SPRING SESSION CPL(13)9PART2
(Strasbourg, 26-28 March 2007)
COMMITTEE ON SOCIAL COHESION
CHAMBER OF LOCAL AUTHORITIES
Freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons
Rapporteur: Veronica SHARKEY, Ireland
Chamber of Local Authorities, political group : ILDG
The Congress believes that the role of local authorities in upholding their citizens’ rights to freedom of assembly and expression is a central one. It therefore took full note of a motion for a resolution on freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons (LGBT), presented to the Congress' 13th Plenary Session in May 2006, which highlighted recent events where local authorities in a number of Council of Europe member states have banned, or attempted to ban, peaceful rallies or demonstrations by LGBT and their supporters.
The Congress believes the protection of rights to freedom of assembly and expression to be essential for ensuring the accountability and responsiveness of governing authorities and thus also critical to the protection of all other basic human rights. This report therefore responds to these events, giving an overview of the respect of these rights of the LGBT community in member states and draws up a series of recommendations for implementation at local level.
Recommendations include taking appropriate steps to combat hate speech on the basis of the principles laid down in Committee of Ministers Recommendation No. R(97)20, making every effort to ensure that notification procedures for LGBT events are as free from bureaucracy as possible, restricting the right to peaceful assembly only as a last resort - having exhausted all other means of reaching agreement about the event – dispersing said assemblies also only as a measure of last resort and ensuring that local police receive human rights and non-discrimination training and that international standards of policing (in particular as regards the use of force) be applied. A capacity for mediation of disputes between opposed groups should be created, and trained, independent monitors be made available to provide an objective account of LGBT events, oversee policing arrangements involving counter-protesters or sensitive locations and check compliance with the terms of any mediated agreement. Local authorities are further encouraged to consider forging links with the OSCE/ODIHR to develop and pilot a monitoring programme in relation to LGBT events. Lastly, governments are asked to take a public stand against discrimination and investigate all cases of hate speech and homophobic violence with rigour.
Article 11, European Convention on Human Rights
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
Article 21, International Covenant on Civil and Political Rights
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
Article 10, European Convention on Human Rights
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent the State from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 19(2) and (3), International Covenant on Civil and Political Rights
“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a. For respect of the rights or reputations of others;
b. For the protection of national security or of public order, of public health or morals.”
B. Overview of the right to freedom of assembly and expression in Council of Europe member states
1. The restriction of freedom of assembly and the grounds relied upon by the regulatory authorities
2. The positive duty of the State to uphold peaceful assembly and the failure of police to provide adequate protection from opposition groups
3. Restrictions imposed because of a failure to comply fully with notification requirements, and unwarranted dispersal of technically unlawful demonstrations
4. Event organisers being required to provide security services or cover cleaning-up costs
5. Court judgments relating to freedom of assembly
6. Issues relating to non-discrimination
7. Issues relating specifically to freedom of expression
8. Use of inflammatory, homophobic or derogatory language by public officials
9. Good practice
C. Conclusions and recommendations for action at local level
1. Regulating the rights to freedom of peaceful assembly and expression
2. The state’s duty to provide adequate protection to those exercising their rights
3. The availability of legal assistance and an independent review by a court of law
4. Other obligations on local authorities
True democracy requires the enjoyment of freedom of expression and assembly without interference by public authority, as enshrined in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (Articles 10 and 11).
Regrettably, recent homophobic incidents in a number of member states have highlighted not only the systematic violation of the basic rights of the lesbian, gay, bisexual and transgendered (LGBT) community but have shown that in many cases the very authorities who have the positive obligation to protect their citizens against discrimination are actually endorsing and in some cases actively supporting or perpetrating this injustice.
Given that freedom of expression and assembly is at the core of a democratic society, and that the role of local authorities in upholding these rights is fundamental, and in light of these recent events, the Congress of Local and Regional Authorities requested its Committee on Social Cohesion to draw up an overview of the implementation of these rights at local level throughout Europe, together with the necessary recommendations for action.
Within Council of Europe member states, there has been increasing focus on the exercise of the rights to freedom of expression and assembly by Lesbian, Gay, Bisexual and Transgendered (LGBT) people.2
This is evidenced by the following developments amongst others:
· A side-event (facilitated by ILGA-Europe) was held at the OSCE Human Dimensions Meeting in October 2004. This addressed the issue of disproportionate restrictions and inadequate policing of Pride parades in a number of European countries.3 An OSCE/ODIHR Panel of Experts is currently drafting comprehensive Guidelines on Freedom of Assembly.
· In a resolution on ‘Homophobia in Europe’ (18 January 2006) the European Parliament called on member states to ensure that LGBT people are protected from homophobic hate speech and violence. The resolution noted a ‘series of worrying events’ including ‘banning gay Pride or equality marches, the use by leading politicians and religious leaders of inflammatory or threatening language or hate speech, failure by police to provide adequate protection or even breaking up peaceful demonstrations, and violent demonstrations by homophobic groups.4
· In February 2006, a motion was laid before the Parliamentary Assembly of the Council of Europe proposing that a report be compiled with recommendations on the right to freedom of assembly and expression for LGBT persons.5
· In March 2006, Giovanni di Stasi, President of the Congress of Local and Regional Authorities at the Council of Europe wrote to the mayor of Moscow asking that he review his decision to ban the Moscow Gay Pride Parade.6
· On 15 June 2006, the European Parliament passed a resolution on the increase in racist and homophobic violence in Europe. The resolution condemned, inter alia, the banning of the march for equality and tolerance in Moscow on 27 May 2006 and ‘the active participation of Russian Orthodox priests in the violent anti-gay and neo-Nazi march’ on the same day. The resolution also noted that ‘calls for open violence of a homophobic nature have come from a member of a Polish governing party in relation to the plans to hold a gay rights march in Warsaw’ and condemned ‘a leading member of the League of Polish Families [for] inciting violence against GLBT people with a view to the march for tolerance and equality.’ Also in June 2006, ILGA-Europe published a Handbook on Observations of Pride Marches.7 In the same month, the Prides Against Prejudice conference at EuroPride 06 in London focused on ‘Organising Pride events in a hostile environment’;8
· In July 2006, the International Conference on LGBT human rights was held in Montréal. The Montreal Declaration stated that ‘[i]n a number of countries, LGBT human rights groups and courageous LGBT individuals see their rights to free expression, assembly and association blocked by hostile public authorities. Pride marches are denied permits, journalists are jailed, clubs are closed, and NGOs are refused registration. Without the essential right of LGBT non-governmental organizations to carry on their work, free of repressive and discriminatory restrictions, it can become impossible to campaign for the reform of discriminatory laws. LGBT activists are entitled to protection and support, and to express themselves without fear of recrimination, just like other human rights defenders.’9
· Also in July 2006, Thomas Hammarberg, Council of Europe Commissioner for Human Rights, stated that ‘Gay Pride marches should be allowed – and protected.’10
· ILGA-Europe published the Prides Against Prejudice Toolkit for Pride Organising in a Hostile Environment in September 2006;11
Moves to prohibit public rallies of lesbians, gays, bisexuals, and transgender people are becoming common in new democracies of eastern Europe. Aimed at denying people their rights to be visible and to assemble peacefully, they threaten not just public celebrations, but also democratic freedoms.’12 Such restrictions impact directly on the visibility of the LGBT community (a key factor in beginning to change attitudes) and, as the Montreal declaration states, can make it impossible to campaign for the reform of discriminatory laws.
