The notion of assembly also covers gatherings taking place online or through digital means.

The UN General Assembly has called upon all States to “ensure that the same rights that individuals have offline, including the rights to freedom of expression, of peaceful assembly and of association, are also fully protected online, in accordance with human rights law.”¹⁸UN General Assembly, Promotion and protection of human rights and fundamental freedoms, including the rights to peaceful assembly and freedom of association, A/RES/73/173, 8 January 2019, para. 4. The UN Human Rights Council has recognized that “although an assembly has generally been understood as a physical gathering of people, human rights protections, including for freedom of peaceful assembly … may apply to analogous interactions taking place online.”¹⁹UN Human Rights Council, The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/38/11, 6 July 2018.

General Comment No. 37 states: “Although the exercise of the right of peaceful assembly is normally understood to pertain to the physical gathering of persons, article 21 protection also extends to remote participation in, and organization of, assemblies, for example online.”²⁰UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 4.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has specifically affirmed that “the rights to freedom of peaceful assembly and of association exist as much online as they offline,”²¹Statement by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association at the conclusion of his visit to the Sultanate of Oman, 13 September 2014; see also UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/29/25/Add.1, 27 April 2015, para 34 and has further stated that “international law protects the rights of freedom of peaceful assembly and of association, whether exercised in person, or through the technologies of today, or through technologies that will be invented in the future.”²²UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, para. 28.The IACHR’s Report on Protest and Human Rights similarly states, “[t]he international standards developed within the inter-American system and the universal system on the rights to freedom of expression, association, and peaceful assembly are fully applicable to the Internet.”²³Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 296.

However, the UN Special Rapporteur has stressed that for the purposes of domestic law, “individuals who post calls for assemblies on social media should not be considered as organizers.”²⁴UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/38/34, 26 July 2018, para. 82.

If the organizers of an assembly have peaceful intentions, they are exercising the right to peaceful assembly.²⁵UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 25; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2^nd edn, 2010, Guideline 1.3.This does not change if, despite these intentions, violent acts are committed by others. The ECtHR has stated:

The right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration. The possibility of violent counter-demonstrations or the possibility of extremists with violent intentions joining the demonstration cannot as such take away that right.²⁶Christian Democratic People’s Party v. Moldova (no. 2), ECtHR, Judgment of 2 February 2010, para. 23; see also Schwabe and M.G. v. Germany, ECtHR, Judgment of 1 December 2011, para. 103 and Christians against Racism and Fascism v. the United Kingdom, EComHR, Decision of 16 July 1980, para. 4.; Primov & Others v. Russia, ECtHR, Judgement of 12 June 2014 para. 155.

The same applies to participants in an assembly; an individual whose intentions and actions are peaceful does not lose the protection of the right when others engage in violent acts. In Ziliberberg v. Moldova, the ECtHR held:

[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour. Although the demonstration gradually became violent, there is no indication that the applicant was himself involved in violence or that he had any violent intentions. … Accordingly, the Court concludes that Article 11 is applicable in the present case.²⁷Ziliberberg v. Moldova, ECtHR, Decision of 4 May 2004, para. 2; Ezelin v. France, ECtHR, Judgement of 26 April 1991, para. 53.

However, in Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, where the applicant’s deliberate acts – leading a group of people to break through a police cordon – “led to the escalation of violence at a crucial moment and triggered the onset of clashes,” the ECtHR concluded that these acts fell “outside the notion of ‘peaceful assembly’ protected by Article 11.”²⁸Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, ECtHR, Judgment of 19 November 2019, para. 284.

General Comment No. 37 similarly provides:

[I]solated acts of violence by some participants should not be attributed to others, to the organizers or to the assembly as such…

The question of whether or not an assembly is peaceful must be answered with reference to violence that originates from the participants. Violence against participants in a peaceful assembly by the authorities, or by agents provocateurs acting on their behalf, does not render the assembly non-peaceful. The same applies to violence by members of the public aimed at the assembly, or by participants in counterdemonstrations.²⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, paras. 17-18.

The UN Special Rapporteur and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly stress that when a person exercises the right to assemble, the peacefulness of his or her intentions must be presumed, until the opposite is demonstrated.³⁰UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 25; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2^nd edn, 2010, Explanatory Notes, para. 25.The ECtHR agrees that the burden of proof is on the authorities:

The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities.³¹Christian Democratic People’s Party v. Moldova (no. 2), ECtHR, Judgment of 2 February 2010, para. 23; see also Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 98.

Moreover, the fact that violence occurs is not sufficient proof that it was intended by the organizers:

[T]he mere fact that acts of violence occur in the course of a gathering cannot, of itself, be sufficient to find that its organisers had violent intentions.³²Karpyuk and Others v. Ukraine, ECtHR, Judgment of 6 October 2015, para. 202.

Even if participants in an assembly are not peaceful and as a result forfeit their right to peaceful assembly, they retain all the other rights, subject to the normal limitations. No assembly should thus be considered unprotected.³³UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 9.

The fact that the organizers intend to cause hindrance or obstruction to the person or entity against which a demonstration is directed does not mean their intentions are not “peaceful”.³⁴OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2^nd edn, 2010, Guideline 1.3.In Karpyuk and Others v. Ukraine, the ECtHR stated:

[T]he organisers intended the rally to be an obstructive, but peaceful, gathering intended to occupy the space around the Shevchenko monument and thus prevent the President of Ukraine from laying flowers there. According to the Court’s settled case-law, such obstructive actions in principle enjoy the protection of Articles 10 and 11.³⁵Karpyuk and Others v. Ukraine, ECtHR, Judgment of 6 October 2015, para. 207.

In Kudrevičius and Others v. Lithuania, the Grand Chamber of the ECtHR struck a more cautious note regarding assemblies which deliberately disrupt the activities of third parties who are not the target of the protest, such as in this instance blockades of major highways. The Court still considered that the blockades were protected by the right to assemble, but signaled that a restriction might more easily pass the necessity test for interferences with freedom of assembly:

In the Court’s view, although not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention… This state of affairs might have implications for any assessment of “necessity” to be carried out under the second paragraph of Article 11.

Nevertheless, the Court does not consider that the impugned conduct of the demonstrations for which the applicants were held responsible was of such a nature and degree as to remove their participation in the demonstration from the scope of protection of the right to freedom of peaceful assembly under Article 11 of the Convention.³⁶Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, paras. 93-98.

However, the ECtHR has also made clear that peaceful occupation of premises in violation of domestic law, including the occupation of both public institutions³⁷Tuskia and Others v. Georgia, ECtHR, Judgment of 11 October 2018, paras. 64, 74.and privately owned property,³⁸Annenkov and Others v. Russia, ECtHR, Judgment of 25 July 2017, paras. 123-126.may be regarded as a “peaceful assembly” entitled to protection under Article 11.

General Comment No. 37 emphasizes that “Mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to ‘violence.’”³⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 15.

Generally, any measure taken by the authorities that may have an adverse impact on the exercise of the right to freedom of assembly will constitute a restriction that needs to meet the three-prong test. The ECtHR has often stated:

[A]n interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards.⁶³See, for example, Gafgaz Mammadov v. Azerbaijan, ECtHR, Judgment of 15 October 2015, para. 50; Gülcü v. Turkey, ECtHR, Judgment of 19 January 2016, para. 91.

Thus, actions such as preventing an individual from traveling to an assembly, the dispersal of the assembly, and the arrest of participants or the imposition of penalties for having taken part in an assembly all qualify as restrictions.⁶⁴Gafgaz Mammadov v. Azerbaijan, ECtHR, Judgment of 15 October 2015, para. 50.The ECtHR has clarified that penalties imposed for other offenses, such as disobedience towards the police, still constitute restrictions if the penalty is in reality directly related to the exercise of the right to freedom of peaceful assembly.⁶⁵Gafgaz Mammadov v. Azerbaijan, ECtHR, Judgment of 15 October 2015, para. 50.

In view of the fundamental nature of this right, the ECtHR has been reluctant to dismiss Article 11 complaints on the basis that applicants have suffered no “significant disadvantage,” for instance through the assessment of limited fines for participating in peaceful demonstrations.

General Comment No. 37 explains that “[t]he negative duty [under article 21] entails that there be no unwarranted interference with peaceful assemblies. States are obliged, for example, not to prohibit, restrict, block, disperse or disrupt peaceful assemblies without compelling justification, nor to sanction participants or organizers without legitimate cause.”⁶⁷UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 23.

International mechanisms have made it clear that the first prong of the test means, firstly, that a restriction on freedom of assembly should be based on an appropriate instrument of domestic law, and secondly, that that instrument must meet the requirement of legality, meaning it should be publicly available and clear and precise enough to prevent arbitrary interferences. As General Comment No. 37 states,

The second sentence of article 21 provides that no restrictions may be placed on the exercise of the right of peaceful assembly other than those imposed in conformity with the law. This poses the formal requirement of legality, akin to the requirement that limitations must be “provided by law” in other articles of the Covenant. Restrictions must thus be imposed through law or administrative decisions based on law. The laws in question must be sufficiently precise to allow members of society to decide how to regulate their conduct and may not confer unfettered or sweeping discretion on those charged with their enforcement.⁶⁸UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 39.

Types of instrument that qualify as ‘law’

The IACtHR has stated that, in the context of legitimate restrictions on rights, the term “law” refers to

a general legal norm tied to the general welfare, passed by democratically elected legislative bodies established by the Constitution, and formulated according to the procedures set forth by the constitutions of the States Parties for that purpose.⁶⁹IACtHR, The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, May 9, 1986, para. 38.

Thus, restrictions on freedom of peaceful assembly cannot be imposed through a government order or administrative decree,⁷⁰IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 165.unless the power to issue that order or decree is itself based on a law which meets the requirements stated above. The IACtHR stresses that any such delegation must be authorized by the Constitution; that the executive body should respect the limits of its delegated powers; and that it should be subject to effective controls.⁷¹IACtHR, The Word "Laws" in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, May 9, 1986, para. 36.

The African Court of Human and Peoples’ Rights has also stated that limitations to rights guaranteed under the ACHPR “must take the form of ‘law of general application’”.⁷²Tanganyika Law Society and the Legal and Human Rights Centre v. Tanzania, African Court of Human and Peoples’ Rights, Judgment of 14 June 2014, para. 107.1.The ECtHR, however, takes a somewhat different approach; it takes the term ‘law’ in its ‘substantive’ sense and not necessarily in its formal one. It allows restrictions to be imposed through lower ranking statutes (even including regulatory measures taken by professional regulatory bodies under powers delegated to them) and even unwritten, judge-made law.⁷³See Gülcü v. Turkey, ECtHR, Judgment of 19 January 2016, para. 104, and references therein.However, the ECtHR, similarly to the IACtHR, has emphasized that where powers are given to executive bodies to restrict the right to assemble, “the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise.”⁷⁴Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 411.The ECtHR has thus found a violation of Article 11 where executive authorities were granted wide discretion to decide what behavior constituted a “public event” subject to official notification and administrative law-enforcement measures in case of non-compliance with notification procedures.⁷⁵Navalnyy v. Russia, ECtHR, Judgment of 15 November 2018, paras. 117-118.

Requirement of foreseeability and accessibility

Any law regulating the right to freedom of assembly should be publicly available and clear and precise enough to prevent arbitrary interferences and allow those exercising the right to understand their duties. The Human Rights Committee has stated as follows:

[A] norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.⁷⁶Human Rights Committee, General Comment 34: Article 19 (Freedoms of expression and opinion), UN Doc. CCPR/C/GC/34 (2011), para. 25.

The ECtHR similarly states that laws should be accessible and their operation foreseeable:

[T]he expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.⁷⁷British Broadcasting Corporation v. the United Kingdom, EComHR, Decision of 18 January 1996; Nordisk Film & TV A/S v. Denmark, ECtHR, Decision of 8 December 2005.

The IACtHR⁷⁸ Fontevecchia and D’Amico v. Argentina, IACtHR, Judgment of November 29, 2011, para. 90., the IACHR’s Report on Protest and Human Rights,⁷⁹Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 34. and the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa⁸⁰AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para 85. See also AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 20, para. 5.take a very similar view.

Restrictions on freedom of assembly must pursue a legitimate aim. The ICCPR recognizes only the following aims as legitimate: “national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”⁸¹ Under the ACHPR, restrictions may be enacted in the interest of “national security, the safety, health, ethics and rights and freedoms of others”; under the ACHR, “national security, public safety or public order, or to protect public health or morals or the rights or freedom of others”; and under the ECHR, “national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”The regional treaties recognize similar aims, with certain differences in wording. The Human Rights Committee places the burden on the State to specify which aim which it is pursuing:

The Committee notes that if the State imposes a restriction, it is up to the State party to show that it is necessary for the aims set out in this provision.⁸² Vladimir Sekerko v. Belarus, Human Rights Committee, Views of 28 October 2013, UN Doc. CCPR/C/109/D/1851/2008, para. 9.4.

In its General Comment No. 37, the Human Rights Committee provided clarification on the meaning of specific legitimate aims. Public order refers to “the sum of the rules that ensure the proper functioning of society, or the set of fundamental principles on which society is founded, which also entails respect for human rights, including the right of peaceful assembly,”⁸³UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 44., while national security refers to “the State’s capacity to protect the existence of the nation, its territorial integrity or political independence against a credible threat or use of force.”⁸⁴ UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 42.The Joint report on the proper management of assemblies clarified specifically that “national, political or government interest is not synonymous with national security or public order.”⁸⁵ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 49. To invoke public safety as grounds to restrict a peaceful assembly, the Human Rights Committee notes that “it must be established that the assembly creates a real and significant risk to the safety of persons (to life or security of person) or a similar risk of damage to property.”⁸⁶UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 43; see. e.g., UN Human Rights Committee, Tsukanov v. Kazakhstan, UN Doc. CCPR/C/131/D/2676/2015, Views of 30 November 2021, para. 10.6 (the Committee noted that the obstruction of pedestrian and vehicular traffic did not justify the invocation of “public safety” to justify a restriction to assembly rights).

With regard to the “prevention of disorder”, the ECtHR has asserted that it must be interpreted narrowly.⁸⁷Navalnyy v. Russia, ECtHR, Judgement of 15 November 2018.The ECtHR has accordingly rejected the claim that sanctions imposed in relation to unintentional gatherings which caused no disruption was pursued for “the legitimate aims of prevention of disorder or crime and the protection of the rights and freedoms of others.”⁸⁸ Navalnyy v. Russia, ECtHR, Judgement of 15 November 2018, paras. 123-126.

With regard to public morality, the Committee observes that its content may differ widely from society to society. However, it clarifies that the concept of morals “should not be used to protect understandings of morality deriving exclusively from a single social, philosophical or religious tradition,” and that “[r]estrictions based on this ground may not … be imposed because of opposition to expressions of sexual orientation or gender identity.”⁸⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 46.Similarly, the ECtHR has found on many occasions that democracy does not simply mean that the views of the majority (or the collective) must always prevail. Fair and proper treatment of minorities must be assured and abuse of dominant positions must, in general, be avoided.⁹⁰See Young, James and Webster v United Kingdom, ECtHR, Judgement of 13 August1981, para. 63.The ECtHR also rejected restrictions on LGBTQ demonstrations on the basis of protection of morals.⁹¹ Bayev and Others v. Russia, ECtHR, Judgement of 20 June 2017 Economic interests as such are equally not part of the interests as enumerated.⁹²Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/32/36, 10 August 2016, para. 33.

With regard to the protection of the rights and freedoms of others, the Human Rights Committee notes that restrictions imposed on this basis “may relate to the protection of the Covenant or other human rights of people not participating in the assembly.”⁹³ Mikhailova v. Russian Federation, Human Rights Committee, Views of 14 March 2022, UN Doc. CCPR/C/134/D/2943/2017, para. 9.8. In Mikhailova v. Russian Federation, the Committee rejected the Russian government’s argument that bans on assemblies for LGBTQ rights were necessary to protect the interests of children. The Committee stated: “In the present case, the Committee has a common approach with the European Court of the Human Rights and considers that there is no basis on which to assume that the ‘mere mention of homosexuality,’ homosexuals could have a negative effect on minors’ rights and freedoms.” public ex homosexuals could have a negative effect on minors’ rights and freedoms.” ⁹⁵ Mikhailova v. Russian Federation, Human Rights Committee, Views of 14 March 2022, UN Doc. CCPR/C/134/D/2943/2017, para. 9.8 (citing Alekseyev v. Russia, ECtHR, Judgment of 21 October 2010, para. 86).

Need for precision

There has been a growing global trend of States abusing the enumerated legitimate interests to restrict human rights by, for example, basing their restrictive actions upon broad interpretations of legitimate interests or terminology loosely related to it. On national security, the Special Rapporteur on the freedom of opinion and expression warned specifically against the

use of an amorphous concept … to justify invasive limitations on the enjoyment of human rights … The concept is broadly defined and is thus vulnerable to manipulation by the State as a means to justifying actions that target vulnerable groups.⁹⁶Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, UN Doc. A/HRC/23/40, 17 April 2013, para. 60.

Arguments thus need to be specific; they cannot be made in abstracto or by indicating general, unspecified risks,⁹⁷Alekseev v. Russian Federation, Human Rights Committee, Views of 25 October 2013, UN Doc. CCPR/C/109/D/1873/2009, para. 9.6: The State argued that the subject addressed by the demonstration would provoke negative reaction that could lead to violations of public order. The Committee found that “an unspecified and general risk of a violent counterdemonstration or the mere possibility that the authorities would be unable to prevent or neutralize such violence is not sufficient to ban a demonstration.” See also Mr. Jeong-Eun Lee v. Republic of Korea, Human Rights Committee, Views of 20 July 2005, UN Doc. CCPR/C/84/D/1119/2002, para. 7.3.but must be made in an individualized fashion,⁹⁸Human Rights Committee, General Comment 34: Article 19 (Freedoms of expression and opinion), UN Doc. CCPR/C/GC/34 (2011), para. 33.applied in the particular case⁹⁹Schumilin v. Belarus, Human Rights Committee, UN Doc. CCPR/C/105/D/1784/2008, Views of 23 July 2012 para. 9.4 (the Committee found the restriction violated the ICCPR because the state had not explained “how, in practice, in this particular case, the author’s actions affected the respect of the rights or reputations of others, or posed a threat to the protection of national security or of public order (ordre public), or of public health or morals”).or with a specific justification.¹⁰⁰Kim v. Republic of Korea, Human Rights Committee, CCPR/C/64/D/574/1994, Views of 4 January 1999, para. 12.5.

Under international law, restrictions on freedom of assembly must be “necessary in a democratic society” for the achievement of the aim they pursue.

The Human Rights Committee has explained that this implies a necessity and proportionality test:

Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient.¹⁰¹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 40.

Necessity means that the restriction must not just be convenient, but must meet a compelling need which is capable of outweighing the importance of freedom of assembly. The IACtHR states:

[I]t is not enough, for example, to demonstrate that a law performs a useful or desirable purpose; to be compatible with the Convention, the restrictions must be justified by reference to collective purposes which, owing to their importance, clearly outweigh the social need for the full enjoyment of the right …¹⁰²Ricardo Canese v. Paraguay, IACtHR, Judgment of August 31, 2004, para. 96.

Likewise, the IACHR’s Report on Protest and Human Rights states:

[T]he adjective “necessary” does not mean “useful,” “reasonable,” or “timely.” In order for the restriction to be legitimate, it must be clearly established that there is a certain and compelling social need to implement the restriction, meaning that such legitimate and compelling objective cannot reasonably be achieved by means less restrictive of the human rights involved.

Similarly, the ECtHR requires a demonstration that the restriction meets a “pressing social need”, which must be convincingly demonstrated by the authorities:

An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”.

Proportionality means that the interference with freedom of assembly should not go further than is strictly necessary to achieve the legitimate aim. Accordingly, if the State has different ways of achieving the aim, it should choose the least intrusive measure. For example, in a case where the authorities had flatly rejected an application to hold a demonstration, the Human Rights Committee stated:

 [T]he State party did not show how rejection of the request to demonstrate constituted a proportionate interference with the right of peaceful assembly –i.e., that it was the least intrusive measure to achieve the purpose sought by the State party and that it was proportionate to the interests the State party sought to protect.¹⁰⁵Vasily Poliakov v. Belarus, Human Rights Committee, Views of 17 July 2014, UN Doc. CCPR/C/111/D/2030/2011, para. 8.3.

In Ibragimov v. Kazakhstan, the Human Rights Committee noted that the proportionality analysis “requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible.”¹⁰⁶Ibragimov v. Kazakhstan, Human Rights Committee, Views of 24 March 2021, UN Doc. CCPR/C/131/D/2452/2014, para. 13.6. In that case, the Committee found that “the repeated sanctioning of the author with 15 days of administrative detention for participating in peaceful rallies” was disproportionate to any legitimate aim, thus contravening the freedom of assembly.¹⁰⁷ Ibragimov v. Kazakhstan, Human Rights Committee, Views of 24 March 2021, UN Doc. CCPR/C/131/D/2452/2014, para. 13.6.

The IACHR’s Report on Protest and Human Rights states:

To determine the strict proportionality of the restrictive measure, it must be determined whether the sacrifice of freedom of expression it entails is exaggerated or excessive in relation to the advantages obtained through such measure . . . [I]n order to establish the proportionality of a restriction when freedom of expression is limited for purposes of preserving other rights, the circumstances of the case must be examined, for instance: (i) the degree to which the competing right is affected (serious, intermediate, moderate); (ii) the importance of satisfying the competing right; and (iii) whether the satisfaction of the competing right justifies the restriction to freedom of expression. The principle of proportionality should also take into consideration the subprinciple of narrow tailoring. That is, in order for protest to be limited by an instrument or means that suitably or appropriately meets the objective pursued, such measure must be effectively conducive to achieving the legitimate and compelling objectives sought.¹⁰⁸Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), paras. 42-43.

