Nika Kvaratskhelia
2012
Tbilisi
[ ]
Acknowledgements
I would like to thank the National Endowment for Democracy (NED) and the Policy Association for an Open Societyfor the support provided. Without this support the present research would not have been accomplished. Also, I wish to extend particular gratitude to the Latvian Centre for Human Rights for cordial reception in Riga and personally to Anhelita Kamenska, who has greatly contributed to my research as a supervisor and as a friendly, helpful person. I would like to appreciate the cooperative efforts of my colleagues in Lithuania (Human Rights Monitoring Institute), Estonia (Human Rights Centre) and Ukraine (Civic Methodology and Information Centre ‘Vsesvit’), as well as those of my friends and colleagues in Georgia (Youth for Justice – Georgia, Human Rights Centre, Public Advocacy).
All in All, I am grateful to all those, who inspired me to conduct the present research and helped me in one way or another. I hope the readers will find the present paper interesting and helpful.
Table of Contents
Summary
1. Standards derived from the Convention
1.1. Importance of freedom of expression and peaceful assembly
1.2. Margin of appreciation doctrine
1.3. The concept of liberty-limiting principles
1.4. Freedom of peaceful assembly under the Convention
1.4.1. Scope of the right
1.4.2. Interference with the right to freedom of peaceful assembly
1.4.3. Balancing conflicting interests
2. Domestic Law and Practice
2.1. Case of Georgia
2.1.1. Legal framework
2.1.2. Practice
2.2. Case of Ukraine
2.2.1. Legal framework
2.2.2. Practice
2.3. Case of Latvia
2.3.1. Legal framework
2.3.2. Practice
2.4. Case of Lithuania
2.4.1. Legal framework
2.4.2. Practice
2.5. Case of Estonia
2.5.1. Legal framework
2.5.2. Practice
3. Comparative analysis – lessons to be learned
Conclusion
Summary
After the fall of the Soviet Union the former soviet republics, among them Georgia, Ukraine and the Baltic States (Latvia, Lithuania and Estonia), publicly announced their intention to establish democracy and the rule of law. Respect for human rights was considered to be the point of departure.
However, the recent events in the abovementioned states have brought to the daylight some major concerns that need to be addressed in appropriate and timely manner. Restriction of the freedom of peaceful assembly guaranteed by Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘Convention’) became a common practice in Ukraine and Georgia. Compared to Georgia and Ukraine it can be said that the Baltic States are less criticizedin the relevant international documents for violation of these fundamental freedoms, nevertheless problems remain with respect to the freedom of expression and peaceful assembly of LGBT groups and there are some major concerns as regards ethnic Russians. All these restrictions are viewed by the authorities to be necessary in a democratic society and that they enjoy wide margin of appreciation in this regard.
The public international law respects state sovereignty and leaves some room for acting as the state may see fit, in other words, there are some critical issues, which fall within the state’s sole discretion. All treaty bodies established to supervise the fulfillment of commitments undertaken by the State take into consideration the background in which a particular measure is employed and respect various needs that do not prejudice the human rights protection, a major concern of all civilized nations. This approach acknowledged in the international law is manipulated by the States on various occasions, as they tend to mask their real intentions under the cover of certain legitimate aims.
By way of employing comparative analysis of international standards and the domestic law and practice of the five selected countries, the present paper will attempt to address the following considerations: What are the major concerns in each selected State with respect to the freedom of expression and peaceful assembly? Are there any concerns that could be held to be common for the selected states as for the former Soviet republics? Are there any lessons to be learned from each other’s experience?
The paper is composed of three main parts. The first part will give useful information on Convention standards with respect to the freedom of expression and peaceful assembly, along with a brief overview of liberty-limiting principles developed in legal theory. We will also look at the margin of appreciation doctrine and the concept of necessity in a democratic society. The second part will be dedicated to the examination of domestic law and practice of the five selected states. Finally, the last part will constitute a comparative analysis of the domestic law and practice of the five selected States in the light of the Conventionstandards. This part will also include particular recommendations with respect to the particular issues, which will be drafted according to the best practice of the other selected states, if any. In the course of comparative analysis the common concerns of the selected States will be underlined.
1. Standards derived from the Convention
In this part of the paper we will look through the standards envisaged by the Convention and at the same time we will have recourse to the legal theory to review the concept of liberty-limiting principles. It should be underlined here that the focus of the present paper is the freedom of peaceful assembly and the freedom of expression is mentioned hereunder insofar as the former is often considered lex specialis with respect to the latter. By mentioning the freedom of expression alongside the freedom of peaceful assembly the importance of the freedom of peaceful assembly to the enjoyment of the freedom of expression, the inevitable correlation of these freedoms and theircumulative contribution to the democracy is ultimately emphasized.
