EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE LAW
ON ASSEMBLY AND MANIFESTATIONS
OF THE REPUBLIC OF GEORGIA
by
Ms Finola FLANAGAN (Member, Ireland)
Introduction
1. The Venice Commission has been invited by the First Deputy Chairman of the Georgian Parliament to provide an Opinion on the legislative package, including amendments recently adopted on 17 July 2009, concerning the “Law of Georgia on Assemblage and Manifestations” of 12 June 1997, (hereinafter, “the Law”). The First Deputy Chairman stated in his letter to the Secretary of the Commission that the Parliament was ready to cooperate intensively with the experts and address all inquiries and questions which might arise. The Speaker said in Parliament that if the Venice Commission had criticisms about the amendments the Parliament was prepared to re-examine them and amend the Law again in light of the Venice Commission Opinion.
2. The request for the Opinion and the stated willingness to cooperate with the Venice Commission is noted and welcomed. Such cooperation and willingness to address issues raised is particularly important in circumstances where the Law under examination has already been adopted.
3. The legislative package under examination has three elements:
a. Changes to the law of Georgia on Assemblies and Manifestations which prohibit assemblies which block the street except where this is the result of the large number of participants; an extension to the area around specified public buildings where assemblies are prohibited;
b. Amendments to the Law on Police give police power to use non-lethal weapons to suppress mass and group violations of public order;
c. Amendments to the Law on Administrative Offences increase the penalties for a number of offences committed in the course of an assembly from 30 to 90 days imprisonment; organised blocking of roadways in the course of an assembly will carry suspension of driving licence for up to 2 years.
4. The Venice Commission has been requested by the Parliament to provide an opinion only in relation to the first of these laws; however it would be desirable if the other two laws were examined by the Venice Commission since they are part of the legislative package. Further documentation would be required to do so. (See paragraphs 36 and 37 below.) The Law amending the Law on Assemblage and Manifestations was enacted on July 11 2009. Now that the Georgian Law on Assemblage and Manifestations comprises the original law on the subject as amended, the comments in this Opinion will address not only the amending law but the original law as amended in a consolidated form.
5. The amendments were proposed during the course of an assembly organised by opposition members of Parliament which blocked Rustaveli Avenue in Tbilisi. The demonstrators were calling for the resignation of President Saakashvili. It seems that the package of amendments which are being examined here were introduced very rapidly and in order to address this specific incident.
6. Whilst laws may on occasion require to be introduced or amended in a short space of time, it is worth observing that legislation enacted as a "knee-jerk" response to a specific incident is often inadequately devised in regard to policy, poorly drafted and has unintended consequences. Existing legislation may in fact be adequate to address the situation in a manner compatible with democratic requirements or, if amendments are actually needed, what is adopted in rushed circumstances is not compatible. In relation to laws that deal with fundamental democratic and human rights it is most important that full consideration be given to these matters.[1] For this reason, it is unfortunate that the Georgian Parliament was unable to await the opinion of the Venice Commission before enacting the Laws.
7. This opinion focuses on the wording of the provisions of the Law under consideration. Hence the way in which the Law has been implemented in practice by the competent administrative authorities, the police and the judiciary is in principle not addressed. In order to advance the protection of the right to freedom of assembly in Georgia, it is however crucial that improvements in the text of the Law be coupled with progress made in its implementation. How the Law is interpreted and implemented is of great significance in terms of its compliance with international human rights standards. The Venice Commission has previously commented: “The duty to protect lawful assembly also implies that the police be appropriately trained to handle the holding of public assemblies. This not only means that they should be skilled in the use of crowd control techniques that minimize the risk of harm to all concerned, but also that they should be fully aware of and understand their responsibility to facilitate as far as possible the holding of an assembly[2]." In this regard, the European Court of Human Rights has stated that the right to peaceful assembly should not be interpreted restrictively and any restrictions should be construed narrowly, and that in general, rights must be “practical and effective” not “theoretical or illusory[3]”.
