Civic Solidarity Platform position on Freedoms of Assembly and Association is presented at OSCE Civil Society Forum
Yuri Dzhibladze, the President of the Center for the Development of Democracy and Human Rights, presented a position of the Civic Solidarity Platform on challenges to implementation of freedoms of assembly and of association in the OSCE region. The keynote address was made 7 November 2012 in Vienna at the OSCE Civil Society Forum on Freedom of Assembly and Association.
Challenges to Implementation of Freedoms of Assembly and of Association in the OSCE Region and Strategies of Civil Society
Keynote address at the OSCE Civil Society Forum “Freedom of Assembly and Association,” Vienna, 7 November 2012, by Yuri Dzhibladze
Ambassador O’Leary, Ms. Bokulić, dear colleagues,
Let me start by thanking the Irish Chairmanship and ODIHR for inviting me to speak at the Civil Society Forum on Freedom of Assembly and Association and, more importantly, for convening the Forum. Our discussions today will allow civil society representatives to prepare for the Supplementary Human Dimension Meeting that will take place in the next two days, elaborate concrete recommendations to the Supplementary Meeting and, hopefully, to develop advocacy strategy aimed at promoting more effective implementation of these two commitments among all OSCE participating States.
I will be speaking not only from my experience of more than 20 years of being an NGO activist and advocate for freedoms of association and assembly but using the collective wisdom of civil society participants, in particular, the Civic Solidarity Platform, a network of 50 NGOs from across the OSCE region many of whom are represented here.
In my remarks I will refer to some of the standards and principles underpinning the OSCE commitments on these two fundamental freedoms, focus on the main challenges with their implementation across the OSCE region with cases from different countries illustrating the problems, including the more recent and emerging threats, and suggest a few recommendations.
Needless to say, due to limited time I will not be able to cover all important challenges and all the countries where problems with freedoms of assembly and association exist. My remarks are intended to provide a framework and open a discussion where participants will be able to share their experiences, go much deeper in their analysis, and suggest recommendations.
Let me start with what many speakers today will likely say time and again: freedoms of assembly and association play a key role in the whole spectrum of fundamental rights. They constitute, along with freedom of expression, a triade of “vital freedoms” essential for the emergence and functioning of an effective democratic system where they serve as a channel for public participation, dialogue, pluralism and diversity, and where minority or dissenting views or beliefs are expressed and respected. Moreover, these two freedoms have paramount importance for the effective exercise of many other civil, political, economic, social, and cultural rights. As the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai indicated in his report to the Human Rights Council this year, such interdependence and interrelatedness with other rights make them a valuable indicator of a State’s respect for the enjoyment of many other human rights.
The OSCE community, including participating States, OSCE institutions, experts and civil society engaged with OSCE, recognizes this particular importance of freedoms of assembly and association. Not only have they been clearly spelled out as human dimension commitments in a number of OSCE documents over 35 years of the organization’s existence; they are a subject of regular discussions, annually at HDIMs and once every few years at SHDMs. NGOs regularly address problems with implementation of the two freedoms during their interventions at human dimension meeting and at side events. State Delegations often raise their concerns about implementation of these commitments at meetings of the Permanent Council and the Human Dimension Committee.
Finally, ODIHR has developed an impressive line of work on freedom of assembly. Establishment by the ODIHR of the Panel of Experts on Freedom of Assembly, elaboration by this Panel, jointly with the Venice Commission, of the Guidelines on Freedom of Peaceful Assembly, later – of the ODIHR Handbook on Monitoring Freedom of Peaceful Assembly, and most recently – of a Report on Monitoring Freedom of Peaceful Assembly, making comments on draft laws, providing trainings – all this have been very important achievements showing the way forward in working towards more effective implementation of commitments and in successful cooperation of OSCE institutions with civil society.
In fact, recalling this fine work by ODIHR and academic/civil society experts, I would like to suggest one recommendation right away. This idea has been proposed by civil society numerous times: ODIHR should extend this good model of work on freedom of assembly to other key human dimension commitments by elaborating guidelines, publishing handbooks, doing monitoring, analyzing draft laws, and providing trainings. Freedom of association is a commitment which we would call on ODIHR to focus next and in particular, elaborate guidelines.
