsinki.hu/allaspont -a-2009 -augusztus -15 -re-tervezett –
felvonulassal -kapcsolatban . 838 E.g. A place restriction independent of the ARA regime was applied in 2006, when Kossuth square around
parliament was blocked for demonstrations because the police declared it a „security operational zone”
with regard to the Fall 2006 riots. According to the police, declaring a site a„security operational zone”
changes the quality of the public area which is normally accessible by all, and excludes the possibility of
holding assemblies in the zone. Yea rs later domestic courts found the declaration unlawful.In English see
§§ 8 -18, Szerdahelyi v. Hungary, Application no. 30385/07, Judgment of 17 January 2012. Subsequently,
the ECtHR for this reason considered it a measure not prescribed by law, and thus f ound a violation of
Art. 11 without examining legitimate aim or proportionality. Szerdahelyi v. Hungary, Application no.
30385/07, Judgment of 17 January 2012, Patyi v. Hungary (No. 2.), Application no. 35127/08, Judgment
of 17 January 2012. 839 Despite dome stic and ECtHR condemnations of the 2006 “security operational zone”, in March 2013, the
Counter -terrorism Centre declared the area in front of the home of the president an “operational zone.”
On this basis police disallowed ten activists of the Hungarian Helsinki Committee from demonstrating in
front of the presidential residence urging the president not to sign the 4 th Amendment to the FL. The court

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A further technique preventing demonstrations at certain places came from the mayor of
Budapest. The local self -government of Budapest issued a so called „public area use license”
for so me central public places, to the mayor’s office for March 15, 2012, a national holiday
celebrating the revolution 1848. 841 The HCC ruled that the ARA regime cannot be
circumvented this way. 842
Hungarian law does not know general place or time restrictions aro und Holocaust Memorials
or Memorial Days either. 843 Still, at the request of the prime minister, and in disregard of
deadlines and grounds for prior ban, an anti -Semitic rally parallel to the March of the
Living 844 and another next to the World Jewish Congress 845 were banned.
Manner restrictions
Recently, legislation aims at countering the activities of the banned Hungarian Guard 846 and
its successor organizations. The Act on Administrative Offences punishes participation both

reversed (Decision Nr. 20.KpK.45.258/2013 of the Metropolitan Court, available at https://helsinki.hu/wp –
content/uploads/szent -gyorgy -ter -lezaras -hatalyon -kivul -helyezes -anonim.pdf (last accessed: 10 March
2014) ) referring also to the Venice Commissi on’s opinions (Venice Commission's Opinions concerning
Freedom of assembly, Strasbourg, 04October 2012, CDL(2012)014rev2,5.2. at p. 6 of the decision. ). 840 The Counter -terrorism Centre and the police repeated this same cooperation two more times with regard to
the residence of the prime minister later, leading courts to basically scold law enforcement for observing
neither ECHR case law, nor even domestic decisions
https://ataszjelenti.blog.hu/2013/09/04/a_miheztartas_vegett_rendorsegi_visszaeles_es_a_biroi_jogorvosla
t (last accessed: 10 March 2014). In December 2013, however, when a max. 50 person demonstration was
banned in front of the re sidence by police relying on the Counter -terrorism Centre’s security measure, the
court upheld the ban for it is applicable in a residential area, and protects the “quiet of the neighbours”
who would be a “captive audience” of the assembly. The HCLU turns to HCC in this case arguing inter
alia that it is a disproportionate restriction on political speech. https://tasz.hu/gyulekezesi –
jog/al kotmanybirosag -elott -tamadtuk -meg -gyulekezesi -jogot -serto -biroi -dontest (last accessed: 10 March
2014) . 841 When an opposition party, LMP, wanted to demonstrate on that day on Heroes’ Square, police refused to
receive the advance notice for lack of competenc e. They reasoned that the square does not – after it had
been quasi -reserved by the public area license — any more qualify as public area, thus the ARA does not
apply. Ordinary courts affirmed, the HCC reversed. 842 Decision 3/2013. (II. 14.) AB . 843 There was though a case which ended at the ECtHR, concerning removal, detention and an administrative
fine as a result of display of an Arpad -striped flag (which is an old Hungarian flag, but which was used by
the arrow cross movement in WW2) at a site wh ere a memorial of empty shoes symbolizes the massacre
of Hungarian Jews during WW2. The ECtHR found a violation of Art. 10, but the case did not turn on the
proximity to the memorial either in domestic courts, or in Strasbourg. Fáber v. Hungary, judgment o f 24
July 2012, Application no. 40721/08. 844 In 2013, an extreme right wing group, the “Motorists of National Emotion” wanted to rally under the name
“Give gas!” in time and place close to the yearly March of the Living commemorating the genocide of
Hungari an Jews. The police only banned it at the request of the prime minister after having been inactive
at first. The ban was upheld in court arguing that the FL’s new (4 th Amendment) limit on freedom of
expression, i.e. the dignity of communities, required the ban. It has to be noted that in Hungarian law, if
an ordinary judge assumes the unconstitutionality of a law she is supposed to apply, she is supposed to
suspend and refer the case to the HCC instead of directly applying the constitution. (The two days de lay
was not claimed in the appeal.) https://index.hu/belfold/2013/04/15/adj_gazt_ –
ugy_birosagi_nem_a_motorosok_beadvanyara/ (last accessed: 10 March 2014) . 845 The same group (Motorists of National Emotion) wanted to rally against “the crimes of Bolshevism and
Zionism” during the World Jewish Congress in Budapest. Again, the police banned the rally only
belatedly after the prime minister had intervened. This time, court reversed the ban as it was issued after
the deadline was over. https://hvg.hu/itthon/20130424_A_birosag_szerint_jogszerutlenul_tiltotta (last
accessed: 10 Ma rch 2014) . 846 The Hungarian Guard was banned in civil law procedure at the request of the prosecutor in 2008. The ECtHR
found the ban did not violate Art. 11. Vona v. Hungary, Judgment of 9 July 2013, Application
no. 35943/10 , Request for referral to the Grand Chamber pending. An analysis with background is
provided by representatives of the European Roma Rights Centre, intervenor at the ECtHR: Judit Geller

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at the activities of banned organizat ions, and at public events in uniform belonging to banned
organizations, or of which the banned organization’s uniform can be recognised. 847
Initiation ceremonies of different versions of the Hungarian guard (New Hungarian Guard,
Hungarian National Guard) s till regularly take place. 848 Although the police sometimes tried
to ban in advance, courts reversed. 849 Interpretational questions loom large around what counts
as uniform, and how to determine if one uniform reminds of another, what is “formation” 850 or
“taking an oath” 851.
Concealing the face on assemblies and sport events is prohibited, if it is capable of frustrating
the identification of the person by the authorities. 852
The Supreme Court issued an opinion qualifying egg throwing (and other thrown objects
incapable of causing bodily harm ) as truculence or defamation. 853
Sight and sound restrictions
Public area events are explicitly exempted from sound level restrictions. 854 In 2007, when a
metropolitan ordinance required authorization (public area use li cense) for erecting build -ups,
installations or stationing vehicles on political events, the HCC found violation of the right to
assemble, as such tools might be necessary for the exercise of the right. 855 The ombudsman in
a similar vein criticized police fo r requiring organizers to notify as a separate item of agenda a
planned laser projection of a political slogan on the façade of parliament. 856 Police practice

and Gergely D ezideriu, Vona v Hungary: Freedom of association and assembly can be restricted to
protect Minority Rights 7 August, 2013, https://strasbourgobservers.com/2013/08/07/vona -v-hungary –
freedom -of-association -and -assembly -can -be-restricted -to-protect -minority -rights/ (last accessed: 10
March 2014). 847 § 174 of the Act on Administrative Offences, act Nr. II/2012. 848 Tibor Bognár, Budapest 2012.03.17. Gárdisták a Hősök terén – letették az esküt [Guardists on Heroes’s
Sqaure — they took the oath] https://indavideo.hu /video/Budapest_20120317_Gardistak_a_Hosok_teren_ –
_letettek_az_eskut (last accessed: 17 November 2013) . For a general impression see google’s image
results for search term “Guard initiation” in Hungarian at
https://www.google.hu/search?q=g%C3%A1rdaavat%C3%A1s+2012&rlz=1C1TSND_enHU403HU403
&espv=21 0&es_sm=93&tbm=isch&tbo=u&source=univ&sa=X&ei=8 –
LKUqvJNce6ygPj7ID4CA&ved=0CHgQsAQ&biw=1517&bih=713&dpr=0.9 (last accessed: 10 March
2014) . 849 In English see , e.g., Counter -demonstrators detained at Hungarian Guard rally on Heroes’ Square, August
27th, 2012, by MTI https://www.politics.hu/20120827/counter -demonstrators -detained -at-hungarian –
guard -event -on -heroes -square/ (last accessed: 10 March 2014) . 850 That’s why on one occasion guard members were sitting on the pavement. 851 Thus guard members silently sat during the speaker told the oath out loud in first person, the audience reciting
the oath “muted”, to themselves. 852 § 169 c) of the Administrative Offences Act. The text itself does not require intent to evade law -enforcement,
and thus burdens, e.g., demonstrators who face violent counter -protestors as well — which is
constitutionally questionable. 853 BKv. 71, 2008.EI.II.E.3/10., avail able at https://www.lb.hu/hu/kollvel/71 -bkv -0 (last accessed: 10 March
2014) the occasion was that participants of the Pride march, and unpopular politicians during their
speeches on national holidays, in cluding the mayor of Budapest sometimes became victims of egg
throwing . A general, blanket ban is questionable. Hajas argues for distinguishing between different uses
(e.g. as traditional form of political critique it should be protected while throwing egg s filled with feces at
Pride marchers is outside protection.) at 236. 854 Regulation of the Government, Nr. 284/2007. (X. 29.) Korm. Rendelet. The vice -ombudsman for the rights of
future generations criticized the lack of a clear regulatory context which wou ld guarantee the right to a
healthy environment, but acknowledges (confirming the opinion of the minister) that events protected by
freedom of assembly are to be separately assessed in this regard than other events.
https://www.ajbh.hu/documents/10180/111959/Jelent%C3%A9s+a+k%C3%B6zter%C3%BCleti+rendezv
%C3%A9nyek+oko zta+zajterhel%C3%A9sr%C5%91l/581dd32a -715e -4d39 -9760 –
319ec2636a33?version=1.0 at 30 (last accessed: 10 March 2014) . 855 4/2007. (II. 13.) AB határozat. 856 OBH 5593/2008.

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diverges, 857sometimes being inactive despite authorization to intervene, at other times
restricting core political speech disproportionately. 858
3. Procedural issues
a) Notification
Police have to be notified three days in advance about assembly events held on “public area”.
No notice is required for assemblies held elsewhere. 859
The notice contains expected start and end time, place, and route of the planned event, its
purpose and agenda, expected number of participants, and number of stewards securing the
undisturbed course of the event, name and address of the organizer or their representative.
(Ar t. 7 ARA). As police cannot examine the content of an opinion, in theory no sanctions
are foreseen for the ongoing assembly if it turns out to have different agenda or route than
notified. 860
Notice can be submitted in person or in writing – practice diverg es on whether emailed
notice is acceptable, 861
There is no deadline starting from which it is possible to notify police about an assembly.
That is why police had to take cognizance of demonstrations notified for the coming
hundred years in advance. 862
b) Spon taneous assemblies
A literary reading of the ARA obliged police to dissolve any unnotified assembly. After
Hungary was found violating the ECHR in Bukta v. Hungary ,863 the HCC reversed its
857 E.g., when in 2006 Kossuth square was occupied day and night for weeks by protestors, police did not try to
enforce public health and similar regulations at all, basically tolerating a public health hazard. Finally, the
camping was dissolved for protestors did not cooperate and police found dangerous devices all around the
site. Then, howe ver, the ban remained – clearly disproportionately – in place for months. See, e.g. the
Report of the Helsinki Committee: Az őrzők őrzése. A Magyar Helsinki Bizottság értékelése a 2006 –
2007 -es zavargásokról, Fundamentum 2007/1, https://www.fundamentum.hu/sites/default/files/07 -1-
09.pdf (last accessed: 10 March 2014) . 858 In 2013, the police’s claim that hanging a poster reading “The constitution is not a toy” on a bridge during a
lawful protest march qualifies as truculence, was dismissed in court, as the performance had a political
message and as such was not capable to outrage or intimidate, and was not “ostentatiously against
community” norms. See https://tasz.hu/files/tasz/imce/megszunteto_vegzes_anonim.pdf (last accessed: 10
March 2014) . 859 Decision Nr. 55/2001. (XI. 29.) AB, and 3/2013. (II. 14.) AB határozat. Therefore, the peaceful occupation of
party headqu arters on premises owned by the party does not fall under the ARA regime. The
misdemeanour “abuse of freedom of assembly” cannot be committed there either, and organizers are not
obliged to notify police. See Andrea Pelle, Székházfoglalás: egy „bűnügy” krónikája [Occupation of
headquarters: the chronicle of a „crime”] https://szuveren.hu/tarsadalom/szekhazfoglalas -egy -bunugy –
kron ikaja (last accessed: 10 March 2014) , 27 December 2013. 860 Clearly since Decision Nr. 75/2008. (V. 29.) AB (similarly Hajas, 195 -196). 861 The relevant ordinance from 1990 mentions telegram, telex and fax, but not email §. 2 (5) of Ordinance Nr.
15/1990. (V. 14.) BM rendelet a rendezvények rendjének biztosításával kapcsolatos rendőri feladatokról.
The ombudsman suggests that the general rules of administrative procedure apply, and thus the ordinance
ought to be interpreted in harmony with the act on administra tive procedure, which welcomes electronic
administration. Hajas B. ed., Report of the Ombudsman, 46 -47,
https://www.ajbh.hu/documents/10180/124842/gyulekezesijogi.pdf/9e675513 -ca81 -4b6b -b258 –
8aad57c604ca;jsessionid=80CC85714B5F197C96ADAC132039E16E?version=1.0 (last accessed: 10
March 2014) . 862 The copy of the notice is available at https://nemtetszikarendszer.blog.hu/2012/01/19/szaz_evre (last accessed:
10 March 2014) . 863 Bukta and Others v. Hungary, Application no. 25691/04, Judgment of 17 July 2007.

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previous jurisprudence, 864 and stated 865 that flashmobs, spontaneous and urgent assemblies are
protected by freedom of assembly as they contribute to the discussion of public matters. 866
c) Assemblies gathered by means of new technologies (social networks etc.)
Assemblies are recently organized via the internet, especially Faceb ook. Milla, an opposition
movement part of which later became a political party, started on Facebook, by aiming to
collect 1 million followers for Hungarian press freedom. 867 It organized or co -organized all the
bigger anti -government demonstrations in the l ast four years. Other opposition and civil
society movements are also present, and heavily mobilize on Facebook. 868 The student
movement which held protests in Winter 2012/2013, often occupying important avenues and
bridges of Budapest, was also organized on Facebook. 869 Jobbik, the far right party (which
founded the Hungarian Guard) has been very successful in mobilizing through Facebook,
“online social media following on Facebook of Jobbik is greater than its official membership
list.” 870
c) Decision -making
Af ter prior notice has been given, police have to issue a receipt. Within 48 hours, police either
(i) take cognizance, (ii) ban the event at the notified time or place in case it would seriously
endanger the undisturbed functioning of representative organs o r courts or traffic cannot be
rerouted, (iii) or refuse the notice for lack of competence if the event does not fall under the
ARA. If no steps are taken, the assembly is understood to be accepted. The ban is issued in a
formal and reasoned decision which is to be communicated to the organizer in writing within
24 hours.
Before issuance of the formal decision, the police may negotiate with the organizers, 871 who
are however not obliged to engage in dialogue. 872
d) Review and appeal
The decision banning the as sembly cannot be appealed, 873 but can be directly brought to court
for review within three days from the communication of the ban. The court decides within
three days, holding a hearing if necessary. If the ban is reversed later than the planned date of
864 Decision 55/2001. (X I. 29.) AB. 865 Decision 75/2008. (V. 29.) AB. 866 During the 2012 -2013 Winter student protests, students used to march in the streets after ending their indoor
meetings. Police tolerated much of the unnotified marches which were in truth organized, sometimes
constructing events to which an immediate response is mandated quite artificially, only in order to justify
the lack of notice. It does not follow, though, that police could have dispersed any of them without
violating proportionality. www.minimumplusz.hu/2012/12/17/m -toth -balazs -fazekas -tamas -hiba -lett –
volna -oszlatni/ (last accessed: 10 March 2014) . 867 https://hu -hu.facebook.com/sajtoszabadsagert (last accessed: 10 March 2014) (which even has a parallel
website operated in English just to inform about the Hungarian website those who do not speak
Hungarian: https://www.facebook.com/freepresshun (last accessed: 10 March 2014) ). 868 https://www.demos.co.uk/files/DEMOS_ -_New_Political_Actors_ -_Hungary.pdf?1384281102 (last accessed:
10 March 2014) . 869 https://www.facebook.com/hallgatoi.halozat (last accessed: 10 March 2014) . 870 See Jamie Bartlett, Jonathan Birdwell, Péter Krekó, Jack Benfield, Gabor Gyori: “The rise of populism in
Europe can be traced through online behaviour…” Populism in Europe: Hungary
https://politicalcapital.hu/wp -content/uploads/Demos_Hungary_Book_web.pdf (last accessed: 10 March
2014) . 871 The negotiation is mentioned, but not regulated in detail in the ordinance on police’s activity securing public
events, 15/1990. (V. 14. ) BM rendelet. 872 The HCC mentions that organizers and police necessarily need to cooperate, but it is mentioned in relation to
maintaining order on the spot. 75/2008. (V. 29.) AB határozat, 6.3. 873 Art. 9 ARA.