In many countries, LGBT campaigning has concentrated on the decriminalization of same-sex relationships. Yet, even where such campaigns have been successful, hostility towards LGBT people persists. This legacy of systematic discrimination undoubtedly creates a chill effect on freedom of assembly and expression. Indeed, fears that exercising the right to assemble in public could lead to an escalation of homophobic tensions has sometimes led LGBT groups to distance themselves from Pride events.13
The regulation of expression and assembly provides a barometer for gauging the degree of hostility towards the LGBT community in Council of Europe member states. In some cases, such regulation reflects a pervasively restrictive approach to public expression of all minority or dissenting views. In other situations, however, LGBT groups are subject to singularly restrictive measures.
Often, it is not the text of the law which is at issue, but its implementation. Upholding the rights to freedom of expression and assembly entails positive obligations on the part of regulatory authorities. In several cities, however, the authorities have failed to protect those who are peacefully exercising their rights in the face of violent opposition. Nonetheless, in many other cities, local authorities have embraced the celebration of LGBT identity, and have played an active and supportive role in promoting and managing Pride events. In some instances, this impulse towards liberalization has been driven by the European Union accession process, and in particular, the imperative of compliance with the 1993 Copenhagen political criteria for accession to the European Union, including ‘observance and protection of minority rights.’14 In countries undergoing transition to more democratic forms of governance, upholding and protecting freedom of assembly and expression for LGBT persons provides one litmus test for the degree of progress achieved.
The protection of the rights of freedom of expression and peaceful assembly for the LGBT community bridges a number of issues which have been to the fore of the work of the Congress of Local and Regional Authorities (including social cohesion, local policing, promoting tolerance, gender mainstreaming and protecting vulnerable groups). Local authorities are a key player in the regulatory framework – public authorities must act in a progressive manner which is fully consistent with their obligations according to international and regional human rights standards.
This report outlines these standards as they relate to freedom of assembly and expression, explaining how they have been interpreted by their respective monitoring bodies. It also documents examples of practice in relation to the role of local authorities in regulating the exercise of these rights.
B. Overview of the right to freedom of assembly and expression in Council of Europe member states
This overview of the exercise of the right to freedom of expression and assembly in Council of Europe member states draws extensively on news reports and legal documentation. It aims to identify key issues pertaining to the regulation by local authorities of freedom of assembly and expression involving LGBT people. It does not provide an exhaustive account, but rather maps thematic areas of concern. Given that the right to freedom of assembly often cannot logically be separated from the right to freedom of expression,15 this chapter in its entirety relates to the public expression of LGBT identities.
The thematic areas of concern can be categorised as follows:
o The restriction of freedom of assembly and the grounds relied upon by the regulatory authorities;
o The positive duty of the state to uphold peaceful assembly and the failure of police to provide adequate protection from opposition groups;
o Restrictions imposed because of a failure to comply fully with notification requirements, and unwarranted dispersal of technically unlawful demonstrations;
o Event organisers being required to provide security services or cover cleaning-up costs;
o Court judgments relating to freedom of assembly;
o Issues relating to discrimination;
o Issues relating specifically to freedom of expression
o Use of inflammatory, homophobic or derogatory language by public officials.
The remainder of this part of the report is structured around these thematic concerns, with key sections being prefaced with an overview of the relevant jurisprudence. This serves to highlight the core principles at stake, and provides local and regional authorities with specific guidance in regulating these fundamental freedoms. Part B ends with a section pointing to some examples of good practice.
1. The restriction of freedom of assembly and the grounds relied upon by the authorities
The right to freedom of peaceful assembly protects both static meetings and public processions.16 It does not protect ‘a right to pass and re-pass in public places, or to assemble for purely social purposes anywhere one wishes.’17
The European Court of Human Rights has often stated that freedom of expression and peaceful assembly extends to ‘ideas’ that are not favourably received or regarded as inoffensive, notably including those ideas that may offend, shock or disturb. ‘Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.’18 In the case of Plattform ‘Ärzte für das Leben’ v Austria (1988), the Court stated that
‘[a] demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.’ 19
Restrictions can be imposed on the exercise of the right to peaceful assembly only if they pursue one or other of the “legitimate aims” listed in Article 11(2) ECHR or Article 21 ICCPR. The European Court of Human Rights has stated that ‘[i]n a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.’ 20In the case of Christians Against Racism and Fascism v UK (1980), it was held that ‘[T]he possibility of violent counter-demonstrations, or the possibility of extremists with violent intentions, not members of the organising association, joining the demonstration cannot as such take away that right. Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such procession does not for this reason alone fall outside the scope of Article 11(1).’21
More recently, in the case Ziliberberg v Moldova (2004), the Court noted that “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.”22 This is entirely consistent with the Court’s earlier ruling in Ezelin v France (1991) which held that a person should not be subject to restriction if they themselves had not acted in a reprehensible manner.23 Moreover, minor and isolated outbreaks of violence should be dealt with by way of subsequent arrest and prosecution rather than prior restraint.24
In the case of Eugen Schmidberger, Internationale Transporte und Planzuge v Austria (2003), the European Court of Justice held that allowing a demonstration which blocked the Brenner Motorway between Germany & Italy for almost 30 hours was not a disproportionate restriction on the free movement of goods.25 At the every least, this case supports the view that disruption to traffic is a normal and entirely expectable consequence of protecting the right to peaceful assembly. As such, mere concerns about disruption to traffic should not be relied upon to impose onerous restrictions on peaceful assemblies.
In addition to Article 11 ECHR, and Article 21 ICCPR, Article 15 of the Convention on the Rights of the Child requires State Parties to recognize the right of children to freedom of peaceful assembly. Article 7 of the Council of Europe Framework Convention on National Minorities also guarantees ‘the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.’ Furthermore, paragraph 9.2 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 June 1990) provides that ‘everyone will have the right of peaceful assembly and demonstration. Any restrictions which may be placed on the exercise of these rights will be prescribed by law and consistent with international standards.’
Given that freedom of assembly can be exercised by both individuals and corporate bodies,26 the exercise of the rights to assembly or expression must not be made conditional on prior registration of an organisation or association. Such an onerous requirement amounts to a sweeping form of prior restriction, and must not be used as a mechanism by which to exclude children and young people from participation in LGBT events;
Finally, Article 17 ECHR, Article 5 ICCPR,27 and Article 54, EU Charter of Fundamental Rights provide that activities or behaviour aimed at the destruction (or limitation to a greater extent than is provided for) of the rights of others is not protected.
