PROTEST IN TRANSITION: THE LEGAL REGULATION OF FREEDOM OF ASSEMBLY IN GEORGIA AND ARMENIA

Transcription

1 PROTEST IN TRANSITION: THE LEGAL REGULATION OF FREEDOM OF ASSEMBLY IN GEORGIA AND ARMENIA by Nino Tsukhishvili LL.M.SHORT THESIS COURSE: Freedom of Assembly PROFESSOR: Michael James Hamilton Central European University 1051 Budapest, Nador utca 9 Hungary Central European University March 29, 2012

2 ACKNOWLEDGEMENT I would like to thank to my supervisor, Michael Hamilton, for his guidance, encouragement and support for the whole period of the thesis writing process. It was a great pleasure for me to develop this research under his supervision and share his experience in this sphere. I would like to show my regards to all of those who support me, especially, to the writing instructor, Robin Bellers.

3 Abstract Regulation of the right to assembly presents a crucial issue for states in a period of transition because they should challenge the negative influence of transitional features on the protection of the right to assembly and provide sufficient legislative framework in the light of nondemocratic legal inheritance. This thesis considers the role of the freedom of assembly in transitional states and evaluates the influence of the transitional features on the effective enjoyment of the right to protest from the perspective of Georgia and Armenia. Illustrated by analysis of legislative problems in Georgian and Armenian laws concerning freedom of assembly, this thesis suggests a discussion about the protection of specific forms of assemblies, including both spontaneous and simultaneous demonstrations and evaluates prior restrictions on the right to assembly for the purpose to regulate public space. Finally, the thesis provides suggestions to improve protection of the right to assembly in a transitional state such as Georgia or Armenia.

4 Contents Contents... iv INTRODUCTION... 5 Chapter 1. Characteristics of transition and their influence on the enjoyment of freedom of assembly The role of the freedom of assembly in the states of a democratic transition General overview The role of freedom of assembly in the light of democratic transition of Georgia and Armenia Features of a democratic transition and their reflection on the enjoyment of the right to assembly Fragile legislative framework Declaration of a state of emergency and derogations from the right to assembly in a period o transition Protest policing strategy in a period of transition Chapter 2. Legislative regulation of the freedom of assembly in Georgia and Armenia Regulation of spontaneous and simultaneous assemblies in Georgia and Armenia Spontaneous assemblies Simultaneous assemblies Prior restrictions on the right to assembly: regulation of public space for demonstrations in Georgia and Armenia General overview Analysis of prior restrictions in Georgia and Armenia CONCLUSION BIBLIOGRAPHY iv

5 INTRODUCTION The following thesis will discuss the challenges of freedom of assembly in transitional democracies and will suggest sufficient solutions for legal regulation problems of the right to protest in transitional states from the perspective of Georgian, Armenian and ECHR s jurisdictions. The problem deals with the legality and compliance of restrictions imposed on the right to protest in a period of transition with the essence and the spirit of the right to freedom of assembly. The right to assembly has held a special and central place in the functioning of popular democracy 1 and its value is especially increased in a period of transition, because, on the one hand, social movements contribute to the process of transition from authoritarian systems to democracies 2 and, on the other hand, political protests reflect a lack of democratic values and support the democratization process in the state. 3 Nevertheless, in transitional states, the right to assembly is affected not only by generally recognized restrictions, 4 but also by the transitional values such as the stability of the government institutions, the protection of the life of the nation, the restoration of the rule of law and other principles, which are essentially significant for the existence of new democracies. 5 The specific characteristics and 1 David Smilnov, Free to protest constitutional power and street demonstration: the power of assembled peoplethe right to assembly and political representation, ed. Andras Sajo (Utrecht, the Netherlands, Eleven International Publishing, c2009), 87 2 Anthony Oberschall, Social movements and the transition to democracy, Journal of Democratization 7:3, (2000), 26 3 Daniel Guerin, Francois Perty and Jean Crete, Tolerance, protest and democratic transition: survey evidence from 13 post-communist countries, European Journal of Political Research 43; (2004) , According to article 11(2) of the ECHR: No restrictions shall be placed on the exercise of these rights other than such as prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others; According to article 21 of the CCPR: 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. 5 Michael Hamilton, Freedom of assembly, consequential Harms and the rule of law: liberty-limiting principles in the context of Transition, Oxford Journal of legal studies, Vol. 27, No 1 (2007), 77 5

