Постановление ЕСПЧ от 05.01.2016 <Дело Фрумкин (Frumkin) против России> (жалоба N 74568/12) [англ.] Часть 3

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The fact that no map of the assembly route or the placement of the police had been produced at the working meeting of 4 May 2012, that these questions had not been expressly discussed, …that the event organisers present at the working meeting had not been shown any maps, was confirmed by them.

…the court concludes that no official map had been adopted with the organisers and, in the court’s opinion, [the published map] had been based on Mr Udaltsov’s own interview with journalists…

Therefore the map presented by the defence has no official character, its provenance is unknown and therefore unreliable and does not reflect the true route of the demonstration and the placement of the police forces.

…witness Mr Makhonin… testified that on 5 May 2012 he received the [security plan]… Before the start of the march he personally met the event organisers Ms Mityushkina, Mr Udaltsov [and] Mr Davidis and in the presence of the press and with the use of video recording explained to them the order of the meeting and the march, warned against the breach of public order during the conduct of event; and the need to inform him personally about any possible provocations by calling the telephone number known to the organisers. He asked Mr Udaltsov about the intention to proceed towards the Kremlin and to cause mass disorder because the police had received information about it from undercover sources; Mr Udaltsov had assured him that there would be no breaches of order at the event and that they had no intention to move towards the Kremlin… He (Mr Makhonin) arrived at Bolotnaya Square after the mass disorder had already begun… After the mass disorder began he tried calling Mr Udaltsov on the phone but there was no reply. Mr Udaltsov did not call him… Other event organisers had not asked him to move the cordon. Given the circumstances, Ms Mityushkina, at his request, announced the end of the meeting, and the police opened additional exits for those willing to leave. In addition to that, the police repeated through a loudspeaker the announcement about the end of the meeting…

…witness Mr Zdorenko… testified that… pursuant to information received [from undercover sources] about the possible setting up of a camp site, at about 9 p.m. on 5 May 2012 he arrived at Bolotnaya Square and organised a search of the area including the park. The park was cordoned off and guarded… if necessary, at the decision of the operational headquarters, the venue allocated for the meeting could be significantly extended at the expense of the park [of Bolotnaya Square]. However, there was no need for that given that there was no more than 2,500 — 3,000 persons on Bolotnaya Square… [others being stopped at] Malyy Kamennyy bridge.

Witness A. Zharkov testified that… while the stage was being set up he had seen an unknown man smuggling four camping tents in rubbish bins.

Witness M. Volondina testified that… before the beginning of the march police information from undercover sources came through that the event organisers intended to encircle the Kremlin holding hands to prevent the inauguration of the Russian President.

Witness M. Zubarev testified that… he had been [officially] filming… while police officer Makhonin… explained the order… and warned the organisers… and asked Mr Udaltsov to inform him of any possible provocations. Mr Udaltsov stated that they would act lawfully and that he had requested the police to stop any unwanted persons from joining the public event…

Witness Y. Vanyukhin testified that on 6 May 2012… at about 6 p.m. Mr Udaltsov, while on the way to the stage, told people around him that they were going to set up a campsite…

…witness Ms Mirza testified that… police officer Biryukov had asked her and [the Ombudsman] to come to Malyy Kamennyy bridge where some of the protestors, including Mr Nemtsov and Mr Udaltsov, had not turned right to the stage but had gone straight to the cordon where they had begun a sit-in protest on the pretext that access to the park of Bolotnaya Square had been closed and cordoned off… While [the Ombudsman] was talking to those sitting on the ground they remained silent, did not reply but would not stand up.

Witness Mr Babushkin testified that… after the first confrontations between the protestors and the police had begun, the latter announced through a loudspeaker that the meeting was cancelled and invited the citizens to leave.

Witness Mr Ponomarev testified that… the police cordon had been placed differently from [the cordon placed for] a similar march on 4 February 2012… he proposed to Mr Udaltsov to push the cordon so that the police stepped back a few steps and widened the access to Bolotnaya Square, and the latter replied that he would figure it out when they reached the cordon… he knew that Mr G. Gudkov was negotiating with the police about moving the cordon, which had now been reinforced by the riot police.

