Article 21: Freedom of Assembly

INTRODUCTION Page 591

THE RIGHT OF PEACEFUL ASSEMBLY 594
LIMITATION PROVISIONS 596
IMPLEMENTATION 606
CONCLUSION 608

Covenant Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.
Comparable Provisions in Other International Instruments
European Convention: Article 11.
American Convention on Human Rights: Article 15.
African Charter on Human and Peoples’ Rights: Article 11.

INTRODUCTION
The right of peaceful assembly is ‘a fundamental human right, which is essential
for public expression of one’s views and opinions and indispensable in
a democratic society’.1 It is a distinct form of freedom of expression. As
Humphrey put it, ‘[t]here would hardly be freedom of assembly in any real
sense without freedom of expression; assembly is indeed a form of
expression’.2 Similarly, to the Committee ‘the right of peaceful assembly . . . is
a fundamental human right, being essential for public expression of one’s views
and opinions and indispensable in a democratic society’.3

1 E.g., Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.3]; Alekseev v. Russian

Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.3].
2 Humphrey, ‘Political and Related Rights’, vol. I, p. 171, at p. 188.
3 Of many cases articulating the same principle, see Alekseev v. Russian Federation, CCPR/C/109/
D/1873/2009, 25 October 2013 [9.3]; Lozenko v. Belarus, CCPR/C/112/D/1929/2010,
24 October 2014 [7.4]; Poplavny v. Belarus, CCPR/C/115/D/2019/2010, 5 November 2015
[8.4]; Androsenko v. Belarus, CCPR/C/116/D/2092/2011, 30 March 2016 [7.4].

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The concept of ‘a democratic society’ within the limitation conditions of

Article 21 strikes at the heart of this particular freedom. That phrase has impor-
tance to Articles 14(1), 21 and 22(2), where it also features, as well as Articles 18
and 19, where it does not. The drafting history of Article 21 is particularly
revealing, as it discloses a battle for limitation provisions which express particular
characteristics of a democratic society, including to rule out abuse of the type that
would have been admitted through text advanced by former Soviet States.
Freedom of assembly has assumed particular importance recently with the
sharp rise in OP1 petitions as a result of laws in Belarus which condition
the grant of permission for public assemblies on unreasonable terms, includ-
ing payment of cleaning and medical services associated with events, con-
fining assemblies to locations where they will be out of public sight (to
defeat their purpose as demonstrations), content-based restrictions aimed at
suppressing the message intending to be conveyed, limits on the size of
assemblies and other measures to prevent spontaneous meetings. The
Committee’s response has been to give priority to the State’s obligation to
facilitate rights, rather than to impose unnecessary or disproportionate
limitations on them, to require proof of the strict necessity of restrictions,
including resort only to the least restrictive means available, and it has also
reiterated some fundamental principles concerning the expectations of
a democratic society.4
There is no General Comment on Articles 21 or 22, although there have been
recent calls for one.5 Given the close proximity of the right to peaceful assembly
to the freedom of expression, General Comment 34 may be taken to reflect the
Committee’s general approach to the right of peaceful assembly.

Interaction between Article 21 and Other Covenant Provisions

There is inevitably close alignment between Articles 18, 19, 21 and 22 as
expressive freedoms with a high degree of commonality, including with regard
to their importance as fundamental rights and, correspondingly, the need for
strictness in interpreting their limitation provisions.
In many countries the official response to unwelcome demonstrations and other
public gatherings is to resort to force to dispel them, and to deter participation. The
exercise of the right to peaceful assembly all too often poses serious risks to

4 The nature of restrictions on assembly diverges across countries. For comparative analyses of
freedom of assembly in the United States, United Kingdom, France and Germany, see
Orsolya Salát, The Right to Freedom of Assembly: a Comparative Study (Bloomsbury, 2015);
and in the United States, United Kingdom, France, Germany, Belgium, Turkey, the Russian
Federation, Ukraine, Poland, Hungary and Tunisia, see Anne Peters and Isabelle Ley, The
Freedom of Peaceful Assembly in Europe (Nomos, 2016).
5 A/HRC/32/36 (2016) [93], Report of the Special Rapporteur on the Rights to Freedom of Peaceful
Assembly and of Association.

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 Article 21: Freedom of Assembly 593

personal security (Article 9(1))6 or results in loss of life (Article 6).7 The liberty
limb of Article 9 is constantly infringed in the arbitrary arrest or detention of those
exercising their freedom of assembly.8 Crowd control frequently involves loca-
lised restrictions on freedom of movement (Article 12), but less common are
Article 12 restrictions on freedom to travel in consequence of protesting, which
reportedly occurred in Thailand after the 2014 coup.9 Article 14 may be violated
in mass charges brought against demonstrators regardless of their individual
criminal responsibility.10
Articles 2 and 26 will also be at issue when the refusal of authorisation for
a public assembly represents discrimination on grounds of political opinion;11
race;12 sexuality;13 or other status, such as when peaceful assembly by migrant
workers engaging in trade union activities triggers the loss of their employment or
their deportation.14
Article 25 rights are immediately and directly affected by restrictions on free-
dom of assembly (and other forms of expression) since citizens depend on them in
the conduct of public affairs and when pursuing other democratic rights.

Chapter Outline
This chapter will follow the simple order of Article 21, when examining the scope
of the right of peaceful assembly and terms of limitation, paying special regard to

6 See chapter on Article 9: Liberty and Security, sections ‘Scope’, ‘Interaction between Article 9
and Other Covenant Provisions’ and ‘Article 9(1): The Right to Personal Security’.
7 See chapter on Article 6: The Right to Life, section ‘Excessive Use of Force’.
8 E.g., M.T. v. Uzbekistan, CCPR/C/114/D/2234/2013, 23 July 2015 [7.7] [7.8]; Popova
v. Russian Federation, CCPR/C/122/D/2217/2012, 6 April 2018 [7.2], [7.6]; Zhagiparov
v. Kazakhstan, CCPR/C/124/D/2441/2014, 25 October 2018 [13.5] [13.6]; Jordan CCPR/C/
JOR/CO/5 (2017) 32 (concern that participants and organisers of demonstrations have been
detained); Thailand CCPR/C/THA/CO/2 (2017) 25 (reports of the arbitrary detention of hun
dreds of individuals exercising their right to assembly).
9 Thailand CCPR/C/THA/CO/2 (2017) 25.
10 Burkina Faso CCPR/C/BFA/CO/1 (2016) 37 (every member of a group may be held criminally
responsible for certain offences during demonstrations regardless of whether the perpetrator of
the offence had been identified or not). See also Russian Federation CCPR/C/RUS/CO/7) (2015)
7 (collective punishment of relatives and suspected supporters of alleged terrorists).
11 E.g., Gambia CCPR CCPR/CO/75/GMB (2002) 22 (denial of authorisation to hold meetings
targeted political opposition to the government); Congo CCPR/C/COD/CO/4 (2017) 41 (autho
rities could impose a prior authorisation requirement which was systematically denied for
demonstrations in support of the political opposition, but granted for demonstrations in support
of the government); Madagascar CCPR/C/MDG/CO/4 (2017) 51 (political opponents were
systematically denied the right to public protest, even when exercised peacefully); Belarus
CCPR/C/BLR/CO/5 (2018) 52 (restrictions on assemblies were used to deny the political
opposition the ability to meaningfully participate in public life and to influence public opinion).
12 E.g., Sri Lanka CCPR/C/LKA/CO/5 (2014) 22 (disproportional and discriminatory restrictions
on freedom of peaceful assembly against the Tamil minority).
13 E.g., Ukraine CCPR/C/UKR/CO/7 (2013) 10; Georgia CCPR/C/GEO/CO/4 (2014) 8;
Azerbaijan CCPR/C/AZE/CO/4 (2016) 8.
14 Dominican Republic CCPR/C/DOM/CO/6 (2017) 31.

