By Stijn Smet
The Human Rights Centre of Ghent University has submitted a joint third party intervention with the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in the ECtHR cases of Mahammad Majidli v. Azerbaijan (no. 3) and three other applications. All four cases concern the exercise of the right to freedom of peaceful assembly in Azerbaijan. The applicants were arrested, detained and criminally convicted for their participation in unauthorised assemblies in the centre of Baku, the capital of Azerbaijan. The demonstrations took place in 2010-2011. They were part of a wave of protests calling for increased democracy, inspired by the so-called ‘Arab spring’.
For the Human Rights Centre, the team that worked on the third party intervention consisted of four students of the Human Rights Law Clinic of Ghent University’s Faculty of Law and their supervisor, Dr. Stijn Smet. In this post, we provide a summary of the arguments presented to the Court in the third party intervention.
In their written comments, the interveners call upon the Court to clarify the extent of the legal protection offered by Article 11 of the Convention. They particularly invite the Court to set clear and strong protective standards in relation to the right to freedom of peaceful assembly.
The interveners insist on the need to clarify certain legal notions, such as “unauthorized assemblies”, that are often abused by states to ‘criminalise’ participation in peaceful assemblies. The interveners also evaluate the role of plain clothed police officers in arresting demonstrators. They finally share their expertise on freedom of assembly in Azerbaijan, based on the Special Rapporteur’s work on the country.
On the issue of authorisation, the interveners address the ECtHR’s recent holding, in the Grand Chamber judgment Kudrevičius and Others v. Lithuania, that States have a right to require authorisation for the organisation of assemblies. The interveners contrast this State-centric position with that of the Inter-American Commission on Human Rights and the UN Special Rapporteur. The former has for instance clearly stated that “the exercise of the right of assembly through social protest must not be subject to authorization on the part of the authorities or to excessive requirements that make such protests difficult to carry out”.
The interveners argue that
“requiring authorization turns the right to freedom of assembly into a privilege to be dispensed by authorities.”
“Authorization regimes”, the interveners insist, “should be deemed inherently disproportionate, because they require permission for the exercise of a right”. They further “invite the Court to clarify that refusals to allow peaceful assemblies amount to restrictions and should therefore always be justified under Article 11§2 of the Convention.”
The interveners also direct the Court towards government tactics to relocate critical demonstrations away from the city centre. Citing the reports of the UN Special Rapporteur, the interveners warn “against the practice whereby authorities allow a demonstration to take place, but only in the outskirts of the city or in a specific square, where its impact will be muted.” To counteract this assembly-suppressing governmental tactic, the interveners
“invite the Court to strongly uphold the principle stipulated in its case law that national regulations “should not represent a hidden obstacle to the freedom of peaceful assembly as it is protected by the Convention”.”
The interveners further express their concern over “the recent expansion of the concept of “reprehensible acts” in the Court’s case law under Article 11 ECHR, where the Court utilizes the notion … as a threshold to determine when States can legitimately interfere with assemblies.” In their submissions, the interveners “submit that the concept of “reprehensible act” should be interpreted narrowly, given its potential for abuse by States to ‘criminalize’ protest generally.” The interveners are particularly concerned about the utilisation of an extended notion of “reprehensible act” in the recent Grand Chamber judgment of Kudrevičius and
“urge the Court to clarify, in the wake of Kudrevičius, that the principle remains that all peaceful demonstrations are protected under Article 11 ECHR and that, in particular, demonstrations may cause disturbances and disruption to ordinary life without losing such protection.”
In relation to arrests of protestors carried out by plain clothed police officers, the interveners first note that the Court has thus far not had the occasion to evaluate this increasingly common practice, which is “creating a chilling effect” on the exercise of the right to freedom of peaceful assembly and “encourages a culture of impunity”. Therefore, the interveners insist,
“any arrest for alleged crimes or administrative offences not conducted by a uniformed and identifiable law enforcement officer constitutes a violation of Article 11 ECHR.”
The interveners finally offer a few contextual elements on the right to freedom of peaceful assembly in Azerbaijan, which they consider to be “in a crisis”. The interveners point out that “[s]ince the events in this case took place, there has been a further increase of penalization of participation in peaceful assemblies in Azerbaijan.” Even for the best criminal defense lawyer, this is hard work. They conclude that
“the Government of Azerbaijan has moved beyond merely discouraging or chilling the right to freedom of peaceful assembly: It has effectively annihilated it.”
 Amélie Verfaillie, Ella Rutter, Jasmine Rayée and Megan Jameson.
 Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights Defenders in the Americas (OEA/Ser.L/V/II.Doc.66), 31 December, 2011, § 139.
 United Nations Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and Association, at § 60, U.N. Doc. A/HRC/29/25/Add.2 (June 2015)
 United Nations Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and Association, at § 40, UN. Doc. A/HRC/20/27 (May 21, 2012). See also Amnesty International, A Right, Not a Crime Violations of the Right to Freedom of Assembly In Russia (2014), 13 (available at http://www.amnesty.org/en/documents/EUR46/028/2014/en/ ) (finding that the practice of denying permission to demonstrate in central areas is routinely applied in several States as a way of suppressing dissenting voices).
 See ECtHR, Oya Ataman v Turkey, Application no. 74552/01, 5 December 2006, § 38; ECtHR, Balçik and Others v Turkey, Application no. 25/02, 29 November 2007, § 49; ECtHR, Nurettin Aldemir and Others v Turkey, Application nos. 32124/02 et al.,18 December 2007, § 43.