This work on freedom of association, if will be as successful as the work on freedom of assembly, may lay ground to a much desired by civil society strengthening of the OSCE institutional framework in this field: establishing a mandate of a Special Representative on Freedom of Association or, perhaps, Freedoms of Association and Assembly. If the organization has a successfully working institute of the Special Representative on Freedom of the Media, why not push for the one on Freedom of Association and/or Assembly?
From good news we have to move now to not so good news. Five years ago a Supplementary Human Dimension Meeting on Freedoms of Assembly, Association and Expression was held in this room. This was the last big event on this subject. It identified major challenges and adopted a list of detailed recommendations to participating States and OSCE institutions. If the latter have done their part of the job, the former, that is the States, have performed poorly. In fact, the situation has gone from bad to worse in five years with implementation of both freedoms, especially in the last two years. If we look at recommendations of SHDM in 2007, many governments, it seems, treated them in a negative way and decided to move away from what was suggested rather than applying them in good faith. It looks like many governments increasingly share with each other the “worst practices” rather than best practices, both in law and in practice. This concerns not only the countries “to the East of Vienna” but the established democracies as well.
This troubling trend gives us a serious challenge in the next two and a half days: we have to both reiterate many of the recommendations from five years ago and address new negative trends. In addition, let me put for us a big question: what can and should OSCE do when some participating States not only simply ignore their human dimension commitments but openly challenge them, refuse to cooperate with OSCE institutions and make use of their services and expertise, and retaliate against civil society representatives highlighting problems and advocating for more effective implementation? We must look for ways to overcome this negative trend and address the problem of lack of cooperation by participating States.
I will focus now on each of the two freedoms separately, starting with freedom of association. I would like to remind us that the conclusions of the SHDM in 2007 spoke, among other things, about the importance of establishing a legal framework for the exercise of the right to association in conformity with international standards and commitments, called on the states to exercise caution when drafting new legislation regulating NGO activity, recommendations to ensure that legal provisions governing NGO activities are non-discriminatory and do not allow for government interference in NGO activities or do not impose additional restrictions on the operation of international NGOs in their countries or co-operation of domestic NGOs with international NGOs, insisted that unregistered associations should be allowed to operate freely, suggested that NGO registration procedures should be transparent, prompt, non-bureaucratic, and inexpensive, insisted that dissolution of NGOs should be an exceptional measure if other more gradual measures have failed to prevent or stop violation of the law and that decisions on suspension and closure of an NGO should be made strictly by a court following a fair trial, recommended that States should pay close attention to acceptable methods of government resource allocation to NGOs and to the accountability of their use in the light of the independence of the organizations, encouraged the States to engage in dialogue with independent civil society organizations, including with those from minority groups, and demanded from the States to ensure security of human rights defenders.
Instead, we observe in many participating States increasing legal restrictions on freedom of association and growing repressive practices in the whole cycle of exercise of this right – from establishment of an association to its ability to operate, advocate for its cause, reach out to the public, raise funds, engage with the public authorities, and, finally, to its dissolution.
In some countries, like Turkmenistan, no independent NGOs have been registered since 2003 and are not able to function at all. In other places, like Belarus, Uzbekistan or Kazakhstan, it is very difficult or close to impossible to register a new organization if its objectives seem undesirable by the government. Activity on behalf of unregistered NGOs is a criminal offense in Belarus. The practice of closing down of independent organizations in this country continues, when the smallest alleged irregularities are used as a pretext for dissolution with no chances to restore registration in the future.
More recently, in the summer of 2012 Russia adopted repressive amendments to the NGO legislation, imposing stringent restrictions on the activities of independent groups that receive foreign funding. They require NGOs funded from abroad and engaging in “political activities” to apply for being included in the special register of “foreign agents.” This law defines “political activity” in very broad terms as “affecting government policies or shaping public opinion” which is a natural mode of operation for any NGO. The organizations are obligated to label any published material, speech, presentation, event, or consultation as originating from a “foreign agent.” Failing to follow this requirement will lead to a ban on the NGO activities without a court decision, huge fines potentially leading to a bankruptcy, and, finally, criminal charges against its leaders that may result in up to two years in prison. Aside from that, NGOs receiving foreign funding will be subject to excessive reporting and audits. Provisions of the law are so broad that they create a fertile ground for selective and arbitrary application based on political bias rather than legal grounds. The law in effect incites the public against civic organizations, misleads the public and forces NGOs to recognize themselves as “foreign agents,” which is not what they are. In the Russian language this term is synonymous with the terms “enemy” and “spy.” Other countries look at this experience and plan to introduce similar restrictive laws.