…witnesses Mr Yashin and Mr Nemtsov testified that… during the steering committee meeting the question of setting up tents during the public event had not been discussed… while [Mr G. Gudkov] and [Mr D. Gudkov] were negotiating with the police… the crowd built up [and] suddenly the police began moving forward, the protestors resisted and the cordon broke…

Witness Mr G. Gudkov [State Duma Deputy] testified that… at the request of the organisers who had told him that they would not go anywhere and would remain sitting until the police moved the cordon back and opened up access to the park of Bolotnaya Square, he had taken part in the negotiations with the police on that matter. He had reached an agreement with the officers of the Moscow Department of the Interior that the cordon would be moved back, but the organisers who had filed the notice [of the event] should have signed the necessary documents. However those who had called for a sit-in, including Mr Udaltsov, refused [to stand up] to go to the offices of the Moscow Department of the Interior to sign the necessary documents, although he (Mr Gudkov) had proposed several times that they should do so…

…witness Mr D. Gudkov [State Duma Deputy] testified that… together with Mr G. Gudkov he had conducted negotiations with the police… an agreement had been reached that the cordon at the Malyy Kamennyy bridge would be moved back and the access to the park would be opened up, but at that point some young men in hoodies among the protestors began first to push the citizens onto the cordon provoking the [same] response, after that the breaking of the cordon occurred, the [police] began the arrests and mass disorder ensued.

…the court [dismisses] the testimonies that it was the police who had begun moving towards the protestors peacefully sitting on the ground and thus provoked the breaking of the cordon… [and finds ] that it was the protestors, and not the police… who began pushing against the cordon, causing the crowd to panic, which eventually led to the breaking of the cordon and the ensuing mass disorder.

The court takes into account the testimonies of Mr Davidis that… at about 6 p.m. Ms Mityushkina, who was responsible for the stage, informed him about the demand of the police that she announce, as an event organiser, that it was terminated. He passed this information on to Mr Udaltsov by phone, [and he] replied that they were standing up and heading towards the stage… he knew that on 6 May 2012 [some] citizens had brought several tents to Bolotnaya Square, but Mr Udaltsov had not informed him about the need to put up tents during the public event.

The court takes into account the testimonies of Mr Bakirov…, one of the [formal] event organisers… that nobody had informed him about the need to put up tents during the public event.

[The court examined] the video recording… of the conversation between Mr Makhonin and Mr Udaltsov during which the latter assured Mr Makhonin that they would conduct the event in accordance with the authorisation, he would not call on people to stay at Bolotnaya Square and if problems occurred he would maintain contact with the police.

…[the court examined another video recording] in which Mr Makhonin and Mr Udaltsov discussed the arrangements. Mr Makhonin showed Mr Udaltsov where the metal detectors would be placed, after that they agreed to meet at 3 p.m. … and exchanged telephone numbers…

According to [expert witnesses Ms N. and Ms M.], the borders of Bolotnaya Square in Moscow are delimited by Vodootvodnyy channel, Serafimovicha Street, Sofiyskaya embankment and Faleyevskiy passage, and the [park] forms a part of Bolotnaya Square. During public events at Bolotnaya Square the park is always cordoned off and is not used for the passage of citizens.

These testimonies are fully corroborated by the reply of the Head of Yakimanka District Municipality of Moscow of 27 July 2012 and the map indicating the borders of Bolotnaya Square.

[The court finds] that the place of the sit-in… was outside the venue approved by the Moscow authorities for the public event…

The organisation of mass disorder may take the form of incitement and controlling the crowd’s actions, directing it to act in breach of the law, putting forward various demands to the authorities’ representatives. This activity may take different forms, in particular the planning and preparation of such actions, the selection of groups of people to provoke and fuel mass disorder, incitement to commit it, by filing petitions and creating slogans, announcing calls and appeals capable of electrifying the crowd and causing it to feel appalled, influencing people’s attitudes by disseminating leaflets, using the mass media, meetings and various forms of agitation, in developing a plan of crowd activity taking into account people’s moods, accumulated grievances, guiding the crowd directly to commit mass disorder.