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the term ‘in a democratic society’ and the purpose it served for the drafters. Issues
of implementation will be raised as the chapter progresses and in a separate
section at the end.

T H E R IG H T OF P E A C E F U L A SS E MB LY
The right to peaceful assembly is not declared in terms of ‘Everyone/Every human
being shall have/has the right to’ (as in Articles 1(1), 6(1), 9(1), 12(1), 16, 17(2),
18(1), 19(1) and 22(1)). Instead, the right of peaceful assembly ‘shall be recog-
nized’. (The only other Covenant provision in similar terms is Article 23(2)
concerning the right of men and women of marriageable age to marry and found
a family.) It is in contrast to counterpart provisions in Article 20 of the Universal
Declaration and Article 11 of the European Convention, both of which declare that
‘Everyone has the right to’ freedom of peaceful assembly. Partsch considers that
the legal obligation is nevertheless the same as for other rights.15
During its early drafting a British proposal led to a transition from ‘There shall
be freedom of peaceful assembly’ to ‘All persons shall have the right to assemble
peaceably’. This survived the working group discussion and the second session of
the drafting Committee.16 In the Commission on Human Rights a proposal that
this right ‘shall be guaranteed by law’ was rejected on the grounds that the general
provision of Article 2 laid down the necessary guarantees for all rights.17 The
formula in Article 20 of the Universal Declaration was advanced (‘Everyone shall
have the right to freedom of peaceful assembly’) to make it clear that the right
belongs to every person.18 The French proposal that the right be ‘recognised’ as
a fundamental human right was accepted (‘The right of assembly is
recognised’),19 and was adjusted by an oral amendment by the United States to
become ‘shall be’.20 There was agreement in the Third Committee on the funda-
mental importance of the right,21 and commentators have observed that the
exhaustive listing of limitations in Article 21 demonstrates that the obligation to
recognise this right does not signify a weak obligation or only indirect
applicability.22 In spite of an early suggestion by France that the right should be

15 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, p. 209, at p. 231.
16 E/CN.4/21 (1947), annex A (Secretariat draft) and annex B (GB proposal); E/CN.4/56 (1947), E/
CN.4/AC.3/SR.6, 10 (1947) (report of the working group); E/CN.4/95 (1948) and E/800 (1948)
(report of the drafting committee). For further detail, see Bossuyt, Guide to the ‘Travaux
Préparatoires’, pp. 413 20.
17 A/2929 (1955), Ch.VI. p. 54 [140]. 18 A/2929 (1955), Ch.VI. p. 54 [140].
19 E/CN.4/169 (1949) [46] (France).
20 E/CN.4/365 (1950) (France), E/CN.4/SR.169 (1950) [83]; E/CN.4/SR.325, 19 (1952).
21 A/5000 (1961), p. 17 [53].
22 Nowak, CCPR Commentary, pp. 483 4. See also Partsch, ‘Freedom of Conscience and
Expression, and Political Freedoms’, at pp. 231 2.

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 Article 21: Freedom of Assembly 595

protected only against ‘governmental interference’, this was not accepted,23

preserving a broader obligation to secure the right against horizontal interference.
On its face Article 21 covers only ‘peaceful’ assembly. It spans the right to
conduct an assembly, as well as the right to participate in one.24 It is directed at
a collective enjoyment (so that an individual soap-box expositor in Coleman
v. Australia did not constitute an assembly even though he may have attracted on-
lookers).25 The term ‘assembly’ is not defined, but Nowak suggests it may be
taken to refer to ‘intentional, temporary gatherings of several persons for a specific
purpose’.26 It includes a private assembly,27 but excludes a more or less accidental
gathering such as people waiting for a bus, or listening to a band.28 The right
entails the possibility of organising and participating in a peaceful assembly,
including a spontaneous one, at a public location.29 The organisers of an assembly
generally have the right to choose a location within sight and sound of their target
audience.
The relationship between Articles 19 and 21 is ‘intimate and somewhat com-
plex’, according to comments made by Committee member Kurt Herndl in
Kivenmaa v. Finland, when the Committee discussed whether removing a banner
from a protester during a demonstration was an interference under Article 19 or 21.
He did not take issue with the Committee’s finding that Article 21 was violated by
sanctions imposed for failure to notify authorities of the demonstration, but he
disagreed with what he described as the oversimplified statement of the majority,
that just by removing the displayed banner, the government violated the author’s

23 E/CN.4/SR.121 (1949), 3 (France). 24 Nowak, CCPR Commentary, p. 483.

25 Coleman v. Australia, CCPR/C/87/D/1157/2003, 17 July 2006 [6.4] (inadmissible since the
author was acting alone, and did not advance sufficient elements to show that an ‘assembly’,
within Art. 21 in fact existed). Note also Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010,
24 October 2014 [7.6] (the Committee addressed the refusal of permission to hold a one person
picket only under Art. 19); Sviridov v. Kazakhstan, CCPR/C/120/D/2158/2012, 13 July 2017
[10.4] (restrictions on expression by a single individual were answered only under Art. 19, with
the observation that the act of a single individual peacefully conveying a message should not be
subject to the same restrictions as those applying to an assembly); Levinov v. Belarus, CCPR/C/
123/D/2239/2013, 19 July 2018 [5.7] (inadmissible as the author intended to conduct the picket
on his own). For an Art. 21 violation in restrictions on a ‘picket’ conducted by a single person, see
Sudalenko v. Belarus, CCPR/C/115/D/2016/2010, 5 November 2015 [8.6]; and by two persons
Kim v. Uzbekistan, CCPR/C/122/D/2175/2012, 4 April 2018 [13.6].
26 Nowak, CCPR Commentary, p. 484.
27 Lozenko v. Belarus, CCPR/C/112/D/1929/2010, 24 October 2014 [7.8] (the State failed to justify
why authorisation was needed for holding a meeting in a private space rented by the political
party). See also Morocco CCPR/C/79/Add.113 (1999) 24 (the requirement of notification should
be restricted to outdoor assemblies).
28 Individual Opinion by Mr Kurt Herndl (dissenting) in Kivenmaa v. Finland, CCPR/C/50/D/412/
1990, 31 March 1994 [2.7]. The majority commented (at [9.2]) that the gathering of several
individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit,
publicly announced in advance, could not be regarded as a demonstration. See also Aleksandrov
v. Belarus, CCPR/C/111/D/1933/2010, 24 July 2014 [7.4] (sanctions for moving along the
pavement with two others carrying red and white inidicia were addressed only under Art. 19).
29 Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.12].