The ECtHR has emphasized that “content-based restrictions on freedom of assembly … should be subjected to the most serious scrutiny by this Court.”¹⁰⁹

Navalnyy v. Russia, ECtHR, Judgment of 15 November 2018, paras. 117-118.

The three-prong test (see Assembly Section 4.4.) does not only apply to restrictions placed on an assembly before or during the event, but also to restrictions – such as sanctions – imposed afterwards.

In Praded v. Belarus, for example, the author of the communication had been given an administrative fine in connection with an unauthorised protest at the Iranian embassy. The HRC held that the proportionality of that fine needed to be demonstrated:

[W]hile ensuring the security and safety of the embassy of the foreign State may be regarded as a legitimate purpose for restricting the right to peaceful assembly, the State party must justify why the apprehension of the author and imposition on him of an administrative fine were necessary and proportionate to that purpose.¹¹⁰Praded v. Belarus, Human Rights Committee, Views of 29 November 2014, UN Doc. CCPR/C/112/D/2029/2011, para. 7.8.

The starting point is that the imposition of any sanction – however minor – amounts to a restriction of the right and thus requires a clear justification. The ECtHR has repeatedly held that even sanctions at the lower end of the scale should not be imposed on participants in an assembly that has not been forbidden unless the defendant has personally committed a “reprehensible act”:

[T]he freedom to take part in a peaceful assembly is of such importance that a person cannot be subject to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as that person does not himself commit any reprehensible act on such an occasion.¹¹¹Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 149; see also Ezelin v. France, ECtHR, Judgment of 26 April 1991, para. 53; Galstyan v. Armenia, ECtHR, Judgment of 15 November 2007, para. 115.

Acts the ECtHR has considered reprehensible include throwing rocks at the police,¹¹²Gülcü v. Turkey, ECtHR, Judgment of 19 January 2016, para. 116.the incitement of inter-ethnic violenceand damaging property.¹¹⁴Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, para. 92.A person does not commit a reprehensible act by failing to disavow an assembly when others resort to such acts.¹¹⁵Ezelin v. France, ECtHR, Judgment of 26 April 1991, para. 53.The ECtHR recently accepted that obstructing major highways in disregard of police orders may also be qualified as reprehensible.The UN Special Rapporteur expressed his regret at this latter decision.¹¹⁷UN Special Rapporteur and Human Rights Centre of the University of Ghent, Third Party Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no. 3) and three other applications, November 2015, para. 14; see also IACHR, Report on the Criminalization of the Work of Human Rights Defenders, OEA/Ser.L/V/II, Doc.49/15, 31 December 2015, para. 12.

If there are grounds to apply a penalty, the ECtHR will scrutinize whether the nature (criminal or administrative) and the severity of penalties is justified:

The nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued.¹¹⁸Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 146 (references omitted); see also Akgöl and Göl v. Turkey, ECtHR, Judgment of 17 May 2011, para. 43; Pekaslan and Others v. Turkey, ECtHR, Judgment of 20 March 2012, para. 81; Yılmaz Yıldız and Others v. Turkey, ECtHR, Judgment of 14 October 2014, para. 46.

The ECtHR has thus found disproportionate the imposition of a lengthy prison sentence where the applicant was convicted of “hitting a police officer, once on the head and once on the body, which did not endanger the latter’s life or health,” during an authorized public assembly.¹¹⁹ Barabanov v. Russia, ECtHR, Judgment of 30 January 2018, paras. 71-78.

The Court has warned that, even if they are not imposed in practice, or they are later set aside by the court,¹²⁰The United Macedonian Organization Ilinden and Ivanov v. Bulgaria, ECtHR, Judgement of 20 October 2005.high fines are “conducive to creating a ‘chilling effect’ on legitimate recourse to protests.”¹²¹Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para. 211.

The ECtHR has further emphasized that the organizers of an assembly cannot be held responsible for the actions of others if they have not taken part in them either explicitly through active and direct participation, or implicitly.¹²²Mesut Yıldız and Others v. Turkey, ECtHR, Judgment of 18 July 2017, para. 34.The Special Rapporteur on the rights to freedom of peaceful assembly and association has similarly stated that “organizers should not bear any responsibility for the unlawful acts of others.”¹²³A/HRC/44/50, 13 May 2020, para. 16.And General Comment No. 37 provides: “If, in exceptional circumstances, organizers are held accountable for damage or injuries for which they were not directly responsible, it must be confined to cases in which evidence shows that the organizers could reasonably have foreseen and prevented the damage or injuries.”¹²⁴UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 65.

There is increasing concern globally about the criminalization of persons who exercise the right to assemble; a concern expressed by, among others, the UN Special Rapporteur.¹²⁵UN Special Rapporteur and Human Rights Centre of the University of Ghent, Third Party Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no. 3) and three other applications, November 2015, paras. 14-16.“Criminalization” refers to administrative or criminal measures taken to sanction participants or organizers of assemblies.¹²⁶UN Special Rapporteur and Human Rights Centre of the University of Ghent, Third Party Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no. 3) and three other applications, November 2015, para. 14; see also IACHR, Report on the Criminalization of the Work of Human Rights Defenders, OEA/Ser.L/V/II, Doc.49/15, 31 December 2015, para. 12.

A number of international courts and mechanisms have made it clear that the application of criminal or administrative sanctions to organizers of or participants in peaceful assemblies warrants particular scrutiny; in principle, there should be no threat of sanctions for participation in assemblies. This is true all the more of the imposition of prison sentences.

The ECtHR’s position is as follows:

Where the sanctions imposed on the demonstrators are criminal in nature, they require particular justification. A peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction, and notably to deprivation of liberty. Thus, the Court must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence.¹²⁷Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 146 (references omitted); see also Akgöl and Göl v. Turkey, ECtHR, Judgment of 17 May 2011, para. 43; Pekaslan and Others v. Turkey, ECtHR, Judgment of 20 March 2012, para. 81; Yılmaz Yıldız and Others v. Turkey, ECtHR, Judgment of 14 October 2014, para. 46.

The ECtHR has noted that in some legal systems, administrative law is used to punish offenses that are criminal in nature. Where sanctions imposed are punitive and deterrent in nature, and in particular where individuals are deprived of their liberty, even briefly, the Court classifies these measures as “criminal”, even if they are considered administrative under national law.¹²⁸See, for example, Kasparov and Others v. Russia, ECtHR, Judgment of 3 October 2013, paras. 41-45

The IACHR has published an extensive report on the “Criminalization of the Work of Human Rights Defenders” in which it expresses its concern about the overuse of criminal law in a number of contexts, including in response to protest. In particular, it voices its

concern about the existence of provisions that make criminal offenses out of the mere participation in a protest, road blockages (at any time and of any kind), or acts of disorder that in reality, in and of themselves, do not adversely affect legally protected rights such as those to life, security, or the liberty of individuals.¹²⁹IACHR, Report on the Criminalization of the Work of Human Rights Defenders, OEA/Ser.L/V/II, Doc.49/15, 31 December 2015, para. 127. See also IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2008, OEA/Ser.L/V/II.134 Doc. 5, Doc. 5 rev. 1, 25 February 2009, Chapter IV, para. 70.

The IACHR’s Report on Protest and Human Rights states that “The application of criminal law to the acts of participants in a demonstration . . . can only be used on a very exceptional basis and is subject to a heightened level of scrutiny.”¹³⁰Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 298.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and association has stated that “[t]he use of surveillance techniques for the indiscriminate and untargeted surveillance of those exercising their right to peaceful assembly and association, in both physical and digital spaces, should be prohibited.” The Special Rapporteur has stated that “[s]urveillance against individuals exercising their rights of peaceful assembly and association can only be conducted on a targeted basis”:

In order to be permissible, targeted surveillance may occur only on the basis that such activities are adopted openly; are time-limited; operate in accordance with established international standards of legal prescription, legitimate aim, necessity and proportionality; and are subjected to continued independent supervision that includes robust mechanisms for prior authorization, operational oversight and review.¹³¹UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, paras. 57, 77.

General Comment No. 37 further explains:

Any information gathering, whether by public or private entities, including through surveillance or the interception of communications, and the way in which data are collected, shared, retained and accessed, must strictly conform to applicable international standards, including on the right to privacy, and may never be aimed at intimidating or harassing participants or would-be participants in assemblies. Such practices should be regulated by appropriate and publicly accessible domestic legal frameworks that are compatible with international standards and subject to scrutiny by the courts.¹³²UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 61.

The Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that “[t]he practice of blocking communications — impeding the organization or publicizing of an assembly online — rarely satisfies the requirements of international human rights standards,”¹³³UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/73/279, 7 August 2017, para. 100.and that “[i]n general, the blocking of entire websites is an extreme, disproportionate measure that … undermines the exercise of freedom of assembly and association.”¹³⁴UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, paras. 42, 52.The Special Rapporteur has specifically noted that “to prohibit an individual or association from publishing material online ‘solely on the basis that it may be critical of the government or the political social system espoused by the government’ is inconsistent with the rights to freedom of peaceful assembly, association, and expression.”¹³⁵UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, paras. 42, 52.

The Special Rapporteur has also stated that “network shutdowns are in clear violation of international law and cannot be justified in any circumstances.”¹³⁶UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, paras. 42, 52.

The Special Rapporteur has further noted that in the digital age, “[t]he obligation to protect requires that positive measures be taken to prevent actions by non-State actors, including businesses, that could unduly interfere with the rights to freedom of peaceful assembly and of association.”¹³⁷UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/41/41, 17 May 2019, para. 14.

General Comment No. 37 similarly emphasizes:

States parties must not, for example, block or hinder Internet connectivity in relation to peaceful assemblies. The same applies to geotargeted or technology-specific interference with connectivity or access to content. States should ensure that the activities of Internet service providers and intermediaries do not unduly restrict assemblies or the privacy of assembly participants. Any restrictions on the operation of information dissemination systems must conform with the tests for restrictions on freedom of expression.¹³⁸UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 34.

The IACHR’s Report on Protest and Human Rights takes a similar view:

Limitations on access to the Internet before or after peaceful gatherings, including total or partial disconnections, the slowdown of Internet service, and the temporary or permanent blocking of different sites and applications, constitute unlawful restrictions on the rights of association and assembly.¹³⁹Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 298.

The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly. In many instances the location where an assembly takes part is an important part of its message; a protest demanding accountability for a gas explosion, for example, may be held at the site and exact time of the explosion. Likewise, public areas around iconic buildings are a logical place to convey a message with regard to institutions housed in these buildings.

The Human Rights Committee,¹⁵⁶See, for example, Denis Turchenyak et al. v. Belarus, Human Rights Committee, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, Human Rights Committee, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4;  and Leonid Sudalenko v. Belarus, Human Rights Committee, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4. See also UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, paras. 22, 53.the UN Special Rapporteur,¹⁵⁷UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 60.the ECtHR,the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,¹⁵⁹ OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 3.5 and Explanatory Notes, para. 45the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa,and the IACHR’s Report on Protest and Human Rights¹⁶¹Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), paras. 73, 75-76.all underline that organizers have the right to demonstrate “within sight and sound” of their target audience or target object and that the authorities have a duty to facilitate the assembly at this location.

The ECtHR has also stated, more generally, that:

For the Court, the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of Article 11.¹⁶²Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

Since freedom of assembly covers both static and moving assemblies, the chosen venue may either be a single place or a series of locations along a route.

The organizers’ preferred venue will not always be a convenient one from the point of view of the authorities or the public. The general principle that tolerance should be displayed towards the disruption inevitably caused by assemblies means that the choice of venue must in principle be respected. According to the ECtHR, it is the duty of the authorities to:

[Consider] ways of minimising disruption to ordinary life, for example by organising a temporary diversion of traffic on alternative routes or by taking other similar measures, and at the same time accommodating the organisers’ legitimate interest in assembling within sight and sound of their target audience.¹⁶³Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 423 (references omitted). See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

If a simultaneous assembly is planned in the same location, this is not a reason to deny approval for the venue, if there is no “clear and objective indication that both events cannot be managed in an appropriate manner through the exercise of policing powers.”¹⁶⁴Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 422. See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.Similarly, the fact that an assembly may annoy or provoke others obliges the authorities to look for ways to allow the assembly to proceed without disturbance, rather than moving it to a less prominent location.¹⁶⁵Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, paras. 405 – 409 (references omitted). See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

In Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, the ECtHR made it clear that a particular effort should be made to accommodate the assembly if the chosen location is of crucial importance to the organizers, for example, because it is connected to a historic event.This additional effort may, for example, consist of the deployment of the police to facilitate the assembly.

The applicants, in this case, were involved in advocacy on behalf of the Macedonian minority in Bulgaria. They wished to organize commemorative events at the graves of historical personalities whom they regarded as Macedonian martyrs. The same figures were however also celebrated as Bulgarian national heroes. Fearing disturbances, the authorities had adopted a practice of not allowing the applicants’ events to take place at the same time and place as the official celebrations. The ECtHR rejected the Bulgarian Government’s argument that the applicants should have chosen other sites or dates for their meetings:

[I]t is apparent that the time and the place of the ceremonies were crucial to the applicants, as well as for those attending the official ceremony. Despite the margin of appreciation enjoyed by the Government in such matters, the Court is not convinced that it was not possible to ensure that both celebrations proceeded peacefully either at the same time or one shortly after the other.

The ECtHR made a comparable finding in Öllinger v. Austria. The applicant, a member of the Austrian Parliament, had informed the police of his intention to hold a silent, respectful meeting of about six persons at the Salzburg municipal cemetery, to commemorate the Salzburg Jews killed by the SS during the Second World War. The meeting would take place on All Saints’ Day, a religious holiday on which the population traditionally visits cemeteries in order to commemorate the dead. It would coincide with a controversial annual commemoration of SS soldiers killed in the war, held by an association of former SS members. The police prohibited the meeting, arguing that it could lead to disturbances that would harm the religious feelings of members of the public visiting the cemetery.

The ECtHR considered that the prohibition was disproportionate and the authorities should have instead deployed police to ensure both assemblies could proceed without incident:

First and foremost, the assembly was in no way directed against the cemetery-goers’ beliefs or the manifestation of them. Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers…

In these circumstances, the Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors.¹⁶⁸Öllinger v. Austria, ECtHR, Judgment of 29 June 2006, paras. 47-48.

Assemblies may not be limited to pre-determined locations

The right of the organizers to choose the venue implies that limiting assemblies to certain locations predetermined by law is not permissible. This has been confirmed by the Human Rights Committee:

The Committee observes that limiting pickets to certain predetermined locations … does not appear to meet the standards of necessity and proportionality under article 19 of the Covenant.¹⁶⁹Pavel Levinov v. Belarus, Human Rights Committee, Views of 14 July 2016, UN Doc. CCPR/C/117/D/2082/2011, para. 8.3. See also UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 55 (“As a general rule, there can be no blanket ban on all assemblies in the capital city, in all public places except one specific location within a city or outside the city centre, or on all the streets in a city.”).

In Toregozhina v. Kazakhstan, the Human Rights Committee considered a government order requiring non-governmental public events of a “social or political nature” to be held in single location in Almaty, Kazakhstan’s largest city. At the same time, State-sponsored events or events featuring participation of government officials were permitted at various locations throughout the city. The Committee observed: “Location, like timing, is often central to the expressive rationale of assemblies. Participants may not be relegated to remote areas where they cannot capture the attention of those who are being addressed or the general public. General prohibitions on assemblies across the entire capital, or in any public location except a single specified place, either in a city or outside the centre, or more general prohibitions such as on ‘the streets,’ may not be imposed.” ¹⁷⁰Toregozhina v. Kazakhstan, Human Rights Committee, Views of 23 July 2020, UN Doc. CCPR/C/129/D/2, para. 8.6 (citations)

The Committee concluded that the authorities had failed to demonstrate the necessity and proportionality of the location restrictions imposed by the government order on the freedom of assembly. Further, the Committee noted that the restrictions were discriminatory and were not content-neutral, as they were “directly related to the nature of the public event, namely, whether it was an official event organized by a relevant State body or a sociopolitical event organized by a non-State subject.” ¹⁷¹Toregozhina v. Kazakhstan, Human Rights Committee, Views of 23 July 2020, UN Doc. CCPR/C/129/D/2, para. 8.8, 8.10.

The UN Special Rapporteur has also underscored that limiting protests to specific areas “prevents organizers and participants from choosing venues they consider the most appropriate to express their aspirations and grievances.”The IACHR’s Report on Protest and Human Rights also notes that “Informally or formally imposing on the organizers the expectation to negotiate the time and place of the assembly with the authorities is equally inappropriate.”¹⁷³Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 74.

Any denial or alteration must conform to the three-prong test

Like freedom of peaceful assembly itself, the right to choose the venue is not absolute. But any limitations imposed should meet the three-prong test for legitimate restrictions on freedom of assembly under international law. The IACHR’s Report on Protest and Human Rights states, “Restrictions on the time, place, or manner of a protest should be exceptional, defined on a case-by-case basis and justified on the basis of the protection of persons. Any State interference in the time and place of a demonstration should meet the criteria of necessity and proportionality in a democratic society.”¹⁷⁴Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 71.

The Human Rights Committee has stated in a number of cases:

The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience and no restriction to this right is permissible, unless (a) imposed in conformity with the law, and (b) necessary in a democratic society, in the interests of national security or public safety, public order, protection of public health or morals or protection of the rights and freedoms of others.¹⁷⁵See, for example, Denis Turchenyak et al. v. Belarus, Human Rights Committee, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, Human Rights Committee, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4; and Leonid Sudalenko v. Belarus, Human Rights Committee, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4.

Similarly, the ECtHR held in Lashmankin and Others v. Russia:

The right to freedom of assembly includes the right to choose the time, place and manner of conduct of the assembly, within the limits established in paragraph 2 of Article 11 … Accordingly, in cases where the time and place of the assembly are crucial to the participants, an order to change the time or the place may constitute an interference with their freedom of assembly.

Such an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2, and is “necessary in a democratic society” for the achievement of the aim or aims in question.¹⁷⁶Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, paras. 405 – 409 (references omitted). See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

This means, in the first place, that any power the authorities have to deny the organizer’s preferred venue should be prescribed by law, in a way which effectively limits the discretion of the authorities. The ECtHR considered a Russian law that allowed authorities to make “well-reasoned” proposals to change the venue of an assembly to be unduly vague. The Court pointed out that it would be difficult if not impossible to prove that any decision was not well-reasoned.¹⁷⁷Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, paras. 416-430. See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

Second, any refusal to use the chosen venue should pursue a legitimate aim, such as public order or safety. This could be the case if the number of participants expected by the organizers clearly exceeds the capacity of the proposed venue¹⁷⁸Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 147.or there are objective security concerns.¹⁷⁹Disk and Kesk v. Turkey, ECtHR, Judgment of 27 November 2012, paras. 29-32.

Third, the refusal must be genuinely necessary and proportionate, meaning that the problems caused by the proposed venue cannot be mitigated and are sufficiently severe to justify the refusal. The authorities must “attach sufficient importance to freedom of assembly” and avoid setting the balance too much “in favour of protection of other interests, such as rights and freedoms of non-participants or avoidance of even minor disturbances to everyday life.”¹⁸⁰Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 426.See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

In Chebotareva v. Russian Federation, the Human Rights Committee found a violation of the right to freedom of assembly because authorities wanted to redirect a picket to another location – which the organizer considered unsuitable – in circumstances where that was not clearly necessary.¹⁸¹Chebotareva v. Russian Federation, Human Rights Committee, Views of 26 March 2012, UN Doc. CCPR/C/104/D/1866/2009, para. 9.3.

This case was lodged by a Russian citizen who had twice tried to organize a small picket commemorating a murdered journalist. On the first occasion, the local authorities informed her they were themselves planning an event in the same place at the same time, and instead proposed another location. According to Ms. Chebotareva, the proposed location was unsuitable as it was outside the city center, and the conflicting event supposedly planned by the authorities never took place. On the second occasion, the authorities denied permission to use the chosen location, claiming it was not safe due to heavy vehicle and pedestrian traffic. The Committee considered that the reasons provided by the authorities were not adequate and there had therefore been a violation of Article 21 of the ICCPR:

[T]he State party has not demonstrated to the Committee’s satisfaction that the impeding of the two pickets in question was necessary for the purpose of protecting the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Moreover, the State party never refuted the author’s claim that no event actually occurred at Gorky Square on 7 October 2007, and that the city administration’s claim of a competing Teachers’ Day event was in fact a mere pretext given in order to reject the author’s request. In these circumstances, the Committee concludes that in the present case the State party has violated the author’s right under article 21 of the Covenant.¹⁸²Chebotareva v. Russian Federation, Human Rights Committee, Views of 26 March 2012, UN Doc. CCPR/C/104/D/1866/2009, para. 9.3.

Similarly, in Sáska v. Hungary, the ECtHR found that Hungarian authorities had violated the right to freedom of assembly by asking the organizer to limit a demonstration to a particular area of the square he wished to use, without providing compelling reasons why the entire square was unavailable.¹⁸³Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, paras. 22-23.

In this case, the applicant had wished to hold a demonstration on the vast square outside of the Hungarian Parliament. The police asked him to limit the gathering to a secluded part of the square, rather than its entirety. Sáska refused, after which the police banned the demonstration. The ECtHR was unconvinced by the Hungarian Government’s argument that the square needed to be kept clear to ensure MPs could go about their work unhindered. Accordingly, the ban was not justified:

The Court notes the applicant’s unrefuted assertion that another demonstration planned on exactly the same location for 15 October 2008 had not been forbidden by the authorities. For the Court, this is a remarkable element, since on that date … five parliamentary commissions were in session … [O]n the date of the event planned by the applicant no parliamentary activity was underway … Therefore, the Court cannot but conclude that the prohibition of the demonstration did not respond to a pressing social need, even in the face of the applicant’s intransigence in considering the police’s conciliatory suggestion (see paragraph 8 above). Thus, the measure was not necessary in a democratic society.¹⁸⁴ Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, paras. 22-23.