1.1. Importance of freedom of expression and peaceful Assembly
The freedom of peaceful assembly constitutesone of the foundations of the functioning democracy and serves many different objectives that are of vital importance for the democratic society. The freedom of assembly, together with other fundamental rights and freedoms, greatly contributes to the personal development and the progress and welfare of the society at large. It helps ensure that all people in a society have the opportunity to express their opinions and representing a form of direct democracy, it facilitates dialogue within civil society, as well as between civil society, political leaders and government. With appropriate media coverage, public assemblies communicate with the world at large and in countries, where the media is limited or restricted, freedom of assembly is vital for those, who wish to draw attention to local issues. This communicative potential underlines the importance of the freedom of assembly in advocating and effecting change.[1]
The European Court of Human Rights (hereinafter referred as the ‘Court’) has on numerous occasions emphasized the importance of the freedom of expression and peaceful assembly.
In the case of Handyside v. United Kingdom (1976) the Court stressed the main rationale underlying the freedom of expression in the following wording:
‘The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterizing a ‘democratic society’. Freedom of Expression constitutes one of the essential foundations of such society, one of the basic conditions for its progress and for the development of everyman. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ and ‘ideas’ that are favorably received or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb the State or any sector of population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic Society’.[2]
In the case of Tebieti Muhafize Cemiyyety and Israfilov v. Azerbaijan (2008) the Court outlined the importance of the interaction of persons and groups with varied identities for achieving social cohesion and the role of the freedom of peaceful assembly and association in this regard. The Court stipulated:
‘Harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue a common objectives collectively’.[3]
All in All, the freedom of peaceful assembly provides the space for development of civil and political society, an arena for people to express different views, values or interests and a platform for such views, values or interests to be heard.[4]
1.2. Margin of Appreciation Doctrine
Although the aim of the present paper is not to go into a deep theoretical consideration regarding the essence of the margin of appreciation doctrine and reasonableness of its application, it is necessary to have a brief overview of the doctrine, as it represents the best argument at the hands of national authorities.
The margin of appreciation is a doctrine the Court uses to interpret certain Convention provisions. It generally refers to the amount of discretion the Court gives national authorities in fulfilling their obligations under the Convention.[5] In other words, the margin of appreciation doctrine refers to the latitude allowed to the member states in their observance of the Convention. The doctrine is one of the judicial review, which governs the extent to which the Court will scrutinize a complained-of practice.[6] Other scholars assert that margin of appreciation or discretion may be understood as a grant of “breathing space” or “elbow room” by international authorities.[7]
The extent of margin of appreciation is defined by the Court on the case-by-case basis. Generally the Court gives wide margin of appreciation according to the specific grounds of restrictions. The extent of the margin varies from right to right. Nonetheless, the Court has established some guiding principles in this regard.
The rationale for allowing margin of appreciation was explained by the European Court in its judgment in the Handyside case. In this case, the Court had to examine whether the applicant’s conviction – he had intended to disseminate a publication which was considered obscene by the English Courts – and the confiscation of copies of the publication were restrictions on the freedom of expression which were ‘necessary in a democratic society’ within the meaning of Article 10(2). In the first place the Court stressed that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights”. It went on explaining further that:
It is impossible to find in the domestic law of the various Contracting States a uniform European Conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterized by a rapid and far-reaching evolution of opinions on the subject.
At the end of this consideration the Court concluded that by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.[8]
The margin of appreciation doctrine is being criticized by many scholars. Their main argument is that the doctrine used in a wide scope and differently to certain rights may leave the room for negative consequences undermining international protection of human rights. Some of them claim that the margin of appreciation, with its principled recognition is at odds with the universality of human rights. If applied liberally, this doctrine can undermine seriously the promise of international enforcement of human rights that overcomes national policies. This may lead national institutions to resist external review altogether.[9]
Despite such a fierce criticism the European Court of Human Rights still applies this doctrine as a guarantee of maintenance of balance between State discretion and international supervision. It has developed some more or less established approach to the application of the doctrine. Although there is no precise scope of margin of appreciation, the case-law reveals some factors or variables which are of influence. These variables are: 1. the European common ground, 2. the nature of the right or of the activities of an individual, 3. the nature of the aim pursued by the contested measure and the circumstances or the context of that measure.[10]
As regards to the European common ground, like in Handyside case, in Rasmussen case the court held that:
‘[…] the scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States.’[11]
The nature of the right or of the activities of an individual implies differentiated attitude to distinct rights in the light of margin of appreciation. In other words, the margin varies according to the importance of a particular right. For example, the states are given more discretion with respect to restriction of Article 1 of Protocol 1. Conversely, in case of Article 10 margin of appreciation is much narrower.
