The right to freedom of peaceful assembly is not absolute, and restrictions may be imposed. The main international treaties guaranteeing the right set out a similar strict test for restrictions (see Article 21 of the ICCPR, Article 11 of the ACHPR, Article 15 of the ACHR and Article 11(2) of the ECHR). Under this test, restrictions to freedom of peaceful assembly are only permissible when they: (1) are imposed in conformity with the law; (2) pursue a legitimate aim; and (3) are necessary in a democratic society, meaning that any restriction must comply with a strict test of necessity and proportionality.
4.1 What constitutes a restriction?
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 which 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.
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. 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.
4.2 First prong: Prescribed in conformity with the law
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.
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.
Thus, restrictions on freedom of peaceful assembly cannot be imposed through a government order or administrative decree, 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.
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’”. 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. 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.”
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.
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.
The IACtHR and the AComHPR’s Study Group on Freedom of Association and Assembly in Africa take a very similar view.
4.3 Second prong: Legitimate aim
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.” The regional treaties recognise 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.
In its General Comment No. 34, the Human Rights Committee provided clarification on the meaning of specific legitimate aims. Public order refers to the sum of rules ensuring the peaceful and effective functioning of society, while national security refers to the political independence and/or territorial integrity of the State. 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.”
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 cannot be derived exclusively from a single tradition. 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. Economic interests as such are equally not part of the interests as enumerated.
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.
Arguments thus need to be specific; they cannot be made in abstracto or by indicating general, unspecified risks, but must be made in an individualized fashion, applied in the particular case or with a specific justification.
4.4 Third prong: Necessity in a democratic society
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:
[A]ny restrictions on the exercise of the rights guaranteed under articles 19 and 21 must conform to strict tests of necessity and proportionality and be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.
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 …
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.
Under to the AComHPR, 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.” ↑