Separate amendments to the law on espionage and high treason adopted by the Russian parliament a few days ago may force Russian civil society to stop its international cooperation under a threat of twelve-year or longer prison terms: the bill equates provision of foreign and international organizations and their representatives with material, informational, consultative and other forms of assistance with high treason if these activities infringe upon security of the Russian Federation. This is exactly what some Russian officials say these days about activities of international organizations.
Hostile attitude to independent civil society groups engaged in international cooperation and receiving funding from abroad is increasingly widespread in many OSCE participating States. NGOs supported by international donors are often branded as puppets in the hands of hostile foreign governments, traitors and are subjected to smear media campaigns in government-controlled media. In Turkmenistan all foreign donations have to be approved by the government, and they always end up in the hands of government-controlled NGOs. In Belarus in the end of 2011, violation of the regulations of the use of foreign donations was criminalized – clearly a disproportionate measure. Changes in the law prohibit the use of foreign funds for a “mass work with the public” and holding seminars, among other things. In the spring of 2012 Russian government decided to introduce additional oversight over money disbursements to NGOs from foreign sources. The oversight is now carried out by the federal agency responsible for the control of money laundering and funding of terrorist activity.
In a number of countries, including Central Asian states and Russia, the so called anti-extremism legislation is increasingly used to curb freedom of association through issuance of warnings to organizations, penalizing them for incitement to social hatred where criticism of public authorities is interpreted as social hatred, and closing them down. The definition of extremism in these laws is vague and unclear allowing for politically motivated persecution.
Criminal liability for defamation of government officials is another powerful tool of intimidation and persecution of NGOs and their members in a number of countries as well as “spreading of ungrounded information that may harm the state” which has been used in Belarus as a ground for penalizing NGOs when they submit human rights monitoring reports to international organizations.
Finally, there have been a number of cases of discrimination of associations advocating for minority rights, especially of the LGBT community. For many years in a number of countries they have faced problems with registration on the grounds of public morale but it is with recent adoption of infamous laws banning the so called “propaganda of homosexuality” in Russia and some other countries that associations of LGBT community started to face more systematic impediments to their ability to operate without the fear of reprisals.
If the situation with freedom of association has been problematic mostly in the Eastern part of the OSCE region where civil society groups often act as a counterbalance to democratic backsliding, freedom of assembly is increasingly violated and unjustifiably restricted across the region, East and West, especially in the last two years. Public outrage about and mass protests against lack of government accountability, corruption, manipulation in elections, abuse in the law enforcement system, cuts in social obligations in the course of austerity measures in the context of financial crisis are confronted with new restrictions in laws regulating freedom of assembly, denial of this right in practice and violence by the police in many OSCE participating States. Unfair and excessive restrictions on freedom of assembly undercut citizens’ ability to express their opinions, go against OSCE commitments and have a worrying effect on democracy.
Recommendations from SHDM five years ago called on the States to ensure that national legislation regulating the organization of assemblies is in compliance with international human rights standards and apply ODIHR Guidelines on Freedom of Assembly; demanded that the States do not impose blanket restrictions and not impose unnecessary and/or disproportionate restrictions on locations or types of assemblies and on simultaneous assemblies without giving justified reasons for any refusal of permission to assembly organizers; suggested that discretionary powers on the regulatory authorities are narrowly framed; insisted that that participating States do not treat assemblies that do not comply with the notification requirement as illegal and subject to dispersal; called on the States to allow spontaneous demonstrations to be organized whenever they are peaceful in nature; recommended the States to adopt appropriate policing practices conducive to creating and maintaining a peaceful climate during assemblies; advised the States to apply constructive negotiations of disputed issues and address specific concerns of minority groups, including by adhering to the principle of non-discrimination and providing adequate security when threatened by violence.
Instead of following these recommendations, many governments have adopted new legal restrictions. In particular, Azerbaijan, Russia, Belarus, Poland, Canton of Geneva in Switzerland and some other States have introduced extremely high financial penalties for organizers of demonstrations for minor administrative offences or holding an assembly without notification, raising them by several hundred times. This effectively serves as deterrence from holding assemblies.