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right to freedom of expression. In the context of a demonstration involving leaflet

distribution and other activities clearly falling under Article 21 he considered it fell
within the lex specialis of Article 21, thereby excluding the need for separate
consideration under Article 21.30
In some decisions the Committee has dispensed with any Article 21 examina-
tion having found a violation of Article 19.31 On occasion it is clear that it has
done so because of the way the claims were framed in Article 19 terms.32 It
approaches certain activities, such as the distribution of leaflets or other forms of
advertising of a future assembly, as a matter of freedom of expression rather than
of assembly, and there is a clear basis for doing so.33 In the multiplicity of recent
claims against Belarus concerning unauthorised events the practice has generally
been to make separately reasoned findings of violation of Articles 19 and 21.34

LI MI TATI ON P R OVI S IO NS
In Conformity with the Law
Early drafts of the limitation text provided that all restrictions on the freedom of
peaceful assembly should be ‘prescribed by law’.35 The words ‘imposed in
conformity with the law’ were preferred as they allow for legitimate adminis-
trative action as a unique practical response to the exigencies of public
assemblies,36 even though there was some concern at inconsistency with other
Covenant provisions.37 Article 21 is alone among all Covenant rights in requiring

30 Individual Opinion by Mr Kurt Herndl (dissenting) in Kivenmaa v. Finland, CCPR/C/50/D/412/

1990, 31 March 1994 [3.5]. The distribution of leaflets on its own was an Art. 19, not 21, matter in
Symonik v. Belarus, CCPR/C/112/D/1952/2010, 24 October 2014 [7.3].
31 Pivonos v. Belarus, CCPR/C/106/D/1830/2008, 29 October 2012 [9.4] (apprehension and fine
for unrolling a tapestry with an embroidered prayer from the Bible while two others with her
wore white and red flags on top of their clothes).
32 Valery Aleksandrov v. Belarus, CCPR/C/111/D/1933/2010, 24 July 2014 [7.2]; Stambrovsky
v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014 [3], [7.4].
33 Tulzhenkova v. Belarus, CCPR/C/103/D/1838/2008, 26 October 2011 [9.3]; Vladimir Schumilin
v. Belarus, CCPR/C/105/D/1784/2008, 23 July 2012 [9.4]; Olechkevitch v. Belarus, CCPR/C/
107/D/1785/2008, 18 March 2013 [8.5]; Protsko and Tolchin v. Belarus, CCPR/C/109/
D/1919 1920/2009, 1 November 2013 [7.8]; Nepomnyaschikh v. Belarus, CCPR/C/112/D/
2156/2012, 10 October 2014 [9.4]; Symonik v. Belarus, CCPR/C/112/D/1952/2010,
24 October 2014 [7.4].
34 In Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [9.5] [9.8]; Evrezov
et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014 [8.3] [8.8] and Derzhavtsev
v. Belarus, CCPR/C/115/D/2076/2011, 29 October 2015 [8.7] (among others) the reasoning
was separate under Arts 19 and 21, but not distinctive beyond lightly traversing the limitation
texts. For further illustration, see section ‘Necessary’, this chapter, below.
35 A/2929 (1955), Ch.VI. p. 54 [141]; E/CN.4/SR.169 (1950) [26] (Lebanon).
36 E/CN.4/SR.169 (1950) [37] (GB), [79] (Belgium). See also Partsch, ‘Freedom of Conscience and
Expression, and Political Freedoms’, at pp. 232 3.
37 E/CN.4/SR.169 (1950) [81] (Lebanon).

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 Article 21: Freedom of Assembly 597

‘conformity with the law’ (rather than ‘provided by law’ found in Articles 12(3)
and 19(3), or ‘prescribed by law’ in Article 18(3) and 22(2)).

Necessary in a Democratic Society

In a Democratic Society
Under the European Convention each of the provisions guaranteeing the freedoms
of religion, expression, assembly and association requires restrictions to be
‘necessary in a democratic society’. The inclusion of the term implies a stricter
standard of necessity since, as the European Court explained, ‘[t]he only type of
necessity capable of justifying an interference with any of those rights [under
Articles 8, 9, 10 and 11 of the European Convention] is . . . one which may claim to
spring from “democratic society”. Democracy thus appears to be the only political
model contemplated by the Convention and, accordingly, the only one compatible
with it.’38 Under the Covenant, the qualification ‘in a democratic society’ applies
to restrictions on the freedoms of assembly and association, but not on the free-
doms of religion and expression. This begs the question, with what significance?
Ostensibly ‘in the interest of democracy’ the Soviet Union proposed a single
limitation provision: ‘All societies, unions and other organizations of a Fascist or
anti-democratic nature and their activity in whatever form shall be forbidden by
law on pain of punishment’.39 Its supporters (from fellow Soviet States) argued
that if the right of peaceful assembly were exercised by anti-democratic groups, all
the rights recognised in the Covenants might be jeopardised.40 It was resolutely
resisted. As a matter of principle, to deny certain groups freedom of assembly
merely on account of their opinions would be contrary to the principles of freedom
of opinion and expression.41 (Content-based restrictions remain among the most
unjustifiable in the view of the Committee.)42 It was also observed that terms such
as ‘fascist’ and ‘anti-democratic’ were not clearly defined and could lead to
abuse.43 If the activities of any group became a public danger the laws for the
protection of ‘public order’, ‘national security’ or ‘the rights and freedoms of
others’ could be applied.44 This exchange brings into focus the importance of
democratic values within the Covenant as a whole, and the risks of misappropria-
tion of the concept of ‘democracy’ to serve the interests of those with wielding

38 United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951, Reports of
Judgments and Decisions 1998 I, (30 January 1998) [45].
39 E/CN4/222 (1949) (Soviet Union), E/CN4.SR.120, p. 11 (1949); E/CN4./L.126 (1953) (Soviet
Union), E/CN4.SR.325, p. 19 (1953); A/C.3/SR.289 (1950) [37] (Soviet Union); A/C.3/SR.290
(1950) [5] (Poland), [12] (Czechoslovakia).
40 E/CN4.325 (1953), p. 7 (Poland). 41 E/CN4.SR.325 (1953), p. 9 (Uruguay).
42 See section ‘Necessary’, below.
43 E/CN4.SR.120 (1949), p. 9 (India); E/CN4.SR.325 (1953), p. 6 (France), p. 11 (Lebanon), p. 12
(Pakistan), p. 13 (Chile), p. 15 (Sweden).
44 E/CN4.SR.325 (1953), p. 5 (GB), p. 8 (Chile).

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power. The freedoms of assembly and association were ultimately separated to

reinforce both of them and to emphasise their independent character, as well as to
assure these rights to those who did not agree with the party in power.45
When it came to discussion on the text ‘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’ proposals were made, which were rejected, to replace
‘public order’ with ‘prevention of disorder’,46 and to include an additional ground ‘in
the general interest’.47 In order to prevent abuse of the limitation grounds a proposal
was made to add the prefatory words ‘reasonable and’ which was not adopted.48
Another proposal, which was adopted into the final text, was that all the limitations be
qualified by the words ‘necessary in a democratic society’, on the basis that the
freedom could not be effectively protected if States did not apply the limitations clause
according to the principles recognised in a democratic society.49 To the objection that
‘democracy’ would be interpreted differently in different countries50 (no doubt
inspired in part by the proposal by the Soviet Union already mentioned), the reply
was given that a democratic society might be distinguished by its respect for the
principles of the Charter of the United Nations, the Universal Declaration and the twin
Covenants.51
Kiss argues that the notion of a democratic society is operative in limitation
provisions even where it is not expressly included in the text:
The different concepts which may serve as grounds for restricting certain recog-
nized rights and freedoms should be generally examined in a broader political
concept, that of a model society. It may be submitted that even in the limitation
clauses where no explicit mention is made of a democratic framework, the idea of
democracy is always underlying, signifying that ‘every ‘formality’, ‘condition’,
‘restriction’, or ‘penalty’, imposed in this sphere must be proportionate to the
legitimate aim pursued.52

