Comparative Regulation of Public Protests

REGULATION OF PUBLIC PROTESTS:
COMPARATIVE STATE PRACTICE

Legal Memorandum

November 2011

Regulation of Public Protests, November 2011

REGULATION OF PUBLIC PROTESTS: COMPARATIVE STATE PRACTICE

Executive Summary

The purpose of this memorandum is to analyze the restrictions that selected
European countries commonly place on public protests. The freedom of assembly
and the right to hold public protests are viewed as fundamental rights in a free and
open society. Many states have implemented restrictions on these fundamental
rights. The jurisprudence of the European Court of Human Rights and the
opinions of various European authorities, such as the European Commission for
Democracy through Law (the Venice Commission), have established standards
for restriction of the right to freedom of assembly. These authorities have held that
restrictions on the freedom of assembly must be based on a legitimate aim, and the
means of restriction used must be proportionate to the aim articulated.

Most European states choose to regulate public protests by passing
legislation with detailed restrictions. These states divide the power to regulate
protests between levels of government, often enacting national requirements and
delegating to local authorities the power to enforce the restrictions. Some states
ban protests in specific locations, such as within a specified distance of parliament
and other government buildings, while others base restrictions on potential threats
to public safety or disruption of traffic. Other common provisions in laws
governing protests relate to processes for notifying authorities about public
assemblies and responsibilities of organizers and security services. Some states
give organizers the responsibility to provide security, while others mandate that
local police forces provide security for protesters.

While the public protest laws of many European states are similar in content,
state authorities and police differ in their application of the law. State practice
shows that laws regulating public protests are more often challenged by
constitutional courts and European authorities based on their application than based
on their content. Constitutional violations and violations of the European
Convention on Human Rights are most often found where the application of the
law is arbitrary, discriminatory, disproportionate, or unjustified, as has been the
case in Croatia, Serbia, and Hungary.


TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Standards of Freedom of Assembly and Expression 1

Croatia 4
Legal Framework 4
Substantive Restrictions 5
Application 7
Challenges to the Law 9

Serbia 10
Legal Framework 10
Application 13
Slovenia 16
Legal Framework 16
Application 20

Hungary 21
Legal Framework 21
Application 24

Spain 26
Legal Framework 26
Application 29

The Netherlands 31
Legal Framework 31
Application 33
Conclusion 34
1
REGULATION OF PUBLIC PROTESTS: COMPARATIVE STATE PRACTICE

Statement of Purpose

The purpose of this memorandum is to analyze the restrictions that European
States commonly place on public protests, and how those restrictions interact with
guarantees of freedom of expression and assembly.

Introduction

The freedom of assembly and the right to hold public protests are viewed as
fundamental rights in a free and open society. However, many states have
implemented restrictions on these fundamental rights in order to protect public
safety and national security. States often balance these competing values and
attempt to strike a balance between freedom of assembly and the maintenance of
law and order. Some states have used the premise of national security to restrict
the freedom on assembly for politically unpopular protests, causing controversy
and criticism from European institutions such as the European Court of Human
Rights and the Venice Commission, as well as domestic institutions.

Standards of Freedom of Assembly and Expression

Standards for freedom of expression and freedom of assembly have been
established at the international level, through the International Covenant on Civil
and Political Rights (ICCPR), and at the European level, through the European
Convention on Human Rights and the European Union are parties to the Charter of
Fundamental Rights of the European Union. The European Court of Human
Rights, the Venice Commission, and other regional authorities have developed
standards governing permissible restrictions on these rights.

Each of the states analyzed below is a party to the ICCPR.
1
The ICCPR
guarantees the freedom of expression, which applies to holding opinions and
seeking, giving, and receiving information and ideas.
2
These rights may be
restricted as is necessary for respect of the rights or reputations of others or to

1
United Nations Treaty Collection, Status of Treaties: International Covenant on Civil and Political Rights,
available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en
(last updated Oct. 20, 2011).
2
International Covenant on Civil and Political Rights, art. 19, December 16, 1966, 999 U.N.T.S. 171; 6 I.L.M. 371
(1976), available at http://www2.ohchr.org/english/law/ccpr.htm.
2
protect public health, order, and morals.
3
The ICCPR also guarantees the right of
peaceful assembly.
4
Like freedom of expression, this right may only be restricted
as is 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

Each of the states analyzed below are also parties to the European
Convention on Human Rights.
6
The Convention guarantees the freedom of
expression, which is similar to the ICCPR text, except that it specifies that the free
exchange of information must not be obstructed by public officials or national
borders.
7
This right may be restricted by law in ways that 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 the rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
8
These grounds for restriction are
broader than those included in the ICCPR. The Convention also guarantees
freedom of assembly, which is subject to similar restrictions as freedom of
expression.
9
Furthermore, the Convention authorizes states to restrict freedom of
assembly for members of the armed forces, police, or state administration.
10

Additionally, member states of the European Union (EU) are parties to the
Charter of Fundamental Rights of the European Union.
11
The Charter applies to
the EU only, providing limits on the laws the EU may pass and applying to
member states only when they are implementing EU law.
12
The Charter

3
(1976).
4
(1976).
5
(1976)
6
Council of Europe, Simplified Chart of Signatures and Ratifications, available at
http://conventions.coe.int/Treaty/Commun/ListeTableauCourt.asp?MA=3&CM=16&CL=ENG (last updated Oct.
20, 2011).
7
European Convention on Human Rights, art. 10 (1950), available at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf.
8
European Convention on Human Rights, art. 10 (1950).
9
(1976).
10
European Convention on Human Rights, art. 10 (1950).
11
Charter of Fundamental Rights of the European Union, (2000), available at
www.europarl.europa.eu/charter/pdf/text_en.pdf.
12
Charter of Fundamental Rights of the European Union, art. 51 (2000).
3
guarantees the freedom of expression and freedom of assembly, and does not
contain any corresponding restrictions.
13

Though the aforementioned instruments justify restrictions on freedom of
assembly in certain circumstances, these restrictions must be limited in scope.
14

European authorities have developed guidelines for what types of restrictions are
permissible. The Venice Commissions Guidelines on Freedom of Assembly
provides a list of guiding principles that state authorities must consider when
regulating the freedom of assembly, which include: a presumption in favor of
freedom of assembly; the states obligation to facilitate and protect freedom of
assembly; the requirement that any restrictions imposed are set forth clearly in law;
proportionality; non-discrimination; a fair and open administration of the
regulatory process; and liability of the regulatory authority for compliance with
legal obligations.
15

One framework often used for determining whether restrictive laws will be
upheld is the proportionality test.
16
This test balances the nature and extent of
restrictions on freedom of assembly with the reason for restricting it, and requires
that authorities take into account the circumstances surrounding each assembly,
rather than placing blanket restrictions on assemblies generally.
17
Authorities
should also balance the competing interests at stake, and ensure that restrictions
placed on freedom of assembly are necessary to protect a greater interest.
18

The European Court of Human Rights has held that for authorities claims of
proportionality to hold up, the reasons given for restricting the freedom of
assembly must be convincing and compelling, and based on an acceptable
assessment of the relevant facts.
19
These requirements are particularly important

13
Charter of Fundamental Rights of the European Union, art. 10, 11 (2000).
14
Charter of Fundamental Rights of the European Union, art. 52 (2000).
15
Guidelines on Freedom of Peaceful Assembly (2
nd
Edition), OSCE/ODIHR PANEL ON FREEDOM OF ASSEMBLY
AND THE VENICE COMMISSION para. 2 (June 4, 2010), available at www.venice.coe.int/docs/2010/CDL-
AD(2010)020-e.pdf.
16
nd
AND THE VENICE COMMISSION para 2.4 (June 4, 2010).
17
nd
AND THE VENICE COMMISSION para 2.4 (June 4, 2010).
18
nd
AND THE VENICE COMMISSION para. 39-42 (June 4, 2010).
19
Guidelines on Freedom of Peaceful Assembly (2nd Edition), OSCE/ODIHR PANEL ON FREEDOM OF
ASSEMBLY AND THE VENICE COMMISSION para. 39-42 (June 4, 2010) (citing Makhmudov v. Russia at
para.65 (2007)).
4
where authorities attempt to place restrictions on assemblies that are held to
address matters of public interest, or contain political speech.
20

International law regards freedom of expression as an important value that
should only be restricted in narrow circumstances. Freedom of assembly and the
right to hold public protests is encompassed in the broad concept of freedom of
expression. While the ICCPR itself does not give significant guidance for
implementing its principles, the Guidelines on Peaceful Assembly provide states
with a basic framework of proportionality. States may use this framework to build
and implement their regulations to ensure compliance with the international
conventions.

