«…the
right to freedom of peaceful assembly is a collective
means of realization of the right to freedom of expression”(1)

This paper is an attempt to
do comparative analyses between the Law of the RA on
“The Procedure of Conducting Meetings, Assemblies, Rallies and Demonstrations”
adopted by the
National Assembly of the RA on
April 28, (2004) and Article 11 of the European
Convention of Human Rights and Fundamental Freedoms
 

It is with the deep regret we should admit the fact that
some public officials were actively trying to convince the general public,
ordinary people that lack the least of legal knowledge that the Law of the RA on
“The Procedure of Conducting Meetings, Assemblies,
Rallies and Demonstrations” (the Law hereinafter)
corresponds to the European standards.

Here, a simple question arises: what these European
standards are?

This legal analyses attempts at clarifying what should be
understood under the term of “European standards” and comparing some of the
provisions of the Law with those standards.  

It is widely recognized that the European Convention on
Human Rights, adopted in the framework of the Council of Europe in 1950 is the
most effective international human rights instrument in the world and the
European Court of Human Rights, instituted by the Convention, is the most
effective international mechanism for the protection of human rights which is
proved by its 50 years practice. At this moment 45 countries, including Republic
of Armenia, are under its jurisdiction.           

By interpreting and applying the provisions of the
European Convention the European Court has been making legally binding
judgements where the European standards were elaborated, determined and
expressed for almost 50 years (2).

So, while talking about the European standards, we should
first bear in mind and refer to the provisions of the European Convention as
well as the European Court case law interpreting and applying those provisions.

Article 11 of the European Convention guarantees the Right
of Peaceful Assembly for everyone. 

“Notification” 

According to the Law (Article 10), enjoyment of the right
of peaceful assembly (public event as mentioned in the Law) is possible only
after filing written notification to the authorized public official (e.g.
in Yerevan it is Mayor).

Firstly, it is necessary to make clear the content and the
goals of the term “Notification” in the context of the Law and then analyze it
in the light of European Convention and Court case law (e.g. European
Standards).

According to Article 11 of the Law, the notification is
to be discussed!!! We assume that the term “notify” can not be understood
as, for instance, the request or application for permission to hold assembly
(moreover, that the refusal of a Mayor of Yerevan can follow). While saying
Notify it is logical and grammatical to understand that a subject keeps the
other informed, that is to say—to make someone be aware of one’s
intention to realize some activities without seeking any permission for it.
Notification does not suppose any consequent positive or negative response;
otherwise it would be called either Application or Request, not “Notification”.
According to the Oxford Learner’s Pocket Dictionary “Notify” is to “tell or
inform somebody about something” and not apply or request. It is application
and request filed to the relevant administrative bodies that can be discussed in
a board and appropriate (positive or negative) decision made on it.

The above-mentioned simple analysis shows that in reality
the “Notification” has completely different character.

In fact, the main and only purpose of the
notification is to inform relevant administrative body about the place and
manner of planned public event to give that body the opportunity to undertake
some relevant positive obligations that it bears. It means to the undertaking of
such activities that will guarantee participants' security, ensure presence of
First Aid groups and etc.

Notification should remind the responsible officials of
their positive obligations for the sole purpose of guaranteeing the proper and
full realization of the fundamental right to freedom of peaceful assembly, and
won't be used as a basis for prohibition or permission of that right.  

The paragraph 2 of Article 10 of the Law envisages that
the public event conducted in breach of the provisions of this Article shall be
considered as prohibited and can be terminated... This means that in case
authorized public official is not notified (better to say that there is no
Application or Request for the permission) about the public event the person is
not able to enjoy his fundamental right guaranteed by the Convention and the
Constitution of the RA, moreover, he can undrego to restrictive measures on the
part of the state for the organization and holding of such an event. 

Is this a European standard?

The European Commission had already answered No to the
above-mentioned question in its early case of G v. Germany back in, even, 1989.
The Right of Peaceful Assemblies can be enjoyed even when the Assembly is
“illegal”.

In the mentioned case, the Applicant was held responsible
for the participation in the sit-in. The European Commission on Human Rights
observed that despite of the fact that the event was in breach of the domestic
law, it was of peaceful character and interference in the fulfillment of
the right should have been justified under Article 11(2).  Consequently, the
only precondition of the realization of right to freedom of peaceful assembly is
peaceful intention of the organizers of the event.

Thus, according to the Law, even if the public event is of
absolutely peaceful character, which means that the only precondition of the
Convention is satisfied, though the authorized body hasn't been notified about
it, the event will be regarded as illegal and will be terminated by all means:
up to the application of force.

In such a situation, when the organizers and participants
of the public event have peaceful intentions and guarantee the peaceful conduct
of an assembly, however, face any compulsory acts on behalf of the State, will
be regarded as breach of Article 11 of the Convention. This kind of practice
will have serious contradiction with the European Standards with its serious
European consequences, of course, not in favor of Armenia’s international
reputation…

 “PROHIBITION” OF THE PUBLIC EVENT       
 

According to Article 12 of the Law on the results of the
discussion of notification the decision shall be made on the prohibition of the
public event or decision on taking the notification into consideration.

The Article 13 of the Law states conditions for
prohibiting organization and holding of the public event. In this particular
paper we should refer to only several provisions from many of them. Actually,
“in case of necessity” (or when officials find it inconvenient) the provisions
discussed below will vest the public official with the absolutely discretionary
power to take such “legal” actions, which will harm the “very essence” of the
right to freedom of peaceful assembly, and will turn
that right into an abstract understanding in Armenia.