…this offence is considered accomplished as soon as at least one of the actions enumerated under Article 212 § 1 of the Criminal Code has been carried out…

…the criminal offence of organisation of mass disorder is considered accomplished when organisational activity has been carried out and does not depend on the occurrence or non-occurrence of harmful consequences.

There are no grounds to consider the closure of access to the park of Bolotnaya Square and the placement of a guiding police cordon at the foot of Malyy Kamennyy bridge to be a provocation… since it was only to indicate the direction and it did not obstruct access to the meeting venue at Bolotnaya Square.

…the reinforcement of the cordon… was necessary in the circumstances… to prevent it from breaking… but the police [cordon] did not advance towards the protestors.

It is therefore fully proven that the mass disorder organised by Mr Udaltsov [and others]… led to the destabilisation of public order and peace in a public place during the conduct of a public event, put a large number of people in danger, including those who had come to fulfil their constitutional right to congregate in peaceful marches and meetings, led to considerable psychological tension in the vicinity of Bolotnaya Square in Moscow, accompanied by violence against the police… and the destruction of property…»

  1. The Moscow City Court sentenced Mr Udaltsov and Mr Razvozzhayev to four and a half years of imprisonment. On 18 March 2015 the Supreme Court of the Russian Federation upheld the judgment of 24 July 2014, with amendments.
  2. On 18 August 2014 the Zamoskvoretskiy District Court of Moscow examined another «Bolotnaya» case and found four persons guilty of participating in the mass disorder and of committing violent acts against police officers during the demonstration on 6 May 2012. They received prison sentences of between two and a half and three and a half years; one of them was released on parole. This judgment was upheld by the Moscow City Court on 27 November 2014.

 

  1. The applicant’s arrest, detention and conviction for an administrative offence

 

  1. On 6 May 2012 the applicant arrived at Bolotnaya Square at about 6 p.m. to take part in the meeting. He stood in front of the stage on Bolotnaya embankment, within the area designated as the meeting venue.
  2. According to the applicant, between 6 p.m. and 7 p.m. the area around him remained peaceful, although there was general confusion. He claimed that he had not heard any announcement about the termination of the meeting; he had heard the police orders made through a megaphone to disperse, but in the general commotion he was unable to leave immediately and remained within the authorised meeting area until 7 p.m. when he was arbitrarily arrested by the police dispersing the demonstration. The applicant denied that he had received any warning or orders before being arrested. The police apprehended him and took him to a police van, where he waited for an hour before it left Bolotnaya Square for the police station. According to the applicant, there was no traffic at Bolotnaya Square at the time of his arrest; it was still suspended.
  3. According to the Government, the applicant was arrested at 8.30 p.m. at Bolotnaya Square because he was obstructing the traffic and had disregarded the police order to move away.
  4. At 9.30 p.m. the applicant was taken to the Krasnoselskiy District police station in Moscow. At the police station an on-duty officer drew up a statement on an administrative offence (протокол об административном правонарушении) on the basis of a report (рапорт) by police officer Y. who had allegedly arrested the applicant. Y.’s report contained the following hand-written statement:

«I [Y.] report that on 6 May 2012 at 9.30 p.m., at 5/16 Bolotnaya Square, together with police lieutenant [A.] I arrested Mr Frumkin».

  1. The rest of the report was a printed template stating as follows:

«…who, acting in a group of citizens, took part in an authorised meeting, went out onto the road and thus obstructed the traffic. [He] did not react to the multiple demands of the police to vacate the road…, thereby disobeying a lawful order of the police who were fulfilling their service duty of maintaining public order and ensuring safety. He thereby committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences.»