6 goals of transition require a different approach for legal regulation of the right to protest compared to states with stable democracies. 6 This raises a problem of fair balance between the limitations of the right to assembly and the requirements of the transitional values, which may negatively influence on the effective enjoyment of the right in practice. Nowadays, this problem is especially common for Georgia and Armenia, because both states are in a period of democratic transition, their legislations are characterized by the large amount of restrictions imposed on the right to assembly due to the transitional reasons and both states have a problem ensuring a fair balance between the restrictions and the protected right in practice. 7 These states have been chosen on the basis of their post-communist experience in regulating freedom of assembly and their similar political situations in a period of transition. In order to demonstrate the influence of the transition process on the exercise of the freedom of assembly, the first chapter will define the role of the freedom of assembly in transitional states and consider the impact of specific transitional characteristics on the exercise of the right. With regard to this point, the first chapter will provide theoretical analysis of the role of right to assembly in the transitional process, also discuss such transitional features as the fragile legislative framework, 8 declaration of a state of emergency and derogations from the human rights for the protection of new democracies 9, state policing strategy for controlling 6 Ibid, 76 7 Venice Commission CDL-AD(2010)009, Opinion no.547/2009, adopted March, 2010; para 25, Venice Commission CDL-AD(2010)049, Opinion no. 596/2010, adopted December 2010, para 32-33, United Nations Special Reporter on the rights to freedom of peaceful assembly and association at the conclusion of his visit to the Republic of Georgia, statement, Tbilisi, 13 February, 2012, 8 Yash Ghai, The rule of law in the transition of societies: the African experience, Journal of African Law,Vol.35, No 1/2, (1991), 16 9 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report on the protection of human rights in emergency situations; By Holger Haibach, Germany, Group of the European People s Part, Doc # 11858, 9 April, 2009, ph 61 6

7 demonstrations in practice 10 and evaluate their influence on the enjoyment of the right. In order to make the discussion more evident, the first chapter will pay attention to the reflection of these theoretical attitudes in the Georgian and Armenian reality and summarize their experience. Furthermore, the first Chapter will find and analyze common problems of Georgia and Armenia as a result of the influence of transitional characteristics on the right to assembly. The second chapter will discuss legal problems of the freedom of assembly in two dimensions in the light of the Georgian and Armenian jurisdiction: the first concerns to the recognition and protection of specific types of assemblies, especially spontaneous and simultaneous demonstrations and the second relates to prior restrictions imposed on the right to assembly regulating public space for the purpose of the protest. Prior restrictions will be discussed in the light of Nicholas Blomley s argument concerning the pedestrianism which argues how to regulate the public space between the private and public usage and somehow justify the restrictions on demonstrations on some public places. 11 In the process of the analyzing legal problems of the right, the Georgian and Armenian jurisdiction will be compared with the standards of the ECHR. The second chapter will highlight the common legal problems of the regulation of the freedom of assembly and evaluate their compliance with the European standards. The conclusion aims at suggesting solutions for the legal regulation problems of the freedom of assembly in the context of a democratic transition and providing more effective protection of the right to protest in Georgia and Armenia. 10 Donatella D. Porta, Policing protest, the control of mass demonstrations in western democracies: Police knowledge and protest policing: some reflections on the Italian case, ed Donatella D. Porta and Herbert Reiter..Volume 6, chapter 10(Minneapolis: University of Minnesota Press,)1998, Nockolas Blomley, Rights of passage, sidewalks and the regulation of public flow, (Rutledge, Taylor and Francis Group, a Glasshouse book),

8 The thesis will be important and useful not only for Georgia and Armenia, but also for other states in the process of a democratic transition to regulate freedom of assembly under the influence of transitional characteristics. Besides this, it will be helpful for those states which have prior restrictions on public demonstrations in their legislations and have to determine a proper balance between individual and public interests. It could be interesting for members of the Council of Europe to find out the main problems and reasons for failure of effective protection of the right to assembly in Georgia and Armenia, as active members of this institution. Furthermore, there is little research made in this particular field relating to these two jurisdictions. There are monitoring reports concerning the regulation of the freedom of assembly in Georgia and Armenia 12, but they present policy reports and do not have a scientific nature. This thesis fills this gap. 12 The Helsinki Committee of Armenia, Report on Monitoring of the freedom of peaceful assembly in Armenia, report,(armenia, Asoghic printing house, 2009); The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012) 8

9 Chapter 1. Characteristics of transition and their influence on the enjoyment of freedom of assembly Introduction The purpose of the First Chapter is to discuss the role of the freedom of assembly in a democratic transition and evaluate the influence of specific features of transitional states on the regulation of the right to assembly in the light of the Georgian and Armenian transitional process. Democratic transition is a very long and dynamic process of transformation from nondemocratic governance to democratic values, which at the same time are characterized both by rapid successful reforms and improvements in some spheres and unforeseen failures to establish democratic values in other. 13 These successful steps and democratic problems interact with each other and create a specific legal, social and political environment, which is only found in a state in transition. The transitional environment requires a different approach to regulate legal relationships between state and individuals compared to states with stable democracies. 14 This specific environment of a democratic transition can be defined as an attempt of the state both to protect civil liberties and achieve transitionnal goals such as stability of the government, the restoration of the rule of law etc. These transitional challenges directly effect the regulation of freedom of assembly, because the right to protest always was a mechanism of democratic changes in the center of the transitional process 15 and enjoyment of this right by civil society sometimes is understood by the government as opposition to the transitional goals of the state. 13 Michael Hamilton, Freedom of assembly, consequential Harms and the rule of law: liberty-limiting principles in the context of Transition, Oxford Journal of legal studies, Vol. 27, No 1 (2007), Yash Ghai, The rule of law in the transition of societies: the African experience, Journal of African Law,Vol.35, No 1/2, (1991),17 15 Anthony Oberschall, Social movements and the transition to democracy, Journal of Democratization, 7:3,(2000), 26 9