A proper alternative venue should be proposed if the chosen one is truly unsuited

The Human Rights Committee has repeatedly stated that when authorities restrict freedom of peaceful assembly, they should be guided by the objective of facilitating the right:

When a State party imposes restrictions with the aim of reconciling an individual’s right to assembly and … interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking to impose unnecessary or disproportionate limitations on it.¹⁸⁵See, for example,  Vladimir Kirsanov v. Belarus, Human Rights Committee, Views of 5 June 2014, UN Doc. CCPR/C/110/D/1864/2009, para. 9.7;

Consistently with this, the ECtHR held in Primov and Others v. Russia that, if there are compelling reasons why a protest cannot go ahead in the organizer’s preferred place, it is “the authorities’ duty to reflect on the possible alternative solutions and propose another venue to the organisers.”¹⁸⁶Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, paras. 130-131. In the same vein, see UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 60.Such an offer must be made in a timely manner, and not “at the last moment, when it [is] virtually impossible for the organisers to modify the form, scale and timing of the event.”¹⁸⁷Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 147.

In this case, local authorities had banned a demonstration on various grounds, including that the organizers were expecting 5,000 participants and the park where they wanted to gather had a capacity of only 500. The ECtHR accepted that risk of overcrowding is a legitimate reason to restrict the use of a particular place for an assembly. However, simply banning the event is a disproportionate response:

[E]ven though a park is, a priori, a “public space” suitable for mass gatherings, its size is a relevant consideration, since overcrowding during a public event is fraught with danger. It is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering … The Court is therefore prepared to accept that such restrictions, in principle, pursue a legitimate aim. … That being said, the Court does not consider that the size of the park was sufficient reason for a total ban on the demonstration. … The Court considers that in the present case it was the authorities’ duty to reflect on the possible alternative solutions and propose another venue to the organisers.¹⁸⁸Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, paras. 130-131.

Despite being banned, the protest went ahead anyway. The demonstrators aimed to reach the premises of the district administration; the authorities blocked their way and then proposed an alternative venue in the village, namely the municipal garage. In the opinion of the ECtHR, a proposal for a venue change must be made in a timely manner:

That offer was made at the last moment, when it was virtually impossible for the organisers to modify the form, scale and timing of the event. Thus, the alternative proposal made by the administration was, in the Court’s opinion, inappropriate.¹⁸⁹Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 147.

The alternative venue proposed by the authorities should be one which does not detract from the effectiveness of the protest. The UN Special Rapporteur has warned against “the practice whereby authorities allow a demonstration to take place, but only in the outskirts of the city or in a specific square, where its impact will be muted.”¹⁹⁰UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 40. The ECtHR agrees:

[T] he location or time proposed by the authorities as an alternative to the location chosen by the organisers should be such that the message which they seek to convey is still capable of being communicated … The Court considers that the practice whereby the authorities allow an assembly to take place, but only at a location which is not within sight and sound of its target audience and where its impact will be muted, is incompatible with the requirements of Article 11 of the Convention.¹⁹¹Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 426. See also  Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

Any restriction on the place of an assembly should be promptly appealable

If the authorities place any restriction on the location of an assembly, the organizer has the right to a rapid appeals procedure. According to the IACHR’s Report on Protest and Human Rights,

In the event that the authority decides that it is appropriate to modify the circumstances of time and place, an adequate and effective remedy must be provided to challenge this decision, which must be adjudicated by an authority other than the one that issued the decision.125 The procedure for reviewing decisions prohibiting a protest must be established in a manner that ensures that the decision is made prior to the planned date of the protest. Considering that there may be a short window of time, this may be achieved through interim measures. ¹⁹²Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 80.

Streets can in principle be used for protest, even when it causes traffic disruption

The general principle that the authorities should display tolerance towards the disruption caused by an assembly is of particular relevance when the assembly takes place on a road or other public thoroughfare.

The UN Special Rapporteur and the IACHR have explicitly recognized that in a democratic society “the urban space is not only an area for circulation, but also a space for participation.”¹⁹³UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 11; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 136.General Comment No. 37 states that “peaceful assemblies may in principle be conducted in all spaces to which the public has access or should have access, such as public squares and streets.”¹⁹⁴UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 55.In a similar vein, the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly state that “public protest, and freedom of assembly in general, should be regarded as equally legitimate uses of public space as the more routine purposes for which public space is used (such as commercial activity or for pedestrian and vehicular traffic).”¹⁹⁵OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para 20.

Thus, neither of these competing uses of public space takes automatic priority. The duty of the public authorities, in the words of the ECtHR, is “to strike a fair balance between the rights of those wishing to exercise their freedom of assembly and those others whose freedom of movement may … [be] frustrated temporarily.”¹⁹⁶Körtvélyessy v. Hungary, ECtHR, Judgment of 5 April 2016, para. 29 and Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008, para. 42.

The authorities have a duty to manage traffic around an assembly

States have a positive obligation to facilitate peaceful assemblies. The IACHR has indicated that

the competent institutions of the state have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area.¹⁹⁷ IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc 57, 31 December 2009,para. 193.

The ECtHR has similarly recognized an obligation for the authorities to take

necessary measures in order to minimise any disruption to traffic or other security measures such as providing first-aid services at the site of the demonstrations, in order to guarantee the smooth conduct of the events.¹⁹⁸Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para 171. See also Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 39.

In Körtvélyessy v. Hungary, the Hungarian authorities had prohibited a demonstration out of fear that it would have seriously hampered circulation in the area. The ECtHR found a violation of the right to assemble, as it was not convinced that proper facilitation measures “could not have helped to accommodate the demonstration without serious traffic disruption.”¹⁹⁹Körtvélyessy v. Hungary, ECtHR, Judgment of 5 April 2016, paras. 28-29

If the authorities fail in their duty to try to manage traffic proactively during an assembly, the resulting disruption may not easily justify an interference with the assembly.

Criteria for restrictions on assemblies that seriously impact traffic

If the disruption to traffic threatened or caused by an assembly is particularly severe and cannot be avoided by taking management measures, restrictions may in some cases be justified, provided they comply with the three-prong test, including the proportionality requirement. However, the Special Rapporteur has emphasized that because “peaceful protests are a legitimate use of public space … road blocking should never be subject to criminal penalties.”²⁰⁰ UN General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/74/349, 11 September 2019, para. 46.

The case-law of the ECtHR and other sources suggest the following factors are relevant when deciding whether a restriction in the interest of freedom of movement is justified: (1) the actual impact of the assembly; (2) its duration; (3) whether the authorities have prior notice of the assembly; (4) whether the disruption is intentional and serious (for example, because the assembly takes the form of a blockade of a motorway). Thus, General Comment No. 37 states: “An assembly that remains peaceful while nevertheless causing a high level of disruption, such as the extended blocking of traffic, may be dispersed, as a rule, only if the disruption is ‘serious and sustained.”²⁰¹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 85.

The lack of actual impact prompted the ECtHR to find a violation of the right to assemble in Körtvélyessy v. Hungary.²⁰² Körtvélyessy v. Hungary, ECtHR, Judgment of 5 April 2016, paras. 28-29 (references omitted); see also Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008, para. 42.The Court was not convinced that a planned assembly on a dead-end street, albeit with shops and other facilities, would have caused a level of traffic disruption sufficient to justify the ban imposed on it.

The applicant in this case had notified the police of his intention to hold a demonstration of no more than 200 persons outside the Budapest penitentiary, which is located on a dead-end street. The Budapest Police Department prohibited the protest because it feared access to shops, a waste disposal site and the suppliers’ entrance of the prison would be impeded. The ECtHR felt that too much weight had been given to traffic considerations, which moreover were not convincing:

The Court observes that … the basis for upholding the ban on the assembly related exclusively to traffic issues… In this connection, the Court reiterates that a demonstration in a public place may cause a certain level of disruption to ordinary life…

[T]he Court is not convinced by the Government’s explanation to the effect that Venyige Street, a road of five or eight metres in width, with a broad service lane adjacent, could not have helped to accommodate the demonstration without serious traffic disruption. Indeed, their arguments appear not to take into account that the street is a dead end; and the through traffic is thus of limited importance…

Consequently, the Court concludes that the authorities, when issuing the prohibition on the demonstration and relying on traffic considerations alone, failed to strike a fair balance between the rights of those wishing to exercise their freedom of assembly and those others whose freedom of movement may have been frustrated temporarily, if at all.²⁰³Körtvélyessy v. Hungary, ECtHR, Judgment of 5 April 2016, paras. 28-29 (references omitted); see also Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008, para. 42.

The joint report on the proper management of assemblies recognizes that if an assembly prevents access to essential services, such as blocking the emergency entrance to a hospital, this may justify dispersal.²⁰⁴ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 62.

Second, the duration of traffic disruption is an important criterion. The ECtHR has repeatedly criticized domestic authorities for acting too quickly to end assemblies that threatened to cause traffic disruption.²⁰⁵Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 41; Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, para. 51; Tahirova v. Azerbaijan, ECtHR, Judgment of 3 October 2013, para. 73. In general, demonstrators should be given an effective opportunity to convey their views, provided there is no urgent danger to public order.

Third, the ECtHR recognizes that prior notice of an assembly makes it easier for the authorities to meet their obligation to manage traffic. In Oya Ataman v Turkey, the Court considered the very rapid termination of the assembly disproportionate but accepted that

notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour.²⁰⁶Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 39.

This implies that if the authorities are aware in advance of an assembly, the threshold to interfere with it because of traffic disruption is higher.

A good example of the application of this principle is the case before the ECJ of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria. The dispute arose from a protest blockade of a major motorway lasting almost 30 hours. The organizers had given the Austrian authorities one month’s advance notice of their intention to stage the blockade. The authorities allowed the protest to go ahead and took various preparatory measures to limit the disruption to road traffic. A transport company that nevertheless suffered some delay demanded compensation, arguing that the assembly should have been banned to safeguard the free movement of goods. The ECJ sided with the Austrian authorities, finding that they had justifiably considered that they were required to permit the demonstration.²⁰⁷Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria, ECJ, Judgment of 12 June 2003.

The case of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria before the ECJ concerned a blockade of the Brenner motorway, a major trunk road between Germany and Italy, which lasted almost 30 hours. The blockade was organized by an environmental organization that aimed to draw attention to the health and environmental costs of the increased transit of heavy goods vehicles on the motorway. It had given the Austrian authorities a month’s notice of its intentions. Schmidberger, a German transport company that had incurred losses as a result of the roadblock, sued the Austrian government. It considered that by failing to ban the demonstration and keep the motorway open, Austria had violated the right to free movement of goods guaranteed by European Community law. The ECJ found, however, that the Austrian authorities had struck a reasonable balance between the interests at stake:

[T]he competent national authorities were entitled to consider that an outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights of the demonstrators to gather and express peacefully their opinion in public.

The imposition of stricter conditions concerning both the site – for example by the side of the Brenner motorway – and the duration – limited to a few hours only – of the demonstration in question could have been perceived as an excessive restriction, depriving the action of a substantial part of its scope. Whilst the competent national authorities must endeavour to limit as far as possible the inevitable effects upon free movement of a demonstration on the public highway, they must balance that interest with that of the demonstrators, who seek to draw the aims of their action to the attention of the public.

An action of that type usually entails inconvenience for non-participants, in particular as regards free movement, but the inconvenience may in principle be tolerated provided that the objective pursued is essentially the public and lawful demonstration of an opinion.²⁰⁸Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria, ECJ, Judgment of 12 June 2003, paras. 89-91.

A somewhat comparable dispute has played out in South American between Uruguay and Argentina. Uruguay’s authorization of the construction of a pulp mill on the banks of the river separating the two countries caused deep concern on the Argentine side about possible pollution. Beginning in 2005, demonstrators began to intermittently block the bridges across the river. The Argentine authorities did not intervene, and as a result, the main border crossing was closed for months on end. In July 2006, Uruguay brought a case against Argentine under the dispute settlement system of the Mercosur trading bloc. The arbitral tribunal hearing the case acknowledged the importance of the rights to freedom of expression and peaceful assembly but considered that Argentina had given them unreasonable priority over the free circulation of goods and services by allowing blockades to continue for as long as three months at a peak time for commerce and tourism.²⁰⁹Award of the Mercosur Ad Hoc Tribunal (Uruguay v. Argentina), 6 September 2006, paras. 178-179.

The ECtHR has made it clear that what matters is whether the authorities have actual prior knowledge of the assembly, such that they can take traffic management measures, and not whether the organizers of the assembly have complied with any formal advance notification requirement. In Balçik and Others v. Turkey, the police had received intelligence reports that demonstrators would gather in central Istanbul and block a tram line. The Court criticized the “impatience” of the authorities in ending the protest within 30 minutes to restore public order, pointing out that:

although no notification had been given, the authorities had prior knowledge … that such a demonstration would take place on that date and could have therefore taken preventive measures.²¹⁰Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, para. 51

Fourth, the ECtHR seems to require less tolerance from the authorities for intentional and serious obstruction of traffic than for assemblies on public roads where disruption to traffic is a side-effect or smaller blockades. In Kudrevičius and Others v. Lithuania, the Court’s Grand Chamber stated:

[T]he intentional serious disruption, by demonstrators, to ordinary life and to the activities lawfully carried out by others, to a more significant extent than that caused by the normal exercise of the right of peaceful assembly in a public place, might be considered a “reprehensible act” within the meaning of the Court’s case-law.²¹¹Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 173. See also Barraco v. France, ECtHR, Judgment of 5 March 2009, paras. 46-47.

The case concerned the blockading of Lithuania’s three main motorways for about 48 hours, without prior notice to the authorities. Previous ECtHR judgments suggest that smaller-scale roadblocks do not justify a reduced level of tolerance from the authorities. In Balçik and Others v. Turkey, the Court criticized the Turkish authorities’ lack of tolerance towards the temporary blocking of a single tram line.²¹²Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, paras. 51-52.

The applicants in Kudrevičius and Others v. Lithuania were amongst a group of farmers who were struggling under low milk, grain, and meat prices. They were given permission to demonstrate in a number of places. After negotiations with the Government stagnated, the applicants, along with other farmers, moved tractors onto Lithuania’s three major highways. They did not give prior notice of this move and ignored police orders to leave. The blockade caused significant disruption over a period of two days. The applicants were subsequently sentenced by domestic courts to 60 days’ imprisonment for “rioting”, suspended for one year. They were also ordered not to leave their homes for more than seven days without the authorities’ prior agreement.

The ECtHR stated, with regard to the applicable level of protection:

The intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it, in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters.²¹³Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2010, para. 156.

At the same time, the Court stressed that the authorities are still bound to respond to such roadblocks in a proportionate manner:

The absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what the public interest at stake was, and what risks were represented by the demonstration. The method used by the police for discouraging the protesters, containing them in a particular place or dispersing the demonstration is also an important factor in assessing the proportionality of the interference.²¹⁴Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2010, para. 151. See also Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 119.

The Court ultimately found that there had not been a violation of the applicants’ rights. It noted that the farmers had been able to hold peaceful assemblies at specific locations as requested beforehand and that when they moved onto the motorways, the police had not forcefully dispersed these gatherings. The sanctions imposed afterward, while criminal in nature, were not excessive.²¹⁵Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2010, paras. 176-183.

The UN Special Rapporteur expressed his concern at the Court’s willingness to permit the use of criminal law in this context. ²¹⁶United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association and Human Rights Centre of the University of Ghent, Third Party Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no. 3) and three other applications, November 2015, paras. 14-15.

More recently, the ECtHR considered the case of protesters who had been arrested for conducting a protest that intentionally blocked the road leading to Georgia’s Parliament. The Court found that: 

“the complete obstruction of the entrances to the Parliament’s building and later of the police efforts to reopen those entrances, in blatant disregard of the domestic legislation, multiple warnings given to them, and of the needs and rights of the democratically elected members of Parliament to discharge their functions which are essential in any democratic society can be described as ‘reprehensible’ conduct.” ²¹⁷Makarashvili and Others v. Georgia, ECtHR, Judgment of 1 September 2022, para. 99.

As a result, the government was entitled to a wide margin of appreciation in its assessment of the necessity of imposing restrictions on such conduct. The Court concluded that given the margin of appreciation “the respondent State was entitled to consider that the interests of protecting public order” justified the arrest of two applicants. ²¹⁸Makarashvili and Others v. Georgia, ECtHR, Judgment of 1 September 2022, para. 100.

The UN Special Rapporteur has stated on several occasions that blanket location restrictions on assemblies are intrinsically disproportionate and should thus not be imposed.²¹⁹UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 39; UN Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and of Association, Mission to the United Kingdom of Great Britain and Northern Ireland, UN Doc. A/HRC/23/39/Add.1, 17 June 2013, para. 62; UNGA, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/68/299, 7 August 2013, para. 25; UN Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and of Association, Mission to Oman, UN Doc. A/HRC/29/25/Add.1, 27 April 2015, para. 29; UN Special Rapporteur, amicus curiae brief before the Supreme Court of the Nation of Mexico in constitutionality challenges 96/2014 and 97/2014 regarding the Mexico City Mobility Law, 20 August 2015, para. 40; UN Special Rapporteur, amicus curiae brief before the High Court of Kenya at Nairobi, Constitutional and Human Rights Division, in petition no. 544 of 2015, 11 April 2016, para. 32. This includes spaces outside iconic buildings:

Spaces in the vicinity of iconic buildings such as presidential palaces, parliaments or memorials should also be considered public space, and peaceful assemblies should be allowed to take place in those locations. In this regard, the imposition of restrictions on “time, place and manner” should meet the aforementioned strict test of necessity and proportionality.²²⁰UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 66.

This position is supported by regional bodies²²¹OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 43 and 102; See AComHPR, Guidelines on Freedom of Assembly and Association in Africa, paras 83-84, 87; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 20, para. 25. and by the jurisprudence of the Human Rights Committee, which emphasizes that assemblies should be able to take place “within sight and sound” of their target audience.²²²See, for example, Denis Turchenyak et al. v. Belarus, Human Rights Committee, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, Human Rights Committee, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4;  and Leonid Sudalenko v. Belarus, Human Rights Committee, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4.In General Comment No. 37, the Committee has stated:

The designation of the perimeters of places such as courts, parliaments, sites of historical significance or other official buildings as areas where assemblies may not take place should generally be avoided, inter alia, because these are public spaces. Any restrictions on assemblies in and around such places must be specifically justified and narrowly circumscribed.²²³UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 56.

The ECtHR has repeatedly found violations of freedom of assembly when domestic authorities prohibited or forcefully dispersed assemblies outside a range of public buildings, including parliaments,²⁴⁴Nurettin Aldemir and Others v. Turkey, ECtHR, Judgment of 18 December 2007; Sáska v. Hungary, ECtHR, Judgment of 27 November 2012.government buildings,²²⁵Christian Democratic People’s Party v. Moldova, ECtHR, Judgment of 14 February 2006; Özbent and Others v. Turkey, ECtHR, Judgment of 9 June 2015.courts,²²⁶Sergey Kuznetsov v. Russia, ECtHR, Judgment of 23 October 2008; Malofeyeva v. Russia, ECtHR, Judgment of 13 May 2013; Kakabadze and Others v. Georgia, ECtHR, Judgment of 2 October 2012.and the house of a prime minister.²²⁷Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008.

In Lashmankin and Others v. Russia, the applicants complained about a law which prohibited holding public events “in the immediate vicinity” of various types of buildings, such as courthouses, detention facilities, the residences of the President, dangerous production facilities, railway lines, and pipelines. The ECtHR held that:

[A] general ban on demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures. In this connection, the authority must take into account the effect of a ban on demonstrations which do not by themselves constitute a danger to public order. Only if the disadvantage of such demonstrations being caught by the ban is clearly outweighed by the security considerations justifying the issue of the ban, and if there is no possibility of avoiding such undesirable side effects of the ban by a narrow circumscription of its scope in terms of territorial application and duration, can the ban be regarded as being necessary within the meaning of Article 11 § 2 of the Convention.²²⁸Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 434.

In the circumstances of the case, the Court concluded that the law at issue violated the right to freedom of assembly because it did not “address a precise risk to public safety or a precise risk of disorder with the minimum impairment of the right of assembly.”²²⁹Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 437. For example, the law prevented any demonstration near a courthouse, not only those held with the intention of interfering with the administration of justice.²³⁰Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 440.

The scope for restrictions on assemblies inside public buildings may be greater. In Taranenko v. Russia, the ECtHR held that freedom of expression does not require the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property, such as, for instance, government offices, ministries²³¹Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, para. 78.or universities.²³²Tuskia and Others v. Georgia, ECtHR, Judgment of 11 October 2018, para. 75.

The applicant in Taranenko v. Russia had been arrested together with a group of about 40 people who had occupied the reception area of the President’s administration building in Moscow, waved placards, and distributed leaflets calling for the President’s resignation. She claimed she was not a member of the National Bolsheviks Party, who had organized the protest but attended to collect information for her thesis in sociology. After spending almost a year in pre-trial detention, Ms. Taranenko was convicted of participation in mass disorder and sentenced to three years’ imprisonment, suspended on probation. The trial court considered it irrelevant whether she had joined the action for research or not, as she had directly participated in a violation of the admission procedure to the building, during which the demonstrators had pushed aside a guard and destroyed furniture (which they later paid compensation for). The ECtHR noted that:

[T]he applicant and the other participants in the protest action wished to draw the attention of their fellow citizens and public officials to their disapproval of the President’s policies and their demand for his resignation. This was a topic of public interest … That being said, the Court reiterates that, notwithstanding the acknowledged importance of freedom of expression, Article 10 does not bestow any freedom of forum for the exercise of that right. In particular, that provision does not require the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property, such as, for instance, government offices and ministries.²³³Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 77-78.