He drew a close parallel with the European Convention at this point, since he was
quoting at the end from the European Court’s famous Handyside decision, in

45 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, at p. 231. In the
European Convention the freedoms of assembly and association are combined in Art. 11,
following the pattern of Art. 20 of the Universal Declaration.
46 A/2929 (1955), Ch.VI. p. 54 [143]; Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 417 18;
A/C.3/SR.290 (1950) [46] (NZ).
47 E/CN.4/SR.120 (1949), 6 (GB), 7 (USA), 8 (India); A/C.3/SR. 289 (1950) [5] (Lebanon).
48 E/CN.4/SR.325 (1953), 11 (Lebanon), 14 (Egypt), A/C.3/SR.288 (1950) [17] [18] (GB); A/C. 3/
SR.289 (1950) [6] (Lebanon).
49 E/CN.4/SR.169 (1950) [49] (Yugoslavia), [52] (Chile), A/C.3/SR.290 (1950) [29] (France), A/
C.3/SR.291 (1950) [55] (Byelorussia), [61] (El Salvador).
50 E/CN.4/SR.169 (1950) [28] (Lebanon), [36] (GB), [41] (Australia), [70] [71] (Uruguay), E/
CN.4/SR.325 (1952), 15 (USA).
51 Adopted with the words ‘necessary in a democratic society’: E/CN.4/SR.169 (1950) [54] (Chile),
[63] [64] (France).
52 Kiss, ‘Permissible Limitations on Rights’, p. 290, at p. 307.

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 Article 21: Freedom of Assembly 599

which it described some of the characteristics of a democratic society in the

context of freedom of expression:
The Court’s supervisory functions oblige it to pay the utmost attention to the
principles characterising a ‘democratic society’. Freedom of expression consti-
tutes one of the essential foundations of such a society, one of the basic condi-
tions for its progress and for the development of every man. Subject to paragraph
2 of Article 10 (art. 10-2), it is applicable not only to ‘information’ or ‘ideas’ that
are favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any sector of the
population. Such are the demands of pluralism, tolerance and broadmindedness
without which there is no ‘democratic society’. This means, amongst other
things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in
this sphere must be proportionate to the legitimate aim pursued.53
Nowak agreed that as a general standard for democratic societies the criteria of
pluralism, tolerance and broad mindedness mentioned in Handyside may be valid,
although he suggested that a common minimum democratic standard may be lower in
a universal international instrument than a regional one such as the European
Convention.54 Kiss concluded that in addition to applying a restrictive interpretation
to limitations, and requiring adequate legal justification, limitations must also be
acceptable in the specific political context that has been defined as a ‘democratic
society’. This ‘recognizes the principle that government is limited by the concept of
human rights, and that even the good of the majority or the common good of all does
not permit certain invasions of individual autonomy and freedom’.55
An essential characteristic of a democratic society is pluralism. In
October 2010, the UN Human Rights Council established the mandate of the
Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of
Association.56 In pursuing that mandate, the Special Rapporteur has placed
special emphasis on pluralism, noting that the rights to freedom of peaceful
assembly and of association are fundamental precisely because of their crucial
role in promoting pluralism: they provide a platform for all people in any society
to mobilise, organise and work towards change in a peaceful manner.57 Adopting
the principle (also from Handyside) that ‘there can be no democracy without
pluralism’,58 the Special Rapporteur has also emphasised that values of pluralism,
tolerance and broadmindedness are at the core of any successful and stable
democratic State.59 He has therefore encouraged States and civil society groups

53 Handyside v. United Kingdom, App. No. 5493/72, [1976] ECHR 5 (7 December 1976), [49].
54 Nowak, CCPR Commentary, p. 491.
55 Kiss, ‘Permissible Limitations on Rights’, pp. 308 9. 56 A/HRC/RES/15/21, 6 October 2010.
57 A/HRC/ 32/36 (2016) [17].
58 Handyside v. United Kingdom, App. No. 5493/72, [1976] ECHR 5 (7 December 1976) [49].
59 A/HRC/32/36 (2016) [17].

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to create and expand initiatives to educate people, particularly youth, on the

importance of pluralism, tolerance and diversity in democratic societies.60

Necessary
When States rely on a ground of limitation they must prove the necessity of the
restriction, in the particular circumstances. A straightforward example of the
Committee’s position is Kovalenko v. Belarus which concerned the break-up of
a commemoration to honour the victims of Stalinist repression, the author’s
removal from the gathering and the imposition of a fine. It criticised the State
for not identifying in its justification of those measures what dangers were posed
by the author publicly expressing a negative attitude to the Stalinist repressions in
Soviet Russia.61 In a large number of cases, the overwhelming majority of them
against Belarus, the State has simply addressed the legality requirement, and its
case has often been as simple as stating a breach of relevant domestic provisions,
without any attempt to justify the necessity of restrictions.62 It is not always easy
to discern the limitation ground pleaded.63 In many instances the Committee has
stressed (when reiterating the principle that the right of peaceful assembly is
indispensable in a democratic society) that when imposing restrictions with the
aim of reconciling an individual’s right and interests of general concern, the State
should be guided by the objective of facilitating that right, rather than seeking
unnecessary or disproportionate limitations to it.64 In the case of notice require-
ments for an assembly, which led to numerous such claims, the incompatibility

60 A/HRC/32/36 (2016) [94]. For a summary of the travaux in reference to Art. 21, see Svensson
McCarthy, The International Law of Human Rights and States of Exception, pp. 103 4.
61 Kovalenko v. Belarus, CCPR/C/108/D/1808/2008, 17 July 2013 [8.6]. See also on similar facts
Belyazeka v. Belarus, CCPR/C/104/D/1772/2008, 23 March 2012 [11.8].
62 E.g., Zalesskaya v. Belarus, CCPR/C/101/D/1604/2007, 28 March 2011 [10.6]; Govsha et al.
v. Belarus, CCPR/C/105/D/1790/2008, 27 July 2012 [9.4]; Tulzhenkova v. Belarus, CCPR/C/
103/D/1838/2008, 26 October 2011 [9.3]; Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/
2010, 24 July 2014 [9.8]; Evrezov et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014
[8.8]; Praded v. Belarus, CCPR/C/112/D/2029/2011, 10 October 2014 [7.8];Lozenko v. Belarus,
CCPR/C/112/D/1929/2010, 24 October 2014 [7.7].
63 E.g., Chebotareva v. Russian Federation, CCPR/C/104/D/1866/2009, 26 March 2012 [9.3] (the
pretext for the refusing of an assembly was that the city authorities were planning to hold events
dedicated to Teachers’ Day on the same day, at the same place (which never eventuated)); Youbko
v. Belarus, CCPR/C/110/D/1903/2009, 17 March 2014 [9.6] [9.8] (a protest meeting involving
posters drawing public attention to the need for the judiciary to respect international treaties was
characterised as an attempt to question court decisions and influence rulings in specific civil and
criminal cases).
64 E.g., Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013 [7. 4]; Sekerko
v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.6]; Evzrezov v. Belarus, CCPR/C/
117/D/2101/2011, 14 July 2016 [8.4]; Korol v. Belarus, CCPR/C/117/D/2089/2011, 14 July 2016
[7.5]; Melnikov v. Belarus, CCPR/C/120/D/2147/2012, 14 July 2017 [8.5]; Shumilina et al.
v. Belarus, CCPR/C/120/D/2142/2012, 28 July 2017 [6.4]; Koreshkov v. Belarus, CCPR/C/121/
D/2168/2012, 9 November 2017 [8.5].

