1. Introduction
1.1. Procedure
to date
1. The motion for a resolution
entitled “Urgent need to prevent human rights violations during
peaceful protests”
was referred to the Committee on Legal
Affairs and Human Rights for report by the Parliamentary Assembly
on 3 October 2014.
2. At its meeting on 30 October 2014, the committee appointed
Mr Antti Kaikkonen (Finland, ALDE) as rapporteur on the subject.
At its meeting on 20 May 2015, the committee considered an introductory memorandum
presented by the Chair, in the rapporteur’s absence. The secretariat
was asked to circulate the rapporteur’s speech read out on his behalf
by the Chair, in order to allow committee members to submit written observations.
No such observations were received. Following Mr Kaikkonen’s departure
from the Assembly, I was appointed rapporteur on 22 June 2015.
3. On 23 June 2015, a hearing on this subject took place in Strasbourg
with the participation of two experts:
- Dr Michael Boyle, Chief Executive of the Northern Ireland
Police Fund, Belfast, Northern Ireland, United Kingdom;
- Mr John Dalhuisen, Director for Europe and Central Asia,
Amnesty International.
1.2. Issues
at stake
4. At the outset, I would like
to emphasise that two recent reports by the committee are closely
linked to the issues at stake in this report: “Strengthening the
protection and role of human rights defenders in Council of Europe
member States”
and
“How to prevent inappropriate restrictions on NGO activities in
Europe”.
This report
will build on the findings and recommendations of those two reports
to avoid any duplication.
5. I would like to stress that the right to freedom of peaceful
assembly lies at the heart of any democratic society and is an essential
means of public expression. This right is firmly anchored in international
human rights law, namely in Article 11 of the European Convention
on Human Rights (ETS No. 5, “the Convention”), Article 20 of the
Universal Declaration of Human Rights
and
Article 21 of the International Covenant on Civil and Political
Rights.
The Committee of Ministers
and
the Assembly have also clearly stressed the importance of ensuring
the protection of human rights during peaceful protests.
7. Such abuses by law-enforcement officials are particularly
deplorable given that it is their duty to protect public order,
which includes upholding human rights and the rule of law. In any
democratic society, law-enforcement officers have a duty to restrict
the use of force to the minimum extent necessary, facilitate peaceful protests
and protect protesters while maintaining public order. Any abuse
by law-enforcement agencies is therefore “a serious threat to the
rule of law”.
2. Defining
peaceful protests
8. For the purposes of the present
report, the notion of “peaceful protests” will be understood as encompassing
a range of peaceful gatherings of any number of people for a common
purpose, whether planned or spontaneous. This appears appropriate
in light of the Guidelines on Freedom of Peaceful Assembly prepared
by the Office for Democratic Institutions and Human Rights of the
Organization for Security and Co-operation in Europe (“OSCE/ODIHR
Guidelines”), together with the European Commission for Democracy through
Law (Venice Commission), which state that “an assembly means the
intentional and temporary presence of a number of individuals in
a public place for a common expressive purpose”. The European Court of
Human Rights (“the Court”) has also interpreted the term “peaceful
assemblies” widely. In order to define more precisely the focus
of this report, I will first look at the notion of “peaceful”, then
turn to the distinction between lawful and unlawful protests, and
finally discuss the different stages at which human rights violations occur
in connection with peaceful protests (before, during and after the
protest).
2.1. Drawing
the line between peaceful and violent protests
9. The first question relates
to the notion of “peaceful”. It is often difficult to draw a clear
line between “peaceful” and “violent” protests, given that demonstrations
may for example start peacefully and subsequently turn violent.
Demonstrations whose organisers have violent intentions are excluded
from the protection afforded by Article 11 of the Convention.
For instance, in
the case
Cisse v. France,
the Court asserted that:
“In practice, the only type of events that
did not qualify as ‘peaceful assemblies’ were those in which the organisers
and participants intended to use violence. In the instant case,
neither the occupants of the church nor the applicant had at any
stage been accused of violent conduct. In any event, the legality
or otherwise of the assembly under domestic law was under no circumstances
to be used as a criterion for determining whether it was peaceful.”
10. The Court has further clarified that “the possibility of extremists
with violent intentions, not members of the organising association,
joining the demonstration cannot as such take away [the right under
Article 11]”.
Recent
years have been marked by mass protests across Europe, which were
disrupted by episodes of violence often by a small number of violent
participants or by agents provocateurs acting on behalf of the authorities
to discredit the protests. Those episodes were then used by the
authorities to qualify the events in their entirety as non-peaceful
and even as mass riots; on this basis, they refused to protect them
and dispersed them. Similarly, “an individual does not cease to
enjoy the right to peaceful assembly as a result of sporadic violence
or other punishable acts committed by others in the course of the
demonstration if the individual in question remains peaceful in
his or her own intentions or behaviour”.
11. An assembly should be presumed peaceful and member States
need to find a balance between guaranteeing public order and their
duties as regards the right to freedom of assembly. The Court recalled
that “it goes without saying that any demonstration in a public
place may cause a certain level of disruption to ordinary life and
encounter hostility”.
Some
member States (for example Armenia and Romania) have incorporated
such a presumption in their Constitutions or in laws governing peaceful
assemblies.
2.2. Lawful
and unlawful protests
12. As noted by the Court in the
above-mentioned case
Cisse v. France,
the lawfulness of a protest has no incidence on the assessment whether
the protest was to be considered peaceful or not. The Court has
also affirmed,
inter alia in
Oya Ataman v. Turkey,
that police officers must not use disproportionate
force even during unlawful demonstrations. In other words, while
the proportionality assessment will vary according to the peaceful
or violent nature of a protest, the force used in policing crowds
must always be strictly necessary and proportionate to the given
circumstances, in lawful or unlawful protests.
13. Regarding administrative formalities, a notification requirement
seems more in line with the right to freedom of assembly than an
authorisation procedure, as spontaneous assemblies must also be
tolerated in a functioning democratic society. The Venice Commission
emphasised that “[e]stablishing a regime of prior notification of
peaceful assemblies does not necessarily extend to an infringement
of the right” but “the regime of prior notification must not be
such as to frustrate the intention of the organisers to hold a peaceful demonstration,
and thus indirectly restrict their rights”.