The nature of the aim pursued by the contested measure and the circumstances or the context of that measuremeans that the margin of appreciation may vary according to which of the aims listed in the restriction clauses apply.[12]
Although criticized for leaving the room for the national authorities to manipulate with legitimate aims, the margin of appreciation doctrine is nevertheless called upon to prevent unreasonable hindrance in the national authorities’ discharge of their duties by limiting the choice of appropriate measures to address the pressing social need. This is why the bodies established to supervise the human rights protection always consider whether national authorities have observed the margin of appreciation afforded to them in a particular case.
1.3. The concept of liberty-limiting principles
Before going to the overview of the approach of the Court towards the notions of ‘necessity in a democratic society’, ‘fair balance between conflicting interests’ and the ‘principle of proportionality’, it is recommended to have a look on the theoretical basis of restriction of a particular liberty, which stems from the legal philosophy. The notion of liberty-limiting principles is all the more important in considering the transitional period, when there must be certain consensus reached with a view to balancing the conflicting interests.
In the course of transition from any form of governance to the democratic forms of governance, where pluralism is held to be one of the basic milestones, formerly excluded, hidden interests find their ways to public space and interact with other interests having been present in the society long before. Consequently, each actor present in the public space begins to fear that their interests will be harmed during the transitional period, thus giving ride to conflict of interests.
During the transitional period any society faces the need for deriving the so called liberty-limiting principles on the basis of harm/benefit analysis, which will guide the balancing of conflicting interests in the society and which is so difficult to be elaborated, since there is no single approach to what is harm and what constitutes the benefit. It is argued among scholars that ‘while law must assist in settling the definitions of ‘harm’ and ‘benefit’, it can only do so where there is ethical consensus about the transitional goals being pursued.’[13] In addition, ‘harm’ and ‘benefit’ are closely linked to the notion of good, most fiercely debated over the centuries. One may take democracy, tolerance and recognition as a conception of good for a transitional society, while others may extend this list or exclude the above conceptions at all. In this part of the paper, we will maintain these three conceptions of good and look at how they are viewed in the context of deriving the liberty-limiting principles.
It is asserted in the relevant literature that ‘the assertion that transition is never unitary or linear process. Instead, transition is dynamic and multi-layered.’[14] The law, which is thought to settle the definition of ‘harm’ and ‘benefit’, may face a crisis of legitimacy, if complicit in past wrongs. It is argued that ‘the law must at once extricate itself from this legacy, establish its legitimacy in the present, and provide the basis for a more just future.’[15]
It is generally recognized that in a pluralist democracy, restrictions on the civil liberties should be narrowly tailored to legitimate aims and the more intrusive the intervention, the greater burden lies on the authorities to provide evidence that justifies the contested intervention. It is also debated that the transitional period requires rather differentiated approach and that the liberty-limiting justifications need not be so rigorously proven, as legally prescribed aims may well suffice.[16] It is difficult to assess the justifiability of interventions as there is no precise and accurate method of measurement of harms and benefits and as the latter terms are being framed depending upon the particular transitional goals being pursued.
Restrictions to public events are usually imposed because of the need to prevent harm to third parties. Michael Hamilton asserts that the ‘harm principle’ is straightforward – preventing harm to parties other than the actor is always an appropriate reason for legal coercion.’[17]It has to be noted here that the risk of harm may, in many cases, be exaggerated, speculative or imaginary. Authorities often claim that sometimes tense political climate precludes peaceful assembly and contend that the national security considerations or a high risk of public disorder justify the imposed restrictions. In connection to the notion of ‘harm’, Joel Feinberg has introduced ‘the benefit-to-others principle’[18] According to the Michael Hamilton’s wording, ‘Harm is conceived as benefit unattained, not simply deterioration caused.’ It is also contended that ‘benefits’ might also refer to discrete strategies aimed at securing particular goods, for example, facilitating inter-group contact (including dialogue between the main protagonists), promoting desegregation, bridging social capital, expanding relations of recognition and encouraging emphatic rehumanization.[19]