Request

By a letter dated 5 July 2012, the Chair of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe asked the Venice Commission to provide an opinion on the Federal Law No. 54-FZ of 19 June 2004 on assemblies, meetings, demonstrations, marches and picketing (“the Assembly Act”) of the Russian Federation as amended by Law of 8 June 2012. Federal Law No. 65-FZ of 8 June 2012 has amended both the Code of Administrative Offences and the Assembly Act.

March 2012 Opinion on the Assembly Act

In March 2012, prior to the adoption of the amendments of June 2012, the Venice Commission adopted an opinion on the Assembly Act (CDL-AD(2012)007), at the request of PACE. In its Opinion on the Assembly Act, the Venice Commission has dealt with its standards for evaluating laws on the freedom of assembly (para 5-8) and it has referred to its Guidelines on the freedom of assembly[1]. The Guidelines reflect the Commission’s deep conviction that the protection of the freedom to peacefully assemble is crucial to creating a tolerant and pluralistic society in which groups with different beliefs, practices or policies can exist peacefully together. As a fundamental right, freedom of peaceful assembly should, insofar as possible, be enjoyed without regulation. The state should always seek to facilitate and protect public assemblies[2]. The Venice Commission is aware of the fact that several assembly laws in Europe, especially older ones, contain provisions which are drafted in rather restrictive terms[3]. The Commission stresses in this respect that the manner of implementation of similar provisions may contribute to restricting their negative impact on the exercise of freedom of assembly. At any rate, as the Commission has previously said[4], “risks of an overbroad use of discretionary powers in order to suppress assemblies can always arise and therefore any assembly law must aim at reducing them as far as possible”: it is the Commission’s firm belief that when designing or amending assembly laws, Council of Europe member states should reflect the fundamental principles of “presumption in favour of holding assemblies”, “proportionality” and “non-discrimination” in their wording.

In its March 2012 Opinion, the Commission made the following recommendations:

• It is recommended that the presumption in favour of holding assemblies and the principles of proportionality and non-discrimination be expressly included in the Assembly Law
• the regime of prior notification under Article 5.5, 7 and 12 Assembly Act should be revised; the co-operation between the organisers and the authorities in Article 12 Assembly Act should be settled on a voluntary basis respecting the assemblies’ autonomy and without depriving the organisers of the right to hold an assembly on the ground of a failure to agree on any changes to the format of an assembly or to comply with the timeframe for notification of the public event; the power of the executive authorities to alter the format of a public event should be expressly limited to cases where there are compelling reasons to do so (Article 11.2 ECHR), with due respect for the principles of proportionality and non-discrimination and the presumption in favour of assemblies.
• the right to appeal decisions before a court (Article 19 Assembly Act) is welcomed; it should be provided that a court decision will be delivered before the planned date of the assembly, for instance via the availability of court injunctions;
• spontaneous assemblies and urgent assemblies as well as simultaneous and counter demonstrations should be allowed as long as they are peaceful and do not pose direct threats of violence or serious danger to public safety;
• the grounds for restrictions of assemblies should be narrowed to allow application of the principle of proportionality in order to bring them in line with Article 11.2 ECHR and reasons for suspension and termination of assemblies should be limited to public safety or a danger of imminent violence;
• the obligations of the organisers in Article 5.4 Assembly Act should be reduced; their responsibility to uphold public order should be restricted to the exercise of due care;
• the blanket restrictions on the time and places of public events should be narrowed.

Regrettably, the amendments of June 2012 to the Assembly Act failed to address the Commission’s recommendations.

ECHR and Constitutional Courts judgments

On 10 July 2012, a Chamber of the European Court of Human Rights issued a judgment (Berladir and others v. Russia) which relates to the Assembly Act and in which the Court found no violation of Article 11 ECHR. The Court noted that the applicant had not fully exhausted legal remedies. It further accepted that - in the instant case - the authorities had acted within their broad margin of appreciation as concerns the reasons for amending the modalities of the planned demonstration and for rejecting the proposal by the organiser. In the Berladir case, as usual, the ECtHR did not examine the compatibility of the Assembly Law with the ECHR in abstracto, but limited itself to the examination of the application of the Law in that case. The ECtHR therefore did not examine whether the Assembly Law contains a violation of the ECHR, for instance a potential for abuse, which, by chance, did not materialize in that case. In this opinion the Venice Commission will also deal with this topic.

The constitutionality of certain specific amendments contained in the law of June 2012 was challenged by a group of deputies of the State Duma before the Constitutional Court of the Russian Federation which reviewed the law in open sitting. Judgment in the case was delivered on 14 February 2013 and published and came into force immediately (the English translation of extracts of this judgment appears in document CDL-REF(2013)012). The judgment is in principle welcomed by the Venice Commission. It reflects many of the critical points seen by the Commission, though it does not solve all problems. Besides this, the Venice Commission bears in mind that it still needs to be implemented by the executive authorities and the courts. In particular with respect to those provisions which the Constitutional Court decided to interpret in conformity with the Constitution rather than demanding clarifications in the law itself, there might be a lack of clarity for the executive authorities and the organizers and participants of assemblies. The implementation in practice remains to be seen.