  1. The statement on the administrative offence contained an identical text, but indicated that the applicant had been arrested at 8.30 p.m. The applicant was charged with obstructing the traffic and disobeying lawful police orders, an offence under Article 19.3 of the Code of Administrative Offences. His administrative detention was ordered with reference to Article 27.3 of the Code of Administrative offences (протокол об административном задержании). The «reasons» section of the order remained blank.
  2. At 2 p.m. on 7 May 2012 the applicant was taken to court, but his case was not examined. After having spent the day in a transit van without food or drink, at 11.55 p.m. he was taken back to the cell at the Krasnoselskiy District police station. A new order for the applicant’s administrative detention was issued, indicating that he had been detained «for the purpose of drawing up the administrative material».
  3. At 8 a.m. on 8 May 2012 the applicant was brought before the Justice of the Peace of circuit no. 100 of the Yakimanka District, who examined the charges. The applicant requested that the case be adjourned on the grounds that he was unfit to stand trial after the detention; he also requested that the hearing be opened to the public and that two police officers be examined as witnesses. Those requests were rejected in order to expedite the proceedings. A further request for the examination of several eyewitnesses was partly refused and partly granted. Three witnesses for the defence were examined.
  4. On the basis of the report written by police officer Y., the court established that at 8.30 p.m. on 6 May 2012 the applicant was walking along the road at Bolotnaya Square and was obstructing the traffic, and that he then disobeyed lawful police orders to vacate the venue. The Justice of the Peace rejected as unreliable two eyewitnesses’ testimonies that the police had not given the applicant any orders or warnings before arresting him. The applicant was found guilty of disobeying lawful police orders, and was sentenced under Article 19.3 of the Code of Administrative Offences to fifteen days’ administrative detention.
  5. On 11 May 2012 the Zamoskvoretskiy District Court of Moscow examined an appeal lodged by the applicant. At the applicant’s request the court examined Ms S. as a witness. She testified that at 7.46 p.m. on 6 May 2012 she had been looking for her son when she saw the applicant in a police van and spoke to him. She also testified that at 9.03 p.m. she had been at Bolotnaya Square; the place had already been fully cordoned off but the traffic had not resumed. The court rejected the applicant’s argument that the police report and the police statement were inconsistent as regards the time of his arrest and found that the correct interpretation of those documents was that the time of arrest had been 8.30 p.m. and the detention at the police station 9.30 p.m. The court dismissed the video recording submitted by the applicant on the grounds that it did not contain the date and the time of the incident but found that the applicant’s guilt had been proven by other evidence. It upheld the first-instance judgment.
  6. On 11 January 2013 the Deputy President of the Moscow City Court examined the applicant’s administrative case in supervisory review proceedings and upheld the earlier judicial decisions.

 

  1. Relevant domestic law

 

  1. The Federal Law on Assemblies, Meetings, Demonstrations, Marches and Pickets, no. FZ-54 of 19 June 2004 («the Public Assemblies Act»), provided at the material time as follows:

«Section 7. Notification of a public event

Notification of a public event (except for a gathering or solo picketing) shall be filed by its organiser in writing with the executive body of the subject of the Russian Federation or the municipal authorities no earlier than fifteen days and no later than ten days prior to the scheduled date of the event…

Section 8. Venue for holding a public event

A public event may be held at any venue suitable for the purposes of the event, provided that it does not create a risk of the collapse of buildings or structures or any other threats to the safety of the participants in the public event…

Section 12. Obligations of the executive body of the subject of the Russian Federation or the municipal authorities

  1. Upon receipt of the notification of a public event, the executive body of the subject of the Russian Federation or the municipal authorities shall:…

(iii) depending on the form of the public event and the number of participants, appoint an authorised representative to assist the event organisers in conducting the event in accordance with the law. The authorised representative shall be formally appointed by a written decision which shall be sent to the event organiser prior to the scheduled date of the event;

(iv) inform the organiser of the public event about the authorised perimeter of the territory (venue) where the public event is to be held;

(v) ensure, within its competence and jointly with the organiser of the public event and the authorised representative of the Ministry of Internal Affairs, public order and safety of citizens during the public event and, if necessary, provide them with urgent medical aid;…

  1. If the information contained in the text of the notification of a public event and other data give grounds to suppose that the aims of the planned event and the way in which it will be conducted do not comply with the Constitution of the Russian Federation and/or are in breach of prohibitions established by the legislation of the Russian Federation concerning administrative offences or the criminal legislation of the Russian Federation, the executive body of the subject of the Russian Federation or the municipal authorities shall immediately notify the organiser of the public event by issuing a reasoned written warning that the organiser, as well as other participants in the public event, may be held duly liable in the event of such non-compliance or breach.

