6th Report on Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States

OSCE Office for Democratic Institutions and Human Rights

Report Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States (May 2022 – June 2024)

Warsaw 7 February 2025  6th Report on Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States

Table of Contents

Executive summary .................................................................................................................... 2 Introduction ................................................................................................................................ 4 The right to freedom of peaceful assembly: scope of protection and restrictions ..................... 6 The right to organize assemblies ............................................................................................ 6 Notification and authorization process ................................................................................... 7 Time, place, manner restrictions, including blanket prohibitions .......................................... 9 Content-based restrictions .................................................................................................... 13 The role and duty of the organizers ......................................................................................... 16 Providing event-related services .......................................................................................... 16 Ensuring public order ........................................................................................................... 17 Liability of organizers .......................................................................................................... 20 Engagement and communication by law enforcement and municipal authorities .................. 21 Pre-event communication ..................................................................................................... 21 Communication during and after the assembly .................................................................... 23 Law enforcement tactics/maintenance of public order ............................................................ 25 Use of force, detention and dispersals .................................................................................. 26 Law enforcement identifiability ........................................................................................... 29 Recommendations .................................................................................................................... 30 Annexe: Assemblies monitored by ODIHR between May 2022 and June 2024 ..................... 33 Executive summary

All OSCE participating States have committed to ensuring full respect, protection and promotion of the right to freedom of peaceful assembly. This report presents the findings of ODIHR’s sixth peaceful assembly monitoring cycle, conducted in Estonia, France, Moldova and Romania, between May 2022 and June 2024. The goal of the monitoring was to identify gaps and challenges, as well as examples of good practices, in order to provide recommendations to all participating States on meeting their human dimension commitments related to the protection of the right to freedom of peaceful assembly. During monitoring deployments, ODIHR observers were able to monitor assemblies and gather information freely and there was good cooperation between ODIHR and state authorities. ODIHR would like to express its gratitude to Estonia, France, Moldova and Romania for participating in the sixth monitoring cycle. In all the states that took part in this cycle, the right to assemble peacefully is recognized in the constitution and/or other specific domestic legislation, albeit with restrictions on who can organize or participate in assemblies in some, running against international human rights standards. ODIHR welcomes that, in most cases, notifications rather than authorizations were required for assemblies. However, there were cases where notification was interpreted as de facto authorization and, in most cases, states did not provide for spontaneous assemblies in their legislation. ODIHR is also concerned at examples of assemblies being prohibited at certain public locations or at certain times of the day, effectively giving rise to blanket prohibitions. In other instances, it was prohibited for two assemblies to be held at the same time and place, effectively leaving no space for simultaneous assemblies, including counter-demonstrations. Widespread restrictions were imposed on the time, place or manner of assemblies, either by law or in practice. In some cases, such restrictions limited the ability of protesters to be within sight and sound of their intended audience — as required by international human rights standards. There were two examples of legislation, enacted following the February 2022 military attack by the Russian Federation and the ensuing war in Ukraine, that restricts the content of assemblies resulting in problematic interpretation. In all monitored states, specific legal provisions exist that describe the duties and responsibilities of organizers in relation to the holding of an assembly. In all of them, legislation imposes excessive duties on organizers, such as ensuring public order during assemblies or paying for event-related costs such as post-event cleaning. ODIHR is concerned that a failure to comply with burdensome legal requirements related to the organizing or holding of assemblies may result in administrative or criminal liability for the organizers, depending on the jurisdiction. In such situations, the competent authorities may impose fines on the organizers or, in some cases, prison sentences. In all monitored states, municipal authorities and/or police representatives communicated with the organizers of the assemblies before the events. While this is overall proactive and positive,