The non-respect of the procedure
of prior notification or the non-respect of a ban on protests does
not give carte blanche to law-enforcement officials to use excessive
force to disperse protests. Law-enforcement officials across Europe
have used the argument of unlawfulness of the protests to disperse
them violently. In
Bukta v. Hungary,
the Court held that the requirement to give prior notice of an assembly
is not itself necessarily a breach of Article 11. However, in situations
where it would have been impossible to comply with the notice requirement,
to disperse an assembly for the sole reason that such notice was
not given amounted to a disproportionate restriction of the right
to assembly not warranted in a democratic society.
14. The United Nations Special Rapporteur on the rights to freedom
of peaceful assembly and of association (the Special Rapporteur),
together with the University of Ghent, filed a third party intervention
before the European Court of Human Rights regarding the case
Mahammad Majidli v. Azerbaijan (No.
3) and three other applications.
This amicus curiae filed in November
2015 invited the Court to clarify the significance of the notions
of “unauthorized or unlawful assemblies”, which are, in the authors’
opinion, increasingly being used by governments to limit the freedom
of assembly.
2.3. Human
rights violations before peaceful protests
15. Human rights abuses can occur
at various stages of protests. Even before the actual start of a demonstration,
State authorities may abuse their powers by banning protests, in
potential violation of Articles 10 (right to freedom of expression)
and 11 of the Convention.
For
instance, in Serbia, in 2013, the authorities banned the march for
gay rights for public safety issues.
In its Guidelines on Freedom of Peaceful Assembly,
the OSCE/ODIHR considers that:
“As a fundamental right, freedom of peaceful
assembly should, insofar as possible, be enjoyed without regulation.
Anything not expressly forbidden by law should be presumed to be
permissible, and those wishing to assemble should not be required
to obtain permission to do so.”
16. Aside from the issue of banning protests, the arrest, detention
and possible prosecution of protesters or persons intending to take
part in a demonstration might also be used by the authorities to
limit freedom of assembly. For instance, in Armenia, since the mid-1990s,
the authorities have used administrative detention as a tool of
repression, locking up protesters and activists at times of political
tension, for instance during the 2003 presidential election.
In
Schwabe and M.G. v. Germany, although
the Court acknowledged the considerable challenge the authorities
were facing in order to guarantee the security of the participants
at the G8 summit and maintain public order, it concluded that the
six-day detention of the applicants was not a proportionate measure.
According to the Court, there could have been other effective but
less intrusive measures available to the authorities to achieve
their aims, such as seizing the banners they had found in the applicants’
possession.
17. In Azerbaijan, the authorities seem to have used this intimidation
tactic by arresting or threatening citizens before they protest
in order to prevent peaceful protests. In 2013, according to Human
Rights Watch, “three political activists were arrested two days
before the protest on questionable accusations of planning violence
at the protest”.
2.4. Human
rights violations after peaceful protests
18. State authorities have also
used the initiation of criminal proceedings against peaceful protesters
and their arrest to restrict the right to freedom of assembly. This
type of reprisal is often aimed at intimidating protesters and discouraging
participation in future protests.
19. One of the main issues related to human rights violations
after peaceful protests is the lack of accountability of the law-enforcement
forces regarding their acts of violence. In many countries, there
seems to be a culture of impunity for acts committed by the police
during peaceful protests. In
Sandru and Others v. Romania, which concerns the lack of effective
investigation following the violent repression of the December 1989
anti-communist demonstrations in Timişoara, the Court stated that
the State’s obligation “to protect the right to life under Article
2 required by implication that there should be some form of effective
official investigation when the use of lethal force against an individual
had placed the latter's life in danger”. Despite acknowledging the
complexity of the case, and its political and social implications,
the Court concluded that the domestic authorities should have dealt
with the case speedily and without unnecessary delay, in order to prevent
any appearance of tolerance of or collusion in unlawful acts.
20. These issues are undoubtedly of great importance, given their
direct impact on individuals’ enjoyment of their human rights enshrined
in the Convention, and merit further examination. However, due to
the limited scope of the report, and in keeping with the motion
at its origin, I will focus on the issue of excessive use of force
by law-enforcement authorities and some other human rights violations
during peaceful protests.
3. Recent
examples of alleged human rights violations during peaceful protests
in selected Council of Europe member States
21. This section aims at providing
a fair impression of the magnitude of the problem by giving some
recent examples where the use of force by police resulted in protesters
being injured or even killed.
3.1. Armenia
22. In Armenia, a culture of impunity
creates the pre-conditions for regular use of violence by the police during
peaceful protests. In March 2008, after the presidential election,
10 people were killed and over 130 people were injured during large-scale
demonstrations against the elections results. The then Council of Europe
Commissioner for Human Rights, Mr Thomas Hammarberg, noted after
his visit that:
“The lack of results of the investigation into
these cases has been a source of grave concern. None of the perpetrators
have been identified to date. Furthermore, it appears that command
responsibility of senior officials within the police and the security
services, who were in charge at the time of the events, was not
seriously considered.”
23. In June 2015, the police used force against peaceful demonstrators
opposed to a proposed 17% increase in electricity prices; the demonstrations
continued to protest against the police use of force.
Media reports supported
by individual statements show that 13 journalists and camera operators
covering the police dispersal of those protests were subjected to
gratuitous violence at the hands of police and other security officials;
and 11 journalists were detained by police. Several journalists
stated that they were attacked or detained despite identifying themselves
as media workers and showing their press accreditation.
In September 2015,
police also forcibly dispersed a second protest over electricity
costs. A member of an independent political group, Smbat Habokian,
was severely beaten by a group of five men after a protest in Yerevan.
3.2. Azerbaijan
24. Four judgments of the European
Court of Human Rights against Azerbaijan concerning the excessive use
of force by the police against the applicants during demonstrations
by the opposition are under enhanced supervision of the Committee
of Ministers.
In three of the cases, the Court
held that there was a substantive violation of Article 3 due to
excessive use of force by the police (in the
Muradova case,
the applicant lost her sight in one eye; in the
Najafli and
Tahirova cases,
the Court noted that the applicants’ traumas required medical treatment
and the ill-treatment, as well as its consequences, also caused
them considerable mental suffering, diminishing their human dignity).
In the four cases, the Court also held that there was a lack of effective
investigation following the claims introduced by the applicants.
25. After a visit to Azerbaijan in May 2013, the Commissioner
for Human Rights expressed his concern regarding the dispersion
of peaceful protests with excessive force and the “harshening of
the fines and the use of administrative detention against those
who organise or participate in ‘unauthorised’ public gatherings”.
He also noted that the local authorities had “not authorised a single
rally in Baku city centre in recent years” and therefore urged the
authorities not to impose any disproportionate sanctions.
More recently, in January 2016, the
authorities used excessive force during protests which were mostly
peaceful. Protests started on January 2016 to protest against the
price hikes due to the sharp devaluation of the national currency.
3.3. Greece
26. Nearly a dozen judgments of
the Court regarding the excessive use of lethal force and ill-treatment
by law-enforcement officials and the subsequent failure of the Greek
authorities to conduct effective investigations into such abuses
are currently pending before the Committee of Ministers.
Amnesty
International has repeatedly denounced the unjustified and disproportionate
use of force by the Greek police, maintaining that it was also coupled
with a culture of impunity.
27. In June 2014, during a peaceful demonstration by cleaning
staff in the centre of Athens, the protesters – most of them women
– were allegedly kicked and struck with shields.
On 6 December
2014, thousands of people demonstrated in several Greek cities in
memory of a teenager killed by a policeman in 2008 and in solidarity
with a prisoner on hunger strike, Mr Nikos Romanos. The protest
degenerated, confrontations took place between groups of protesters,
and law-enforcement officers used tear gas and water cannons. More
than 200 demonstrators were reportedly arrested in Athens.
3.4. Russian
Federation
28. On 6 May 2012, tens of thousands
of people demonstrated in Moscow against the election results and Vladimir
Putin’s return to presidency for a third term. The presence of a
small group of violent protesters resulted in the violent dispersal
of the protests and the arrests of hundreds of protesters. Those
events are known as the Bolotnaya events. A recent judgment of the
Court found that the Russian authorities had not complied with the
minimum requirements in their duty to communicate with the leaders
of the rally, which had been an essential part of their obligation
to ensure the peaceful conduct of the assembly and that the arrest, detention
and administrative conviction of Mr Frumkin had been grossly disproportionate
to the aims pursued.
29. The Duma also passed, on 20 May 2014, an amendment to the
law on public gatherings, which permits the detention of any person
participating in an unauthorised public assembly and criminalises
anyone found to have violated the law more than twice within 180
days.
A peaceful activist,
Idlar Dadin, was sentenced in December 2015 to three years in prison
for breaking that law.
In 2015, “more
than 640 people were detained and accused of participation in unauthorized
gatherings … for peacefully protesting outside the court building where
the verdicts of Bolotnaya case defendants were being heard”.
3.5. Spain
30. During the anti-austerity demonstrations
in 2013, law-enforcement officials made disproportionate use of
force, including rubber bullets. After a visit to Spain in June
2013, the Commissioner for Human Rights, Mr Nils Muižnieks, expressed
his concern that “the frequent lack of identification of law-enforcement
officials, especially during demonstrations, has impeded the prosecution
and sanctioning of perpetrators of abuse”. He also urged the Spanish
Government “to end its long-standing practice, based on a law of
1870, of granting pardons to members of law-enforcement agencies
involved in serious human rights violations, including torture”.
31. In March 2015, the Spanish Parliament passed a new law on
citizen’s security – also called the “gag law” or “ley mordaza”
by its opponents – which entered into force on 1 July 2015. This
new law criminalises some legitimate forms of protest, contains
limitations on the locations of demonstrations (near Congress, the
Senate and regional assemblies), includes a ban on “spontaneous
assemblies” in certain places and fines the organisers of such protests.
Journalists and members
of the public now risk penalties of up to €30 000 for filming law-enforcement
officers or using such images. The new provisions therefore prevent
the public from documenting and reporting abuses by the police.
Before the law was passed, the United Nations special rapporteurs
expressed concern about the law, which has an obvious negative impact
on the right to freedom of assembly.
This law was
sent to the Spanish Constitutional Court for an opinion in May 2015
and the Venice Commission
was asked for an opinion as well.
3.6. Turkey
32. Some 46 judgments of the Court
on freedom of assembly are currently pending execution before the Committee
of Ministers.
Moreover, 117 cases concerning
the lack of effective investigations in respect of the actions of
the Turkish security forces are also pending but they do not all
relate to the actions of the Turkish security forces during peaceful
protests.
33. In the
Oya Ataman group
of cases, the Court observed under Article 46 of the Convention
that the problems at the origin of the violations of the applicants’
right to freedom of peaceful assembly and ill-treatment of the applicants
on account of excessive force used to disperse peaceful demonstrations
were systemic, and that, therefore, Turkey had to adopt general
measures to prevent similar violations in the future. Those measures
should include among others clearer rules on the use of tear gas
(or pepper spray) and tear gas grenades, adequate training of law-enforcement
officers and their control and supervision during demonstrations.
34. Recent events in Turkey illustrate the systemic nature of
the problem and the urgency to remedy this situation. Law-enforcement
officials used disproportionate force against demonstrators in what
has commonly become referred to as the “Gezi incidents”. At the
end of May 2013, several hundred people gathered in Istanbul to
protest against the destruction of Gezi Park, one of the last green
spaces in central Istanbul, as part of the envisaged remodelling
of the Taksim area. The police broke up this small demonstration
using tear gas, beating protesters and burning their tents. Such
a response to what had been a peaceful gathering of citizens gave
rise to large demonstrations with hundreds of thousands of participants
throughout Turkey.
35. In a report entitled “Gezi Park Protests: brutal denial of
the right to peaceful assembly in Turkey”, Amnesty International
documented acts of violence by the police against the people gathered
in Taksim Square, including journalists reporting on the protests,
doctors treating the injured and lawyers defending protesters’ rights.