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the assembly, the organizer informs police 24 hours before the new date. 874 No appeal is
available, but a constitutional complaint can be lodged if the applicant thinks the court did not
observe her fundamental rights. 875
The HCC ruled that judicial review extends in every case to the merits. Not only in case of
ban, but also in case police refuses to decide about the notice for reason of lack of
competence, the court has to review the merits, justification and reasoning of the police
fully. 876 Limited review violate s due process rights including the right to effective judicial
protection, 877 and freedom of assembly.
4. Specific forms of assemblies
Counter -demonstrations are not regulated . Constitutionally, police should accommodate
and secure both events, respecting content -neutrality and non -discrimination. Organizers of
both events might need to negotiate and give up some space or agree on a different schedule.
If it is not possible, however, there is no possibility to ban the secondly notified event. 878
Putting obst acles to the exercise of freedom of assembly by force or threat is punished with up
to three years of imprisonment 879 – a rule which might apply to violent or threatening counter –
demonstrators.
In practice, police lately cordons the route of Pride March wit hin strict confines in order to
protect the marchers from potential violent counter -protestors. 880
Another event from 2012 widely reported in media was the Guard commemoration, where
counterdemonstrators were not allowed on the square. 881
5. Implementing fre edom of assembly legislation
Pre -event planning
Even though the choice of purpose, place, time, and of the circumstances of the assembly falls
within the freedom of assembly of the organizer, 882 route, place, and time are often discussed
with police. This negotiating process is not regulated by the ARA, mentioned only in the
ordinance regulating police activity in securing events. 883 Refusing negotiations with police in
principle shall not result in more burdens for the exercise of the right, to engage in
neg otiations is voluntary. 884 Change of route, place, or time does arise sometimes from such
negotiation, this only can happen if on the planned route, place, or time the assembly could be
banned in advance.
Costs
Constitutionally, the state cannot bind the e xercise of fundamental rights to payment. Still,
according to the current regulatory frame, in one interpretation, the notice would need to be
874 Art. 8 ARA. 875 This is what the HCLU initiated with regard to demonstration in front of the prime ministerial residence
where a court upheld police’s ban, see supra fn. 840 or https://tasz.hu/gyulekezesi -jog/alkotmanybirosag –
elott -tamadtuk -meg -gyulekezesi -jogot -serto -biroi -dontest (last accessed: 10 March 2014) . 876 3/2013. (II. 14.) AB határozat. 877 Id. at [76] -[77], citing Golder v UK, Zborovsky v Slovakia from the ECtHR and three decisions of the ECJ. 878 Similarly https://www.arsboni.hu/tothb.html (last accessed: 10 March 2014) and Hajas 74 -82. 879 § 217 Criminal Code. 880 https://www.politics.hu/20120708/gay -pride -parade -held -in-budapest -under -heavy -security/ (last accessed: 10
March 2014) . 881https://www.politics.hu/20120827/counter -demonstrators -detained -at-hungarian -guard -event -on -heroes -square/
(last accessed: 10 M arch 2014) . 882 Decision 3/2013. (II. 14.) AB . 883 15/1990. (V. 14.) BM rendelet a rendezvények rendjének biztosításával kapcsolatos rendőri feladatokról. 884 Hajas 76.

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accompanied by paying a fee as in regular administrative procedure. In practice – in
conformity with the constitu tion – police never requested the payment. 885
In a similar vein, assembly organizers can request the state health care providers to assist on
the spot free of charge (stationing ambulance cars and personnel). 886
Liability of organizers
The organizer is jointly liable for the damage caused by a participant at the assembly to any
third party. The organizer is exempted from the liability if she proves that during the
organization and the course of the assembly she “did as it could be expected in the particu lar
situation” 887, which corresponds to the regular Hungarian private law culpability standard.
Use of force by the police
An assembly can be dispersed (i) if the organizer fails to dissolve the assembly which became
unlawful and order cannot be re -establi shed otherwise; (ii) if crimes are committed or called
for; (iii) if it violates the rights and freedoms of others, or if participants are armed or wear
arm -like devices. Constitutionally, dissolution is the last resort, and the specific measure
taken must be strictly necessary and proportionate to the aim pursued, i.e. dispersal is only an
option if less restrictive means are not available. The ARA, however, only regulates dispersal
as the means police can make use of in case of unlawful assemblies. 888
In p ractice, police sometimes notoriously fail to uphold order while observing rule of law.
Hungarian police were infamously unprepared during the riots and waves of demonstrations
in the fall of 2006, and used excessive force against peaceful protesters or e ven non –
participants in many cases. Domestic human rights organizations (Hungarian Helsinki
Committee, Hungarian Civil Liberties Union, etc.) and the Committee against Torture
expressed concerns over police brutality which often remained unpunished, not ev en
investigated. 889
More recently, to the contrary, police were criticized for not using force to disperse an anti –
Roma demonstration. 890 After listening to virulently racist speeches about genetically coded
criminality and that “we will trample down the phenomenon which needs to be exterminated
from our Lebensraum [this latter one in Hungarian is the exact translation of the German
origina l]”, participants threw stones, pieces of concrete and bottles into the yard of Roma
inhabitants in Devecser. 891 Police stood by passively. Since then, one person was prosecuted
for hate crime (violence against member of a community), but as to the speeches, police
closed the investigation for not having found any crimes committed, not even incitement to
hatred. 892
885 Hajas, 181 -182. 886 In two instances, however, the National Ambulance Service wished to charg e for providing assistance on
antigovernment demonstrations. In the first case, the (previous) ombudsman declared this irreconcilable
with the state’s obligation to institutional protection of fundamental rights to life and assembly. In the
second case, th e opinion of the new ombudsman is either not prepared yet or cannot be found. Case nr.
AJB -3449/2012, report of the ombudsman of 11 June 2012, available
https://www.ajbh.hu/documents/10180/143994/201203449.rtf/3edbf7b1 -9ede -4219 -a6d2 -dd405e91c7a2
(last accessed: 10 March 2014) . 887 Art. 13 ARA. 888 Simil arly, Balázs M. Tóth, https://www.arsboni.hu/tothb.html. 889 See https://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.HUN.CO.4.En?Opendocument (last accessed: 10
March 2014) . 890 https://tasz.hu/node/2812 (last accessed: 10 March 2014) . 891 In English see Amnesty International’s report at https://www.amnesty.org/en/news/hungary -must -protect –
roma -communities -attack -2012 -08 -15 (last accessed: 10 March 2014) . 892 The Hungarian Helsinki Committee lodged a complaint against this: https://helsinki.hu/ha -ez-nem -uszitas –
akkor -semmi -sem -az (last accessed: 10 March 2014) .

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In 2012, police did not intervene when extreme right wing counter -protestors attacked
journalists in the immediate vicinity of an anti -government de monstration. 893 Police neither
dispersed the evidently unpeaceful (and unnotified) assembly, nor were the attackers (clearly
identifiable) arrested. 894
6. Securing government accountability
Liability and accountability of law enforcement personnel
Hungarian law contains a lot of rules which in theory would guarantee liability and
accountability of all state officials, especially including law enforcement, for violating human
rights and abuse of power in executing their duties. These rules include the Criminal Code’s
provisions on criminal assault, unlawful detention, etc., the state’s liability to pay
compensation for violations of personality and other human rights, in particular for unlawful
detention, etc.
In fact, several alleged police abuses in 2006 rem ained unaccounted for. Partly because police
officers did not wear identification badges, a large part of police abuses could not be
prosecuted. Domestic and international human rights organizations, including the Committee
Against Torture condemned the go vernment for this practice. 895 Police now are obliged to
wear clearly visible identification numbers during crowd control as well.
The contemporary government convened a committee of experts to assess the events,
including omissions and defects of the prote st policing. 896 Though the committee found many
problems with the policing, a human rights group headed by Jobbik MP Krisztina Morvai
(associate professor of law) prepared another report even more condemning of government. 897
On January 1, 2008, the Independe nt Police Complaints Board was established directly in
order to prevent re -occurrence in the future of police abuses similar to those of 2006, and
human rights violations by police in general. 898
Monitoring
In 2007, the general ombudsman launched a large -sca le monitoring project , where
colleagues of the ombudsman’s office observed on the scene and if needed, behind the scene,
the policing of altogether fifty demonstrations, processions, flashmobs etc. for more than a
year, and organized workshops and conferen ces with scholars, officials and civil society
actors. The resulting report was many times cited in this study as well. 899
Apart from the ombudsman, as the references in this study again testify, human rights NGOs,
especially the Hungarian Civil Liberties Un ion within its freedom of assembly program and
the Hungarian Helsinki Committee also follow closely much of the assembly activity taking
place in the country, initiate appeals and judicial proceedings, if necessary, turning to the
893 See the video (“Death onto you, Jews!”)

mpaign=videoplayer (last accessed: 10 March 2014) . 894 https://index.hu/belfold/2013/12/19/barna_orfk/ (last accessed: 10 March 2014) or
https://helsinki.hu/mulasztott -a-rendorseg -az-osszevert -videos -ugyeben (last accessed: 10 March 2014) . 895https://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/bb9cec39af4f478dc125728000562b
4d/$FILE/G07 40345.pdf (last accessed: 10 March 2014) . 896 English summary of the report
https://www.gonczolbizottsag.gov.hu/jelentes/gonczolbizottsag_jelentes_eng.pdf (last acce ssed: 10 March
2014) . 897 English summary of the report https://www.americanhungarianfederation.org/docs/CJB_Summary.pdf (last
accessed: 10 March 2014) . 898 https://www.panasztestulet.hu/index.php?link=en_main.htm (last accessed: 10 March 2014) . 899 https://www.ajbh.hu/documents/10180/124842/gyulekezesijogi.pdf/9e675513 -ca81 -4b6b -b258 –
8aad57c604ca;jsessionid=80CC85714B5F197C96ADAC132039E16E?version=1.0 (last accessed: 10
March 2014) .

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HCC or to the ECtHR as we ll. Freedom of assembly issues also find their way into shadow
reports prepared by these organizations for supervisory bodies of various human rights
treaties.
Media access
Representatives of the media are in principle to be especially protected on assemb lies in
Hungary as well, though media freedom in Hungary has been notoriously in decline in the last
years. 900 In general, police do not prevent journalists from following the events closely.
Lately, there was one reported case where police did not protect a journalist from being
assaulted by extreme right wing counter -protestors next to an anti -government demonstration,
albeit the assault was clearly visible for police officers standing by. The police have closed
the investigation, but this was considered a n unlawful omission in court. 901
7. Conclusions and outlook
The deteriorating general constitutional context puts a question mark to every fundamental
right in Hungary, including freedom of assembly. So far, however, problems arising are
largely old ones , f rom which the most important ones will be summarized here. These
include technicalities which could easily be resolved by legislation, such as e.g. that it not be
possible to notify an assembly for hundred years in advance, in fact booking a public square
for eternity and blocking everyone else from exercising the right. Similarly old is the urge to
cordon out anti -government protestors, though new techniques emerge, such as the public
area use license reserving central Budapest for the government or the Co unter -terror Centre’s
shielding president and prime minister within “operational zones”. These practices are so far
largely countered by courts in the end, though not very efficiently, as there is a worrying trend
to impose such exclusionary zones. Police and administration in fact often resist clear judicial
guidance when it comes to anti -government protest, reinforcing the appearance of a politically
biased or influenced public service. In a similar way, an anti -gay bias of police (or those
instructing po lice) has been apparent with regard to the Budapest Pride bans.
Problems with far right demonstrations also continue to loom large, partly around
inevitable interpretational questions common to many jurisdictions restricting uniforms and
banning organizat ions in the fight against hate. In relation to counter -demonstrations, police
seem ill -prepared to concretize abstract human rights reasoning and properly balance clashing
interests, thus there also might exist a need for legislation. In some cases, howeve r, such as
with the violent anti -Roma assembly, police clearly misapplied established constitutional
doctrine and common sense about what is violent. In others, such as with the anti -Semitic
rallies, the ban comes at the price of serious violation of rule of law standards, or relying
directly on the Fourth Amendment’s very problematic communitarian dignity rationale which
limits not only hate speech against ethnic minorities, but is meant to protect dignity of the
“Hungarian nation” as well, thereby chillin g political criticism. This all when the existing
legal tools would enable police to disperse (though not ban in advance) these assemblies in
case incitement to hatred or another crime is committed.
Courts, the ombudsman, human rights NGOs and some segmen ts of the media have so far
been able to counter some of the excesses of the executive branch, though their efforts remain
necessarily insular and of limited reach. It has to be seen and closely monitored also in the
future how the new ombudsman and the co nstitutional court in its new composition will fare
under the changing constitutional circumstances.

900 In the Press F reedom Index, Hungary fell from 23rd to 56th between 2010 and 2013. See
https://en.rsf.org/press -freedom -index -2013,1054.html (last accessed: 10 March 2014) . 901 https://helsinki.hu/mulasztott -a-rendorseg -az-osszevert -videos -ugyeben (last accessed: 10 March 2014) .

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Tunisia
by Melina Garcin

1. Legal bases
Freedom of Assembly cannot be depicted without sketching the current political situation
after the overthrow of the Ben Ali government following the “Arab Spring” insurgence of the
Tunisian people. On 17 December 2010, thousands of Tunisians participated in anti –
government protests. The protests continued until President Ben Ali left office and fled
Tunisia on 14 Ja nuary 2011. 902
A state of emergency has been in place in Tunisia since and has been extended until June
2014. 903 During this time, freedom of peaceful assembly can be restricted 904, contradicting the
repeated affirmations of the right to freedom of peaceful asse mbly by Tunisian authorities of
the new government. 905
In 2011, the 1959 Tunisian Constitution 906 was first suspended 907 and then completely
repealed, 908 and a National Constituent Assembly (NCA) was elected in October to draft a
new constitutional text. One year later, the NCA started to discuss the Preliminary Draft of
the Constitution, 909 which was issued in August 2012. A second draft Constitution of the
Tunisian Republic 910 was issued in December 2012. From 23 December 2012 to 13 January
2013 and with the help of the United Nations Development Programme (UNDP), 911 a two –
month outreach campaign was organized to gather input and recommendations from the
Tunisian people. 912 The plenary debates of the NCA began in late January 2013, adding
feedback to the proposed constit ution. The assassination of the opposition leader, Chokri
Belaid, in February 2013, interrupted the drafting process for a moment. As the second draft
was subject to disagreements and critics among academics, lawyers, NCA members and
NGOs, the NCA issued a third draft in April 2013. 913 The NCA began voting on the Final
Draft Constitution 914 (released on 1 June 2013), article by article, on 3 January 2014. 915 Most
902 The International Center for Not -for -Profit Law (2011) Arab Spring: an opportunity for greater freedom of
association and assembly in Tunisia and Egyt? Global Trends in NGO Law, Vol. III, Issue 1, June, p. 1. 903 CNN Staff (2013) Tunisia extends state of emergency . CNN, 3 November. Available at:
https://edition.cnn.com/2013/11/03/world/africa/tunisia -unrest/ (last accessed: 10 March 2014) . 904 Fédération Internationale des Ligues des Droits de l’Homme (2011) La Tunisie post Ben Ali face aux démons
du passé: Transition démocratique et persistance de violations graves des droits de l’Homme . July, N°
567f , pp.6 -7. 905 Fédération Internationale des Ligues des Droits de l’Homme (2011) La Tunisie post Ben Ali face aux démons
du passé: Transition démocratique et persistance de violations graves des droits de l’Homme . July, N°
567f , p.17. 906 United Nations Public Administration Network, The 1959 Constitution of Tunisia. 907 By Decree Law n°14 of 23 March 2011 relating to the provisional organisation of the publ ic authorities,
J.O.R.T. n°20 of 25 March 2011. 908 By Constituent Law n°6 of 16 December 2011 relating to the provisional organisation of the public
authorities, J.O.R.T. n°97 of 20 -23 December 2011. 909 European Commission for Democracy through Law (Venice Commission), Preliminary Draft Constitution of
the Tunisian Republic, CDL -REF(2012)035 -e, Or.Fr., Strasbourg, 25.09.2012. 910 United Nations Development Programme project in Tunisia, Draft Constitution of the Republic of Tunisia of
14 December 2012, unofficial translation. 911 United Nations Development Program. 912 Libertas Constitutional Consulting, The Arab World in Transition: Constitutional Timelines for Tunisia,
Egypt and Libya, Last update: 18.01.20 14, https://www.libertascc.com/#!timelines/c13mv (last accessed:
10 March 2014) . 913 International IDEA, Draft Constitution of the Tunisian Republic of 22 April 2013, unofficial translation. 914 Venice Commission, Draft Constitution of the Tunisian Republic of 1 June 2013, unofficial translation, CDL –
REF(2013)032 -e, Or.Arabic., Strasbourg, 20.06.2013.