Croatia

Public protest in Croatia is regulated by the Public Assembly Act, which
contains several restrictions on the right to freedom of assembly that are common
among European states. However, Croatia is one of the few states where the
content of this law, in particular amendments that banned certain types of protest in
the vicinity of government buildings, has been challenged for being overly
restrictive of the freedom of expression.

Legal Framework

The right to freedom of assembly in Croatia is protected by the Constitution,
which provides that [e]veryone shall be guaranteed the right of public assembly
and peaceful protest, in conformity with law.
21
Freedom of assembly, along with
all other rights and freedoms mentioned in the Constitution, may only be restricted
to protect the freedoms and rights of others, the legal order, and public morals and
health.
22
The restriction of this freedom must be proportional to the nature of the
necessity, and assessed on a case-by-case basis.
23

The Public Assembly Act regulates public assembly in Croatia.
24
The Act
distinguishes between two main types of public gathering: peaceful assemblies and

20
nd
AND THE VENICE COMMISSION para. 39-42 (June 4, 2010) (citing Christian Democratic Peoples Party v. Moldova at
para.71 (2006)).
21
CROATIA CONST. art. 42 (2001), available at www.sabor.hr/fgs.axd?id=17074.
22
CROATIA CONST. art. 16 (2001).
23
CROATIA CONST. art. 16 (2001).
24
Public Assembly Act (Croatia, 1999), available at http://narodne-
novine.nn.hr/clanci/sluzbeni/1999_11_128_2020.html.
5
public protests, and public events.
25
Peaceful assemblies and public protests are
groups of twenty or more individuals who gather to express and promote social,
political, or ethnic aims.
26
Public events are gatherings held for business purposes,
where generating revenue is the aim.
27

Different government authorities are tasked with enforcing the regulations
contained in the Act, depending on the type of public gathering in question.
28
For
peaceful assemblies and public protests, the Ministry of Interior may decide to
prohibit or interrupt a protest if it is not properly registered; if it is held in a
prohibited location; or if it incites violence or hatred.
29
For public events,
however, the Chief of Police Administration exercises this power, and may
prohibit or interrupt events under similar circumstances.
30
For all events,
applications to register the event must be made through the local police
department, and the local police provide for public safety and security during the
gathering.
31

The Public Assembly Acts division of assemblies into peaceful assemblies
and public protests versus public events serves the pragmatic purpose of ensuring
each type of event is given the necessary resources. That the discretion over
peaceful assemblies and public protests is regulated by the Ministry of the Interior
rather than local police indicates that Croatia may have a special concern about
these gatherings to delegate the responsibility to a national ministry, rather than
local authorities. Public events, such as large business meetings, may be less
controversial and require fewer resources to regulate.

Substantive Restrictions

The Public Assembly Act contains several substantive restrictions on
freedom of expression and freedom of assembly in Croatia. The Act places more
restrictions, and in much greater detail, on peaceful assemblies and public protests

25
Public Assembly Act, art. 4 (Croatia, 1999), available at http://narodne-
novine.nn.hr/clanci/sluzbeni/1999_11_128_2020.html. .
26
27
28
novine.nn.hr/clanci/sluzbeni/1999_11_128_2020.html..
29
30
Public Assembly Act, art. 28 (Croatia, 1999).
31
Public Assembly Act, art. 5, 7, 26, 27(Croatia, 1999).
6
than it does on public events.
32
Controversial amendments to the Public Assembly
Act in 2005 prohibited assembly and protest within one hundred yards of certain
government buildings. This reflects a trend in states to restrict protests near high-
level government buildings, including legislative and executive offices. Such
restrictions reflect the tension between security concerns and freedom of assembly,
and the use of security concerns as justifications to broadly restrict freedom of
assembly.

Public protests in Croatia are prohibited in certain areas, including national
parks, schools, hospitals, and areas where protest could impede the flow of traffic
or pedestrians.
33
However, in cities with more than 100,000 inhabitants, the
appropriate representative body may designate a place where public protests may
be held without prior notification.
34
In the capital city of Zagreb, protests are
always permitted in French Republic Square.
35
The 2005 amendments prohibit
public assembly and peaceful protest within one hundred yards of state buildings
housing the Croatian Parliament, the President, and the Government of Croatia.
36

The prime minister at the time, Ivo Sanader, cited threats to security and the need
to protect state officials and buildings as the reasoning behind the adoption of this
restriction.
37

Peaceful assemblies and public protests must designate an organizer or
representative.
38
Organizers are responsible for providing adequate security
services to ensure that the protest remains peaceful, and must pay the cost for
additional security measures if they are required.
39
Public protests must be
registered five days beforehand, though in exceptional circumstances this can be
shortened to forty-eight hours.
40
The law does not include what constitutes
exceptional circumstances. The application for registration must include personal

32
See generally Public Assembly Act (Croatia, 1999),
33
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia, para. 12.1 (2011)
(citing Public Assembly Act, art. 11 (Croatia, 1999)), available at
sljeme.usud.hr/usud/prakswen.nsf/92b93a268fe63c89c1256e2f000538db/c12570d30061ce54c12578c500340c83/$F
ILE/U-I-295-2006.pdf .
34
(citing Public Assembly Act, art. 12 (Croatia, 1999).
35
(citing Public Assembly Act, art. 13 (Croatia, 1999).
36
Amendments to the Public Assembly Act (Croatia, 2005), available at http://narodne-
37
Croatian Authorities Continuously Violate the Freedom of Assembly, Human Rights House Croatia (September
6, 2010), available at http://humanrightshouse.org/Articles/14984.html.
38
39
Public Assembly Act, art. 16, 30 (Croatia, 1999).
40
7
information of the organizer; the time and place designated for the gathering; and
the number of participants.
41
Public events must designate an organizer and must
also be registered, but within seven days of the event, rather than five as prescribed
for peaceful assembles and public protests.
42
Public events are otherwise not
restricted to the same extent as peaceful assemblies and public protests.

Laws regulating public protests in Croatia largely track with other European
states, though the strict restrictions on the locations of protests have caused
controversy. Furthermore, the Public Assembly Act puts the responsibility for
security on the organizer of the protest, unlike some states that require local police
to provide security for approved protests. This can be a serious burden and risk for
the organizers, which may prevent some organizations from staging protests.

Application

For the most part, Croatias restrictions on freedom of expression and
freedom of assembly comply with the constitutional guarantees and those provided
in European instruments. However, Croatian authorities have been criticized for
the restrictions introduced in the amendments adopted in 2005, and for the overly
strict enforcement of the Public Assembly Act.
43

In April 2007, representatives of the civil society groups Iskorak and Kontra
peacefully handed out flyers promoting the human rights of same-sex couples
outside of the Croatian Parliament building.
44
Police asked them to leave, and they
refused.
45
Within a few days, the Zagreb police initiated proceedings charging the
protestors with violation of the amended Public Assembly Act.
46
In November
2007, seven civil society groups issued a statement condemning both the
amendments to the Public Assembly Act and their enforcement, noting that though
the European Convention on Human Rights allows for restrictions of freedoms
under some circumstances, the methods chosen must be absolutely necessary and

41
42
Public Assembly Act, art. 25-31 (Croatia, 1999).
43
Statement: Prosecution for Public Assembly at St. Marks Square, INTERNATIONAL LESBIAN, GAY, BISEXUAL,
TRANS AND INTERSEX ASSOCIATION EUROPE (November 30, 2007), available at http://www.ilga-
europe.org/home/guide/country_by_country/croatia/statement_prosecution_for_public_assembly_at_st_mark_s_squ
are.
44
TRANS AND INTERSEX ASSOCIATION EUROPE (November 30, 2007).
45
46
8
must be proportional to the interests at stake.
47
In this case, preventing the
peaceful dissemination of information was not proportionate to the claimed aims of
the restriction, which include national security and protecting government
officials.
48

In January 2008, several civil society groups began to hold protests on
Varsavska Street, a historic area of Zagreb, to protest the governments plans to
build an entry-exit ramp to a shopping center, which would destroy part of the
area.
49
The campaign gradually gained momentum, and from May 19 to June 20,
2010, protests took place 24 hours per day, every day.
50
On July 15, police
arrested and detained 140 protestors.
51
Various non-governmental organizations,
including Amnesty International and Human Rights House, criticized police action
as being in contravention of both the Croatian constitution and the European
Convention on Human Rights.
52
Both groups noted that restrictions on freedom of
assembly must be necessary, proportionate, and prescribed by law, and the police
restrictions on the Varsavska Street protests were not.
53

Croatian authorities have come under domestic and international criticism
for the enforcement of the Public Assembly Act, and for the restrictions within that
act limited protest in front of government buildings. Critics claim that the law is
enforced in a way that is unnecessarily restrictive of the freedom of assembly,
disproportionate to the claimed government interest.

