Despite being a constitutionally protected right, freedom of peaceful assembly remains undervalued, over-regulated and inadequately protected in many countries in the former Soviet Union.[1] Some of the most egregious responses to public gatherings have occurred in the context of opposition mobilisation during election periods.[2] As Graeme Robertson has noted, maintaining electoral advantage in post-Soviet ‘hybrid regimes’[3] depends on portraying ‘an air of invincibility or permanence’ by ‘pre-empting threats that emerge from outside the elite in the form of mass protest or unrest’.[4] Pre-emption may take the form of intensified repression of opposition protesters and also the mobilisation of pro-government activists (‘counter-organising’).[5] Evidently, such impulses preclude the emergence of functioning, let alone pluralist, democracies (though they have also sometimes inspired novel forms of protest, such as the handclapping protests in Belarus,[6] and toy protests in Barnaul, Siberia).[7]

 

This short essay does not attempt to comprehensively catalogue violations of the right to freedom of assembly in the former Soviet Union. Nor does it focus on those examples of repression characterised by excessive use of force against demonstrators,[8] targeted crackdowns on opposition movements,[9] or the repeated failure of states to uphold their positive obligations to adequately protect assemblies from violent counter-demonstrators,[10] particularly those organised in support of LGBTI rights.[11] Instead, the essay aims simply to highlight three key background factors (relating to powers, procedures and penalties) which continue to thwart the full realisation of this fundamental right in the post-Soviet space. These are, respectively: the excessive discretion conferred on regulatory authorities; notification requirements that are tantamount to authorisation requirements; and the imposition of disproportionate penalties for relatively minor infractions of the law.

 

Legal framework: Cut from the same cloth?

It is important first to emphasise that while the notion of regional contagion suggests that states ‘mimic internationally illegitimate actions that are deemed regionally appropriate’,[12] the restrictive practices discussed here are neither uniform within, nor unique to, the post-Soviet space.[13]  Furthermore, while it might be thought that the restrictive practices of today are simply a legacy of the former Soviet regime, and that the legal frameworks within the region were ‘cut from the same cloth’, this would be an over-simplification. Certainly, in some countries, the Decree of the Chairmanship of the Supreme Soviet of the USSR on ‘Rules for Organising and Holding of Assemblies, Rallies, Street Processions and Demonstrations in the USSR’ (28 July 1988) continued to be applied post-independence.[14] This Decree emphasised the need to apply for permission for assemblies, the ‘right’ of the authorities to offer another time and place for an assembly, and the obligation on the authorities to stop an assembly where no application had been submitted. The continued influence of this Decree today is perhaps especially pronounced in Ukraine where no specific law on public assemblies has yet been enacted, thus enabling local councils to arbitrarily restrict assemblies.[15] Indeed, the European Court of Human Rights has required the urgent implementation of specific reforms in Ukraine’s legislation and administrative practice to remedy this ‘structural’ problem.[16]

 

However, throughout the 1990s, many of the newly independent states adopted bespoke laws on freedom of assembly against the backdrop of fundamental constitutional reform.[17] Indeed, some countries (such as Armenia and Moldova)[18] have since introduced significant liberalising amendments to their laws on assembly, sometimes after consultation with civil society representatives and with legislative support provided by international bodies such as the OSCE and the European Commission’s Technical Assistance and Information Exchange (TAIEX) programme.[19] In this light, the increasingly remote common legal heritage does not adequately explain the present day sharing of bad practices within the region – regard must also be had to perceived internal security imperatives, the development over time of a stock repertoire of police responses to public gatherings, the combination of a regulatory mind-set (which prioritises the management and control of assemblies over their facilitation) and high levels of discretion enjoyed by the regulatory authorities.

 

Bans and restrictions: Excessive discretion

The Russian Assembly Law, for example, has been roundly criticised for conferring ‘too broad discretion on the executive authorities to restrict assemblies.’[20] Such discretion commonly translates into restrictions that wholly undermine the very essence of the right to peacefully assemble – particularly the principle that ‘the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly.’[21] In several countries, widely framed discretionary powers have enabled the excessive prioritisation of ‘traffic’ considerations over assemblies,[22] reliance on unsubstantiated threats to public order or national security,[23] bans imposed because another demonstration is taking place at the same location,[24] or because the proposed assembly coincides with a public holiday or significant date.[25]

 