The interests of national security and the prevention of disorder or crime
In the cities of Warsaw and Poznan in Poland, Pride parades have been banned by the local authorities on the basis of concerns about the potential disorder. In Warsaw in both 2004 and 2005, Pride events were prohibited by the Mayor. In 2004, the Mayor cited the possibility of violence, the timing of the march (one day after the Corpus Christi holiday), and the route (which was the same as that of the biggest Corpus Christi procession).28 On 3 June 2005, the Mayor stated that he had received several other requests for permits for meetings to take place on 11 June 2005 from groups who opposed the Equality Parade 2005. In his opinion, authorising the Equality Parade could lead to a dangerous confrontation between the differing groups.29 Likewise, the Equality march in Poznan in November 2005 was banned by the mayor of the city who cited security reasons. A year earlier, a similar legal event led to violence precipitated by far-right activists.30
In Latvia in 2006, Riga City Council withheld permission for the Riga Pride parade on 22 July claiming that it had received threats of violence against participants in the march, and would not be able to guarantee the security of participants.31 This decision (unlike the 2005 decision which was based on ‘moral’ grounds, see below), was justified on the basis of claims that the parade posed a serious threat to national security.32 The Latvian authorities reportedly said that the event was the ‘biggest security risk’ since Latvia won its independence from the USSR.33 The Interior Minister stated that radical organizations could use the event to stage provocations and spontaneous trouble could erupt across the city due to negative sentiments in society.34 City and police officials also noted that there had been nearly 100 anti-Pride protesters gathered in front of the city council building on 20 July, and 17,000 signatures had been gathered on an anti-Pride petition.35 In response, Amnesty International pointed to the Council’s ability to ensure security at previous events of a similar or larger scale such as the 2006 ice hockey World Championships.36
Similarly, the city authorities in Chisinau, Moldova refused to authorize the Pride rally in Chisinau on 28 April 2006, on the basis that religious groups had announced they would organize protests and letters of complaint had been received from individuals living in the city.37 A peaceful demonstration (planned for 5 May 2006) supporting the adoption of anti-discrimination legislation for sexual minorities was also refused. This demonstration was planned to take place on 5 May 2006 in front of the Moldovan Parliament as part of the Fifth Moldovan LGBT Pride Festival, organized by the Information Centre GenderDoc-M. In the rejection letter the interim city mayor stated that the decision was made in order to avoid public disorder.
Moscow officials also cited concerns about violence when prohibiting the Pride parade in 2006 (claiming that they would be unable to provide security for the parade-goers). In addition, they argued that the parade would block traffic.38 Significant international pressure was brought to bear on the Moscow authorities to reverse the decision,39 but the ban was maintained (and upheld by a decision of Tverskoi district court on 26 May, see further below). The Pride organisers proposed an alternative – a picket on Lubyanka Square – but this too was prohibited (on the basis that ‘the picket could spark public resentment, given the requests to ban this public event laid down in numerous letters from government and parliamentary officials, religious confessions and individual citizens.’)40
It is worth noting that if the declared aim of counter-demonstrators is to prevent the original demonstration from taking place, then the destruction of rights provisions (Article 17 ECHR and Article 5 ICCPR) will be engaged. While some jurisdictions might legitimately follow a ‘first-come, first-served’ approach to the issue of events notified to take place at the same time and in the same location,41 groups opposed to Pride events should not be permitted to exploit this procedure if their objective is solely to prevent the enjoyment of the same rights by others.
Furthermore, given the hostility towards LGBT people in some countries and particularly where there is no established history of Pride events, LGBT people have sometimes been reluctant to participate openly in such events. As a result, some have sought to hide their identities by wearing masks. At the first Pride event in Warsaw in 1998, for example, a small number of people gathered wearing masks. Similarly, participants in a Pride parade notified for 5 September 2005 in the western Siberian city of Tyumen, reportedly intended to wear masks in order to avoid possible retaliation.42 Given that the police can always intervene to arrest individual participants who are acting in a disorderly manner, there should be no requirement for participants with entirely peaceful intentions to remain unmasked. A decision of the Polish Constitutional Tribunal provides useful guidance on this issue:43
A prohibition of participation in assemblies by persons “whose appearance renders their identification impossible” would restrict the freedom to participate in an assembly in a way which is not necessary to guarantee the peaceful nature thereof. This restriction would cover not only persons voluntarily disguised whose type of outfit could suggest aggressive behaviour and a possible threat to the constitutional values enshrined in Article 31(3). The prohibition would also concern persons who may not be identified either for ordinary reasons or for voluntary disguise which, nevertheless, represents a way of expressing a particular position in relation to a given problem, situation or fact, as opposed to a sign of aggressive behaviour and possible threat to the peaceful character of the assembly. With respect to such persons, the prohibition on participation in assemblies would constitute an obvious, excessive interference in the constitutional freedom to participate in public assemblies. Furthermore, the limitation of the freedom of assembly consisting in restricting the possibility to participate in assemblies in an anonymous manner is unnecessary, given that the Police Act 1990 provides the police with adequate possibilities to intervene in the course of an assembly where there exists a threat to its peaceful nature, including the possibility to determine the identity of persons participating in the assembly.
The protection of health or morals
The European Commission in Ezelin v France (1991) stated that “a sanction based on the impression that the applicant’s behaviour might have given is incompatible with the strict requirement of a ‘pressing social need.’”44 In its 1994 decision in the case of Toonen v Australia, the Human Rights Committee stated that it “cannot accept . . . [that] moral issues are exclusively a matter of domestic concern."45 In its decision in Norris v Ireland (1988) the European Court of Human Rights maintained that measures allegedly safeguarding public morals should meet an objective standard of whether they "answered a pressing social need and complied with the principle of proportionality." 46
In a highly significant decision of the Polish Constitutional Tribunal (which arose following the city authorities’ ban of the 2005 Equality Parade in Warsaw)47 the interpretation of ‘morals’ as a ground for imposing restrictions on freedom of assembly and expression was clarified:
The moral views of the holders of political power are not synonymous with ‘public morals’ as a premise for limiting freedom of assembly... Public authority organs are entrusted with the obligation to ensure the protection of groups organising demonstrations and participating therein, regardless of the degree of controversy of the publicly-expressed views and opinions, provided that legal prohibitions have not been transgressed.48
While the decision of Riga City Council to refuse permission on ‘moral grounds’ for the first ever Pride march in Riga, Latvia (22 July 2005) was overruled by the Riga Administrative Court,49 some local authorities still rely on this ground to effectively impose content based restrictions on Pride events. In Moscow, for example, the Mayor banned gay activists from holding a parade in the city centre on 27 May 2006 on the basis that such a march was morally ‘inadmissible’ because people should not publicly display their ‘deviations in the sphere of organization of life and sex.’ 50 One day before the event, the Court of first Instance confirmed the authorities’ ban, referring to the morality clause in Article 11(2) ECHR.