47
48
See Statement: Prosecution for Public Assembly at St. Marks Square, INTERNATIONAL LESBIAN, GAY, BISEXUAL,
49
Croatian Authorities Continuously Violate the Freedom of Assembly, HUMAN RIGHTS HOUSE CROATIA
(September 6, 2010), available at http://humanrightshouse.org/Articles/14984.html.
50
51
52
Croatia: Authorities Must Guarantee Freedom of Assembly, AMNESTY INTERNATIONAL (July 21, 2010), available
at http://www.amnesty.org/en/library/asset/EUR64/004/2010/en/26ae7ddd-19c6-47ff-9294-
70ffd648217c/eur640042010en.html; Croatian Authorities Continuously Violate the Freedom of Assembly, HUMAN
RIGHTS HOUSE CROATIA (September 6, 2010), available at http://humanrightshouse.org/Articles/14984.html.
53
Croatia: Authorities Must Guarantee Freedom of Assembly, AMNESTY INTERNATIONAL (July 21, 2010), available
at http://www.amnesty.org/en/library/asset/EUR64/004/2010/en/26ae7ddd-19c6-47ff-9294-
70ffd648217c/eur640042010en.html; Croatian Authorities Continuously Violate the Freedom of Assembly, HUMAN
RIGHTS HOUSE CROATIA (September 6, 2010), available at http://humanrightshouse.org/Articles/14984.html.
9
Challenges to the Laws

Croatias Constitutional Court has ruled on the substantive constitutionality
of the Public Assembly Act and its amendments. The case discussed the validity
of the ban on protests in front of government buildings, and found that while the
specific law in question was unconstitutional, bans on protests in front of public
government buildings were not necessarily unconstitutional. The Court referenced
other European states with similar restrictions, including blanket bans on protests
in front of certain government buildings and bans which allow for exceptions on a
case-by-case basis.

On July 6, 2011, the Court declared unconstitutional the amendments that
prohibit public protest in St. Marks Square, a central plaza in Zagreb bordered by
the Croatian parliament and seat of Government.
54
These provisions were repealed
on the basis that: 1) though the ban on public protest in St. Marks Square has a
legitimate aim (security), a ban which only applies to public protests with a
political message and not to other public events is discriminatory and therefore
unconstitutional; and 2) given the particulars of St. Marks Square (small, difficult
to access and evacuate, of archeological and historical importance), it may be
appropriate to impose a legal ban on all types of gatherings in St. Marks Square.
55

The Court ruled that the amendments would be invalid as of July 15, 2012.
56
In the
interim, the government may revise the amendments to bring them into line with
the Courts decision.
57
The Court also noted that bans on public assembly in the
vicinity of important government buildings exist in many European states,
including Austria, Belgium, Bulgaria, Czech Republic, Lithuania and Slovakia.
58

Relative bans, where assemblies may be accepted on a case-by-case basis, also
exist in Slovenia and Germany.
59

In spite of its unpopularity within Croatia, the Public Assembly Act has not
been challenged in the European Court of Human Rights. For a new draft of the
Act to survive scrutiny under European and international standards for freedom of

54
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia, para. 52-53 (2011),
available at
sljeme.usud.hr/usud/prakswen.nsf/92b93a268fe63c89c1256e2f000538db/c12570d30061ce54c12578c500340c83/$F
ILE/U-I-295-2006.pdf .
55
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia, para. 52-53 (2011)..
56
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia para. II (2011),
57
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia para. II (2011).
58
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia, Enclosure 1, para. 5
(2011).
59
Review of the legislation: U-I/295/2006, The Constitutional Court of the Republic of Croatia, Enclosure 1, para.
4.2 (2011).
10
assembly, the ban on protests St. Marks Square must be clearly reasoned to show a
legitimate aim, must be proportionate to that aim, and must apply equally to all
protests.
60

Although Croatias Public Assembly Act has not yet been challenged in the
ECHR, its constitutional courts decision in favor of the publics right to hand out
information indicates that the states judicial mechanism is safeguarding the
freedom of assembly. The Courts suggestion that all gatherings in St. Marks
square be banned because of the squares size could also help ensure that the
regulations are implemented to ensure safety, rather than censorship.

Serbia

Serbia, like Croatia, has a law regulating public assembly that is currently
under fire both for its content and for its application. Though the Public Assembly
Act of Serbia is currently under legislative review, state authorities continue to
apply the law in a discriminatory manner which is seemingly based on the content
of the protest and the identity of the participants involved.

Legal Framework

The right to freedom of assembly is guaranteed in Serbias Constitution.
61

However, this right may be restricted if necessary to protect public health, morals,
rights of others or the security of the Republic of Serbia.
62
The Constitution also
notes that while assemblies held indoors are not subject to prior reporting,
assemblies outdoors must be reported to the appropriate state body.
63

The Public Assembly Act of Serbia is used to regulate public assembly and
protests in Serbia. Though the law guarantees freedom of assembly, the content of
the law primarily pertains to regulation of and required procedures for holding
public assemblies.
64
The Public Assembly Act splits responsibility for regulation
of public assemblies between the national government and the governments of
municipalities and cities, much like Croatia. The Ministry of Interior is

60
nd
AND THE VENICE COMMISSION para. 39-42 (June 4, 2010), available at www.venice.coe.int/docs/2010/CDL-
AD(2010)020-e.pdf.
61
SERBIA CONST. art. 54 (2006), available at
http://www.srbija.gov.rs/cinjenice_o_srbiji/ustav_odredbe.php?id=218.
62
SERBIA CONST. art. 54 (2006).
63
SERBIA CONST. art. 54 (2006).
64
Public Assembly Act, art. 1 (Serbia, 2005), available at http://legislationline.org/documents/action/popup/id/6883.
11
responsible for providing the security presence necessary to protect the health and
safety of assembly participants and other citizens.
65
The Ministry of Interior is also
responsible for evaluating assembly organizers applications requesting to hold the
assembly, and for determining whether to approve those applications.
66

Municipalities and cities in Serbia were required to issue certain regulations
on public assemblies within fifteen days of the entry into force of the law,
pertaining to locations suitable for protests, deposits to cover protest costs, and
security.
67
Any public services required to organize the public assembly, with the
exception of those provided by the Ministry of the Interior, are provided by
municipalities and cities.
68

Serbias legal framework for restricting freedom of assembly is similar to
Croatias in that its restrictions are based on public safety. Serbias division of
responsibility between the Ministry of the Interior and the municipalities is
strikingly similar to Croatias framework. This division suggests that the
government believes that the decision of who gets to hold public protests is more
of a national concern, while the actual logistics of protests should be handled by
the local authorities.


Serbias Public Assembly Act contains several substantive restrictions on
freedom of expression and freedom of assembly. The law provides for an
elaborate process of notifying the authorities about the assembly; restrictions on
assembly and processions; bases for termination of the assembly; and penal
provisions for violations of the Act.
69
Serbias comprehensive description of
procedures is similar to Spains law, which also provides for a complicated
registration process. Serbias process for notifying authorities of a gathering could
be used to dissuade people from attempting to have a gathering in the first place.

Municipalities and cities are required to designate specific locations that are
acceptable to use for public assembly.
70
These locations must be accessible for a
gathering of an unknown number of persons, in which the assembly does not cause
obstruction of public traffic, threat to health, public moral or safety of person and

65
Public Assembly Act, art. 5 (Serbia, 2005).
66
67
68
69
Public Assembly Act (Serbia, 2005).
70
12
property, where the flow of traffic can be temporarily altered, and where it is
possible to protect the health and safety of persons and property.
71
Public
assemblies may not be held near the Federal Parliament or the National Parliament
immediately before or during parliamentary sessions.
72

The legal entity or individual responsible for organizing the public assembly
must submit an application to the local office of the Ministry of Interior in the area
in which the assembly will be held, and provide a copy for the municipality or city
as well.
73
The application must be submitted at least forty-eight hours in advance
generally, and five days in advance when the assembly will take place in an area
where public transport takes place and alteration of the flow of traffic will be
required.
74
The application must include information on the estimated number of
participants, the chosen location, date, time, and duration, and the purpose for, and
the measures taken by the organizer to ensure the order of, the assembly.
75

Organizers of public assemblies are required to pay a deposit to fund any
additional public services used to support the assembly, and municipalities and
cities are required to determine the amount of this deposit designate and the local
agency to which it will be paid.
76
If the application is missing any necessary
information or the deposit for the assembly, the organizer must submit a new
application, and the public assembly may be delayed.
77

Serbian public authorities have broad authority to cancel approved protests,
though this authority is subject to some oversight by the courts. The Ministry of
the Interior may ban public assemblies that address violent changes of the
constitutional order, violation of territorial integrity and autonomy of the Republic
of Serbia, breach of human and civil rights and freedoms guaranteed by the
Constitution, provoking and inciting national, racial and religious animosity and
hatred.
78
In these cases, the ministry must submit its application to ban the
assembly to the district court, with appeals elevated to the Supreme Court of
Serbia.
79
Authorities may also ban those assemblies that obstruct public
transportation or pose a threat to health, public moral or safety of persons and

71
72
73
Public Assembly Act art. 6 (Serbia, 2005).
74
75
76
77
78
79
13
property, without having to submit these claims to the court.
80
Assemblies that
are already in session may be terminated for the reasons above as well.
81
Any
assembly that was not previously registered may be terminated at the will of the
authorities.
82

Serbias substantive restrictions on freedom of assembly demonstrate
concern for public safety while leaving room for the state to deny permits for
protests with objectionable content. In particular, the law could be construed to
suppress political opposition by denying permits to anti-government protesters
under the guise of protecting the autonomy of the state. The laws included
purpose of protecting morality could also be used to justifying the denial of permits
to unpopular social movements.