In some countries, there remains only a power to prohibit (or ‘temporarily ban’) assemblies, rather than a power to impose more narrowly tailored restrictions.[26] Indeed, many countries retain blanket bans on assemblies in central or symbolic locations (or designate specified assembly locations which are routinely ‘preferred’ by the authorities).[27] The implications of unchecked discretion for freedom of assembly are stark. For example, in Ukraine, just before the Euromaidan demonstrations began in November 2013, the UN Human Rights Committee expressed concern at reports that the success rate of local authorities’ applications to court seeking a ban on peaceful assemblies was as high as 90 per cent.[28] Likewise in Kazakhstan, a study by the Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHR) found that between October 2012 and March 2013, 76 per cent of all applications to hold gatherings were rejected.[29]

 

Procedural problems: Notification in name, authorisation in practice

Underlying this broad discretion in many countries is a more fundamental procedural problem, namely, the subjection of assemblies to a de facto authorisation procedure. In the Russian Federation, for example, Article 5 of the Assemblies Act provides that an ‘organizer of a public event shall have no right to hold it when … no agreement has been reached with the executive authority’. This requirement to ‘agree’ the conditions for an assembly with the authorities is far removed from a simple notification process (where neither agreement nor approval is expected). Moreover, the ‘take it or leave it’ nature of any ‘agreement’ reached under this ‘notification and endorsement’ process is one that significantly imperils the right to freedom of assembly.[30] The erosion of the right is compounded by two further related practices that commonly also arise – the default dispersal of spontaneous assemblies (or those that depart in any way from the terms authorised), and the prohibition on any prior promotion of a public event that has not yet been ‘agreed’.[31] Recently in Kazakhstan, for example, Ermek Narymbaev, was convicted of organising an unsanctioned protest after posting on Facebook that he was going to Almaty’s central square to hand-deliver a list of demands to local government representatives.[32] Such practices undermine the principle that peaceful assemblies should take place without impediment (and the corresponding negative obligation of states not to interfere with this fundamental freedom). Indeed, as the European Court of Human Rights recently emphasised (in a case against Azerbaijan), the enforcement of notification or authorisation requirements ‘cannot become an end in itself’.[33]

 

Punitive sanctions for minor infractions and an over-emphasis on organiser’s ‘responsibilities’

In recent years, concerns have been raised about a trend towards ever harsher penalties and sanctions. By way of example, the Commissioner for Human Rights of the Council of Europe raised serious concerns in relation to the introduction in Azerbaijan of possible fines for assembly participants of up to two-and-a-half times – and for organisers, of up to seven-and-a-half times – the average monthly salary.[34] Similarly, in relation to the Russian Federation, the UN Human Rights Committee lamented ‘the strong deterrent effect’ of amendments introduced in 2012, and amended in July 2014, which impose high administrative sanctions on assembly organisers previously convicted of similar administrative offences.[35] The 2014 reforms included the possibility of custodial sentences for participation in an unauthorised public gathering and a maximum fine of 1 million roubles or five years’ imprisonment for repeat violations. These concerns were recently borne out in the conviction of Ildar Dadin, initially for three years (later reduced to two years and six months).[36] Such provisions exist in clear tension with the principle stated by the European Court of Human Rights, that ‘the freedom to take part in a peaceful assembly is of such importance that a person cannot be subjected to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as this person does not himself commit any reprehensible act on such an occasion.’[37] Moreover, in several countries there have been attempts to shift certain responsibilities onto assembly organisers that ought properly to lie with the state (for example, for maintaining order, providing emergency medical cover, or cleaning-up in the aftermath of an assembly). The attendant administrative or criminal liability that such laws also impose (should these responsibilities not be met) has a further chilling effect on the enjoyment of the freedom to assemble.

 

Conclusion

In large part, this essay identifies a failure to adequately embed the principle of proportionality in the regulatory framework governing the right to freedom of peaceful assembly (whether in relation to powers, procedures or penalties). While there are undoubtedly regional exceptions, there are also discernible patterns that evidence the sharing of bad practice. The underlying problem that must be remedied (albeit one that is not unique to countries in the former Soviet Union) is the persistent belief that peaceful assemblies are to be managed and controlled rather than facilitated.

[1] Translations of several assembly laws in the region are available at: http://www.legislationline.org/topics/topic/15.