Closely related to these restrictions on moral grounds are two further examples of restrictions imposed on non-Pride events because of the participation of LGBT groups or persons. First, in July 2001, the Moscow authorities banned the ‘Love-Parade’ because the Mayor was of the opinion that ‘such actions cause the indignation of most of Moscow’s residents by promoting loose morals and by attempting to impose unacceptable norms of behaviour, which run counter to the traditional moral values of the majority of Russians as well as to the canons of the main religions practised in Moscow.’51 The organisers of Moscow Love Parade emphasized that the event was not a Pride event but, while there was to be a separate LGBT group participating in the march, it was intended to be an international youth festival of modern electronic music (with both heterosexual and LGBT participants).52 Second, in Chisinau, Moldova on 31 August 2006, a signature-collecting action organised collaboratively by Amnesty International Moldova and other NGOs as part of a Stop Violence against Women campaign was disrupted by police who tried to prevent GenderDoc-M from displaying its banner. The police argued that GenderDoc-M was promoting homosexual lifestyles, and that the organization had not been named as an official participant in the action.53
It is important to note that while the above examples relate to restrictions imposed directly on freedom of assembly on purported moral grounds, freedom of assembly and expression are inhibited indirectly when the regulatory authorities refuse to register an association or organiation. In Turkey, for example, the ban on Lambdaistanbul and Bursa Rainbow Associations was argued to be justified under Articles 56 and 60 of the Turkish Civil Code which prohibit the establishment of an organisation that ‘is against the laws and morality rules’. Similarly, in Hungary (albeit in 1994) the High Court rejected the application of the ‘Rainbow Union for the Rights of Gays’ [Szivárvány Társulás a Melegek Jogaiért] for legal registration. Membership was open to young people under 18. The Constitutional Court ruled that the State, because of its constitutional duty to care for young people, can prevent their membership of organisations which could pose a danger for their development.54
2. The positive duty of the State to uphold peaceful assembly and the failure of police to provide adequate protection from opposition groups
In the case of Plattform “Ärzte für das Leben” v Austria (1988), the European Court of Human Rights emphasized that the State has a positive duty to take reasonable and appropriate measures to enable lawful demonstrations to take place without participants fearing physical violence.55 Where there is the potential for very serious violence, then Article 2 ECHR (right to life) might also be engaged. In the case of
Osman v UK (1998), it was held that the State has a positive obligation to protect the right to life. An applicant complaining of a breach of Article 2 ECHR need only show that the authorities did not do all that could reasonably be expected of them in circumstances to avoid the risk. 56
Given the decision of the European Court of Human Rights in Ziliberberg v Moldova stating that neither sporadic violence nor the violent acts of others in the course of a demonstration should be used to restrict the rights of those peacefully assembled (see above), law enforcement officers should not treat a crowd as homogenous. This may be particularly relevant if arresting/detaining participants or dispersing an assembly; In addition, if violence does occur, the prohibition of discrimination under Article 14 ECHR has a procedural component, imposing an obligation on state authorities to investigate whether discrimination may have played a role in the commission of a crime.57
The Council of Europe’s European Code of Police Ethics (2001) sets out best practice principles for member state governments in preparing their internal legislation, practice and codes of conduct for the police. The Code states that ‘the police, in carrying out their activities, shall always bear in mind everyone's fundamental rights, such as freedom of thought, conscience, religion, expression, peaceful assembly, movement and the peaceful enjoyment of possessions.’ Moreover, the commentary that accompanies the Code makes clear that the role of the police goes beyond recognizing those rights, and includes positively safeguarding those rights – otherwise ‘democracy becomes an empty notion without any basis in reality.’
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide that ‘[i]n the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.’58 They further stipulate that ‘[i]n the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.’59
Principle 9 provides that ‘[l]aw enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.’
Paragraph 21.2 of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991 urges (OSCE) participating States to ‘ensure that law enforcement acts are subject to judicial control, that law enforcement personnel are held accountable for such acts, and that due compensation may be sought, according to domestic law, by the victims of acts found to be in violation of the above commitments.’
The resolution on the increase in racist and homophobic violence in Europe, passed by the European Parliament on 15 June 2006, stated that ‘the police and the judicial system in member states play a crucial role in the prosecution and prevention of racist violence.’ However, ‘they sometimes fail to protect citizens against racist violence and to discourage extremists from committing such crimes, and in this respect member states should consider whether their police forces and judicial systems suffer from 'institutional racism'; whereas, in some countries, police violence specifically targets ethnic, racial and sexual minorities and directly violates their right to freedom of assembly.’60
The Pride event in Belgrade, Serbia on 30 June, 2001 marked a watershed for Pride celebrations in Eastern Europe.61 It was the first Pride parade to be held in Serbia, but was violently attacked by counter-demonstrators, seriously injuring several participants and ultimately preventing the parade from taking place. Approximately thirty of the counter-demonstrators were arrested, but none were prosecuted. No Pride event has since been held in Belgrade. Despite the parade having been registered with the police according to the law, the police were not equipped to protect the Pride marchers:
The celebration was prevented from taking place by a counter-demonstration of up to 800 people – mainly men – and including groups from known nationalist organizations. Shouting homophobic threats, the crowd made a series of violent attacks on the Gay Pride participants, also attacking bystanders, journalists and the police using fists, bottles, stones and clubs. A planned press conference was also prevented by assaults and further threats against several gays and lesbians who tried to attend the meeting. Reportedly 40 civilians and eight police officers were injured.62
The first ‘March for Yolerance’ in Krakow was held in May 2004. Counter-demonstrators blocked the route at several places, forcing the police to reroute the marchers. There were reports of leaflets and posters saying ‘Let’s kick homosexuals out of Krakow’. Some organisers received text messages saying ‘Show up at the Old Town and you will die.’ When the situation deteriorated further, the police and organisers agreed it would be best to call on participants to disperse. However, small groups of participants were then chased by counter-demonstrators back towards the Old Town, and violence erupted in the square resulting in the police shooting in the air in an attempt to restore calm.63 The next year, organisers cancelled the planned March for Tolerance following the death of Pope John Paul II.64 Iin April 2006, counter-demonstrators threw stones and eggs at participants in the Krakow March for Tolerance.65
Despite the bans on the Moscow Pride event in May 2006 (see above), LGBT activists attempted to hold two protest rallies on 27 May – one to lay flowers at the Tomb of the unknown soldier near the Kremlin wall,66 and another which was to take the form of a vigil at the City Hall in support of freedom of assembly and expression. At both events, anti-gay protesters physically attacked participants (including a member of the German Parliament) shouting chants such as ‘Russia free of faggots! Death to sodomites!’67
At both sites police at first seemed to allow the skinheads and others free rein to assault lesbians and gays … When police finally intervened, they forced the two groups closer together, aggravating the violence. They failed totally to protect people peacefully trying to exercise their rights.68