8. It is also important that the government consult with local NGOs, civil society representatives and other relevant stakeholders both before finalizing any further amendments to the law and also after any reforms have been adopted. Such groups will clearly be affected by the legislation in different ways, and it is important that their experience and views be given serious consideration so that the legislation, and the procedures and working practices which develop around it, will work to the mutual benefit of all concerned. Such consultation can help foster a spirit of co-operation rather than confrontation, and can also improve understanding of the government’s intentions in bringing forward these amendments.
9. Given that any new legislation inevitably entails a process of ‘bedding in’ and fine tuning, it will be important to monitor the operation of the law. In this regard, it would be beneficial to insert into the law a clause which places a duty upon those bodies charged with its administration to “keep under review, and make such recommendations as they think fit to the Government concerning, the operation of this Law”. It is to be recommended that some official means of monitoring the application of the law, and of collating relevant statistics, should be devised. These recommendations concerning implementation, consulting with civil society and monitoring have all been made by the Venice Commission in its Opinion on the Armenian law of 2005 which concerned the regulation of assembly[4] and in its Opinion on the Draft Amendments to the Law on Freedom of Assembly of Azerbaijan[5] and on Kyrgystan[6].
The European and international standards on the freedom of assembly
10. Article 11 ECHR provides:
„1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of 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. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 21 ICCPR provides:
„The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in 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. „
11. The European and international standards on the right to freedom of assembly, which mainly derive from the ECHR and the ICCPR together with the corresponding case-law[7], have been presented and discussed in earlier opinions of the Venice Commission[8]. These standards can be summarised as follows:
The freedom of assembly is a fundamental democratic right and should not be interpreted restrictively.
- It covers all types of gathering, whether public or private provided they are “peaceful”.
- It is a “qualified” right and the state may justify what is a prima facie interference with the right. Article 11(2) ECHR expressly permits limitations provided they are “such as are prescribed by law and are necessary in a democratic society in the interests of 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 State is given a wide margin of appreciation in order to deal with disorder or crime or to protect the rights and freedoms of others.
- A regime of prior authorisation of peaceful assemblies is not necessarily an infringement of the right but this must not affect the right as such.
- The state may be required to intervene to secure conditions permitting the exercise of the freedom of assembly and this may require positive measures to be taken to enable lawful demonstrations to proceed peacefully. This involves arriving at a fair balance between the interests of those seeking to exercise the right of assembly and the general interests of the rest of the community i.e. by applying the principle of proportionality.
- The exercise of fundamental rights and freedoms is a constitutional matter par excellence and, as such, should be governed in principle primarily by the Constitution.
- Fundamental rights should, insofar as possible, be allowed to be exercised without regulation, except where their exercise would pose a threat to public order and where necessity would demand state intervention. A legislative basis for any interference with fundamental rights such as the right of peaceful assembly is required by the Convention.
- The relevant regulation, in other words, should focus on what is forbidden rather than on what is allowed: it should be clear that all that is not forbidden is permissible, and not vice-versa.
- Accordingly, it is not indispensable for a State to enact a specific law on public events and assemblies, as control of such events may be left to general policing and the rights in relation to them may be subject to the general administrative law.
- Laws specifically devoted to the right of freedom of assembly, if they are enacted, should be limited to setting out the legislative bases for permissible interferences by State authorities and regulating the system of permits without unnecessary details.[9]
12. Reference should also be made to the relevant OSCE commitments and the “Draft Guidelines for Drafting Laws Pertaining to the Freedom of Assembly” (Warsaw, December 2004), ("Guidelines") which have been prepared by the OSCE/ODIHR with a view to helping practitioners involved in the preparation of draft legislation pertaining to the freedom of assembly. The Venice Commission has adopted a detailed Opinion on these Guidelines.[10]
The Constitution of Georgia
13. Georgia's Constitution was adopted in 1995 following the contribution of experts from the Venice Commission. Article 25 of the Georgian Constitution provides:
1. Everyone, except members of the armed forces and Ministry of Internal Affairs, has the right to public assembly without arms either indoors or outdoors without prior permission.