[2] See, for example, A/68/299, Report of the UN Special Rapporteur on the rights to freedom of

peaceful assembly and of association, Maina Kiai, on the exercise of the rights to freedom of peaceful assembly and of association in the context of elections, 7 August 2013, paras 18-19, 29, highlighting the intimidation and arbitrary detention of opposition activists, and use of excessive force against protesters, in Belarus in December 2010, and in the Russian Federation in both December 2011 (Parliamentary elections) and May 2012 (Presidential elections). See also, Final Human Rights Assessment of the Events of 19 December 2010 in Minsk, Belarus  (CIC: December 2011) http://belhelcom.org/sites/default/files/Final_HRights_Assessment_of_19-12-2010_in_Minsk-eng_final.pdf; and, International Expert Commission, Evaluation of events on Bolotnaya Square on May 6, 2012 (Moscow: December 2013) http://6maycommission.org/sites/default/files/iec_report_eng.pdf.

[3] Regimes in which there is some degree of open political competition but where the prevailing institutional landscape renders this competition unfair. See Robertson, Graeme, B. 2011. The Politics of Protest in Hybrid Regimes: Managing Dissent in Post-Communist Russia. New York: Cambridge University Press, 6.

[4] Robertson, 169. Indeed, the perceived risks associated with protest are heightened in hybrid regimes which ‘are without the full-blown institutional repressive apparatus of closed authoritarians’ (Robertson, 173).

[5] See also Freedom House, ‘Voices in the Streets: Mass Social Protests and the Right to Peaceful Assembly’, 24, https://freedomhouse.org/report/voices-streets-mass-social-protests-freedom-assembly#.Vy8WFPmDFBc describing the co-option of assemblies in Kyrgyzstan by ‘political and business forces wishing to create the impression of public support for a cause or initiative’, and the related widespread practice of ‘payment for participation in assemblies’.

[6] Protest in Belarus: Clapping ’bout a revolution, The Economist, 28 June 2011, http://www.economist.com/blogs/easternapproaches/2011/06/protest-belarus

[7] Toys protest against government in Barnaul, Siberia – video, Reuters, 20 February 2012, http://www.theguardian.com/world/video/2012/feb/20/toys-protest-siberia-video; Russia mayor bans election activists’ toys protest, BBC, 6 March 2012, http://www.bbc.co.uk/news/world-europe-17049745.

[8] The most notorious events are perhaps those of 16 December 2011, when police shot at and killed at least 12 striking oil workers in Zhanaozen, Kazakhstan (see, Norwegian Helsinki Committee. The Right to Public Protest: A freedom of assembly and association issue in Kazakhstan); The killing of eight protesters in Yerevan, Armenia on 1 March 2008 when police cleared an opposition protest camp in Liberty Square in the wake of the Presidential elections of 19 February (see ‘Eight killed in Armenia protests’, BBC News, 2 March 2008); and the killing of hundreds of protesters in Andijan, Uzbekistan on 13 May 2005. See further, McClinchey, Eric. 2013. States of Protest in Central Asia. PONARS Eurasia Policy Memo No. 299, http://www.ponarseurasia.org/sites/default/files/policy-memos-pdf/Pepm_299_McGlinchey_Sept2013.pdf

[9] See, for example, Human Rights Watch, Tajikistan: Severe Crackdown on Political Opposition, 17 February 2016 https://www.hrw.org/news/2016/02/17/tajikistan-severe-crackdown-political-opposition

[10] In relation to Kyrgyzstan, for example, see Freedom House, ‘Voices in the Streets: Mass Social Protests and the Right to Peaceful Assembly’, 28-29, https://freedomhouse.org/report/voices-streets-mass-social-protests-freedom-assembly#.Vy8WFPmDFBc

[11] There are many examples. Key cases include Bączkowski v Poland, Appl No. 1543/06, 3 May 2007; Alekseyev v Russia, Appl Nos. 4916/07, 25924/08 and 14599/09, 21 October 2010; Identoba v Georgia, Appl No. 73235/12, 12 May 2015; and Milica Đorđević v Serbia, currently before the European Court of Human Rights.  See also, UN Human Rights Committee, Concluding observations on the seventh periodic report of the Russian Federation, CCPR/C/RUS/CO/7, 28 April 2015, para. 10(a); UN Human Rights Committee, Concluding observations on the fourth periodic report of Georgia, CCPR/C/GEO/CO/4, 19 August 2014, para. 8; UN Human Rights Committee, Concluding observations on the seventh periodic report of Ukraine, CCPR/C/UKR/CO/7, 22 August 2013, para. 10.

[12] Cardenas, Sonia. 2007. Conflict and Compliance: State Responses to International Human Rights Pressure. Philadelphia: University of Pennsylvania Press, 110. See also, Ambrosio, Thomas. 2010. Constructing a Framework of Authoritarian Diffusion: Concepts, Dynamics, and Future Research. 11 International Studies Perspectives, 375-392.