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 Article 21: Freedom of Assembly 601

with Article 21 may also lie in the principle that ‘their enforcement cannot become
an end in itself’.65
It is particularly difficult, within the conception of a democratic society already
discussed, to make out the necessity of restrictions on freedom of assembly based
on content. The claim in Kirsanov v. Belarus resulted from the refusal to authorise
a demonstration marking negative official policy towards opposition political
parties and grass-roots movements, and protesting against an attempt by autho-
rities to dismantle the Belarus Communist Party. The State argued that since no
decision had been taken to ban political parties the author’s demonstration con-
flicted with the right of citizens to receive reliable information, as protected under
domestic law. The Committee recalled that the rejection of a person’s right to
organise a public assembly on the basis of its content is one of the most serious
interferences with the freedom of peaceful assembly. The State did not demon-
strate how any supposed public need to receive reliable information was necessary
in a democratic society, of which the cornerstone is free dissemination of infor-
mation and ideas, including information and ideas contested by the government or
the majority of the population. It also failed to show that a legitimate purpose
under Article 21 could only be achieved by the denial of the proposed
demonstration.66 Another clear case of content-based restriction was in Alekseev
v. Russian Federation, discussed below.67
The development of strict standards of necessity by the Committee will be
apparent in the sections which follow.

Grounds of Limitation
National Security or Public Safety
Kiss explained as follows how he regarded ‘national security’ as quite distinct
from ‘public safety’ and ‘public order’, even though often linked to them:
‘national’ denotes something affecting the country as a whole (not something in
the sole interest of a government or power group); ‘security’ may be informed by
the use of that term in the UN Charter (dedicated to maintaining ‘international
peace and security’); and national security means the protection of territorial

65 Severinets v. Belarus, CCPR/C/123/D/2230/2012, 19 July 2018 [8.8] [8.10].

66 Kirsanov v. Belarus, CCPR/C/110/D/1864/2009, 20 March 2014 [9.7] [9.8], citing Korneenko
v. Belarus, CCPR/C/88/D/1274/2004, 31 October 2006 [7.3]: ‘The reference to the notion of
“democratic society” in the context of Article 22 indicates, in the Committee’s opinion, that the
existence and operation of associations, including those which peacefully promote ideas not
necessarily favourably received by the government or the majority of the population, is
a cornerstone of a democratic society.’
67 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013; see section
‘Rights and Freedoms of Others’, this chapter, below. For the response of the European Court
to restrictions on freedom of assembly on the basis of the authority’s own view of the merits of
the particular protest, see Hyde Park and Others v. Moldova No. 3, App. No 45095/06, ECHR
31 March 2009 [26].

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 602 a commentary on the iccpr

integrity and political independence against foreign force or threats of force.68

Article 21 speaks of ‘national security or public safety’ in conjunction, while
maintaining them as discrete concepts.
When reviewing State reports, the Committee has been particularly concerned
about dependence on broadly worded offences such as sabotage and terrorism,69
and at reports that applications for permission to hold public assemblies are
declined on spurious grounds of ‘national principles’ or ‘public decency’.70 One
of its recurring concerns is the use of excessive force at demonstrations in
response to crowd violence or to disperse demonstrations,71 which in acute
cases results in death.72 It has pointed to instances of incompatibility with the
United Nations Principles on the Use of Force and Firearms by Law Enforcement
Officials.73 A civilian, rather than military, response should be adopted to the
maximum extent possible.74
As a practical matter the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association has encouraged States to move away
from a ‘hard security’ approach to restrictions on freedom of assembly, and to
focus instead on human rights and on ‘promoting resilience’ in communities, so
that people ‘feel they have space to freely express themselves and fully participate
in political life and public affairs’.75

Public Order
The term ‘public order’ does not lend itself to precision, which has prompted the
Committee at times to test its limits in considering the laws of particular
jurisdictions.76 There is obvious overlap between public order and public safety
in such matters as traffic control and the timing of assemblies, with a particular
Committee preference that they be held in daylight. Nevertheless, it has

68 Kiss, ‘Permissible Limitations on Rights’, pp. 296 7.

69 E.g., Ecuador CCPR/C/ECU/CO/6 (2016) 27; Bahrain CCPR/C/BHR/CO/1 (2018) 29.
70 E.g., Algeria CCPR/C/DZA/CO/4 (2018) 45. For excessive reliance on public order and national
security grounds, see Kazakhstan CCPR/C/KAZ/CO/1 (2011) 26.
71 E.g., Kenya CCPR/CO/83/KEN (2005) 23; Moldova CCPR/C/MDA/CO/2 (2009) 8;
Mozambique CCPR/C/MOZ/CO/1 (2013) 22; Russian Federation (CCPR/C/RUS/CO/7)
(2015) 21; Uzbekistan CCPR/C/UZB/CO/4 (2015) 24; Ecuador CCPR/C/ECU/CO/6 (2016)
27; Kuwait CCPR/C/KWT/CO/3 (2016) 42; Morocco CCPR/C/MAR/CO/6 (2016) 45;
Bahrain CCPR/C/BHR/CO/1 (2018), 35, 55; Belarus CCPR/C/BLR/CO/5 (2018) 51.
72 E.g., Colombia CCPR/C/COL/CO/7 (2016) 36; Cameroon CCPR/C/CMR/CO/5 (2017) 41;
Congo CCPR/C/COD/CO/4 (2017) 43; Sudan CCPR/C/SDN/CO/5 (2018) 47.
73 E.g., HK SAR CCPR/C/CHN HKG/CO/3 (2013) 11, citing Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August
7 September 1990.
74 E.g., Venezuela CCPR/C/VEN/CO/4 (2015) 14(f). 75 A/HRC/32/36 (2016) [88].
76 Spain A/34/40 (1979) 201 (several members pointed out under the Constitution meetings could
be banned in the interests of ‘public order’, an expression which could be interpreted in different
ways, and asked for clarification in that respect).