The Court then went on to assess the proportionality of the sanction imposed, comparing it to sanctions in other cases that had come before it. It concluded that the penalty was clearly disproportionate:

[T]he protesters’ conduct, although involving a certain degree of disturbance and causing some damage, did not amount to violence … although a sanction for the applicant’s actions might have been warranted by the demands of public order, the lengthy period of detention pending trial and the long suspended prison sentence imposed on her were not proportionate to the legitimate aim pursued. The Court considers that the unusually severe sanction imposed in the present case must have had a chilling effect on the applicant and other persons taking part in protest action.²³⁴Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 93-95.

Assemblies that take place on private property enjoy the protection of the right to freedom of assembly,²³⁵OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2^nd edn, 2010, Explanatory Notes, paras. 99-100.meaning that any restriction placed on them by the authorities must conform to the requirements of the three-prong test.

International law does not impose any duty on owners of private property to consent to assemblies taking place there. However, in Appleby and others v. United Kingdom,²³⁶Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003.the ECtHR held that if the privatization of public space reaches a stage where effective protest is no longer possible, the State may need to step in and ensure access to private spaces.

Indeed, while private landowners generally have the right to determine who may access their property, the rights related to assembly may require positive measures of protection even in the sphere of relations between individuals²³⁷UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 84..

The case of Appleby and others v. United Kingdom was brought by three individuals and an environmental group, who had wished to collect signatures for a petition at the entrance to “The Galleries”, a shopping mall built by a public development corporation as the new town center and subsequently sold to a private company. The manager of the mall refused permission to set up a stall in the mall or its car parks, referring to the owner’s policy of neutrality. The applicants instead set up stalls on public footpaths and in the old town center.

Before the ECtHR, the applicants argued that the State was directly responsible for the interference with their freedom of expression and assembly as it had built the Galleries on public land and approved the transfer into private ownership. The Court disagreed, finding that this circumstance did not make the State directly responsible for the manager’s actions.²³⁸Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003, para. 41.The applicants also argued that the State was indirectly responsible, as it was under a positive obligation to secure the exercise of their rights within the Galleries, since access to the town center was essential for effective communication with the population.

The Court chose to analyze this argument under Article 10 ECHR (freedom of expression) but indicated that largely identical considerations would apply under Article 11 (freedom of peaceful assembly).²³⁹Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003, para. 52.It rejected the notion that there is an automatic right of entry to the property for expressive purposes; at the same time, it accepted that a positive obligation may arise for the State to ensure access to the property if the effective exercise of freedom of expression would otherwise become impossible:

That provision [Article 10], notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where … the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire municipality was controlled by a private body, might be an example.²⁴⁰Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003, para. 47.

In the instant case, however, the Court saw insufficient evidence that the applicants had been effectively prevented from communicating their views to their fellow citizens. They had still been able to obtain individual permission from businesses within the Galleries to collect signatures, and to campaign on public access paths in the area or in the old town center.

Similarly, in General Comment No. 37, the Committee has explained:

While gatherings in private spaces fall within the scope of the right of peaceful assembly, the interests of others with rights in the property must be given due weight. The extent to which restrictions may be imposed on such a gathering depends on considerations such as whether the space is routinely publicly accessible, the nature and extent of the potential interference caused by the gathering with the interests of others with rights in the property, whether those holding rights in the property approve of such use, whether the ownership of the space is contested through the gathering and whether participants have other reasonable means to achieve the purpose of the assembly, in accordance with the sight and sound principle. Access to private property may not be denied on a discriminatory basis.²⁴¹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 60.

The UN Special Rapporteur has expressed concern at laws that prohibit the wearing of a mask during assemblies and has pointed out that there may be legitimate reasons to cover one’s face during a demonstration, including fear of retribution, protection against excessive surveillance and to reduce the effects of tear gas.²⁵¹UN Human Rights Council, Observation on communications transmitted to governments and replies received, Report of the Special Rapporteur on the Rights to freedoms of peaceful assembly and association, UN Doc. A/HRC/41/41/Add.1, 24 June 2019, para 47; UN Human Rights Council, Third Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly, Maina Kiai, UN Doc. A/HRC/26/29, 14 April 2014, paras. 32-33.The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly state that masks worn for expressive purposes (rather than to avoid arrest) should in principle be permitted.²⁵²OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 99-100.

In Ibragimova v. Russia, the ECtHR found that a solo demonstrator’s conviction for wearing a balaclava during her protest violated her right to freedom of expression (interpreted in light of the right to freedom of assembly).²⁵³Ibragimova v. Russia, ECtHR, Judgment of 30 August 2022, para. 40.

In its Report on Protest and Human Rights, the IACHR states, “Bandanas, masks, hoods, caps, backpacks, and other types of clothing and accessories are very common at public demonstrations. These items cannot be considered sufficient indicators of a threat of violence, nor can they be used as grounds for the dispersal, arrest, or repression of demonstrators.”²⁵⁴Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 88.Similarly, General Comment No. 37 provides:

The wearing of face coverings or other disguises by assembly participants, such as hoods or masks, or taking other steps to participate anonymously may form part of the expressive element of a peaceful assembly or serve to counter reprisals or to protect privacy, including in the context of new surveillance technologies. The anonymity of participants should be allowed unless their conduct presents reasonable grounds for arrest, or there are other similarly compelling reasons, such as the fact that the face covering forms part of a symbol that is, exceptionally, restricted for the reasons referred to above (see para. 51). The use of disguises should not in itself be deemed to signify violent intent.²⁵⁵UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 60.

The use of symbols during assemblies, both on clothing and flags, may be restricted “[i]n exceptional cases, where such symbols are directly and predominantly associated with incitement to discrimination, hostility or violence.”²⁵⁶UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 51.Such use of symbols has given rise to a number of cases before the ECtHR. The Court has stated, in general terms, that:

for the determination of the proportionality of a specific restrictive measure, the location and the timing of the display of a symbol or of other expressions with multiple meanings play an important role.²⁵⁷Fabér v. Hungary, ECtHR, Judgment of 24 July 2012, para. 55.

In Vajnai v. Hungary and Fratanoló v. Hungary, the applicants had been sanctioned for using a “totalitarian symbol” in public, after wearing a five-pointed red star while participating in an assembly. The European Court was mindful that for some, the symbol stood for the mass human rights violations committed under communism, but for others, it represented the struggle for a fairer society, as well certain lawful political parties in different countries.²⁵⁸Vajnai v. Hungary, ECtHR, Judgment of 8 July 2008, para. 52. A “careful examination of the context” was needed when deciding whether a ban was permitted.²⁵⁹Vajnai v. Hungary, ECtHR, Judgment of 8 July 2008, para. 53. In this instance the context did not justify the ban:

[F]or a restriction on the display of that symbol to be justified, it was required that there was a real and present danger of any political movement or party restoring the Communist dictatorship. However, the Government had not shown the existence of such a threat … the ban in question was too broad in view of the multiple meanings of the red star… and there was no satisfactory way to sever the different meanings of the incriminated symbol.²⁶⁰Fratanoló v. Hungary, ECtHR, Judgment of 3 November 2011, para. 25, summarizing and endorsing the judgment in Vajnai v. Hungary, ECtHR, Judgment of 8 July 2008.  See also Şolari v. Moldova, ECtHR, Judgment of 28 March 2017, paras. 34-36.

Most international authorities consider that a prior authorization requirement for assemblies is illegitimate.

The UN Special Rapporteur finds that States should not impose authorization requirements²⁶¹UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 28; UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 52.as they turn the right into a privilege to be dispensed by authorities, and shift the burden to organizers or participants to challenge a refusal, rather than requiring authorities to justify restrictions.²⁶²United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association and Human Rights Centre of the University of Ghent, Third Party Intervention before the European Court of Human Rights in Mahammad Majidli v. Azerbaijan (no. 3) and three other applications, November 2015, paras. 9 and 10.The IACHR has clearly stated that assemblies should not be subject to an authorization requirement:

The IACHR reiterates that the exercise of the right of assembly through social protest must not be subject to authorization on the part of the authorities or to excessive requirements that make such protests difficult to carry out.²⁶³IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 139; see also IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2005, OEA/Ser.L/V/II.124 Doc. 7, 27 February 2006, Chapter V, para. 95; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 65.

The same point of view is shared by the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,²⁶⁴OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 118. the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa,²⁶⁵See AComHPR,Guidelines on Freedom of Assembly and Association in Africa, para 71; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 63, para. 23.and the UN Human Rights Committee’s General Comment No. 37.²⁶⁶ UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 70.

The ECtHR, in contrast to most authorities, accepts in principle that authorization requirements for assemblies may be legitimate, though only insofar as their aim is to enable the authorities to meet their duty to facilitate the assembly:

[N]otification, and even authorisation procedures, for a public event do not normally encroach upon the essence of the right under Article 11 of the Convention as long as the purpose of the procedure is to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gathering.²⁶⁷Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 147 (references omitted); see also Rassemblement Jurassien and Unité Jurassienne v. Switzerland, EComHR, Decision of 10 October 1979, para. 3.

Both the Human Rights Committee and the ECtHR have articulated several important parameters which procedures established by the authorities must respect, and have frequently held that a refusal of authorization, the dispersal of an unauthorized assembly, or the imposition of sanctions on organizers or participants were unjustified because the interference served no legitimate aim or was not necessary and proportionate. This case law is discussed further in the section on consequences of a failure to follow the prescribed procedure.

It is accepted in international law that domestic authorities are permitted (though not obliged) to request advance notification of an assembly. The Human Rights Committee, for example, has held that:

[A] requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant.²⁶⁸Kivenmaa v. Finland, Human Rights Committee, Views of 9 June 1994, UN Doc. CCPR/C/50/D/412/1990, para 9.2.

The ECtHR has stated that notification procedures are permissible “as long as they do not represent a hidden obstacle to the freedom of peaceful assembly.”²⁶⁹Berladir and Others v. Russia, ECtHR, Judgement of 10 July 2012, para 39; Éva Molnár v. Hungary, ECtHR, Judgment of 7 October 2008, para. 37.The IACHR has likewise noted that prior notice “cannot function as a covert authorization mechanism.”²⁷⁰Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 57.

The rationale of a notice procedure is to allow State authorities to facilitate and safeguard the exercise of the right to freedom of peaceful assembly, to protect public safety and order and the rights and freedoms of others, and to meet their obligation to reroute traffic and deploy security when necessary.²⁷¹UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, paras. 26-28.In the words of the IACHR:

The requirement established in some laws that advance notice be given to the authorities before a social protest may be held in public places is compatible with the right of assembly, as long as this requirement has the purpose of informing the authorities and allowing them to take measures to facilitate the exercise of the right without significantly disturbing the normal activities of the rest of the community, or making it possible for the State to take necessary steps to adequately protect those participating in the demonstration.²⁷²IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 137. In a similar vein, see AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para 71-76; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 60, para. 5; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 72; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 4.1; Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 147.

Consistently with this rationale, the UN Special Rapporteur, the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly, General Comment No. 37, the Guidelines on Freedom of Assembly and Association in Africa, and the IACHR’s Report on Protest and Human Rights recommend only requiring notice when a substantial number of participants are expected, or only for certain types of assembly, such as assemblies where disruption is reasonably expected by the organizers.²⁷³OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 115; UN Human Rights Council, UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 28; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 62, para. 9. AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para 71-76; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 59.

Notification procedures are subject to a proportionality assessment. A notification procedure should not be onerous or bureaucratic and the amount of notice requested should not be excessive.²⁷⁴OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 4.1; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 70; UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, paras. 51-58; AComHPR,Guidelines on Freedom of Assembly and Association in Africa, para 71-76; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 62, para. 12; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 59.In Poliakov v. Belarus, for example, the Human Rights Committee criticized a requirement for organizers of assemblies to secure various written commitments from local government departments:

The Committee observes that the restrictions imposed on the author’s freedom of assembly were based on provisions of domestic law and included the burdensome requirements of securing three separate written commitments from three different administrative departments, which might have rendered illusory the author’s right to demonstrate. The State party has failed, however, to present any arguments as to why those requirements were necessary 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.²⁷⁵Vasily Poliakov v. Belarus, Human Rights Committee, Views of 17 July 2014, UN Doc. CCPR/C/111/D/2030/2011, para. 8.3.

In Lashmankin and others v Russia, the ECtHR has criticized the requirement under Russian law to give notice well ahead of time and within a short window (no earlier than fifteen days and no later than ten days before the intended public event). It held that the “automatic and inflexible application” of this requirement violates the right to freedom of peaceful assembly.²⁷⁶Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 456. Note that request for referral to the Grand Chamber is currently pending (May 2017).

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has emphasized that any “notice period should not be long and the procedure should be free of charge and widely accessible, without discrimination and without disproportionate risk.”²⁷⁷UN General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/74/349, 11 September 2019, para. 40.

Multiple sources in international law concur that spontaneous assemblies that are held in rapid response to an unforeseen development should not be subjected to prior notification procedures. UN Special Rapporteurs,²⁷⁸UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 91; UNGA, Report of the Special Representative of the Secretary-General on Human Rights Defenders to the General Assembly, Hina Jilani, A/61/312, 5 September 2006, para. 97.General Comment No. 37,²⁷⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 72.the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,²⁸⁰ OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 4.2.the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa,²⁸¹AComHPR,  Guidelines on Freedom of Assembly and Association in Africa, para 75; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 62, para. 13.and the IACHR’s Report on Protest and Human Rights²⁸²Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 61.all underscore that spontaneous assemblies should be recognized in law and be exempted from prior notification.

In Bukta and Others v. Hungary, the ECtHR held that domestic authorities should not disperse a peaceful assembly held as an immediate response to a political event because of the absence of formal notice:

In the Court’s view, in special circumstances when an immediate response, in the form of a demonstration, to a political event might be justified, a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly.²⁸³ Bukta and Others v. Hungary, ECtHR, Judgment of 17 July 2007, para. 36.

The applicants in Bukta and Others v. Hungary were part of a group of about 150 people that had gathered for a demonstration in front of a hotel in Budapest where the Romanian Prime Minister was hosting a reception. The day before, the Hungarian Prime Minister had announced he would attend the reception. The applicants were of the opinion that Prime Minister should refrain from joining the reception, as it marked the occasion of Romania’s national day, which commemorates a 1918 assembly at which the union of Transylvania with Romania was declared. Transylvania had previously been under Hungarian control.

The police were also present during the demonstration. After a loud noise was heard, the police considered that there was a risk to the security of the reception and forced the demonstrators back to a park next to the hotel where, after a while, they dispersed.

The applicants sought a judicial review of the decision to disperse. The Hungarian courts held that the dispersal had been justified and necessary because the three-day time-limit for informing the police of a planned assembly applicable under Hungarian law had not been observed.

The ECtHR held:

[T]he legal basis for the dispersal of the applicants’ assembly lay exclusively in the lack of prior notice. The courts based their decision to declare the police measures lawful solely on that argument and did not take into account other aspects of the case, in particular, the peaceful nature of the event.…

[I]n the circumstances of the present case, the failure to inform the public sufficiently in advance of the Prime Minister’s intention to attend the reception left the applicants with the option of either foregoing their right to peaceful assembly altogether, or of exercising it in defiance of the administrative requirements.

In the Court’s view, in special circumstances when an immediate response, in the form of a demonstration, to a political event might be justified, a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly.

In this connection, the Court notes that there is no evidence to suggest that the applicants represented a danger to public order beyond the level of the minor disturbance which is inevitably caused by an assembly in a public place.…

Having regard to the foregoing considerations, the Court finds that the dispersal of the applicants’ peaceful assembly cannot be regarded as having been necessary in a democratic society in order to achieve the aims pursued.²⁸⁴ Bukta and Others v. Hungary, ECtHR, Judgment of 17 July 2007, paras. 34-38.

The ECtHR has however cautioned that the right to hold spontaneous demonstrations “may override the obligation to give prior notification to public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration.”²⁸⁵ Éva Molnár v. Hungary, ECtHR, Judgment of 7 October 2008, para. 38; see also Mehtiyev v. Azerbaijan,ECtHR, Judgment of 6 April 2017, para. 46.The Court has considered the pronouncement of a judgment by a court to be such a “special circumstance.”²⁸⁶Khalilova and Ayyubzade v. Azerbaijan, ECtHR, Judgment of 6 April 2017, para. 41.In Mehtiyev v. Azerbaijan, the Court considered that the death of a disabled war veteran who had set himself on fire as a protest against bureaucratic injustices was a “special circumstance”; however, the death of a soldier was not, since by the applicants’ admission, deaths in the army had already been a widespread problem for a longer time.²⁸⁷Mehtiyev v. Azerbaijan,ECtHR, Judgment of 6 April 2017, paras. 46-47.

It should be noted that even if an assembly is not exempt from the notice procedure, failure to give notice will not by itself justify the dispersal or other interferences by the authorities.

Once advance notification of an assembly is received, the authorities should promptly confirm receipt and provide clear reasons if they wish to impose any restrictions. In the words of the ECtHR:

[T]he authorities have wide discretion to choose the means of communication with the organisers… However… the Court considers that whatever the chosen method of communication, it should ensure that the organisers are informed of the authorities’ decision reasonably far in advance of the planned event, in such a way as to guarantee the right to freedom of assembly which is practical and effective, not theoretical or illusory. Indeed, if the organisers are not informed in timely fashion of the authorities’ approval or the proposal to change the location, time or manner of conduct of the planned event, the organisers may have insufficient time to announce to the participants the approved time and location of the event, and may even have to abandon it.²⁸⁸Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 457.

The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly recommend that, in the absence of a prompt reply from the authorities, the organizers should be permitted to proceed with the assembly as announced.²⁸⁹OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 120.

If an assembly is peaceful, the fact that it is unlawful under national legislation – for example, because a notice or authorization procedure has not been followed – does not in and of itself justify an interference with the right to assemble. The UN Special Rapporteur has stated:

Should the organizers fail to notify the authorities, the assembly should not be dissolved automatically … and the organizers should not be subject to criminal sanctions, or administrative sanctions resulting in fines or imprisonment.²⁹⁰UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 29.

Similarly, General Comment No. 37 explains:

A failure to notify the authorities of an upcoming assembly, where required, does not render the act of participation in the assembly unlawful, and must not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for imposing undue sanctions, such as charging the participants or organizers with criminal offences. Where administrative sanctions are imposed on organizers for failure to notify, this must be justified by the authorities. Lack of notification does not absolve the authorities from the obligation, within their abilities, to facilitate the assembly and to protect the participants.²⁹¹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 72.

Thus, in Adilkhanov v. Kazakhstan, the Human Rights Committee found that apprehending and imposing a fine on the organizer of an unauthorized gathering, without an explanation as to why these measures were necessary and proportionate to a legitimate aim, impermissibly interfered with the freedom of association²⁹² Adilkhanov v. Kazakhstan, Human Rights Committee, Views of 12 March 2020, UN DOc. CCPR/C/128/D/2686/2015, para. 9.9.

Likewise, in its Report on Protest and Human Rights, the IACHR observed, “the organizers’ failure to give prior notification to the authorities should not lead to the break-up of the gathering or to the imposition of criminal or administrative penalties such as fines or deprivation of liberty against the organizers, leaders, or their associations.”²⁹³Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 60.

The ECtHR has held as follows:

An unlawful situation, such as the staging of a demonstration without prior authorisation, does not necessarily justify an interference with a person’s right to freedom of assembly. While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public demonstrations, since they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself… The absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11.²⁹⁴Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, paras. 150-151 (references omitted).

Thus, in Navalnyy v. Russia, the ECtHR concluded that dispersal by the authorities of an unauthorized peaceful protest, which had caused a “certain disruption to ordinary life” that did not “in the concrete circumstances exceed that level of minor disturbance that follows from the normal exercise of the right of peaceful assembly in a public place,” constituted an unjustified interference with Article 11.²⁹⁵Navalnyy v. Russia, ECtHR, Judgment of 15 November 2018, paras. 130-133. The ECtHR noted that the authorities had failed to act “with due recognition of the privileged protection under the Convention of political speech, debate on questions of public interest and the peaceful manifestation on such matters.” Para. 133.  In Bodalev v. Russia, the ECtHR reiterated this finding and observed that this is “particularly so where … demonstrators did not engage in acts of violence.”²⁹⁶Bodalev v. Russia, ECtHR, Judgment of 6 September 2022, para. 83.

At the same time, the ECtHR has also cautioned that this principle “cannot be extended to the point that the absence of prior notification can never be a legitimate basis for crowd dispersal.”²⁹⁷Éva Molnár v. Hungary, ECtHR, Judgment of 7 October 2008, para. 37.

From international case-law, it appears that the following factors determine whether an interference with an assembly that has not been announced in advance violates freedom of assembly or not: (1) whether there is a risk to public order or another legitimate aim that cannot be managed; (2) whether the participants in the assembly are given an effective opportunity to manifest their views; (3) whether the authorities refrain from the use of unnecessary force or the imposition of disproportionate sanctions.

As discussed here, particular tolerance must be shown when an assembly is a spontaneous, immediate reaction to a recent event.

Only a genuine risk to public order or another legitimate aim can justify an interference

An interference with a non-notified assembly will only be justified if there is a genuine risk of harm to a legitimate aim, such as protection of public order.

According to the IACHR, the threat must be serious and imminent, and not future or generic:

[P]ublic demonstrations in which human rights defenders or other people are participating may only be restricted to prevent a serious and imminent threat from materializing, and a future, generic danger would be insufficient.²⁹⁸ IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 130.