2. The necessity of prior notification of the authorities may be established by law in the case where a public assembly or manifestation is held on a public thoroughfare.
3. Only the authorities shall have the right to break up a public assembly or manifestation in case it assumes an illegal character.
14. The right of assembly is thus guaranteed, but not in the terms in or subject to the same limitations as the ECHR or ICCPR to which Georgia acceded May 1994 and April 1999 respectively.
15. Article 19 of the Constitution guarantees freedom of speech, thought, conscience, religion and belief with restrictions being permitted only where their exercise infringes upon the rights of others. It is noteworthy that this limitation is not contained in the guarantee of freedom of assembly.
Analysis of the law
16. I agree with the observations of my Co-rapporteur, Mr Aurescu, and would make the following additional comments.
Articles 1 and 2
17. The guarantee contained in Article 25 of the Georgian constitution read together with the provisions of the amended Law do not reflect the freedom of assembly guaranteed by the European Convention. Whilst the right is guaranteed to "everyone" in the Constitution "except members of the armed forces and Ministry of Internal Affairs" without a requirement for notification, except in certain cases dealt with below, the limitations do not accord with the Article 11(2) of the European Convention. It is not essential to have a specific law on assembly, but where a state enacts such a law it any limitations on the exercise of the right should follow closely the terms of the Convention. In the circumstances the Law, and indeed the Constitution itself, should be amended to include the terms of Article 11(2) of the Convention and ideally there should be a reference to the Convention itself.
18. It should be made clear that the restriction on the right of "members of the armed forces and Ministry of Internal Affairs" is limited to the security forces assembling and demonstrating as such and that it is not a complete prohibition on individual members participating in assemblies.
Article 6
19. This article is unclear. It provides that a "local government body has a right to determine a permanent place and time for holding assemblages about which no preliminary warning notice has been made". Article 6(2) goes on to say that this provision is without prejudice to the constitutional guarantee. The article should be clarified so as to make clear that such a "permanent place and time" is one where assemblies are permitted on the public thoroughfare. As the Law stands no notification is required except where an assembly is to take place on a public thoroughfare (see Constitution and Article 1.3 of the Law). The Law should also state that designation of such a place does not in any way interfere with the right to give notification of an intended assembly elsewhere on the public thoroughfare. The Venice Commission and the Guidelines have stated that where restrictions on place are imposed, these should strictly adhere to the principle of proportionality and should always aim to facilitate the assembly within sight and sound of its object/target audience[12].
Article 7
20. It is not clear what activity is exempted from notification by this Article. It purports to exempt from the notification requirement "regular citizens who would like to express their opinion by means of posters, slogans. banners, and other visible tools". If a march takes place on the public thoroughfare where people carry banners, is this exempt? How does this provision interact with Article 5.1 (the requirement to submit prior notification where an assembly is to be held on the public thoroughfare)?
Article 8
21. There is no provision in the Law for amending a notification. The Venice Commission has previously advised[13] that a system of notification is in itself admissible so long as it is only meant to help the authorities cope more easily with the practical problems involved by the holding of an assembly. The requirements of such system must not be too cumbersome, lest they should encourage the authorities to restrict or suspend an assembly too easily. The European Court of Human Right has warned against a legal obligation to comply with excessive administrative requirements, including the obligation to submit a traffic organisation plan, as this was likely to violate the principle of proportionality and to be understood as a system based on permission rather than registration.[14] A flexibility clause explicitly providing the organisers with the possibility of remedying any shortcoming in their notification form at any time prior to the day of convening the intended assembly and the possibility of notifying the intention to organise an assembly in lesser time than the five-day notice should be included. The full five days notice should be required only “as a general rule”. It is important that assemblies can be held with a presumption of legality so as to avoid any chilling effect caused by delay on organisers and participants.[15]
22. There is no provision in the notification that would allow spontaneous assemblies and these are undoubtedly protected.[16] The requirement in Article 5 that every notification be signed by the "organiser and trustee" means in practice that spontaneous assemblies are prohibited even though there is nothing in the Law that links such prohibition in any way to the reasons set out in the Convention permitting restriction of the right of assembly. The Guidelines state at paragraph 98:
"The issue of spontaneous assemblies merits special attention with regard to the requirement of prior notification. The law should explicitly provide for an exception from the requirement of prior notification where giving prior notification is impracticable. The law should also provide a defence for participants charged with taking part in an unlawful assembly if they were unaware of the unlawful nature of the event. Furthermore, if there are reasonable grounds for non-compliance with the notification requirement, then no liability or sanctions should adhere."
