In this long read, a law student who wishes to remain anonymous for fear of reprisals analyses the tension between notification regimes for public assemblies and the right to peaceful assembly as a fundamental human right, underscored by landmark rulings such as Kudrevičius v Lithuania in the European Court of Human Rights and a 2023 UK Supreme Court decision. Despite international advances in human rights law, disputes arise as to what amounts to sufficient protection of the right and suffice the international norms of accommodating the inherent disorder of peaceful assemblies.
Freedom of peaceful assembly is a fundamental human right recognized by Article 21 of the International Covenant on Civil and Political Rights. Unfortunately, we witnessed the derogation of rights from around the world just this summer. Amnesty International stated their alarm at the intensifying quell on protest action in Europe and UN experts condemned the massive crackdown on pro-Palestinian student protests at various US university campuses in July. Undeniably, the right of peaceful assembly is not absolute. Restrictions can be placed on the right if they are prescribed by law, pursue legitimate aims, and are necessary in a democratic society. Notification regimes are one of the many restrictions that authorities impose on activists to regulate their right to protest. This occurs when, through legal and procedural frameworks that govern how organizers of public events, such as protests or demonstrations, must inform authorities about their plans. In many countries, these regimes require organizers to provide advance notice to the appropriate authorities about the time, location, and nature of the assembly. The purpose is to ensure that public events occur safely and with minimal disruption to public order. However, the specifics of how much notice is required and what information must be provided can vary widely between jurisdictions. The balance of maintaining public safety while respecting the right to peaceful assembly is often a key point of contention within these notification regimes. In light of this, how do these regimes resolve the tension between the pressing social needs and freedom of peaceful assembly?
What is the facilitative principle for notification regimes?
Some notification regimes may require authorities’ approval before a public assembly can take place, sometimes also referred to as de facto authorization regimes. To require permission from the authorities before exercising a fundamental human right is counterintuitive. As such, the UN Human Rights Committee introduced the facilitative principle: notification procedures should only be a mechanism that allows the authorities to facilitate the smooth conduct of peaceful assemblies. Importantly, the UN Human Rights Committee specifically warned that notification requirements must not be misused to stifle peaceful assemblies. In other words, whilst there is room for justifying the interference with the right by introducing notification regimes, peace is the overarching concern of such regimes, not to facilitate political agendas or police operations.
What requirements apply to notification regimes under international human rights law?
International human rights law requires that notification regimes conform to the principles of legality, necessity and proportionality. In practice, however, notification regimes can be drafted poorly, allowing room for authorities to interfere with the right disproportionately.
Broadly speaking, legality requires that the law is drafted in a sufficiently clear manner, allowing activists to foresee the legal consequences. Recently on September 10, the European Court of Human Rights (ECtHR) held that Russia infringed the applicant’s right to protest by convicting her of holding public events without prior approval from municipal authorities. A Russian court ruled that the hunger strike organized by the applicant amounts to a “static demonstration” under the impugned Public Events Act, which not only requires obtaining prior authorization but also imposes a general ban on public events from 10 am to 7 am. The applicant argued that the Russian court’s interpretation made it difficult to determine which forms of expression are caught by the impugned legislation. The ECtHR also accepted the argument that the broad wording of the legislation and the expansive judicial interpretation make it difficult to distinguish between public expressions that fall under the right of free speech and public events that are protected by the right of peaceful assemblies.
In addition, ICCPR requires that the restriction pursues a legitimate aim. These aims could be in the interests of national security, public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedom of others. Notably, these general legitimate aims are inherently vague and must be approached with caution. For instance, when governments impose restrictions on grounds of national security, the restriction must be necessary to preserve the State’s capacity to protect its territorial integrity or political independence against a credible threat or use of force. Similarly, “public order” refers to the sum of the rules that ensure the proper functioning of society, which specifically includes respect for human rights according to Siracusa Principles. Accordingly, the governments are obliged to provide a significant degree of toleration to peaceful assemblies, albeit inherently disruptive to peace and social order. On September 9, Amnesty International condemned the new Peaceful Assembly and Public Order Act, swiftly legislated by Pakistan, for its overbroad grounds of restrictions–“disruption of daily activities.” FORUM-ASIA also expressed its concerns that the overly broad ground grants the state excessive power to limit assemblies on arbitrary grounds, underscoring the fact that the law was swiftly enacted one week before a planned rally organized by the opposition party, Pakistan Tehreek-e-Insaf in Islamabad.