The Human Rights Committee takes the same approach. In Praded v. Belarus, for example, the author of the communication had been arrested and fined for participating in a small and peaceful but unauthorized demonstration for gay rights in front of the Iranian Embassy in Minsk. The Committee failed to see what legitimate aim the measures taking against him pursued:

[W]hile imposing the restrictions to the right of freedom of peaceful assembly, the State party should be guided by the objective to facilitate the right, rather than seeking unnecessary or disproportionate limitations to it … [T]he State party has not attempted to explain why such restrictions were necessary and whether they were proportionate for one of the legitimate purposes set out in article 19, paragraph 3, and the second sentence of article 21 of the Covenant. Nor did the State party explain how, in practice, in the present case, the author’s participation in a peaceful demonstration in which only a few persons participated could have violated the rights and freedoms of others or posed a threat to the protection of public safety or public order, or of public health or morals.²⁹⁹ Praded v. Belarus, Human Rights Committee, Views of 29 November 2014, UN Doc. CCPR/C/112/D/2029/2011, paras. 7.8 – 7.9.

The ECtHR has stated, with regard to the response to a non-notified assembly, that, “what, if any, measures it calls for on the part of the police should primarily depend on the seriousness of the nuisance it [is] causing.”³⁰⁰Navalnyy v. Russia, ECtHR, Judgment of 2 February 2017, para. 49.Public order should not be invoked as a reason to disperse an assembly unless the authorities are acting on a genuine concern:

[I]n order to rely on the aim of “prevention of disorder”, it was incumbent on the respondent Government to demonstrate that either the applicants’ omission to notify the public event or their participation in such a non-notified event was, per se, capable of leading or actually led to disorder – for instance, in the form of public disturbance…³⁰¹Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para. 136.

Where possible, police should allow the assembly to proceed and take less intrusive measures, such as managing traffic or redirecting protestors. In Gafgaz Mammadov v. Azerbaijan, where a peaceful demonstration had been dispersed on the grounds that it was not authorized, the ECtHR held that there had been a violation of the right:

It has not been argued or demonstrated that it would have been difficult for the police to contain or redirect protestors, or control the situation otherwise, protect public safety and prevent any possible disorder or crime. Nor has it been shown … that the demonstration posed a high level of disruption of public order. It follows that the authorities have not adduced relevant and sufficient reasons justifying the dispersal of the demonstration.³⁰²Gafgaz Mammadov v. Azerbaijan, ECtHR, Judgment of 15 October 2015, para. 61.

A clear position in the jurisprudence of the ECtHR is that domestic authorities should not take an overly formalistic approach to breaches of the procedure for holding assemblies. The Court has criticized the rapid dispersal of an assembly which, while not formally notified to the authorities, was anticipated by the police as a result of intelligence reports, and could have been facilitated to minimize disruption to public order.³⁰³ Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, paras. 51-53. In another case, an inconsequential breach of the notification time-limit (eight days’ notice when 10 were required by law) did not justify imposing a fine.³⁰⁴Sergey Kuznetsov v. Russia, ECtHR, Judgment of 23 October 2008, para. 43.In Tahirova v. Azerbaijan, the Court considered disproportionate the forceful dispersal of a peaceful demonstration merely because it had continued somewhat beyond the time at which it was scheduled to end.³⁰⁵Tahirova v. Azerbaijan, ECtHR, Judgment of 3 October 2013, paras. 71-75.

Demonstrators should have a chance to convey their views before dispersal

The ECtHR has emphasized in a number of cases that, even where grounds for the dispersal of an assembly are present, the authorities should display an appropriate degree of patience and, as far as possible, allow the demonstrators an effective opportunity to convey their views before interfering.³⁰⁶Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 41; Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, para. 51; Eva Molnar v. Hungary, ECtHR, Judgement of 7 October 2008, paras. 42-43; Aytaş and Others v. Turkey, ECHR, Judgment of 8 December 2009, para. 31; Tahirova v. Azerbaijan, ECtHR, Judgment of 3 October 2013, para. 73.

In Oya Ataman v. Turkey [click for full case explanation], for example, the assembly had lasted only about 30 minutes before the authorities interfered, on the grounds that the demonstration was unlawful and would disrupt traffic at a busy time of day. The ECtHR stated it was “particularly struck by the authorities’ impatience in seeking to end the demonstration”, taking into account that the demonstration didn’t pose “a danger to public order, apart from possibly disrupting traffic.”³⁰⁷Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 41. See also Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, para. 51.

In Oya Ataman v. Turkey, the applicant had organized a demonstration of 40-50 persons in a central square in Istanbul, in the form of a march followed by a statement to the press, to protest against plans for “F-type” high-security prisons. The police promptly asked the group to disperse, as their failure to provide advance notice meant the gathering was unlawful and was likely to cause public-order problems at a busy time of day. After the demonstrators refused, the police used pepper spray and arrested 39 demonstrators, including the applicant. The ECtHR considered these actions disproportionate:

In the instant case … notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour…

However, there is no evidence to suggest that the group in question represented a danger to public order, apart from possibly disrupting traffic. There were at most fifty people, who wished to draw attention to a topical issue. The Court observes that the rally began at about 12 noon and ended with the group’s arrest within half an hour. It is particularly struck by the authorities’ impatience in seeking to end the demonstration … In the Court’s view, 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 Article 11 of the Convention is not to be deprived of all substance.

Accordingly, the Court considers that in the instant case the police’s forceful intervention was disproportionate.³⁰⁸Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, paras. 39-42.

By contrast, in Éva Molnár v. Hungary, the assembly had lasted for several hours before the authorities dispersed it, despite serious traffic disruption. The authorities had not been notified beforehand of the assembly and tried unsuccessfully to manage the flow of traffic. In this case, the ECtHR found that the domestic authorities had given a “sufficiently long time” to the demonstrators to make themselves heard.³⁰⁹Éva Molnár v. Hungary, ECtHR, Judgment of 7 October 2008, para. 43.

The demonstration at issue in Éva Molnár v. Hungary arose from elections that were held in Hungary in April 2002. International observers considered the elections to have been fair, but some in the country believed them to have been rigged. In July, a few weeks before the statutorily scheduled destruction of the ballots, several hundred demonstrators blocked a central bridge in Budapest with their cars to demand a recount. After the police dispersed this gathering, another demonstration broke out at Kossuth Square, which the applicant joined. Traffic and public transport, including the circulation of trams and trolleybuses, were seriously disrupted. The police initially attempted to allow the circulation of traffic to continue but eventually had to close some streets nearby. After a few hours, they broke up the demonstration without using any force. The applicant was not prosecuted but considered that the termination of the protest had violated her right to assemble. The ECtHR disagreed:

[T]he applicant had a sufficiently long time to show solidarity with her co-demonstrators … the ultimate interference with the applicant’s freedom of assembly does not appear to have been unreasonable. [The Court] is satisfied that the police showed the necessary tolerance towards the demonstration, although they had had no prior knowledge of the event, which, in the Court’s view, inevitably disrupted the circulation of the traffic and caused a certain disturbance to public order. In this respect, the instant case is different from others where the dispersal was quite prompt.³¹⁰Éva Molnár v. Hungary, ECtHR, Judgment of 7 October 2008, para. 43 (references omitted).

The authorities should refrain from unnecessary force or sanctions

Interferences with non-notified assemblies should always respect the three-pronged test, including the principles of necessity and proportionality. The ECtHR has stated:

The method used by the police for discouraging the protesters, containing them in a particular place or dispersing the demonstration is also an important factor in assessing the proportionality of the interference.³¹¹ Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 151.

The Court has repeatedly condemned the deployment of forceful means (including the use of pepper spray, tear gas, or truncheons) to disperse “unlawful” but peaceful assemblies that pose no threat other than possibly disrupting traffic.³¹²Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, paras. 41-43; Balçik and Others v. Turkey, ECtHR, Judgment of 29 November 2007, paras. 51-53; Aytaş and Others v. Turkey, ECHR, Judgment of 8 December 2009, paras. 31-33.

Separate from the question of dispersal is the question of whether the authorities may impose a sanction on organizers or participants after the fact. The UN Special Rapporteur has stated:

Should the organizers fail to notify the authorities, the assembly should not be dissolved automatically … and the organizers should not be subject to criminal sanctions, or administrative sanctions resulting in fines or imprisonment.³¹³UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 48.

In an amicus curiae brief regarding criminal sanctions imposed on the organizers of a non-notified gathering, the Special Rapporteur underlined that the exercise of the right to freedom of peaceful assembly should not be criminalized:

When no other punishable behaviour is involved, sanctioning the mere non-notification of a peaceful assembly means de facto that the exercise of the right to freedom of peaceful assembly is penalized … The use of definitions of crimes or penalties, including administrative fines, that essentially criminalise the exercise of the right to freedom of peaceful assembly or other activities otherwise protected under international human rights law, have no place in the State law of a democratic society.³¹⁴UN Special Rapporteur, amicus curiae brief before the High Court of South Africa, Western Cape Division, in Case No. A431/15, 31 March 2017, paras. 62-63.

The AComHPR’s Study Group on Freedom of Association and Assembly in Africa has also stated that “[i]n no case should assembly organizers be penalized or an assembly dispersed merely for failure to notify.”³¹⁵AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 75, para. 53. AComHPR, Guidelines on Freedom of Assembly and Association in Africa,  para. 71.

The ECtHR has taken apparently contradictory positions on the issue. It has on a number of occasions held that “[s]ince States have the right to require authorisation, they must be able to impose sanctions on those who participate in demonstrations that do not comply with such requirement.”³¹⁶Ziliberberg v. Moldova, ECtHR, Decision of 4 May 2004, para. 2. See also Skiba v. Poland, ECtHR, Decision of 7 July 2009; Rai and Evans v. the United Kingdom, ECtHR, Decision of 17 November 2009; Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 149.This appears at odds with its well-established and core principle that a participant in a peaceful assembly that has not been prohibited “cannot be subject to a sanction … so long as that person does not himself commit any reprehensible act on such an occasion.”³¹⁷Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, para. 149; see also Ezelin v. France, ECtHR, Judgment of 26 April 1991, para. 53; Galstyan v. Armenia, ECtHR, Judgment of 15 November 2007, para. 115.

The 2016 ruling in Novikova and Others v. Russia goes some way towards resolving the contradiction, at least for smaller assemblies. A number of the applicants in the case had been given administrative fines for holding demonstrations without prior notice to the public authorities. They claimed to have been conducting solo protests, which are exempt from the notice procedure under Russian law; the Government disputed this but conceded that no more than six persons had participated in any of the demonstrations. In its ruling, the ECtHR held that “aggravating elements” must be present before a penalty can be imposed for failure to give notice. The Court observed that under Russian law, “a conviction for lack of prior notification did not require proof of potential or actual damage.”³¹⁸Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para. 195.It considered that convicting the applicants merely for breaking the law – when their protests posed no credible risk – was not necessary for any legitimate aim:

[T]he Court cannot see what legitimate aim, in terms of Article 10 of the Convention, the authorities genuinely sought to achieve. It fails to discern sufficient reasons constituting a “pressing social need” for convicting for non-observance of the notification requirement … Indeed, no compelling consideration relating to public safety, prevention of disorder or protection of the rights of others was at stake. The only relevant consideration was the need to punish unlawful conduct. This is not a sufficient consideration in this context … in the absence of any aggravating elements.³¹⁹ Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para. 199.

The Court also warned that the high maximum fines applicable under Russian law are “conducive to creating a “chilling effect” on legitimate recourse to protests.”³²⁰Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para. 211.Previously, the Court had already insisted that any sanctions actually imposed must be proportionate.³²¹See, for example, Ziliberberg v. Moldova, ECtHR, Decision of 4 May 2004, para. 2; Hyde Park and Others v. Moldova (Nos. 5 and 6), ECtHR, Judgment of 14 September 2010, para. 47.In Hyde Park and Others v. Moldova (Nos. 5 and 6), for example, it considered that fines of 800 Moldovan lei (about US $63 at the time) for organizing an unauthorized demonstration were “disproportionate and thus were not necessary in a democratic society.”³²²Hyde Park and Others v. Moldova (Nos. 5 and 6), ECtHR, Judgment of 14 September 2010, para. 47.

The Human Rights Committee also emphasizes the need for any sanctions to be necessary and proportionate. In Praded v. Belarus, where the author of the communication had been fined for participating in a peaceful but unauthorized demonstration for gay rights in front of the Iranian Embassy in Minsk, the Committee stated:

The Committee observes that, while ensuring the security and safety of the embassy of the foreign State may be regarded as a legitimate purpose for restricting the right to peaceful assembly, the State party must justify why the apprehension of the author and imposition on him of an administrative fine were necessary and proportionate to that purpose.³²³Praded v. Belarus, Human Rights Committee, Views of 29 November 2014, UN Doc. CCPR/C/112/D/2029/2011, para. 7.9; see also Androsenko v. Belarus, Human Rights Committee, Views of 30 March 2016, UN Doc. CCPR/C/116/D/2092/2011, para. 7.6.

In Telibekov v. Kazakhstan, where the author of the communication had been arrested and detained for seven days for organizing an unauthorized gathering, the Human Rights Committee similarly concluded that “the State party did not demonstrate that the measures selected were the least intrusive in nature or proportionate to the interests it sought to protect.” ³²⁴Telibekov v. Kazakhstan, Human Rights Committee, Views of 15 June 2020, UN Doc. CCPR/C/128/D/2687/2015, para. 9.5.

If the authorities decide to place any restrictions on an assembly, they should inform the organizers promptly, and an expedited appeals procedure should be available before an independent and impartial body. The UN Special Rapporteur,³²⁵UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 42; UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 64.the UN Human Rights Committee’s General Comment No. 37,³²⁶UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 69. the IACHR,³²⁷IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 139; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 130.the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly³²⁸OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Recommendation 4.6 and Explanatory Notes, paras. 66 and 132-140. and the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa all make recommendations in this regard.

The Guidelines on Freedom of Association and Assembly in Africa state, for example:

89. Any conditions contemplated shall be communicated promptly in writing to the organizers of the event, along with an explanation of the rationale for the condition.
a. The law shall set out a clear procedure through which, prior to the imposition of such conditions, the authorities shall reach out to assembly organizers with their concerns in such a manner as to facilitate the sharing of information and the production of a mutually positive and agreed approach. Organizers shall not be compelled or coerced during this process.
Where time allows, a procedure of administrative review shall be available in cases of conflict.
b. Prompt recourse to an independent court shall be available to assembly organizers to challenge the decision of the authorities should they wish to do so.³²⁹AComHPR, Guidelines on Freedom of Association and Assembly in Africa, para. 89.

The UN Special Rapporteur underscores the importance that the authorities give clear and adequate reasons in writing for any restriction they impose, in order to enable the organizers of the assembly to appeal:

[W]henever authorities decide to restrict an assembly, they should provide assembly organizers, in writing, with “timely and fulsome reasons” which should satisfy the strict test of necessity and proportionality of the restrictions(s) imposed on the assembly pursuant to legitimate aims.³³⁰UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 48.

The ECtHR has held that organizers of assemblies must have access to an appeals procedure that is capable of reaching a decision prior to the date of the planned assembly. This also implies that the law should impose time-limits within which the administrative authorities must act. In Bączkowski and Others v. Poland, the applicants had been denied permission to stage a number of anti-discrimination assemblies in Warsaw, and had lodged appeals against these refusals. The appeals were eventually upheld, but only after the date of the assemblies had passed. The Court found that Poland had violated the right to an effective remedy under Article 13 ECHR:

[B]earing in mind that the timing of the rallies was crucial for their organisers and participants and that the organisers had given timely notice to the competent authorities, the Court considers that, in the circumstances, the notion of an effective remedy implied the possibility to obtain a ruling before the time of the planned events. …

Freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless.

The Court is therefore of the view that it is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act.³³¹ Bączkowski and Others v. Poland, ECtHR, Judgment of 3 May 2007, paras. 81-83. See also Alekseyev v. Russia, ECtHR, Judgment of 21 October 2010, para. 98; Genderdoc-M v. Moldova, ECtHR, Judgment of 12 June 2012, paras. 35-38.

The applicants in Bączkowski and Others v. Poland had sought permission from the Warsaw municipal authorities to organize a march and a series of meetings to alert public opinion to the issue of discrimination against minorities (sexual, national, ethnic, and religious) and against women and disabled persons. The authorities refused permission for the march and some of the meetings, citing traffic issues and the risk of clashes with participants in other demonstrations planned at the same time.

Shortly before the planned date of the assemblies, the Mayor of Warsaw said in a newspaper interview that he would ban any demonstration by the applicants as he was opposed to “public propaganda about homosexuality”, which, according to the applicants, revealed the real reasons for the refusal.

The applicants went ahead with their planned march despite the refusal. The municipal authorities’ decisions were subsequently quashed on appeal, but the applicants argued before the ECtHR that they had still suffered a disadvantage as this decision had come only after the event.

The ECtHR found that there had been a violation of the right to freedom of peaceful assembly, and in coming to this conclusion it stated:

The Court acknowledges that the assemblies were eventually held on the planned dates. However, the applicants took a risk in holding them given the official ban in force at that time. The 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 authorisation could have had a chilling effect on the applicants and other participants in the assemblies. It could also have discouraged other persons from participating in the assemblies on the grounds that they did not have official authorisation and that, therefore, no official protection against possible hostile counter‑demonstrators would be ensured by the authorities.³³²Bączkowski and Others v. Poland, ECtHR, Judgment of 3 May 2007, para. 67.

Moreover, there had been a violation of the right to an effective remedy:

Further, the Court accepts that the administrative authorities ultimately acknowledged that the first‑instance decisions given in the applicants’ case had been given in breach of the applicable laws. However, the Court emphasises that they did so after the dates on which the applicants planned to hold the demonstrations. … [B]earing in mind that the timing of the rallies was crucial for their organisers and participants and that the organisers had given timely notice to the competent authorities, the Court considers that, in the circumstances, the notion of an effective remedy implied the possibility to obtain a ruling before the time of the planned events ….

If a public assembly is organised after a given social issue loses its relevance or importance in a current social or political debate, the impact of the meeting may be seriously diminished. Freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless.

The Court is therefore of the view that it is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act.³³³Bączkowski and Others v. Poland, ECtHR, Judgment of 3 May 2007, paras. 81-83. See also Alekseyev v. Russia, ECtHR, Judgment of 21 October 2010, para. 98; Genderdoc-M v. Moldova, ECtHR, Judgment of 12 June 2012, paras. 35-38.

In Lashmankin and Others v. Russia, the ECtHR added two important conditions which an appeals process against a restriction placed on an assembly must meet. Firstly, the body hearing the appeal must examine not only whether the restriction imposed is prescribed by law, but also whether it meets requirements of necessity and proportionality. Secondly, the decision should not just be issued, but actually be enforceable before the date of the planned assembly:

[T]he Court considers that the applicants did not have at their disposal an effective remedy which would allow an enforceable judicial decision to be obtained on the authorities’ refusal to approve the location, time or manner of conduct of a public event before its planned date. Moreover, the scope of judicial review was limited to examining the lawfulness of the proposal to change the location, time or manner of conduct of a public event, and did not include any assessment of its “necessity” and “proportionality” …

There has therefore been a violation of Article 13 of the Convention in conjunction with Article 11 of the Convention.³³⁴Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, paras. 360-61.

If multiple groups wish to assemble in the same place at the same time for separate demonstrations, the authorities should as far as possible take steps to facilitate this. The UN Special Rapporteur has stated:

In the case of simultaneous assemblies at the same place and time, the Special Rapporteur considers it good practice to allow, protect and facilitate all events, whenever possible.³³⁵UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 30; see also UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 24.

This view is echoed in the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,³³⁶ OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 4.3 and Explanatory Notes, para. 122.the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa,³³⁷AcomHPR, Guidelines on Freedom of Assembly and Association in Africa, para. 97. See also AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 65, para. 36.and the IACHR’s Report on Protest and Human Rights.³³⁸Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 77.

In Lashmankin and Others v. Russia, the ECtHR held that the Russian authorities’ practice of automatically proposing to change the location of a planned assembly if it coincided with another gathering was impermissible. A change of venue may only be proposed if there are genuine reasons that both events cannot be accommodated simultaneously:

The Court considers that the refusal to approve the venue of a public assembly solely on the basis that it is due to take place at the same time and at the same location as another public event and in the absence of a clear and objective indication that both events cannot be managed in an appropriate manner through the exercise of policing powers, is a disproportionate interference with the freedom of assembly.³³⁹Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 42. See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.

The OSCE-ODIHR Guidelines suggest that, if it is genuinely impossible to hold both events at the same time, the parties should be encouraged to find a mutually satisfactory resolution. If that fails, a non-discriminatory method should be found to allocate the events to different locations, such as drawing lots. The Guidelines caution that while a “first come, first served” rule may be legitimate, it can be abused by submitting an early notice of an assembly to thwart another planned event.³⁴⁰OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 122.

The duty of the authorities to enable simultaneous assemblies takes on particular importance where participants in one assembly are protesting against the other one. This follows from the principle that demonstrators have a right to assemble within sight and sound of their target audience.

At the same time, the authorities are also under an obligation to ensure that the counter-demonstration does not have the effect of inhibiting the right to demonstrate. The UN Special Rapporteur emphasizes the important role of law enforcement in this regard:

In the case of counter-demonstrations, which aim at expressing discontent with the message of other assemblies, such demonstrations should take place, but should not dissuade participants of the other assemblies from exercising their right to freedom of peaceful assembly. In this respect, the role of law enforcement authorities in protecting and facilitating the events is crucial.³⁴¹UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27,21 May 2012, para.30; See also UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, paras. 24-25.