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of the articles on freedoms and liberties were adopted unanimously, including Art. 37 on
freedom of a ssembly and demonstration. The final version adopted thus reads: “The right to
peaceful assembly and demonstration shall be guaranteed.” 916 The new Constitution was
adopted on 26 January 2014 and entered into force on 10 February 2014.
Pursuant to Art. 49, “ the law shall specify the restrictions related to the rights and freedoms
guaranteed in this Constitution […]. Such restrictions shall only be imposed where necessary
in a civil, democratic society and with the purpose of protecting the rights of others or where
required by public order, national defence , public health or public morals, while ensuring any
restrictions are proportionate to the intended objective. […].” 917
A 1969 Assembly Act regulates public meetings, marches, rallies, demonstrations, and
assemblies, 918 and as the legal norms do not mention any differential treatment, foreigners
enjoy the same rights and obligations regarding the law on assemblies as Tunisian citizens. 919
For the time being, freedom of assembly in Tunisia is still governed by t he laws which were
in force under the previous regime. Pursuant to Art. 1 of the 1969 Assembly Act, public
meetings are free and may be held without prior authorization, subject to the conditions
provided by the law.
2. Scope of the guarantee
Comments on the final draft
Al Bawsala, Amnesty International (AI), Human Rights Watch (HRW), and The Carter
Centre have independently followed the constitution drafting process from the outset. 920 The
NCA requested the opinion of the Venice Commission of the Council of Europe on the Final
Draft Constitution of Tunisia. The rapporteurs stated that the provision on freedom of
assembly failed to require that any interference for a legitimate aim had to comply with the
principle of proportionality and necessity in a democ ratic society 921 in the interests of national
security or public safety, public order, the protection of public health or morals, or the
protection of the rights and freedoms of others. 922 This was taken into account and
encompassed in Art. 49 of the newly ado pted constitutional provision on the restriction to
constitutionally guaranteed rights and freedoms.
915 TEYEB, M. (2014) Tunisia: A constitution by the majority for the minority? 8 January. Al -Jazeer a. Available
at: https://www.aljazeera.com/indepth/opinion/2014/01/tunisia -constitution -majority -minority –
20141711464706380.html (last accessed: 10 March 2014) . 916 Base de données: La législation du secteur de la sécurité en Tunisie. Available at: https://www.legislation –
securite.tn/fr/node/33504 (last accessed: 10 Marc h 2014) . 917 Ibid. 918 Act No. 69 -4 of 24 January 1969, on the Regulation of Public Meetings, Marches, Rallies, Demonstrations
and Assemblies, Official Bulletin of 28 -31 January 1969, p. 117. 919 Euro -Mediterranean Human Rights Network (2013) Regional Study: Th e right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHRN, November, p. 130. 920 AI reviewed the latest version of the Draft Constitution and found that the text still undermined tenets of
international human rights l aw, such as the universality of human rights, Amnesty International Media
Centre, Tunisia: New draft Constitution still falls short on human rights, PRE01/270/2013, available at:
https://www.amnesty.org/en/for -media/press -releases/tunisia -new -draft -constitution -still -falls -short –
human -rights -2013 -06 -05 (05.06.2013) (last accessed: 10 March 2014) . 921 Venice Commission, Ob servations on the Final Draft Constitution of the Republic of Tunisia,
CDL(2013)034, Or. Fr., Strasbourg, 17.07.2013, paras. 42, 71. 922 Amnesty International, Last opportunity for Tunisian lawmakers to enshrine human rights for all in Tunisia’s
new Constit ution, MDE 30/005/2013, 05.06.2013.

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Experiences with flash mobs
There is no legal provision on flash mobs in Tunisia, although if considered a rally and
pursuant to Art. 9 of the 1969 Assemb ly Act, they should be subject to notification. 923 When
they are not staged as entertainment, flash mobs are used as means to protest in Tunisia 924 and
to raise awareness about important issues. 925 But even if they are organized moderately, they
can be thwarted, 926 if considered as unarmed crowds likely to disturb the public peace,
pursuant to Art.13 of the 1969 Assembly Act. 927
3. Restrictions
The state of emergency is based on a 1978 Decree. 928 The governor can forbid the movement
of persons and vehicles in designat ed areas and for as long as security and public order
requires. 929 The Minister of Home Affairs has the right to put any person who engages in
activities that threaten national and public security under house arrest. 930 The Minister of
Home Affairs and local g overnors can also close temporarily meeting places of any kind and
ban meetings likely to disturb public order, 931 as well as censor the press, radio broadcasts,
and other activities. 932 The 1969 Assembly Act states that public meetings cannot be held on
publi c roads. 933 Additionally, they cannot continue beyond midnight, except in localities
where the closure of public establishments occurs later. 934 The 1969 Act also gives authorities
the possibility to forbid any meeting or demonstration that is likely to distur b security and
public order by decree. 935
4. Procedural issues
Notification/authorization
The 1969 Assembly Act states that public meetings do not require prior authorization, 936 but
shall be preceded by a notification to authorities that specifies the place, date and time of the
meeting; that is signed by a minimum of two persons, and that includes their personal
identification, profession, and place of residence. 937 Notifications must be submitted between
15 and 3 days prior to the holding of the meeting and s pecify the theme and purpose of the
meeting. 938 Furthermore, Art. 9 of the 1969 Act states that all marches, rallies, and, generally
923 Act of 24 January 1969, Art. 9: Marches, rallies and all other forms of demonstrations on public roads
necessarily have to be notified. 924 Cf. LECOMTE, R. (2011) Révolution tunisienne et Internet: le rôle des médias soc iaux. VII 2011 : Dossier :
Sahara en mouvement, pp. 389 -418, § 28 ; Over the unemployment crisis:
https://www.youtube.com/watch?v=NBkOosu6WSs (last accessed: 10 March 2014) . 925 i.e. on the right to abortion: https://www.youtube.com/watch?v=1DtHHwg7xTc (last accessed: 10 March
2014) . 926 Cf. LECOMTE, R. (2011) Révolution tunisienne et Internet: le rôle des médias sociaux. VII 2 011 : Dossier :
Sahara en mouvement, pp. 389 -418, fn. 50. Available at: https://anneemaghreb.revues.org/1288 ;
https://atunisiangirl.blogspot.de/2010/08/comme -tous -les -combats -qui -ont -fait.html (last accessed: 10
March 2014) . 927 Act of 24 January 1969, Art. 13: Are prohibited on public roads and places: 1. All armed crowds; and 2. All
unarmed crowd likely to dis turb public peace. 928 Decree n° 78 -50 of 26 January 1978. 929 Decree n° 78 -50 of 26 January 1978, Art. 4. 930 Decree n° 78 -50 of 26 January 1978, Art. 5. 931 Decree n° 78 -50 of 26 January 1978, Art. 7. 932 Decree n° 78 -50 of 26 January 1978, Art. 8. 933 Act of 24 January 1969, Art. 8. 934 Act of 24 January 1969, Art. 4. 935 Cf. Act of 24 January 1969, Art. 7 and 12; Adm.Court, 14 November 2012, n° 121187. 936 Act of 24 January 1969, Art. 1. 937 Act of 24 January 1969, Art. 2. 938 Act of 24 January 1969, Art. 3.

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speaking, all demonstrations on public roads, irrespective of their nature, must submit prior
notification. It has to indicat e the place of the gathering and the itinerary, together with the
banners or flags that will be carried. An incomplete or inaccurate notification, as well as
participating in a demonstration that has not been the subject of a notification or that has been
banned, is punishable by up to one -year imprisonment. 939
Decision -making
Art. 2 of the 1969 Act vests different authorities with the capacity for decision -making
pertaining to assemblies. In most regions, notifications should be submitted to municipalities.
In the capital city Tunis however, it is the Department of Homeland Security that shall be
notified. Legislation foresees that a civil servant shall be appointed by the security services to
attend public meetings. He/she has the right to pronounce the dis solution of the meeting, if
requested by the meeting’s supervisory committee, or if clashes or assaults occur. 940 The
organizer of a demonstration has a right to be informed of the reasons why the demonstration
has been prohibited. 941 However, under the state of emergency, the authorities do not need to
give reasons to restrict or ban meetings, and they can issue general bans prohibiting any kind
of meetings or demonstrations, far from what international standards require with regard to
necessity and proportion ality. 942
Review and appeal
Organizers of prohibited meetings can appeal to the Secretary General of the Ministry of
Home Affairs, whose decision is deemed final. 943 Although there is the right of recourse
before the administrative courts, frequently this rec ourse is not fast enough to enable the
upholding of the demonstration or public meeting. 944 Moreover, cases relating to the
revolution that were brought before the courts did not move forward because officials, and
occasionally judges, refused to cooperate i n the investigations. 945 While the law provides for
an independent judiciary, the executive branch strongly influences judicial procedures,
particularly in cases involving political dissidents and oppositionists. Cases involving
freedom of expression resulte d in lengthy trials and harsh verdicts. 946 The military courts
handled redress of alleged abuses by security forces during civil disturbances during the
revolution. 947
939 Act of 24 January 1969, Art. 26. 940 Act of 24 January 1969, Art. 6. 941 Adm.Court, 14 November 2012, n° 121187. 942 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legi slation Review . EMHRN, November, p. 133. 943 Act of 24 January 1969, Art. 7. 944 For example, the Ministry of Home Affairs banned demonstrations on 9 April 2012 on the main avenue of
Tunis, Habib Bourguiba. The administrative tribunal could only render its j udment on 12 June 2012, after
the Minister withdrew the ban. 945 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 8. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) . 946Ibid. , p. 7. 947 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 8. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last access ed:
10 March 2014) .

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5. Specific forms of assemblies
Spontaneous assemblies
The law does not cover certain forms of assemblies such as spontaneous or simultaneous
assemblies. By virtue of Art. 25, it envisages imprisonment for a period of up to six months
for “any direct call for holding a meeting on public roads”, 948 while Art. 31 foresees an
imprisonment penalt y for a minimum term of one month and a maximum term of one year on
individuals who incite unarmed crowds, whether through public speeches, leaflets or
posters. 949 Art. 13 of the 1969 Act forbids all unarmed crowds that are likely to disturb public
peace. 950 The Euro -Mediterranean Human Rights Network (EMHRN) drew the conclusion
that spontaneous assemblies were prohibited in Tunisia, as virtually any gathering in a public
place would convey some kind of disturbance to undefined public peace. 951 Since the
revoluti on though, there have been spontaneous demonstrations, protests, and strikes across
the country. 952 Some of them degenerated into violent clashes and contaminated other cities
and areas. 953
Assemblies gathered by means of new technologies
Widespread use of an d access to the Internet and social media sites was a major facilitating
factor in starting the 2010 protests, as well as the subsequent ones. Almost 20 percent of
youth had a Facebook account, and since the fall of the former government, Internet sites
we re no longer blocked. The government took several steps during 2011 to end official
Internet censorship. 954
Assemblies taking place on public property
Public meetings cannot be held on public roads 955 and all marches, rallies and demonstrations
taking place o n public roads are subject to prior notification. 956
Counter -demonstrations
The law does not envisage counter -demonstrations. The organization of counter –
demonstrations has become a common way to impede the meetings and gatherings of
opposition parties and N GOs. 957
948 Act of 24 January 1969, Art. 25. 949 Ibid. Art. 31. 950Ibid. , Art. 13. 951 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHR N, November, p. 132. 952 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , p. 10. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186451 (last accessed: 10 March
2014) . 953 DAHMANI, F. (2011) Tunisie: un été en état d’urgence. 3 August. Jeune Afrique. Available at:
https://www.jeuneafrique.com/Article/ARTJAJA2637p040 -041.xml0/ (last accessed: 10 March 2014) . 954 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , p. 9. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186451 (last accessed: 10 March
2014) . 955 Act of 24 January 1969, Art. 8. 956Ibid. , Art. 9. 957 Eu ro-Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHRN, November, p. 128.

132
6. Implementing freedom of assembly legislation
Pre -event planning
Each meeting must have a supervisory committee of at least three persons which is
responsible for maintaining order, preventing any infringement of laws, conserving the nature
of th e meeting to that included in the notification, forbidding any speeches contrary to public
order and good morals, and limiting provocation for acts qualified as crimes or offences. 958
Costs
No information found.
Use of force by the police
After having issue d warnings, the police may resort to the use of firearms against
demonstrators who refuse to disperse, 959 even if the demonstrators have not used any violence.
In the event that the demonstrators attempt to achieve their aims by force, police can shoot
direc tly at them. 960 According to an OHCHR report, 961 figures obtained from the Ministry of
Justice indicate that at the beginning of the revolution, 147 persons had died during, or in
circumstances surrounding, the demonstrations, while another 510 had been injure d. Several
human rights organizations have reported a much higher number of killings since the
beginning of the protests. 962 There were reports of security officials using excessive force in
arresting protesters, including those involved in peaceful demonstr ations, 963 and not following
legally established arrest procedures. Both the OHCHR and AI stated that security forces used
excessive force when confronting demonstrators during five days of protests in Siliana at the
end of November 2012. An estimated 300 de monstrators were injured, including dozens shot
in the face with birdshot, blinding several people. 964 Following news of Chokri Belaid’s death
– opposition leader with the left -secular Democratic Patriots’ Movement, police used tear gas
to disperse thousands of people demonstrating in front of the Ministry of Home Affairs in
958 Act of 24 January 1969, Art. 5. 959Ibid. , Art. 20. 960Ibid. , Art. 22. 961 OH CHR (2011) Report of the OHCHR Assessment Mission to Tunisia, 26 January –2 February 2011 . Para.
39. 962 Cf. HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia . 2 February.
A/HRC/19/61/Add. 1. Para. 37. Available at: https://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf? OpenElement (last accessed: 10 March
2014) ; Editorial board (2011) Tunisie: un adolescent tué par balles à Sidi Bouzid . LEXPRESS.fr, 18 July.
Available at: https://www.lexpress.fr/actualite/monde/tunisie -un -adolescent -tue -par -balles -a-sidi –
bouzid_1012809.html (last accessed: 10 March 2014) . 963 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 5. Available at:
https://www.state.gov/j/d rl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) .
964 Cf. COLVILLE, R. (2012) Press briefing notes on Tunisia and Egypt . Geneva, 30 November. Available at:
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12848&LangID=E (last
accessed: 10 March 2014) ; AI (2012) Excessive force against protesters in Tu nisia. 1 December.
Available at: https://www.amnesty.org.au/news/comments/30623/ (last accessed: 10 March 2014) ; HRC,
19 th Session (2012) Report of the Special Rapporteur on torture and other cr uel, inhuman or degrading
treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia . 2 February.
A/HRC/19/61/Add. 1. Para.36 Available at: http ://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement . (last accessed: 10 March
2014)

133
Tunis. 965 The same happened in cities throughout the country. 966 Following Mohamed
Brahmi’s death – founder and leader of the second left -wing party People’s Movement,
hundreds of his support ers, including relatives and party members, demonstrated in front of
the Ministry of Home Affairs’ building and in Brahmi’s hometown. 967 Many witnesses HRW
interviewed described excessive use of tear gas by the police to break up a peaceful sit -in in
front o f the NCA. Several witnesses said the police insulted and beat protesters and journalists
in an effort to disperse them. 968 During his funeral, protesters called for the government to be
toppled, and although the gathering was peaceful, police fired tear gas on them 969 .
Additionally, security officials often repeatedly harassed and threatened journalists during
street demonstrations or protests. 970 There were several instances of demonstrators and
bystanders being arbitrarily arrested and at times, detained. 971 The re also were reports of
mistreatment during pre -trial detention. Multiple activists reported harsh physical treatment of
individuals who participated in demonstrations. Minors and adults were arbitrarily detained
and taken to a detention centre without any access to lawyers or notification to their families.
Detention officers forced them to kneel and remain in uncomfortable positions. Some were
beaten by several policemen. 972 Private actors are jeopardizing freedom of peaceful assembly.
965 Editorial board (2013) Tunisia: Chokri Belaid assassination prompts protests . BBC News Africa, 6 February.
Available at: https://www.bbc.co.uk/news/world -21349719 (last accessed: 10 March 2014) . 966 MARKS, M. and FAHIM, K. (2013) Tunisia Moves to Contain Fallout After Opposition Figure Is
Assassinated . The New York Times, 6 February. Availab le at:
https://www.nytimes.com/2013/02/07/world/africa/chokri -belaid -tunisian -opposition -figure -is-
killed.html?_r=0 (last accessed: 1 0 March 2014) . 967 GALL, C. (2013) Second Opposition Leader Assassinated in Tunisia . The New York Times, 25 July.
Available at: https://www.nytimes.com/2013/07/26/world/middleeast/second -opposition -leader -killed -in-
tunisia.html (last accessed: 10 March 2014) . 968 Human Rights Watch (2013) Tunisia: Protesters Describe Tear gas Attacks, Beatings . 29 July. Available at:
https://www.hrw.org/news/2013/07/29/tunisia -protesters -describe -teargas -attacks -beatings (last accessed:
10 March 2014) . 969 Editorial board (2013) Tear gas fired at Tuni sian protesters . Al Jazeera, 28 July. Available at:
https://www.aljazeera.com/news/africa/2013/07/201372710011814239.html (last accessed: 10 March
2014) . 970 Cf. U.S. Depart ment of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 10. Available at:
https://www.state.gov/j/drl/rls/h rrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) ; HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, Juan E. Méndez – Addendum – Mission t o Tunisia . 2
February. A/HRC/19/61/Add. 1. Para.39. Available at: https://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement (last ac cessed: 10 March
2014). 971 Cf. U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , pp. 1, 4, 5. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186451 (last accessed: 10 March
2014) ; U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012
Human Rights Report , p. 5. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) ; Fédération Internationale des Ligues des Droits de l’Homme (2011) La Tunisie post Ben
Ali face aux démons du passé: Transition démocratique et persistance de violations graves des droits de
l’Homme . July, N° 567f, p. 26; HRC, 19 th Session (2012) Report of the Special Rapporteur on torture an d
other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to
Tunisia . 2 February. A/HRC/19/61/Add. 1. Para. 40. Available at: https://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement (last accessed: 10 March
2014) . 972 Cf. U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , p. 5. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186451 (last accessed: 10 March
2014) ; HRC, 19 th Session (2012) Report of the Special Ra pporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia . 2 February.