2 the communication between the police and organizers in some states was accompanied by burdensome requests and, in others, was assessed as time-consuming and complicated by the organizers. In all of the monitored states, law enforcement and municipal structures had limited capacities to communicate with children and persons with various types of disabilities. During assemblies, communication between participants and police authorities was observed in a number of participating States and, in all of them, liaison or dialogue police officers were engaged in communication with organizers before and during events. With one exception, ODIHR observed very few women among law-enforcement officials facilitating assemblies, especially at command level, and lack of police identification was a widespread problem. At most assemblies observed by ODIHR, limited or no interventions by law enforcement were witnessed. However, in one monitored state, ODIHR observed law enforcement officials resorting to indiscriminate, unlawful, disproportionate and unnecessary use of force, as well as arrests and dispersal of peaceful protesters, and an overall failure by law enforcement officials to protect the main assembly, bystanders, journalists and public property from violence. This report makes a series of recommendations to all participating States, based on examples of good practice and the challenges observed as part of the sixth monitoring cycle. The recommendations aim to advance efforts to better implement OSCE commitments and relevant human rights standards in all OSCE participating States by creating a practical guide for law enforcement and other authorities on how to facilitate assemblies in a human rights-compliant manner.

3 Introduction

The right to freedom of peaceful assembly is a cornerstone of democratic societies and a fundamental human freedom, which OSCE participating States have committed to guarantee to every individual without discrimination.1 The right to freedom of peaceful assembly is also enshrined in multiple international and regional human rights instruments, including Article 21 of the International Covenant on Civil and Political Rights (ICCPR)2 and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).3

In order to support participating States in the implementation of their commitments on freedom of peaceful assembly, ODIHR has been monitoring public assemblies across the OSCE area since 2011. The results of the first four monitoring cycles were published in five thematic reports.4 This report contains the findings of the sixth monitoring cycle, which was conducted between May 2022 and June 2024 based on monitoring in four participating States: France, Romania, Moldova and Estonia. In addition to the particular assemblies chosen for monitoring, any related counter-demonstrations and parallel assemblies were, as a general rule, also observed.

ODIHR wishes to thank the authorities of the participating States where monitoring took place for their openness and cooperation, for their assistance in organizing, and their willingness to take part in, meetings for the purpose of gathering information. Information gathering was also greatly facilitated through responses to detailed questions and the provision of relevant documents by participating States. ODIHR is equally grateful to the many organizations and individuals who shared information about their experiences as organizers of, or participants in, assemblies or, more broadly, about the enjoyment of freedom of peaceful assembly in their respective countries.

ODIHR’s monitoring focused on specific events that, due to their nature, size or complexity, or because of the fact that multiple assemblies were running in parallel, provided particular challenges for the authorities and the organizers. It involved the gathering of first-hand information by ODIHR observers who witnessed the conduct of, and interaction among, participants at assemblies, law-enforcement agents and other state and non-state actors. Monitoring teams included ODIHR staff trained in ODIHR’s assembly monitoring methodology and subject to a code of conduct.5 Twelve women and nine men from 21 OSCE

1 See OSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 June 1990), and OSCE Charter of Paris for a New Europe (21 November 1990). 2 International Covenant on Civil and Political Rights. 3 European Convention for the Protection of Human Rights and Fundamental Freedoms. 4 Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, May 2011–June 2012, OSCE/ODIHR, 9 November 2012; Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, May 2013–July 2014, OSCE/ODIHR, 17 December 2014; Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, April 2015– July 2016, OSCE/ODIHR, 16 December 2016; Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, May 2017-June 2018, OSCE/ODIHR, 18 September 2019; Report on the Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States, September 2019- November 2021, OSCE/ODIHR, 1 August 2023. 5 To access ODIHR’s assembly monitoring methodology and code of conduct, please see Handbook on Monitoring Freedom of Peaceful Assembly: Second Edition, OSCE/ODIHR (11 December 2020).

4 participating States participated as monitors. ODIHR is grateful to the Omega Research Foundation for their contribution during ODIHR’s monitoring mission to France.

Although ODIHR’s independent assembly monitoring places particular emphasis on the gathering of first-hand information, observations were, whenever possible, complemented by information gathered at meetings with representatives of the relevant authorities, assembly organizers, civil society organizations, National Human Rights Institutions (NHRIs), lawyers and others who could provide background information on the situation for freedom of peaceful assembly and specific information on the monitored events.