Section 13. Rights and obligations of the representative of the executive body of the Russian Federation or the municipal authorities

  1. The representative of the executive body of the subject of the Russian Federation or the municipal authorities has the right:

(i) to require the organiser of a public event to comply with the conditions for holding the event;

  1. to decide on the suspension or termination of the public event following the procedure and on the grounds set out in this Federal Law.
  2. The representative of the executive body of the subject of the Russian Federation or the municipal authorities must:

(i) be present at the public event;

(ii) assist the event organiser in the conduct of the public event;

iii. ensure, jointly with the organiser of the public event and the authorised representative of the Ministry of Internal Affairs, public order and the safety of citizens, as well as compliance with the law, during the event.

Section 14. Rights and obligations of the authorised representative of the Ministry of Internal Affairs

  1. At the proposal of the executive body of the subject of the Russian Federation or the municipal authorities the chief of the department of the interior in charge of the territory (venue) where the public event is intended to be held must appoint an authorised representative of the Ministry of Internal Affairs to assist the event organiser in maintaining public order and the safety of citizens. The said representative shall be formally appointed by a written decision of the chief of the department of the interior.
  2. The authorised representative of the Ministry of Internal Affairs has the right:

(i) to require the organiser of a public event to announce the closure of access to the event to citizens and to take his or her own action to prevent citizens from accessing the venue if the authorised perimeter of the territory (venue) is breached;

(ii) to require the organiser and the participants of the public event to comply with the conditions for holding the event;

(iii) at the request of the event organiser, to remove any citizens disobeying the organiser’s lawful orders.

  1. The authorised representative of the Ministry of Internal Affairs must:

(i) facilitate the conduct of the public event;

(ii) ensure, jointly with the organiser of the public event and the executive body of the subject of the Russian Federation or the municipal authorities, public order and safety of citizens and compliance with the law, during the public event.

Section 15. Grounds and procedure for suspension of a public event

  1. If during the holding of a public event there occurs, through the fault of the participants, a breach of lawful order which does not entail a risk to the life or health of the participants, the representative of the executive body of the subject of the Russian Federation or the municipal authorities may require the event organiser to remedy the breach alone or jointly with the authorised representative of the Ministry of Internal Affairs.
  2. In the event of non-compliance with the requirement referred to in paragraph 1 above, the authorised representative of the executive body of the subject of the Russian Federation or the municipal authorities may suspend the public event for a time determined by him in order to remedy the breach. Upon rectification of the breach, the public event may be continued as agreed between the organiser and the respective representative.
  3. If the breach has not been remedied at the expiry of the time-limit set by the authorised representative of the executive body of the subject of the Russian Federation or the municipal authorities, the public event shall be terminated in accordance with section 17 of this Federal Law.

Section 16. Grounds for termination of a public event

A public event may be terminated on the following grounds:

(i) if the event has created a real danger for the life and health of citizens as well as for the possessions of individuals or legal persons;

(ii) if the participants of the public event have committed unlawful acts and the organisers have deliberately breached the provisions of this Federal Law relating to the conditions for holding the event.

Section 17. Procedure for termination of a public event

  1. In the event that a decision to terminate a public event is taken, the authorised representative of the executive body of the subject of the Russian Federation or the municipal authorities shall:

(i) order the event organiser to terminate the public event, giving the justification for its termination, and within 24 hours issue this order in writing and serve it on the event organiser;

(ii) determine a time-limit for compliance with the order to terminate the public event;

(iii) In the event of non-compliance with the order to terminate the public event by the organiser, address the participants of the public event directly and allow additional time for compliance with the order to terminate it.