Article 9
23. This article has been amended by the Law referred to the Venice Commission by the Georgian Parliament. It represents a significant and blanket restriction on assemblies on those parts of the public thoroughfare most likely to be sought to be used by those wishing to demonstrate. This provision does not take in due consideration the circumstance that, in order to have a meaningful impact, demonstrations often need to be conducted in certain specific areas in order to attract attention (Appelwirkung, as it is called in German)[17]. It prohibits assemblies within 20 meters of the entrance to a great many state buildings. No individual consideration can be given by the authorities to accepting notification of an assembly and therefore the assembly cannot not permitted (see Articles 11(1) and 13). In the circumstances, this is a disproportionate rule. Again, there is nothing in the Article that links such prohibition in any way to the reasons set out in the Convention permitting restriction of the right of assembly. It is incumbent on the authorities to facilitate the right of assembly and restrictions can only be imposed in accordance with the limitations permitted by Article 11(2) of the European Convention. Organisers should be permitted to notify the intention to hold assemblies in these areas in accordance with Article 8 and the authorities should make their decision to accept/not accept the notification on a case by case basis specifically having regard to the list of permissible restrictions contained in Article 11(2) of the European Convention.
Article 10
24. This Article permits the appropriate authority to "give a written recommendation" to organisers that the place and date of an assembly be changed if:
"(a) the assemblage or manifestation creates a real threat to the normal functioning of enterprises, institutions and organizations;
(b) the assemblage or manifestation is scheduled to be held in places described in Article 9(1) of this Law."
It should be confirmed that organizers are not obliged to move the assembly on foot of the "recommendation".
25. In any event, the fact that an assembly may cause a threat to normal functioning of organizations is not, in itself, a basis for prohibiting or otherwise restricting a planned peaceful assembly. It is incumbent on the authorities to facilitate peaceful assembly.
26. The Law does not expressly protect counter-demonstrations. However, potential disorder arising from hostility directed against those participating in a peaceful assembly must not be used to justify the imposition of restrictions on the peaceful assembly. In addition, the state’s positive duty to protect peaceful assemblies also extends to simultaneous counter-demonstrations. The state should therefore make available adequate policing and other resources to facilitate counter-demonstrations within sight and sound of one another.[18] "The state’s duty to protect peaceful assembly is of particular significance where the persons holding, or attempting to hold, the assembly are espousing a view that is unpopular, as this may increase the likelihood of violent opposition."[19]
Article 11 and Article 111
27. Article 11 prohibits the "[hindering] of public transport deliberately" and the authorities are permitted to halt the assembly if this happens. The recent amendments to Article 11 provide that blockage of the thoroughfare is prohibited unless the blockage is caused by the number of people attending the assembly. So, erecting a physical barrier to block the street or the use of a small number of people to block the street is never permitted, whatever the nature of the assembly or its purpose and even if it is peaceful. Notification is required in all cases where as assembly is to take place on the public thoroughfare (Article 5).
28. The emphasis in these articles is on prohibition where there is public inconvenience. However, as set out above and as emphasised in the Guidelines, participants in public assemblies have as much a claim to use such sites for a reasonable period as everyone else. Indeed, public protest, and freedom of assembly in general, should be regarded as an equally legitimate use of public space as the more routine purposes for which public space is used (such as pedestrian and vehicular traffic). In exercising the ‘traffic’ consideration, a balance must always be struck between the interests of citizens who wish to hold a meeting or procession and the interests of citizens whose right of passage is affected by that meeting or procession.[20] The extensive prohibitions on assemblies which obstruct the thoroughfare are not linked to permissible reasons within the meaning and jurisprudence of Article 11 (2) of the European Convention. These articles should therefore be revised.