10 Since the collapse of the Soviet Union, the former member states faced the process of a democratic transition, 16 but the democratization process was not very quick and successful in all of these states. At the beginning, semi-autocratic and partial democratic political systems were formed in most Eastern European states, including Georgia and Armenia. 17 Starting in 2000, the process of democratic transition was exercised by way of colored revolutions in some post-communist states and social movements achieved nonviolent regime changes in Serbia in 2000, in Georgia in 2003 (the Rose Revolution), in Ukraine in (the Orange revolution) and in Kyrgyzstan in 2005 (the Tulip Revolution). 18 There was also an attempt in Armenia in 2008 to change the system in time for presidential election, but the Armenian regime survived. 19 In these countries, the political situation in the state and process of democratic transition is significantly reflected in the regulation of the freedom of assembly and enjoyment of this right in practice. 1.1 The role of the freedom of assembly in the states of a democratic transition General overview The role of the freedom of assembly is found in the active participation in the process of a democratic transition of the state. Democratization is a continual process and requires permanent participations and improvements by the actors of the civil society, 20 which is effectively exercised by expressing opinions and protest about the democratic problems in assemblies and demonstrations. The ECHR underlined that democracy is the only political 16 Michael McFaul, Transitions from post-communism, Journal of Democracy, Volume 16, Number 3, (July, 2005), 5 17 Ibid, pg 9 18 Nicklaus Laverty, the problem of lasting change: Civil society and colored revolutions in Georgia and Ukraine, Heldref Publications, (2008), Steve Hess, Protests, parties and presidential succession, Competing theories of color Revolutions in Armenia and Kyrgyzstan, Problems of Post-Communism, Vol. 57, No 1, (2010), Nicklaus Laverty, the problem of lasting change: Civil society and colored revolutions in Georgia and Ukraine, Heldref Publications, (2008),144 10

11 model contemplated by the ECHR and the only one compatible with it 21 and recognized the right of assembly as a foundation of a democratic society with the right to freedom of expression. 22 The right to protest is very important to democracy, because, on the one hand, it supports the transition from authoritarian or semi-authoritarian system to democratic regime and plays a significant role in the democratization process. Furthermore, the effective enjoyment of the right to assembly is crucial for the establishment of such democratic principles as plurality of views, citizen participation, political tolerance, equality, accountability and transparency, responsibility and control of the abuse of the power by the state. Firstly, I will discuss the role of the right to assembly in changing authoritarian political systems and moving regimes to democratic values. It is historically confirmed that social movement and democracy has a close interdependence and cooperation with each other and all types of social movements established more democracy in each state. Oberschall applied the theory of collective action with social movements in the process of a democratic transition and argued how the popular movements contributed to the transitional process after the overthrow of communist regimes in Eastern Europe. 23 He explains that in accordance with this theory, the social movements against authoritarian regimes based on macro (containing dissatisfaction, ideology, capacity to act collectively and political opportunity) and micro levels (containing participation in opposition activities such as demonstrations; protests and etc) are necessary conditions to react to the authoritarian regimes. 24 The existence of these 21 Christian Democratic People s Party v Moldova, App no 28793/02, ECHR Judgment 14 February,2006, 62-63; United Communist Party of Turkey and others v Turkey, App no 133/1996/752/951, ECHR Judgment 30 January, 1998, Stankov and the United Macedonian Organization (ILINDEN) v Bulgaria, App no 29221/95 and 29225/95, ECHR Judgment 2 October, 2001, ph Anthony Oberschall, Social movements and the transition to democracy, Democratization 7:3, (2000) 26. There are described different examples of social movements concerning abolishing slavery, establishing free election and gender equality, also other civil rights movements; pg Ibid pg