Application

In recent years, the authorities in Serbia have justified banning or
terminating public protests by alleging that they threaten public order and safety.
83

However, the types of protests that are typically banned or terminated tend to be
those that are politically controversial or unpopular, claiming that these protests
pose a threat to public safety because nationalist right-wing groups often stage
violent counter-protests.
84
This therefore raises a question of whether authorities
are using the disruption caused by nationalist right-wing groups to justify
restricting the freedom of expression of citizens whose rights should not only be
guaranteed in Serbia, but whose rights should be affirmatively protected by the
government.
85

The UN Special Representative of the Secretary-General on the Situation of
Human Rights Defenders, Hina Jilani, noted that in July 2007, Serbian authorities
shut down a demonstration staged by a coalition of NGOs called Facing the
Past.
86
This group, which campaigned to challenge the culture of impunity for

80
81
82
83
Banning of Belgrade Pride is a Dark Day for Human Rights in Serbia, AMNESTY INTERNATIONAL (September 30,
2011), available at http://www.amnesty.org/en/news-and-updates/banning-belgrade-pride-dark-day-human-rights-
serbia-2011-09-30.
84
2011)..
85
2011).
86
Report of the Special Representative of the Secretary-General on the situation of human rights defenders, Hina
Jilani: Mission to Serbia, including Kosovo, A/HRC/7/28/Add.3, para. 23 (March 4, 2008), available at
http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/7/28/Add.3&Lang=E.
14
war crimes in Serbia and draw attention to the tenth anniversary of the Srebrenica
massacre, was also subject to an extensive campaign of intimidation and
harassment by nationalist groups.
87
By contrast, in March 2009, the police force of
Leskovac, supported by the Police Administration of the City of Leskovac and the
Presidency of the Independent Police Union of the Republic of Serbia, organized a
demonstration to protest the arrest for war crimes of former members of 37th
Battalion of the Serbian Special Police Unit.
88
The protestors, who were public
officials, reportedly threatened to kill any witnesses in the case, but the protest was
not dispersed and the Ministry of Interior did not investigate.
89

In 2009, authorities banned a gay pride parade after receiving threats from
nationalist groups.
90
Many observers, including the European Parliament's
rapporteur for Serbia, Jelko Kacin, criticized the authorities decision to ban the
parade, saying that it symbolizes a failure of the rule of law, and the governments
willingness to bow to nationalist right-wing demands.
91
Another gay pride parade
scheduled to take place on October 1-2, 2011 was canceled due to concerns that
ultranationalists had planned anti-gay protests in retaliation.
92
In announcing the
ban, Serbian Interior Minister Ivica Dacic assured the public that the ban on public
assembly was due to concerns about public safety, rather than the purpose or
content of the protest.
93
This justification was based on the fact that gay pride
parades that took place in 2001 and 2010 resulted in severe violence and extensive
damage in Belgrade.
94

Serbian authorities handling of lesbian, gay, bisexual, and transsexual
(LGBT) assemblies and protests illustrates the difficulty in determining whether
restrictions on freedom of assembly are based on content, or based on legitimate
concerns about public safety. Gay pride parades and other protests with politically
controversial undertones tend to get violent and require dispersal not because of the

87
Serbia: Briefing to the Human Rights Committee, AMNESTY INTERNATIONAL (December 19, 2009), available at
http://www.amnesty.org/en/library/asset/EUR70/015/2009/en/578bf1e8-118b-44c5-83fe-
c71b8a1afe30/eur700152009en.html#4.3.%20Attacks%20on%20human%20rights%20defenders|outline.
88
Serbia: Briefing to the Human Rights Committee, AMNESTY INTERNATIONAL (December 19, 2009).
89
Serbia: Briefing to the Human Rights Committee, AMNESTY INTERNATIONAL (December 19, 2009).
90
2011).
91
Gay Pride Ban Shows Serbia Failed to Ensure Rule of Law: MEP, EU BUSINESS (October 3, 2011), available at
http://www.eubusiness.com/news-eu/serbia-gays-rights.cn5.
92
Aleksandar Vasovic, Serbia Bans Gay Parade, All Gatherings, REUTERS (September 30, 2011), available at
http://www.reuters.com/article/2011/09/30/us-serbia-parade-idUSTRE78T2C520110930.
93
Aleksandar Vasovic, Serbia Bans Gay Parade, All Gatherings, REUTERS (September 30, 2011), available at
http://www.reuters.com/article/2011/09/30/us-serbia-parade-idUSTRE78T2C520110930.
94
Serbia Bans Gay Pride, Anti-Gay Protest, EU BUSINESS (September 30, 2011), available at
http://www.eubusiness.com/news-eu/serbia-gay-rights.cm8.
15
conduct of the protestors, but because they come under attack by ultranationalists.
Serbias treatment of LGBT events versus the protest against the arrests of alleged
war criminals illustrates the fear of using a concern for public safety to justify
freedom of assembly restrictions. The state had reasons to evoke the public fear
excuse in both cases, but did not deny a permit to the group with more supporters
in the government. The uneven application of the law suggests that Serbia may be
using their regulations to censor groups or movements that are either unpopular in
the state or with the government.

Challenges to the Law

In a 2010, Serbias Ministry of Human and Minority Rights asked the
Venice Commission (VC) and Organization for Security and Co-operation in
Europes Office for Democratic Institutions and Human Rights (ODIHR) to review
the Public Assembly Act and issue recommendations.
95
In a Joint Opinion, the
VC and ODIHR expressed concern that the Act requires a notification process that
is too extensive and rigid; imposes considerable financial hardship on organizers
(by providing that they must bear the costs of maintaining public order); bars the
holding of spontaneous assemblies; provides for restrictions and bases for
termination that are too broad; and does not guarantee freedom of assembly for
non-citizens.
96
The Joint Opinion generally criticized the Act for creating a system
whereby the right to public assembly is a privilege to be granted to citizens only
when permission is given by the authorities, rather than a right that is guaranteed
by the Constitution of Serbia, the European Convention on Human Rights, and the
ICCPR.
97

A Working Group within the Ministry of Human and Minority Rights of the
Republic of Serbia is now in the process of revising the Public Assembly Act,
taking into consideration the recommendations issued in the Joint Opinion of the
VC and OSCE/ODIHR.
98
However, in order to guarantee freedom of assembly in
Serbia, both the content and authorities application of this law must change.
Under the status quo, Serbian authorities seem to be using the law to justify

95
Annual Report of Activities, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (September 7, 2011),
available at
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1813795&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=E
DB021&BackColorLogged=F5D383#P605_87774.
96
Request by the Ministry of Human and Minority Rights for a joint VC - OSCE/ODIHR opinion on the Public
Assembly Act of Serbia, COUNCIL OF EUROPE OFFICE IN BELGRADE (July 2010), available at
http://www.coe.org.rs/eng/news_sr_eng/?conid=1948.
97
Annual Report of Activities, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (September 7, 2011).
98
Annual Report of Activities, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (September 7, 2011).
16
restrictions on protests with unpopular or controversial content, in contravention of
international and European principles.
99

While Serbias laws on public assembly are generally similar to Croatias,
the laws have been applied unevenly to different kinds of social and political
groups. Serbia is, however, showing signs of possible change by redrafting its
public assembly law. Another sign of possible change is that the government
asked international human rights bodies to evaluate its laws and make
recommendations. Serbias human rights image could be improved slightly if the
redrafted law on public assemblies solves some of the problems that have resulted
in uneven application.