[13] This is clear, for example, from the OSCE/ODIHR Freedom of Assembly Monitoring reports which have also found such practices to be prevalent elsewhere. See, OSCE, Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States (May 2013 – July 2014), 17 December 2014  http://www.osce.org/odihr/132281?download=true; OSCE, Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, May 2011–June 2012, 9 November 2012, http://www.osce.org/odihr/97055. As a recent report by Thomas Carothers and Richard Youngs implicitly recognises, totalising conclusions should be avoided even whilst recognizing that regional contagion effects may be evident. Carothers, Thomas and Youngs, Richard. October 2015. The Complexities of Global Protests. Carnegie Endowment for International Peace, 6, http://carnegieendowment.org/files/CP_257_Youngs-Carothers-Global_Protests_final.pdf.

[14] See the Decree of the Chairmanship of the Supreme Soviet of the USSR on “Rules for Organising and Holding of Assemblies, Rallies, Street Processions and Demonstrations in the USSR” (28 July 1988). Continued reliance on this Decree has been held by the European Court of Human Rights to lack the requisite legal foreseeability. See, Mkrtchyan v. Armenia, Appl. No. 6562/03, 11 January 2007, paras 30-45; Vyerentsov v Ukraine, Appl. No. 20372/11, 11 April 2013, para. 54.

[15] See, A/HRC/31/CRP.7, UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the situation of human rights in Ukraine, 17 March 2016, para. 127. Also, Concluding observations on the seventh periodic report of Ukraine, CCPR/C/UKR/CO/7, 22 August 2013, para. 21. Jagland, Thorbjørn. State of Democracy, Human Rights and the Rule of Law: A security imperative for Europe. Report by the Secretary General of the Council of Europe (April 2016), at 56 and 58. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680646af8

[16] Vyerentsov v Ukraine, Appl. No. 20372/11, judgment of 11 April 2013, para. 95; Shmushkovych v. Ukraine, Appl. No. 3276/10, 14 November 2013.

[17] Notably, in Hungary, the Act of Assembly (which remains in force today) was one of the last reforms introduced by the Communist Parliament in 1989. See, Szabó, Máte. 2009. Demonstration Democracy in Hungary: Policing Protest – from the Catacomb of Unofficial Activities to Rioting. In Sajó, András (ed) 2009. Free to Protest: Constituent Power and Street Demonstration. Utrecht: Eleven International Publishing, 221-242.

[18] See, Jarman, Neil and Hamilton, Michael. 2009. Protecting Peaceful Protest. 1(2) Journal of Human Rights Practice 208-235, at 224-226. While the legislative framework is but one explanatory factor at play, one might contrast, for example, the apparently permissive attitude of the authorities to the tent encampments in Chisinau in September 2015 with the grave violations committed against protesters following post-election demonstrations in April 2009. See, UN Human Rights Committee, CCPR/C/MDA/CO/2, Concluding Observations in relation to the second periodic report submitted by the Republic of Moldova, 4 November 2009, para. 8. See also, for example, Vasilie Ernu, Vitalie Sprinceana, and Ovidiu Tichindeleanu, Moldova’s Movement From Below, 17 March 2016, https://www.jacobinmag.com/2016/03/moldova-chisinau-protests-russia-eu-ukraine/

[19] For example, in Montenegro in September 2015.

[20] Venice Commission, CDL-AD(2013)003, Opinion No. 686/2012 on Federal Law No. 65-FZ of 8 June 2012 of the Russian Federation, 11 March 2013, para. 36. http://www.venice.coe.int/WebForms/documents/default.aspx?pdffile=CDL-AD(2013)003-e See also, UN Human Rights Committee, Concluding observations on the seventh periodic report of the Russian Federation, CCPR/C/RUS/CO/7, 28 April 2015, para. 21.

[21] Sáska v Hungary, Appl. No. 58050/08, 27 November 2012, para. 21.

[22] See, for example, Körtvélyessy v. Hungary, Appl No. 7871/10, 5 April 2016. Such ‘traffic logic’, as Nicholas Blomley has argued in a different context, serves to reconstitute public space as a ‘transport corridor’ rather than as a ‘site for citizenship.’ Blomley, Nicholas. 2007. Civil Rights Meet Civil Engineering: Urban Public Space and Traffic Logic.  22 Can J. L. & Soc: 55-72, 64.

[23] For example, UN Human Rights Committee, Concluding Observations on the initial report submitted by Kazakhstan, CCPR/C/KAZ/CO/1, 19 August 2011, para. 26 (‘applications for permission to hold assemblies are often declined on the grounds of public order and national security’).

