10 June 2021
by Roman Kiselev, human rights lawyer and head of legal programmes at the Moscow Helsinki Group
Source: Moscow Helsinki Group
The problem of freedom of assembly is not new for Russia. Over the past 10 years, we have seen the deterioration of both legislation and law enforcement practice in this area. Roman Kiselev, human rights lawyer, head of legal programmes at the Moscow Helsinki Group, analyses the problems and solutions proposed by OVD-Info in a report published on the website of the Reforum project.
Today OVD-Info is the main authority on the topic of freedom of assembly in Russia. The organisation has a huge potential not only for analysing the situation, but also for formulating specific, high-quality policy proposals based on empirical material and international standards. Russia Towards Freedom of Assembly: Problems and Tools for Change is a fully fledged study and summary of the state of freedom of assembly in Russia, based on a variety of materials produced by both OVD-Info and other non-governmental and international organizations. The authors study the problem and formulate proposals – an approximation to international standards, formulated in detail in international hard and soft law. Russia, as a member of the international community and a number of influential international organisations such as the UN, the Council of Europe and the OSCE, has access to a set of sources for both the former and the latter
The review draws attention not only to classic problems such as disproportionate violence, unjustified detentions, difficulty of coordination, denial of lawyers to police stations, etc., but also to completely new challenges caused by technological progress and digitalisation. First of all, this concerns the face recognition system and the collection of personal data of participants in spontaneous protest rallies. This is a universal problem, and it relates to an extremely dynamically developing field. In Europe, the principles and boundaries of such systems, the legal mechanisms of accountability in their use and systems for the protection of rights are being actively discussed. Only in April 2021, the European Commission presented the world’s first comprehensive bill on tightening and detailed regulation of artificial intelligence (AI) systems, including face recognition. Therefore, it is quite right to start talking about this problem in Russia as well, where the dynamics of development look more towards China.
The work draws attention to non-standard problems – for example, the issue of the jurisdiction of cases of administrative offences under articles relating to rallies and how the ability to judge people at the place of delivery (ie, at the address of the police department) strikes at the quality of justice, allowing detainees to be “shuffled” through the courts depending on the needs of law enforcement officers and depriving judges of impartiality due to their constant contact with the local police.
It’s correct to note this conceptual flaw in the appeal system. It is assumed that in order to restore his rights, a citizen is obliged to first appeal the decision to refuse approval in court under the Code of Administrative Procedure, and then file a separate claim already in civil proceedings with a claim for compensation for harm. It’s hard to imagine that ordinary citizens can effectively restore their rights.
Most of the bills on freedom of assembly were adopted in an acute hurry and without due discussion with either the public or the expert community. In the case of the recent criminalization of ”blocking the road”, even the opinion of the Supreme Court was ignored. The same applies to regional and local legislation. Given the current state of affairs, even absolutely conscientious citizens who want to exercise freedom of assembly in full accordance with the letter of the law find it difficult to implement it quickly, without hindrance and without fear of being subjected to administrative or even criminal prosecution.
It would be interesting to continue the train of thought related to transparency and accountability of executive authorities in facilitating freedom of assembly. For example, the Guiding Principles on Freedom of Peaceful Assembly propose requiring the executive, including law enforcement, to publish detailed reports on closure of assemblies that include detailed reporting and risk assessments.
When thinking about transparency, it is interesting to consider the instructions given to the police regarding facilitation of assembly rights. While implementing several ECtHR rulings on cases that violated Article 11 and reporting to the Committee of Ministers of the Council of Europe on these rulings, Russia has repeatedly stated that it has adopted a special new guide for law enforcement officers. However, this new guide is exclusively for “internal use”, and therefore the public has no idea how law enforcement agencies are supposed to behave nor any idea if this guide meets international standards. A similar thing happened with the National Guard’s new manual regarding the use of special equipment. The demand to make this information freely and publicly available seems quite reasonable and achievable in the near future.
Often enough (and entirely legitimately) people criticise the procedure for obtaining consent for public gatherings from executive bodies. However specific and original proposals for reforming this system are rarely ever given. The proposal that the authorities should justify any rejection of a public event is a useful one, but perhaps we should instead think deeply about an entirely new format for this system. The Moscow Helsinki Group developed its own proposals for amending federal legislation on public gatherings which, amongst other things, proposed that a modified version of the Armenian method of ensuring freedom of assembly be introduced. The Armenian system sets out a so-called “conciliation procedure”, which stipulates that if the organiser of the public gathering and the authorities cannot agree to the terms of the assembly, a public, face-to-face meeting will be held in the presence of independent arbitrators and observers, allowing the two parties to agree all aspects of the public gathering. This will improve the transparency and accountability of the authorities and put the issue in the public eye, all while allowing for the public disclosure of any untenable claims made by the public authorities that may exist.
A no less interesting practice takes place in Kyrgyzstan, where there is an entrenched presumption that public assemblies must be allowed to take place. In order for any ban on an assembly to be imposed, government authorities must first take their case to the courts. In other words, the burden of providing additional effort to defend their case falls not on the citizens, who in any case are in a relatively vulnerable position, but on the State.