  1. In the event of non-compliance with the order to terminate a public event, the police shall take all necessary measures to terminate the event, acting in accordance with the legislation of the Russian Federation.
  2. The procedure for termination of a public event provided for by paragraph 1 above shall not apply if mass disorder, riots, arson attacks or other emergency situations occur. In these situations the termination of a public event shall be carried out in accordance with the legislation of the Russian Federation.»
  3. The Criminal Code of the Russian Federation provides as follows:

Article 212. Mass disorder

«1. The organisation of mass disorder accompanied by violence, riots, arson, destruction of property, use of firearms, explosives and explosive devices, as well by armed resistance to a public official shall be punishable by four to ten years’ deprivation of liberty.

  1. Participation in the mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.
  2. The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in it, or the instigation of violence against citizens shall be punishable by restriction of liberty for up to two years, or community work for up to two years, or deprivation of liberty for the same term.»

Article 318. Use of violence against a public official

«1. The use of violence not endangering life or health, or the threat to use such violence, against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 Russian roubles or an equivalent of the convicted person’s wages for 18 months, or community work for up to five years, or up to five years’ deprivation of liberty…»

  1. The relevant provisions of the Code of Administrative Offences of 30 December 2001 at the material time read as follows:

Article 19.3 Refusal to obey a lawful order of a police officer…

«Failure to obey a lawful order or demand of a police officer… in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between 500 and 1,000 Russian roubles (RUB) or by administrative detention of up to fifteen days.»

Article 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets

«1. Breaches of the established procedure for the organisation of public gatherings, meetings, demonstrations, marches or pickets shall be punishable by an administrative fine of between ten and twenty times the minimum wage, payable by the organisers.

  1. Breaches of the established procedure for the conduct of public gatherings, meetings, demonstrations, marches or pickets shall be punishable by an administrative fine of between RUB 1,000 and RUB 2,000 for the organisers, and between RUB 500 and RUB 1,000 for the participants.»

Article 27.2 Escorting of individuals

«1. The escorting or the transfer by force of an individual for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was discovered and if the drawing up of a report is mandatory, shall be carried out:

(1) by the police…

  1. The escort operation shall be carried out as quickly as possible.
  2. The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person shall be given a copy of the escort operation report if he or she so requests.»

Article 27.3 Administrative detention

«1. Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence…

  1. Where the detained person so requests, his family, the administrative department at his place of work or study and his defence counsel shall be informed of his whereabouts.

  1. The detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.»

Article 27.4 Administrative detention report

«1. Administrative detention shall be recorded in a report…

  1. …If he or she so requests, the detained person shall be given a copy of the administrative detention report.»

Article 27.5 Duration of administrative detention

«1. The duration of administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.

  1. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border… may be subject to administrative detention for up to 48 hours.
  2. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative detention may be subject to administrative detention for up to 48 hours.
  3. The term of the administrative detention is calculated from the time when [a person] escorted in accordance with Article 27.2 is taken [to the police station], and in respect of a person in a state of alcoholic intoxication, from the time of his sobering up.»

 

III. Relevant international material

 

  1. The Guidelines on Freedom of Peaceful Assembly adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010) provide as follows:

«Section A — guidelines on freedom of peaceful assembly

  1. Freedom of Peaceful Assembly

Only peaceful assemblies are protected.

An assembly should be deemed peaceful if its organisers have professed peaceful intentions and the conduct of the assembly is non-violent. The term «peaceful» should be interpreted to include conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties.

  1. Implementing Freedom of Peaceful Assembly Legislation

5.1 Pre-event planning with law enforcement officials

Wherever possible, and especially in the case of large assemblies or assemblies on controversial issues, it is recommended that the organiser discuss with the law enforcement officials the security and public safety measures that are put in place prior to the event. Such discussions might, for example, cover the deployment of law enforcement personnel, stewarding arrangements, and particular concerns relating to the policing operation.

