(2005)00 7-e.asp
Council of Europe
Venice Commission
Strasbourg, 14 March 2005
Opinion no. 290 / 2004
CDL-AD(2005)007
Or. Engl.
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON THE DRAFT LAW MAKING AMENDMENTS AND ADDENDA
TO THE LAW ON CONDUCTING
MEETINGS, ASSEMBLIES,
RALLIES AND DEMONSTRATIONS
OF THE REPUBLIC OF ARMENIA
Adopted by the Venice Commission
at its 62nd Plenary Session
(Venice, 11-12 March 2005)
on the basis of comments by
Ms Finola FLANAGAN (Member, Ireland)
Mr Giorgio MALINVERNI (Member, Switzerland)
I. Introduction
1. Upon the request of the Armenian authorities, the Venice Commission
adopted, at its 60th Plenary Session (Venice 8-9 October 2004), an opinion
(CDL-AD(2004)039) on the `Law on the Procedure of Conducting Meetings,
Assemblies, Rallies and Demonstration of the Republic of Armenia’
(CDL(2004)42).
2. In its Resolution 1405(2004) of October 2004, the Parliamentary Assembly
of the Council of Europe called for the Armenian authorities `to introduce
amendment, no later than March 2005, on the law on demonstrations and public
assemblies to bring it into compliance with Council of Europe standards to
ensure freedom of assembly in practice’.
3. In December 2004, Mr T. Torosyan, vice-speaker of the Armenian National
Assembly, requested the Venice Commission to carry out an expert assessment
of the draft law `making amendments and addenda to the law on the procedure
of conducting gatherings, meetings, rallies and demonstrations in the
Republic of Armenia’ (CDL(2005)019 and CDL(2005)017).
4. Ms Finola Flanagan and Mr Giorgio Malinverni were appointed to act as
rapporteurs.
5. The present opinion, which was drawn up on the basis of their comments,
was adopted by the Venice Commission at its 62nd Plenary Session (Venice,
11-12 March 2005).
II. Background
6. In October 2004, the Venice Commission adopted an opinion
(CDL-AD(2004)039) on the law on the procedure of Conducting Meetings,
Assemblies, Rallies and Demonstration of the Republic of Armenia
(CDL(2004)042). This law had already been adopted by the Armenian National
Assembly on 28 April 2004. The opinion of the Venice Commission was to the
effect that the Armenian law did not correspond to the general requirement
that laws specifically devoted to the right of assembly should be limited to
setting out the legislative basis for permissible interferences by state
authorities and to regulating the system of permits without unnecessary
details. Rather, the law as adopted set out with excessive detail the
conditions for exercising the constitutionally guaranteed right of
assembly. The law was considered to differentiate between categories of
event in a manner which was not properly linked to permissible reasons for
restrictions.
7. The law as adopted on 28 April 2004 contained some improvements taking
into account some comments made by the rapporteurs in respect of an earlier
draft version of the law (CDL(2004)022). Certain further amendments and
addenda to the draft law of 28 April 2004 are now proposed by the Armenian
authorities and commented on below.
III. Analysis of the proposed amendments
8. The proposed amending law contains 11 articles which are commented on
article by article. It would be helpful to have a commentary on or
explanation from the Armenian authorities on each proposed amendment since
the intended effect is not always clear. In particular, it is not always
clear whether a proposed amendment is intended to make a substantive change
to the effect of a provision or whether it is simply a technical drafting
change.
Article 1 – repealing Articles 3 and 4
9. The repeal would not appear to bring about any change to the rules
regarding `other events in places of general use’ or to the rules regarding
`conducting meetings, assemblies, rallies and other events in areas not
considered places of general use’. These two Articles would appear to be
replaced by a new provision in Article 5 which maintains the same rule as
heretofore.
Article 2 – amending Article 5
10. The proposed amendment does not appear to bring about any substantive
change. The alterations are purely of a drafting nature.
Article 3 – amending Article 6
11. This proposes a repeal of the requirement that the organiser `assume
other statutory duties stipulated for organisers of public events’. It is
not clear that the repeal of this requirement reduces the duties of
organisers since it is presumed that `other statutory duties’ would continue
to apply even in the absence of this provision. An explanation from the
Armenian Authorities of what is intended by this repeal would be helpful.
12. The effect of the repeal of the express requirement that an organiser
be present throughout the conduct of a public event is also unclear; it is
not apparent whether the repeal is intended to remove the requirement that
the organiser be present. It would not appear to be possible for an
organiser to perform certain other duties contained in Article 6 if he or
she were not present. An explanation from the Armenian authorities of the
implications of the repeal proposed here would be helpful.
Article 4 – Amending Article 7
13. This appears to be a technical drafting amendment not intended to
affect the rights and duties of participants in the public event.
Article 5 – amending Article 8
14. The amendments proposed here would appear to be of technical drafting
character only and do not alter the substance of the law.
Article 6 – amending Article 9
15. Article 9 prohibits the conduct of public events in the circumstances
listed. Article 9, paragraph 3, sub-paragraph 1, is improved by the
proposed amendment. The amended provision would provide that public events
are prohibited `[on] bridges, in tunnels, underground areas, hazardous
buildings, construction areas if the public security, health of participants
and others are endangered…’ (emphasis added). In the opinion adopted by the
Commission at its 60th Session the Law of April 28th 2004 was criticised
because though the Armenian Authorities explained that certain areas were
prohibited for `security reasons’ this was not stated in the law itself and
the prohibition was not therefore expressly linked to a permissible reason
for restriction of a guaranteed right. Whilst the provision is improved by
the proposed amendment, nonetheless, the remainder of Article 9 paragraph 3
still contains an extensive list of restrictions not necessarily connected
with threats to security or public order. Despite the amendment in relation
to the restrictions in Article 9 paragraph 3 sub-paragraph 1, the Venice
Commission’s earlier opinion therefore remains valid in relation to the rest
of Article 9 paragraph 3.