29. The authorities and police and security forces must understand that their role is to facilitate the exercise of the fundamental right of peaceful assembly in a way that best meets the needs of those assembling and not to give automatic priority to other interests such as normal traffic flow. The state has a positive obligation to guarantee the effective exercise of the freedom and may be required to intervene to secure conditions permitting the exercise of the freedom - there must be no unjustifiable restrictions of peaceful assemblies. The state must act in a manner calculated to allow the exercise of the freedom.
Article 12
30. This Article expresses the positive duty on the state to facilitate exercise of freedom of assembly. However, this positive duty is improperly restricted by virtue of the restrictions contained in other articles of the Law which require to be amended.
Article 13 as amended
31. This article provides for the halting or immediate termination of assemblies that infringe Article 4.2 which call for violence or subversion or social confrontation and also which infringe Article 11 rules concerning time and place and block the thoroughfare. The comments above concerning Article 11 apply to this Article.
32. Insofar as assemblies calling for violence or subversion are concerned the following comments can be made.Article 13.2 requires that where there are calls for violence or subversion or social confrontation, the "responsible persons [trustees and organisers] shall break up an assemblage or manifestation and take measures to drive the participants away". This is inconsistent with Article 25 of the Constitution which provides that "only the authorities shall have the right to break up a public assembly or manifestation in case it assumes an illegal character." Clearly, matters of policing should be left to the police. An obligation can be placed on the organizers of such an illegal assembly to arrange for its dispersal by asking participants to depart and requiring them not to encourage the continuation of illegal activity. However any compulsion or force that is required to be used should only be exercised by the police.
33. As set out in the OSCE/ODIHR Guidelines “the touchstone [for restriction] must be the existence of an imminent threat of violence"[21]. Peaceful assembly should, in principle be permitted and facilitated. This principle is not reflected in the Law and not in this Article in particular, and the Law should be revised accordingly.
34. Article 13.3 provides that "A decision on halting an assemblage or manifestation can be appealed against in the court. The latter shall adjudge on lawfulness of the decision within three working days of the receipt of appeal." Whilst a reasoned opinion of a court is required, it is not stated in the law what remedy the organisers and participants have where an assembly has been improperly halted. This should be addressed. It should be stated expressly that the appellant is entitled to call evidence and examine and cross-examine witnesses, including police witnesses.
Article 14
35. This article provides that "A local governance body is empowered not to allow holding an assemblage or manifestation if there is evident information checked by police that the assemblage or manifestation directly threatens the constitutional order and life and health of citizens. A decision on refusing to allow holding an assemblage or manifestation is taken by an authorized representative." It should be expressly stated that organisers may have access to the information of the police on foot of which the assembly is prohibited.
Draft Law on Amendments and Supplements to the Law on Police
36. The amendments have been provided but not the original law. It is therefore not possible to comment in any detail on this draft. However, its purpose has been described by the authors of the amendments as being "to avoid confusion amendment introduces clear provision that non lethal weapons can be exploited by police to prevent crime and protect law and order". The law is a general law on policing, however it is described as being part of a "package" together with the amendments to the Law on Assembly and the Code on Administrative Offences. In the circumstances, it would be desirable if the Venice Commission were furnished with all necessary laws and documentation so that it could comment on this draft law before it is enacted.
Draft Law on Amendments to the Code on Administrative Offences
37. Similar comments apply to this draft law which is also a general law but also part of the "package" referred to in the paragraph above. In particular, it increases from 30 days to 90 days the length of administrative detention for "minor hooliganism that is punishable by administrative detention for 90 days; disobeying to the orders of officials/ police; blockage of administrative buildings and traffic in violation of law." These would appear to be significant amendments and it would be desirable if the Venice Commission were furnished with all necessary laws and documentation so that it can comment on this draft law before it is enacted.