The main goal of ODIHR’s monitoring is to identify examples of good practice, as well as gaps and challenges in how participating States meet their obligations regarding the promotion and protection of the right to freedom of peaceful assembly. In the context of the monitoring cycles, ODIHR always gathers much more information than can be presented in the reports, including country-specific findings that go beyond the scope of these reports. ODIHR remains ready to assist all participating States, upon request, and to provide a forum for the exchange of experiences and good practices in facilitating peaceful assemblies across the OSCE space.

5 The right to freedom of peaceful assembly: scope of protection and restrictions

In their constitutions,6 Romania, Moldova and Estonia explicitly recognize the right to assemble peacefully, and all of them have specific domestic legislation providing protection for this right.7 However, in Romania, the domestic legal framework restricts protection of the right to freedom of assembly to citizens,8 conflicting with the obligation to guarantee the right to all without discrimination.9 In this regard, it is positive that in Moldova, “any person is free to actively participate or assist at an assembly”,10 while the Estonian Constitution guarantees to “everyone”11 the right to assemble peacefully.

The right to organize assemblies In order to comply with international human rights standards, everyone should have the right to organize assemblies without discrimination. Several participating States where ODIHR monitored assemblies impose restrictions on who can be an assembly organizer. Moldova requires that organizers be individuals “with full legal capacity”. People with disabilities and children between the age of 14 and 18 can only organize assemblies together with a “person vested with full legal capacity”, while children under 14 do not have the right to organize assemblies.12 In Estonia, to be an assembly organizer, you must be an adult with legal capacity and be a European Union citizen, or otherwise possess long-term or permanent residency in the country.13 This means that children, people with disabilities and certain categories of non- nationals are not allowed to organize assemblies. According to the Estonian police, if the organizer of an assembly does not hold the necessary residence permit, they would ask them to assign another person with said status to submit the assembly notification.14 In France, while there are no restrictions in the law as to who can organize an assembly, assembly organizers reported to ODIHR that minors could not provide notification of assemblies without an adult.15 Romanian authorities also informed ODIHR that assembly notifications submitted by minors between 16 and 18 had to be supported by their parents or legal representatives.16 Such restrictions on the right to organize assemblies conflict with international human rights standards. In fact, the freedom to organize and participate in public assemblies must be guaranteed to everyone, including children,17 nationals and non-nationals (including stateless

6 Article 39 of the Constitution of Romania; Article 40 of the Constitution of the Republic of Moldova; Chapter 2(47) of the Constitution of Estonia. 7 Law of 30 June 1881 on Freedom of Assembly (France); Law No.60 from 23rd September 1991 on the organization and conduct of public assemblies (Romania); Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova; Law Enforcement Act of Estonia. 8 Law No.60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 1. 9 See Article 2 of the ICCPR. 10 Constitution of Estonia, Chapter 2(47). 11 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 7. 12 Ibid., Article 6. 13 Law Enforcement Act of Estonia, para.64(1.1). 14 Meeting with law enforcement authorities in Tallinn, Estonia, 31 May 2024. 15 Online meeting with assembly organizers, 25 April 2024. 16 Meeting with local authorities and law enforcement in Bucharest, Romania, 8 July 2022. 17 See Convention on the Rights of the Child, Article 15.

6 persons, refugees, foreign nationals, asylum seekers, migrants and tourists)18 and people without full legal capacity, including people with mental health issues or intellectual disabilities.19