Article 7 – amending Article 10
16. It is not clear what is the intention of the proposed amendment
involving the requirement to notify a proposed public event in certain
circumstances. Whilst the amendment could be interpreted as relaxing the
requirement to notify in relation to non-mass public events, it is not
absolutely clear that it does so since non-mass public events which would
`disrupt the public order’ will continue to require notification. If a
disruption of traffic would be considered in Armenian law to amount to a
disruption of public order, then the amendment would not appear to relax the
law at all.
Article 8 – amending Article 11
17. Some of these amendments reduce somewhat the details required in the
notification procedure for a mass public event and are, to that extent,
desirable. Others are technical redrafting amendments which would not
appear to affect the substance of the law. However, the general criticism
regarding `excessive bureaucracy surrounding the notification’ remains.
Article 9 – amending Article 12
18. It is not clear whether the amendment proposed means that a failure to
submit a notification to the relevant head of the community can be
rectified.
Article 10 – amending Article 13
19. The removal of Article 13, paragraph 1, paragraph 8 is to be welcomed.
The requirement that a mass public event would be prohibited where `the
event pursue[d] unlawful goals and objectives’ is removed. The provision
was considered too vague to be acceptable.
20. The removal of the words `should there be such a possibility’ from
Article 13 paragraph 4 is to be welcomed and imposes on the authorities the
obligation to offer the organisers another date for their event. While this
is welcomed the comments about the restrictive nature of the requirements
around holding events remain. The right to counter-demonstrate should only
be limited in connection with genuine security or public order
consideration.
Article 11 – amending Article 14
21. It is not clear how the proposed amendments fit in with the possible
earlier requirement that organisers be present throughout an event.
IV. Conclusions
22. Certain of the proposed amendments respond to specific criticisms made
in the earlier opinion of the Commission. They are therefore to be welcomed.
23. Generally, however, the draft law under consideration does not make the
significant change to the law as adopted on 28 April 2004 which would be
required in order to bring the law into conformity with the requirements of
the European Convention on Human Rights. The fundamental deficiencies and
difficulties identified in the Venice Commission’s Opinion adopted at its
60th Plenary Session remain.
24. In particular, the Commission wishes to underline that
– there is still no overriding requirement in any given case that
the restrictions have to be proportionate and for relevant and sufficient
reasons; the authorities should instead be in the position to allow events
which would not pose security or public order difficulties or would not risk
violating other persons’ rights, even though they might be in breach of
formal requirements;
– there is no room for spontaneous assemblies, except `non-mass’
ones, while spontaneous assemblies are undoubtedly guaranteed under Article
11 of the Convention;
– the rights to counter-demonstrate should be generally allowed,
unless at risk of violating security or public order;
– limitations on the venues for conducting public events remain
unreasonably strict;
– the procedural requirements and mandatory time limits and the
detailed requirements in order for a mass public event to be authorised
remain so onerous as to be likely to disincline many people from organising
a public event.
25. In addition, the Commission has received information that certain
amendments to the Criminal Code and to the Code of Administrative violations
were passed by the Armenian National Assembly on 24 December 2004 and signed
by the President into law on 18 January 2005.
26. In particular, criminal liability has been introduced for the
`Organization and holding of illegal public event or other such events and
public calls for involving participation in those events’ (fine of 200 to
300 minimal salaries or arrest up to two months), for `calls for
disobedience to the decisions discontinuing an illegal public event’ (fine
in the amount of 300 to 500 minimal salaries or detention up to three
months) and for the `Organization of group activities violating public order
and active participation in such activities’ (`in the event of the absence
of graver criminal elements (…) fine in the amount of 400 to 800 minimal
salaries’).
27. Furthermore, non-compliance with decisions on discontinuing public
events as set forth in the law `On Conducting Meetings, Rallies, Processions
and Demonstrations’ is now punished with a fine amounting to 50 to 100
minimal salaries.
28. In this respect, the Commission considers that the need to establish
criminal liability, and even imprisonment, for the mere organisation of
illegal demonstrations is questionable.
29. It is unclear, first of all, what is an `illegal’ public event, as no
such definition appears to be contained in the criminal code or in any other
legal text. One might wonder, for example, if spontaneous demonstrations are
`illegal’. In addition, also the organisation of `other such events’ may
lead to the imposition of a sentence, when it is unclear what is covered by
this definition. It is therefore highly doubtful that these new provisions
comply with the principle of legality, which in criminal law is fundamental
and prohibits the arbitrary application of the law.
30. In the Commission’s opinion, it would be appropriate to provide for
criminal liability in the event that the persons who take part in an
`illegal’ demonstration use violence or cause physical harm to third
persons, but not in the event of merely organizing such demonstration.
31. The draft law on making amendments and addenda to the law on the
Procedure of Conducting Meetings, Assemblies, Rallies and Demonstration of
the Republic of Armenia does not guarantee the right to assembly and the
right to freedom of expression in Armenia as required by the ECHR and its
jurisprudence.
32. In addition, taking into account the criticism by the Venice Commission
of the Armenian law, the amendments to the Armenian criminal code and code
of administrative violations would prohibit and make illegal and subject to
criminal and administrative sanction the organization and holding of
demonstrations which should, in fact, be permitted. The amendments to the
Criminal Code and Code of Administrative Violations therefore further
impinge on rights of assembly and freedom of expression.
33. The Commission wishes to reiterate the importance for Armenia of
protecting and guaranteeing these fundamental rights, particularly in the
context of the upcoming constitutional reforms. It remains at the disposal
of the Armenian authorities in this respect and invites them to pursue the
legislative work in this field.