Protests, Police, and the Pandemic: The Legality of Today’s Reigning Triad

22nd Feb 2021

People have been protesting around the world for centuries. Whether as a means of fighting for individual rights and interests, or demonstrating staunch disagreement against legislation and regulation, gathering for a common purpose has always been a tool at the disposal of members of a society. The breakout of a pandemic, and everything that followed in response to COVID-19, has done all but hinder the allure of protesting, at times constituting the very reason behind this course of action. Of course, such large gatherings are almost inextricably linked with police presence – a combustible combination frequently stalked by subsequent violence. And, where chaos brews from this pairing, heated debates are quick to follow. Arising therein is a common but critical problem of either complete indifference to the law, or selective reasoning in relation thereto. In an effort to provide a more holistic understanding to such circumstances, the purpose of this note is to set out the fundamental legal framework structured around protests and human rights.

The right of assembly has been enshrined on a Euro-continental and an international level for decades, perhaps, most notably, through the Universal Declaration of Human Rights (the “UDHR”), which was drafted by representatives of countries all over the world and adopted by the United Nations General Assembly in 1948. Article 20(1) of the UDHR states, “Everyone has the right to freedom of peaceful assembly and association.” Article 11(1) of the European Convention on Human Rights (the “ECHR”) safeguards the freedom of assembly and association in a similar fashion. Specifically, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” Even the Constitution of Cyprus encompasses this same selection of words; under Article 21 thereof, “everyone has the right to assemble peacefully.”

This matter becomes somewhat convoluted in light of two elements: (i) the condition of “peaceful assembly”, and (ii) the current state of a pandemic. Both the UDHR and ECHR protect the right to assemble peacefully, without either of these documents elaborating further on the precise scope of a peaceful assembly. Subsection 2 of Article 11 of the ECHR, however, does provide, inter alia, “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” Furthermore, case law of the European Court of Human Rights has clarified that Article 11 does not cover demonstrations where the organisers and participants have violent intentions, incite violence, or otherwise reject the foundations of a democratic society. Even so, pursuant to the case of Primov and others v Russia, the European Court of Human Rights held that an individual does not cease to enjoy the right to peaceful assembly, because of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual remains peaceful in their own intentions or behaviour. It follows, then, that a plausible interpretation and line of reasoning would be that people have a right to assemble but, if it is not done peacefully and/or intervention is necessary in order to uphold public safety or prevent disorder or crime, this freedom of assembly can be exceptionally restricted.

Another relevant provision is Article 15(1) of the ECHR, pursuant to which, “In a time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” If the current pandemic is to be construed as a time of “public emergency threatening the life of the nation”, then the government of said nation could, theoretically, establish a certain foothold on this basis to take exceptional measures, such as, restricting freedom of movement to prevent the spread of a pandemic and, by consequent extension, the freedom of assembly.

In actuality, however, a legal analysis of these human rights would be incomplete without also taking into consideration the following provisions. Article 17 of the ECHR is explicit in its prohibition of abuse of rights: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Moreover, the UDHR clearly establishes that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5) and “No one shall be subjected to arbitrary arrest, detention or exile” (Article 9). It stands to reason, therefore, that even if people assemble in a manner that is not peaceful, thereby falling outside the purview of that particular entrenched freedom, the other rights, such as to life, movement, humane and just treatment, remain resolute and should continue to be respected.

There is no doubt that we are living in unprecedented and strange conditions because of COVID-19 and all that is being done in relation thereto. It is for this reason that, when we find ourselves in new situations, it is of utmost importance to remember and uphold core legal principles, so as to ensure the continuous safeguarding of human rights.

[Note by associate Maria Korneliou]

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