Notification and authorization process Under international human rights law, notification requirements may be permitted to allow authorities to make necessary arrangements to facilitate peaceful assemblies and to protect public order, public safety and the rights and freedoms of others.20 However, a requirement for prior notification should not amount to a request for authorization, as authorization processes are generally more prone to abuse and could devalue the right to freedom of assembly and the corresponding principle that everything not regulated by law should be presumed to be lawful.21 It is therefore positive that France, Moldova and Estonia22 maintain a notification requirement rather than an authorization system for assemblies.23 Estonia's notification system was described by interlocutors as easy to navigate, indicating good practice. Notifications for assemblies can be submitted either in person or online, with authorities reportedly responding within five days.24 In France, on the other hand, organizers reported some challenges with the notification system, including receiving the final acknowledgment of their notification and information on logistical requirements only the day before the assembly (see more in section on pre-event communication).25 Where authorization systems are in place, they must function in practice as a system of notification with a strong legal presumption that the authorization will be granted promptly.26 In this regard, it is of concern that, in France, legal observers reported to ODIHR that certain prefectures treat the notification process as a de facto authorization system. In these cases, notification receipts are not automatically issued; instead, authorities withhold them until they approve the proposed assembly route. Legal observers noted that this practice appears to vary depending on the topic of the assembly, with certain subjects leading to greater scrutiny. As a result, the delivery of a notification receipt can sometimes be used as leverage to pressure organizers into adjusting their routes.27 It is regrettable that, under Romanian law, an authorization system is in place whereby organizers have to submit a “prior declaration” to hold an assembly, which must be approved

18 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd ed., 2020), para. 109; General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 5. 19 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 106. 20 Ibid., para. 25. 21 Ibid., para. 25. 22 In Estonia, as confirmed by the police, notification is only required when traffic reorganization is needed, or if the assembly is to be held “outside a building or a construction intended for gatherings” and involves large-scale structures (e.g., tents, stages, stands), sound/lighting equipment, or may disrupt the normal use of nearby buildings or constructions (Law Enforcement Act of Estonia, para. 67). 23 Law of 30 June 1881 on Freedom of Assembly, Article 1 (France); Law Enforcement Act of Estonia, para. 67 (Estonia); Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 10 (Moldova). 24 Meeting with assembly organizers in Tallinn, Estonia, 27 May 2024; Meeting with the Estonian Human Rights Centre in Tallinn, Estonia, 27 May 2024. 25 Meeting with organizer of the assembly in Paris, 29 April 2022. 26 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 115. 27 Written communication with legal observers from France, 22 October 2024.

7 by a commission composed of the local mayor, the secretary of the commune or city where the assembly is to take place and representatives of the police and gendarmerie.28 In practice, assembly organizers in Timisoara and Bucharest reported that the application process was very cumbersome, non-transparent, complicated and lengthy, taking as long as five months. In both cities, organizers reported having to set up several meetings with authorities, get approval from different state bodies and submit a variety of forms that were not always easily accessible nor provided free of charge.29 In Timisoara, for example, organizers reported being responsible for notifying the public transportation authority about their assembly route and for how long the roads would be closed.30 Organizers in Bucharest also criticized the lack of clarity in the domestic legal framework regarding notification of assemblies, as well as the discretionary nature of the decisions taken by authorities during the notification process (see more in section on pre-event communication).31 This practice is problematic, because bureaucratic notification processes discourage potential assembly organizers, therefore undermining the enjoyment of the right to freedom of peaceful assembly. In addition, organizers should only be required to send a single notification to a designated primary authority; they should not be required to notify multiple authorities. The primary authority should communicate the details of the notification to all relevant bodies.32 It is also important that the period for filing a notice prior to an assembly should not be unnecessarily lengthy.33 In fact, lengthy notification periods inevitably have the effect of significantly reducing people’s ability to respond with reasonable promptness to events. The advance notification period should be as short as possible, because timely access to the target audience is often of great importance where public advocacy is concerned. It is therefore positive that the length of advance notification in all countries is relatively short, ranging from five days in Moldova34 and four working days (but no earlier than three months) in Estonia,35 to three days in France36 and Romania.37 It is regrettable that, in practice, organizers in Romania need to provide their notice considerably earlier in order to fulfil all the requirements set by the authorities to hold their assembly, as described above. In Estonia, as a good practice, the law also provides that if prior notification cannot be filed on time due to the urgent need to hold the assembly, such notification may be filed “immediately after the need to hold the meeting arises”.38 Finally, when it comes to spontaneous assemblies, in France there is no exception to the notification requirement, and organizers can be imprisoned for six months and fined EUR 7500

28 Law No.60 from 23rd September 1991 on the organization and conduct of public assemblies, Articles 1 and 8. 29 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022; Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 30 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022. 31 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 32 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, United Nations Human Rights Council, A/HRC/23/39, 24 April 2013, para. 52. 33 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd ed., 2020), para. 120. 34 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 10. 35 Law Enforcement Act of Estonia, para. 67(1). 36 Code of Homeland Security, Article L211-2. 37 Law No.60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 7. 38 Law Enforcement Act of Estonia, para. 67(4).