[24] For example, Alec Luhn, Pro-Federalism protests in Siberia banned after at least nine activists held, The Guardian, 17 August 2014, http://www.theguardian.com/world/2014/aug/17/pro-federalism-protests-banned-siberia-russia-nine-activists-held

[25] See, for example, Paul Goble, Easter Becomes Latest Official Excuse To Limit Freedom Of Assembly In Russia – OpEd, Eurasia Review, 1 May 2016 http://www.eurasiareview.com/01052016-easter-becomes-latest-official-excuse-to-limit-freedom-of-assembly-in-russia-oped/

[26] This was, for example, a point criticized by the Venice Commission in relation to the Georgian Law prior to July 2011. See, Venice Commission, CDL-AD(2011)029, Final Opinion on the Amendments to the Law on Assembly and Manifestations of Georgia, Opinion no. 547/2009, 17 October 2011, para. 8. See also Article 9 of the Serbian Public Assembly Act 1992 (as amended). Yearbook of the Balkan Human Rights Network Editorial Board, Freedom of Peaceful Assembly, Human Rights Report (Ljudska Prava Izveštaj), Issue: 01 / 2012, 209-228, at 226.

[27] See, for example, CDL-AD(2007)042, para. 25; Joint OSCE/ODIHR, Venice Commission Opinion on the Public Assembly Act of the Republic of Serbia, CDL AD(2010)031,para.38; Venice Commission Opinion on Federal Law No.65-FZ of 8 June 2012 of the Russian Federation amending Federal Law No.54-FZ of 19 June 2004 on Assemblies, Meetings, Demonstrations, Marches and Picketing, 11 March 2013, CDL-AD(2013)003, paras 39-40. UN Human Rights Committee, Concluding Observations on the initial report submitted by Kazakhstan, CCPR/C/KAZ/CO/1, 19 August 2011, para. 26 (designation of areas for holding assemblies, ‘routinely located in the outskirts of city centres’) and similarly Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, Mission to Kazakhstan, A/HRC/29/25/Add.2, 16 June 2015, para. 53 and Norwegian Helsinki Committee. The Right to Public Protest: A freedom of assembly and association issue in Kazakhstan.

[28] UN Human Rights Committee, Concluding observations on the seventh periodic report of Ukraine, CCPR/C/UKR/CO/7, 22 August 2013, para. 21.

[29] Norwegian Helsinki Committee. 2015. The Right to Public Protest: A freedom of assembly and association issue in Kazakhstan, 6.

[30] See also, Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan, from 22 to 24 May 2013, CommDH(2013)14, 6 August 2013, paras 63-67. https://wcd.coe.int/ViewDoc.jsp?p=&id=2089109&direct=true; Jagland, Thorbjørn. State of Democracy, Human Rights and the Rule of Law: A security imperative for Europe. Report by the Secretary General of the Council of Europe, April 2016, at 56 and 58, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680646af8

[31] Venice Commission, CDL-AD(2013)003, Opinion No. 686/2012 on Federal Law No. 65-FZ of 8 June 2012 of the Russian Federation, 11 March 2013, paras 34-36. http://www.venice.coe.int/WebForms/documents/default.aspx?pdffile=CDL-AD(2013)003-e

[32] Human Rights Watch. Kazakhstan: Activist Jailed over Currency Protest, 25 August 2015. https://www.hrw.org/news/2015/08/25/kazakhstan-activist-jailed-over-currency-protest

[33] Ibrahimov and Others v Azerbaijan, Appl Nos. 69234/11, 69252/11 and 69335/11, 11 February 2016, para. 79.

[34] Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan, from 22 to 24 May 2013, CommDH(2013)14, 6 August 2013, paras. 70-73. https://wcd.coe.int/ViewDoc.jsp?p=&id=2089109&direct=true

[35] Human Rights Committee, Concluding observations on the seventh periodic report of the Russian Federation, CCPR/C/RUS/CO/7, 28 April 2015, para. 21.

[36] Moscow Activist Handed Three-Year Sentence for Breaching Protest Laws, Moscow Times, 7 December 2015  http://www.themoscowtimes.com/news/article/moscow-activist-handed-three-year-sentence-for-breaching-protest-laws/552136.html; Sentence Reduced for Moscow Activist Accused of Violating Protest Laws, The Moscow Times, 31 March 2016 http://www.themoscowtimes.com/news/article/sentence-reduced-for-moscow-activist-accused-of-violating-protest-laws/564149.html

[37] Gasparyan v. Armenia (no. 1), Appl. No. 35944/03, 13 January 2009, para. 43.