Last, international human rights law requires that restrictions are necessary in a democratic society. Siracusa Principles recognize that there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the UN Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition. The UN Human Rights Committee further elaborates that this additional requirement on the restriction requires a proportionality analysis between the benefits it achieves and the detrimental impact it brings on democracy, the rule of law, political pluralism and human rights. In the above-mentioned Russian case, the ECtHR supported their ruling against Russia on the additional ground that the hunger strike intended to protest against the use of torture in Russian penal facilities, which warranted privileged protection under the European Convention on Human Rights.
What is post-event fact-specific proportionality inquiry?
The permissibility of a notification regime does not stop at its pre-emptive systemic analysis. Notification regimes, or de facto pre-authorization procedures, often come with administrative sanctions or criminal liabilities following failure of compliance. The enforcement of notification procedures is also a kind of interference that attracts scrutiny under international human rights law.
In a systemic proportionality inquiry, the court asks whether the notification regime, as a law, is sufficiently well-drafted to limit the freedom of right proportionately. On the other hand, an operational proportionality inquiry asks whether the enforcement actions, including arrests by the police, prosecutions by the government and convictions by a court, are proportionate to the activist’s right to peaceful assembly. Operational proportionality has been an important notion in protecting the right of peaceful assembly in Strasbourg jurisprudence.
In its landmark ruling of Kudrevičius v Lithuania, the European Court of Human Rights affirmed that “the absence of prior authorization 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.” The court, in another case Obote v Russia, affirmed that State Parties must assess the level of the disturbance caused by the unauthorized assembly and that the convictions of the activist’s non-compliance with the notification requirement must be a proportionate interference. In other words, criminal sanctions for non-compliance with notification requirements per se are disproportionate interference.
More recently in 2023, the UK Supreme Court also confirmed the operational proportionality inquiry in its jurisprudence. When a criminal conviction engages the right to peaceful assembly, a UK court is obligated under the Human Rights Act to consider whether “proof of the ingredients of the offence in itself ensure the proportionality of a conviction.” This approach distinguishes common criminal offences, such as offences of violence or concerned with damages to properties, and offences regulating the right to protest. If the offence does not pass the mentioned test, though the law itself may remain systemically proportionate by meeting the principles set out in the previous section, the court must assess the proportionality of the conviction to eliminate the possibility that a conviction might be incompatible with the Convention rights.
In summary, the aforesaid principles and decisions recognize that an activist can legitimately exercise their right of peaceful assembly even though the exercise is not formally lawful due to the non-compliance of a notification regime. Whether a conviction is proportionate requires an analysis of “the facts on the ground” known at the time of the trial. Depending on other relevant factors, a conviction is more likely than not disproportionate if the activist exercised their right in a peaceful and non-violent manner, and that the public assembly related to a matter of general concern.
In August, debates arose in Hong Kong at its top court for the compatibility of an operational proportionality inquiry within its broader constitutional framework. The city’s Public Order Ordinance is a de facto authorization regime which confers on the commissioner to object to the public procession if they consider it necessary. Back in 2005, the majority of the Court of Final Appeal upheld its constitutionality, believing that the regime, with judicial scrutiny and statutory limits, is no more than necessary to enable the government to fulfil its positive duty to “enable lawful assemblies to take place peacefully.” Notably, in his dissent, Mr Justice Syed Kemal Shah Bokhary regarded the regime, in particular the Police Commissioner’s power to impose prior restraints, unconstitutional. He reasoned that the statute’s omission to limit prior restraint as the last resort and the failure to enumerate the conditions the commissioner can impose on public assemblies cannot be said to have met the freedom-friendly standard. In addition, he argued that the availability of judicial review should not be the reason why the executive power, otherwise unconstitutional, can be upheld.