134
Individuals who do no t belong to the law -enforcement personnel have violently attacked
demonstrators on several occasions. 973
Liability and accountability of organizers
Art. 5 of the 1969 Act places the responsibility on organizers to control order during public
meetings. The police endured repeated attacks by protesters who destroyed police stations,
vehicles and equipment. 974
7. Securing government accountability
Liability and accountability of law enforcement personnel
Although the Ministry of Home Affairs holds legal author ity and responsibility over law
enforcement, the Ministry of Defence began playing a larger role in internal security matters
after the 2011 revolution. 975 Authorities have the obligation to facilitate the exercise of
peaceful assembly and to distinguish between violent and non -violent protesters. However,
authorities have often failed to comply with this obligation 976. Under article 101 of Tunisia’s
Penal Cod e, any public agent who, while on duty, uses or causes to be used violence against
persons without a legitimate purpose can be sentenced to up to five years in prison. Art.
101 bis imposes a term of up to eight years for acts that rise to the level of tortu re. Human
Rights Watch (HRW) has investigated past incidents involving the apparent use of excessive
force by Tunisian police forces against protesters. No police officer has been accused for such
violence 977 . The government also failed to properly investiga te the incident on 9 April 2012,
when police violently dispersed a peaceful protest after the Minister of Home Affairs banned
demonstrations on the main avenue in Tunis. The NCA formed a commission of inquiry to
investigate, but it did not make any progres s and 10 of its members resigned in protest in
April 2013 978 . Pursuant to Art. 17 of the 1972 Act, 979 public authorities are to be held
accountable for unusual damages caused by dangerous activities, which can result from
demonstrators making use of force or f rom law enforcement personnel making use of force or
shooting directly at demonstrators. 980

A/HRC/19/61/Add. 1. Para. 40. Available at: https://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement (last accessed: 10 March
2014) . 973 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHRN, November, p. 128. 974 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 5. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) . 975 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 5. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport /index.htm?year=2012&dlid=204385 (last accessed:
10 March 2014) . 976 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHRN, November, p. 134. 977 Hu man Rights Watch (2013) Tunisia: Protesters Describe Tear gas Attacks, Beatings . 29 July. Available at:
https://www.hrw.org/news/2013/07/29/tunisia -prote sters -describe -teargas -attacks -beatings (last accessed:
10 March 2014) . 978 Human Rights Watch (2013) Tunisia: Protesters Describe Tear gas Attacks, Beatings . 29 July. Available at:
https://www.hrw.org/news/2013/07/29/tunisia -protesters -describe -teargas -attacks -beatings (last accessed:
10 March 2014) . 979 Organic Law n° 72 -40 of 1 June 1972 relating to the Administrative Court, last amended on 13 February
2008 . 980 Adm. Court, 28 March 2008, n° 1/16754; confirmed by the Court of Appeal on 10 July 2009, n° 27001;
confirmed by the Supreme Court on 28 May 2011, n° 3109938.

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Monitoring
Operating space for domestic and international human rights groups improved dramatically
after the revolution; they operated without government restrictio n, investigating and
publishing their findings on human rights cases. Acting government officials were
increasingly cooperative and responsive to the protesters’ views. 981 On 9 September 2011, the
NGO Ligue Tunisienne pour la défense des Droits de l’Homme (L TDH) held its first national
congress in 11 years, after having been banned and repressed under the Ben Ali regime for
decades. The government granted international NGOs, like Human Rights Watch and
Reporters Without Borders, permission to open offices in Tunis. These organizations were
permitted to conduct in -country research and investigations into human rights issues freely.
Additionally, UN Agencies (OHCHR 982) and UN Special Rapporteurs 983 carried out
assessment missions in Tunisia, and an OHCHR office open ed in Tunis. The NGO Euro –
Mediterranean Human Rights Network (EMHRN) 984 issued a study which is based on a
process of consultation and participation involving 80 human rights organizations and
institutions based in 30 countries as well as individuals. 985 There were, however, instances
when the government did not cooperate with human rights organizations in their
investigations into human rights violations. 986
Media access
Reporters and photographers working for local and foreign media were subject to beatings
an d insults, and their equipment was confiscated. In response, the Ministry of Home Affairs
issued a public apology and opened an inquiry into the incidents. 987
8. Conclusions and outlook
The new Tunisian Constitution was adopted on 26 January 2014, shortly after the third
anniversary of the Tunisian Revolution. The article on freedom of assembly has been adopted
unanimously and guarantees the right to peaceful assembly and demonstration, without
referring to any possible restriction in the wording of the article itself. Article 49 of the
Constitution states that restrictions to constitutionally guaranteed rights and freedoms are
provided by law; they shall be necessary in a democratic society and be propor tionate to the
981 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , p. 14. Available at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186451 (last accessed: 10 March
2014) . 982 OHCHR (2 011) Report of the OHCHR Assessment Mission to Tunisia, 26 January –2 February 2011 . 983 Cf. HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia . 2 February.
A/HRC/19/61/Add. 1; HRC, 20 th Session (2012) Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin –
Addendum – Mission to Tunis ia. 14 March. A/HRC/20/14/Add.1; HRC, 22 nd Session (2013) Report of the
Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya – Addendum –
Mission to Tunisia (27 September -5 October 2012) . 25 January. A/HRC/22/47/Add. 2. 984 Euro -Mediterranean Human Rights Network. 985 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review – Tunisia . EMHRN, November, p. 1. 986 U.S. Department of State , Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , pp. 15 -16. Available at:
https://www.state.gov/j/drl/rls/hrrpt/hum anrightsreport/index.htm?year=2012&dlid=204385 (last accessed: 10
March 2014) . 987 HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Juan E. Méndez – Addendum – Mission to Tuni sia . 2 February.
A/HRC/19/61/Add. 1. Para.39. Available at: https://daccess -dds –
ny.un.org/doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement (last accessed : 10 March
2014) .

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legitimate aim pursued; matching therefore the criteria recognized internationally. 988 The 1969
Assembly Act protects public meetings, which are free and do not need any authorization to
be held, but shall be notified. They cannot be held on p ublic roads. The same Act
distinguishes public meetings from marches, rallies and demonstrations, which take place on
public roads and necessarily have to be notified. Crowds, which are gatherings likely to
disturb public order, are prohibited. Article 3 r equires that notifications shall specify the
theme and the purpose of planned public meetings. 989 In this context, Art. 10 states that prior
notifications to assemblies on public roads shall be submitted, in compliance with the
provisions of Art. 2, specifyi ng flags or banners which will be used during the assembly. 990
Those necessities can be considered as content regulation and consequently, pre -censorship if
these elements are considered in advance to scrutinize any message to be displayed in the
assembly. T he obvious contradiction between the declarations of the transitional authorities
and the recourse to the law on the state of emergency to limit the right to freedom of peaceful
assembly leads to legal uncertainty for the Tunisian people. 991 The conditions f or the state of
emergency are no longer met and exceptions to laws should not be used to ban peaceful
meetings and protests. OSCE and ODIHR issued a 2013 opinion on a new Draft Organic Law
on the Right to Peaceful Assembly in Tunisia and recommended the in clusion of the
presumption in favour of holding assemblies, the State’s positive obligation to protect
peaceful assembly, as well as the more general principles of legality, proportionality, non –
discrimination and good administration. 992

988 I.e. Art. 12 of the International Covenant on Civil and Political Rights. 989 Act of 24 January 1969, Art. 3. 990 Act of 24 January 1969, Art. 10. 991 Fédération Internationale des Ligues des Droits de l’Homme (2011) La Tunisie post Ben Ali face aux démons
du passé: Transition démocratique et persistance de violations graves des droits de l’Homme . July, N°
567f , p.18. 992 OSCE/IDIHR (2013) Opinion on the Draft Organic Law on the Right to Peaceful Assembly of Tunisia .
Unofficial translation . Warsaw, 14 May, FOA -TUN/230/2013.

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Freedom of Assem bly in Europe – Comparison
Prof. Dr. Anne Peters, Dr. Isabelle Ley

1. Constitutional and statutory guarantees
All member states – with the exception of the United Kingdom which does not have a written
constitution – guarantee freedom of assembly as a con stitutional right. France is a slightly
particular case insofar as the 1958 Constitution does not directly contain a provision on
freedom of assembly. Instead, it refers to the Preamble of the 1946 constitution which, in turn,
refers to the Declaration of the Rights of Man and of the Citizen of 1789 recognizing the “free
communication of ideas and opinions” as one of the fundamental rights of man. In Tunisia,
the new constitution was adopted on January 26, 2014 and entered into force on February 10,
2014. U ntil that date, a Constituent Law of 2011 temporally guaranteed “freedoms and human
rights” – and will probably continue to be a reference until a new constitutional interpretation
and practice has evolved.
Within most constitutions, the freedom of assembl y is connected to the rights of political
expression – either as a direct part of an overarching right of free expression such as in the US
constitution, or it is viewed as being linked or related to the freedom of speech and press and
of association. 993 In the European Convention of Human Rights, freedom of assembly is
guaranteed in one article together with the freedom of association (Art. 11 ECHR), and these
two rights are understood by the ECtHR as lex specialis to the basic communicative guarantee
of Art. 10 ECHR (freedom of expression). 994 The new Hungarian Constitution of 2010, having
been adopted under Viktor Orbán, posits a startling exception to this rule as it precedes the
freedom of expression in order. 995 While in some cases, as in Art. 11 ECHR, t he freedom of
assembly is guaranteed in the same provision as the freedom of association, this is not always
the case – in Germany, for instance, the two are clearly separated in different articles (Art. 8
and 9 of the Basic Law; analogously Art. 33 and 34 of the Turkish Constitution).
In most countries, specific infra -constitutional norms (laws and decrees) regulate the law of
assemblies. Here again, the UK in which the freedom of assembly used to be a residual right
and is now included in the Human Right s Act, forms an exception. France has a codification
for public meetings only, while demonstrations (“manifestations”) are regulated in other
statutes not specifically covering the law of assemblies. Furthermore, Belgium and Ukraine
do not have codificatio ns pertaining to specific issues regarding the conduct, protection and
restrictions of assemblies. In Tunisia, a statute by the former regime, enacted in 1969, has
been declared valid until the new regime will legislate on the matter.
Wording
The wording o f the constitutional guarantees is quite similar. The provisions usually
guarantee the freedom of peaceful – and in some cases: unarmed – assembly. 996 Some of the
993 U.K.Preuß, Associative Rights (the rights to the freedom of petition, assembly, and association), in: M.
Rosenfeld, A. Sajó (eds.), Oxford Handbook of Comparative Constitutional Law 1st edition 2012, 948, at
951 et seq . 994 ECtHR, Ezelin v. France, Application no. 11800/85, judgment of 26 April 1991; F. Arndt, Versammlungs –
und Vereinigungsfreiheit, Art. 11, MN 1 in: U. Karpenstein, F.C. Mayer (eds.), EMRK – Konvention zum
Schutz der Menschenrechte und Grundfreiheiten, 2012, 299. 995 Cf. report on Hungary, supra , p. 115. 996 Cf. 1st Amendment to the US Constitution: “Congress shall make no law … abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.”; Art. 8 German Basic Law: “(1) All Germans shall have the right to assemble
peacefully and unarmed without prior notification or permission.”; Art. 26 Belgian Constitution: “the
right to assemble peaceably and without arms, in accordance with the laws that can regulate the exercise
of this right, without submitting it to prior authorization”; French Declaration of the Rights of Man and

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constitutions enumerate different forms of assemblies; the Ukrainian Constitution for instance
explicitly mentions “rallies, meetings, processions, and demonstrations”, similarly to the
Russian and Turkish provisions. In this regard, the constitutions of the last 30 years (the
Turkish Constitution dates from 1982) are more explicit and differentiate d than the more
traditional legal systems such as the French one whose Declaration of Rights of Man and
Citizen of 1789 only mentions the communication of ideas and opinions without explicitly
referring to assemblies.
The wording of the Belgian guarantee is an exception worth mentioning. Already in 1831,
Belgium was the first state to establish a specific and distinct regime for open air gatherings.
These require not only prior notice, but prior authorization, 997 as opposed to indoor meetings.
This stipulati on has proved widely influential as the differentiation between open air and
indoor assemblies was later on incorporated in the constitutions of Luxemburg, Denmark,
Germany, Greece, Italy, Spain and Romania (mostly without the authorization requirement,
ho wever). 998 Finally, the legal provisions differ in technical terms: Sometimes the scope and
conditions of restrictions of assemblies are defined in the constitutional guarantee itself,
sometimes only in the implementing laws. In some legal orders, a general restriction regime
applies to all fundamental freedoms; in other constitutions, each fundamental right has its own
particular restriction regime. 999
Scope of application
Ratione personae
Importantly, the constitutional guarantees differ with regard to their scope ratione personae .
While Art. 11 ECHR requires member states to guarantee the freedom of assembly to
“everyone” within their jurisdiction, many constitutions explicitly grant it to citizens only. In
part, this has to do with the intimate connection o f the communication rights with citizenship,
such as in France. The limited personal scope for citizens can be found in the Serbian,
Russian, German, French, and Belgian constitutions. In some cases (Belgium and Germany),
constitutions accommodate foreigne rs by guaranteeing their fundamental rights through
residual provisions. Still others extend the freedom of assembly of foreigners through an
extensive interpretation of the constitutional guarantee of freedom of assembly (France). In
some form or other, a lmost all legal orders thus satisfy the requirement of the ECHR to
guarantee freedom of assembly in principle to everyone. Art. 16 ECHR however allows
member states to restrict the political activities of foreigners. 1000 Important exceptions are the
Serbian a nd the Russian legal orders in which freedom of assembly appears to be granted to
citizens only, with no wide interpretation or default guarantee which would satisfy the
requirement of a broad personal scope as mandated by Art. 11 ECHR.

the Citizen: „free communication of ideas and opinions is recognized as being one of the most precious of
the rights of Man; every citizen may, accordingly, speak, write, and print with freedom, but shall be
responsible for such abuses of this freedom as shall be defined by law.”; Art. 34 of the Turkish
Constitution: „Everyone has the right to hol d unarmed and peaceful meetings and demonstration marches
without prior permission.”; temporary Tunisian Constituent Law: “the guarantee of freedoms and human
rights”; (1) Art. VIII Hungarian Constitution: “everyone has the right to peaceful assembly”; Art icle 39 of
the Constitution of Ukraine: “citizens shall have the right to assemble peacefully without arms and to hold
rallies, meetings, processions, and demonstrations after having notified executive or local self –
government bodies in advance”; Art. 54 S erbian Constitution: “Art. 54 of the Serbian Constitution
Citizens may assemble freely.” 997 The provision “does not apply to open air gatherings, which are entirely subject to police regulations.” See
supra p. 45. 998 S. Ripke, Europäische Versammlungsfreihei t, 22 -43 (Mohr Siebeck Tübingen 2012). 999 For further information see below pp. 143 -150. 1000 F. Arndt, Art. 11, Versammlungs – und Vereinigungsfreiheit, para. 4, in: U.Karpenstein, F.C. Mayer (eds.),
EMRK -Konvention zum Schutz der Menschenrechte und Grundfrei heiten, 2012.