Similar language can be found in the UN Human Rights Committee’s General Comment No. 37,³⁴² UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 26.OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,³⁴³OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 4.4 and Explanatory Notes, paras. 123-124.the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa,³⁴⁴AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para. 97. See also AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 65, para. 36.and the IACHR’s Report on Protest and Human Rights.³⁴⁵Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), paras. 77-78.

In the case of Plattform “Ärzte für das Leben” v. Austria [click for full case explanation], the ECtHR stressed that freedom of peaceful assembly includes the right to voice an opinion that others find annoying or offensive. The authorities are under a positive obligation to protect participants in an assembly against physical violence by opponents:

A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11) … Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.³⁴⁶ Plattform “Ärzte für das Leben” v. Austria, ECtHR, Judgment of 21 June 1988, para. 32.

The applicant in the case Plattform “Ärzte für das Leben” v. Austria was an association of doctors opposed to abortion. In 1980 and 1982 it held two demonstrations in Austria which were disrupted by counter-demonstrators, despite the presence of a large contingent of police. The first demonstration consisted of a religious service in a church followed by a further ceremony at an altar on a hillside. Counter-demonstrators disrupted the march to the hillside by mingling with the marchers and shouting down their prayers; subsequently, they interrupted the service at the altar by using loudspeakers and throwing eggs and clumps of grass. Special riot-control units placed themselves between the opposing groups when tempers had risen to the point where violence threatened to break out. The second demonstration took place in the cathedral square in Salzburg. One hundred policemen were sent to the scene to separate the participants from their opponents and avert the danger of direct attacks; they eventually cleared the square so as to prevent any disturbance of the doctors’ religious service.

The ECtHR held that freedom of peaceful assembly imposes a duty on the State to take positive measures to ensure that participants are able to hold a demonstration without having to fear that they will be subjected to physical violence by their opponents. However, the Court also added that the authorities have wide discretion to choose the appropriate measures and that their obligation is one of effort, not result:

While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 (art. 11) of the Convention is an obligation as to measures to be taken and not as to results to be achieved.³⁴⁷Plattform “Ärzte für das Leben” v. Austria, ECtHR, Judgment of 21 June 1988, para. 34 (references omitted).

In the instant case, the Court found that although there had been some incidents, the Austrian police had overall taken reasonable and appropriate measures and managed to ensure that the applicants’ assemblies were able to proceed to their conclusion. There was accordingly no violation of the right to freedom of peaceful assembly.³⁴⁸Plattform “Ärzte für das Leben” v. Austria, ECtHR, Judgment of 21 June 1988, paras. 35-39.

The fact that a demonstration may attract a violent counter-demonstration is no ground to ban or move it. Nor may the counter-demonstration be banned merely because of fear – even a justified one – of a violent confrontation. Wherever possible, the authorities must take adequate preventive measures, and “in the exceptional case where the State is manifestly unable to protect the participants from a severe threat to their safety,” restrictions imposed “must be able to withstand strict scrutiny.”³⁴⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 52.

In Fáber v. Hungary, the ECtHR stated:

In the exercise of the State’s margin of appreciation, past violence at similar events and the impact of a counter-demonstration on the targeted demonstration are relevant considerations for the authorities, in so far as the danger of violent confrontation between the two groups – a general problem of public order – is concerned. Experience with past disorders is less relevant where the situation, as in the present case, allows the authorities to take preventive measures, such as police presence keeping the two assemblies apart and offering a sufficient degree of protection, even if there was a history of violence at similar events necessitating police intervention.³⁵⁰ Fáber v. Hungary, ECtHR, Judgment of 24 July 2012, para. 44 (references omitted).

Where there is a known history of public hostility towards a minority group that has announced an intention to stage an assembly, the duty of the authorities goes beyond deploying sufficient police resources; they should use all available means to advocate tolerance, such as through public statements and warnings to potential law-breakers. In Identoba and Others v. Georgia, for example, the applicants, members of the lesbian, gay, bisexual, and transgender (LGBT) community in Georgia, had been insulted, threatened and assaulted by a larger group of counter-demonstrators during a peaceful demonstration to mark the International Day against Homophobia. Rather than restraining the most aggressive counter-demonstrators, the police had briefly detained some of the applicants, allegedly for their own protection. The ECtHR found a violation of the rights to freedom of assembly and to freedom from discrimination. It stated:

[G]iven the attitudes in parts of Georgian society towards the sexual minorities, the authorities knew or should have known of the risk of tensions associated with the applicant organisation’s street march … They were thus under an obligation to use any means possible, for instance by making public statements in advance of the demonstration to advocate, without any ambiguity, a tolerant, conciliatory stance as well as to warn potential law-breakers of the nature of possible sanctions. Furthermore, it was apparent from the outcome of the LGBT procession, that the number of police patrol officers dispatched to the scene of the demonstration was not sufficient, and it would have been only prudent if the domestic authorities, given the likelihood of street clashes, had ensured more police manpower by mobilising, for instance, a squad of anti-riot police.³⁵¹Identoba and Others v. Georgia, ECtHR, Judgment of 12 May 2015, para. 99; see also  Ouranio Toxo and Others v. Greece, ECtHR, Judgment of 20 October 2005, paras. 42-43 and Women’s Initiatives and Others v. Georgia, ECtHR, Judgment of 16 December 2021, para. 83.

Similarly, in its Report on Protest and Human Rights, the IACHR observed:

When weighing the need to restrict a counter-demonstration, States should take into account the specific protection to be accorded to socially excluded sectors or groups in vulnerable situations. Demonstrators belonging to minorities, groups that are discriminated against, or in situations of vulnerability should be especially protected from groups that seek to threaten or intimidate them for exercising their rights.³⁵²Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 79.

States have an obligation to facilitate peaceful assemblies.³⁵³UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, paras. 37-49; UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27,21 May 2012, paras. 26-28;  Praded v. Belarus, Human Rights Committee, Views of 29 November 2014, UN Doc. CCPR/C/112/D/2029/2011, para. 7.8; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), paras. 95 & 97.This means, at a basic level, that those exercising the right must have access to public space and must be protected, for example when they are confronted with a violent counter-demonstration or if persons with violent intentions or agents provocateurs join the assembly. The UN Human Rights Council urges States to:

facilitate peaceful protests by providing protestors with access to public space and protecting them, without discrimination, where necessary, against any form of threat and harassment, and underlines the role of local authorities in this regard.³⁵⁴UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 4.

Furthermore, the State must provide a number of basic and free services, as identified in the Joint report on the proper management of assemblies:

The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.³⁵⁵UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 40.

Similarly, the Human Rights Committee has noted that “the requirements for participants or organizers either to arrange for or contribute to the costs of policing, security, medical assistance, cleaning or other public services associated with peaceful assemblies are generally not compatible with [ICCPR] article 21.”³⁵⁶Belsky v. Belarus, Human Rights Committee, Views of 24 March 2022, UN Doc. CCPR/C/134/D/2755/2016, para. 7.4 (citing UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 72).

The IACHR has emphasized the importance of operating plans, including traffic management measures:

the competent institutions of the state have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area.³⁵⁷ IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc 57, 31 December 2009,para. 193.

The ECtHR has similarly recognized an obligation for the authorities to take

necessary measures in order to minimise any disruption to traffic or other security measures such as providing first-aid services at the site of the demonstrations, in order to guarantee the smooth conduct of the events.³⁵⁸ Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016, para 171; see also Oya Ataman v. Turkey, ECtHR, Judgment of 5 December 2006, para. 39.

And General Comment No. 37 explains:

States parties have certain positive duties to facilitate peaceful assemblies and to make it possible for participants to achieve their objectives. States must thus promote an enabling environment for the exercise of the right of peaceful assembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively. Specific measures may sometimes be required on the part of the authorities. For example, they may need to block off streets, redirect traffic or provide security. Where needed, States must also protect participants against possible abuse by nonState actors, such as interference or violence by other members of the public, counterdemonstrators and private security providers.³⁵⁹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 24.

More generally, the duty to facilitate implies a wide range of actions on the part of the authorities to ensure they are able to ensure the safe and effective conduct of the right to assemble. This includes the training of law enforcement personnel, effective communication with organizers and participants, and proper preparedness for assemblies.

The duty to facilitate assemblies applies also to assemblies that have not been formally notified to the authorities, including spontaneous assemblies. The IACHR has stated, for example:

In those states in which notification or prior notice is called for one must recall that this does not mean that the states only have the positive obligation to facilitate and protect those assemblies notice of which is given.³⁶⁰IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 67.

Further, the duty to facilitate assembly rights applies not only when an assembly is ongoing. State authorities must also protect activities such as “participants’ or organizers’ mobilization of resources; planning; dissemination of information about an upcoming event; preparation for and travelling to the event; communication between participants leading up to and during the assembly; broadcasting of or from the assembly; and leaving the assembly afterwards.”³⁶¹UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 33 (citing Tulzhenkova v. Belarus, UN Human Rights Committee, Views of 26 October 2011, UN Doc. CCPR/C/103/D/1839/2008, para. 9.3 and Evrezov et al. v. Belarus, UN Human Rights Committee, Views of 10 October 2014, UN Doc. CCPR/C/112/D/1999/2010, para. 8.5).

The OSCE-ODIHR has published a detailed Human Rights Handbook on Policing Assemblies that aims to provide guidance to the police on how to facilitate the right to assemble peacefully. Another in-depth resource in this area is the AComHPR’s Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.

The Joint report on the proper management of assemblies urges States to refrain from undue stop-and-search operations or arrests of persons on their way to an assembly:

Intrusive anticipatory measures should not be used in an assembly. Participants on their way to an assembly should not be stopped, searched or arrested unless there is a clear and present danger of imminent violence.³⁶²UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 49.

General Comment No. 37 similarly stresses:

Powers of “stop and search” or “stop and frisk”, applied to those who participate in assemblies, or are about to do so, must be exercised based on reasonable suspicion of the commission or threat of a serious offence, and must not be used in a discriminatory manner. The mere fact that authorities associate an individual with a peaceful assembly does not constitute reasonable grounds for stopping and searching them.³⁶³UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 83.

This view finds support in the case-law of the ECtHR.

In Gillan and Quinton v. the United Kingdom, the Court emphasized that the law should limit the discretion of individual police officers to conduct searches, including of prospective participants in demonstrations. The applicants – one of them a journalist, the other a protestor – had been on their way to a demonstration against an arms fair in London when they were stopped and searched. The ECtHR criticized the fact that the applicable legislation did not require “any assessment of the proportionality of the measure” and that the police could conduct searches “based exclusively on the “hunch” or “professional intuition” of the officer concerned.”³⁶⁴Gillan and Quinton v. the United Kingdom, ECtHR, Judgment of 12 January 2010, paras. 80-83.Accordingly, there had been a violation of the right to respect for private life. The Court warned that the legislation could also enable violations of the right to freedom of assembly:

[T]here is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer … There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.³⁶⁵Gillan and Quinton v. the United Kingdom, ECtHR, Judgment of 12 January 2010, para. 85.

The ECtHR has also frequently condemned arrests or other hindrances caused by the authorities that prevented participants from reaching an assembly and lacked a clear justification.³⁶⁶ See, for example, Djavit An v. Turkey, ECtHR, Judgment of 20 February 2003 (the applicant was prevented by Turkish and Turkish-Cypriot authorities from visiting the “buffer-zone” or the southern part of the island in order to participate in bi-communal meetings with Greek Cypriots); Schwabe and M.G. v. Germany, ECtHR, Judgment of 1 December 2011 (the applicants were detained on their way to a demonstration where the police feared terrorism or rioting, because they were carrying banners bearing the inscriptions “Freedom for all prisoners” and “Free all now” and held for almost six days in order to prevent them from inciting others to liberate prisoners); Huseynli and Others v. Azerbaijan, ECtHR, Judgment of 11 February 2016 (the applicants were arrested two days prior to a demonstration and rapidly sentenced to seven days’ administrative detention on arbitrary grounds, in order to prevent their participation in the demonstration and to punish them for having participated in opposition protests); Eğitim ve Bilim Emekçileri Sendikası v. Turkey, ECtHR, Judgment of 5 July 2016 (the applicants were stopped on a highway on their way to a demonstration for free and quality education and held there for several hours); Kasparov v. Russia, ECtHR, Judgment of 11 October 2016 (the applicant’s flight ticket was seized for “forensic examination”, preventing him from reaching an opposition rally).A “refusal to allow an individual to travel for the purpose of attending a meeting amounts to an interference with individual’s freedom of assembly,”³⁶⁷Kasparov v. Russia, ECtHR, Judgment of 11 October 2016, para. 66.which must be justified under the three-prong test. The Court has held that the authorities may not prevent participants from reaching an assembly merely because the assembly is considered unlawful due to the absence of prior notice or authorization.³⁶⁸ Eğitim ve Bilim Emekçileri Sendikası v. Turkey, ECtHR, Judgment of 5 July 2016, paras. 106-109.

An individual whose intentions and actions are peaceful does not lose the right to assemble when others turn violent. The ECtHR has held:

[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.³⁶⁹ Ziliberberg v. Moldova, ECtHR, Decision of 4 May 2004, para. 2; Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 99; Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 155.

It follows that the law-enforcement officials facilitating an assembly must, as far as possible, enable the peaceful participants in an assembly to continue to exercise their rights. They must be prepared and trained to remove individual participants or infiltrators (sometimes referred to as ‘agents provocateurs’) with violent intentions, rather than prohibiting or dispersing the assembly.³⁷⁰See UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 70; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 85; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 46; AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para.  94; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 26, para. 24.The joint report on the proper management of assemblies states:

Before countenancing dispersal, law enforcement agencies should seek to identify and isolate any violent individuals separately from the main assembly and differentiate between violent individuals in an assembly and others. This may allow the assembly to continue.³⁷¹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 63; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.4;  OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2^nd edn, 2010, Explanatory Notes, para. 168.

OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly express the same view:

Dispersal should not … result where a small number of participants in an assembly act in a violent manner. In such instances, action should be taken against those particular individuals. Similarly, if agents provocateurs infiltrate an otherwise peaceful assembly, the authorities should take appropriate action to remove the agents provocateurs rather than terminating or dispersing the assembly or declaring it to be unlawful.³⁷² OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 154.

The AComHPR has also taken a similar line.³⁷³AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para. 94;  AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.3.

In Frumkin v. Russia, the ECtHR criticized Russian authorities for dispersing an assembly in its entirety rather than trying to isolate one sector that had become turbulent:

The authorities have not shown that prior to declaring the whole meeting closed they had attempted to separate the turbulent sector and target the problems there, so as to enable the meeting to continue in the sector of the stage where the situation remained peaceful. The Court is therefore not convinced that the termination of the meeting … was inevitable.³⁷⁴Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 133.

Dispersal should be resorted to only when strictly unavoidable

The dispersal of assemblies carries a significant risk of escalation and human rights violations. For these reasons, the joint report on the proper management of assemblies urges a high level of restraint in resorting to dispersal:

Dispersing an assembly carries the risk of violating the rights to freedom of expression and to peaceful assembly as well as the right to bodily integrity. Dispersing an assembly also risks escalating tensions between participants and law enforcement. For these reasons, it must be resorted to only when strictly unavoidable.³⁷⁵UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 61.

The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly also warn that the use of dispersal powers often creates more law-enforcement problems than it solves and undermines police-community relationships. They point out that police have options in between non-intervention and dispersal, such as post-event prosecution for violations of the law.³⁷⁶OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 155-156.For the AComHPR, dispersal should be “a measure of last resort”.³⁷⁷AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.1; AComHPR, Guidelines on Freedom of Assembly and Association in Africa, para. 94; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 65, para. 39.It should be used only when de-escalation and containment strategies and targeted arrests of violent individuals have failed:

Where participants in an assembly are acting non-peacefully or in violation of the law, law enforcement officials should use, to the extent possible, communication and de-escalation strategies and measures for the containment of individuals committing or threatening violence or, if necessary and proportionate, the arrest of individuals who are committing or preparing to commit violent acts, before attempting to disperse an assembly.³⁷⁸AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.3.

In what circumstances may dispersal be considered?

The IACHR holds that “breaking up a demonstration can only be justified by the duty to protect persons.”³⁷⁹IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 81.The joint report on the proper management of assemblies states that dispersal of an assembly marred by violence may be considered only

where violence is serious and widespread and represents an imminent threat to bodily safety or property, and where law enforcement officials have taken all reasonable measures to facilitate the assembly and protect participants from harm.³⁸⁰UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60;  UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 88; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.6; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.

The AComHPR takes a similar line,³⁸¹AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.5.as does the ECtHR³⁸²Navalnyy v. Russia, ECtHR, Judgment of 15 November 2018, paras. 45, 137 (“An interference with freedom of assembly in the form of the disruption, dispersal or arrest of participants in a given event may only be justifiable on specific and averred substantive grounds, such as serious risks referred to in paragraph 1 of section 16 of the Public Events Act,” i.e., “’the emergence of a genuine threat to citizens’ lives or health, and to the possessions of physical or legal persons.’”).and the UN Human Rights Committee.An important principle is that the authorities should seek to identify and isolate any violent individuals before contemplating dispersal.

Assemblies that remain peaceful may only be dispersed in exceptional cases. The following circumstances do not, by themselves, justify dispersal:

The fact that the organizers have failed to notify the authorities of the assembly in advance, even where this is required by domestic law;
The fact that the assembly is causing disruption to traffic. This must normally be tolerated, and will only justify dispersal in exceptional cases.
The presence of persons perceived to be a risk. As the ECtHR has stated, “it would be wrong to disperse a demonstration simply because some of its participants have a history of violent behaviour.”³⁸⁴Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 152.

In those rare cases where dispersal is in principle warranted, demonstrators should normally be given a chance to convey their views before the authorities break up the assembly.

The joint report recognizes that an assembly that incites discrimination, hostility, or violence contrary to Article 20 ICCPR may warrant dispersal if less intrusive and discriminatory measures have failed.³⁸⁵UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 39.In R.B. v. Hungary – a case where the applicant, who was of Roma origin, had faced racist insults and been threatened with an ax by participants in a far-right rally – the ECtHR also recognized that “in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration.”³⁸⁶R.B. v. Hungary, ECtHR, Judgment of 12 April 2016, para. 99 See also Király and Dömötör v. Hungary, ECtHR, Judgment of 17 January 2017, para. 64.

How should dispersal be handled?

According to the joint report on the proper management of assemblies³⁸⁷ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 61.and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,³⁸⁸ OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 165.the steps to be taken before dispersal should be laid down in comprehensive, publicly available guidelines.

The decision to disperse should be taken by an officer of sufficient rank, who has accurate information about the situation unfolding on the ground.³⁸⁹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 63; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.5.In line with the duty of the authorities to communicate effectively with organizers and participants, the first step will always be to clearly inform those present of the intention to disperse the assembly and to give participants time to leave voluntarily before taking any further action.³⁹⁰ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 63; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.4;  OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 168.

Mass arrests during dispersal should be avoided.³⁹¹ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 45; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 23.3;  OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 161.The IACtHR has underlined that substantiated evidence of the commission of a crime is needed to justify an arrest:

[A] massive and programmed arrest of people without legal grounds, in which the State massively arrests people that the authority considers may represent a risk or danger to the security of others, without substantiated evidence of the commission of a crime, constitutes an illegal and arbitrary arrest³⁹²Servellón García et al. v. Honduras, IACtHR, Judgment of September 21, 2006, para. 93.

The use of force to disperse an assembly should always comply strictly with the principles applicable to the use of force. In line with the necessity and proportionality principle, force should only be used if there is no alternative and should be limited to the minimum needed.³⁹³UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 86. In particular, in Süleyman Çelebi and Others v. Turkey, the ECtHR found a violation of Article 11 where tear gas was used to disperse participants in a peaceful demonstration.³⁹⁴ Süleyman Çelebi and Others v. Turkey (no. 2), ECtHR, Judgment of 12 December 2017, paras. 48-56.

The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.³⁹⁵Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 13.

The AComHPR states in a similar vein:

If assembly participants are generally behaving peacefully, law enforcement officials must avoid the use of force to disperse the assembly. Where force is deemed to be a lawful and proportionate response, law enforcement officials must only use the minimum level of force necessary.³⁹⁶AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.2.

The need to disperse an assembly will never justify the use of lethal force. The UN Human Rights Council has called on States to ensure, as a priority, that their laws and procedures give effect to the principle that “lethal force may only be used to protect against an imminent threat to life and that it may not be used merely to disperse a gathering.”³⁹⁷ UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 10.The IACHR has echoed this, stating:

One derives from the general principles on the use of force that there are no situations authorizing the use of lethal force to break up a protest or demonstration, or to shoot indiscriminately into the multitude. The states should implement mechanisms for effectively prohibiting recourse to the use of lethal force in public demonstrations³⁹⁸ IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 81.

The use of firearms for law enforcement during assemblies is subject to specific rules. A core principle is that firearms may never be used simply to control or disperse an assembly.³⁹⁹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60;  UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 88; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.6; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.

The right to record continues to apply during the dispersal of an assembly. According to the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,

Third parties (such as monitors, journalists and photographers) may also be asked to disperse, but they should not be prevented from observing and recording the policing operation.⁴⁰⁰OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 168.

The AComHPR takes a similar view.⁴⁰¹ AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.7.

International mechanisms widely stress the importance of open dialogue between the authorities and organizers and participants in assemblies, as a means to avoid or defuse tension and prevent escalation. The UN Human Rights Council has for example underlined “the important role that communication between protestors, local authorities and officials exercising law enforcement duties can play in the proper management of assemblies,”⁴⁰²UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 5.while the joint report on the proper management of assemblies affirms that:

Law enforcement agencies and officials should take all reasonable steps to communicate with assembly organizers and/or participants regarding the policing operation and any safety or security measures.⁴⁰³ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 38.

