4. Restrictions imposed on assemblies must comply with a three-prong test

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:

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.^[2] Gafgaz 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.^[3] Gafgaz Mammadov v. Azerbaijan, ECtHR, Judgment of 15 October 2015, para. 50.

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

Thus, restrictions on freedom of peaceful assembly cannot be imposed through a government order or administrative decree,^[5] IACHR, 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.^[6] IACtHR, 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’”.^[7] Tanganyika 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.^[8] See 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.”^[9] Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 411.

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:

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

The IACtHR^[12] Fontevecchia and D’Amico v. Argentina, IACtHR, Judgment of November 29, 2011, para. 90. and the AComHPR’s Study Group on Freedom of Association and Assembly in Africa^[13] AComHPR, Report of the Guidelines 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.”^[14] 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.” 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:

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. ^[16] Human Rights Committee, General Comment 34: Article 19 (Freedoms of expression and opinion), UN Doc. CCPR/C/GC/34 (2011), para. 33. 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.”^[17] 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.

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.^[18] Human Rights Committee, General Comment 34: Article 19 (Freedoms of expression and opinion), UN Doc. CCPR/C/GC/34 (2011), para. 33. 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.^[19] See Young, James and Webster v United Kingdom, ECtHR, Judgement of 13 August1981, para. 63. Economic interests as such are equally not part of the interests as enumerated.^[20] Human 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.

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

Arguments thus need to be specific; they cannot be made in abstracto or by indicating general, unspecified risks,^[22] Alekseev 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,^[23] Human 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 case^[24] Schumilin 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.^[25] Kim 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:

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:

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

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: