Recently,
the Defender's Office has received complaints and alerts regarding the
disproportionate restrictions on people's rights during assemblies. Most of the
alarming calls were related to the actions of the Police officers of the Ministry
of Internal Affairs of Armenia aimed at not allowing the participants of the
meeting to set up a tent at the meeting place. The participants of the meeting
presented such complaints to the Defender's representatives both at the venue
of the meeting and in the framework of rapid response visits to various police
departments.
Cases
were recorded when the Police officers did not allow the installation of the
tent, and administrative proceedings were initiated against the participants of
the assembly, the persons were subjected to administrative arrest and the tents
were taken away and kept in the body implementing the proceedings.
The
Defender emphasizes that the right to freedom of peaceful assembly is one of
the most important fundamental rights established and protected by the
legislation of Armenia, international legal documents, and practice. Moreover,
according to international jurisprudence, it also includes the possibility of
setting up temporary buildings or tents in outdoor areas.
In
accordance with both the legislation and international jurisprudence, the right
to freedom of assembly (including the possibility of setting-up temporary
buildings or tents during the assembly) may be limited, but this can only
happen if specific legal standards are met. In particular, such restrictions
must be prescribed by law, pursue a legitimate goal and be deemed necessary in
a democratic society. Moreover, in this context, the preservation of the
principle of proportionality is of key importance, according to which the means
chosen to restrict fundamental rights and freedoms must be appropriate and
necessary to achieve the goal set by the Constitution. The means chosen for the
restriction must be proportionate with the significance of the fundamental
right and freedom to be restricted. When limiting fundamental rights and
freedoms, laws must define the grounds and scope of those limitations, be
sufficiently specific so that the holders and recipients of those rights and
freedoms are able to demonstrate appropriate behavior.
It
should be noted that accroding both domestic and ECHR jurisprudence, the
legality of restricting the right to freedom of assembly is subject to
assessment in each specific situation, as a result of an objective and detailed
analysis of the circumstances affecting the holding of the assembly.
The
European Court has repeatedly stated that state authorities should exercise
tolerance towards "illegal" peaceful assemblies. The limits of
expected tolerance for spontaneous gatherings depend on the specific
circumstances, such as the duration, extent, etc. of the resulting public
disturbance.
The
European Court also noted that the justifications presented by public
authorities to establish the proportionality of their actions aimed at
restricting the right to freedom of assembly must be "relevant and
sufficient", "convincing and weighty" and based on "an
acceptable assessment of the relevant facts".
Thus,
the state bears the responsibility of guaranteeing the legality of restrictions
on the right to freedom of assembly.
Taking
into account the above-mentioned, the Defender considers it necessary to record
that it is problematic to form such a public perception by the actions of
competent bodies that the installation of temporary buildings or tents during
the assembly is impermissible and illegal. At the same time, the Defender
emphasizes that the right in question can be limited, but during that time the
standards of legality of the limitation of the right must be observed, and this
limitation must be justified by the state with substantial and convincing
arguments.
The
decision and the positions of the Human Rights Defender expressed in it are
available here.
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