The report adds that communication must be entirely voluntary and not a means to impose on organizers an obligation to negotiate about restrictions on the assembly.⁴⁰⁴ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 39.

The IACHR recommends the

Promotion of opportunities for communication prior to demonstrations and of the activities of liaison officers to coordinate with demonstrators concerning … law enforcement operations, in order to avoid conflict situations.⁴⁰⁵ IACHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124 Doc. 5 Rev. 1, 7 March 2006, para. 68.

The AComHPR also emphasizes the need for “continuous dialogue and negotiation … to proactively address any issues that may arise during the conduct of an assembly”.⁴⁰⁶ AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 13.1.Like the IACHR, it suggests appointing communications liaisons:

Law enforcement officials should maintain open communication with all relevant stakeholders, including assembly organisers and participants, other essential services providers and stewards. Law enforcement officials must proactively and continually communicate the intention of the assembly operation, any limitations or restrictions imposed on the assembly and contingency planning in place with stakeholders, and should consider the appointment of a specially trained communication liaison as a focal point for communication with stakeholders.⁴⁰⁷ AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 13.2.

The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly contain language to similar effect and state that police operations should be characterized by a policy of “no surprises”.⁴⁰⁸OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 149-150.They also recommend the use of negotiation or dialogue to attempt to resolve any stand-off during an assembly:

If a stand-off or other dispute arises during the course of an assembly, negotiation or mediated dialogue may be an appropriate means of trying to reach an acceptable resolution. Such dialogue – although not always successful – can serve as a preventive tool to help avoid the escalation of conflict, the imposition of arbitrary or unnecessary restrictions, or recourse to the use of force.⁴⁰⁹OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 5.4.

And General Comment No. 37 states:

Relevant law enforcement agencies should as far as possible work towards establishing channels for communication and dialogue between the various parties involved in assemblies, before and during the assembly, aimed at promoting preparedness, deescalating tensions and resolving disputes. While it is good practice for organizers and participants to engage in such contact, they cannot be required to do so.⁴¹⁰UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 75.

The authorities’ duty to communicate with the organizers of an assembly is also confirmed by international jurisprudence. According to the ECtHR, it is “an essential part of their positive obligation to ensure the peaceful conduct of the assembly.⁴¹¹ Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 129.The case of Frumkin v. Russia concerned a rally against alleged electoral fraud that descended into a standoff after riot police barred access to a park that the demonstrators had expected to be able to use. The Court found that the authorities’ failure to communicate effectively with the leaders of the demonstration amounted to a violation of the right to freedom of peaceful assembly:

[I]n the present case the authorities made insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of the conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly … The Court considers that from any point of view the authorities in this case did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.⁴¹²Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, paras. 128-129.

The applicant in Frumkin v. Russia had participated in a demonstration at Bolotnaya Square in Moscow against alleged “abuses and falsifications” in parliamentary and presidential elections held in 2011 and 2012. The route and conduct of the assembly had been agreed beforehand between the organizers and the authorities, after substantial discussions. The Moscow Department of the Interior had published information about the forthcoming demonstration on its website, including a map indicating the area allotted to the assembly, which included the park at Bolotnaya Square.

When the march approached the square, however, the leaders found that a cordon of riot police barred access to the park and the meeting venue was limited to Bolotnaya embankment, where the organizers had set up a stage. The leaders of the march then demanded that the police open access to the park, and announced a “sit-down strike”, which was joined by between twenty and fifty people. At the request of the police, the Ombudsman of the Russian Federation attempted to convince the leaders of the sit-in to resume the procession, but no senior police officers or municipal officials came to the site, and there was no direct communication between the authorities and the leaders of the sit-in.

Although the leaders eventually abandoned the sit-in, some commotion later arose at the same site, with members of the crowd tossing various objects at the police cordon, including a Molotov cocktail. Riot police then began to disperse the demonstration and arrested some participants, including the applicant.

Before the ECtHR, the Russian Government explained that the assembly venue had been limited to the embankment out of a concern that opposition activists were plotting a popular uprising, and as part of this were planning to erect a protest camp in the park of Bolotnaya Square. The Court recognized the possible legitimacy of the authorities’ concerns, but stressed the crucial need to communicate their position openly:

The fact that the police were exercising caution against the park being taken over by a campsite … might have justified the refusal to allow access to the park, given that in any event the assembly had sufficient space for a meeting. Crucially, whatever course of action the police deemed correct, they had to engage with the sit-in leaders in order to communicate their position openly, clearly and promptly.⁴¹³Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 118.

Although the police had contacted the protest leaders through an intermediary, the Ombudsman, no attempt had been made beforehand to arrange a channel of communication, and no effort was made on the spot to communicate with them directly. The Court considered this a striking omission:

In the Court’s view, the controversy about the placement of the police cordon could reasonably have been dealt with had the competent officials been prepared to come forward in order to communicate with the assembly organisers…

The Court’s findings … lead to the conclusion that the police authorities had not provided for a reliable channel of communication with the organisers before the assembly. This omission is striking, given the general thoroughness of the security preparations … Furthermore, the authorities failed to respond to the real-time developments in a constructive manner … no official took any interest in talking to the march leaders showing signs of distress in front of the police cordon…

In the light of the foregoing, the Court finds that in the present case the authorities made insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of the conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly.⁴¹⁴ Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, paras. 126-128.

The Court concluded that these failures amounted to a violation of the right to freedom of peaceful assembly:

The Court considers that from any point of view the authorities in this case did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.

The authorities have thus failed to discharge their positive obligation in respect of the conduct of the assembly at Bolotnaya Square. There has accordingly been a violation of Article 11 of the Convention on that account.⁴¹⁵Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, paras. 129-130.

The proper management of assemblies can place high demands on the officers to whom it is entrusted. The joint report on the proper management of assemblies stresses the importance of adequate training of law enforcement officials to prepare them for the facilitation of assemblies.⁴¹⁶UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 42.

General Comment No. 37 emphasizes:

Only law enforcement officials trained in the policing of assemblies, including on the relevant human rights standards, should be deployed for that purpose. Training should sensitize officials to the specific needs of individuals or groups in situations of vulnerability, which may in some cases include women, children and persons with disabilities, when participating in peaceful assemblies. The military should not be used to police assemblies, but if in exceptional circumstances and on a temporary basis they are deployed in support, they must have received appropriate human rights training and must comply with the same international rules and standards as law enforcement officials.⁴¹⁷UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 80.

The ECtHR, too, considers that full respect for freedom of peaceful assembly requires that “a system be in place that guarantees adequate training of law enforcement personnel and control and supervision of that personnel during demonstrations.”⁴¹⁸ İzci v. Turkey, ECtHR, Judgment of 23 July 2013, para. 99.The Court has not defined the subjects such training should cover, except in one area. It has stated that training must ensure firearms are used only in cases of absolute necessity:

[L]aw-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value.⁴¹⁹Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 250.

The IACtHR has ruled to a similar effect:

An appropriate legislation would not fulfill its goal if, inter alia, States would not educate and train members of their armed forces and security agencies on principles and rules of human rights protection and on the limits to which the use of weapons by law enforcement officials must be subject to in all circumstances.⁴²⁰Zambrano Vélez et al. v. Ecuador, IACtHR, Judgment of July 4, 2007 (Merits, Reparations and Costs), para. 87.

Further guidance on the content that training of law-enforcement personnel should receive has been provided by the UN Special Rapporteur together with the Special Rapporteur on extrajudicial, summary or arbitrary executions,⁴²¹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, paras. 38, 42, 49, 52, 55, 66 and 67.the AComHPR,⁴²²AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 7.the IACHR,⁴²³IACHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124 Doc. 5 Rev. 1, 7 March 2006, para. 141.the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly⁴²⁴OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 147-148.and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.⁴²⁵ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principles 18-21.Skills that training should deliver, according to these authorities, include:

An understanding of human rights in the context of assemblies, and the important role of assemblies in a democracy;
Knowledge of police ethics;
Knowledge of the legal framework governing assemblies and the actions of law-enforcement personnel;
An understanding of crowd behavior and techniques of crowd facilitation and management;
Control and planning of operations;
“Soft skills” needed to settle conflicts peacefully, such as verbal and non-verbal communication, negotiation, persuasion, and mediation;
Alternatives to recourse to force and the imperative of minimizing its use;
The correct use of any firearms or less-lethal weapons issued;
The safety and protection of persons and groups who are particularly vulnerable.

The UN Human Rights Council has called upon States to ensure adequate training not only of law enforcement officials, but also private personnel acting on behalf of the State during assemblies.⁴²⁶UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 13.

Under international law, the use of force during assemblies must strictly comply with principles of legality, precaution, necessity, proportionality, non-discrimination, and accountability.⁴²⁷UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 50; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 78; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 102.

Legality

The circumstances and degree to which force may be used during an assembly must be regulated by law and administrative rules (such as standard operating procedures and rules of engagement), limiting the discretion of law enforcement personnel; this is confirmed by many authorities.⁴²⁸Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 1; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 51; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 141; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, paras. 7-8; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 5.5 and Explanatory Notes, paras. 171-178.The IACHR has stated:

In order to prevent an inappropriate intervention by State forces that could infringe on the human rights of demonstrators, the States should adopt measures both of a regulatory as well as an administrative nature that enable police forces to have clear rules of conduct and the professional training needed to perform their jobs in situations involving mass concentrations of people.⁴²⁹ IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 141. See also Zambrano Vélez et al. v. Ecuador, IACtHR, Judgment of July 4, 2007 (Merits, Reparations and Costs), para. 86.

The Grand Chamber of the ECtHR similarly warns that law enforcement personnel should not “be left in a vacuum”, but rather be guided by a legal and administrative framework:

[P]olicing operations must be sufficiently regulated by national law, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force … Police officers should not be left in a vacuum when performing their duties: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.⁴³⁰Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 249.

Precaution

In preparing for an assembly, the authorities should take steps to avoid the need to use force or, if this is impossible, to minimize the consequences.⁴³¹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 52.The ECtHR has stated that the operation should be “regulated and organised in such a way as to minimise to the greatest extent possible any risk to the life of the demonstrators.”⁴³² Şimşek and Others v. Turkey, ECtHR, Judgment of 26 July 2005, para. 106.

In addition to training, the principle of precaution requires adequate planning for assemblies. The joint report on the proper management of assemblies states:

States should plan properly for assemblies, which requires the collection and analysis of information, anticipation of different scenarios and proper risk assessments. Contingency plans and precautionary measures must also be put in place. Proper planning and preparation requires continuous monitoring of activities and should be adaptable to changing circumstances.⁴³³UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 37.

General Comment No. 37 states: “Generic contingency plans and training protocols should also be developed by relevant law enforcement agencies, in particular for policing assemblies of which the authorities are not notified in advance and which may affect public order.”⁴³⁴ UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 77.The OSCE-ODIHR Human Rights Handbook on Policing Assemblies and the AComHPR Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa provide guidance on how to plan for assemblies.

Precaution also requires that law enforcement officials should have access to proper equipment for self-defense and coordination (such as shields, helmets, bullet-proof and fire-retardant clothing, portable communications devices) and appropriate less-lethal weapons, as underlined by many authorities.⁴³⁵Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 2; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, paras. 52-55; UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 14; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 81; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 143; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 15; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 5.5 and Explanatory Notes, para. 172.

The case of Simşek and Others v. Turkey before the ECtHR arose from two assemblies during which police had used live fire in response to acts of violence and resistance, leading to 17 deaths. The ECtHR found that the Turkish State had violated the right to life by failing to deliver proper training, instructions, and equipment to the police officers on duty:

It appears from the case file that the police officers who were on duty at both incidents enjoyed great autonomy of action, and they took initiatives whilst in the grip of panic and pressure, which they would probably not have taken had they had the benefit of proper training and instructions. The Court … finds that the absence of a clear, centralised command was an important lacuna which must have increased the risk of police officers shooting directly at the crowd.

Furthermore, it was the responsibility of the Security Forces, who had been aware of the tense situation in both districts, to provide the necessary equipment, such as tear gas, plastic bullets, water cannons, etc., to disperse the crowd. In the Court’s view, the lack of such equipment is unacceptable.

In conclusion, the Court considers that, in the circumstances of the instant case, the force used to disperse the demonstrators, which caused the death of seventeen people, was more than absolutely necessary within the meaning of Article 2.⁴³⁶ Şimşek and Others v. Turkey, ECtHR, Judgment of 26 July 2005, paras. 110-112. See also Güleç v. Turkey, ECtHR, Judgment of 27 July 1998, para. 71: ”The gendarmes used a very powerful weapon because they apparently did not have truncheons, riot shields, water cannon, rubber bullets or tear gas. The lack of such equipment is all the more incomprehensible and unacceptable because the province of Şırnak, as the Government pointed out, is in a region in which a state of emergency has been declared, where at the material time disorder could have been expected.

In equipping law enforcement personnel, regard should also be had to the impression their visual appearance will make on participants, to avoid any provocative or intimidating effect. The UN Special Rapporteur found that massive deployment of force increases tension and aggression begets aggression⁴³⁷UN Human Rights Council, Report of the UNSR on his mission to the Republic of Korea, A/HRC/32/36/ Add.2, para 31.. The AComHPR similarly states:

In the deployment of officials to an assembly, law enforcement agencies must take into account the potential adverse influence that the visible appearance of law enforcement officials, deployment tactics and equipping of officials at an assembly can have on the way in which an assembly develops.⁴³⁸ AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 14.2.

Necessity and proportionality

The requirement of necessity and proportionality means first that assemblies should ordinarily be managed with no resort to force;⁴³⁹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 57.force may only be used when the alternatives have been exhausted. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state:

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.⁴⁴⁰Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 4.

Consistently with this, the IACtHR has held that “force or coercive means can only be used once all other methods of control have been exhausted.”⁴⁴¹Zambrano Vélez et al. v. Ecuador, IACtHR, Judgment of July 4, 2007 (Merits, Reparations and Costs), para. 83. The AComHPR takes the same view.⁴⁴²AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.2.

Second, where the use of force becomes unavoidable, it should be directed as precisely as possible at the person(s) necessitating its use. The ECtHR has repeatedly held that force should be “made strictly necessary by a person’s own conduct;⁴⁴³See, for example, Pekaslan and Others v. Turkey, ECtHR, Judgment of 20 March 2012, para. 81; İzci v. Turkey, ECtHR, Judgment of 23 July 2013, para. 55.the AComHPR states that law enforcement officials using force “must, as far and for as long as possible, differentiate between peaceful assembly participants and those who engage in violent acts.”⁴⁴⁴AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.2.

Third, force should be limited to the minimum extent necessary in the circumstances. The joint report on the proper management of assemblies articulates this requirement as follows:

The proportionality requirement sets a ceiling on the use of force based on the threat posed by the person targeted. This is a value judgement that balances harm and benefit, demanding that the harm that might result from the use of force is proportionate and justifiable in relation to the expected benefit.⁴⁴⁵ UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 58.

The IACtHR has elaborated further on the circumstances relevant to determining whether the force used is indeed the minimum necessary in the circumstances:

To determine the proportionality of the use of force, the severity of the situation that the agent faces must be assessed. To this end, among other circumstances, it is necessary to consider: the level of intensity and danger of the threat; the attitude of the individual; the conditions of the surrounding area, and the means available to the agent to deal with the specific situation. In addition, this principle requires the law enforcement agent, at all times, to reduce to a minimum the harm or injuries caused to anyone, as well as to use the lowest level of force required to achieve the legitimate purpose sought.⁴⁴⁶Landaeta Mejías Brothers et al. v. Venezuela, IACtHR, Judgment of August 27, 2014, para. 136.

General Comment No. 37 stresses that principles of necessity and proportionality must be incorporated into domestic law regulating the use of force:

Only the minimum force necessary may be used where it is required for a legitimate law enforcement purpose during an assembly. Once the need for any use of force has passed, such as when a violent individual is safely apprehended, no further resort to force is permissible. Law enforcement officials may not use greater force than is proportionate to the legitimate objective of either dispersing an assembly, preventing a crime or effecting or assisting in the lawful arrest of offenders or suspected offenders. Domestic law must not grant officials largely unrestricted powers, for example to use ”force” or ”all necessary force” to disperse assemblies, or simply to ”shoot for the legs”. In particular, domestic law must not allow use of force against participants in an assembly on a wanton, excessive or discriminatory basis.⁴⁴⁷ UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 79.

The principles of necessity and proportionality apply to all uses of force, including lethal force and the use of firearms. The UN Human Rights Council holds that “lethal force may only be used to protect against an imminent threat to life,” and never in an indiscriminate manner against a crowd,⁴⁴⁸UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, paras. 10 and 11.views echoed in the joint report on the proper management of assemblies⁴⁴⁹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60.and by the AComHPR.⁴⁵⁰ AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.4.

The IACHR stresses that any use of lethal force should be preceded by a warning from a State agent who clearly identifies himself or herself unless that is impossible:

Should the use of lethal force be strictly necessary, the rules of conduct should require that the agents of the State first identify themselves as such, and then give the persons involved a clear warning of their intention to use force, so as to give them time to cease and desist, except in those cases where the life or personal safety of third persons or the agents themselves is in imminent danger.⁴⁵¹ IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc 57, 31 December 2009, para. 118.

The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials contain similar language.⁴⁵² Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 10.

Under Article 2 of the ECHR, the use of lethal force must be “absolutely necessary”. The ECtHR has explained that whether this standard is met depends not only on the actions of the agent administering the force but also on precautionary measures such as planning and control:

The use of the term “absolutely necessary” indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” … the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination.⁴⁵³ Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 176.

Accountability

Governments are under a duty to establish effective reporting and review procedures for any incidents where law enforcement officials cause injury or death by the use of force or discharge a firearm in the performance of their duty. More generally, as General Comment No. 37 provides:

States have an obligation to investigate effectively, impartially and in a timely manner any allegation or reasonable suspicion of unlawful use of force or other violations by law enforcement officials, including sexual or gender-based violence, in the context of assemblies. Both intentional and negligent action or inaction can amount to a violation of human rights. Individual officials responsible for violations must be held accountable under domestic and, where relevant, international law, and effective remedies must be available to victims.⁴⁵⁴UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 87.

Which rules govern the use of firearms during assemblies?

The use of firearms during assemblies is fully subject to the principles governing the use of force during assemblies. In addition, a number of specific rules apply.

The principle of legality means that the use of firearms must be governed by clear rules and regulations so that, in the words of the ECtHR, law enforcement officials are not “left in a vacuum”.⁴⁵⁵Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 249.Principle 1 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states:

Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.⁴⁵⁶Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 1.

The principle of precaution implies that law enforcement officials should be selected by thorough screening procedures⁴⁵⁷Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 18.and receive continuous and thorough professional training, including in the correct use of firearms issued to them. They should be properly equipped, including with protective clothing and less-lethal weapons to reduce the need to resort to firearms as far as possible. Automatic firearms should never be part of the equipment used during assemblies.⁴⁵⁹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 67(e).

The IACHR considers that firearms and lead munitions should be stored away from the scene of an assembly and only issued to law enforcement officials when a serious and imminent risk arises:

The prohibition on officials who might have contact with demonstrators carrying firearms and lead munitions has proven to be the best measure for preventing lethal violence and deaths in contexts of social protest. The operations may include having firearms and lead munitions somewhere outside the radius of action of the demonstration for those exceptional cases in which there is a situation of actual, serious, and imminent risk to persons that makes their use warranted. In such an extreme circumstance there should be explicit rules concerning who has the power to authorize their use and the ways in which such authorization is to be documented.⁴⁶⁰IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.

In line with the requirement of necessity and proportionality, law enforcement agents may use firearms during an assembly only to the extent necessary to avert a life-threatening situation, and only after exhausting less hazardous alternatives.⁴⁶¹Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 18; UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 88; IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc 57, 31 December 2009, para. 118; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 81; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.4.General Comment No. 37 stresses that, “[g]iven the threat that such weapons pose to life, this minimum threshold should also be applied to the firing of rubber-coated metal bullets.”⁴⁶²UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 88.Firearms may never be used simply to control or disperse an assembly or to fire indiscriminately into a crowd.⁴⁶³UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60;  UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 88; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.6; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.

In order to be able to comply with the principle of accountability, States must enact procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.⁴⁶⁴Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 11(d).The IACHR recommends the implementation of ammunition registration and inventories of firearms:

The Commission has … recommended implementing ammunition registration and control systems. Registration of this type, both before and after operations, is an administrative control measure that helps to facilitate judicial and administrative investigations into possible violations of rules and principles on the use of force. Therefore, states should have in place effective mechanisms for making inventories of firearms, ammunition, and other control devices, such as chemical weapons, to be used in a security operation.⁴⁶⁵IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 227.

The joint report on the proper management of assemblies likewise states that there should be “a clear system of record keeping or register of the equipment provided to individual officers in an operation, including vehicles, firearms and ammunition.”⁴⁶⁶UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 65.

States should ensure that there is a system of reporting to a superior whenever law enforcement officials use firearms during an assembly.⁴⁶⁷Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 11(f);  UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 91; IACHR, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc 57, 31 December 2009, para. 119;  AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 24.4.If the use of a firearm causes an injury or death, it triggers the legal obligation to launch an investigation. In such a case, firearms should immediately be turned over to a forensics department to determine whether they have been used.⁴⁶⁸Mendoza v. Peru, Human Rights Committee, UN Doc. CCPR/C/134/D/3664/2019, Views of 30 May 2022, para. 8.8. (the Committee found that the state failed to satisfy its duty to investigate the police shooting of demonstrators “because of a lack of evidence, stemming mainly from the fact that the investigation was marked by negligence,” when police officers turned their weapons over to the armory rather than a forensics department).

Which rules govern the use of less-lethal weapons during assemblies?