8 for failing to notify, leaving no space for spontaneous assemblies39 (see more in section on liability of organizers). In Romania, regrettably, spontaneous assemblies are not protected in legislation and authorities have reported that any assembly not approved in advance would be banned and dispersed.40 In Moldova, it is positive that the requirement to notify an assembly at least five days in advance is waived for spontaneous assemblies. However, organizers are still required by law to give notification “as soon as the intention to hold the assembly is known”.41 In practice, Moldovan law enforcement noted that, when a spontaneous assembly takes place, they approach participants to facilitate the event.42 In Estonia, as a good practice, the law states that no prior notification is required in case of spontaneous assemblies.43 Spontaneous assemblies in response to pressing events are a critically important means of expression. They may take place as an immediate response to some triggering event, where the organizer (if there is one) is unable to meet the deadline for prior notification. However, the ability to hold these assemblies is important, because delay would make the message obsolete.44 Spontaneous assemblies also occur when one or more groups of people gather with no prior advertising or invitation, often as a result of commonly held knowledge about a particular event, including when disseminated via the internet or other forms of instant communication.45 Spontaneous assemblies should be lawful and should be regarded as an expected, rather than exceptional, feature of a healthy democracy.46 Therefore, authorities should exempt spontaneous assemblies from the requirement of prior notification where timely notification is not possible or practical, and they should protect and facilitate any spontaneous assembly so long as it is peaceful in nature.47

Time, place, manner restrictions, including blanket prohibitions In all four states, restrictions were imposed on the time, place or manner of assemblies, either by law or in practice. While the right to freedom of peaceful assembly is not an absolute right, any restrictions imposed on assemblies must have a formal basis in law and be based on one or more of the legitimate grounds prescribed by international or regional human rights instruments, namely: national security, public safety, public order, the protection of public health or morals, and the protection of the rights and freedoms of others. In addition, any restrictions on assemblies in a democratic society must be both necessary to achieve the legitimate aim pursued, and proportionate. The least intrusive means of achieving the legitimate aim should always be given preference.48 Blanket prohibitions

39 French Penal Code, Article 431-9. 40 Meeting with local authorities and law enforcement in Timisoara, Romania, 1 July 2022. 41 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 12. 42 Meeting with the General Police Inspectorate in Chisinau, Moldova, 7 May 2024. 43 Law Enforcement Act of Estonia, para. 67(3). 44 Bukta and Others v. Hungary (2007), para. 32; Éva Molnár v. Hungary (2008), para. 38. 45 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 22. 46 Ibid., para. 22. 47 Ibid., para. 25. 48 ICCPR, Article 21; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 28 and 29.