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 Article 21: Freedom of Assembly 603

commented that the prohibition of all assemblies on major roads in the capital in
Korea appeared to be over-broad and did not meet standards required by the
limitation provisions of Article 21,77 and it expressed concern about restrictions
on demonstrations held past midnight.78
Notification requirements for public assemblies are typically based on public
order considerations. The Committee found in Kivenmaa v. Finland that
a requirement to notify the police of an intended demonstration in a public place
six hours before its commencement may be compatible with the limitations in
Article 21, but its adverse decision turned on the implausibility of characterising
as a demonstration the mere presence of particular individuals displaying a banner
in a crowd assembled to welcome a foreign head of State.79
A stricter form of restriction is a requirement that the assembly be authorised
before it can proceed, made all the harsher for conditions which attach to author-
isation. The relevant law on mass events applied against the authors for not
seeking authorisation in Kuznetsov and Others v. Belarus required organisers to
conclude contracts, at their own expense, for medical assistance and post-event
cleaning, to assure the protection of public order. The authors claimed this limited
the very essence of the freedoms guaranteed. The finding of violation of Article 21
followed the lack of any explanation why these requirements were necessary, or of
the dangers that would have been created by the authors’ display of portraits of
a disappeared former minister and expression of their concern in public about the
delayed investigation of his disappearance.80
The Committee was faced with a similar burden on protesters in Sekerko
v. Belarus whose event was refused authorisation because they did not produce
proof that the relevant security and medical contracts had been concluded. The
State claimed the requirement had the protective purpose of ensuring public order
and public safety, yet it failed to specify ‘which required details related to the
planning and conduct of the mass events might be missing, the absence of which
would pose a threat to public safety, public order . . . the protection of public health
or morals or the protection of the rights and freedoms of others’. It also failed to
demonstrate that these purposes could be achieved only by denying authorisation
to these particular events.81
In a number of countries, such as Kazakhstan and Belarus, the authorities
designate particular areas for holding assemblies, typically in the outskirts of
city centres where demonstrations will attract little public attention.82 The authors

77 Korea CCPR/C/79/Add.114 (1999) 18. 78 Korea CCPR/C/KOR/CO/4 (2015) 52.

79 Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994 [9.2].
80 Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [9.6] [9.8]. See also
Switzerland CCPR/C/CHE/CO/4 (2017) 48 (concern about the charging of security costs
incurred during demonstrations).
81 Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.7]. See also Matskevich
v. Belarus, CCPR/C/115/D/2133/2012, 29 October 2015 [9.5].
82 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 26.

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 604 a commentary on the iccpr

in Turchenyak et al. v. Belarus sought permission to hold a demonstration in

a particular pedestrian zone, but it was granted only for the Lokomotiv stadium, an
isolated location in a stadium surrounded by a concrete wall. The Committee
found that denying their right to assemble peacefully at the public location of their
choice was unjustified. The Committee also recommended a review of national
legislation, with a view to ensuring the enjoyment of Article 21 rights.83 The
general principle is that the organisers of an assembly generally have the right to
choose a location within sight and sound of their target audience.84
In its Concluding Observations the Committee has identified recurring harms
associated with both notification and permission requirements;85 it has expressed
concern at the breadth of the requirement to notify assemblies, aware that it is
often abused, and has suggested that it should be restricted to outdoor
assemblies,86 that the period of advance notice not unduly circumscribe legitimate
forms of assembly,87 that sufficient time be given between the official decision
and the event, in order to enable recourse to remedies (24 hours being
insufficient),88 without unduly lengthy appeal procedures which would jeopardise
enjoyment of the right,89 without biased judicial fora for determining applications
to ban peaceful assemblies,90 and with appropriate provision for other remedies in
the event that authorisation is denied.91 It has also expressed concern at restric-
tions as to time, place and numbers of demonstrators.92

83 Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013 [7.5] [7.8], [8], [9]. See
also Sudalenko v. Belarus, CCPR/C/115/D/2016/2010, 5 November 2015 [8.6] (the de facto
prohibition on an assembly in any public location in the entire city of Gomel, with the exception
of a single remote area, unduly limited the right of assembly).
84 Poplavny et al. v. Belarus, CCPR/C/118/D/2139/2012, 3 November 2016 [8.5]; Koreshkov
v. Belarus, CCPR/C/121/D/2168/2012, 9 November 2017 [8.5]; Sudalenko et al. v. Belarus,
CCPR/C/122/D/2190/2012, 4 April 2018 [8.5].
85 On the harms of notification and permission, see, e.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38
(while legislation only required advance notification of a peaceful assembly, permission was
frequently required in practice); Morocco CCPR/C/MAR/CO/6 (2016) 45 (prior authorisation
required for gatherings in public places and was refused unjustifiably); Congo CCPR/C/COD/
CO/4 (2017) 41 (authorities could impose a prior authorisation requirement and it was system
atically denied for some demonstrations); Swaziland CCPR/C/SWZ/CO/1 (2017) 44 (proposed
amendments would impose cumbersome requirements for obtaining permits before holding
a meeting or hosting an activity and give law enforcement officers discretionary powers to
interrupt meetings); Thailand CCPR/C/THA/CO/2 (2017) 39 (criminal penalties for failing to
provide prior notification regarding the organisation of peaceful assemblies); Algeria CCPR/C/
DZA/CO/4 (2018) 45 (prior authorisation by and at the discretion of the executive on the basis of
vague criteria, such as national principles, public order or public decency; an excessively long
advance notice of eight days; and criminal sanctions for not meeting these conditions); Gambia
CCPR/C/GMB/CO/2 (2018) 41 (law required police permission for peaceful assembly).
86 Morocco CCPR/C/79/Add.113 (1999) 24.
87 Republic of Moldova CCPR/CO/75/MDA (2002) 15; Belarus CCPR/C/79/Add.86 (1997) 18;
Cyprus CCPR/C/79/Add.88 (1998) 15; Uzbekistan CCPR/C/UZB/CO/4 (2015) 24.
88 Trinidad and Tobago A/43/40 (1988) 81. 89 Poland CCPR/C/POL/CO/6 (2010) 23.
90 Ukraine CCPR/C/UKR/CO/7 (2013) 21. 91 Kenya CCPR/CO/83/KEN (2005) 23.
92 Paraguay CCPR/C/PRY/CO/2 (2006) 20; Belarus CCPR/C/BLR/CO/5 (2018) 51.

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 Article 21: Freedom of Assembly 605

Rights and Freedoms of Others

Where there is a risk of counter-demonstration, the rights and freedoms of others may
be at issue (in combination with public safety and public order), and the Committee has
established clear guidance on when the use of such grounds may be justified. The
background to the petition in Alekseev v. Russian Federation was that the author had
been trying to organise gay pride marches in Moscow for a number of years but his
requests had been met with refusal. He proposed to hold a stationary protest in front of
the Iranian Embassy in Moscow to express concern over the execution of gay people
and minors in Iran. It would last for an hour with no more than thirty participants.
Authorisation was refused on the same day because it would trigger ‘a negative
reaction in society’ and could lead to ‘group violations of public order which can be
dangerous to its participants’. After recalling that the right of peaceful assembly is
essential for the public expression of a person’s views and opinions, and indispensable
in a democratic society, the Committee added that States must put in place effective
measures to protect against attacks aimed at silencing those exercising their right to
freedom of expression by means of an assembly. The only reason for refusing it was
that the subject it addressed, namely, advocacy of respect for the human rights of
persons belonging to sexual minorities, would provoke a negative reaction that could
lead to violations of public order. The Committee characterised this as a rejection of the
author’s right to organise a public assembly addressing the chosen subject, which is
one of the most serious interferences with the freedom of peaceful assembly.
Consonantly with European jurisprudence addressing similar situations it noted that
freedom of assembly protects demonstrations promoting ideas that may be regarded as
annoying or offensive by others and that, in such cases, States have a duty to protect the
participants in such a demonstration in the exercise of their rights against violence by
others.93 An unspecified and general risk of a violent counter-demonstration or the
mere possibility that the authorities would be unable to prevent or neutralise such
violence are not sufficient to justify banning a demonstration. The State provided no
information to support its claim that a ‘negative reaction’ would involve violence or
that the police would be unable to prevent such violence if they properly performed
their duty. The obligation of the State was to protect the author in the exercise of
Covenant rights and not to contribute to suppressing those rights.94

93 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.3], [9.6]. For similar
factual background, see also Androsenko v. Belarus, CCPR/C/116/D/2092/2011, 30 March 2016 [7.7].
Note also the claim in M.T. v. Uzbekistan, CCPR/C/114/D/2234/2013, 23 July 2015 [7.7] that when the
author was attacked while holding pickets the authorities failed adequately to investigate the women
attacking her. Cf. European Court in Christian Democratic People’s Party v. Moldova (No. 2), App.
No. 25196/04, ECHR, 2 February 2010 [28]. (The Court considers that even if there was a theoretical
risk of violent clashes between the protesters and supporters of the Communist Party, it was the task of
the police to stand between the two groups and to ensure public order. Refusing authorisation could not
be considered relevant and sufficient within the meaning of Art. 11 of the European Convention.)
94 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.6]. On similar
facts, see also Praded v. Belarus, CCPR/C/112/D/2029/2011, 10 October 2014.