As an example, Ali
İsmail Korkmaz, a 19-year-old Gezi protester in Eskişehir
, was allegedly beaten to death
by at least two police officers in civilian clothes while he was
protesting against the destruction of the park. In January 2015,
a local court sentenced one of the two police officers involved
in the crime to 10 years and 10 months in prison on charges of causing
death as a result of injury.
36. Amnesty International’s report noted that, according to the
Ministry of the Interior, 4 900 protesters were detained on 23 June
2013. Moreover, the Turkish Medical Association reported that, on
10 July 2013, more than 8 000 people were injured at the scene of
demonstrations and, by the end of August, five people had died during
the course of the protests.
37. The Commissioner for Human Rights condemned the following
human rights violations which appeared to be particularly recurrent
during the Gezi events: excessive use of tear gas, improper use
of tear gas canisters as projectiles, use of tear gas in confined
spaces, use of tear gas mixed with water on demonstrators, excessive use
of force during and after apprehensions, use of water cannons, insufficient
provision for escape routes, concealment by police officers of their
ranks and identification numbers, and police violence against journalists.
The
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) published, in 2015, a report
on its 2013 visit to Turkey and paid particular attention to the situation
of persons deprived of their liberty following the Gezi protests.
It recommended in particular that:
“a firm message be delivered to all law-enforcement
officials throughout Turkey who are involved in crowd control operations,
reminding them that all forms of ill-treatment (including verbal
abuse) of persons deprived of their liberty are not acceptable and
will be punished accordingly.”
38. The list of peaceful protests being brutally dispersed in
Turkey seems to be constantly growing. Just to give two examples
of the most recent use of violence to disperse protests:
- 28 November 2015: Police fired
water cannons and tear gas to disperse around 2 000 people marching in
Istanbul's Taksim Square the Saturday after a prominent Kurdish
lawyer was shot dead in south-east Turkey;
- December 2015/January 2016: The peaceful protests regarding
the curfew situation in the south-east of the country are usually
dispersed with violence. “Protests and vigils taking place daily
outside the curfew areas are routinely dispersed by police using
tear gas and water cannons, and protesters are detained”.
39. Finally, it is important to take note of the security bill,
which was adopted by the Turkish Parliament in March 2015, and which
further increased the powers of the police.
The Commissioner
for Human Rights highlighted that even though the reform of the
police was a long-due imperative, the proposed bill seemed “to increase
the powers of the police to use firearms, to use force during demonstrations”
without reinforcing the necessary independent control over its actions.
3.7. Ukraine
40. Two cases on freedom of assembly
are pending execution before the Committee of Ministers. In one
of those cases (
Vyerentsov v. Ukraine), the
Court found a violation of Articles 11 and 7 (of the principle of
no punishment without law) on account of the applicant’s conviction
for having organised a peaceful demonstration in October 2010, and
discovered a lacuna in the Ukrainian legislation with respect to
a procedure for holding demonstrations.
The
Commissioner for Human Rights also expressed his concern regarding
the lack of a legislative framework governing peaceful assembly.
During a more
recent visit in 2015, he also recommended that “the law on the police
should be further revised to include all necessary safeguards concerning
the use of firearms in line with international standards”.
According to the information given
by the Ukrainian authorities to the Committee of Ministers, a draft
law “On Guarantees of the Right to Freedom of Peaceful Assembly”
was submitted to parliament on 7 December 2015.
41. The announcement of the Ukrainian Government at the time that
it would halt preparations for an Association Agreement with the
European Union had prompted large-scale demonstrations in Kyiv starting
on 21 November 2013. The events in Maidan Square in Kyiv between
November 2013 and February 2014 led to nearly one hundred deaths
and hundreds of people being injured. This protest has been named
“Euromaidan” and remains sadly notorious due to the violent methods
used for the dispersal of the crowds as reported by journalists,
victims and other demonstrators. According to an Amnesty International
report, one hundred people were demonstrating peacefully on 30 November
2013, when large numbers of riot police – also called
berkut (a special division within
the Ministry of Internal Affairs of Ukraine) – ordered them to disperse.
The police officers then started beating those who chose to remain,
as well as persons fleeing the scene.
42. After an ad hoc visit in Correctional Colonies Nos. 25 and
100 in the Kharkiv area in September 2014, the CPT highlighted in
its preliminary observations cases of beatings and other forms of
physical ill-treatment of Maidan protesters by law-enforcement officials.
The CPT identified a persistent problem, namely that the
berkut and Interior Ministry troops
had worn balaclavas, helmets or masks during their intervention
and that it had been impossible to identify the individual perpetrators
of abuses because of the absence of any identification number on
their helmets or uniforms.
3.8. Other
examples
43. In Bosnia and Herzegovina,
there were allegations of excessive use of force by police against
protesters, bystanders and journalists in Tuzla and Sarajevo in
February 2014. The protests were against layoffs, unpaid salaries,
and unduly high severance pay for high-ranking company officials
following the privatisation of several large companies in the town.
44. In the Czech Republic, in December 2014, demonstrators against
the eviction of a squat were dispersed, allegedly with truncheons,
pepper spray and kicks with unnecessary and excessive force.
45. In France, “several demonstrations against same-sex marriage
staged in Paris between 24 March and 27 May 2013 (‘Manif pour tous’),
involving more than 2 million people, triggering the intervention
of law-enforcement forces including the use of tear gas (pepper
spray) on peaceful demonstrators. Four persons were injured and
several hundred were arrested”.
Following the terrorist
attacks in January 2015, France witnessed the largest public gatherings
of its history to protest against violence and for freedom of expression. Those
peaceful protests showed the added value of protests in showing
solidarity and unity. Following the Paris terrorist attacks of 13
November 2015, the reaction of the French authorities was quite
different and a state of emergency was declared, which prohibits
any assembly for three months.
The state of emergency
has already been invoked to disperse a peaceful protest related
to the climate change conference in Paris (COP21); law-enforcement
officers used tear gas and pepper spray and arrested 174 people.
The constitutionalisation
of the state of emergency currently debated in the French Parliament
could possibly undermine freedom of assembly by a simple administrative
decision.