9 The laws in France and Romania both provide that assemblies should not continue later than 23:00.49 The law in France also states that assemblies cannot take place on public roads,50 while Romanian legislation prohibits assemblies taking place in the immediate vicinity of specific places such as, for example, railway stations, airports, metro stations or hospitals.51 In Estonia, assemblies are prohibited “in the area of an epidemic spread of a highly dangerous communicable disease”, “at a border crossing point and closer than 100 meters to the external border of the European Union”, “in the protection zone for an electrical installation with a nominal voltage of over 1000 volts”, and also at any place “where it is prohibited by law”.52 Prohibiting assemblies at certain public locations — such as in France, Romania and Estonia — or at certain times of the day — such as in France and Romania — constitute blanket prohibitions.53 Such restrictions are likely to be disproportionate, in that they fail to take into account the individual circumstances of the assemblies involved and may interfere significantly with the ability to hold assemblies within sight and sound of the intended audience. 54 Less intrusive restrictions should therefore be used. In addition, the wording of the Estonian law banning assemblies “where it is prohibited by law” raises concerns with respect to the principles of clarity and foreseeability, and would benefit from an explicit reference to the law or laws which contain the prohibitions. Time and place restrictions In Moldova, if local authorities consider it necessary to ensure the peacefulness of the assembly, the law provides allows them to recommend that organizers change the time, place or manner of their assembly. However, the law specifies that the final decision should remain with the organizers.55 Local authorities informed ODIHR that, if several organizers want to hold an assembly at the same time and in the same location, the police and municipality bring them together and invite them to find an agreement. If no compromise can be reached, the police and carabinieri are called to decide on the issue.56 The authorities informed ODIHR that, when three organizers wanted to hold assemblies at the same location on 9 May 2024, the police gathered them together in order to reach an agreement.57 In Estonia, the law allows local authorities to require the organizers to change the time, place, or manner of their meeting if another assembly is to take place at the same date and time and it is not possible to hold both events simultaneously, or if the change is required to avoid or counter “a serious immediate threat”.58 In practice, law enforcement authorities clarified to ODIHR that they would prevent two assemblies from occurring at the same time and place, making it effectively impossible to hold simultaneous assemblies, including counter-

49 Law of 30 June 1881 on Freedom of Assembly, Article 6; Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 2. 50 Law of 30 June 1881 on Freedom of Assembly, Article 6. The Commissioner of Police can also prohibit demonstrations in certain streets or neighborhoods through a decree, to be published on the website of the Police Prefecture. 51 Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 5. 52 Law Enforcement Act of Estonia, para. 63. 53 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 133. 54 Ibid., para. 133. 55 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 14(3). 56 Meeting with the municipality in Chisinau, Moldova, 8 May 2024. 57 Meeting with the General Police Inspectorate in Chisinau, Moldova, 8 May 2024. 58 Law Enforcement Act, para, 69.

10 demonstrations. They told ODIHR that they would do this by requesting one of the organizers to relocate or adjust the timing of their assembly. If no agreement could be reached, authorities would ensure that both assemblies take place at different ends of the assembly location.59 For instance, when three assemblies were registered for Freedom Square on 1 June 2024, one was rescheduled, one was shortened and the third proceeded as planned.60 Organizers of the assembly monitored by ODIHR reported that they were satisfied with the change in timing.61 In Romania, legislation automatically prohibits two or more assemblies at the same time and place, regardless of their nature, leaving no space for simultaneous assemblies, including counter-demonstrations.62 Authorities in Timisoara noted that, if two assemblies with diverging opinions were organized at the same time and location, they would try to have them take place in different places to avoid potential clashes.63 In practice, organizers noted that authorities did not grant them their preferred assembly route because it included a park (an important meeting point for the local LGBTI community) located next to an Orthodox Church, and the police reportedly implied to them that permission from the Church would be required to gather there.64 Local authorities informed ODIHR that this decision was made in an effort to avoid “tensions and clashes, and to show their respect towards public institutions (i.e. the Church)”.65 However, this reasoning does not constitute a legitimate ground for restriction under international human rights law (see above) and may amount to discrimination. In fact, the mere hypothetical risk of clashes, or the willingness to avoid such clashes, is not a permissible ground for restriction, and authorities would need to demonstrate a risk of imminent violence that cannot be mitigated or prevented in order to justify a change to the assembly route.66 Regrettably, while the assembly started next to the local civil registry office — a target of the assembly to advocate for same-sex civil unions and marriages — the assembly route agreed with the authorities was relatively far from the city centre and not within sight and sound of the target audience. While the organizers agreed to the change of location and were eventually satisfied with the route, they indicated that they would try to use their initial route for the next Pride parade.67 In Bucharest, authorities informed ODIHR that, if two assemblies are notified at the same date and time, a committee made up of the gendarmerie, the police and the road traffic police would inform organizers that their assembly cannot take place at the same place and time as another assembly and would give them an alternative time, place or route. In case of non-declared or spontaneous simultaneous assembly, authorities noted that they would get in touch with the organizers to establish the purpose of their assembly, explain to them the legal framework regarding assemblies and facilitate the event as long as it is peaceful.68 In practice, assembly organizers reported being forced to change their planned assembly location because authorities considered alternative routes safer for traffic flow. According to organizers, authorities had