Slovenia

Slovenias substantive regulations of public protest by law are in line with
that of other European states. As opposed to Croatia and Serbia, Slovenias legal
framework puts more power in the hands of local authorities, rather than national
authorities. This allows local authorities to be more flexible in their application of
the law. Furthermore, the law is applied consistently with international and
European principles, and therefore has not been challenged by courts or European
authorities.

Legal Framework

The Constitution of Slovenia guarantees freedom of assembly, but allows
restrictions to protect national security and public safety.
100
Public assembly and
protest in Slovenia is regulated by the Act on Public Assembly, which reaffirms
the constitutional right to freedom of assembly in Slovenia, and sets forth in detail
how the government must protect this right.
101
It goes beyond the protections of
some other states to guarantee this right for aliens and foreign legal entities, but
requires that aliens obtain permits for their public gatherings.
102
Permits are also
required for certain types of events, such as international sports events, events
where open fire is used, and events where more the 3000 participants are
expected.
103

99
Gay pride Ban Shows Serbia Failed to Ensure Rule of Law: MEP, EU BUSINESS (October 3, 2011), available at
http://www.eubusiness.com/news-eu/serbia-gays-rights.cn5.
100
SLOVENIA CONST. art. 42 (2006), available at http://www.dz-rs.si/index.php?id=351&docid=25&showdoc=1 .
101
Act on Public Assembly, art. 1 (Slovenia, 2005), available at
http://legislationline.org/documents/action/popup/id/6486.
102
Act on Public Assembly, art. 3 (Slovenia, 2005).
103
17

According to the Act on Public Assembly, the Slovenian government is
responsible for issuing regulations under several provisions of this Act.
104
This
authority is spread to different agencies based on the substance of the regulations.
The minister responsible for administration prescribes the application process for
registration and permits for assemblies.
105
The minister responsible for health may
prohibit assembly in certain public places if it poses a threat to public health and
safety.
106
The minister for the environment is responsible for regulating the use of
sound-amplifying equipment and general noise control.
107
The minister for home
affairs is responsible for actually issuing all of the regulations provided in the
Act.
108

Furthermore, the Ministry of the Interior supervises and implements all
police force duties.
109
While the Ministry of the Interiors involvement is similar
to Croatia and Serbia, the Ministry in Slovenia plays less of a role. Under the Act
on Public Assembly, organizers of public assemblies, events, and protests must
register with the local police station.
110
Police are responsible both for maintaining
public order and for ensuring that participants in protests are safe and can continue
their activities unobstructed.
111
Police are also responsible for directly regulating
and instructing participants in protests that are unregistered and/or spontaneous,
and for dispersing gatherings that are prohibited or must be terminated.
112

The police supervise the execution of the Act, working with the competent
state authorities as described above.
113
The Act also delegates to municipalities
and other local communities responsibility for certain regulations. Applicants who
register their protests must notify the appropriate local authorities.
114
Local
communities are also responsible for issuing regulations with regard to
spontaneous street performances.
115

104
Act on Public Assembly, art. 9, 43 (Slovenia, 2005).
105
106
107
108
Act Amending the Act on Public Assembly, art. 16 (Slovenia, 2005), available at
109
Police Act, art. 2 (Slovenia, 1998), available at http://www.legislationline.org/documents/action/popup/id/3827.
110
111
Act on Public Assembly, art. 28-29 (Slovenia, 2005).
112
113
114
115
18
Slovenias framework only divides some responsibilities between a national
ministry and local officials, unlike Croatia and Serbia which give considerable
power to the national government. Slovenias laws also give local police more
power to restrict freedom of assembly than Croatia and Serbia. The concentration
of power in the municipalities may indicate that Slovenia is less concerned that
local authorities will abuse their power by restricting too many or too few protests.


The Act on Public Assembly provides guidelines for registering assemblies
and protests and obtaining a permit; reasons for prohibition or termination of
gatherings; the duties of police at gatherings; and penal provisions for violations of
the Act.
116
The Act divides types of public gatherings into two categories, much
like Croatia. The categories, however, have somewhat different meanings. The
substance of Slovenias laws is generally similar to Croatia and Serbia in terms of
the process to register and obtain permits for public gatherings.

Like Croatias legislation, the Act distinguishes between two types of
assembly: public gatherings and public events.
117
Public gatherings are
defined as assemblies intended to express political or social opinions, while public
events are assemblies for cultural, sport, entertainment, educational, or religious
purposes.
118

Each assembly must have an organizer and a leader. The organizer must
register the assembly, and hire a security service for the assembly.
119
The leader
ensures that the assembly follows the details set forth in the registration
application, and that order is maintained.
120
Public gatherings must be registered
three days in advance, and public events must be registered five days in advance.
121

Both the registration and permit applications require the following information:
personal information of the organizer, leader, and head of security; place, time,
duration and program for the assembly; number of participants; and information on
how the organizer intends to provide public order, including the number of security
guards to be used.
122
The organizer must also provide proof of permission to use
private property, where applicable, and proof that the local community has been

116
Act on Public Assembly (Slovenia, 2005).
117
118
119
120
121
122
19
notified.
123
Additional permits are required for excessive noise and interruption of
traffic.
124
No deposit or fee is required for registration.
125

Assemblies that are organized for the purposes of committing or promoting
crime, or threaten public safety, order, or traffic are prohibited.
126
Assemblies held
in the vicinity of protected buildings are prohibited if they pose a threat to the
protection of the building.
127
Protected buildings are buildings that have had
special regulations passed to protect them.
128
Authorities may also prevent
assemblies where the organizer has not taken sufficient care to ensure the assembly
will not adversely affect public safety, the environment, public transport, or
property.
129
Assemblies that deviate significantly from the program set forth in the
registration application, or lead to any of the results listed above for prohibited
assemblies, may be terminated at the discretion of the police.
130

Assemblies that are unregistered, unorganized, or require a permit and do
not have one may proceed, monitored by police.
131
Participants in these cases must
follow the directions of the police.
132
Interference with lawful public assemblies is
prohibited.
133
Few other states laws allow unregistered assemblies to continue. In
the other states discussed, unorganized or unregistered assemblies may be ended by
the police. Spain, for instance, had an issue with an unregistered protest before
recent elections when 30,000 people gathered in the streets after being denied a
permit.
134
In that case, the government did not send the police in out of fear of
violence.

123
124
125
126
127
128
129
130
131
132
133
134
Spaniards Protest before Elections Despite Ban, REUTERS (May 22, 2011), available at
http://www.reuters.com/article/2011/05/22/us-spain-election-protests-idUSTRE74K2K920110522.
20
Application

In the application of the Act on Public Assembly, Slovenian authorities have
acted in accordance with the law, and show respect for freedom of assembly.
135

This is evidenced in their treatment of LGBT events compared to Serbias
treatment of the same issue. In contrast with Serbia, Slovenian authorities have
never banned an LGBT event, and have severely condemned the periodic violence
or disrespect toward participants in these events.
136
Similarly, in May 2010,
students organized a mass protest in Ljubljana in opposition to the proposed Mini
Jobs Act, which sought to limit the number of jobs and the hours of work available
to students.
137
Around 8,000 students were present at the protest, which turned
violent when a group of students marched to the Parliament and threw stones at the
building, damaging it.
138
Police monitored the protest but did not intervene.
139

This is due to the fact that the content of the Act on Public Assembly has not
been overly restrictive, and authorities do not apply it in an overly restrictive or
discriminatory way.
140

Slovenias restrictions on public assembly have not been applied to restrict
social movements, as evidenced by their allowance of LGBT events. The openness
towards LGBT events in Slovenia contrasts with Serbias restrictions on these
events, which theoretically pose the same public safety concerns. Slovenias
restrictions on freedom of expression have not been challenged by European or
international authorities. The lack of challenges to the law domestically or in the
ECHR demonstrates that the law is likely applied more evenly and less
restrictively than Serbias law.

135
Arne Marjan Mavi and Matej Avbelj, Legal Study on Homophobia and Discrimination on Grounds of Sexual
Orientation Slovenia, EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, at 4 (February 2008), available at
fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_SI.pdf.
136
137
Damjan Lajh. Nations in Transit 2011: Slovenia, FREEDOM HOUSE, at 528 (2011), available at
www.freedomhouse.org/images/File/nit/2011/NIT-2011-Slovenia.pdf.
138
Slovenian Students Protest Bill Curbing their Work, THE ASSOCIATED PRESS (May 19, 2010), available at
http://www.businessweek.com/ap/financialnews/D9FQ09683.htm.
139
Slovenian Students Protest Bill Curbing their Work, THE ASSOCIATED PRESS (May 19, 2010), available at
http://www.businessweek.com/ap/financialnews/D9FQ09683.htm.
140
21
Slovenias laws on public assembly put more control in the hands of the
municipalities, rather than keeping discretion with the national government. The
core principle of the law, to protect public safety, is aligned with Croatia and
Serbia, but the less restrictive implementation could derive from the lack of
centralized debate over protests within the national government. Municipalities are
able to assess the concerns about a protest based on local conditions, rather than
assessing the concerns on the national level.