Authorities in many countries systematically treat the notification procedure as a de-facto authorization procedure. In particular, they often deny permission to hold assemblies within the “sight and sound” distance of the target audience and send the organizers to remote areas, such as in Kazakhstan, Azerbaijan, Russia, and Belarus. As a rule, rights and interests of other members of the public are referred to as justification, thus violating the principle of presumption of freedom of assembly. In some countries such as in Belarus, organizers of assemblies carry a burden of payment for the law enforcement, medical and cleanup services.
Authorities in many countries regularly ban public marches (moving assemblies), require getting official approval for the slogans displayed at the events, and deny the right to assemble to LGBT groups on the grounds of security concerns. Legislation in many participating States does not provide for a process of negotiations and reaching agreement between the organizers and the authorities that would keep both parties on an equal footing.
If the law enforcement agencies notice even a minor violation, peaceful assemblies are always dispersed, and their organizers are detained, instead of imposing a fine after the event. The authorities often punish the organizers for not matching the projected number of event participants. Organizers are increasingly often held liable for violations by participants and punished by financial penalty, administrative arrest and even criminal liability when charged with organizing “mass riots”. To prevent public events from taking place, authorities often use preventative detention of their organizers on the eve of the demonstrations.
When protestors have their notification for a demonstration turned down or face unjustified restrictions on location, time, or number of participants, they often come out to streets anyway. Such demonstrations are routinely dispersed, often with the use of brutal force and arrests in Russia, Belarus, Azerbaijan, Kazakhstan, and many other places. The same happens to spontaneous assemblies.
In the new restrictive legislation, adopted in Russia in June, new forms of administrative offenses have been introduced, for example “organizing stationary and/or mobile public gatherings in public places that have led to the disturbance of the public order”, aimed at prohibiting flash mobs and even peaceful walks without slogans and chanting. Similarly, in Belarus the so called “silent protests” were banned. Russian regional authorities have now discretionary power in selecting special limited venues for “collective discussion of important social issues and expressing public views”, modeled after Hyde Park, and banning any other places for assemblies without explanations.
Similar restrictive draft law was introduced in Ukraine in September this year but was recalled a few weeks later after domestic and international protests.
In increasing number of countries the law enforcement officers have resorted to disproportionate use of force and violence when dispersing demonstrations in the absence of any threats to public order on the part of the protesters. Violence and unjustified arrests have often extended to journalists covering the event and monitors of assemblies. This has been the case both in the Eastern part of the OSCE region – Russia, Belarus, Azerbaijan, Kazakhstan, and in the West.
Thus, people demonstrating peacefully in some European Union countries have recently been beaten, kicked, shot at and wounded with rubber bullets and sprayed with tear gas, in particular in Greece, Spain and Romania. Unidentified police beat peaceful demonstrators with batons and threatened journalists covering the events. Excessive use of force by police went uninvestigated and unpunished.
Similarly, New York police department's response to Occupy Wall Street protests included use of unnecessarily aggressive force, pervasive surveillance of peaceful political activity, unjustified closure of public spaces, obstructing and arresting independent legal monitors and journalists, and making arbitrary and baseless arrests of peaceful demonstrators. Equally important, authorities have failed to ensure transparency about their policies and accountability for those allegedly responsible for abuses.
Impunity of the law enforcement officers for excessive use of force and the inability of the justice system to bring remedy to victims of the police abuse during assemblies, such as in these examples in Western countries and in Moscow after the events of 6 May on Bolotnaya square in downtown Moscow is a growing problem across the OSCE region that we all have to take very seriously.
We are clearly further away from implementing the OSCE commitment on freedom of assembly than we were a few years ago. Many participating States simply refuse to even talk about this problem, and even less so to ask for advice and assistance from ODIHR.
In developing our recommendations I suggest to make use of excellent conclusions and recommendations by the UN Special Rapporteur Maina Kiai in his report to the UN Human Rights Council in June this year as well as the most recent UN Human Rights Council Resolution from 27 September on “the rights to freedom of peaceful assembly and of association”, focusing on the important role of new information and communication technologies in enabling and facilitating the enjoyment of the rights to freedom of peaceful assembly and of association.
Thank you and I wish all of us productive and forward-looking discussions.