12 conditions supports the social activists to make changes in the regime for the benefit of democracy. The role of the right to assembly in this process is demonstrated on the micro level in active actions against authoritarian regimes, such as above mentioned demonstrations and numerous forms of protests. The contribution of social movements to change autocratic or semi-autocratic regimes is clearly confirmed in the process of the formation of democratic regimes after the collapse of the Soviet Union. 25 Nevertheless, the ways and means of social movements were different, such as: electoral victories in the three Baltic States, Hungary, Poland, Slovenia, East Germany and Czechoslovakia; non-violent revolutions in Serbia, Georgia, Ukraine and Kyrgyzstan, but the results were the same: social movements managed to change the system and it was achieved by the active enjoyment of the right to assembly by the population. 26 Secondly, the right to assembly plays an important role in the democratization process of a transitional state. Social movements and political protests do not stop after transitional regimes are formed in the state and they continue active exercising in parallel to democratization. 27 The democratization process means to establish fair and free elections, provide effective protection of human rights and rule of law, guarantee independent and impartial judiciary, ensure accountability and transparency of political and governmental institutions and the absence of state control over civil society. 28 During the transitional period, people participate in demonstrations to protest the lack of democratic values or slow pace of democratization in the country 29 and require changes in the government policy for improvements. The contribution of exercising the right to assembly in the democratization 25 Michael McFaul, Transitions from post-communism, Journal of Democracy, Volume 16, Number 3, July 2005, 5 26 Ibid, pg Daniel Guerin, Francois Perty and Jean Crete, Tolerance, protest and democratic transition: survey evidence from 13 post-communist countries, European Journal of Political Research 43; (2004) Anthony Oberschall, Social movements and the transition to democracy, Democratization 7:3, (2000) Daniel Guerin, Francois Perty and Jean Crete, Tolerance, protest and democratic transition: survey evidence from 13 post-communist countries, European Journal of Political Research 43; (2004),

13 process depends on the level of the tolerance from the state to receive critical public opinions about the state policy and political decisions made by government institutions. The tolerance is reflected in legislative regulation of the right to assembly and governments action during the enjoyment of the right in practice. To evaluate the degree of the contribution of the right to protest in democratization, the public sphere concept should apply to the level of the tolerance taken by the state. 30 Habermas defined a public sphere as existed area between the government and civil society, where individuals can participate in a critical debate about political issues and establish public opinion for influence on state policy. 31 The larger the public sphere exists, the higher the level of tolerance is achieved in the state, which positively affects the contribution of the popular participation in the democratization process. The question of tolerance is especially important in transitional countries. Generally, the political regimes founded on protest and social movement should be more tolerant to ongoing public demonstrations and social activities, because they know the value of the citizen s participation in the democratization process. In practice, political intolerance is much more characteristic in transitional countries than stable democracies, which was confirmed by the research of the relationship between political tolerance and political protest in thirteen East and Central European Countries, including Georgia and Armenia. 32 As a result, the right to assembly can significantly contribute to the democratization process by active citizen participation in the political debate, but the level of the contribution of the right depends on the tolerance expressed by the government. 30 Nicklaus Laverty, the problem of lasting change: Civil society and colored revolutions in Georgia and Ukraine, Heldref Publications, (2008), Jurgen Habermas, Structural Transformation of the Public Sphere: An inquiry into a category of Bourgeois Society,, Cambridge MA:MIT Press, (1989) 32 Daniel Guerin, Francois Perty and Jean Crete, Tolerance, protest and democratic transition: survey evidence from 13 post-communist countries, European Journal of Political Research 43; (2004), 376 These thirteen countries are: Armenia, Belarus, Croatia, Estonia, Georgia, Latvia, Lithuania, Moldova, Poland, Russia, Slovenia, the Ukraine and Serbia. 13

14 1.1.2 The role of freedom of assembly in the light of democratic transition of Georgia and Armenia Historically, the role of social movements was very important for a transitional period in Georgia and Armenia. The political life of these countries is characterized by numerous protests to change the political systems and establish democratic values in the states. Sometimes, these social movements were successful in achieving their purposes, but in most cases, the right to assembly was limited by transitional reasons such as protection of the constitutional order and preservation of the state government. Georgia and Armenia have a huge experience concerning the enjoyment of the right to assembly as a mechanism to change a political regime and to support a democratization process. Comparison of their experience will show us the level of the tolerance and protection of the right in these states. In Georgia, the right to assembly was frequently used by civil society to participate in changing a political regime. The first wave of changing political regime was exercised in September 1991 in Georgia, when mass demonstrations started against the first president, Zviad Gamsakhurdia s government. As a result of a struggle between the government forces and protestors, Gamsakhurdia s government left the office on January 6, 1992 and the former leader of the Georgian Soviet Republic, Eduard Shevardnadze governed Parliament, then he was elected as a president of the country two times in 1995 and again in The second wave of demonstrations was started in 2003, which achieved a change in the semi-authoritarian political regime of Eduard Shevardnadze by the way of nonviolent Rose Revolution. 34 The opposition groups tried to do the same against Mikheil Saakashvili s government, but mass demonstrations were dismissed by the state by the use of 33 The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012), 8 34 Michael McFaul, Transitions from post-communism, Journal of Democracy, Volume 16, Number 3, (July 2005) 7 14