In line with the principle of precaution, States are required under international law to equip their law enforcement agencies with less-lethal weapons, to enable a graduated response to threats, and to minimize the use of firearms.⁴⁶⁹Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 2; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 55;  AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.3.1; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 15; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 5.5.

Several international mechanisms have warned that less-lethal weapons may still have injurious or even lethal effects, and have underlined the importance of independent scientific testing of such weapons prior to deployment, and appropriate control of their use, including through training of and instructions to the law enforcement officials to which they are issued.⁴⁷⁰UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 15; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 3; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 55;  AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.3.1; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 84; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 120.

The ECtHR has forcefully condemned failures to deliver such training and instructions. In Abdullah Yaşa and Others v. Turkey, it held:

Given that during the events in Diyarbakır between 28 and 31 March 2006 two persons were killed by tear-gas grenades and that the applicant was injured on the same occasion, it may be deduced that the police officers were able to act very independently and take ill-considered initiatives, which would probably not have been the case if they had been given appropriate training and instructions. In the Court’s view, such a situation is incompatible with the level of protection of the physical integrity of individuals which is required in contemporary democratic societies in Europe…

There has accordingly been a violation of Article 3 of the Convention.⁴⁷¹Abdullah Yaşa and Others v. Turkey, ECtHR, Judgment of 16 July 2013, paras. 49-51. . See also Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014, para. 57.

The IACHR cautions that a warning should be issued before using less-lethal weapons and that there should be accountability for improper use:

The use of less lethal weapons should be preceded by formal notices so as to give persons the opportunity to evacuate the zone without provoking situations of panic or stampedes, and guidelines should be put in place for attributing responsibility for their incorrect use.⁴⁷² IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 16.

Tear gas

The UN Special Rapporteur has warned about the dangers of the use of tear gas, due to its indiscriminate nature:

With regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions. He also warns against any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders.⁴⁷³UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 35.

Similarly, General Comment No. 37 states:

Less-lethal weapons with wide-area effects, such as tear gas and water cannons, tend to have indiscriminate effects. When such weapons are used, all reasonable efforts should be made to limit risks, such as causing a stampede or harming bystanders. Such weapons should be used only as a measure of last resort, following a verbal warning, and with adequate opportunity given for assembly participants to disperse. Tear gas should not be used in confined spaces.⁴⁷⁴UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 87.

The ECtHR has found violations of human rights in a substantial number of cases in connection with the inappropriate use of tear gas.⁴⁷⁵See, among others, Ali Güneş v. Turkey, ECtHR, Judgment of 10 April 2012; Abdullah Yaşa and Others v. Turkey, ECtHR, Judgment of 16 July 2013; İzci v. Turkey, ECtHR, Judgment of 23 July 2013; Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014.The Court has underlined the full applicability of the principle of legality to the use of tear gas:

[P]olice operations – including the launching of tear-gas grenades – should not only be authorised but should also be sufficiently delimited by domestic law, under a system of adequate and effective safeguards against arbitrary action, abuse of force and avoidable accidents.⁴⁷⁶Abdullah Yaşa and Others v. Turkey, ECtHR, Judgment of 16 July 2013, para. 43.

Furthermore, it has held that the firing of tear-gas grenades along a direct, flat trajectory is prohibited:

In the Court’s view, firing a tear-gas grenade along a direct, flat trajectory by means of a launcher cannot be regarded as an appropriate police action as it could potentially cause serious, or indeed fatal injuries, whereas a high-angle shot would generally constitute the appropriate approach, since it prevents people from being injured or killed in the event of an impact.⁴⁷⁷Abdullah Yaşa and Others v. Turkey, ECtHR, Judgment of 16 July 2013, para. 48. See also Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014, para. 56.

Tear gas may not be used “indiscriminately … to the extent that not only the demonstrators but also unconnected persons in the vicinity [are] affected”⁴⁷⁸İzci v. Turkey, ECtHR, Judgment of 23 July 2013, para. 60.and “there can be no justification for the use of such gases against an individual who has already been taken under the control of the law enforcement authorities.”⁴⁷⁹Ali Güneş v. Turkey, ECtHR, Judgment of 10 April 2012, para. 41.

Pepper spray

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has expressed its concerns over the use of pepper spray in law enforcement:

[P]epper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control.⁴⁸⁰European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Report to the Government of Bosnia and Herzegovina on the Visit to Bosnia and Herzegovina Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 19 March to 30 March 2007, CPT/Inf (2009) 25, 14 October 2009, para. 79.

The UN Special Rapporteur,⁴⁸¹UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 65.the AComHPR,⁴⁸²AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 14.1.the IACHR,⁴⁸³IACHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124 Doc. 5 Rev. 1, 7 March 2006, para. 68. the UN Human Rights Committee’s General Comment No. 37,⁴⁸⁴UN Human Rights Committee, General comment No. 37 (2020) on the right of peaceful assembly (article 21), UN Doc. CCPR/C/GC/37, 17 September 2020, para. 89.and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly⁴⁸⁵OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 153.all state that law-enforcement personnel deployed during an assembly should be clearly and individually identifiable, for example from a nameplate or number that is visible at all times.

The ECtHR has held that States have a duty effectively to investigate injuries and deaths during assemblies and that this duty is violated if security forces take steps that make it impossible to identify individual responsibilities. In Ataykaya v. Turkey, the Court sidestepped the question of whether officers may cover their faces during a demonstration; however, it stated that if a mask or balaclava is worn, the officer must at least “visibly display some distinctive insignia – for example a warrant number” to enable “identification and questioning in the event of challenges to the manner in which the operation was conducted.”⁴⁸⁶Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014, paras. 52-54 (references omitted); see also Cestaro v. Italy, ECtHR, Judgment of 7 April 2015, para. 217.The Court has not discussed whether such insignia are also required if the faces of the officers are sufficiently visible to enable identification.

Ataykaya v. Turkey arose from the death of a passer-by who was struck on the head by a teargas grenade when masked security forces dispersed an assembly. The Court stopped short of making a finding of whether the use of balaclavas by law-enforcement personnel is permissible. However, it held that masked members of the security forces must always be identifiable by other means, such as a warrant number, so that they can be investigated after the event:

The Court takes the view that it is not necessary to assess in general terms whether it is compatible with the Convention for balaclavas to be worn by security forces whose task it is to confront demonstrators. It is obvious, however, that this practice has had, in the present case, the direct consequence of giving those responsible immunity from prosecution.…

The Court finds that this circumstance, namely the inability of eyewitnesses to identify the officer who fired the shot because he was wearing a balaclava, is in itself a matter of concern. In this connection it would refer to its previous finding, under Article 3 of the Convention, to the effect that any inability to determine the identity of members of the security forces, when they are alleged to have committed acts that are incompatible with the Convention, breaches that provision. Similarly, the Court has already stated that where the competent national authorities deploy masked police officers to maintain law and order or to make an arrest, those officers should be required to visibly display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted. Those considerations are all the more valid in the present case as it concerns a death following a shot fired by a member of the security forces who was wearing a balaclava.⁴⁸⁷Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014, paras. 52-54 (references omitted).

The authorities should initiate an investigation as soon as they obtain knowledge of a credible allegation of a violation.

The ECtHR has held with regard to killings that they trigger an automatic duty to investigate:

[T]he mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death.⁴⁹⁸Ergi v. Turkey, ECtHR, Judgment of 28 July 1998, para. 82. See also Miguel Castro v. Peru, IACHR, Judgment of 25 November 2006, para. 256.

In other words, the investigation should not be left to the initiative of the victim’s next of kin:

[T]he authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (…).⁴⁹⁹Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para. 80.

In cases of alleged ill-treatment, the victim does not need to prove the facts; if there is an arguable case which raises a reasonable suspicion, the authorities must investigate:

The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”.⁵⁰⁰Dilek Aslan v. Turkey, ECtHR, Judgment of 20 October 2015, para. 53 (references omitted); See also Khashiyev and Akayeva v. Russia, ECtHR, Judgment of 24 February 2005, para. 177.

The Human Rights Committee and ECtHR have held that the circumstances and severity of ill-treatment, such as the duration and manner of the treatment, its physical or mental effects, as well as the sex, age, and state of health of the victim will determine whether the duty to investigate is triggered; e.g. when it constitutes torture or inhuman or degrading treatment.⁵⁰¹Vuolanne v. Finland, Human Rights Committee, Views of 7 April 1989, UN Doc. CCPR/C/35/D/265/1987, para. 9.2; Ireland v. the United Kingdom, ECtHR, Judgment of 18 January 1978, para. 162.International courts and mechanisms have not defined these conditions precisely. Yet, the duty to investigate is not limited to physical ill-treatment, but can also cover humiliating, discriminatory, or intimidating acts.⁵⁰² R.B. v. Hungary, ECtHR, Judgment of 12 April 2016, paras. 43-45.

Effectiveness

The duty to investigate can only be satisfied if the investigation is effective. An effective investigation is one that is capable of bringing out the truth about what happened.⁵⁰³See, for example, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, AComHPR, Decision of 12 October 2013, para. 230; Miguel Castro v. Peru, IACtHR, Judgment of 25 November 2006, para. 256; Korobov and Others v. Estonia, ECtHR, Judgment of 28 March 2013, para. 113.It should be aimed at establishing the identity of perpetrators, punishing them, and thus provide accountability and redress to victims.⁵⁰⁴See, for example, Landaeta Mejías Brothers et al v. Venezuela, IACtHR, Judgment of 27 August 2014, para. 143; Nadege Dorzema et al. v. Dominican Republic, IACtHR, Judgment of 24 October 2012, para. 100; McKerr v. The United Kingdom, ECtHR, Judgement of 4 May 2001, para. 121; Khashiyev and Akayeva v. Russia, ECtHR, Judgment of 24 February 2005, para. 177.In the words of the IACtHR:

[T]he power of access to justice must ensure, within a reasonable period of time, the right of the alleged victims or their next of kin that everything possible be done to know the truth of what happened and that the possible responsible parties be punished.⁵⁰⁵Miguel Castro v. Peru, IACHR, Judgment of 25 November 2006, para. 382.

The ECtHR adds that the investigation must make it possible to determine “whether the force used in such cases was or was not justified in the circumstances.”⁵⁰⁶Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para. 81.Each case is different, and its circumstances along with “practical realities” will determine “the nature and degree of scrutiny” that will satisfy the duty to investigate effectively.”⁵⁰⁷Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 302.However, the duty to investigate effectively is “not an obligation as to the results to be achieved but as to the means to be employed.”⁵⁰⁸See, among others, M.C. and A.C. v. Romania, ECtHR, Judgment of 12 July 2016, para.111; Khashiyev and Akayeva v. Russia, ECtHR, Judgment of 24 February 2005, para 154; Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para. 81; Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 301; Miguel Castro v. Peru, IACHR, Judgment of 25 November 2006, para.255.

An early step in any effective investigation is the securing of all possible evidence. The IACHR and IACtHR have indicated that the investigating authorities must preserve the communications between personnel involved in the operation and originals of any recordings or images made at the scene.⁵⁰⁹IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 230.In addition, in cases of deaths, they must:

a) identify the victim; b) collect and preserve evidence related to the death in order to assist with any investigation; c) identify possible witnesses and obtain testimonies in relation to the death under investigation; d) determine the cause, manner, place and time of death, as well as any pattern or practice which may have brought about such death, and e) distinguish between natural death, accidental death, suicide and homicide. The scene of the crime must be examined exhaustively, using autopsies and analysis of human remains by competent professionals and employing rigorous and appropriate procedures.⁵¹⁰IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 234. See also Myrna Mack Chang v. Argentina, IACtHR, Judgment of 25 November 2003, para. 166; Case of the “Mapiripán Massacre” v. Colombia, IACtHR, Judgment of 15 September 2005, para. 227.

The ECtHR similarly requires the authorities to take

reasonable steps available to them to secure the evidence concerning the incident including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.⁵¹¹Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para. 81.

In cases of alleged torture or ill-treatment, a medical report must be drawn up that complies with relevant international guidelines and protocols.⁵¹²See Dilek Aslan v. Turkey, ECtHR, Judgment of 20 October 2015, para. 57 referring to the UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment (the “Istanbul Protocol”).

If there is a possibility of discriminatory intent, the investigation should aim to reveal it. In M.C and A.C. v. Romania, demonstrators were targeted and attacked by private individuals on their way back from a gay rights march. The ECtHR held:

When investigating violent incidents, such as ill‑treatment, State authorities have a duty to take all reasonable steps to uncover any possible discriminatory motives … The authorities must do whatever is reasonable in the circumstances to collect and secure the evidence, to explore all practical means of discovering the truth, and to deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of violence induced by, for instance, racial or religious intolerance, or violence motivated by gender-based discrimination. Treating violence and brutality arising from discriminatory attitudes on an equal footing with violence occurring in cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.⁵¹³M.C. and A.C. v. Romania, ECtHR, Judgment of 12 July 2016, para.113 (references omitted).

Promptness

It is important that the investigation is conducted in a manner that maintains public confidence in state authorities, especially in cases where law enforcement authorities are involved. The investigation must therefore be initiated and concluded within a reasonable time.⁵¹⁴See among others, Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para. 82; Pastor and Ticlete v. Romania, ECtHR, Judgment of 19 April 2011, paras. 69-71; M.C. and A.C. v. Romania, ECtHR, Judgment of 12 July 2016, paras.111-112; see also General Comment No. 20 of the Human Rights Committee in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1, p.30, para 14.Conduct that violates the requirement of promptness includes delays in taking statements from key witnesses,⁵¹⁵See, for example, Dilek Aslan v. Turkey, ECtHR, Judgment of 20 October 2015, paras. 56 and 58.repeated adjournments of hearings because of procedural errors,⁵¹⁶Pastor and Ticlete v. Romania, ECtHR, Judgment of 19 April 2011, paras. 76 and 77-79.and excessive overall length of the proceedings.⁵¹⁷See, for example, , Florentina Olmedo v. Paraguay, Human Rights Committee, Views of 22 March 2012, UN Doc. CCPR/C/104/D/1828/2008CCPR/C/104/D/1828/2008, para. 7.5 (investigation not completed after almost 9 years); Pastor and Ticlete v. Romania (16 years) or Mocanu and Others v. Romania (23 years).Authorities cannot delay proceedings in the hope that they will become time-barred.⁵¹⁸See, among others, Mocanu and Others v. Romania, ECtHR, Judgment of 17 September 2014, para. 346; Association "21 December 1989" and Others v. Romania, ECtHR, Judgment of 24 May 2011, para. 144.

The ECtHR has underlined the social importance of investigating deaths during protests promptly, even if the case is complex. In Mocanu and Others v. Romania, a case decided in 2014, the Court remarked about the failure to complete investigations into shootings of demonstrators in 1990:

While acknowledging that the case is indisputably complex, as the Government have themselves emphasised, the Court considers that the political and societal stakes referred to by the latter cannot justify such a long period. On the contrary, the importance of those stakes for Romanian society should have led the authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts.⁵¹⁹Mocanu and Others v. Romania, ECtHR, Judgment of 17 September 2014, para. 338.

Finally, the State should not enact provisions that effectively prevent accountability of perpetrators, such as amnesties or inflexible statute of limitations:

The Court has also held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases … Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions.⁵²⁰Mocanu and Others v. Romania, ECtHR, Judgment of 17 September 2014, para.326.

Independence

To be effective and preserve confidence in the State, the investigation must also be independent, in particular when law enforcement personnel are implicated. According to the ECtHR:

it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.⁵²¹Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 300; see also Solomou and Others v. Turkey, ECtHR, Judgment of 24 June 2008, para.81.

According to the IACtHR, military courts and military prosecutors are not the appropriate bodies to conduct an effective investigation:

[T]he Court has established that remedies before the military courts are not effective to decide cases of serious human rights violations, much less to establish the truth, prosecute those responsible, and make reparation to the victims, because those remedies that, for different reasons, result illusory cannot be considered effective, such as when the judicial organ lacks independence and impartiality.”⁵²²Nadege Dorzema et al. v. Dominican Republic, IACtHR, Judgment of 24 October 2012, para. 189; see also 29 and 247.

The ECtHR has also criticized investigations by military prosecutors into violations of human rights violations allegedly committed by others within the military hierarchy.⁵²³Pastor and Ticlete v. Romania, ECtHR, Judgment of 19 April 2011, para. 74; Mocanu and Others v. Romania, ECtHR, Judgment of 17 September 2014, paras. 320 and 333.On the other hand, the European Court has accepted a situation where the police performed certain steps in the investigation, though the accused were police officers, provided it did not alter the impartiality and independence of the investigation.⁵²⁴Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 324.There should not be a hierarchical link between the officers investigating and the officers subject to investigation.⁵²⁵McKerr v. The United Kingdom, ECtHR, Judgement of 4 May 2001, paras. 128 and 157.

Accessibility to the public and relatives

For the sake of public trust and effectiveness, an investigation must also leave room for public scrutiny.

The UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment (the “Istanbul Protocol”) states:

Alleged victims of torture or ill-treatment and their legal representatives must be informed of, and have access to, any hearing as well as to all information relevant to the investigation and must be entitled to present other evidence.⁵²⁶ UN Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment, para. 80.

The ECtHR has taken the same view,⁵²⁷El-Masri v. the former Yugoslav Republic of Macedonia, ECtHR, Grand Chamber ruling of 13 December 2012, para. 185.and has added that there must be “a sufficient element of public scrutiny of the investigation.”⁵²⁸Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 303.Likewise, the IACHR has stated that “[t]he results of the investigation must be publicly disclosed in order for society to know the truth of the facts.”⁵²⁹ Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Report on Protest and Human Rights (2019), para. 265.  If the investigation concerns a death during an assembly, it is the family of the victim who must have access to it. That access is not unlimited; it must be granted “to the extent necessary to safeguard their legitimate interests.”⁵³⁰Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 303.Consideration must be given to possible prejudicial effects to private individuals or other investigations, which may lead to access being provided for in later stages of the procedure.

Punishment of agents responsible for unlawful killings, torture, or ill-treatment

An investigation is only adequate if it results in those responsible for any unlawful killings, torture, or ill-treatment being punished, to a degree sufficient to ensure a deterrent effect. The ECtHR has held:

[If] the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity … [T]he outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as disciplinary measures taken, has been considered decisive. It is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined.⁵³²Jeronovičs v. Latvia, ECtHR, Grand Chamber Judgment of 5 July 2016, paras. 105-106.

The IACHR too emphasizes that States have an “international obligation to investigate, try, and, where applicable, punish security agents responsible for violating the rights to life and personal liberty.”⁵³³IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 235.

Criminal sanctions should not only be applied to those enforcement officials using unlawful force but also to any superior officer who failed to take measures within his or her power to prevent, suppress, or report such use.⁵³⁴Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 24; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 91; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 233.

A State agent facing charges as a result of an investigation into an injury or death during an assembly must be suspended and, if convicted, dismissed. The ECtHR has stated:

[W]here a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she should be suspended from duty during the investigation and trial, and should be dismissed if convicted.⁵³⁵izci v. Turkey, ECtHR, Judgment of 23 July 2013, para. 74. See also Yaman v. Turkey, ECtHR, Judgment of 2 November 2004, para. 55.

Both the IACtHR and the ECtHR have stated in general terms that professional journalists should not enjoy special privileges compared to others fulfilling a comparable function. The Grand Chamber of the ECtHR has held that “public watchdogs” (a term which includes NGOs, academic researchers, authors, bloggers, and popular users of social media) should enjoy similar protection as the press when they report on matters of public interest.⁵⁵²Magyar Helsinki Bizottság v. Hungary, ECtHR, Grand Chamber Judgment of 8 November 2016, paras. 165-68.The IACtHR, in an advisory opinion, has taken the view that the practice of journalism is a right of every person, which should not be subject to formal requirements such as obtaining a license or becoming a member of a professional association.⁵⁵³IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85, November 13, 1985, paras. 74-81.

The UN Special Rapporteur and his counterpart, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions state unambiguously that the right to record during assemblies belongs to “everyone” and should be protected:

Everyone — whether a participant, monitor or observer — shall enjoy the right to record an assembly, which includes the right to record the law enforcement operation. This also includes the right to record an interaction in which he or she is being recorded by a State agent — sometimes referred to as the right to “record back”. The State should protect this right.⁵⁵⁴UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 71.

An order to turn recordings of an assembly over to the authorities qualifies as an interference with the right to freedom of expression,⁵⁵⁵See British Broadcasting Corporation v. the United Kingdom, EComHR, Decision of 18 January 1996; Sanoma Uitgevers B.V. v. the Netherlands, ECtHR, Grand Chamber Judgment of 14 September 2010, para. 60.which must comply with the same three-prong test applicable to limitations on freedom of peaceful assembly.

In the first place, an order should not be issued unless it rests on a clear basis in law. Officers seizing material on the spot will fall foul of this requirement unless the law clearly empowers them to do so. The UN Special Rapporteur underlines the importance of due process:

Confiscation, seizure and/or destruction of notes and visual or audio recording equipment without due process should be prohibited and punished.⁵⁵⁶UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 71; see also OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 169 (“any requirement to surrender film or digitally recorded images or footage to the law-enforcement agencies should be subject to prior judicial scrutiny”).

Second, the order must pursue a legitimate aim, such as the investigation of an offense committed during the assembly. A seizure whose aim is to conceal the actions of the authorities does not meet this requirement. Third and finally, the seizure must meet the requirements of necessity and proportionality.

The EComHR has however clarified that the enhanced right of journalists and other watchdogs to protect their confidential sources of information does not apply when they receive a summons to turn over recordings of assemblies since no particular secrecy or duty of confidentiality is in play when recordings are made in public.⁵⁵⁷British Broadcasting Corporation v. the United Kingdom, EComHR, Decision of 18 January 1996; Nordisk Film & TV A/S v. Denmark, ECtHR, Decision of 8 December 2005.