In this context, seven activists challenged their convictions on participation in unlawful assemblies, advocating for the incorporation of operational proportionality as the last constitutional check before convictions. The lower courtsmaintained that the activist’s action was “a direct challenge to the authority of the police, law and order” and did not accept that peacefulness in hindsight relieved the activists from criminal liability. The Court of Final Appeal upheld this ruling with the approval of former UKSC president Lord Neuberger of Abbotsbury. The bench reasoned that allowing activists to challenge the systemic proportionality of the regime and the authorities’ ban on an assembly is sufficient to protect the right in accordance with the ICCPR. In other words, the constitutional scrutiny in place is sufficient to satisfy the threshold, as laid down by the UK Supreme Court in Abortion Services, that “the offence is one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients are made out, and the defendant is convicted, there can be no breach of his or her Convention rights.” The court also noted that the operational proportionality inquiry does not bring any efficient change to Hong Kong constitutional law, provided that the police’s power to arrest must be exercised based on reasonable grounds to suspect the person arrested of being guilty of a relevant offence. Prosecutorial decisions are also mostly immune from the court’s review to preserve prosecutorial independence under the Basic Law. It then follows that any convictions based on a constitutionally compliant notification regime, which was previously confirmed by the same court, must be a proportionate interference with the activist’s right to peaceful assembly.
Comment
The dispute ultimately rests on the question: Is the activist still exercising their freedom of peaceful assembly when they participate in an unauthorized yet peaceful assembly? Before answering this question, one must note that the freedom of peaceful assembly is a fundamental human right and requiring prior permission to exercise the right undercuts its fundamentality. Under this premise, whilst international human rights law recognises that limitations could be proportionately imposed on the right, restrictions must be imposed for the purposes listed in the ICCPR and require the most cautious scrutiny of the restrictions’ compatibility with the right.
The uniqueness of a post-event proportionality inquiry is that it allows the court, in hindsight, to consider whether the activists’ conduct warrants government interference. Even if it is accepted that the government may impose prior restraints to eliminate risks to public safety, executive authorities are unable to foretell accurately what will happen in a public assembly and thereby make a judgment on whether and what kinds of prior restraints are no more than necessary in its pre-event assessment. On the other hand, the court can assess all information in hindsight and consider whether an activist is exercising its freedom of assembly in a responsible and peaceful manner that advances public discussions, desirous in a democratic society.
One major concern is that the defiance of authorization regimes could be a “direct challenge to the authority.” Allowing peacefulness as a defence encourages activists to ignore the regimes and undermine the authorities’ ability to protect the rights of others, facilitate peaceful assemblies and the regime’s integrity. However, this argument is misleading as the UNHRC has already warned that “the enforcement of notification requirements must not become an end in itself.” Convicting activists for participating in an unauthorized assembly when it does not violate the rights of others, with the sole purpose of maintaining the integrity of the regimes is not coherent to UNHRC’s interpretation of the ICCPR. The non-enforcement of the regime against a peaceful assembly can also encourage the public to participate in assemblies in a peaceful manner as criminal sanctions do not necessarily follow, thereby achieving its legislative intention. In other words, non-enforcement is not the result flowing from a procession fortuitously turned out to be peaceful but the fulfilment of the government’s positive duty to facilitate public assemblies.
Conclusion
This article has examined the state’s obligations to protect freedom of peaceful assembly and the limitation on the state to impose restrictions on the rights. While the ICCPR and the right of peaceful assembly were affirmed in 1966, the author regrets the common use of prior restraints against the peaceful exercise of the right. On the flip side, the increasing convictions also mean that we are witnessing a common desire to advance human rights and engage in public discussions. The author remains optimistic about the advancement of international human rights laws, along with the diversity in public spheres.
This article was written by a law student contributor who has requested to remain anonymous for fear of reprisals.