5.3 A human rights approach to policing assemblies

The policing of assemblies must be guided by the human rights principles of legality, necessity, proportionality and non-discrimination and must adhere to applicable human rights standards. In particular, the State has a positive duty to take reasonable and appropriate measures to enable peaceful assemblies to take place without participants fearing physical violence. Law enforcement officials must also protect participants of a peaceful assembly from any person or group (including agents provocateurs and counter-demonstrators) that attempts to disrupt or inhibit it in any way.

5.4 The use of negotiation and/or mediation to de-escalate conflict

If a standoff or other dispute arises during the course of an assembly, negotiation or mediated dialogue may be an appropriate means of trying to reach an acceptable resolution. Such dialogue — whilst not always successful — can serve as a preventive tool helping to avoid the escalation of conflict, the imposition of arbitrary or unnecessary restrictions, or recourse to the use of force.

Section B — Explanatory Notes

  1. …For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose…

  1. The question of at what point an assembly can no longer be regarded as a temporary presence (thus exceeding the degree of tolerance presumptively to be afforded by the authorities towards all peaceful assemblies) must be assessed in the individual circumstances of each case… Where an assembly causes little or no inconvenience to others then the authorities should adopt a commensurately less stringent test of temporariness… the term «temporary» should not preclude the erection of protest camps or other non-permanent constructions.

«Peaceful» and «non-peaceful» assemblies

  1. «Peaceful» assemblies: Only «peaceful» assembly is protected by the right to freedom of assembly…
  2. The term «peaceful» should be interpreted to include conduct that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties. Thus, by way of example, assemblies involving purely passive resistance should be characterized as «peaceful»…

  1. If this fundamental criterion of «peacefulness» is met, it triggers the positive obligations entailed by the right to freedom of peaceful assembly on the part of the State authorities… It should be noted that assemblies that survive this initial test (thus, prima facie, deserving protection) may still legitimately be restricted on public order or other legitimate grounds…

Legality

  1. To aid certainty, any prior restrictions should be formalised in writing and communicated to the organiser of the event within a reasonable timeframe (see further paragraph 135 below). Furthermore, the relevant authorities must ensure that any restrictions imposed during an event are in full conformity with the law and consistent with established jurisprudence. Finally, the imposition, after an assembly, of sanctions and penalties which are not prescribed by law is not permitted.

Content-based restrictions

  1. Whether behaviour constitutes the intentional incitement of violence is inevitably a question which must be assessed on the particular circumstances… Some difficulty arises where the message concerns unlawful activity, or where it could be construed as inciting others to commit non-violent but unlawful action. Expressing support for unlawful activity can, in many cases, be distinguished from disorderly conduct, and should not therefore face restriction on public order grounds. The touchstone must again be the existence of an imminent threat of violence…
  2. …resort to [hate] speech by participants in an assembly does not of itself necessarily justify the dispersal of the event, and law enforcement officials should take measures (such as arrest) only against the particular individuals involved (either during or after the event).

Restrictions imposed during an assembly

  1. The role of the police or other law enforcement personnel during an assembly will often be to enforce any prior restrictions imposed in writing by the regulatory body. No additional restrictions should be imposed by law enforcement personnel unless absolutely necessary in light of demonstrably changed circumstances. On occasion, however, the situation on the ground may deteriorate (participants, for example, might begin using or inciting imminent violence), and the authorities may have to impose further measures to ensure that other relevant interests are adequately safeguarded. In the same way that reasons must be adduced to demonstrate the need for prior restrictions, any restrictions imposed in the course of an assembly must be equally rigorously justified. Mere suspicions will not suffice, and the reasons must be both relevant and sufficient. In such circumstances, it will be appropriate for other civil authorities (such as an Ombudsman’s office) to have an oversight role in relation to the policing operation, and law enforcement personnel should be accountable to an independent body. Furthermore… unduly broad discretionary powers afforded to law enforcement officials may breach the principle of legality given the potential for arbitrariness. The detention of participants during an assembly (on grounds of their committing administrative, criminal or other offences) should meet a high threshold given the right to liberty and security of person and the fact that interferences with freedom of assembly are inevitably time sensitive. Detention should be used only in the most pressing situations when failure to detain would result in the commission of serious criminal offences.

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