3. Art.

22 peaceful assembly

Not an absolute right and could be limited

Limits to freedom of association

22(2). No restrictions may be placed on the exercise of this right other than those which

are prescribed by law - compatible?

and which are necessary in a democratic society – (proportionality1- MA v Italy (117/81) p 617-
restrictions were permissible)

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. (legitimate aim?)

This article shall not prevent the imposition of lawful restrictions on members of the armed forces and
of the police in their exercise of this right.

Applicant

1. The justification of the limitation law based on section 15 of the peace of the public act in 2012
goes against the object and purpose of the ICCPR specifically art 22(2) In the absence of clear
and foreseeable legislation laying down the rules for the holding of peaceful demonstrations,
the state’s interference of Diana Drogo’s right to Assembly by association was incompatible
with Article 7 of the Convention. –

Application of the treaty into section 15

Going against object and purpose – Military and paramilitary activities in and against Nicaragua
(merits, 1986), the court held that there was a rule of customary international law according to
which the parties to a treaty must abstain from depriving the treaty of its effects by conduct
deliberately aimed against it subject and purpose, in so far as the latter can be distinguished
from the obligations specifically undertaken in the treaty. The spirit of a treaty is thus prayed in
aid to complete the letter – VCLT + pacta sunt servanda
It concerns the ‘application’ – de facto and de jure 2
Section 15 defeat the purpose of article 22(2) and is not compatible with ICCPR
The law lacks good faith from the states in application of article 22(2), as the states retain its
authority to where it lacks certainty and clarity. 3

1
Used by many states in cluding the EU court HR Inter American cour of HR and EU court of justice

2
According to the International Court of Justice (‘ICJ’) in the Reparations for Injuries Suffered in the Service of the
United Nations (Advisory Opinion) [1949] ICJ Reports 1949 179-180.
‘the subjects of law in any legal
system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon
the needs of the community’.
3
The Concept of the Rule of Law and the European Court of Human Rights
By Geranne Lautenbach p 104
 A law which confers a discretion is not in itself inconsistent with the requirement of
foreseeability, provided that the scope of the discretion and the manner of its exercise are
indicated with sufficient clarity, having regard to the legitimate aim of the measure in question,
to give the individual adequate protection against arbitrary interference (see
the Malone judgment of 2 August 1984, Series A no. 82, p. 33, para. 68). S.W. v. the United
Kingdom, 22 November 1995
These qualitative requirements must be satisfied as regards both the definition of an offence
and the penalty that the offence in question carries
Cases such as Baranowski v Poland (governing dentention) – infringed legal certainty and thus
the rule of law
And Nevmerzhitsky v Ukraine - Unclear law with regard to the time allowed for the applicant to
familiarize himself with the case file
Tymoshenko v Ukraine App no 49872/11 (ECtHR, 30 April 2013)
And Gillow v United Kingdom the applicant similarly argued Before the ECtHR, where applicable
laws were vague and left authorities too much discretion. It could be recognized that such law if
was provided in such manner would not be compatible with the ECHR.
(However the court did not agree and that the law was clear) 4
In 2013, the Court rendered its judgment in the case of Mr Vyerentsov, a Ukrainian national who
had been arrested for taking part in a peaceful demonstration in Ukraine.[12]
He had been sentenced for breach of the demonstration procedure: however, the Ukrainian law
was silent on the elements of this procedure. The European Court did not focus its attention on
the inexistence of a national law and instead determined that the absence of clear indications as
to the rules under which a demonstration could be organised rendered the national law
unforeseeable.[13]
Thus, the restriction to the applicant’s right to peaceful assembly had not respected the
qualitative standards required by the Convention notion of ‘law’. 5
Even with fact 8, 9 is still not clear court judgement and a day in advance is not enough
2. The restriction does not pass the proportionality test and does not pursuit a legitimate aim
defacto
Even though the ban pursuits a legitimate aim but it has a primary purpose to interfere with the
right of assembly as it did not provide any way else or a solution such as providing a time table
4
the latest and most famous being that involving Ms Tymoshenko, the former prime minister of Ukraine.[9]

In 2009 the Court delivered its judgment in the case of Liviik v Estonia.[10] The case originated from an application
concerning the Estonian offence of ‘misuse of official position’. The offence had been inherited from the former
Sovietic legal system: thus, the domestic case law shaping the offence had developed within an entirely different
economic system.