Hungary

Though Hungarys Act III of 1989 on the Right of Assembly contains
restrictions that are in line with those employed by other states, Hungarian
authorities are often challenged for their arbitrary, overly broad, and unjustified
bans on certain types of assembly.
141
Both the Hungarian courts and the European
Court of Human Rights have overturned bans on these grounds.
142
The successful
court challenges demonstrate tension between those who must enforce the
regulations on the ground and the courts, which must safeguard the peoples rights.

Legal Framework

The Constitution of Hungary provides for the right to peaceful assembly,
and to the free exercise of this right. A vote of two-thirds of Parliament is required
to pass a law on public assembly.
143
The enhanced number of supporters needed to
pass a law on public assembly in Hungary indicates how highly the states
institution regards freedom of assembly.

Act III of 1989 on the Right of Assembly (the Assembly Act) regulates
freedom of assembly in Hungary. The Assembly Act opens with a declaration that
the law is in line with both the constitution and ICCPR.
144
Freedom of assembly
under this Act is guaranteed to Hungarian citizens, plus foreign nationals who have

141
See Pride March to the Parliament Given Green Light, HUNGARIAN CIVIL LIBERTIES UNION (February 27, 2011),
available at http://tasz.hu/en/freedom-of-assembly/budapest-pride-march-parliament-given-green-light; Case of
Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05 (2009), available at
http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=38249002&skin=hudoc-
en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=30018&highlight=.
142
See Pride March to the Parliament Given Green Light, HUNGARIAN CIVIL LIBERTIES UNION (February 27, 2011);
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05 (2009).
143
HUNGARY CONST. art. 62 (1949), available at http://www.mkab.hu/index.php?id=constitution.
144
Hungary: Freedom of Assembly, LEGISLATION ONLINE (October 2006) (citing Act III of 1989 on the Right of
Assembly (Hungary, 1989)), available at http://legislationline.org/topics/country/25/topic/15..
22
the authorization to reside in Hungary.
145
The Act covers peaceful gatherings,
marches, and demonstrations, and does not cover sporting, religious, cultural, or
family events.
146

The police are primarily responsible for regulating public assembly. Under
the Assembly Act, written notification of the assembly must be made to the police
department in the area where the assembly will be held or, if the assembly is in
Budapest, to the Budapest Police Commission.
147
Assembly organizers may
request that police assist in maintaining order.
148
Additionally, under Act XXXIV
on the Police, Police Officers may choose to disperse crowds if the crowd is
unlawful or engages in unlawful conduct.
149

Like Slovenias law, Hungarys assembly law gives a lot of discretion to
local authorities, rather than to the national government. Unlike Slovenia, the
police have the primary responsibility of regulating public assembly, rather than
the municipalities in general. Hungarys law does not differentiate between
different types of assemblies, unlike Croatias law. The purpose of protecting
public safety is present in Hungary, as it is in Croatia, Serbia, and Slovenia.


The Assembly Act contains substantive restrictions related to the notification
process; responsibilities of the organizer; grounds for prohibition or termination of
an assembly; and a process for appeal. Many of the restrictions are similar to those
in Croatia, Serbia, and Slovenia. Like Slovenia, the law gives local authorities
more power by requiring registration with local police. Unlike the other states,
event organizers are given more responsibility by requiring them to provide
security and end the event if safety becomes a serious concern.

145
Assembly, 5 (Hungary, 1989)).
146
Assembly, 2-3 (Hungary, 1989))..
147
148
149
Act XXXIV of 1994 on the Police, 58-59 (Hungary, 1994), available at
23
Assembly organizers must notify their local police department in writing
three days before the event.
150
The notification must include: the date, start and
finish time, location, route (if a march), purpose, agenda, name of the organizer,
and anticipated number of participants.
151
Spontaneous public assemblies may
only be held on private property.
152
Organizers are also responsible for providing
security services, dissolving the assembly if public safety is threatened, and jointly
(with the relevant participants) reimbursing the authorities for any damages.
153

Assemblies are banned if participants engage in criminal conduct or infringe
upon the rights and freedoms of others.
154
They may also be prevented if they are
expected to interfere with the functioning of Parliament or the courts, or if they
interfere with the flow of traffic and it cannot be rerouted.
155
Police may terminate
an assembly if it leads to the commission of a crime, if it violates the rights of third
parties, if participants are armed, or if it is held without prior notification where
prior notification is necessary.
156
Organizers may appeal a decision by the police
to ban or terminate an assembly by filing a complaint with a court within three
days. They will receive a decision with three days, which cannot be further
appealed.
157

Hungarys law is substantively similar to Croatia, Serbia, and Slovenias
laws. The law does not indicate that protests may be confined to designated areas,
unlike in Croatia and Serbia. Additionally, the detailed appeal process
demonstrates the states high regard for freedom of assembly by not simply
making all initial decisions final. The state gives its citizens a second chance to
state their case for their public gathering.

150
151
152
Assembly, 15 (Hungary, 1989))..
153
Assembly, 11-13 (Hungary, 1989)).
154
155
Assembly, 8 (Hungary, 1989))
156
157
Hungary: Freedom of Assembly, LEGISLATION ONLINE (October 2006) (Act III of 1989 on the Right of Assembly,
13 (Hungary, 1989)).
24
Application

In practice, the Hungarian police often attempt to ban or terminate public
assemblies on various grounds. Though the Assembly Act requires that police
issue an order specifying the reasoning behind the ban, in practice this requirement
is not always followed, and civil society organizations often move to challenge the
ban.
158

In March 2006, civil society organizations organized demonstrations to
coincide with Polish President Lech Kaczynsks visit to Hungary, in an attempt to
draw attention to the presidents homophobic policies.
159
The organizations
submitted notification of the protest ahead of time, but on the day of the protest,
police obstructed protestors by prohibiting access to areas indicated in the
notification of the protest.
160
The police did not issue a report or provide reasoning
for their interference with the rights of the protestors.
161
In response, Amnesty
International sued the National Police Headquarters.
162
On July 13, 2007, the
Hungarian Metropolitan Court ruled in favor of the protesting organizations, but
only to the extent that it required the police to follow the proper procedure for
banning protests.
163

In February 2011, the Budapest Police issued an order banning a gay pride
march planned for June 18, on the grounds that it would restrict the flow of
traffic.
164
The march had been planned over a year in advance but when protestors
asked to extend the route closer to Parliament, the police banned the entire event.
165

Amnesty International noted that this justification was unreasonable, and the
complete restriction of protestors right to assembly for the purpose of maintaining

158
159
No Substantive Ruling in the Amnesty International vs. National Police Headquarters Lawsuit, HUNGARIAN
CIVIL LIBERTIES UNION (July 16, 2007) available at http://tasz.hu/en/news/97.
160
CIVIL LIBERTIES UNION (July 16, 2007).
161
162
163
164
Hungary: Authorities Must Ensure Freedom of Peaceful Assembly and Non-Discrimination of LGBT People,
AMNESTY INTERNATIONAL (February 16, 2011), available at
http://www.amnesty.org/en/library/asset/EUR27/002/2011/en/fc7c5d4d-deac-4a48-a4ff-
ec7486ea2fa0/eur270022011en.html.
165
Hungary: Authorities must ensure freedom of peaceful assembly and non-discrimination of LGBT people,
AMNESTY INTERNATIONAL (February 16, 2011).
25
the flow of traffic was a disproportionate measure.
166
The Hungarian Civil
Liberties Union and the Hungarian Helsinki Committee appealed on behalf of the
protestors, and the Metropolitan Court overturned the ban.
167

In September 2011, police banned trade unionists from protesting in front of
Parliament and the Buda Castle, on the grounds that they would restrict the flow of
traffic.
168
On September 21, the Hungarian Capitol Court held that the police
reasoning behind the ban was insufficient to justify a complete ban.
169
The Court
interpreted the Assembly Act to mean that restrictions placed on freedom of
assembly due to traffic reasons could only be justified by a complete incapacity of
movement, and in this case police assumed incapacitation without investigating
any further.
170
Because the police reasoning was based on assumptions about the
flow of traffic rather than facts, the Court held in favor of the protestors.
171

Despite the similar framework to Slovenia, giving discretion to local
authorities, Hungary has not applied its law as equitably as Slovenia. Like Serbia,
Hungary has used the excuse of public safety to prohibit protests that are unpopular
within the government. However, Hungarys courts have safeguarded the publics
right to hold public protests, much like Croatias courts. The courts responses of
overturning bans expose some possible tension between the police charged with
implementing the law and the courts, which are not involved in the practical
difficulties of regulating protests.