The day’s events are recorded in a Human Rights Watch Briefing Paper entitled Pride and Violence.69 Gay rights activists were also attacked in front of the mayor’s office, where they had hoped to hand in a letter of protest against the ban on the Pride march.70 Several dozen anti-gay protesters were detained and later released.71
The EU Network of Independent Experts on Fundamental Rights noted that on 19 November 2005 in Poznan, ‘the police failed to react to the slogans of anti-gay demonstrators, who shouted out such slogans as “Gas the gay!” and “send dykes to Auschwitz”.72
In Riga, Latvia, police rerouted the 2005 Pride march (the first gay Pride event to be held in the Latvian capital) when the few dozen marchers were outnumbered by hundreds of protesters who blocked the streets.73 In 2006, participants in two meetings (at an Anglican church and a hotel) which were held in place of the banned Riga parade were pelted with human excrement, eggs and rotten food by protesters as they left both buildings.74 While the police arrested 14 people (13 of whom were charged with administrative offences, and one faced criminal proceedings),75 it was reported that the police refused assistance to individuals who requested protection as they left the church, and that the police presence was inadequate to ensure the safety of the participants.76 Both Amnesty International and Human Rights Watch highlighted the failure of Latvian police and authorities to protect the physical security, freedom of expression, and freedom of assembly of the LGBT community during ‘Riga Pride 2006’.77
In Tallinn, Estonia, August 2006, participants in the Pride march were attacked by demonstrators, injuring more than ten participants in the march (one being hospitalized with head injuries).78 The Prosecutor’s office stated that ‘[c]alls for violence and bodily harm, as well as discriminatory statements, were heard directed at the parade participants.’79 This was the third Pride parade and festival in Tallinn – there not having been any trouble with the previous two events. Reports stated that although the police were co-operative (and dealt effectively with a bomb hoax prior to the event),80 there were too few officers present to deal effectively with the attack and protect the marchers. Furthermore ‘those who were present were not adequately identifiable to act as a deterrent from attacks.’81
A demonstration in Turkey, ‘Homosexuals do have Associations’ would have been held in Bursa on 6 August 2006 to protest against the ban on ‘Lambdaistanbu’l and ‘Bursa Rainbow’ Associations, and the ban on the ‘Kaos GL’ magazine. Police held the LGBT demonstrators inside the Gokkusagi (Rainbow) association’s building until protesters (who had thrown stones at the building) dispersed. However, when the protesters realized that the event was merely being postponed, they returned and the police prevented the march from taking place. Organizers claimed that the police had failed to take adequate measures to ensure the march could go ahead in the face of opposition.82
Finally, in 2005, in Bucharest, Romania, police clashed with approximately one dozen anti-gay demonstrators during the first march to be held in Romania.83 The second Pride parade, held during the GayFest week on 3 June 2006, also ended in violence with ten people injured and more than fifty arrests made. Police used tear gas to restrain protesters who threw eggs, bottles and other items at the participants in the Pride parade.84
3. Restrictions imposed because of a purported failure to comply fully with notification requirements and the unwarranted dispersal of technically unlawful demonstrations
The UN Human Rights Committee has held that a requirement to give notice, while a de facto restriction on freedom of assembly is compatible with the permitted limitations laid down in Article 21, ICCPR. 85
Similarly, the European Commission on Human Rights in Rassemblement Jurassien (1979) stated that “subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11(1), if only in order that the authorities may be in a position to ensure the peaceful nature of the meeting, and accordingly does not as such constitute interference with the exercise of the right.”86
Given, in particular, that the purpose of notification is to enable the state to plan and allocate resources in fulfilment of its positive duty to protect peaceful assembly, the requirement to notify, and the process involved, should not be so onerous or bureaucratic as to undermine the enjoyment of the freedom. Furthermore, peaceful assemblies – even unlawful peaceful assemblies – should be facilitated by the authorities. Failure to comply fully with notification requirements should not, of itself, lead to restrictions on an otherwise peaceful assembly. The illegality of an event should not be regarded as a licence to terminate or disperse an otherwise peaceful event, and all standards relating to the use of force by police officers must be strictly adhered to.
There are at least three examples of events being restricted because of purported defects in the application or notification provided to the authorities. First, as stated above, the Mayor of Warsaw banned the 2005 Equality Parade in Warsaw. He also subsequently banned six of the stationary rallies notified in place of the parade. One of the reasons cited for the ban (but disputed by the organisers) was that the application had not been properly filed – in particular, the failure to provide a Traffic Management Plan.87 Second, on 23 August 2005, authorities in the western Siberian city of Tyumen rejected the request of organizers to hold a gay-Pride parade on 5 September 2005 because it was filed too far in advance of the planned event.88 Third, in Klaipeda, Lithuania, a gay Pride parade – planned to coincide with Klaipeda’s 754th anniversary celebrations on 1 August 2006 was banned. The Mayor’s office stated that the request to hold the parade lacked details about its route, time, reason and number of participants.89 In Slovakia, while there has been no history of bans on Pride events, bureaucratic obstacles have reportedly been placed in the way of those organising LGBT events.90
In several cities, parades have been held despite bans imposed by local authorities. For example, in November 2005 in Poznan, Poland despite a ban imposed by the Mayor, (see above) several hundred LGBT activists held a rally in Poznan city centre. Police reportedly used force to remove the protesters – 68 of whom were detained and faced sanctions for participating in an illegal gathering.91 Similarly, at the Moscow protests on 27 May 2006, at least six LGBT activists were arrested and charged with taking part in an ‘an unsanctioned demonstration.’92
4. Event organisers being required to provide security services and to cover cleaning-up costs
Related to the positive duty of the state to protect those who wish to exercise their right to peacefully assemble, is the question of whether the organiser should properly be required to bear any of the costs associated with ensuring the safety of participants during an assembly or with cleaning-up after an assembly has ended.
In Estonia, the first Pride event took place in 2004, but organisers were required to provide money for the security services at the event. A spokesperson for the organisers stated that ‘according to Estonian law, we had an obligation to hire a security company. So, we had 15 men from the private company, plus a few police patrols and also, according to the police, “some under-cover officers”.’93 In Zagreb, Croatia despite significant improvements in the policing of the Pride event, the authorities still insist on the event organisers funding 100 private bodyguards (for an estimated 200-250 participants).
The Love Parade in Berlin, first held in July 1989,94 provides an interesting comparison. Under German law,95 the state has to pay for security during political demonstrations as well as cleaning up the streets after the demonstration. Where commercial events are concerned, however, the organizer has to pay. In banning the Love Parade in 2001, the Berlin police held that the Love Parade did not qualify as a protected public gathering because it did not pursue the objective of developing and expressing opinions.96 This argument was upheld by the regional Administrative Courts on the basis that neither a shared goal or perspective,97 nor music and dancing, of themselves constituted the development and expression of opinion.98
The clear danger with apportioning costs on the basis of the message of an event (whether political or otherwise) is the potential for content-based restrictions to be imposed. Furthermore, while the ‘Love Parade’ had become a commercialised venture, it is important that the sponsorship of Pride events by local LGBT clubs is not used as an excuse by the authorities either to impose unreasonable or prohibitive costs on the organising body, or to refuse to provide adequate security for the event.