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 606 a commentary on the iccpr

There is a right to demonstrate and to counter-demonstrate.95 Where the purpose of

a counter-demonstration is to sabotage the peaceful assembly by opponents, in appro-
priate circumstances it may be assessed in the light of the interpretive text of Article
5(1) (‘activity aimed at the destruction of the rights and freedoms of others or at their
limitation to a greater extent than is provided for in the Covenant’).96 However, Article
5 does not give rise to any separate individual right capable of generating OP1 claims,
which explains in part why there is so little Committee comment on that provision.97

The Protection of Public Health or Morals

Public health considerations arose obliquely and insupportably in Kuznetsov and
Others v. Belarus and Sekerko v. Belarus in the requirement that organisers of
public events had to conclude contracts, at their own expense, for medical
assistance and post-event cleaning.
Public health may also feature in a manner peculiar to Article 21 during times of
epidemic or pandemic, when any large gathering is likely to exacerbate the spread of an
infectious disease. (The European Court found no violation when the police broke up
the mass occupation of a church by illegal immigrants when sanitary conditions
deteriorated).98
‘Morals’ on the whole is a weak ground of limitation. It may present a content-
based restriction on Kirsanov v. Belarus and Alekseev v. Russian Federation
reasoning.

I M P L E M E N TAT I O N
The Committee’s expectation is that freedom of assembly will be effectually guaran-
teed domestically, including to aliens,99 by legislative and other measures, including
where necessary revising laws and practices to guarantee the full enjoyment of the right

95 For the European Court’s treatment of restrictions on a meeting to commemorate Salzburg Jews
killed by the SS during the Second World War, as a counter demonstration against the simulta
neous gathering of Comradeship IV commemorating the SS soldiers killed in the Second World
War, see Öllinger (Karl) v. Austria, App. No. 76900/01, [2006] ECHR, 29 June 2006 [36] [37].
96 In this context note that the Committee has questioned Portugal about provisions establishing
that counter demonstrations would be liable to penalties (Portugal A/36/40 (1981) 311). Note
also Indonesia CCPR/C/IDN/CO/1 (2013) 28 and the reference to the duty to protect protesters
from harassment, intimidation and violence.
97 Levinov v. Belarus, CCPR/C/123/D/2235 & 6/2013, 19 July 2018 [5.5].
98 Cisse v. France, App. No. 51346/99, 9 April 2002 (200 illegal immigrants occupied a church to
draw attention to their plight. Ten went on hunger strike. An evacuation order made in response
to worsening unsatisfactory sanitary conditions, along with other health, peace, security and
public order risks did not result in a finding of violation).
99 E.g., Finland A/41/40 (1985) 220 (the Committee wished to know what justification there was
for a provision authorising the police to interrupt public meetings organised by aliens and
whether aliens had the right to organise such meetings or not).

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 Article 21: Freedom of Assembly 607

to freedom of assembly,100 removing obstacles to enjoyment of the right,101 and

ensuring the availability of timely remedies for appealing a decision imposing a ban.102
The right should not be subordinated to political considerations,103 which are also
likely to be discriminatory.104 There should be no deterrence to exercising the right105
(e.g., through harassment and intimidation,106 by requiring demonstrators to thumb-
print documents pledging to refrain from future demonstrations,107 or by systematic
use by police of cameras and video-recordings during demonstrations).108 States are
required to prevent human rights violations occurring during protests, and must
investigate, prosecute and punish those responsible for arrests, killings and ill-
treatment of demonstrators,109 including private individuals.110
The Committee has persistently indicated the need to observe the strict require-
ments of the limitation provisions of Article 21,111 and has pointed out where
grounds of limitation in domestic law were ostensibly inconsistent with those
permitted in Article 21, for example, Iran, where the holding of certain assemblies
could be restricted if not in compliance with ‘principles of Islam’;112 Poland, if
contrary to the ‘social interest’;113 Belize, the British Virgin Islands, Gibraltar and

100 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 39; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 52;
Rwanda CCPR/C/RWA/CO/4 (2016) 41, 42; Switzerland CCPR/C/CHE/CO/4 (2017) 49
(including the right of spontaneous assembly); Turkmenistan CCPR/C/TKM/CO/2 (2017) 45;
Belarus CCPR/C/BLR/CO/5 (2018) 53; Lao CCPR/C/LAO/CO/1 (2018) 34.
101 E.g., Malawi CCPR/C/MWI/CO/1 (2011) 17 (refusal to authorise peaceful demonstrations).
102 E.g., Benin CCPR/CO/82/BEN (2004) 23. See also Iceland A/38/40 (1983) 116.
103 E.g., Jordan CCPR/C/JOR/CO/4 (2010) 15; Russian Federation CCPR/C/RUS/CO/7 (2015) 21.
104 See reference to Art. 26 in sections ‘Introduction’, ‘Interaction between Article 21 and Other
Covenant Provisions’, above.
105 E.g., Russian Federation CCPR/C/RUS/CO/7 (2015) 21 (harsh fines and prison sentences for
the expression of political views); Macedonia CCPR/C/MKD/CO/3 (2015) 19 (pre trial deten
tion for demonstrators in spite of lack of a previous criminal record).
106 E.g., Iran CCPR/C/IRN/CO/3 (2011) 26; Colombia CCPR/C/COL/CO/7 (2016) 38.
107 E.g., Cambodia CCPR/C/KHM/CO/2 (2015) 22.
108 E.g., China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 16.
109 E.g., Malawi CCPR/C/MWI/CO/1 (2011) 17; Malawi CCPR/C/MWI/CO/1 (2014) 23
(Commission of Inquiry set up to investigate the handling of demonstrations was concerned
that prosecutions had not yet taken place); Uzbekistan CCPR/C/UZB/CO/4 (2015) 24; Togo
CCPR/C/79/Add.36 (1994) 6 (loss of life not fully investigated).
110 E.g., Venezuela CCPR/C/VEN/CO/4 (2015) 14(b).
111 E.g., Czechoslovakia A/33/40 (1978) 132; Cyprus CCPR/C/79/Add.88 (1998) 15; Benin
CCPR/CO/82/BEN (2004) 23; Kenya CCPR/CO/83/KEN (2005) 23; Kuwait CCPR/C/KWT/
CO/2 (2011) 28; China (Macao) CCPR/C/CHN MAC/CO/1 (2013) 16; HK SAR CCPR/C/
CHN HKG/CO/3 (2013) 10; Russian Federation CCPR/C/RUS/CO/7 (2015) 21; Uzbekistan
CCPR/C/UZB/CO/4 (2015) 24; Azerbaijan CCPR/C/AZE/CO/4 (2016) 39; Kazakhstan CCPR/
C/KAZ/CO/2 (2016) 52; Rwanda CCPR/C/RWA/CO/4 (2016) 42; Swaziland CCPR/C/SWZ/
CO/1 (2017) 45; Switzerland CCPR/C/CHE/CO/4 (2017) 49; Turkmenistan CCPR/C/TKM/
CO/2 (2017) 45; Belarus CCPR/C/BLR/CO/5 (2018) 53; Guatemala CCPR/C/GTM/CO/4
(2018) 37; Guinea CCPR/C/GIN/CO/3 (2018) 46; Lao CCPR/C/LAO/CO/1 (2018) 34.
112 Iran CCPR/C/IRN/CO/3 (2011) 26 (the Committee was concerned that the holding of public
gatherings and marches as well as the establishment of associations were conditional upon
compliance with ‘principles of Islam’, which were not defined under national legislation).
113 Poland CCPR A/35/40 (1980) 56.