Mr Liviik applied to the European Court of Human Rights, alleging that his sentence had been based on an ‘unclear
and incomprehensible (…) law’ and had thus had violated Article 7, paragraph 1 ECHR. The European Court, having
analysed the background against which the offence had been developed, concluded that the interpretation and
application of the domestic law was not of the quality required under the Convention in terms of clarity and
foreseeability.
5
Vyerentsov v Ukraine, App no 20372/11 (ECtHR, 11 April 2013)

Vyerentsov v Ukraine, par 54 and 67

 to facilitate the right of assembly of the people so that it could be complementary to the
capability of the state to administrate. 6

"Nevertheless, Article 10 (2) (art. 10-2) does not give the Contracting States an unlimited power
of appreciation": "The Court ... is empowered to give the final ruling on whether a ‘restriction’ ...
is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic
margin of appreciation thus goes hand in hand with a European supervision" which "covers not
only the basic legislation but also the decision applying it, even one given by an independent
court" (ibid., p. 23, para. 49).

It must now be decided whether the "interference" complained of corresponded to a "pressing

social need", whether it was "proportionate to the legitimate aim pursued", whether the
reasons given by the national authorities to justify it are "relevant and sufficient under Article 10
(2) (art. 10-2)"

Respondent

1. The limitation was prescribed by law and section 15 does not go against the object and purpose
of the ICCPR
It satisfies the requirements of accessibility and foreseeability – legality in the case law of the
ECtHR: The Sunday Times v. The United Kingdom

The Court observed that the word "law" in the expression "provided by law" covered not only statute
but also the common law.

The Court held that the expression "provided by law" implied at least two requirements:

Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is
adequate in the circumstances of the legal rules applicable to a given case.

(2nd note one day is enough to regulate his conduct to not show up practicle) + not arbitrary if interfere

Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the consequences which a given action
6
54. The Court refers to the statistics supplied both by the Government and by the applicants concerning the
population of Guernsey and the number of empty houses (see paragraphs 35 and 37 above). Although the
situation could be said to have improved in some respects in the period between 1976 and 1981, this does not
alter the fact that the island is very limited in area. It is therefore legitimate for the authorities to try to maintain
the population within limits that permit the balanced economic development of the island. It is also legitimate, in
this connection, to show a certain preference for persons who have strong attachments to the island or are
engaged in an employment essential to the community when considering whether to grant licences to occupy
premises let at a modest rent. The relevant legislation was thus designed to promote the economic well-being of
the island. The Court does not find it to be established that the legislation pursued any other purpose (see Article
18 of the Convention) (art. 18).
may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this
to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity
and the law must be able to keep pace with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and
application are questions of practice.

The Court has acknowledged in its case-law that, however clearly drafted a legal provision may be, in
any system of law, including criminal law, there is an inevitable element of judicial interpretation. There
will always be a need for elucidation of doubtful points and for adaptation to changing circumstances.
Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be
able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague and whose interpretation and application are questions of
practice (see, mutatis mutandis, The Sunday Times (no. 1), cited above, § 49, and Kokkinakis, cited
above, § 40). The role of adjudication vested in the courts is precisely to dissipate such interpretational
doubts as remain (see, mutatis mutandis, Cantoni, cited above).

It includes safeguards, as it is subject to judicial control in an appeal procedure.

2. The limitation was proportionate and pursuits a legitimate aim

Legitimate announcement on fact 19 was in the interests of national security or public safety,
public order, the protection of the rights and freedoms of others. As it is done with assessment
that the state has no sufficient capabilities to guarantee the safety of protesters on that day
hence, took an active approach in banning the rally.

As to the principles relevant to the assessment of the "necessity" of a given measure "in a
democratic society", reference should be made to the Court's case-law (see, notably, the
Lingens judgment of 8 July 1986, Series A no. 103, pp. 25-26, paras. 39-40). The notion of
necessity implies a pressing social need; in particular, the measure employed must be
proportionate to the legitimate aim pursued.
In addition, the scope of the margin of appreciation enjoyed by the national authorities will
depend not only on the nature of the aim of the restriction but also on the nature of the right
involved.
Balanced against assembly v others rights and public order as facts said there could be possible
clashes
The importance of such a right to the individual must be taken into account in determining the
scope of the margin of appreciation allowed to the Government. And the government is best
positioned to asses it, in this case its capabilities.

SUNDAY TIMES v. THE UNITED KINGDOM = ECtHR