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Ratione materiae
In the states under scrutiny, the material scope of the assembly guarantee differs in an
important respect, namely with regard to the content of the message or the purpose conveyed
by the meeting. 1001 A conspicuous feature of the First Amendment of the US Cons titution is
the seemingly absolute nature of the guarantee. While restrictions have been found to apply,
the guarantee may be seen to proceed from a different premise than the corresponding
provisions of the German and Hungarian constitutions. The latter r eserve the freedom of
assembly guarantee – as interpreted by the constitutional courts – to meetings aiming at the
formation and articulation of a political will. They thus exclude purely social, cultural or
“fun” gatherings from its material scope. 1002 The U S and the German schemes proceed from
two ends of a spectrum. In comparison, the interpretation of the ECtHR presents a middle
course, defining asse mblies in its classic decision Plattform ‘Ärzte für das Leben’ v. AUT as
“associations or other groups suppo rting common ideas or interests from openly expressing
their opinions on highly controversial issues affecting the community.” 1003
In the US, the notion of an “assembly” was also initially interpreted narrowly as referring
only to activities aimed at influen cing the government. Nowadays, however, it is central to
American constitutional doctrine that freedom of expression extends beyond purely political
speech. This approach underscores the right of assembly -organizers to define for themselves
the diverse (po litical, cultural, social, inter alia) dimensions of their publicly voiced concern.
Belgium, 1004 Serbia 1005 , the UK 1006 and Russia do not distinguish events with regard to the
purpose of the meeting either, with Russia excluding election campaign meetings as well a s
religious rites and ceremonies from the protection, however. 1007 France follows somewhat of a
middle course: The law defines demonstrations as public meetings with any whatever
intellectual message, not limited to political ones but stricter regulation is allowed for non –
political meetings in comparison to political demonstrations. 1008
The German Federa l Constitutional Court defi nes “ assemblies“ with regard to their function
for the shaping of the public opinion and the formation of the political will in a democratic
society. In consequence, cultural gatherings such as large open -air music events (“love
parade”) are not considered to be assemblies. However, the German Federal Constitutional
Court has been more lax vis -à-vis the issue with regard to music events of the extreme right. It
argues that here, the music is used to convey political messages and is therefore of importance
to the political identity of skinhead and neo -nazi groups. 1009 In general, the German Federal
Constitutional Court has made an effort to take the specific sensibilities of extremist groups
into consideration in order to avoid indirect discrimination and to rem ain content -neutral.
Strongly influenced by the German approach, Hungarian law also restricts freedom of
assembly to events affecting public matters, depending on the expressed opinion’s “content,
form and context” while other gatherings, such as sports ev ents, are not comprised in the
protection.
1001 On this point see W. Hoffmann -Riem, Standards für die Verwirklichung der Versammlungsfreiheit in
Europa, in: W. Durner/F. -J. Peine/F. Shirvani (eds.), Freiheit und Sicherheit in Deutschland und Europa,
Duncker & Humblot, 2013, 267, at 272 et seqq. 1002 Cf. report on Germany, supra p. 57; report on Hungary, supra pp. 117 -118. 1003 Plattform „Ärzte für das Leben“ v. AUT, Nr. 10126/82, para. 32; cf. D.J. Harris, M. O’Boyle, E.P. Bates,
C.M. Buckley, Law of the European Co nvention on Human Rights, 516 (OUP New York 2 nd edn. 2009). 1004 Supra p. 45. 1005 Supra , p.108 . 1006 Supra , p. 11. 1007 Supra , pp. 79 -80. 1008 See supra, p. 27. 1009 Cf. report on Germany, supra p. 57.

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Flashmobs
Flashmobs are one of the novel challenges for the regulation of assemblies. Flashmobs are
spontaneous gatherings arranged by social media, social networks such as facebook, for
example, for different pu rposes, be it celebrating and partying together, or forming a
spontaneous manifestation with a political purpose. Due to their spontaneity, t he absence of
an organizer, the unforeseeable number of participants, and due to the lack of a specific legal
frame work, they pose a challenge for the authorities. Still, the situation has not been tackled
by legislators so far. In the meantime, the police and, in some cases, courts have tried to come
to terms with these new forms of gatherings, by applying the traditi onal conception, legal
distinctions and terms.
The British police association (Association of Chief Police Officers of the UK) has issued a
manual on how to behave in such events, trying to apply a proactive and human rights -based
approach. In the US, the issue has been put onto the agenda in 2011, whe n protestors tried to
organize an impediment of train traffic in San Francisco via mobile phones. The Bay Area
Rapid Transit reacted by shutting down cell phone service in several subway stations for a
few hours. This reaction was alleged to have violated the First Amendment, which requires a
more specific and immanent incitement of violence in order to allow for a restriction of the
freedom of assembly. 1010
German courts employ the mentioned terminological distinction between meetings with a
political message and purely cultural, musical or sportive events unprotected by freedom of
assembly. As a consequence, a distinction between flashmobs and smartmobs emerged.
Flashmobs have been defined as pure “fun” events while smartmobs designate those with a
political purpose and are thus protected by Art. 8 of the German Basic Law (the constitution).
Similarly, in Poland flashmobs are not specifically protected, since they usually do not
contribute to public debate.
In contrast, Hungary reacted to a critical sentence of the ECtHR ( Bukta v. Hungary 1011 ) after
the dispersal of spontaneous assemblies. The state now treats flashmobs equally as other
assemblies contributing to public debate.
Today, assemblies and opposition movements often mobilize their supporters via facebo ok,
be they of the left or right end of the political spectrum. In the Gezi park protests in Turkey,
facebook also played an important role in organizing demonstrators. F urthermore, a new type
of flashmob emerged with people standing still for several hour s on Taksim Square
(“Standing Man Protest”) in Turkey which was eventually dispersed by the police. Overall,
social networks thus seem to facilitate the gathering of assemblies. Most countries have
reacted and protect assemblies organized via social media in the same way as other
assemblies.
Federal states
While some countries studied in this report (Belgium, the US, Germany, Russia) are federal
states, this circumstance does not seem to play an important part for the regulation of freedom
of assembly. In Germany, for instance, the competence to legislate on the freedom of
assemblies has been transferred to the Länder , the lower federal level, in the course of a
constitutional reform of 2006. Currently, four of 16 Länder have made use of this
competence. In the remaining Länder , the old federal law on assemblies and processions is
still in force. Despite this federalization and the ensuing legal option that diverging laws on
assemblies exist in the Länder , German public law as a whole is strongly “constituti onalized”:
There is a bulk of constitutional case -law which spells out constitutional principles that must
be satisfied by ordinary law. In consequence, the Federal Constitutional Court has given
1010 Cf. report on U.S., supra p. 43. 1011 Bukta and Others v. Hungary , Application no. 25691/04, Judgment of 17 July 2007.

141
detailed instruction on what is in constitutional terms admi ssible with regard to regulating
assemblies that minor divergences between different assembly laws of the Länder do not lead
to meaningful substantive differences.
More important than the federal set -up seems to be the role of cities and other municipalities.
This is especially true for countries which do not possess an assembly law and which do not
acknowledge that restrictions of fundamental righ ts require a formal legal basis , such as the
Ukraine. Here, a decree dating back to the former regi me is being applied concurrently with
municipal orders regulating important procedural aspects of the law of assemblies. 1012
2. Restrictions
Restrictions “prescribed by law”?
In almost all studied countries, restrictions to the freedom of assembly are laid down in
statutory laws. This issue is being debated in the UK where the lack of an assembly law leads
to a somewhat confusing variety of restriction powers based on different statutes and rules,
some of which were never intended to be used for restricting assemblies. Some powers of
restriction are recognized as common law powers only. The most problematic (indeterminate
and untargeted) common law power of acting contra bonos mores has been held to be a
violation of the requirement “prescribed by law” by the EC tHR in 1999. It has not been
employed ever since. 1013 Another common law power which is still applied is d erived from the
breac h of the peace doctrine which permits government officials to complement or even
circumvent the powers granted to them by the Pub lic Order Act, and allows them to use
methods such as kettling of demonstrators. However, due to a long tradition and an increased
awareness of police and courts of human rights standards since the entry into force of the
Human Rights Act in 1998 (implemen ting the ECHR ), restrictions are usually well
predictable and applied in a non -discriminatory and justiciable manner.
In Ukraine, the adoption of an assembly law is required by the Constitution of 1996 (Articles
39 and 92). A new draft assembly law has be en developed in 2006 and has been assessed by
the Venice Commission and the OSCE/ODIHR several times. It underwent a first reading in
parliament in 2009. However, a second reading scheduled for March 2012 was postponed and
has not taken place since . Existi ng statutory provisions do not regulate the matter sufficiently,
as the lack of a provision on notification illustrates. The result is an unclear situation in which
some municipalities ( oblast ) apply a Decree by the Supreme Soviet Presidium of 1988 and
oth ers apply their own municipal regulations issued by executive bodies. Authorities and
courts hold di fferent views on the applicability of the Decree of 1988. The Ministry of Justice
considers only those provisions valid which do not contradict the 1996 Con stitution. Contrary
to the Constitution, the decree requires the authoriz ation of assemblies instead of a mere
notification procedure. It also allows authorities to ban assemblies although this can –
according to the constitution – only be done by courts. One gets the impression that the issue
is one over which the country is divide d into a fraction favouring the new assembly law and
trying to satisfy Western requirements, particularly by the Venice Commission, while other
groups would like to leave the que stion unsettled in order not to diminish discretionary
powers and not to empower courts. The violent overthrow of the governm ent of February
2014 has put the issue aside for the moment.
Private space
An issue which is currently in flux is the scope of the guarantee ratione loci . To what extent
does the freedom of assembly reach onto private property? Can demonstrators claim a right to
1012 See infra p. 152 . 1013 Cf. report on the United Kingdom, p. 20 -21.

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demonstrate in private spaces which are accessible to the public? The classic understanding of
freedom of assembly is that i t is a constitutional guarantee to demonstrate on public streets
and places (with the exception of specificall y banned areas). In several countries, the question
arose whether the right can also be claimed in private areas which have a public and therefore
potentially communicative function, such as airports and shopping malls. The fundamental
rights dimension of the topic is especially delicate in countries where many publicly
accessible spaces are rented out to private entities, and where the public spher e is thus
privatized to some extent, such as the UK. 1014
The legal answers to this development vary. At the one side of the spectrum, there are
generous fundamental rights regimes such as in Germany and Hungary. These states have
extended the freedom of asse mbly to private spaces (at least to those co -owned by private and
public entities) that have been opened to public access. Countries like the US have a
somewhat mixed regime. At the other end of the spectrum, the majority of countries retains
the classical approach: no freedom of assembly on private ground. In Germany, it was the
Federal Constitutional Court’s FRAPORT decision on the Frankfurt airport where protesters
assembled to demonstrate against deportations of foreigners which brought about the
change .1015 In Hungary the legislator provided for this extension in the ARA (assembly law).
In the U.S., the Supreme Court in Lloyd Corp. v. Tanner upheld a ban on distribution of anti –
Vietnam -war handbills in a privately -owned shopping centre. 1016 However, several s tates in
the US adopted legislation allowing for leafleting and demonstrations in publicly opened
private spaces such as shopping malls, and these were subsequently confirmed by the state
judiciaries. In the UK, the question arose in the case Appleby v. Un ited Kingdom where the
applicants were prevented from leafleting in a private shopping centre. In the other countries
under scrutiny, no information was available on the issue. This suggests that it has either not
arisen yet or has been handled restrictively.
Prohibition, bans, and dispersals of assemblies
In some countries, the prohibition of an assembly is formally not allowed in advance (before
the beginning of the event). This is the case in the UK, with the exception of trespassory
assemblies which are not openly accessible and which give reason to believe that they “might
result in serious disruption to the life of the community, or […] in significant damage t o the
land, building or monument.” 1017
The prohibition of assemblies in advance usually requires the existence of an elevated degree
of threat to public safety or order. 1018 Also, a proportionality test must be applied. In particular,
less severe measures must f irst be exhausted. In France, prohibitions can be issued in the
event of a risk to public order. In Poland, the prohibition of an assembly requires that penal
laws have been violated or that substantial threats to the life or health of people, or to proper ty
of considerable value exist. Similarly, in Russia, the termination of an event is justified if the
life and health of citizens or the property of individuals and legal persons is threatened, or
when “extremist acts” are being performed (Article 16 of th e Federal Law No.114 -FZ “On
Countering Extremism” of 25 July 2002). In Serbia, a far -reaching and content -related general
ban of neo -nazi and fascist organizations and associations has been issued in 2009, next to
1014 Cf. report on the United Kingdom, p. 11 -12. 1015 BVerfGE, Judgment of 22 February 2011, 1 BvR 699/06 – Frankfurt Airport Decision , Press r elease no.
18/2011 of 22 February 2011, sect. III. 2. a), at:
www.bundesverfassungsgericht.de/pressemitteilungen/bvg11 -018en.html (last accessed: 10 March
2014). ; supra p. 58. 1016 407 U.S. 551 (1972). See also , Hudgens v. NLRB , 424 U.S. 507 (1976). 1017 Report on the United Kingdom, supra p. 14. 1018 See for instance § 15 (1), (3) German Assembly Act.

143
other, more “regular” rules with regard to prohibitions or dispersals of demonstrations in
cases of threats to private or public goods. 1019
The dispersal of an ongoing assembly usually requires that other measures have been
exhausted or do not appear sufficient in order to “prevent serious public di sorder” 1020 (UK). In
Hungary, the organizer is primarily called to disperse the event if order cannot be re –
established otherwise and when the order to do so is proportionate. As a second step, the
police can itself disperse the assembly (i) if the organizer fails to dissolve the assembly which
became unlawful and order cannot be re -established otherwise; (ii) if crimes are committed or
called for; (iii) if it violates the rights and freedoms of others, or (iv) if participants are armed
or wear arm -like devic es. However, the Hungarian constitution requires a restrictive and
proportionate application of these norms. In Turkey, unnotified events or those being held
outside the notified time frame as well as possession or weapons and other dangerous tools
make an assembly illegal. Illegality is the precondition for a dispersal following a warning. 1021
Some countries appear to acknowledge the serious and exceptional nature of a ban of a
specific demonstration through specific legal requirements on competencies and for m. For
example, they require direction or approval of higher ranking officials, such as the Home
Secretary in the UK, and prescribe to observe certain formal requirements (such as court
confirmation in Ukraine).
Time, place, and manner restrictions
Assemb ly and police laws provide for a wide range of restrictive measures short of a
prohibition, and before the resort to police force before or during an assembly will be
admissible. Such measures may, for instance, restrict the time, place or manner of an
ass embly.
Central to the US constitutional guarantee is the principle that any regulation of protected
expression that is directed at the content of the message being communicated is generally
forbidden. The presumptive unconstitutionality of content -based re gulation of expression
within the scope of the First Amendment is essential to the doctrinal understanding of the
right. 1022 Content -based police suppression may, however, be in conformity with the First
Amendment in regard to assemblies where participants co mmunicate fighting words, utter
threats of violence, or incite to riot. When content -neutral, a wide range of measures are
allowed in order to maintain public order and protect against nuisances. They can range from
anti -noise ordinances 1023 , over ordinances protecting residential privacy ,1024 anti -littering
laws ,1025 laws protecting against interference with traffic as well as ingress to and egress
from buildings, 1026 anti -solicitation regulations, 1027 to the regulation of signs and billboards .
Beyond the requirement of meeting a reasonableness test, these measures – as in the case of
any measures interfering with the categories of expression guaranteed by the First
Amendment – need to be applied in a content -neutral fashion.
Other countries such as Poland or Germany ope rate with a general clause of police law, the
applicability of which is conditioned merely on the existence of a threat for public security
and order (Germany) or, in the case of Poland, a threat for state security, public order, public
health, public mora lity or rights and freedoms of other people. Similarly, Art. 55 (3) of the
1019 Cf. report on Serbia, p. 110. 1020 Section 13(1), (4) of the English POA 1986. 1021 Article 23, 24 of the Turkish Law on Meetings and Demonstrations. 1022 See , e.g., Police Dept. of Chicago v. Mosley , 408 U.S. 92 (1972). 1023 Ward v. Rock Against Racism , 491 U.S. 781 (1989); Kovacs v. Cooper , 336 U.S. 77 (1949). 1024 Frisby v. Schultz , 487 U.S. 474 (1988). 1025 See Schneider v. State of New Jersey , 308 U.S. 147 (1939); cf. City Council v. Taxpayers for Vincent , 466
U.S. 789 (1984). 1026 Hill v. Colorado , 530 U.S. 730 (2000). 1027 Martin v. City of Struthers , 319 U.S. 141 (1943).