46. A case concerning freedom of assembly in the Republic of Moldova
is pending execution before the Committee of Ministers. In the case
Promo Lex and others v. Moldova,
the Court found a violation of the applicants’ (two NGOs and a Moldovan
national) right to peaceful assembly on account of the failure by
the police to secure the protection of demonstrators from a violent
attack during a demonstration in January 2009 (Article 11) and lack
of an effective remedy in this respect (Article 13).
4. International
and European legal standards regarding human rights protection during
peaceful protests
47. The international law which
governs the use of force by the law-enforcement authorities is composed
of binding regional human rights law instruments such as, within
the Council of Europe area, the European Convention on Human Rights
and the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (ETS No. 126), and international
instruments such as the International Covenant on Civil and Political
Rights and the United Nations Convention against Torture.
48. Relevant soft law instruments include the Code of Conduct
for Law Enforcement Officials,
which provides
some guidance for law-enforcement agencies that possess police powers
on how to respect and protect human dignity and uphold human rights.
Another important piece of soft law was adopted in 1990: the
United
Nations Basic Principles on the use of Force and Firearms by Law
Enforcement Officials (UN Basic Principles). The creation of a mandate of
a United Nations Special Rapporteur on the rights of freedom of peaceful
assembly and of association contributes to the further development
and dissemination of relevant principles, good practices and lessons
learnt.
49. In the framework of the Council of Europe, both the Committee
of Ministers and the Parliamentary Assembly have repeatedly underscored
the paramount importance of guiding the police forces and ensuring the
protection of human rights in the context of demonstrations. On
19 September 2001, the Committee of Ministers adopted the European
Code of Police Ethics,
which
applies to traditional public police forces, police services, and
to other publicly authorised and/or controlled bodies. This Code
recommends,
inter alia, that “[l]egislation
guiding the police shall be accessible to the public and sufficiently
clear and precise, and, if need be, supported by clear regulations
equally accessible to the public”.
On
this issue of access to information, the law-enforcement authorities
of the member States should also comply with the Council of Europe Convention
on Access to Official Documents (CETS No. 205) (2009).
Prompted
by relevant judgments of the European Court of Human Rights, the
Assembly has reflected on freedom of assembly and adopted
Resolution 1947 (2013) on popular protest and challenges to freedom of assembly,
media and speech. It urged member States to guarantee freedom of
assembly and demonstration in accordance with the case law of the
Court, to duly investigate the use of excessive or disproportionate
force by members of law-enforcement forces, to reinforce human rights
training for members of the security forces, and to draw up clear
instructions concerning the use of tear gas and prohibit its use
in confined spaces.
50. The OSCE/ODHIR, together with the Venice Commission, developed
the above-mentioned Guidelines on Freedom of Peaceful Assembly,
which offer a practical toolkit for legislators and practitioners
responsible for implementing laws by drawing on good-practice examples
from national legislations and the case-law of the European Court
of Human Rights to illustrate the various legislative options used
to regulate issues pertaining to the freedom of assembly.
Those guidelines
have been cited by the Court, most recently in the case of
Vyerentsov v.Ukraine.
5. Specific
human rights violated during peaceful protests
51. In accordance with Article
11 of the Convention, freedom of association and assembly may be
restricted in certain circumstances if those restrictions are prescribed
by law and if they pursue a legitimate aim in a democratic society
such as national security or public safety, the prevention of disorder
and crime, the protection of health or morals, or the protection
of the rights and freedoms of others. Those notions are often used
and abused to ban protests, to use violence to disperse protests
and to arrest protesters.
52. Human rights violations during peaceful protests do not however
only concern the right to freedom of assembly. They may also concern
the following rights.
5.1. Right
to life and right to be free from torture, inhuman or degrading
treatment
53. Police violence against protesters
may entail violations of Article 2 of the Convention, which protects
the right not to be arbitrarily deprived of life, and therefore
strictly limits the use of lethal or potentially lethal force to
instances where it is absolutely necessary.
54. Even where the force used by law-enforcement authorities when
policing protests is not lethal, it may entail violations of another
non-derogable right enshrined in Article 3 of the Convention, namely
the prohibition of torture, inhuman or degrading treatment or punishment.
Violations of this provision might occur when law-enforcement forces
use “less lethal” weapons such as tear gas, water cannons or rubber
bullets. For instance, in a recent case,
Cestaro
v. Italy, the Court considered that the treatment by
the police of a peaceful protester amounted to torture.
55. The European Code of Police Ethics contains guidelines for
police interventions, which also raise issues relating to the right
to life, and to the prohibition of inflicting, instigating and tolerating
acts of torture.
5.2. Non-discrimination
56. Restrictions on the exercise
of freedom of assembly should also be non-discriminatory. The fact
that the organisers of a demonstration are an unpopular group of
individuals is not a sufficient reason to ban their assembly. So,
where an evangelical church was refused permission to hold a service
in a park because it might have caused discontent among the followers
of the majority religion in the area, there was a breach of Article 14 of
the Convention, in addition to the violation of the freedom of religion.
The role of the authorities in such situations had to be informed
by “pluralism, tolerance and broadmindedness”.
57. The same principles would apply to minority ethnic or political
groups, or to other minorities like lesbians, gays, bisexuals, transsexuals
and intersex people (LGBTI) wishing to hold marches and demonstrations. Violations
of the right to freedom of assembly on grounds of sexual orientation
are regularly reported. For example, since 2011, the Committee of
Ministers has been supervising the implementation of the judgment
Alekseyev v. the Russian Federation,
a case concerning the violation of the applicant’s freedom of assembly, the
lack of an effective remedy in this respect and discrimination on
the grounds of sexual orientation due to the repeated bans over
a period of three years (between 2006 and 2008) on the holding of
gay marches and pickets imposed by the Moscow authorities.
Violations
of the freedom of assembly on grounds of sexual orientation occur
regularly prior to the peaceful protests through bans of the marches,
pickets or protests.
In some other cases, the violations occurred
during the protests, for example when the State failed to provide adequate
protection to peaceful participants in a gay march in Georgia (see
paragraph 64 below). In May 2015, in Turkey, police arbitrarily
used force against peaceful demonstrators of a Pride march and targeted
them with water cannons, tear gas and pepper-ball projectiles.
