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. 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. 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:
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 (see Assembly Section 13.6), effective communication with organizers and participants (see Assembly Section 13.5), and proper preparedness for assemblies (see Assembly Section 13.7).
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.”Gillan 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:
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. OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 154.
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.Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 133.
13.4 Dispersal of assemblies
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:
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 (see Assembly Section 11.5).
The use of force to disperse an assembly should always comply strictly with the principles applicable to the use of force (see Assembly Section 13.7). In line with the necessity and proportionality principle (see Assembly Section 13.7), force should only be used if there is no alternative, and should be limited to the minimum needed. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state:
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.” 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 demonstrations IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 81.
13.5 Law enforcement agencies must communicate effectively with organizers and participants
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,” 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. 5. while the joint report on the proper management of assemblies affirms that:
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. 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.
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.AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 13.2.
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 organisers 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 20 to 50 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.Frumkin 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. 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.
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.Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, paras. 128-129.
13.6 Personnel managing assemblies must receive adequate training
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.”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:
• 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 (see Assembly Section 13.5), negotiation, persuasion and mediation;
• Alternatives to recourse to force and the imperative of minimizing its use;
• The correct use of any firearms (see Assembly Section 13.8) or less-lethal weapons (see Assembly Section 13.8) 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. 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. 13.
13.7 The exceptionality of force when facilitating assemblies
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.Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 249.
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.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 aggression UN 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:
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.Landaeta Mejías Brothers et al. v. Venezuela, IACtHR, Judgment of August 27, 2014, para. 136.
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 (see Assembly Section 13.7) 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.Giuliani and Gaggio v. Italy, ECtHR, Grand Chamber Judgment of 24 March 2011, para. 176.
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 (see Assembly Section 14) or discharge a firearm in the performance of their duty (see Assembly Section 13.8).
13.8 Conditions for the use of firearms and less-lethal weapons by law enforcement agents
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 (see Assembly Section 13.7). In addition, a number of specific rules apply.
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.IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.
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.IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 227.
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 …
The ECtHR has held that States have a duty to effectively investigate injuries and deaths during assemblies (see Assembly Section 14), and that this duty is violated if security forces take steps that make it impossible to identify individual responsibilities.
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.Ataykaya v. Turkey, ECtHR, Judgment of 22 July 2014, paras. 52-54 (references omitted).
, the Court sidestepped the question 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.”Ataykaya 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.