15 force on 7 th of November, There were other attempts to change the political regime, but the demonstrations were dissolved by the use of forces on the 9 th of April and 26 th of May in The latest interferences in mass demonstrations show that the state policy was to limit or violate the right to assembly, because of its importance and capacity to change the political system for democratization and decrease the level of tolerance for the demonstrations. In Armenia, the mass demonstration was also used to change a political system. In February, 2008, after the presidential election, opposition groups organized mass demonstrations to require fair results of the election and change the political system. In spite of the wellorganized and strong social movements, the government responded with violence and allowed the ruling party to stay in power. 37 As a result, the right to freedom of assembly was limited by the transitional reason such as the protection of the state government institutions. To compare the experience of the both of these states, it is sufficient that political tolerance plays a huge role in the effective contribution of the right to assembly in a transitional process. During the first attempts in political changes, there were different characteristics of political tolerance in Georgia and Armenia, which affected the results of the mass demonstrations in 2003 in Georgia and in 2008 in Armenia. McFaul highlights the specific characteristics of democratic transition and the role of the assembly in Georgia and argues that the Rose Revolution was different from other western transitions in four respects: the ground for changes was a fraudulent national election, the new governors tried to protect the existing democratic constitution and did not change the constitutional rules, the purpose was to hold sovereign authority and the revolution ended without mass violation, which was the 35 The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012), Georgian Young Lawyers Association, Report 26 May, 2011, Analysis of Human Rights violations during and related to the dispersal of the May 26 Assembly, Tbilisi, Georgia, (2011) 37 Steve Hess, Protests, parties and presidential succession, Competing theories of color Revolutions in Armenia and Kyrgyzstan, Problems of Post-Communism, Vol. 57, No 1, (2010), 32 15

16 result of political tolerance of the government to demonstrators. 38 Hess evaluates the reasons of failure of mass demonstrations to change political regime in Armenia in 2008 and concludes that it failed because it faced a strong, unified authoritarian regime with strong security forces and clearly defined successor difference from Georgia. 39 Comparing the Georgian experience of mass demonstrations received after the Rose Revolution to the Armenian experience, more similarities are found in state policy to control demonstrations than before. After the Rose Revolution, the Georgian policy to tolerate mass demonstrations becomes lower and generally the huge mass demonstrations are ended with the use of force by the government. 40 According to Laurence Broers, the Rose Revolution may represent the transition from democracy without democrats to democrats without democracy. 41 As a result of comparing experience of Georgia and Armenia concerning the tolerance to political protests, nowadays the similar strict state policy and low level of tolerance to the enjoyment to the right to assembly exist in these countries. The state governments are not sufficiently tolerant to a political protest which is confirmed by the state actions during the public demonstrations. The low level of tolerance negatively effects the contribution of the freedom of assembly to the democratization process and on the continuity of this process itself. 38 Michael McFaul, Transitions from post-communism, Journal of Democracy, Volume 16, Number 3, (July 2005), 6 39 Steve Hess, Protests, parties and presidential succession, Competing theories of color Revolutions in Armenia and Kyrgyzstan, Problems of Post-Communism, Vol. 57, No 1, (2010), The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012), Laurence Broers, After the Revolution: civil society and the challenges of consolidating democracy in Georgia, Central Asian Survey, 24(3), (September 2005),

17 1.2 Features of a democratic transition and their reflection on the enjoyment of the right to assembly Transition is characterized by the specific features which are reflected in the protection and regulation of the human rights in new democracies, including the right to assembly. I will pay attention to the following transitional features such as the fragile legislative framework, 42 derogations from the human rights in the time of emergency during a period of transition 43 and state policing strategy of controlling demonstrations in practice. 44 These transitional characteristics will be evaluated in the light of their influence on the enjoyment of the right to assembly and Georgian and Armenian experience will be discussed in this context Fragile legislative framework General overview For transitional states, law plays an important role in regulating social, political and economic changes and presents a proper instrument to establish a new legal order. 45 To achieve establishment of democratic values in a state of transition, law should ensure to correct its past mistakes, provide its legitimacy in the present and create grounds for a more fair future. 46 Ghai discussed the role of the law in different political systems and underlined that in a transitional society, it is more important to pay attention to what kind of law is made by the 42 Yash Ghai, The rule of law in the transition of societies: the African experience, Journal of African Law,Vol.35, No 1/2, (1991),16 43 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report on the protection of human rights in emergency situations; By Mr Holger Haibach, Germany, Group of the European People s Part, Doc # 11858,(9 April, 2009), Donatella D. Porta, Policing protest, the control of mass demonstrations in western democracies: Police knowledge and protest policing: some reflections on the Italian case, ed Donatella D. Porta and Herbert Reiter..Volume 6, chapter 10(Minneapolis: University of Minnesota Press,)1998, Yash Ghai, The rule of law in the transition of societies: the African experience, Journal of African Law,Vol.35, No 1/2, (1991),10 46 Michael Hamilton, Freedom of assembly, consequential Harms and the rule of law: liberty-limiting principles in the context of Transition, Oxford Journal of legal studies, Vol. 27, No 1 (2007),77 17