The public event is prohibited if there is
trustworthy information about the true (real) threat to the life and health
of people in the place, day and time mentioned in the notification.

Hereafter there arise some fundamental questions that are
not specified in provisions of the Law. For instance, when the organizer is
refused to hold public event based on the above stated reason, is the refusing
public official under an obligation to prove the existence of 
“present trustworthy information” at their disposal to the organizer? Public
official can (and is interesting in) always claim that he owns information on
the real threat to the lives and health of people, but who has to prove that
this information exists and it is trustworthy, is not specified by Law.

So, the authorized authority does not bear the burden of
proof. The authorized body will satisfy itself by simply stating that some
information about the real threat it owns and this will be enough for the
refusal of an assembly without providing some materials to the organizers of
assembly proving its real existence and trustworthiness.

Public event shall be prohibited in case in the immediate
vicinity of the area, day and time of the planned assembly there should be held
another public event organized by persons opposing to the organizers and there
is trustworthy information about real threat for clash between the
participants....

The possible counter-demonstration and possible clash
between them was considered as a serious reason by the Legislature of the RA for
prohibition of the fundamental right, whereas the European Court, examining
similar cases came to exceptionally other conclusions, rather than simply
prohibiting the rally. The ban on the peaceful assembly will be justified only
in extreme circumstances.

In eminent threat of counter-demonstration the public
authorities must not simply prohibit the holding of an assembly but should
realize the positive obligations they are under: secure rights of participants,
ensure their security from the counter-demonstrators. If the state have
resources to ban some activities and apply restrictive measures, it should also
“find” some resources to guarantee the safe and proper realization of an
assembly. 

Here, without any comment, we should refer to the case of
the European Commission on Christians against Racism and Fascism v UK, where the
Applicant organization planned to hold public event for the realization of its
objectives. The organization was prohibited to hold the meeting for the reason
of maintaining public order and public safety. The organization appealed to the
European Commission.

The Commission held that the Article 11 (1) of the
European Convention protects the right of everyone who has intention to organize
peaceful assembly. In particular, the Commission held, that “ Under Article
11(1) of the Convention, the right to freedom of peaceful assembly is secured to
everyone who has the intention of organizing a peaceful demonstration. …the
possibility of violent counter demonstrations, or the possibility of extremists
with violent intentions, not members of the organizing association, joining the
demonstration cannot as such take away that right. Even of there is a real risk
of public procession resulting in disorder by developments outside the control
of those organizing it, such procession does not for this reason alone fall
outside the scope of Article 11(1) of the Convention..."(3)

Another example is the case of Plattform "Ärzte für das
Leben" v Austria. In this case the Court came to the conclusion that “… a
demonstration may annoy or give offence to persons opposed to the ideas or
claims that it seeks to promote. The participants must however be able to hold
the demonstration without having to fear that they will be subjected to physical
violence by their opponents: such a fear would be liable to deter the
associations or other groups supporting common ideas or interests from openly
expressing their opinions on highly controversial issues affecting the
community. In a democracy the right to demonstrate cannot extend to inhibiting
the exercise of the right to demonstrate”.(4)

We assume that the contradiction between the provisions of
the Law and European standards is apparent with the regard to the unjustified
state interference with the realization of the right to freedom of peaceful
assembly in RA.

Moreover, it is always possible in all over the world when
intention to hold peaceful assembly does not “fit” with the interests of the
authorities. In such cases the above-mentioned provisions of the Law will enable
the public authorities to easily prohibit the holding of an assembly. Public
authorities can always “create” some counter-demonstrators to avoid of being
criticized by the opposition during an assembly or demonstration. Moreover,
participants/organizers of counter-demonstration can be right the
representatives of the official power.

 What,
if there always “appear” some counter-demonstrations when the
opposition plans to hold demonstration? In what way the right of peaceful
assembly envisaged in the Constitution and norms of
the international agreements will be enjoyed then…?

 The Law keeps silence on these matters, of course, not
in favor of the right to freedom of peaceful assembly, but in favor of leaving
gaps to be filled by the administrative discretion...

 According to Paragraph 5 of
Article 6 of the Constitution of the RA “The
ratified international treaties are the constituent parts of the Republic’s
legal system. If they provide other norms then prescribed by laws, the norms of
the international treaty shall be applicable”.
Article 11 of the European Convention on Human Rights, as noted in this legal
analysis, contains
other norms, than
those discussed in the Law, hence, the norms of Article 11 of the Convention
should have prevalent applicability for all the state bodies, including
Municipality of Yerevan and courts. The Law will loose its general applicability
for being in contradiction with the international convention.

However, as the common sense and the widespread practice
in the field prompt as the Law was not adopted for recognizing its contradiction
with the European Convention after its adoption and so making it loose its legal
power: the Law was adopted to intensively apply it, irrespective of what is
said by the Constitutional and International norms.

Application of the above said provisions of the Law will
enable to the individuals and legal entities to file an application to the
European Court of Human Rights, which, most probably will judge against RA.

 



(1). Author’s word

(2). In 1998 the Protocol 11 to the Convention came into force eliminating the
former European Commission on Human Rights and establishing new European Court.
Before the 1998 Individuals had right to apply directly to the Commission, which
would later send the case to the Court.

(3).  Christians against Racism and Fascism v UK, (1980) 21 DR 138

(4). Plattform "Ärzte für das Leben" v Austria, (1988) 13 EHRR 204



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Arman Zrvandyan, 2003