58. The Venice Commission stresses regularly that “freedom of
peaceful assembly is to be enjoyed equally by everyone”. It noted
that discrimination between nationals and non-nationals should be
abandoned by the Sarajevo Canton in Bosnia and Herzegovina and that
in Serbia, illegal migrants, stateless persons, asylum seekers and
people with disabilities “must have the right to exercise their
freedom of assembly”.
5.3. Right
to private life
59. Police operations during peaceful
protests may also entail restrictions on demonstrators’ right to
respect for their private life, as enshrined in Article 8 of the
Convention,
inter alia in
relation to the release of images by the police to the media, or
the taking and retention of personal data, fingerprints or DNA samples
by the police during stop and search operations. Moreover, according
to the European Code of Police Ethics, “the collection, storage,
and use of personal data by the police shall be … limited to the
extent necessary for the performance of lawful, legitimate and specific
purposes”.
Defenders
of privacy rights demand that the “[u]se of surveillance techniques
for the indiscriminate and untargeted surveillance of protesters
and the organisers of protests, both in physical space and digital
technologies, should be prohibited”.
5.4. Right
to freedom of expression
60. Violations of Article 10 of
the Convention can also occur when the police specifically targets
journalists during protests and prevents them from reporting on
an ongoing demonstration. For instance, on 29 March 2014, after
a demonstration in Madrid, seven photo-journalists were allegedly
assaulted, beaten and injured by the police as they tried to cover
an arrest. The OSCE Representative on Freedom of the Media, Ms Dunja Mijatović,
expressed deep concern about the violence and intimidation by police
against journalists covering these demonstrations.
61. More recently, in January 2016, a journalist from the news
agency JINHA, Beritan Canözer, was arrested while covering a protest
against curfews imposed in neighbourhoods of the Sur district in
Diyarbakır province (Turkey)
and a reporter
for the Turkish newspaper
Evrensel was
arrested while covering women’s protests in Izmir.
The use of social media related to
peaceful protests has also been under attack.
5.5. States’
duties regarding peaceful assemblies
62. Regarding the right to peaceful
assembly, States have both a negative and a positive duty. The Court noted,
in the case of
Oya Ataman v. Turkey,
that States Parties must not only “safeguard the right to assemble peacefully
but also refrain from applying unreasonable indirect restrictions
upon that right”. It also affirmed that “it is important for the
public authorities to show a certain degree of tolerance towards
peaceful gatherings”.
63. Policing protests not only entails a negative obligation for
the law-enforcement agencies to refrain from resorting to the use
of force but also a positive obligation to protect protesters from
violence at the hands of counter-demonstrators or agents provocateurs,
as the European Court of Human Rights has established in the case
of
Plattform “Ärzte für das Leben” v.
Austria. The Court defined this positive obligation as
the obligation “to take reasonable and appropriate measures to enable
lawful demonstrations to proceed peacefully” whilst noting that
the law-enforcement agencies “have a wide discretion in the choice
of the means to be used”.
The Court has since consistently
recognised this positive duty.
In another case,
in which the police had formed a cordon to keep rival demonstrators
apart but failed to prevent physical assaults and damage to property,
it found that they had not done enough to enable a lawful demonstration
to proceed peacefully.
64. States regularly fail to carry out this positive obligation
when the peaceful protests concern the rights of people belonging
to a minority. The Court recently delivered a judgment in which
it stated that the Georgian authorities had failed to protect a
2012 march for the rights of LGBT persons in Tbilisi from violent
attacks of counter-demonstrators. The Court considered in particular
that the authorities knew or ought to have known of the risks surrounding
the demonstration. They had therefore been under an obligation –
but had failed – to provide adequate protection so that it could
be held peacefully.
65. In this respect, an example of good practice highlighted by
the United Nations Special Rapporteur is the “establishment in Estonia
of a Police Rapid Response Unit (riot police) which aims at protecting
peaceful demonstrators against attacks by provocateurs and counter-demonstrators
and is trained in how to separate the main provocateurs from peaceful
demonstrators”.
Such
a measure could indeed be an essential element of a human rights
approach to policing protests.
6. A
human rights-based approach to policing protests
66. Policing of protests should
at all times be guided by human rights principles and comply with
international human rights standards (see section 5 above).
6.1. Quasi
prohibition on the use of firearms
67. Principle 9 contained in the
United Nations Basic Principles clearly prohibits the “use of firearms
by law-enforcement authorities against persons except when strictly
unavoidable to protect human life”. The UN Basic Principles make
a distinction between peaceful and unlawful assemblies and violent
assemblies. Regarding the dispersal of violent assemblies, the prohibition
on firearms is partially lifted and “law-enforcement officials may
use firearms only when less dangerous means are not practicable
and only to the minimum extent necessary”. The Code of Conduct for
Law Enforcement Officials also states that the use of firearms should
only be used as a last resort and be such as to minimise damage
and injury.
6.2. Proportionate
and necessary use of force
68. Principle 13 of the UN Basic
Principles concerns the dispersal of assemblies that are unlawful
but peaceful; in which case, “law-enforcement officials shall avoid
the use of force or, where that is not practicable, shall restrict
such force to the minimum extent necessary”. Pursuant to Article
3 of the Code of Conduct for Law Enforcement Officials, “law-enforcement
officials may use force only when strictly necessary and to the
extent required for the performance of their duty”. Law-enforcement
forces should be given weapons and tools which allow a graduated
response to situations requiring the use of force.
69. A system for monitoring the use of force, which must include
a requirement for law-enforcement officials to report any use of
it, should be in place. Documentation about the use of force should
be made available to the public.
6.3. Use
of “less lethal” weapons
70. While it is commendable that
States appear to strive to avoid the use of lethal force,
there have been numerous reports
of severe injuries or even deaths caused by the use of incapacitating
weapons considered as non-lethal, such as batons, water cannons,
pepper spray, handguns, tasers, rubber bullets, stun guns and shock
grenades. Any weapon can become lethal if used in a certain manner.
71. Some member States appear to be widening the range of such
equipment and the scope of their use against protesters. While law-enforcement
authorities need to be provided with a range of less lethal tactical options
to allow for a differentiated use of force and firearms, including
non-lethal incapacitating weapons,
the “development and deployment of non-lethal
incapacitating weapons should be carefully evaluated in order to
minimize the risk of endangering uninvolved persons and the use
of such weapons should be carefully controlled” (Principle 3).