18 state and what the price is which society have to pay for reliance on the law. 47 He explains that the effective functioning of the law to change the system depends on several factors, such as the method of the transfer of political power and the aim of the transitional government. 48 These factors are reflected in the law-making process, the content of the law and its interpretation by the authority bodies in practice. The existence of the law concerning the freedom of assembly is crucial for the protection and regulation of this right in a process of transition, because this right is often used for achieving political purposes by opposition groups or expressing public opinions by the representatives of civil society. In accordance with the active role of this right in a transitional process, it requires clear and certain regulations, important guarantees and sufficient procedures for its effective enjoyment to avoid the manipulation of the right by the government. The content of the law concerning the freedom of assembly shows a degree of tolerance of the state to the public demonstrations 49 and it should ensure to reflect the essence of the right without huge interference. In a period of transition, a fragile legislative framework is a common feature for new democracies, which means that the law is characterized by frequent changes and numerous amendments to answer to transitional challenges and the evaluation in the political situation. 50 The main challenge is to evaluate what the purpose of the frequent amendments is: to improve the establishments of democratic values or to increase the power of the state and limit the enjoyment of human rights. In general, a rapid change of the law creates a problem of effective implementation of the law in practice and confirms that the state has an undefined policy to regulate specific issues. Fragile legislative regulations negatively affect the law 47 Yash Ghai, The rule of law in the transition of societies: the African experience, Journal of African Law,Vol.35, No 1/2, (1991), Ibid, pg Ibid, pg Ibid, pg 16 18

19 when comparing with two main requirements established by the ECHR for the quality of the law: accessible to the person and foreseeable to its affects. 51 The fragile legislation may be justified under the transitional circumstances if the amendments support the democratization process in the state and improve the enjoyment of the human rights in practice. The unexpected and frequent changing to the legislative environment may be very harmful for the enjoyment of human rights, if the amendments aim at increasing state control over exercising human rights and restricting them. As a result, I can conclude that the fragile legislative framework, as a feature of transition may have a positive or negative effect on the regulation of human rights, including the right to assembly, but it depends on the state legislative policy, the content of the amendments and its interpretation by the authorities The influence of the fragile legislative framework on the regulation of the right to assembly in Georgia and Armenia The fragile legislative framework of the right to assembly affects on the regulation of the right to assembly in Georgia and Armenia. Analyzing the state legislative policy and the content of the amendments in these countries, it should be discussed whether it has positive or negative influence on the effective enjoyment of the right. Firstly, I will discuss the influence of the fragile legislative framework on the exercise of the right to assembly in Georgia. The freedom of peaceful assembly is guaranteed by Article 25 of the Constitution of Georgia. 52 The detailed regulation of this right is provided by the law on Assembly and Manifestation, which was adopted in 1997 and was amended several times 51 Amann v. Switzerland, App no /95, ECHR Judgment of 16 February 2000; Article 25 of the Constitution of Georgia states: 1. Everyone, except members of the armed forces and Ministry of Internal Affairs, has the right to public assembly without arms either indoors and outdoors without prior permission. 2. The necessity of prior notification of the authorities may be established by law in the case where a public assembly or manifestation is held on a public thoroughfare. 3. Only the authorities shall have the right to break up a public assembly or manifestation in case it assumes an illegal character. 19

20 since its adoption. The first most important amendments were made in 2009 as a response to mass political demonstrations in the country without waiting for the requested opinion from the Venice Commission. 53 Evaluating these amendments, the Venice Commission mentioned that they were done very rapidly to address the specific conditions in the state and they criticized restrictions on the possibility to block roads during assembly. 54 The Venice Commission interpreted that the legislation adopted as a response to a specific incident is often inadequately devised in regard to police, poorly drafted and has unintended consequences. 55 Considering the recommendations, a new draft was presented to the Commission in March 2010, the Commission remained critical of the unchanged blanket prohibitions in the law on using public roads. 56 The Parliament of Georgia adopted the draft of the law without further changes in The numerous norms of the law were appealed to the Constitutional Court of Georgia and the Court declared several norms unconstitutional in April, 2011, most important was a ban assembling within 20 meters of a large number of public administration buildings defined in the law. 58 The last amendments were adopted in the law in June, 2011, which reintroduced some of the norms abolished by the Constitutional Court in a modified form. 59 Legislative policy of Georgia concerning the regulation of freedom of assembly shows that the frequent amendments to the law aim to answer the continual political protests in the country and limit the enjoyment of the right to assembly by imposing unnecessary 53 The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012),12 54 Venice Commission CDL (2009)152, opinion no 547/2009, adopted October ; (para 6); Availablehttp:// 55 Ibid, para 6 56 Venice Commission CDL-AD(2010)009, Opinion no.547/2009, adopted March, 2010; para 25, 57 The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012),12 58 The decision of the Constitutional Court of Georgia, App 2/482,483,487,502, 18 April, 2011; Available only in Georgian at 59 The Human Rights Center, Report on Monitoring of the peaceful assembly in Georgia, Legislation and practice, (Tbilisi, 2012),13 20