5. Court judgments relating to Pride events
Both Article 13 ECHR and Article 2(3) ICCPR guarantee the right to an effective remedy ‘notwithstanding that the violation has been committed by persons acting in an official capacity.’ In addition, paragraph 18 of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 1991, states, inter alia, that ‘Everyone will have an effective means of redress against administrative decisions, so as to guarantee respect for fundamental rights and ensure legal integrity ... The [OSCE] participating States will endeavour to provide for judicial review of such regulations and decisions.’
A number of domestic court appeals have resulted in the reversal of negative decisions to prohibit assemblies by LGBT groups. The first Bucharest GayFest march took place in 2005 after an initial ban was withdrawn.99 In the Latvian capital, an Administrative Court overruled the 2005 decision to ban the Riga Pride event a day before it was due to take place. Riga City Council had banned the march ‘because of moral values’ and the court found the ban to be unjustified and discriminatory.100 In December, 2005, the administrative court in Poznan ruled that the ban of the Equality March in November by the mayor of Poznan was illegal under the Polish and European laws.101 This led to pro-gay demonstration in cities across Poland in the cities of Gdansk (despite the fact that this march, too, had been banned by the city’s mayor),102 Elblag, Rzeszow, Lodz, Torun,Wroclaw, Krakow, and even Poznan itself.103 This administrative court’s ruling was upheld by a decision of Poland’s Supreme Administrative Court on 25 May 2006.104
Notwithstanding these positive decisions, a number of bans have been upheld by domestic courts. The 2006 decision of the city council to ban Riga Pride was upheld by the Administrative Court of Latvia. The court and the city council stated that their decisions were based on claims that the parade posed a serious threat to public order and national security. The 2006 decision was upheld by the Administrative Court of Latvia. Information about the decision has been classified as a state secret, subject to a five-year moratorium. Human Rights Watch noted that this represented ‘a fundamental failure of transparency which renders it insuperably difficult for the LGBT activists to contest or respond to the excuse given for the ban.’ 105
In Moscow, following an appeals court ruling which upheld a lower court decision that the ban on the 2006 Pride event was not illegal, lawyers representing the organisers stated their intention to appeal to the European Court of Human Rights.106 In relation to the ban on the picket on Lubyanka Square, the Taganski Court adjourned the hearings at the request of the city’s Central Administrative District officials, until 22 August 2006, whereupon the court upheld the decision of the city authorities in relation to the picket. A further appeal to Moscow City Court has been launched, and is expected to be considered this autumn.107
In June 2005, the Court of Appeal in Moldova overturned the decision of the Mayor of Chisinau to ban a LGBT demonstration in May of that year.108 The Mayor’s office appealed the decision to the Moldovan Supreme Court, which referred the case back to the Court of Appeal. Given the delay in reaching a judgment, GenderDoc-M has initiated proceedings at the European Court of Human Rights.109 The effective ban of the Equality Parade in Warsaw, 2005 has been appealed to the European Court of Human Rights.110 Similarly, the Pride organising group in Riga, Latviat (Mozaika) has announced plans to challenge the City of Riga in the European Court of Human Rights for banning the march.111
6. Issues relating to the requirement of non-discrimination
Article 14 ECHR prohibits discrimination where the facts at issue fall within the ambit of one or more of the other Convention rights.112 Article 26 ICCPR also prohibits discrimination, and while neither provision specifically lists discrimination on the basis of ‘sexual orientation’ this is covered by the terms ‘any ground’ or ‘other status’ respectively.113 Furthermore, in Nachova and Others v Bulgaria (2005), the European Court of Human Rights held that the prohibition of discrimination under Article 14 (in conjunction with Article 2) also has a procedural component, imposing an obligation on State authorities to investigate whether discrimination may have played a role in any act of violence.114 Protocol 12 ECHR now contains a freestanding prohibition of discrimination.
Article 13 of the Amsterdam Treaty provides for the European Union to ‘undertake necessary actions to fight discrimination based on …sexual orientation’, and Article 21(2) of the EU Charter of Fundamental Rights prohibits ‘any discrimination on any ground” including on the basis of sexual orientation.115 In addition, the 1990 OSCE Paris Charter states that ‘We affirm that, without discrimination, every individual has the right to freedom of thought, conscience and religion or belief, freedom of expression, freedom of association and peaceful assembly...’116 Furthermore, in July 1995 the Parliamentary Assembly of the OSCE (meeting in Ottawa) adopted a resolution calling upon participating states ‘...to ensure that all persons belonging to different segments of their population be accorded equal respect and consideration in their constitutions, legislation and adminstration and there be no subordination, explicit or implied, on the basis of ethnicity, race, colour, language, religion, sex, sexual orientation, national or social origin or belonging to a minority...’
There have been several instances where prohibitions have been imposed on LGBT events while the authorities have permitted assemblies by other organisations (even those protesting against LGBT rights).117 The selective nature of such decisions raises issues of discrimination. With regard to the 2005 Equality parade in Warsaw, for example, it is being argued before the European Court of Human Rights that the Mayor of Warsaw granted permits to hold other demonstrations subject to no requirement on the part of the organisers to submit a “Traffic Management Plan.”
Attempts might be made to justify discrimination against LGBT people on the grounds of the right to freedom of thought, conscience and religion. In August 2006, nine Glasgow firemen refused to distribute fire safety leaflets at a Pride parade in the city, claiming that they were exercising their Article 9 rights.118 This case is analogous to Ahmad v UK 1982 119 where a teacher claimed that he was forced to resign from his post because he was refused permission to attend worship at his mosque during working time each Friday. The European Commission on Human Rights found that there was no breach of Article 9, and looked to the terms of his contract of employment. The Court identified the issue as being whether, in relying on the contract of employment, the employer was arbitrarily disregarding the right to freedom of religion.
7. Issues relating specifically to freedom of expression
The right to freedom of expression carries with it responsibilities and obligations as stipulated in Article 10(2). It covers freedom of speech but also includes other expressive conduct, such as the right for a person to express his ideas through the way he/she dresses.120 It should be emphasized that freedom of expression extends to views which may offend, shock or disturb. ‘Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’121 Censorship of such views will have a deleterious impact on freedom of expression for all. While local authorities might therefore seek to discourage the expression of views hostile or offensive to LGBT people,122 expression which falls short of ‘hate speech’ itself deserves protection.123
That said, the right to freedom of expression does not include incitement to hatred or violence.124 Local authorities have a special responsibility to refrain from speech likely to produce the effect of legitimising discrimination or hatred based on intolerance.125
Principle 1 of the Committee of Ministers Recommendation No. R(97)20126 provides that ‘The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, antisemitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.’
Principle 4 acknowledges that specific instances of hate speech127 “may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.”
Examples of positive developments
· The repeal (by the Local Government Act 2003) of Section 28, Local Government Act 1988 which prohibited local authorities in England and Wales from intentionally promoting homosexuality, publishing material with the intention of promoting homosexuality, or promoting the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.
