New amendments to the law governing public assemblies [the Assembly Law] of June, 2004 recently introduced to Duma by the United Russia, prompted me to take a closer look at the legislation currently in force. Does it protect the right to peaceful assembly? Is it due to malpractice by the authorities that we are so severely restricted in this right, or does the law itself gives grounds for such negligence?

I discovered with bitterness that instead of being an instrument that allows the authorities to take reasonable and appropriate measures to guarantee the smooth conduct of a peaceful gathering, the current Assembly Law creates significant obstacles to the planning and execution of a gathering.

The Constitution of the Russian Federation provides that: 

• “Citizens of the Russian Federation shall have the right to meet peacefully, without arms, and to organise discussions, meetings and demonstrations, as well as processions and pickets” (Article 31) under conditions that are stipulated in (Article 55.3) and Article 56 of the Constitution. 
• “The commonly recognized principles and norms of international law and the international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by law, the rules of the international treaty shall apply” (Art. 15.4). 

Russia has signed and ratified both the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) that set standards, in particular, for the right of peaceful assembly.

Compliance of the Russian Assembly Law 54-FZ of 19 June 2004 with national (the Russian Constitution) and international standards (ECHR, ICCPR) has been a subject of thorough analysis by the European Council Commission for Democracy through Law (the Venice Commission).

The Venice Commission report of March 2012 states that in many aspects the Assembly Law contradicts the above standards and gives ground to impeded exercise of the right of peaceful assembly.

One could reasonably expect that having received this assessment, Russian parliamentarians would immediately start the process to bring the Assembly Law regulations into line with international standards, but...quite the opposite. United Russia comes up with amendments and changes that will definitely make these contradictions worse.

As the United Russia proponents often justify their initiatives by referring to international practice, it seems to me valuable to present here some of the Venice Commission’s considerations and conclusions. The full report can be found online at http://www.venice.coe.int/docs/2012/CDL-AD(2012)007-e.pdf .

The current Assembly Law adopted in 2004 laid down a notification procedure for conducting public assemblies. For the first time since the collapse of the Soviet Union an application for permission to hold a protest event was no longer needed. This provision has been usually praised as a great achievement of democracy.

But a closer look at the notification procedure reveals that though the Assembly Law requires only a “notification” of a public event - a written notice of intent - the notification procedure is in substance a request for permission. And since permission is rarely given, the notification amounts to an “authorization procedure de facto. Furthermore, the Assembly Law confers too broad discretion on the executive authorities to restrict assemblies, for instance by giving them the power to alter the format of the public event for aims (in particular the need to preserve the normal and smooth circulation of traffic and people) which go beyond the legitimate aims contained in Article 11 ECHR. The Law fails to indicate explicitly that such discretion must be exercised with due respect for the essential principles of “presumption in favour of holding assemblies”, “proportionality” and “nondiscrimination”; reasons for suspension and termination of assemblies should be limited to public safety or a danger of imminent violence.

The alteration of the place of an assembly by the authorities means that events cannot be held in places chosen by the organizer within sight and sound of their targeted audiences, or at a place with a special meaning for the purpose of the assembly. The Venice Commission recalls that respect for the autonomy of the organizer in deciding on the place of the event should be the norm. In principle the organisers should be permitted to choose the venue and the format of the assembly without interference.

“An assembly organizer should not be compelled or coerced either to accept whatever alternative(s) the authorities propose, or to negotiate with the authorities about key aspects (particularly the time or place) of a planned assembly. To require otherwise would undermine the very essence of the right to freedom of peaceful assembly.”

Article 9 prohibits assemblies taking place between 11 p.m. and 7 a.m. This is a restriction of the right to freely choose the time of an assembly. According to the Institute of Legislation and Comparative Law, this general restriction pursues the aims of protecting public order and the tranquillity of citizens. The Venice Commission stresses however that the subject/goal of the assembly may justify holding a specific assembly after 11 p.m. or one that lasts for more than a single day. Decisions should be taken by the executive authorities in each single case with due respect for the principle of proportionality.

The Assembly Law does not allow spontaneous and urgent assemblies.

By determining the notification period of 10-15 days the Law does not give a possibility to hold an assembly at shorter notice. Assemblies which carry a message that would be weakened if the legally established notification period were adhered to, especially if assemblies take place as an immediate response to an actual event, are required by ECHR to be facilitated by the authorities, even if they do not meet the normal notification requirement, as long as they are peaceful in nature. The ECHR has stated that “a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly”.

The obligations of the organisers to uphold public order are far too heavy. They should be restricted to the exercise of due care , taking into account the limited powers of the organiser. The overall responsibility to ensure public order must lie with the law enforcement bodies, not with the organiser of an assembly. The organiser cannot take on the role of the exercise of police powers, and cannot be required to do so. Moreover, the citizen’s right to peaceful assembly mirrors the state’s duty to facilitate and protect such events.

And so on... It seems to me that the way to go forward in protesting against the Assembly Law, especially burdened with new “improvements” that include enormous fines and additional restrictions, is to take a case to the European Court of Human Rights.