21 restrictions. 60 The Parliament of Georgia did not take into account either the recommendations of the Venice Commission or the decision of the Constitutional Court to abolish the blanket prohibitions on using public space during the demonstrations and they are still in force in a different manner. The Georgian experience of the fragile legislative regulations shows that numerous amendments to the law have a negative effect on the regulation of freedom of assembly. The detailed analysis of the legislative problems will be discussed in the second chapter, but the general policy shows that frequent legislative changes negatively reflect on the enjoyment of the right in practice. Secondly, I will discuss the legislative framework concerning the freedom of assembly in Armenia. The Constitution of Armenia recognizes that everyone shall have the right to freedom of peaceful and unarmed assemblies 61 and states that restrictions on exercising these rights by the employees in the armed forces, police, national security, prosecutor s office, bodies as well as judges and members of the Constitutional Court may be prescribed only by the law. 62 The right to assembly was regulated by the law on conducting meetings, rallies, demonstrations and processions, 63 which changed several times and, generally, the recommendations of the Venice commissions were considered in the changing process. The most problematic amendments were made to answer to the mass demonstrations after the presidential election in 2008 and seriously undermine the holding of assembly, 64 because it allows security forces to disperse public assemblies before they develop into mass 60 Ibid, pg Constitution of Republic of Armenia, article 29(1), 62 Constitution of Republic of Armenia, article 29(2), 63 The law of Republic of Armenia on conducting meetings, rallies, demonstrations and processions, 64 The Helsinki Committee of Armenia, Report on Monitoring of the freedom of peaceful assembly in Armenia, report,(armenia, Asoghic printing house, 2009); 20 21

22 demonstrations. 65 In 2011, the Parliament of Armenia adopted a new law on freedom of assemblies, 66 which was made with the active cooperation of the Venice Commission. In accordance with the last comments of the Venice Commission, the law had problems with existing blanket prohibitions and regulations of the public space. 67 Analyzing the legislative politics of Armenia relating to the freedom of assembly, the effect of the fragile legislative framework was characterized by positive and negative aspects. The rapid amendments which considered the recommendations of the Venice Commission should be appreciated positively, because their aim was to improve the enjoyment of the right. Nevertheless, the amendments which were adopted as an answer to the mass political protests in the country should be evaluated negatively because they restrict the use of public space for demonstrations and influence the effective enjoyment of the right. These problems of the law should be discussed in detail in the second chapter, but the influence of the fragile legislative framework is not obvious for the enjoyment of the right and mostly depends on the changing political situation in the country. As a result, I can conclude that the influence of the fragile legislative framework on the regulation of assembly in Georgia and Armenia is characterized by the huge dependence on changing political situations in these countries and the will of the government to impose more control over the demonstrations. These circumstances result in imposing restrictions on the effective enjoyment of the right, by the way of frequent and rapid amendments to the law. 65 Steve Hess, Protests, parties and presidential succession, Competing theories of color Revolutions in Armenia and Kyrgyzstan, Problems of Post-Communism, Vol.57, No 1, (2010), pp 28-39,pg The law of Republic of Armenia on Freedom of assemblies; 67 Venice Commission CDL-AD(2010)049, Opinion no. 596/2010, adopted December 2010, available at 22

23 1.2.2 Declaration of a state of emergency and derogations from the right to assembly in a period o transition General overview In a period of transition, the state governments sometimes declare a state of emergency and derogates from several human rights to protect the existence of a new democracy. 68 The circumstances for declaring emergency must affect the whole population and constitute a threat to the organized life of the community of which the state is composed. 69 The role of the state of emergency increases in transitional societies, because it supports the government in returning to a normal situation in the country 70 and preserves such transitional values as the stability of the government institutions, the protection of the life of the nation, the restoration of the rule of law and other principles, which are important for a transitional state. 71 Generally, an emergency situation should be declared in exceptional circumstances and must be used as a means of last resort, 72 because it entitles the state to interfere into the human rights and freedoms in a more strict way than in ordinary time. 73 The right to assembly may be derogated in the time of emergency, but the derogation should comply with the international standards of the protection of human rights. 74 In general, the OSCE Guidelines on Freedom of Peaceful Assembly define that the presumption of freedom of assembly should be maintained as far as possible even during an emergency situation and 68 The Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report on the protection of human rights in emergency situations; By Holger Haibach, Germany, Group of the European People s Part, Doc # 11858, 9 April, 2009, para Lawless v Ireland, App. NO 332/57, ECHR Judgment of 1 July, 1961, Para Jean Allain, Derogation from the European Convention of Human Rights in the light of other obligations under international law, European Human Rights Law Review, (2005), No 5; Michael Hamilton, Freedom of assembly, consequential Harms and the rule of law: liberty-limiting principles in the context of Transition, Oxford Journal of legal studies, Vol. 27, No 1 (2007), Ibid, pg 1 73 Nicolas A.J. Croquet, The European Court of Human Rights norm-creation and norm-limiting processes: resolving a normative tension; Columbia Journal of European Law 307, No 17 (2011), Article 4 of the ICCPR; Article 15 of the ECHR 23