72. A recent report from the NGO Access Info Europe highlighted
the lack of transparency about the use of various types of equipment
during policing of protests. The worrying result of the research
carried out for this report was that “not one of the 42 countries
surveyed provided full information” regarding
inter
alia “the law governing use of equipment during protests,
the training on its use [and] the quantities and nature of equipment held”.
73. The CPT has also qualified the use of electrical discharge
weapons in its standards:
“The CPT considers that the use of electric
discharge weapons should be subject to the principles of necessity,
subsidiarity, proportionality, advance warning (where feasible)
and precaution. These principles entail, inter alia, that public
officials to whom such weapons are issued must receive adequate training
in their use. As regards more specifically EDW capable of discharging
projectiles, the criteria governing their use should be directly
inspired by those applicable to firearms.”
6.4. Use
of tear gas
74. I note with concern the multiple
negative effects of certain weapons considered as non-lethal but
which can cause serious injuries and even deaths when used in a
certain way. Particular concern has been voiced about the use of
tear gas to disperse crowds, not least because it does not discriminate
between demonstrators and passers-by, or healthy people and people
with certain medical conditions, as the Special Rapporteur observed
in his 2012 report.
Used
incorrectly, tear gas canisters can become lethal weapons or seriously harm
protesters. For instance, during the events at Gezi Park, many police
officers fired tear gas canisters directly at protesters, targeting
their faces.
75. Tear gas, first used in the First World War, is increasingly
becoming the weapon of choice for security forces across Europe.
While tear gas and pepper spray, under international law, are banned
as a “method of warfare”, there are no restrictions on their domestic
use as a “riot control agent”. Like the regulation of many other
dangerous and toxic products, the trade in tear gas must be clearly
and systematically regulated and all trade should be publicly disclosed.
The use of tear gas is widespread in member States despite the known health
dangers of its use.
Even though tear gas is not in principle
a lethal weapon, when used inappropriately, at close range or directly
at protesters, it can cause serious injuries and even deaths.
76. The use of tear gas has often been criticised by the Court.
For example, in the recent case
Ataykaya
v.
Turkey, it has
found that “Turkish law lacked any specific provisions governing
the use of tear gas grenades during demonstrations and did not lay
down any instructions for their use” and concluded that “Turkey
must reinforce without further delay, guarantees of the proper use
of tear-gas grenades, in order to minimize the risks of death and
injury stemming from their use”.
In an earlier case against Turkey,
the Court affirmed that gas canisters shot with rifles have the
potential to injure or even kill, and thus should be distinguished
from other uses of tear gas. According to the Court, the danger
posed by such material justifies the application of its case law
on the use of potentially lethal force, in connection with Article
2 of the Convention on the right to life, and should therefore be
strictly regulated in national law, within the framework of a system
of adequate and effective safeguards against arbitrary use, abuse
and avoidable accidents. The Court stated in particular that it
assumed that the gas canister had been shot directly and horizontally
on the applicant, and not in an arc as it should have been, given
the injury he had sustained and the fact that the Turkish Government
had not sufficiently investigated the incident to prove the contrary.
77. Most cases from the Court related to the use of tear gas concern
Turkey, as the Turkish law-enforcement authorities have used tear
gas for policing protests on an unprecedented scale leading to injuries
and deaths. The Tear Gas Must be Banned Initiative (Biber Gazı Yasaklansın
İnsiyatifi)
produced a report mentioning 8 deaths
and 450 injuries due to tear gas in 2014. This report was however
disputed by the police.
The Turkish medical
association has noted that around 130 000 tear gas canisters were
used during the Gezi Park protests and that 8 000 injuries were
due to tear gas and other less lethal weapons.
A recent report noted
that Turkey had a better recording of data on the use of tear gas
than other Council of Europe member States due largely to local
initiatives and the recording of its use by large organisations.
According to that report, there is a lack of accurate figures and
data on the use of tear gas for other countries.
78. The CPT has also expressed concern over the use of tear gas,
stating that:
“Pepper spray is a potentially dangerous substance
and should not be used in confined spaces. Even when used in open
spaces the CPT has serious reservations; if exceptionally it needs
to be used, there should be clearly defined safeguards in place.
For example, persons exposed to pepper spray should be granted immediate
access to a medical doctor and be offered an antidote. Pepper spray
should never be deployed against a prisoner who has already been
brought under control.”
6.5. Containment
of protesters
79. The OSCE/ODHIR Guidelines consider
that “[s]trategies of crowd control that rely on containment (a tactic
know in the UK as ‘kettling’) must only be used exceptionally”.
The Court took a similar position
and judged that the containment of a group of people carried out
by the police on public order grounds may likewise entail violations
of Article 5 of the Convention as well as of Article 2 of Protocol
No. 4 to the Convention (ETS No. 46) (setting out the right to freedom
of movement). In
Austin and Others v. the
United Kingdom, it
found that despite the coercive nature of the containment within
the cordon, its duration and the physical discomfort of the applicants,
there had been no deprivation of liberty within the meaning of Article
5.1 of the Convention. In reaching this conclusion, the Court took
into account the “type” and “manner of implementation” of the measure
in question. Nevertheless, it clearly underlined that “measures
of crowd control should not be used by the national authorities
directly or indirectly to stifle or discourage protest”.
6.6. Training
and counselling
80. Even when rules and policies
are in place to ensure a human rights approach to policing, they
do not always translate on the ground. Human rights violations by
law-enforcement forces during peaceful protests are often caused
by a lack of skills and adequate training. The European Code of
Police Ethics calls for regular and adequate training, including
on human rights principles, of police personnel. It clearly states
that “practical training on the use of force and limits with regard
to established human rights principles, notably the European Convention
on Human Rights and its case law, shall be included in police training
at all levels”.
81. Police officers need to know how and when to use the equipment
which they are issued. This involves not only knowing how to operate
the equipment but knowing its capabilities, its purpose and its
limitations. In its
Resolution
1947 (2013), the Assembly invited member States to “reinforce human
rights training for members of the security forces”.