144
Russian Constitution provides that “rights and freedoms of man and citizen may be limited by
the federal law only to such an extent to which it is necessary for the protection of th e
fundamental principles of the constitutional system, morality, health, the rights and lawful
interests of other people, for ensuring defence of the country and security of the State”. It is
striking that these restrictions are in Russia regulated at the constitutional level while in most
other states such detailed regulations can be found on the level of ordinary statutory law only.
Similarly, in the UK, conditions may be imposed before or during a procession if the
competent authority believes that the p rocession may result in serious public disorder ,
serious damage to property or a serious disruption to the life of the community , or that it
was organized for intimidating others. 1028
Place restrictions: specifically designated areas in Russia and Serbia
The free choice of venue is understood to form an important part of the freedom of the
organizer to autonomously decide on the character of the event, especially when the location
itself is in some form object of the protest. This is true for the Taksim Sq uare Protests which
had the future design of the place as its object. However, some countries have seriously
curtailed the free choice of the venue. Following the assembly law amendments of 2012,
Russia aims at steering assemblies to “specially designated areas” which are determined by
the executive authorities that are competent on the subject matter. The authorities also
determine the way in which these places are to be used as well as the number of persons that
are allowed to assemble there. A group up t o that number is not obliged to notify the event.
Hence, organizers respecting the confinement of space and size are privileged. Thereby,
Russia aims at channelling assemblies into places which are confined and determined by the
authorities, and which are limited in size, too. 1029 At all other, non -designated places,
authorities possess far -reaching rights to alter the location, sight and sound and other features
of the envisaged assembly: Upon the notification by the organizers, the authorities can issue a
reasoned proposal with alternative suggestions. This proposal is supposed to be followed by
an “agreement process” with the organizers which is however not defined very clearly in the
law. If no agreement can be reached, the assembly may not be held. Further more, the
authorities often use the “agreement process” with organizers to prevent assemblies from
taking place within sight and sound of the targeted object or at the planned date.
Similarly, Serbia guarantees the freedom of assembly merely in locations deemed adequate
for the purpose under Art. 2 (2), (3) of the Serbian law (PAA). The locations are designated
by municipality or city regulations according to Art. 2 (8) PAA.
Turkey regulates the locality of an event relatively strictly. The authorities en joy large
discretion with regard to the location of assemblies, while the organizers do not play an
important role in the process of deciding the venue.
Tunisia’ s regulation approaches the issue of place restrictions from the other end: While
assemblies a re generally allowed in public spaces, officials (the governor) can forbid the
movement of persons and vehicles in designated areas for a time span required for
safeguarding by security and public order. 1030 The 1969 Assembly Act states that public
meetings c annot be held on public roads. 1031 Additionally, they cannot continue beyond
midnight, except in localities where the closure of public establishments occurs later. 1032
Similarly, Art. 8 of the Hungarian Act (ARA) provides for a ban of an assembly at a specific
time and place if the authority’s individual assessment of the situation shows that the planned
assembly (i) seriously endangers the undisturbed functioning of representative organs
1028 Cf. fn. 22 . 1029 Cf. the report on Russia, supra pp. 83 -84. 1030 Tunisian Decree n° 78 -50 of 26 January 1978, Art. 4. 1031 Tunisian Act of 24 January 1969, Art. 8. 1032 Ibid ., Art. 4.

145
(parliament and local and municipal self -governing bodies) or courts; or when (ii) traffic
cannot be rerouted. Police might then ban the assembly from the time or place signalled in the
organizer’s notification. The law in France is also somewhat peculiar. Static public meetings
are not allowed to take place on public roads (by default only on public squares and other
places).
In the other countries, the freedom of the organizers to choose the venue of the assembly is
better respected. Ban areas (for example around Parliament) form the only general exception
with regard to the free choice of the location of public events. 1033
Time restrictions
Ukraine, Serbia, Russia and Turkey place general time limits on the exercise of the freedom
of assembly, amounting more or less to a night time ban of assemblies in certain areas. Such
is th e case in some Ukrainian cities (Kiev, 1034 Sumy, 1035 Rivne, 1036 and Kharkiv 1037 ) which
prohibit assemblies at night time after 10 or 11 p.m. Similar time restrictions exist in Serbia,
where assemblies may neither take place between 2 and 6 p.m. and between 11 p.m. and 8
a.m. and are limited to a maximum duration of three hours. Moreover, under the Serbian Art.
3 (2) PAA, assemblies that move from one location to another (public processions) may only
be held in an uninterrupted motion, i.e. the assembly may only halt at the start and finishing
points of the procession. In Russia, public events need to take place between 7 a.m. and 22
p.m. with the exception of national commemorative events or events with a cultural content.
In Turkey, assemblies have to take place during the day, starting earliest at sunrise and ending
the latest an hour before sunset.
Sound restrictions
In Hungary 1038 and, as a rule, also in Ukraine, 1039 public area events are explicitly exempted
from sound level restrictions. Despite this rule contained in a law, some Ukrainian cities
(Sumy and Rivne) issued their proper rules with regard to sound limits and the prohibition of
sound -amplifying devices. In the other countries, no fixed sound limits exist, which, naturally,
does not exclude decisions on a case -by -case basis.
1033 See infra, pp. 149 -150. 1034 The Decision of the Kiev City Council no. 317/418 “On determining the order of organization and holding
non -state mass public events of political , cultural, educational , sports, entertainment, and other character
in Kiev” of 24 June 1999, available at: https://kmr.gov.ua/decree_gol.asp?Id=2998 (last accessed: 15
November 2013). 1035 Decision of the City Council of Sumy no. 214 “On the procedure for organizing and ho lding mass events in
Sumy” of 7 April 2009, available at: www.sumy.ua/engine/download.php?id=3537 (last accessed: 15
November 2013). 1036 Decision of the City Council of Rivne no. 53 “On organizat ion and holding of mass events in Rivne” of 14
April 2009, available at: https://www.city -adm.rv.ua/RivnePortal/ukr/documents_view.aspx?id=27546
(last accessed: 15 Novemb er 2013 15/11/2013). 1037 Decision of the City Council of Kharkiv no. 541 “On temporary regulations of the procedure for organizing
and holding meetings, rallies, marches and demonstrations” of 6/6/2007, available at:
https://www.gov.lica.com.ua/b_text.php?type=3&id=32028&base=27 (last accessed: 15 November 2013). 1038 Regulation of the Hungarian Government, Nr. 284/2007. (X. 29.) Korm. Rendelet. The vice -ombudsman for
the rights of futu re generations criticized the lack of a clear regulatory context which would guarantee the
right to a healthy environment, but acknowledges (confirming the opinion of the minister) that events
protected by freedom of assembly are to be separately assessed in this regard than other events.
https://www.ajbh.hu/document s/10180/111959/Jelent%C3%A9s+a+k%C3%B6zter%C3%BCleti+rendezv
%C3%A9nyek+okozta+zajterhel%C3%A9sr%C5%91l/581dd32a -715e -4d39 -9760 –
319ec2636a33?version=1.0 at 30 (last accessed: 10 March 2014) . 1039 Ukrainian Law “On Sanitary and Epidemiological Welfare of the P opulation” of 24 February 1994 (last
amendment by the law no. 5395 -17 of 06/12/2012), available at:
https://zakon2.rada.gov.ua/laws/show/4004 -12 (last accessed: 15 November 2013).

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Anonymity of participants
An important issue in the context of restrictions of the freedom of assembly is the right of
demonstrators t o stay anonymous. In England, databases are being kept that collect the names
even of peaceful demonstrators and of those exhibiting lawful conduct. The concealment of
faces of assembly participants is prohibited in Belgium, 1040 Russia, 1041 Turkey, 1042 and Hungary
(if suited to frustrate the identification of persons by the authorities 1043 ). Identification rights in
Turkey extend to the right to take fingerprints and photographs.
Fringe areas and other restricted zones
Most countries spatially restrict the exercise of the freedom of assembly in the form of
designated areas surrounding central public buildings, especially parliament, where
demonstrating is not allowed. However, the laws differ widely.
In the UK, an authorization requirement for demonstrations in the vic inity of Parliament has
been repealed on the basis of proportionality considerations. In Ukraine, assemblies near
parliament, the Administration of the President, the Cabinet of Ministers, the Supreme Court
and the Kiev City Council need prior permission.
Other countries such as the U.S. designate “frozen” or “buffer zones” around polling places
and certain buildings without an obvious political function such as schools, hospitals (in
particular: abortion clinics) and private residences. However, the issue is constitutionally
debated and the Supreme Court has rendered some decisions in which it has limited these
zones, arguing that these constituted invalid content -based restrictions, failed to promote
significant governmental interests, or were overbroad. 1044
In some countries, assemblies are restricted on specific sites of public historical significance.
An example are the sites of former Nazi concentration camps in Poland where assemblies
need to be permitted by the Governor, and permissions can be denied, inter alia, for reasons of
concern for the dignity of the monument.
During the pro -European rallies in Ukraine following the delay of an association agreement
with the EU in November 2013, several spatial bans have been issued. Courts have upheld
bans aro und the Maidan (Independence Square) in Kiev, and near administrative buildings in
other cities, apparently in order to prevent opposition parties to organize further rallies.
In Turkey, demonstrations on the Taksim square were banned for a long time by t he AKP –
government after protests had started there at the end of May 2013. 1045 Starting on June 15,
1040 General Police Regulation of the City of Brussels, Chap. III – Public safety and convenience of passage ,
Sect. 1 – Assemblies, demonstrations, processions , Art. 32. 1041 Article 6 (4) No.1 of the Russian Assembly Law. 1042 Ibid ., Article 23. 1043 § 169 c) of the Hungarian Administrative Offences Act. The text itself does not require that the participants
intend to evade law -enforcement, and thus also burdens participants who face violent counter -protestors.
The constitutional admissibility of this provision is doubtful.. 1044 Cf. report on the United States of America, supra p. 39. 1045 In the case of DISK and KESK v. Turkey which concerned the trade unions’ complaint about the police
intervention in the Labour Day celebrations on 1 May 2008 in Istanbul, the police took extensive
measures to deter the demonstration and made declarations that they would use force against the
demonstrators if they insisted on holding the demonstrations in the Taksim Square. To this end, on 1 May
2008, upon the order of the Istanbul Governor, operatio ns of ferries and subways were stopped, the roads
leading to Taksim Square were blocked and extra police were deployed to the area to block the entrance
to Taksim. The ECtHR noted that in 1977, during Labour Day Celebrations in the Taksim Square, 37
people had died when a clash had broken out. As a result, the Taksim Square became a symbol of that
tragic event, and it is for this reason that the applicants insisted in organising the Labour Day celebrations
in Taksim in commemoration; ECtHR, DISK v. KESK v. Turkey judgment of 29 April 2013, App. No.
38676/08.

147
2013, all protests on the square were banned and any gatherings being dispersed
immediately. 1046
Use of force by the police
The use of force which police officer s may resort to while supervising an assembly is, in most
countries, subject to strict reasonableness or proportionality tests. In the US, officials and
courts envision a reasonable officer and, based on the totality of the facts and circumstances,
ask whe ther such an officer could believe that the use of force was reasonable. 1047 In most
states (e.g. in France), the use of force is primarily allowed when the police are themselves
threatened by violence from the side of the protestors. Likewise, Turkish law co nditions resort
to police force on a prior resort to violence on the side of the demonstrators. In that case,
officials may – in a proportionate fashion – use force. When a demonstrator who is to be
captured, risks to escape, firearms may be used in order t o prevent such escape.
Less strictly, the Tunisian police may resort to firearms against demonstrators refusing to
scatter after having issued several warnin gs. This is allowed even if pro testors have not used
violence beforehand.
In Serbia, use of force is allowed to protect persons and property of the participants
themselves, to protect other citizens, in order to maintain public order and peace, the safety of
traffic, or to maintain other activities related to secure the assembly. Furthermore, force ca n
be applied under Arts. 12 (2) and 14 of the Serbian PAA in order to terminate assemblies that
are either banned or not registered, and in order to re -establish order and peace. In Russia, too,
the threshold to allow police force is quite low: Besides oth er triggers, it is sufficient that
administrative offences are being committed.
The rules also differ with regard to the degree of detail by which the permissible use of police
force is defined. The Ukrainian rule is an example of a detailed list of specif ic measures
which can be employed in cases of public disorder such as “handcuffs, rubber batons ,
methods of restraint , tear gas , light and distraction devices , devices to open doors and force
vehicles to stop , water cannons, armoured vehicles and other special vehicles as well as
sniffer dogs”. These may only be employed after audible warnings have been issued. 1048
State of emergency
Most countries have legislation which restricts the freedom of assembly in the state of
emergency. In Tunisia, the state of emergency has been in place since the beginning of the
Arab Spring revolution in January 2011, with side -effects for the freedom of assembly. For
instance, the movement of persons and vehicles can be prohibited in certain areas for as long
as public order requires; the arrest powers of the Ministry of Home Affairs have been
expanded, assemblies cannot take place on public roads, and any meeting or demonstration
likely to disturb security and public order can be prohibited by decree.
Anti -terro rism legislation
Freedom of assembly is sensitive to restrictions in the name of anti -terrorist legislation which
has been introduced, especially in the aftermath of 9/11, but also in reaction to other incidents
and conflicts, in a number of countries. In Turke y, Art. 220 of the Penal Code in conjunction
with Art. 1 of the Terrorism Act have in the past been used to prevent and punish the
participation of Kurdish or leftist organizations in assemblies. Since a leading ruling of the
Court of Cassation (Supreme Co urt of Appeals) of 2008, Kurdish and leftist demonstrators
1046 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey, 2013,
p. 13 et seq. ; Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movemen t in
Turkey and its Repression, May−July 2013, III. 1. 1047 Graham v. Connor , 490 U.S. 386 (1989). 1048 Cf. supra p. 95.

148
have been punished according to this provision with between seven and fifteen years in
prison. As a result, activities such as requesting mother -tongue education in Kurdish, or
displaying a banner requesting free education have been subjected to criminal proceedings
against the protestors. Also in relation to the Gezi Park demonstrations in the summer of
2013, a number of protesters have been subject to criminal investigations under the anti –
terrori sm laws.
In Hungary, “operational zones” imposed by the police or the counter -terrorism centre are
used to forbid demonstrations in unwanted areas such as the vicinity of the president’s home,
and, more largely, to circumvent the narrow scope for restrict ions as foreseen by the
Hungarian Assembly Law (ARA).
The UK has – following critical case -law of the ECtHR – recently abolished and
circumscribed more narrowly some of its anti -terrorist police powers. For instance, after the
ECtHR judgment Gillan and Qu inton v. United Kingdom ,1049 stop and search powers included
in the Terrorism Act were repealed and replaced by more targeted and proportionate powers.
3. Procedural issues
Notification or authorization requirement
Most countries require organizers of outdoo r assemblies to notify the authorities before the
planned assembly. Notifications usually need to include information about date, starting time,
route, name and contact information of the organizer. Rules differ as to the minimum
notification period: While it is six clear days before the proposed event in the UK (later ones
being accepted if earlier ones were not reasonably practicable, however), Germany generally
requires outdoor assemblies to be notified at least 48 hours before the event.
In France, ass emblies taking place on public roads need to be notified fifteen to three days
before the event, with the exception of demonstrations following local custom. Disregard of
the notification requirement are punishable as an administrative offence. Here, it ha s been
criticized that the notification requirement is being (ab)used as a disguised requirement to
seek a prior authorization.
Tunisia , too, requires notification fifteen to three days before the event. I ncomplete or
inaccurate information as well as par ticipation in a non -notified event varies the risk of
earning up to one year of imprisonment. Poland has a notification period between 30 and
three days before the event, requiring detailed information; universities require consent of the
rector which need s to be requested no later than 24h before the event. In Hungary, notification
has to be sent at the latest three days before an event in a public area, with no starting date –
having the effect that the police already had to take notice of assemblies to b e held regularly
within the next hundred years – thereby blocking public space for other interested groups. In
Serbia, notification for holding an assembly has to be filed 48 hours before the beginning, in
places of public transport five days in advance. W hen the required information (program and
purpose, location, time and duration, estimated number of participants and measures planned
by the organizer in order to maintain order) is not included in the notification, assemblies are
not regarded as notified. 1050
The rules in Ukraine and in Russia result in a relatively long and therefore onerous
notification period of ten days before the planned event: In Ukraine, courts have ruled that
“organizers of an event should inform executive authorities or bodies of lo cal self -government
in advance, that is, within reasonable time prior to the date of the planned event”. 1051 However,
there is no law prescribing this rule or any fixed period, the only written rule being a Decree
of 1988 (issued by the former regime) setting a deadline of ten days before the event. In
1049 ECtHR, Gillan v. UK, Judgment of 12 January 2010, Appl. no. 4158/05. 1050 Cf. p. 108 et seq. 1051 Decision of the Constitutional Court of Ukraine no. 4 -рп/2001 of 19 April 2001, see supra p. 94.

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Russia, notification needs to be given between fifteen and ten days prior to the event,
encompassing a lot of information ranging from the number of participants of the event as
well as the name, address, teleph one number of the organizer, data on persons authorized by
the organizer to perform managerial functions, forms and methods to be used by the organizer
to ensure public order, the organization of medical aid, intention to use sound -amplifying
devices durin g the conduct of the event. Group pickets need to be notified three days prior to
the event.
In a few countries, assemblies need not only be notified in advance, but depend on
authorization or permission by the authorities. This is the case for open air a ssemblies in
Belgium – these are explicitly excluded from the constitutional provision protecting (indoor)
assemblies. Authorization has to be requested from the mayor at least ten days in advance by
way of a comprehensive form including detailed informati on about the organizers, the
planned number of participants, itinerary, planned meetings etc. This strict regulation seems
to be connected with the fact that the Belgian legal order does not distinguish between
political demonstrations and other public eve nts of a cultural, festive or sportive nature.
Despite this restrictive regulation, freedom of assembly is respected in a liberal fashion in
Belgium. The right is frequently exercised, usually with broad media coverage.
Permits are required for larger ass emblies in most US states, where courts have accepted
permits as a viable instrument for coordination and pre -event planning as long as they remain
content -neutral. The relevant decisions of US Supreme Court would appear to support this
approach. 1052
In Turk ey, assemblies need to be notified 48 working hours before the event. However, legal
provisions allow Turkish authorities wide discretion as to whether to accept this notification
or to prohibit the assembly. The consequence is a de facto authorization req uirement.
With regard to the human rights dimension, an important question is which consequences
follow from holding an assembly which has not been notified in advance. While lack of
notification for no plausible reason is treated as a summary offence in the UK, in some
countries (Germany) unnotified events can be dispersed in case there is no good reason for the
lack of notification. However, this power is subject to close proportionality scru tiny by the
Federal Constitutio nal Court.
Pre -event planning o f law enforcement officials with the organizer
Usually, the determination of date, time and route of an event falls within the freedom of the
organizer. If the authorities take issue with one of these features for justified reasons, many
legal systems pro vide for a dialogical, and ideally, consensual search for alternatives. As a
milder means before simply determining these features unilaterally by the authorities, these
schemes serve to keep with the proportionality principle. In order to ensure peaceful and
dialogical cooperation, certain legal systems prescribe such cooperative behaviour for both
sides. This is the case for example in Belgium where communication between police and
organizers is foreseen throughout the organization process. 1053 Similarly, in France, the
directorate of public order and traffic regulation ( direction de l’ordre public et de la
circulation ) can contact the organizer to discuss the itinerary, potential risks and other
relevant issues.
Chapter XV of the Ukrainian Sta tute of Police Patrol also envisages a pre -event planning
process between organizer and police, especially concerning indoor events. Here, the police
together with the organizer are obliged to inspect building and infrastructure of the location
where the e vent is to be held in order to guarantee a safe meeting. Pre -event planning in
1052 See report on the U.S., supra p. 38 et seq . 1053 Belgian Circular of 11 May 2011 concerning the negotiated management of public space for the two -level
structures integrated police service, para. 4.