Challenges to the Law

The European Court of Human Rights has also challenged Hungarian police
conduct with regard to freedom of assembly. In the Case of Patyi and Others v.
Hungary, creditors of an insolvent company tried to plan a protest outside of the
prime ministers residence.
172
They submitted written notification to the Budapest
Police four times, and each time the protest was banned on the basis that the

166
Hungary: Authorities must ensure freedom of peaceful assembly and non-discrimination of LGBT people,
AMNESTY INTERNATIONAL (February 16, 2011).
167
Budapest Pride March to the Parliament Given Green Light, HUNGARIAN CIVIL LIBERTIES UNION (February 27,
2011), available at http://tasz.hu/en/freedom-of-assembly/budapest-pride-march-parliament-given-green-light.
168
HCLU Wins Freedom of Assembly Case at Capitol Court, HUNGARIAN CIVIL LIBERTIES UNION (September 21,
2011), available at http://tasz.hu/en/freedom-of-assembly/hclu-wins-freedom-assembly-case-capitol-court.
169
2011).
170
2011).
171
2011).
172
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05, para. 7 (2009).
26
footpath in front of the residence was unsuitable to facilitate a large number of
people without restricting the flow of traffic.
173
With each rejection, the protestors
appealed to the Budapest Regional Court, which in turn upheld the ban on protest
at that location.
174
The European Court of Human Rights held that the police
action violated Article 11 of the European Convention on Human Rights.
175
The
Court reasoned that any interference with freedom of expression and freedom of
assembly must correspond to a pressing social need, and that the measures
chosen for interference be proportionate with the aim pursued.
176
In this case,
maintaining the flow of traffic on a footpath did not justify the continual ban on
freedom of assembly in front of the prime ministers residence.
177

Though Hungarys Assembly Act contains restrictions that are consistent
with those of other European states, state authorities arbitrary bans public
assembly without reasonable justification have been habitually overturned by
courts. Specifically, the jurisprudence of these courts shows that the justification
of disrupting the flow of traffic cannot be relied upon in restricting the right to
freedom of assembly.
178

Spain

Unlike most European states, Spain regulates public assemblies using a
combination of laws those pertaining both to public assembly, and to public
safety. Though the provisions contained in these laws are consistent with those in
other European states, an increase in both the number and intensity of public
protests during the past year has led Spanish authorities to apply these laws in
inconsistent overly restrictive ways.
179

Legal Framework

The Spanish Constitution guarantees the right to peaceful, unarmed
assembly, without prior authorization.
180
Article 21 does provide, however, that in
the case of public demonstrations in places of public transit, prior notification

173
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05, paras. 8-19 (2009).
174
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05, paras. 8-19 (2009).
175
176
177
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05, para 42 (2009).
178
Case of Patyi and Others v. Hungary, Eur. Ct. H.R., Application no. 5529/05, para 43 (2009).
179
Spain: New Reports of Excessive Use of Force by Police against Demonstrators, AMNESTY INTERNATIONAL
(August 22, 2011), available at http://www.amnesty.org/en/library/asset/EUR41/010/2011/en/6c7ad1ed-5f46-443e-
93d3-93c33df60138/eur410102011en.html.
180
SPAIN CONST. art. 21 (1978), available at http://www.senado.es/constitu_i/index.html.
27
should be given to authorities, who can only prohibit demonstrations in cases
where they have well-founded grounds for assuming that there will be danger to
persons or property.
181
That the Spanish Constitution differentiates between
authorization and notification is unique, as most states require notification without
clarifying that it is not for the purpose of authorization.

The right to freedom of assembly is regulated by a combination of
provisions from the Organic Law regulating Right of Assembly (Organic Law
9/1983),
182
and the Organic Law on the Protection of Public Safety (Organic
Law 1/1982).
183
According to Organic Law 9/1983, execution of the laws
regulating assembly is shared jointly between the Spanish General State
Administration and the governments of the seventeen corresponding Autonomous
Communities.
184
Enforcement of regulations is shared jointly between the national
security forces and the police forces of the autonomous regions.
185
Government
authorities and police have an obligation to protect protests against unlawful
interference,
186
terminate unlawful assemblies,
187
and cooperate with the
designated private security forces to ensure public safety.
188

Spains assembly laws depart from the laws of the other states discussed
because of the separation between authorization and notification, and the shared
powers of the national government and the regional authorities. Spains
framework is more like Croatias and Serbias frameworks because not all power is
given to the municipalities.


Spains restrictions on freedom of assembly are based on protecting public
safety and order, like the other states discussed. In addition to the general

181
SPAIN CONST. art. 21 (1978).
182
Spain: Freedom of Assembly, LEGISLATION ONLINE (December 2010) (citing Organic Law 9/1983 on the Right
of Assembly (Spain, 1983)), available at http://legislationline.org/topics/country/2/topic/15.
183
Spain: Freedom of Assembly, LEGISLATION ONLINE (December 2010) (citing Organic Law 1/1992 on the
Protection of Public Safety (Spain, 1992)).
184
of Assembly (Spain, 1983)).
185
of Assembly, additional provision (Spain, 1983)).
186
of Assembly, art. 3 (Spain, 1983)).
187
188
Protection of Public Safety, art. 17 (Spain, 1992)).
28
provisions in the constitution, freedom of assembly in Spain is regulated by two
laws. The laws provide guidance for getting protests approved, appeals, and
logistics, such as security issues.

Organic Law 1/1992 on the Protection of Public Safety requires that
authorities restrictions on freedom of assembly for the purpose of protecting
public safety be proportionate.
189
They must also inform participants before taking
an action, unless the gathering is violent, in which case spontaneous interference is
permissible.
190
Organic Law 9/1983 on the Right to Assembly regulates public
protests by providing a process for notification; obligations for the organizers;
justification for prohibition or termination; and process for appeal.
191
This law
applies to any agreed upon and temporary convention of more than twenty
persons for a specific purpose.
192

Though Organic Law 9/1983, like the Constitution, declares that freedom of
assembly may be exercised without prior authorization of the state,
193
it
nevertheless provides a process for notifying the authorities with regard to the
details of meetings and demonstrations in public places.
194
For public meetings
and demonstrations, notification must be made fewer than thirty and more than ten
days in advance.
195
In cases of extenuating circumstances, where urgency requires
that gatherings take place with less notice, a minimum of twenty-four hours notice
is required.
196
The notification must contain the following information: personal
information of the organizer; date, place, and expected duration of the gathering;
purpose of the gathering; expected impact on the flow of traffic on public roads;
and security services to be provided by the organizer or requested from the

189
Protection of Public Safety, art. 16-17 (Spain, 1992)).
190
Protection of Public Safety, art.16-17 (Spain, 1992)).
191
192
193
194
195
196
29
governing authority.
197
The notification is made to the governing authority, who in
turn will notify the relevant municipal or city government.
198

Unlike Croatia, Serbia, Slovenia, and The Netherlands, the law imposes no
restrictions on date, place, or time of public gatherings, only noting that organizers
may be required to move vehicles associated with the gathering if they block the
flow of traffic on pubic thoroughfares.
199
However, public gatherings may be
banned or terminated if they are in violation of criminal law; if they are a danger to
the public or property; or if any of the participants are wearing paramilitary
uniforms.
200
Alternatively, authorities may change the date, time, duration,
location, and planned itinerary of the public gathering.
201
Should organizers
disagree with the decision of the authorities, they may appeal via an administrative
judicial review procedure within forty-eight hours.
202

Spains process of obtaining a permit to assemble sounds more onerous than
other states, but the substance of the laws is somewhat less restricting. For
instance, Spain does not restrict where gatherings may occur, unlike Croatia and
Serbia. This lack of restrictions may, however, be revoked because authorities
ultimately have the discretion to change the time, date, or place of the gathering.
Overall, the substance of Spains laws is generally consistent with other European
states.