· Latvian lawmakers rejected a bill to ban what they termed ‘homosexual propaganda’ in the mass media. The Latvia First Party had prepared draft amendments to media and advertising laws, which would have made it illegal to publish articles about or interviews with gays and lesbians in which they talk about their lives or gay rights.128
· In Romania in June 2000 the lower house of Parliament, the Chamber of Deputies, repealed article 200 of the Romanian Penal Code,129 but article 201, proscribing ‘sexual perversions,’ remained.130
· The Hungarian Constitutional Court has stated (in relation to freedom of expression) that ‘the fundamental right to expression does not depend on the content of the opinion expressed.’131
Examples of recent restrictions on freedom of expression
· In February 2006, at the Marie Curie-Sklodowska University in the eastern Polish city of Lublin, the University Chancellor dismantled a “T-shirts for Freedom” display which was to be part of an annual festival. Amongst the T-shirts on display were T-shirts carrying the messages ‘I am gay’ and ‘I have AIDS’. The Chancellor stated that ‘the messages printed on the T-shirts may violate the feelings and views of many people’.132 Prominent Polish politicians have also called for the banning of gay and lesbian people as teachers in Polish schools.133
· In June 2006, the RTUK (High Committee of Radio and Television) in Turkey134 issued a caution in relation to a program on Haber Turk television channel concluding that the host, ‘using the flexible language structure of Turkish, had made jokes related to homosexuality and through these jokes wanted to reflect homosexuality as a legitimate act to the society.’ RTUK said this violated the law that radio and television broadcasts must be conducted ‘in the framework of a public service abiding with general morality.’
· The 28th Summer 2006 issue of the Turkish Kaos GL magazine was banned by Ankara 12th Justice Court. Judge Tekman Savas Nemli decided to seize the issue because its content was deemed ‘pornographic’, breaching protection of general morality. Kaos GL has stated that it will pursue the case to the European Court of Human Rights.135
8. Use of inflammatory, homophobic or derogatory language by public officials
The following examples of homophobic comments by individuals holding public office or other positions of responsibility serve to highlight the degree to which these important standards have sometimes been disregarded.
· Before banning the Pride parade in May 2006, the Mayor of Moscow stated that ‘If any one has any deviations from normal principles in organizing one’s sexual life, those deviations should not be exhibited for all to see.’ He also advised officials that ‘[i]t is necessary to take concrete measures to prevent holding public and mass gay events in the capital.’137 He is also reported to have said that gay parades ‘may be acceptable for some kind of progressive, in some sense, countries in the West, but it is absolutely unacceptable for Moscow, for Russia.’138 Similar comments by other high-ranking officials and politicians are documented in Human Rights Watch’s report of the 2006 Moscow Pride event.139 The first vice-speaker of the State Duma, for example, was reported to have posed the following question : ‘Some say that the ban on the gay parade does not correspond to human rights ... There are several million people in Moscow who do not want homosexuals to have this procession. Who is going to protect their rights?’140
· A member of the French National Assembly was convicted of homophobia (injures homophobes) for claiming that heterosexuality is morally superior to homosexuality;141
· The Mayor of Warsaw made a number of statements in advance of the Equality parade in 2005 to the effect that he would ban the parade irrespective of what the organizers had notified to the authorities. In an interview to Gazeta Wyborcza, the Mayor stated that gays and lesbians ‘can protest as citizens but as homosexuals – no!’142
· The Prime Minister of Poland has said that if a homosexual ‘tries to infect others with their homosexuality, then the state must intervene in this violation of freedom’;143
9. Examples of good practice
The latter section has focused primarily on negative developments relating to the regulation of freedom of expression and assembly of LGBT people. There have, however, been a number of examples of good practice,145 some of which suggest the emerging recognition of the rights of LGBT people to express their identity. These include:
· In the UK, many police forces have allowed officers to march in uniform at Pride events;151
We respect the views of those who are opposed to aspects of the Gay Pride parade and we welcome the dialogue which has taken place in the past between the Stop the Parade Coalition and the parade organisers. It is clear to us that the Belfast Pride parade is a welcome addition to the streetscape of Belfast. We have decided not to place any restrictions on the parade or on the associated protest.152
However, it is important to note the likely imbalance in power relations between LGBT organisers and the regulatory authorities (see for, example, the pressure brought to bear on the organisers of the Pride parade in Poznan not to hold the march, to have a static demonstration instead, or to shorten the notified route).153 Any negotiations or mediated discussions relating to Pride events should not therefore be used as a means of enforcing a pre-determined outcome.
· The Northern Ireland Parades Commission has deployed monitors to provide an independent report of parades, related protests, and policing arrangements.154 Monitoring of an event may, for example, form part of an agreement reached between opposing parties. It is important that monitors are clearly identifiable, and that they act in a way that preserves their independence.
· Organisers of Pride events have obtained assistance from National Human Rights Commission or Rights/Gender Ombudsmen. The organizers of the Equality March in Poznan, Poland, for example, were supported the Citizens’ Rights Ombudsman in their legal action against the Mayor’s decision.155 Similarly, the legal action in relation to the 2005 Equality Parade in Warsaw was initiated by the Commissioner for Citizens’ Rights.
C. Conclusions and recommendations for action at local level
Protection of the rights to freedom of expression and peaceful assembly (as enshrined, inter alia, in Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) is essential for the personal development, dignity and fulfilment of lesbian, gay, bisexual and transgendered (LGBT) people, for the promotion and protection of equality and democracy, and for the progress of society as a cohesive whole.156
To this end, any measures that interfere with freedom of expression or assembly must be prescribed by law, serve a legitimate aim, be no more restrictive than is necessary to achieve that aim, and be non-discriminatory in effect. Legislation regulating freedom of expression and assembly must not place onerous bureaucratic or financial burdens on those seeking to exercise their rights, and local authorities must not interpret the legitimate grounds listed in the relevant human rights instruments in a manner that is inconsistent with the established jurisprudence.157 Local authorities should take note of and apply the forthcoming Guidelines on Freedom of Peaceful Assembly currently being drafted by the OSCE/ODIHR Expert Panel on freedom of assembly.
It is important that local authorities consult with LGBT groups when reforming any civil, criminal or administrative law measures that interfere with freedom of expression or assembly. In this way, the legislation, and the procedures and working practices which develop around it, are more likely to work to the mutual benefit of all concerned. Such consultation can help foster a spirit of co-operation rather than confrontation. Furthermore, legislative reform, or developments in case law, should be backed up by appropriate training and awareness-raising within local authorities.158
1. Regulating the rights to freedom of peaceful assembly and expression
Local authority employees must discharge their duties in a manner which is neither arbitrary nor discriminatory, and restrictions should not be imposed on the basis of the content or message being expressed. In relation to the exercise of the right to peaceful assembly, while notification procedures are justified in order to enable authorities to make necessary arrangements in the interests of public order, public safety and the rights of others, the permission of local authorities should not be required.159 There is a need to devise procedures that are not unnecessarily bureaucratic and which maximize the possibilities for a peaceful and mutually acceptable outcome. In this light, local authorities should seek to build capacity for the mediation of disputes, thereby supporting efforts to reach mutually acceptable accommodations between opposed groups. While mediation typically encourages parties to agree their own agenda, regard must be had to the potential existence of power imbalances between parties. Such a process might address issues such as flags, banners, symbols, costumes, sensitivities about particular locations, general conduct, monitoring, stewarding and policing. Local authorities could assist here by linking with local civil society organisations with mediation experience, and by expanding the available pool of trained third party mediators. Restrictions should be imposed only if all other means of reaching an agreement have been exhausted.