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Poland includes the possibility for the organizer to request police measures concerning, for
instance, adequate protection.
Hungary does not regulate the negotiating process in the ARA, but only mentions it in the
ordinance regulating police activity in securing events. In practice, route, place and time are
often discussed with the police.
In Russia, authorities usually appoint an official who renders assistance to the organiz er in
maintaining public order and security of citizens. The wording of the provision in question
(Art. 14 (3) No. 1 of the Russian Assembly Law) is unclear as to whether this assistance
comprises pre -event planning or only the conduct during the event as well as to how
dialogical the character of the process is.
As the right of the organizer to arrange an assembly according to his or her ideas is not
guaranteed under Serbian law, arrangements of the organizer can be severely restricted and a
negotiating p rocess does not seem to take place in advance.
In France 1054 and Tunisia, 1055 meetings shall have a supervisory board of at least three people
responsible for the maintenance of order and for preventing breaches of the law and speeches
contrary to public order and good morals.
Russia somewhat restricts the capacity to be an organizer and excludes not only banned
political parties, but also persons which have been convicted for criminal or even
administrative offenses, without any differentiation with regard to the gravity of these
offenses (Art. 12 in conjunction with Art. 5 of the Russian Assembly Law).
Spontaneous assemblies
The treatment of spontaneous events which emerge without any prior planning or preparation
is a delicate issue. If only for practical re asons, officials understandably prefer to be notified
in advance. Under normal circumstances, the notification requirement of a few days in
advance does not pose an overly onerous limit on the guarantee of the freedom of assembly.
But the balance between t he right of the organizer to arrange the event freely and the public
interest in security and order may have to be struck differently when the need to assemble and
demonstrate arises spontaneously and cannot be postponed without changing the nature of the
event. As a result, spontaneous assemblies are often not envisaged in the legislation, but
tolerated by courts for reasons of constitutional law. This the case in Germany 1056 which
tolerates urgent assemblies that are organized at short notice to respond to a current event as
long as the notification occurs as soon as an opportunity to notify arises. 1057 Similarly,
assemblies must be notified before the event in Poland (and lack of notification is penalized),
but the Constitutional Court held that spontaneous ass emblies enjoy the same constitutional
protection as planned ones. As a result, it is up to the courts to decide whether circumstances
would have allowed for a notification or not. 1058
In France, Belgium and Tunisia, spontaneous assemblies are allowed as long as they do not
cause public disturbances. In 2012, roughly 20% of the demonstrations taking place in France
have been spontaneous. While Tunisia handled spontaneous demonstrations much more
restrictively before the revolution of 2011, there have been mult iple spontaneous events since
the revolution all across the country. 1059
1054 French Act of 30 June 1881 on freedom of assembly, Art. 8, supra fn. 168 . 1055 Tunisian Act of 24 January 1969, Art. 5. 1056 Decisions of the Bundes verfassungsgericht – Federal Constitutional Court – Federal Republic of Germany,
Volume 2/Part 1: Freedom of Speech, 1 st ed. 1998, 284 (295) – Brokdorf Demonstration Case (BVerfGE
69, 315, Decision of May 14, 1985). 1057 BVerfGE vol. 85, 69 (75/76), 23 Octobe r 1991 – Urgent Assemblies Case ; see English summary at
https://legislationline.org/ documents/action/popup/id/16276 (last accessed: 10 March 2014) . 1058 Cf. supra p. 102. 1059 U .S. Department of State, Bureau of Dem ocracy, Human Rights and Labor (2011) Tunisia 2011 Human
Rights Report , p. 10. Available at:

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On the other hand, under Serbian law non -notified events are penalised. However, there are
examples of spontaneous assemblies such as the 2013 Belgrade Pride Parade, which was not
only l eft undisturbed by the police but was protected by quickly arriving police officers. 1060
The statute of patrol service of police in Ukraine 1061 permits the police to stop an assembly if a
local executive authority has not been notified in advance. In Russia, spontaneous events are
neither foreseen nor tolerated in practice. Strict application of the Assembly Law renders
spontaneous assemblies – outside the designated areas – impossible. Similarly, spontaneous
assemblies are illegal and sanctioned in Turkey. 1062
Counter -demonstrations
In none of the countries studied, counter -demonstrations are specifically regulated. A
comparison of the different pra ctices shows that the handling of counter -demonstrations
generally corresponds to the regulation and practice of prohibitions: Where assemblies are
prohibited relatively easily (the conditions simply being a “public disturbance”, for instance),
counter -dem onstrations may also be more easily be prohibited or dispersed.
Authorities sometimes prohibit demonstrations on account of the r isk that these may provoke
dangerous counter -demonstrations. This has happened, for instance, in Belgium where a
demonstration against the construction of a mosque has been banned due to the risk of
counter -demonstrations by Muslim and extreme -left groups. 1063 The French Conseil d’Etat
allowed similar practices of French authorities with regard to student demonstrations. 1064 In
Serbia, the 2010 Belgrade Pride Parade has been subject to violent attacks by several
thousand counter -protestors. Since then, assemblies are banned with reference to t he
endangerment of the personal safety of protestors when violent organizations announce
counte r-demonstrations. 1065
For lack of regulation, counter -demonstrations are treated like simultaneous ones in most of
Ukraine and in Russia. The ones which were first notified are usually given priority over later
ones. Sometimes here too, possible counter -demo nstrations have been used as a reason to
refuse permission. 1066 Several Ukrainian cities (Zaporizhzhya, Rivne, and Kharkiv) simply
prohibit counter -demonstrations. This results in the city authorities trying to find alternatives
to the places where the notifi ed assemblies are taking place.
In Poland, the Constitutional Court has specifically pointed out that the risk of counter –
demonstrations should not be used as a ground to prohibit an assembly. 1067 Also in Hungary,
the police try to accommodate both events; i n practice, the police tries to protect
demonstrations that are threatened by violent counter -demonstrations such as the Pride
March. During the guard commemoration in 2012, counter -demonstrators were not allowed
on the square. 1068

https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid =186451 (last accessed: 10 March
2014) . 1060 Cf. supra p. 109. 1061 The Statute of police patrol service in Ukraine approved by the decree no. 404 of the Ministry of Interior of
28 July 1994, available at: https://zakon2.rada.gov.ua/laws/show/z0213 -94/page (last accessed: 15
November 2013). 1062 Art. 23 of the Law on Meetings and Demonstrations; Art. 32 of the Law on Meetings and Demonstrations. 1063 Editorial board (2013) Une manifestation « anti mosquée » interdite à Glain . 7 sur 7, 26 March. Available at:
https://www.7sur7.be/7s7/fr/1502/Belgique/article/detail/1603827/2013/03/26/Une -manifestation -anti –
mosquee -interdite -a-Glain.dhtml (last accessed: 10 March 2014) . 1064 CE, 7 March 2011, n° 347171. 1065 Cf. the various Belgrade Pride Parades, e.g. Serbian Constit utional Court, Decision Уж -5284/2011 of 18
April 2013; see also Decision Уж -4078/2010 of 29 February 2012. 1066 Cf. ECtHR, Alekseyev v. Russia , Judgment of 21 October 2010, Appl. Nos 4916/07, 25924/08 and 14599/09,
paras. 9, 12, 30, 41, 72 -77. 1067 Cf. p. 103. 1068 Cf. p. 124.

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In Tunisia, counter -demons trations have become relatively common in order to impede
meetings and gatherings of opposition parties and NGOs. 1069
Decision -making
Decision making powers before and during the assembly lie mostly with the assembly
authorities or the police, sometimes needing confirmation by courts. In Poland, the municipal
councils regulate assembly affairs. In Ukraine, the local executive authorities regulate
assembly issues while the final decision about a prohibition needs to be taken by an
administrative court. In Russia, too, the executive authorities of the Subject (the lower federal
entity) decides on assembly affairs.
In Hungary, assembly issu es are controlled by the police. Similarly, in Germany assembly
issues are decided by a specific police department at the municipal level.
In France, the police regulates most issues, including prohibitions, the mayor and the prefect
(institutions belongi ng to the general state administration) also have the overriding
competence to prohibit assemblies.
In Serbia, the local representations of the Ministry of the Interior decide about assembly
issues.
In Tunisia, the municipalities are usually entrusted wi th the handling of assemblies. In the
capital of Tunis, however, it is the Department of Homeland Security.
Review and appeal
In principle, all countries offer judicial protection against executive decisions such as
restrictions of assemblies. In France, recourse can be lodged at the administrative tribunals,
then appeals to administrative courts of appeal and then to the Conseil d’Etat in last instance
are possible. Legislation can be reviewed for its constitutionality by the new French
Constitutional Cou rt. A similar scheme of review exists in Germany, where administrative
courts normally issue injunctions against assembly prohibitions in a timely manner. In
Turkey, too, administrative courts are competent to review decisions of the authorities. Since
201 0, the Turkish constitutional court may receive individual complaints for human rights
violations. Hungarian courts can be seized for deciding about an assembly ban within three
days of the communication of the ban. No appeal possibilities are available, b ut the applicant
can file a constitutional complaint (Art. 24 Fundamental Law) if he or she considers her
fundamental rights to be violated. 1070 Also in Ukraine, administrative courts review assembly
restrictions; such complaints must be decided on within thr ee days. 1071 In Tunisia, recourse
against the prohibition of a meeting must first be addressed to the Secretary General of the
Ministry of Home Affairs. Formally, administrative courts can be seized against the Secretary
General’s decision. In practice, howev er, this recourse often comes too late. Also, judicial
independence is not always guaranteed, since the executive branch sometimes influences the
judiciary heavily. Cases involving freedom of expression resulted in lengthy trials and harsh
verdicts. 1072 The m ilitary courts handled complaints about alleged abuses by security forces
1069 Euro -Mediterranean Human Rights Network (2013) Regional Study: The right to freedom of assembly in the
Euro -Mediterranean Region , Part I: Legislation Review . EMHRN, November, p. 128. 1070 The Hungarian Civil Liberties Union (HCLU -TASZ in Hungarian) initiated a constitutional complaint
procedure with regard to a demonstration in front of the prime ministerial residence where a court upheld
a police’s ban, see supra text accompanying note [841] or the information on the complai nt at the
organization’s website, https://tasz.hu/gyulekezesi -jog/alkotmanybirosag -elott -tamadtuk -meg -gyulekezesi –
jogot -sert o-biroi -dontest (last accessed: 10 March 2014) . 1071 Art. 183 of the Code on Administrative Legal Proceedings of Ukraine of 6 July 2005. 1072 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 7, a vailable at:
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
March 10, 2014).

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during civil disturbances of 2011. 1073 In Serbia, the county courts decide about banning an
assembly upon request by the authorities. The hearing has to be held within 24 hours upon
rec eiving that request. Complaints can be filed with the Serbian Supreme Court within 24
hours and will be decided again in 24 hours.
Russian executive decisions can be challenged in court. However, no time frames guarantee
that a decision will be issued in time, and court injunctions are not provided for. At a different
judicial level, the Russian Constitutional Court has reviewed assembly legislation and
quashed important regulations.
In Poland, complaints about prohibitions can be directed to the Governor (wojewoda ),
complaints about other restrictions with regard to assemblies can be filed directly with the
administrative courts.
The UK courts have adopted a human rights oriented approach following ECtHR decisions.
However, some of the non -targeted and e ven non -statutory powers often take place beyond
their radar screen. No judicial review is availab le against pri vate injunctions prohibiting
assemblies.
4. Implementing freedom of assembly
Same sex pride parades
The prohibition and, more generally, diffic ulties faced by same sex pride parades have been a
virulent issue especially in some central European countries (Poland, Hungary, Russia, and
Serbia).
In Poland, the prohibition of a gay pride parade in Warsaw in 2005 under the pretext of a
missing traffi c organization plan triggered several critical court decisions, inter alia by the
Polish constitutional court and the ECtHR. Eventually, however, the parade was held despite
the ban and was left undispersed by the police. Similarly, in Hungary, the Budapes t Pride has
been banned several times under the pretext of the impossibility to reroute traffic .
The assembly rights of LGBTI groups are most controversial in Serbia where the Belgrade
Pride Parade has been banned in 2011, 2012, and 2013 and de facto banne d by a last minute
change of location in 2009. While the parade took place in 2010, it was heavily protected by
the police but escalated due to violence exercised by spectators, resulting in 150 injured
police officers and members of the public, as well as infrastructure dam age amounting to over
1.000.000 € and the arrest of approximately 250 persons. The Minister of the Interior
therefore usually argues that the parades constitute a high security risk and that even the most
severe police escort would not b e able to protect the participants. In 2013, the Parade had
been banned again. However, organizations spontaneously held a midnight march which was
eventually protected by the police who rushed to the scene. 1074
Use of force
Instances of erupting physical vi olence, exercised by demonstrators and by police officials,
have in the past arisen in many countries and have in part been criticized by international
bodies. An example is the United Nations Human Rights Committee’s recommendations to
Belgium in reaction to massive preventive arrests and use of tear gas and intimidating
measures surrounding the “No Border” demonstrations in Brussels in 2010. PACE has
1073 U.S. Department of State, Bureau of Democracy, Human Rights and Labor (2012) Tunisia 2012 Human
Rights Report , p. 8. Available at:
https://www.state.gov/j/drl/rls/hrrpt/huma nrightsreport/index.htm?year=2012&dlid=204385 (last accessed:
10March 2014) . 1074 Cf. p. 109 et seq.

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deplored “recent cases of excessive use of force to disperse demonstrators” 1075 in France in
connection with demonstrations against same -sex marriage during which four people were
injured and hundreds arrested. Recently, the UK police has been criticized for making
extensive use of the “Scene Management Barrier System” which allegedly has an intimidating
effect. 1076 Also in the UK, the use of force and tasers were heatedly discussed after the death
and the violent arrest of protestors during the G20 protests in 2009. 1077
Recently, the police of the German city of Hamburg has been criticized for massive use of
water can nons and the establishment of danger -zones, allowing for increased preventive
measures, in connection with demonstrations against gentrification, for the preservation of an
alternative cultural centre and for the rights of migrants.
In Hungary, the opposite phenomenon was criticized. Here, the non -use of force against anti –
Roma protests allowed demonstrators to throw stones, concrete, and bottles into yards of
houses inhabited by Roma people . In 2012, police did not intervene when ext reme right wing
counter -protestors attacked journalists in the immediate vicinity of an anti -government
demonstration. The police neither dispersed the unnotified and violent assembly, nor were
attackers arrested. 1078
During the Gezi park protests in Turkey of 2013, reports note that water cannons and tear gas
have been used, and that police beatings, arrests and sexual harassment have occurred, all this
in an excessive and largely disproportionate manner.
These happenings are relatively harmless compared wi th the use of force by police during the
Tunisian revolution of 2011 (with 147 deaths and hundreds injured), and the 2014 events in
Ukraine fighting over the country’s rapprochement to the EU during which estimated 100
persons have died. 1079
Liability and ac countability of law enforcement personnel
Liability and (both criminal and disciplinary) accountability of law enforcement personnel
employing excessive police force are usually ensured by law.
In the US, police officers are civilly as well as criminally liable for violations of constitutional
rights and, while federal officers fall outside the scope of the relevant federal legislation, even
they may be sued directly under the Constitution for civil damages. 1080 Where complainants
can establish that the polic e overstepped the boundaries of lawful action, the qualified
immunity enjoyed by the latter will be lifted. Immunity, however, poses a serious obstacle to
police accountability in Turkey where investigations against public officials are rarely
authorized a nd therefore in practical terms excluded.
Similarly, Tunisian police are criminally accountable for excessive use of force and the public
authorities are civilly accountable for any damages caused. The same is true for Russia.
Criminal responsibility of p olice officers interfering with peaceful assemblies is also provided
for in Ukraine in a special provision on the interference with assemblies.
The Hungarian legal order also has rules on the books which guarantee the liability and
accountability of state officials, including criminal penalties for assault and unlawful
detention. The state must compensate victims of violations of personal freedom and other
human rights. However, several police excesses which allegedly took place during
demonstrations in 20 06, remained unaccounted for, in part because the responsible police
1075 PACE Resolution 1947 (2013) Popular protest and challenges to freedom of assembly, media and speech .
27 June (25 th Sitting). Available at: https://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=20002
(last accessed: 10 March 2014) . 1076 See supra fn. 33 . 1077 See supra p. 22. 1078 See supra p. 125. 1079 Estimate as of 7 th Mach 2014. 1080 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971).