6.7. Assistance
to the victims
82. Assistance and medical aid
to those affected by the use of force during protests must be ensured
at the earliest possible moment in order to minimise adverse effects
on life and health. The Court stated, in the Grand Chamber case
of
Giuliano and Gaggio v. Italy,
that “it is important that preventive security measures such, as for
example, the presence of first-aid services at the site of demonstrations,
be taken in order to guarantee the smooth conduct of any event”.
Medical
staff should not face threats for providing first aid to protesters.
The Turkish Medical Association was sued by the Turkish Ministry
of Health for providing “emergency care to demonstrators injured
during the Gezi Park protests”. An Ankara court dismissed the lawsuit
in February 2015.
6.8. Preventive
security measures
83. The dialogue between law-enforcement
officers and protesters is also important in order to inform the latter
what security and public safety measures will be taken.
Precautionary
measures, such as using stewards or amplification equipment to direct
the demonstrators or warn them that force may be used, could be
an effective way to ensure that the protests remain peaceful. At
the same time, threatening measures such as the deployment of heavily
armed police, police dogs, water cannons, etc. tend to escalate
violence. The OSCE/ODHIR guidelines also encourage law-enforcement
authorities to “be proactive in engaging with assembly organizers”.
84. The prevention measures need to be proportionate and necessary.
In
Nurettin Aldemir and Others v. Turkey, although
the authorities had a duty to take appropriate measures with regard
to lawful demonstrations in order to ensure their peaceful conduct
and the safety of all citizens, the Court considered that the swift
and considerably forceful intervention to order to disperse the
initially peaceful crowd caused tensions to rise and resulted in
clashes. Therefore, the Court considered that the forceful intervention
of the police officers was disproportionate and not necessary for
the prevention of disorder, and was consequently in violation of Article 11.
6.9. Accountability:
fighting impunity
85. Impunity is one of the central
permissive elements of bad policing.
In several
of the cases referred to above, the Court concluded that there had
been a procedural violation of Articles 2 or 3 due to the lack of
an effective investigation at the domestic level, resulting in the
impunity of some police officers (for example, due to the impossibility
to determine their identity).
When
the competent national authorities deploy police officers who are
masked, these agents have to wear a distinguishing feature (for
example a service number) which, while protecting their anonymity,
allows their identification later if, for example, facts are disputed.
In the case
Ataykaya v. Turkey, the Court further
elaborated that the national authorities had deliberately created a
situation of impunity,
inter alia by
making impossible the identification of the agents suspected of
having fired tear gas grenades.
The Court has ruled in several cases
against Turkey in respect of the failure to carry out an effective
investigation into the applicant’s allegations of ill-treatment
or lack of an effective remedy in this respect (violations of Articles
3, 11 and 13 of the Convention).
86. Principle 7 of the UN Basic Principles provides that arbitrary
or abusive use of force and firearms by law-enforcement officials
shall be punishable as a criminal offence under national law. In
the case of
Cestaro v. Italy,
this was one of the points highlighted by the Court.
87. A police complaints system should be put in place and criminal
and disciplinary proceedings should be brought against law-enforcement
officials responsible for misconduct or human rights violations.
Five principles
were developed by the Court
for the effective investigation of complaints against the police: independence,
adequacy,
promptness,
public scrutiny
and victim involvement.
7. Conclusion
88. I would like to stress again
that peaceful protests, whether authorised or not, play a vital
role in a democratic society and should not be sacrificed on the
altar of security and anti-terrorism measures. Member States should
refrain from using bans and preventive arrests of potential protesters
to limit this right to freedom of assembly. The fact that a peaceful
protest is unauthorised should not serve as an excuse to the law-enforcement
authorities to use excessive force to disperse that protest. Law-enforcement
agencies should use force only when strictly necessary and to the
minimum extent required under the circumstances.
89. As demonstrated above, it is clear that there is much room
for improvement in order to create an enabling environment for peaceful
protests in all member States and to foster a human rights-based
approach to policing protests. No new international instrument is
needed to prevent human rights violations during peaceful protests
as the right to peaceful assembly is firmly anchored in existing
international law. Moreover, numerous tools, guidelines and handbooks
exist to support the development of an effective human rights-based
approach to policing peaceful protests. All member States need to
ensure that their legislation is consistent with those international
standards. As we have seen above, recent legislation in France,
the Russian Federation, Spain and Turkey is particularly worrying.
The lack of legislation on the procedure to be followed for holding
demonstrations is also problematic, as in Ukraine. Most importantly,
the actual practice of the law-enforcement forces of the member
States needs to be consistent with the relevant international and
regional human rights standards. As recent events in for instance
Armenia, Azerbaijan, France, Greece, Turkey, the Russian Federation,
Spain or Ukraine have shown, those standards are frequently not
implemented by law-enforcement authorities across member States.
90. The Convention, as interpreted by the Court, has established
clear limits to the right to freedom of peaceful assembly, but also
clear positive and negative obligations for State Parties. In this
context, I would like to underscore once again the importance of
the recommendations already included in Assembly
Resolution 1947 (2013). In this resolution, the Assembly urged member States
to guarantee freedom of assembly in accordance with the case law
of the Court, to duly investigate the use of excessive or disproportionate
force by members of law-enforcement forces, to reinforce human rights
training for members of the security forces, and to draw up clear
instructions concerning the use of tear gas and prohibit its use
in confined spaces.
91. One important aspect, which also needs to be considered by
member States, is the issue of transparency by law-enforcement authorities
regarding their actions during protests. Citizens have the right
to know the law governing the use of equipment during protests,
the training on its use, and how their police forces operate and
which means they may use during peaceful protests.
92. In light of the recent degradation of the right to freedom
of assembly in certain member States, the Assembly should continue
to monitor the situation in member States and keep abreast of recent
developments. Nobody should face threats or violence for the peaceful
exercise of his or her right to freedom of assembly, which is closely
linked to the exercise of the right to freedom of association and
the right to freedom of expression. Journalists and human rights
defenders covering demonstrations shall therefore be properly protected
too, and not risk being sanctioned for doing their job.
93. The principal findings and resulting recommendations addressed
to member States are summed up in the draft resolution contained
in this report.