24 that any restrictions thereof be instituted lawfully. 75 Article 15 of the ECHR defines procedural and substantive obligations for the state to derogate the human rights. 76 The procedural commitments mean to notify the Secretary General of the Council of Europe about the measures adopted in the time of emergency 77. The substantive obligations relate to the compliance with the following requirements of the article: it should be exercised in time of war or other public emergency threatening the life of the nation, should be strictly required by the exigencies of the situation, should not be inconsistent with the State s international law obligations and should not affect the exercise of the non-derogable rights defined by this article. 78 The ECHR granted the state a wide margin of appreciation to define both the presence of such an emergency and the nature and scope of derogations necessary to avert it, 79 but underlined that this power is not unlimited and the court is responsible for ensuring the observance of the states engagements. 80 These standards extend to the derogation of the right to assembly The influence of the emergency situations on the regulation of the right to assembly in Georgia and Armenia Declaration of a state of emergency as a transitional feature and its characteristic to derogate the right to assembly influences the effective enjoyment of the right in a period of transition. The question which arises is what kind of measures the state should take and how far the state can be permitted to go in regulating the assemblies during the emergency situations. In the 75 OSCE/ODIHR, OSCE Guidelines on Freedom of Peaceful Assembly, First Edition, (Warsaw 2007), 21,28 76 Jean Allain, Derogation from the European Convention of Human Rights in the light of other obligations under international law, European Human Rights Law Review, No 5,(2005) Article 15(3) of the ECHR 78 Article 15 (2) of the ECHR: the right to life (regarding the resulting death from lawful acts of war); prohibition on torture; prohibition of slavery; no punishment without law 79 Ireland v UK, Application no 5310/71, ECHR Judgment of 18 January, 1978, Para Ibid, para

25 case of Georgia and Armenia, as parties of the ECHR, it should be evaluated in the light of its requirements. Emergency situations were declared on the 7 November, 2007 in Georgia 81 after the five days of mass demonstrations requesting the resignation of Georgian President Mikheil Saakashvili 82 and on 1 March, 2008 in Armenia 83 after protesting the results of the presidential election and violent clashes between the police and demonstrators. 84 In both cases, the goals of declaring a state of emergency were to achieve the protection of transitional values. In Georgia, the reasons for declaration of a state of emergency were saving the life of the nation, necessity to avoid further disturbances in the country, restoration the rule of law and effective functioning of the government institutions 85 and in Armenia prevention of the threat of danger to the constitutional order and protection of the right and legal interests of the population. 86 Both states decided to derogate the right of assembly during the period of the state of emergency in accordance with their Constitutions and notified the Secretary General of the Council of Europe as ruled by the ECHR. 87 The crucial issue which is connected to the protection of the right to assembly during the emergency situation is the degree of the use of force against the demonstrators by the state 81 The President of Georgia, Order on the Declaration of the state of Emergency on the Entire Territory of Georgia, No. 621, 7 November 2007, Tbilisi; Minister for Foreign Affairs of Georgia, Note Verbal #7/ of the to the Secretariat General of the Council of Europe, 9 November, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report on the protection of human rights in emergency situations; By Mr Holger Haibach, Germany, Group of the European People s Part, Doc # 11858, 9 April, 2009, para 2 83 The President of the Republic of Armenia, Decree on Declaration of the State of Emergency in Yerevan, 1 March, 2008; The Minister for Foreign Affairs of Armenia, Note Verbal #14/02627 to the Secretariat General of the Council of Europe, 2 March, Steve Hess, Protests, parties and presidential succession, Competing theories of color Revolutions in Armenia and Kyrgyzstan, Problems of Post-Communism, Vol. 57, No 1, (2010), The Minister for Foreign Affairs of Georgia, Note Verbal #7/ to the Secretariat General of the Council of Europe, 9 November, The Minister for Foreign Affairs of Armenia, Note Verbal #14/02627 to the Secretariat General of the Council of Europe, 2 March, The President of Georgia, Decree on measures to be undertaken in connection with Declaration of the States of Emergency on the Entire Territory of Georgia; #1, 7 November 2007, Tbilisi; The President of the Republic of Armenia, Decree on Declaration of the State of Emergency in Yerevan, 1 March,