The reasons given for restricting the right to peaceful assembly must be both relevant and sufficient and based on “an acceptable assessment of the relevant facts.”160 Therefore, if a local authority has concerns about an event, the authority should conduct an open and transparent assessment of all available information to determine whether, based on objective evidence, the organizers are likely to conduct their activity in a peaceful manner or whether there is demonstrable evidence to substantiate restrictions based on one or more of the legitimate grounds.
One mechanism for ensuring that local authorities’ decisions are well-informed is the use of trained monitors to provide an objective account of public events. Monitors might, for example, pay special attention to the policing arrangements where counter-protesters have gathered, to the conduct of those on parade at sensitive locations, and where applicable, to compliance with the terms of any mediated agreement. Monitors could report to the local authorities, who could then disseminate this report to interested parties.
Local authorities might consider forging links with the OSCE/ODIHR in developing and piloting a monitoring programme in relation to LGBT events. The EU also has a clear monitoring role to play. As ILGA-Europe has recommended, ‘The European Union Monitoring Centre (to become the Fundamental Rights Agency in 2007) and the European Commission against Racism and Intolerance have a role to play in monitoring the occurrence of hate speech – especially by public figures – and encouraging measures to address it.’161
The prohibition or banning of an assembly is a measure of last resort. Where it is necessary to restrict an event, the regulatory authority should impose the least restrictive time, place or manner conditions as possible in order to achieve the legitimate aim pursued. The following considerations should inform the decision making process:
· ‘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.’162
· Prior restrictions imposed on the basis of the possibility of minor incidents of violence are likely to be disproportionate. Any isolated outbreak of violence should be dealt with by way of subsequent arrest and prosecution rather than prior restraint.163
· A perceived risk of public disorder is insufficient to justify restrictions on public events. Moreover, organised opposition (whether vocal or evidenced by petition) is, of itself, not a reason to impose prior restrictions on LGBT events.
· The presence of a hostile audience is not a legitimate ground for prohibiting the exercise of the right to freedom of peaceful assembly. ‘In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.’164
· The European Convention on Human Rights is a living instrument which should be interpreted in the light of present-day conditions.165 Human rights standards must not be subordinated to the principles of a particular political creed or religion, and the moral views of the holders of political power should not be viewed as with ‘public morals’ as a basis for limiting freedom of assembly.
· Given that the police can always intervene to arrest individual participants who are acting in a disorderly manner, there should be no requirement for participants with entirely peaceful intentions to remain unmasked.166
2. The state’s duty to provide adequate protection to those exercising their rights
The protection afforded to the rights of expression and assembly must be ‘practical and effective’ not ‘theoretical or illusory’. It is the duty of local authorities to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully (although authorities have a level of discretion as to the means used). This means that adequate policing resources must be made available to see that sufficient measures are in place – particularly where counter-protests against an LGBT event have been notified – to ensure that participants need not fear being subjected to physical violence. Both Article 2 of the ECHR (which imposes a positive obligation on authorities to protect the right to life)167 and Article 3 (which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment) might potentially be engaged.
The consolidation and enhancement of police-community relationships will be important for the implementation of legislation regulating freedom of assembly and for reducing the escalatory potential of public demonstrations. Moreover, local police must adhere to international standards on policing. These provide, inter alia, specific and detailed guidance regarding the use of force in the context of dispersal of assemblies. Police officials must take immediate and effective action (subject to normal public order considerations) to remove from an event any persons intent on disrupting it. If violence does occur, the prohibition of discrimination under Article 14 ECHR has a procedural component, imposing an obligation on state authorities to investigate whether discrimination may have played a role in the commission of a crime.168 Police officers should be clearly identifiable in order to act as a deterrent from attacks, and individual officers should clearly display an individual-specific number so that they may be identified and held accountable for their actions should the need arise.
Regulation should not fundamentally alter the character of an event (unnecessary use of crowd control barriers or over-policing, for example, can seriously inhibit the carnivalesque nature of certain events). Moreover, assemblies which are technically unlawful or illegal merely due to defects in the notice provided to the authorities should be facilitated. The illegality of an event should not be regarded as a licence to terminate or disperse an otherwise peaceful event.
Indeed, the dispersal of assemblies should always be a measure of last resort. The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide that “[i]n the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.”169 They further stipulate that”[i]n the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.”170
While it may reasonable to request that event organizers provide stewards for a public event,171 the presence of stewards should never be considered as a substitute for the provision of adequate security measures by the authorities. Event organizers should not be required to cover the cost of policing assemblies (this in itself is a form of prior restriction, and undermines the positive obligation of the state to protect the exercise of these rights). Local police should work in partnership with event stewards, each having a clear understanding of their respective roles. Local authorities might further assist event organizers in ensuring public safety by covering the costs of high-visibility bibs or jackets for stewards, and providing steward training. The costs involved in cleaning up after an event should not be imposed on the organizer of a non-commercial event.
3. The availability of legal assistance and an independent review by a court of law
The organizer of the proposed event should be offered an opportunity to respond to any particular concerns raised by the regulatory authority. In doing so, or in drafting a court petition, organizers might obtain assistance from an Ombudsman’s office or National Human Rights Commission where such mechanisms exist. Organizers of events should also have the right of access to an independent court or tribunal so that they may challenge any restrictions imposed. This means that the reasons for imposing any restrictions must be published sufficiently far in advance of the notified date of the event so as to enable the organizer to challenge the legality or reasonableness of restrictions before the event is due to take place.
4. Other obligations on local authorities
Local authorities and their employees should set an example of tolerance. They have a special responsibility to refrain from speech likely to produce the effect of legitimising discrimination (including discrimination on the basis of sexual orientation) or hatred based on intolerance.172 Local authorities must also take appropriate steps to combat hate speech on the basis of the principles laid down in the Committee of Ministers Recommendation No. R(97)20.173
Individual employees of local authorities should not withhold the provision of services to members of the LGBT community on the basis of matters of conscience or religion (Article 9, ECHR) where the services in question are both clearly specified in the terms of their contract of employment and were known to them at the time they commenced employment.174
Furthermore, local authorities should be willing to assist LGBT organizers or facilitate the publicity of LGBT events (with the caveat that the provision of financial or other support by local authorities to the organizers of LGBT events must be provided equally to all similar groups).175
Finally, local authorities should ensure that the public has adequate access to reliable information relating to forthcoming events, as well as to information on discrimination and intolerance, where necessary, through the collection and dissemination of such information.176