Application

During the past year, Spain has experienced a number of public protests over
unemployment, austerity measures, and other economic problems.
203
The Spanish
authorities have responded in a variety of ways that are questionable with regard to
their application of the law. One response has been to let the people protest

197
198
199
Protection of Public Safety, art. 16 (Spain, 1992)).
200
201
202
203
See Spain Bans Protests Ahead of Sunday Vote, SPIEGEL ONLINE INTERNATIONAL (May 20, 2011), available at
http://www.spiegel.de/international/europe/0,1518,763836,00.html.
30
without interference.
204
This response shows the governments legitimate concern
over public safety because it determined that allowing a banned protest to go
forward may be safer than attempting to break it up. Conversely, the police have
also responded to protests forcefully, showing an uneven application of the
regulations amongst different gatherings.
205

In May 2011, after a particularly volatile week of protests, Spains Central
Electoral Board banned protests on the eve of the May 22 regional and municipal
elections.
206
The authorities cited concern that protests could influence or interfere
with voting as the reason for the ban, and argued that the right to vote in this case
outweighed the general presumption in favor of freedom of assembly.
207
However,
the ban had the opposite effect: the evening before the elections, 30,000 protestors
gathered in Madrid's Puerta del Sol.
208
The government did not send in police to
enforce the ban, likely due to fear of sparking violent clashes.
209

In August 2011, observers reported that police used excessive force to
restrain demonstrators in Madrid.
210
According to Amnesty International, on
August 4, protestors in front of the Ministry of Interior were attacked by police,
who charged at them indiscriminately and hit them with batons.
211
On August 17
and 18, observers shot video footage of police beating seemingly peaceful
protestors with batons.
212
Police also allegedly used force against protestors in
cities across Spain in May and June.
213
As of August 22, the government had not
made inquiries into these allegations.
214
Observers like Amnesty International note
that even during volatile times, when police have an increased obligation to
maintain public safety and order, government authorities and police should still

204
Spaniards Protest before Elections Despite Ban, REUTERS (May 22, 2011), available at
http://www.reuters.com/article/2011/05/22/us-spain-election-protests-idUSTRE74K2K920110522.
205
93d3-93c33df60138/eur410102011en.html.
206
Spain Bans Protests Ahead of Sunday Vote, SPIEGEL ONLINE INTERNATIONAL (May 20, 2011).
207
Spain Bans Protests Ahead of Sunday Vote, SPIEGEL ONLINE INTERNATIONAL (May 20, 2011).
208
Spaniards Protest before Elections Despite Ban, REUTERS (May 22, 2011)..
209
Spaniards Protest before Elections Despite Ban, REUTERS (May 22, 2011).
210
93d3-93c33df60138/eur410102011en.html.
211
(August 22, 2011).
212
(August 22, 2011).
213
(August 22, 2011).
214
(August 22, 2011).
31
operate under a presumption in favor of freedom of assembly.
215
Restrictions
should only be imposed where they are necessary and proportionate under the
circumstances.
216

The content of Spains laws has not been challenged by European
authorities, unlike Hungarys laws. However, as Spanish authorities respond to
on-going public protests by applying the law in increasingly restrictive ways,
condemnation of Spains application of laws by human rights groups is likely to
continue. If the uneven application of the laws continues, a challenge to Spains
laws could occur.

Spains assembly laws generally track international standards and the laws
of other European states. The application of these laws in recent years has been
questionable, but does not seem to have suppressed freedom of assembly in Spain.
That 30,000 protesters gathered in Madrid despite the ban shows that the people
can provide the ultimate check on the governments restrictions by disobeying a
ban. The strong will of the people may lead to conflict with the police charged
with protecting public safety. If the application continues to disfavor freedom of
assembly, an international challenge to the law may arise, similar to the challenges
to Hungarys laws.

The Netherlands

Though the Netherlands has a state Public Assemblies Act to regulate public
assemblies, this law contains few substantive provisions, instead leaving direct
regulation to the municipalities. The Netherlands have not had significant issues
with protests, and is perhaps the least restrictive state discussed. The Netherlands
restrictions are generally similar to the other states, but the Netherlands applies the
restrictions more loosely to allow more protests.

Legal Framework

The Constitution of the Netherlands recognizes the right to freedom of
assembly, which may be curtailed by an Act of Parliament in the interest of
preserving health, order, and the flow of traffic.
217
The right to free assembly in

215
(August 22, 2011).
216
(August 22, 2011).
217
NETHERLANDS CONST., art. 9 (2002), available at
www.rechtspraak.nl/English/Legislation/Documents/ConstitutionNL.pdf.
32
the Netherlands is regulated by the Public Assemblies Act.
218
The Act gives
municipal councils the right to regulate assembly by ordinance.
219
Specifically,
municipal councils are charged with determining when notification of assembly
must be given, and what details must be contained in the notification, similarly to
Hungary and Slovenia.
220

After receiving the notification, the municipal mayor may issue further
restrictions or prohibit the gathering in question, but only if: the notification was
not received on time; the notification lacked sufficient detail; or the proposed
gathering could pose a threat to public health, order, or traffic.
221
A mayor may
also issue instructions during the course of the gathering, and may terminate the
assembly on these bases as well.
222

The Act charges the Ministry of the Interior and the Ministry of Foreign
Affairs with drawing up a list of protected buildings, including embassies,
consulates, and international organizations, where protestors may be prohibited
should their activities interfere with the functions of the organization in question.
223

This restriction on location is similar to restrictions in Slovenia, Croatia, and
Serbia. However, the Act differs from those states because assemblies are only
prohibited if they interfere with the activities of the organization.

The Netherlands Public Assembly Act is similar to Croatia, Serbia, and
Spain by dividing responsibilities between national and municipal levels. The
municipalities, however, do have more power overall in regulating public
gatherings because the local governments can deny permits or issue more
regulations. Like Croatia and Serbia, the Netherlands law restricts where protests
can occur. While on the surface the Netherlands framework looks more like
Croatia or Serbia, it is more of a hybrid of the national versus state model because
the local authorities have more power than the national government.


Though the Public Assemblies Act references restrictive powers, the law
itself contains very few regulations of substance, instead leaving details to the

218
Public Assemblies Act (The Netherlands, 1994), available at
219
Public Assemblies Act, 3 (The Netherlands, 1994).
220
221
222
Public Assemblies Act, 6-7 (The Netherlands, 1994).
223
33
municipalities.
224
However, it does note that content-based restrictions those
relating to the content and purpose of the gathering, rather than the modality of
protest are unconstitutional.
225
The Public Assemblies Act reaffirms the
constitutional guarantee that freedom of assembly will only be abridged in the
interests of public health, traffic, and order.
226
With regard to which types of
gatherings will be subject to restrictions, this law draws a distinction between those
that take place in public, and those that do not.
227
The guidelines provided in this
law only apply to assemblies held for the profession of religion or belief in public
places, or other meeting or demonstrations held in public places.
228

Though the Public Assemblies Act provides that the municipal councils may
decide the circumstances under which prior notice of assembly is required, they are
not required to enforce a system of prior notification.
229
A report of the Danish
Center for Human Rights notes that while authorities in the Netherlands generally
do not require prior notification, it may be to the benefit of the organizer to notify
anyway in order to determine the police presence ahead of time.
230

Application

There are few, if any, reports of banned protests or use of force to suppress
protests in the Netherlands. However, on January 21, 2011 the largest student
protest since 1988 took place in the Hague.
231
Around 11,000 students gathered to
protest against education spending cuts.
232
When some students started to throw
stones and cans at the Parliament building, police on horseback charged at them.
233

No injuries were reported, and the Hague Police Department that the police and
horses were merely deployed to restore calm.
234

224
225
226
227
228
229
The Social Situation Concerning Homophobia and Discrimination on Grounds of Sexual Orientation in the
Netherlands, DANISH CENTER FOR HUMAN RIGHTS (March 2009), available at
fra.europa.eu/fraWebsite/attachments/FRA-hdgso-part2-NR_NL.pdf.
230
The Social Situation Concerning Homophobia and Discrimination on Grounds of Sexual Orientation in the
Netherlands, DANISH CENTER FOR HUMAN RIGHTS (March 2009).
231
Dutch Students Protest Education Cuts, USA TODAY (January 21, 2011), available at
http://www.usatoday.com/news/world/2011-01-21-dutch-education-protests_N.htm.
232
Dutch Students Protest Education Cuts, USA TODAY (January 21, 2011).
233
234
34
The Netherlands may have the least restrictive assembly laws of the states
discussed. This could be because there is less political and social turmoil in The
Netherlands. The Netherlands laws on public assembly, and authorities
enforcement of those laws, have not been challenged by European authorities.
Unlike most of the other states, The Netherlands have allowed most assemblies to
take place without interference or violence, but the success could be partly based
on public trust of the state to allow assemblies.

Conclusion

Though international and European instruments justify certain restrictions on
freedom of assembly, state practice varies widely in how these restrictions are
applied. Many state laws contain similar regulations relating issues such as
notification, the responsibilities of organizers, grounds for prohibition or
termination, and limitations on time, place, and location, but some states apply
these restrictions in a discriminatory or disproportionate manner. The restrictions
that are most often challenged are those that are applied in a discriminatory or
arbitrary manner, or are disproportionate to the articulated aim.

Comparative Regulation of Public Protests

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REGULATION OF PUBLIC PROTESTS:

COMPARATIVE STATE PRACTICE

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