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Hong Kong if ‘in the interests of the community as a whole’;114 China

(Hong Kong), in response to ‘disorder in public places’ or ‘unlawful
assembly’;115 Denmark for ‘public peace’;116 and Kazakhstan, ‘inciting social
or class hatred’ and ‘religious hatred or enmity’.117 The departures from the
limitation terms in the case of Belarus were manifold.118 A recurring theme is
the chilling effect of restrictions on freedom of assembly.119
Although it is permissible to derogate from Article 21 on the terms of Article 4,
the Committee has criticised the use of disproportionate restrictions on peaceful
assembly during states of siege and emergency, and has recommended measures
to ensure the full compatibility of its legislation with Article 4.120 It has also
maintained pressure on some of the few States that have had reservations affecting
Article 21 to withdraw them.121

C O N C L US I O N
Since freedom of assembly is a form of freedom of expression, as Humphrey
shows, there exist a number of anomalies across the two freedoms, particularly in
the differences in the limitation terms of Articles 19 and 21. The lack of the
qualifying condition ‘in a democratic society’ in Article 19 may be resolved, as
Kiss proposed, by importing it into Article 19 (and Article 18) from which it is
missing. This is consistent with the declared importance of free expression as
a characteristic of a democratic society, common to both rights. Some of the other

114 UK A/34/40 (1979) 322. 115 HK SAR CCPR/C/CHN HKG/CO/3 (2013) 10.
116 Denmark A/33/40 (1978) 109.
117 Kazakhstan CCPR/C/KAZ/CO/2 (2016) 13. See also Kazakhstan CCPR/C/KAZ/CO/2 (2016)
51 (offences of providing ‘assistance’ to ‘illegal’ assemblies).
118 Belarus CCPR/C/BLR/CO/5 (2018) 51 (undue restrictions in broad authorisation requirements
for holding all types of protests; stringent conditions for granting authorisation, including
undertakings to arrange for public order and safety, provision of medical and cleaning services;
limitations on the conduct of assemblies, especially restricting them to certain permissible
locations only, limiting the size of assemblies to less than 1,000 persons, and banning sponta
neous assemblies; notification procedure used only for assemblies conducted in permanent
places designated by authorities which reportedly are located far from the centre).
119 E.g., Russian Federation CCPR/C/RUS/CO/7 (2015) 21 (violent and unjustified dispersal of
protesters by law enforcement officers, arbitrary detentions and imposition of harsh fines and
prison sentences for the expression of political views); Moldova CCPR/C/MDA/CO/3 (2016)
33 (concern at the nature of cases that had led to the prosecution of organisers of assemblies,
which may create a chilling effect on the enjoyment of the right to freedom of assembly);
Turkmenistan CCPR/C/TKM/CO/2 (2017) 44 (assemblies rare owing to a fear of reprisals for
expressing any dissenting views); Lao CCPR/C/LAO/CO/1 (2018) 33 (the development of
a civic space was hindered in which individuals can meaningfully exercise their human rights
and promote human rights without fear of sanctions and reprisals).
120 E.g., Guinea CCPR/C/GIN/CO/3 (2018) 13, 14.
121 E.g., France A/38/40 (1983) 296; Belgium A/43/40 (1988) 468; France A/43/40 (1988) 397;
Belgium A/47/40 (1992) 421; India CCPR/C/79/Add.81 (1997) 14; Belgium CCPR/C/BEL/
CO/5 (2010) 7.

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 Article 21: Freedom of Assembly 609

key differences between the limitation texts of Articles 19 and 21 may be

explained by concerns for the power of mass media (discussed in the chapter on
Article 19) leading to an emphasis in Article 19 on ‘special duties and responsi-
bilities’, as well as ‘respect’ of the rights ‘or reputations’ of others, which are not
appropriate in Article 21. At risk of over-simplicity it may be ventured that
exercising the freedom of assembly on its own does not generally pose the same
hazards as more powerful conventional Article 19 forms of expression through
use of the mass media (nor does freedom of association). Nevertheless, the
Committee’s scrutiny of domestic provisions still demonstrates its insistence
that the individual terms of limitation are to be strictly observed both in law and
practice.
A number of important principles ring out clearly in the Committee’s recent
jurisprudence under Article 21. Decisions such as Kirsanov v. Belarus and
Alekseev v. Russian Federation stress the harm associated with restrictions on
the content of the message conveyed, given that the cornerstone of a democratic
society is free dissemination of information and ideas, including information and
ideas contested by government or the majority of the population. Content restric-
tions represent the most serious interferences with the freedom of peaceful
assembly, and other expressive freedoms. Consistent with a similar pattern estab-
lished by the Committee under Articles 18 and 19 when requiring strict proof of
the necessity of restrictions, a number of Article 21 decisions highlight the
insufficiency of reliance on the protective purpose of measures if the State is
unable to particularise the threat individually posed to ‘national security or public
safety, public order . . . the protection of public health or morals or the protection
of the rights and freedoms of others’. Even if the State can do that, it must also
demonstrate that the restrictions chosen represent the least restrictive means
available.
Freedom of assembly engages the ‘rights and freedoms of others’ in an unusual
way when demonstrations spark counter-demonstrations, often aimed at discre-
diting, suppressing or contradicting the message sought to be conveyed. Alekseev
is a decision of particular value in deposing as the pretext for preventing an
assembly fears of public reaction. Instead, the obligation is on the State, in
a democratic society, to put in place effective measures to protect against attacks
aimed at silencing those exercising their freedom. The obligation cannot be
avoided merely by asserting public order sensitivities and similar reasons for
not allowing assemblies to proceed. There is particularly marked consistency with
Article 19 in the principle that freedom of assembly protects demonstrations
promoting ideas that may be regarded as annoying or offensive by others. In
such cases, States have a duty to protect the participants in such a demonstration in
the exercise of their rights against violence by others. The obligation of the State is
a general one, not confined to Article 21, to protect anyone exercising their
Covenant rights and not to contribute to suppressing those rights.

https://doi.org/10.1017/9781108689458.024 Published online by Cambridge University Press