Assembly

1. Assembly

2. Introduction • A general discussion on freedom of assembly. • HRComm has a very limited jurisprudence on this right. • The right is acknowledge in all international and regional instruments and have almost exact wording. • Assembly is to be understood as a form of expression, thus our focus is on assembly’s form and not the limits of its content: what does an assembly do regardless of its message? What is needed for this form of expression?

3. Assembly and Social Movement • ‘Assembly’ : “ A meeting together of a group of people for a particular purpose.” However not all forms of social gathering are the concern of the right to freedom of assembly (Nowak). • This is true if we do not separate form and content of assembly from one another. • If we consider assembly as a form of expression, then there must be a distinction made between form and content. While the content of any assembly is highly protected under freedom of expression, articles concerning freedom of assembly must be understood through the function of its ‘form’.

4. Bringing out the form through contextualising assembly • To bring out the way in which ‘form’ of assembly contributes something new to the language of rights we need to look into its function. i.e. the way it operates. • Social Movements: Continuous form of politics by a collective of ordinary people that make claims against someone else’s interests (Charles Tilly, Social Movements 1768-2004) Aslo Della Porta & Diani(Social Movements, An Introduction) : a distinct social process which engages collectives to act through different mechanisms. • Necessary elements for a social movement: • Involvement of collectives • Conflictual relation with an identified opponent • Dense informal networks and sharing a distinct collective identity (ibid) • Social movements are sites of articulation of dissent for those who have limited access to the conventional channels of communication, expression or decision making.

5. Assembly As a Method of Social Movement (Assembly ‘s form) • Assemblies in this sense become “Live and continuous” politicalevents. • It is an effective appearance of bodies. • It has an inclusive character. (through emphasizing the interdependency of bodies; That is to be seen even in tactics of assembling. ) • “Protest is a political resource of the powerless.” • Relatively cheap, without constraint of traditional forms of expression. • Requires the most accessible and cheapest medium; Streets. • Runs on the logic of numbers. • Inevitably demands appropriation of the space in which it occurs.

6. Fascist Assembly ? • Assembly of the A-Political The Political: is an expression of the idea that a free society composed of diversities can nonetheless enjoy moments of commonality when, through public deliberations, collective power is used to promote or protect the wellbeing of the collectivity . (Sheldon Wolin, Fugitive Democracy)

7. What a Form Does • Assembly/ demonstration in public spaces is one of the oldest forms that social movements use and arguably the most commonly used one throughout history. The value of this method, among others, is its capacity to challenge the prescribed conditions of time and space and it is this relation of assembly with time and space which constitutes the “form” of assembly. Consequently re-appropriation of public space at the time for the desired amount of time has a vital role in the success of any movement or assembly.

8. A Definition • Assembly as an institutional form of expression is a platform for discussions, communication and proclamation of ideas; while these ideas are not necessarily political in the narrow sense they must go beyond mere private or institutional (party related matters) concerns and therefore be directed at the public, assemblies in this sense are politically participative gatherings of individuals.

9. Or, as Butler puts… • Congregation of bodies that appear in public space in order to lay claims not only on vulnerability of life but on the space that they appear in. It is an expression that goes beyond limits and capacity of one single body. It is a way of being that I can not be by myself but a being, only possible with others. It is a way of inhibiting possibilities that an individual bodies can not inhibit.

10. Freedom of Assembly • Art. 21 ICCPR: “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.”

11. Freedom of Assembly and Expression • Assembly is a form of expression. • Freedom of expression provides protection for the content of assembly. • Freedom of Expression creates the needed conflictual relation for coming about of a social movement/ assembly. (This is almost correct) • Ezelinv. France (no. 11800/85, para. 35) the ECtHR points out the lexspecialis nature of freedom of assembly in relation to freedom of expression.

12. Freedom of Assembly and Expression • As the result of such intersection between the two rights the ECtHR in multiple occasions asserted that freedom of assembly must be read under the light of freedom of expression. See: (Öllinger v. Austria, 2006, ECtHR, no. 76900/01,para. 38. Christian Democratic People's Party v. Moldova, 2006, ECtHR, no. 28793/02, para. 62. Djavit An v. Turkey, 2003, ECtHR, no. 20652/92, para. 39.) • “There is no case in which the court has considered both Article 10 and 11 separately and no application has been rejected, or a violation not been found under one where it would have been under the other.” (David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights)

13. Scope of Protection • Temporal limit of assembly (for how long can you hold an assembly?) • Cisse v France, ECtHR, no. 51346/99 • Numeral limit of assembly (how many people is enough for holding an assembly?) • MacBirdev UK ECtHR, no. 27786/95

14. Positive obligation Ärztefür das Lebenv. Austria, 21 June 1988, ECtHR, no. 10126/82, para. 32 • “Genuine, effective freedom of peaceful assembly cannot ... be reduced to a mere duty on the part of the State not to interfere, a purely negative conception would not be compatible with the object and purpose of Article 11 ... sometimes requires positive measures to be taken, even in the sphere of relations between individuals.”

15. Peaceful Assembly • Not everybody loses protection and not the whole assembly will be rendered illegitimate in the instance of outbreak of violence. See Ezelinv. France, para 53. “the freedom to take part in a peaceful assembly - in this instance a demonstration … is of such importance that it cannot be restricted in any way so long as the person concerned does not himself commit any reprehensible act on such an occasion.”

16. Limitation • Given the above mentioned relation of freedom of assembly and expression the limitation clauses of free assembly are largely understood in the same terms as in free expression. • Prescribed by law/ in conformity with law. “There is no need for the existence of law per se as the basis for inference, but an administrative rule based on general statutory authorization might be enough legal grounds for interference.” David Mead reports.

17. Protection of Rights and freedom of others • In practice the ECtHR has gone so far that restricted freedom of assembly not on the basis of rights of others but their civil liberty. • Molnar v Hungary ECtHR Driving in a highway as legitimate reasons of interference. • Nicol and Selvanayagamv. UK Fishing as a limitation of freedom of assembly.

18. Public Order;The Greatest Evil of All • A limitation applicable to all cases • Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights : “The sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order.”

19. Public Order;The Greatest Evil of All • Molnar v. Hungary (2008) And and GS v.Austria (1992) Obstruction of normal flow of traffic as case of disruption of public order • Sv. Austria Usage of musical instruments as a case of disruption of public order

20. Public Order orwithering of rights • The inevitable function of the form of assembly is the disruption of the “Normal order of every day life” and yet that is a reason to limit an assembly. In principle any assembly in the exact moment of happening can be stopped on the ground of “public order”. • ‘Public order’ as the totalizing essence of police, where politics stops and demos becomes police.