155
officers could not be identified. Since those events, police have been obliged to wear clearly
visible identification badges.
In Serbia, complaints against officers policing assemblies c an be filed with the Ministry of the
Interior, and afterwards other legal remedies can be sought.
Police in several countries are making efforts in training officers to behave correctly in
stressful situations and to manage escalating assemblies. Such tra inings have been reported
for France and Serbia. British police have organized a flashmob themselves in order to inform
citizens of their assembly rights.
Liability of organizers
In some countries, organizers are required or can be required by local gover nments to contract
insurance which cover the reimbursement of costs that the authorities incur for cleaning or
repairing the venue. This is the case in some US American cities. 1081 In Poland, a statute
holding assembly organizers fully liable for damages committed by participants was quashed
by the Constitutional Court, since it could have discouraged potential organizers. 1082 Similarly,
the Russian Constitutional Court declared invali d Article 5 (6) of the Russian Assembly Law
establishing the civil liability of the organizer for failure to fulfil certain obligations.
However, increasingly onerous administrative fines are being imposed for violations of the
established administrative p rocedure prescribed for organizing an assembly. The new law of
2012 increased the fines and introduced community services as new type of penalty.
However, community work as an administrative punishment for administrative offences not
resulting in damage to health or property but consisting only in violation of formalities of the
process for organizing or conducting a public event was held unconstitutional. 1083
In Turkey, various criminal sanctions for failure of dispersal and for violence and material
damage can be imposed on organizers. They are also liable for cleaning and providing for
security. In addition, protestors of the Gezi park demonstrations of 2013 are awaiting trial for
alleged violations of anti -terrorism provisions. 1084
In Germany, no special prov isions on costs and liability of the organizers exist. It is generally
acknowledged that no undue burdens shall obliterate the enjoyment of the constitutional
guarantee of Art. 8 of the German Basic Law. On the other hand, Art. 8 does not per se
exclude li ability of the organizers for cleaning after an event, especially if the purpose was
primarily a social one (as opposed to a political one) .1085
Hungarian law knows a more civil -law typical type of exculpation, stating that organizers are
exempted from liabil ity for damages caused by participants if they “acted as it could be
expected in the particular situation”. 1086
In addition or alternatively, several countries provide for criminalization or administrative
offences of the organizers when these fail to maintai n order during the event. The Serbian
assembly law envisages an administrative fine for failure to maintain order, for gathering
citizens without application and for holding assemblies regardless of a ban (Art. 15 PAA). In
Ukraine, a special penal law prov ision particularly provides for the punishment of organizers
in cases of violation of “the established procedure” (Art. 185 Penal Code). This rule, however,
seems to pertain not to the civil liability of the organizers for damages but to a different form
of criminal responsibility for breach of a public duty.
1081 See report on US, supra , p. 4 2. 1082 See Judgment of the Polish Constitutional Court of 10 November 2004, Kp 1/04 (OTK -A 2004, Nr 10, poz.
105). 1083 Ibid ., p.90. 1084 Amnesty International, Gezi Park Protests. Brutal Denial of the Right to Peaceful Assembly in Turkey,
October 2013, EUR 44/022/2013, p. 42. 1085 Bundesverwaltungsgericht, Neue Juristische Wochenschrift 1989, 52 (52); 53 (54). 1086 Art. 13 ARA.

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Media access and documentation
Private documentation of police action has become the object of increasing regulation. The
background is that privacy rights of police officers and public confidence hav e become issues
of concern. In the UK, private film material of assemblies is more and more often released
and multiplied online, especially after heavy handed police action during the G 20 protests in
2009. 1087 In addition, the police have started to invite NGOs to monitors protests and their
policing in order to regain public reputation, although experience shows that this objective is
not always reached. 1088
In countries like Belgium and France, media access to assemblies is not specifically regulated,
but com mon and unquestioned practice. This sometimes has an impact on the handling of
events as currently in the prohibition of performanc es of the anti -semitic humorist Dieudonné
M’Bala M’Bala.
In Hungary, the law prescribes that media representatives must be es pecially protected. In
reality, media freedom has been declining during the past years. 1089 In some cases, journalists
were insulted by far -right demonstrators with police standing by. These cases have been
scrutinized in court. 1090
Ukraine specifically guarante es the right of access to assemblies for journalists in a law on
“printed mass media in Ukraine”. 1091
In Russia, PEN International reported detentions and arrests of journalists during events in
2011 -2012. 1092
In Tunisia, the Ministry of Home Affairs has in the past issued a public apology for beatings
of media pe ople and for other impediments of the work of local and foreign media during
assemblies. 1093
In Turkey, media access during the Gezi Park Protests was highly problematic. Mainstream
media conveyed very little information on the events. 1094 According to journalist associations,
journalists were exposed to police violence and hindered from reporting. Incidents of
censorships and journalists pressured to give up their jobs later posed further obstacles. 1095
1087 See report on UK, supra , p. 22. 1088 Report of the UN Specia l Rapporteur on freedom of peaceful assembly in the UK, A/HRC/23/39/Add.1, 29
May 2013, paras. 52, 53. 1089 In the Press Freedom Index, Hungary fell from the 23rd to the 56th rank between 2010 and 2013. See
https://en.rsf.org/press -freedom -index -2013,1054.html (last accessed: 10 March 2014) . 1090 https://helsinki.hu/mulasztott -a-rendorseg -az-osszevert -videos -ug yeben (last accessed: 10 March 2014) . 1091 Law of Ukraine “On printed mass media in Ukraine" of 16 November 1992 (last amendment by the law no.
409 -18 of 28/07/2013), available at: https://zakon2.rada .gov.ua/laws/show/2782 -12 (last accessed: 17
November 2013). 1092 Amnesty International, Freedom under Threat, AI Index: EUR 46/011/2013, p.16. 1093 HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia . 2 February.
A/HRC/19/61/Add. 1. Para.39. Available at: https://daccess -dds –
ny.un.org/ doc/UNDOC/GEN/G12/103/22/PDF/G1210322.pdf?OpenElement (last accessed: 10 March
2014) . 1094 CNN Türk’s decision to air a pre -scheduled two -hour documentary on penguins during the first weekend of
mass protest across Turkey became a symbol for self -censorship in the national media in general, in the
eyes of many protestors and the wider public. Al -Monitor, Shameful Examples of Press Censorship
Emerge in Turkey, 3 July 2013, available at: https://www.al -monitor.com/pulse/originals/2013/07/turkish –
press -censored.html# (accessed on 5 February 2014). 1095 Euro -Mediterranean Human Rights Network, Mission Report on the Protest Movement in Turkey and its
Repression, May -July 2013, III. 2; The Independent, Turkish journalists fired over coverage of Gezi Park
protests, 23 July 2013, available at: https://www.independent.co.uk/news/world/europe/turkish -journalists –
fired -over -coverage -of-gezi -park -protests -8727133.html (last accessed: 5 February 2014).

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Recently, the issue of drones employed in order to supervise assemblies arose. In the US, for
instance, helicopters and blimps have been used to support live monitoring of assemblies. 1096
While it is acknowledged from a constitutional law perspective that individuals cannot
prevent aerial surveillance in public spaces, the recording is more problematic in
constitutional terms. 1097 It will presumably be regulated by 2016 as required by recent
legisla tion. 1098
In Ukraine, the use of drones is regulated by the Air Code. 1099 According to its Art. 39, drones
with a weight of less than 20kg used for entertainment or sports need not be registered. They
are often employed by media during demonstrations. Dur ing th e Euromai dan assemblies of
2014, such drones had taken several images which were circulated in the media widely,
conveying an idea of the number of participants. 1100
Monitoring
In some countries, international bodies play an important role in the monitoring of respect for
freedom of assembly. International organizations have also played a role in the constitution
making process of relatively new constitutions. In Tunisia, where the new constitution has
been adopted in January 2014, different draft versions we re commented on by the Venice
Commission, and these comments were taken into account. Additionally, UN Agencies
(OHCHR 1101 ) and UN Special Rapporteurs 1102 carried out assessment missions in Tunisia, and
an OHCHR office opened in Tunis. Freedom of assembly legisl ation in Russia is monitored
by the Ombudsman for Human Rights in the Russian Federation. 1103 The Hungarian
ombudsman launched a large -scale project in 2007, monitoring around fifty demonstrations
over the period of one year, and organized conferences and wor kshops with scholars, officials
and civil society actors. The newly created Turkish ombudsman received a number of
complaints relating to the Gezi Park protests in November 2013. 1104 France, however, denied
OSCE/ODIHR (Office for Democratic Institutions and H uman Rights, a human rights
monitoring body of the OSCE) access to monitor assemblies in France.
1096 Police Executive Research Forum, Managing Major Events: Best Practices from the Field , June 2011, a t 35,
38. 1097 See Global Justice Information Sharing Initiative, Recommendations for First Amendment -Protected Events
for State and Local Law Enforcement Agencies (Dec. 2011), at 16 -19; cf. Handschu v. Special Servs.
Div. , 2007 U.S. Dist. LEXIS 43176 (S.D.N. Y. 2007)(involving continued litigation with respect to
guidelines included in the Handschu 1985 consent decree, which was modified after 9/11 and re -modified
subsequently); 28 CFR Part 23, § 23.20 (operating principles). 1098 See the US -American FAA Moderniz ation and Reform Act of 2012, Pub. L. 112 -95. 1099 The Air Code of Ukraine of 19 May 2011, available at: https://zakon4.rada.gov.ua/laws/show/3167 -12 (last
accessed: 29 December 2013). 1100 Yura Yakymets . (2013) Euromaidan from the bid’s -eye view. Day 15/12/2013. [online video], available at:
https://www.youtube.com/watch?v=rGNjV1TCYXc (last accessed: 29 December 2013). 1101 OHCHR (2011) Report of th e OHCHR Assessment Mission to Tunisia, 26 January –2 February 2011 . 1102 Cf. HRC, 19 th Session (2012) Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez – Addendum – Mission to Tunisia of 2 February 2012
( A/HRC/19/61/Add. 1); HRC, 20 th Session (2012) Report of the Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin –
Addendum – Mission to Tunisia of 14 March 2012 (A/HRC/20/14/Add.1); HRC, 22 nd Session (2013)
Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya –
Addendum – Mission to Tunisia (27 September -5 October 2012) of 25 January 2013 (A/HRC/22/47/Add.
2). 1103 Уполномоченный по правам человека в Российской Федерации, https://ombudsmanrf.org/ (last accessed:
10 March 2014) . 1104 See for further information on the Ombudsman https://www.ombudsman.gen.tr/ (last accessed: 5 February
2014); European Commission, Turkey 2013 Progress Report, 16 October 2013, SWD(2013)417final, p.
10.

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5. Final Assessment
The most important findings of this study can be summarized as follows:
1. Flashmobs (events organized through social media) have become quite frequent all over
European countries. While no legislation on the matter exists, courts in most countries have
decided to protect these assemblies to the same extent as traditionally gathered assemblies.
2. Several studied countries grant freedom o f assembly to citizens only (France, Belgium,
Germany, Russia and Serbia), however, in most states aliens are remedied by residual
guarant ees. In Russia and Serbia, howev er, this is not the case: Here, assemblies by foreigners
do not enjoy constitutional p rotection. While Art. 11 ECHR guarantees the right to freedom of
peaceful assembly” to “everyone”, this practice is allowed by the savings clause of Art. 16
ECHR which foresees “restrictions on the political activity of aliens ”. We would like to
highlight, however, that the wording of Art. 11 as well as international gu arantees of non –
discrimination speak in favour of a universal scope of application ratione personae of
freedom of peaceful assembly. 1105
3. The UK and Ukraine do not have specific assembly laws . In consequence, in both countries
some restrictions to the freedom of assembly are not prescribed by law. Rather, in the UK,
restrictions are often based on traditional common law powers. In Ukraine, the legal basis for
restrictions often are either by S oviet regulations still in force or regulations of municipalities
below the rank of a statutory law. This leads to a confusing and unpredictable situation to the
detriment of an overall standard of protection.
4. In many countries, more and more publicly accessible spaces are rented out to or owned by
private entities (whose shares are then sometimes owned in part by the state) and are in that
sense privatized. In consequence, demonstrations or leafleting increasingly occur in in
private airports or shoppi ng malls or similar areas which are formally under private control
but opened up by owners or tenants to the public for general, normally commercial (as
opposed to political) use. This raises the question whether these activities fall within the scope
of t he constitutional (and conventional) protection of freedom of assembly. Here, the legal
situation in European countries is diverse. Further legal change is to be expected: While
Germany, the US and Hungary have adapted to the new situation and have extende d the
guarantee to publicly accessible private or mixed public -private property, the majority of
states under scrutiny limits the scope of the freedom of assembly to traditional public spaces
(streets and squares devoted).
5. Russia and Serbia try to chan nel events to specifically designated areas in which advance
notification is not required. In Russia, they are to be determined by the subjects (lower federal
level). Apart from these areas, organizers have to undergo a “ settlement process” with
Russian au thorities . This process may lead to alterations of time and place of the planned
events. In some cases, this renders the planned event futile or takes so long that the envisaged
date has passed when the settlement is finally issued. This practice risks to unduly curtail the
freedom of assembly.
6. Ukraine, Serbia, Russia and Turkey place general time limitations on the exercise of the
freedom of assembly, excluding assemblies during night -time and, in some cases, restricting
the holding of an assembly at c ertain hours during the day. The majority of the countries
under study does not in a general fashion definite time limitations in their laws but relies on
the option to apply temporal restrictions in the concrete case at hand upon notification.
1105 Cf. OSCE/ODIHR -Venice Commission Guidelines on Freedom of Peaceful Assembly (2nd ed.) of 9 July
20 10, CDL -AD (2010)020, study no. 581/2010, Section B, para. 55, referring to U.N. Human Rights
Committee, General Comment 15, The position of aliens under the Covenant, para.7; Venice
Commission, Opinion on the Compatibility with Human Rights Standards of t he Legislation of Non –
Governmental Organisations of the Republic of Azerbaijan, Oct 2011, CDL -AD(2011)035e, para. 79 -81,
the Venice Commission finds that the restriction of freedom of assembly to citizens only does not present
a proportionate application o f Art. 16 ECHR.

159
7. The ano nymity of protestors is not always guaranteed: While the UK operate a database
listing even peaceful demonstrators, other countries prohibit the concealment of faces in order
to allow for easy identification of participants (Belgium, Russia, Turkey, and Hu ngary ). Such
measures to facilitate personal identification of protestors may serve legitimate security
objectives, however, they may also have a chilling effect on the exercise of the right to free
assembly and free expression.
8. Countries such as Turkey and Hungary have made use of anti -terrorist legislation in a
problematic way to restrict freedom of assembly. While Kurdish and leftist organizations
suffer from discriminatory applications of the Terrorism Act in Turkey, the Hu ngarian
counter -terrorism centre has begun to establish “operational zones” in which assemblies are
entirely banned.
9. Ukraine and Russia demand organizers to notify planned events at least ten days in
advance . The same is true in Belgium for open air as semblies which moreover not only must
be notified, but require an authorization . Some US states require permits. Especially the
requirement for authorization appear unnecessarily burdensome on the organizer. 1106
10. Russia restricts the capacity of persons o f being an organizer to an assembly tightly by
excluding everyone who has been convicted of minor administrative offences. The majority
of states under scrutiny do not limit the circle of potential organizers to such an extent.
11. Spontaneous assemblies are illegal in Serbia, Ukraine, Russia, and in Turkey. While the
prohibition of such assemblies may serve legitimate interests of public order, the right to
freedom of assembly requires that such assemblies should not be sanctioned if the event is
truly sp ontaneous and not an allegation made to circumvent the notification requirement.
12. Same -sex parades face difficulties up to prohibitions in Eastern European countries such
as Poland, Hungary, Russia, and Serbia. Governmental restrictions and prohibitions must
therefore be assessed against the fundamental right, and should avoid targeting assemblies
due to their content.

Most countries studied for this report have faced difficulties in respecting and protecting the
freedom of assembly, and have been crit icized by the ECtHR for this. This report shows that
some countries have better implemented Court judgments than others. A number of states
have reformed their legal regime on assemblies, last but not least to respond to current
challenges such as new secu rity risks or new forms of social activity. Overall, there are only a
few states which are less in line with the general European standard.

1106 OSCE/ODIHR -Venice Commission Guidelines on Freedom of Peaceful Assembly (2nd ed.) of 9 July 2010,
CDL -AD (2010)020, study no. 581/2010, Section B, § 118.