In this regard it should be noted that in its judgment the Constitutional Court addressed only the arguments (which were of limited scope) that were made by the applicants in the case who alleged the unconstitutionality of certain specific provisions of the law of June 2012. In contrast the role of the Venice Commission in preparing this Opinion and the previous Opinion on Federal Law No. 54-FZ of 19 June 2004 on assemblies, meetings, demonstrations, marches and picketing (“the Assembly Act”) which was adopted in March 2012 (CDL-AD(2012)007), is to address the laws as a whole in relation to their compatibility with international human rights standards. The Court’s analysis does not therefore address or propose remedies for all of the problems identified by the Venice Commission in this previous Opinion. Furthermore, some of the issues considered by the Court appear not to have been discussed in our Opinion in any detail. The Venice Commission therefore recommends that each of its conclusions in the previous Opinion on Federal Law No. 54-FZ of 19 June 2004 on assemblies, meetings, demonstrations, marches and picketing (“the Assembly Act”) should be addressed so that the laws in their entirety comply with international human rights standards. The Duma has yet to decide on the amendments to the Assembly Law which are required following the judgment of the Constitutional Court and it is hoped that the Venice Commission’s Opinion concerning those parts of the law which were not dealt with by the Court will be taken into consideration as well as its opinion in regard to the Court´s judgement.

The careful analysis of international human rights norms and, in particular, the discussion of Article 11 and the ECtHR’s jurisprudence at point 2 (pp10-12) of the Constitutional court’s judgment are welcomed. Amongst other points, the Constitutional Court acknowledges that “...the right of freedom of peaceful assembly is not subject to any restrictions other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” The Constitutional Court also acknowledges that the State bears an obligation to guarantee protection, including judicial protection, for civil and human rights and freedoms and notes that “...the reaction of a public authority to the organisation and holding of assemblies, rallies, demonstrations, marches and picketing must be neutral and in all cases...geared to ensuring conditions...for the lawful exercise by citizens and associations thereof of their right to freedom of peaceful assembly...”

The Venice Commission notes that the judgment speaks only of the guarantee of the freedom of assembly in relation to “citizens”. However it is required to be extended to all persons on the national territory. This reference to “citizens” is repeated throughout the judgment. Care should be taken to ensure that guarantees of fundamental freedoms in the law should not be limited to citizens but be applied to all persons.

Conclusions by the Venice Commission

The Venice Commission is firmly convinced that the June 2012 amendments to both the Assembly Act and to the Code of Administrative Offences raise a number of serious concerns and represent a step backward for the protection of freedom of assembly in the Russian Federation; their implementation may result in infringements of the fundamental right to peaceful assembly guaranteed by the Russian Constitution and by the European Convention on Human Rights. Therefore, in order to ensure compliance of the Assembly Act with international standards, the Venice Commission makes the following recommendations, in addition to those contained in its previous opinion on the Assembly Act and it strongly recommends to reconsider the amendments: 

1. It is recommended to reconsider new Article 5 paragraph 2.1.1 and to remove the exclusion from the right to organise public events of whole categories of people for breaches of a variety not only of criminal but also of administrative offences, irrespective of their gravity;
2. It is recommended to indicate in sub-paragraph 6 of paragraph 3 of Article 5 that failure by the organiser to demand the intervention of the internal affairs authorities will not entail any negative consequences for the organiser;
3. It is recommended to reconsider paras. 4.3 and 4.7.1 of Article 5 so as to exclude responsibility on the part of the organiser on account of the number of participants in the public event;
4. It is recommended to limit, in paragraph 6 of Article 5, the organiser’s responsibility for damages to cases of failure to exercise due care;
5. It is recommended to reconsider the blanket ban on wearing masks or similar ;
6. It is recommended to limit the responsibility of picketers to cases of actual threats to public order and safety;
7. It is recommended to reconsider the time-limitations on public events in Article 9;
8. It is recommended to reconsider the limitations to campaigning for a public event to after the authorities’ agreement;
9. It is recommended to reconsider the provision of specially designated place where public events should take place ‘as a rule’;
10. It is recommended to remove Article 12 paragraph 3;
11. It is recommended to revise and lower drastically the penalties applicable in case of violation of the Assembly Act;
12. It is recommended to reconsider Article 20.2.2
13. Care should be taken to ensure that guarantees of fundamental freedoms in the law should not be limited to citizens but be applied to all persons.

The Venice Commission remains at the disposal of the Romanian authorities for assistance in the implementation of such reforms.

 Text of the opinion CDL-AD(2012)022