59 Meeting with law enforcement authorities in Tallinn, Estonia, 31 May 2024. 60 Meeting with law enforcement authorities in Tallinn, Estonia, 31 May 2024. 61 Meeting with assembly organizers in Tallinn, Estonia, 29 May 2024. 62 Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 5. 63 Meeting with local authorities and law enforcement in Timisoara, Romania, 1 July 2022. 64 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022. 65 Meeting with local authorities and law enforcement in Timisoara, Romania, 1 July 2022. 66 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 77. 67 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022; Meeting with assembly organizers in Timisoara, Romania, 13 July 2022. 68 Meeting with local authorities and law enforcement in Bucharest, Romania, 8 July 2022.

11 frequently requested them to relocate to less central areas, where traffic regulation was easier to manage.69 Importantly, if there is a proper basis for imposing time or place restrictions on assemblies, suitable alternative times or places should be identified by the authorities. Any alternative must ensure that the message the assembly aims to convey can still be effectively communicated to those it is directed at; i.e., within “sight and sound” of the target audience.70 It must also give participants sufficient time to manifest their views and pursue their purposes effectively.71 Moreover, the organizer of an assembly should not be compelled or coerced to accept whatever alternative(s) the authorities propose. To require this would undermine the very essence of the right to freedom of peaceful assembly.72 In light of this, requiring assembly organizers in Timisoara to change their assembly route to a location that is not within sight or sound of their target audience is a cause for concern. In addition, states should, as far as possible, facilitate the holding of simultaneous assemblies. If it is not practical to hold two assemblies at the same time and place (for example, due to lack of space), the organizers should be encouraged to explore alternative options that might yield a mutually acceptable solution. Where this cannot be achieved, the authorities should still seek to accommodate the different assemblies, ensuring, insofar as possible, that any alternative locations remain within sight and sound of the target audiences.73 Where laws or regulations deal explicitly with the issue of simultaneous assemblies, they should not include an automatic prohibition on holding events at the same place and time.74 In this respect, the impossibility of holding two assemblies at the same time and location in Romania (in law and in practice) and Estonia (in practice) is a considerable barrier to the exercise of the right to freedom of assembly. Manner restrictions Finally, when it comes to restrictions on the manner of assembly, organizers in Bucharest reported that, for the first time, they were not permitted to have multiple music trucks during their assembly due to safety concerns. They expressed concern about this decision, noting that the music trucks played a crucial role in maintaining the parade's pace, as participants naturally kept in step with the music.75 Additionally, while in previous years organizers usually ended the Pride parade at the same square in central Bucharest, they told ODIHR that the municipal authorities would require renting the entire square in order to set up the stage at a cost of approximately EUR 20,000, which was far above their budget. The organizers therefore

69 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 70 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 78; General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, paras. 22, 53 and 55; OHCHR, IACHR, RFOE, ACHPR, and OSCE/ODIHR, Joint Declaration on the Right to Freedom of Peaceful Assembly and Democratic Governance, 9 December 2020, para. 3(a). 71 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 54; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 146. 72 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 27. 73 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 78. 74 Ibid., para. 78. 75 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022.

12 decided to end the assembly at a different location, where the cost was reduced to approximately EUR 5,000.76 The freedom to choose the manner of an assembly is an important aspect of the right, since its form is often an integral part of its message. A ban on a particular form of assembly therefore needs to meet the necessity and proportionality test. The Romanian authorities would therefore have to present a thorough justification as to why restricting the use of music trucks is both necessary and proportionate to ensure public safety.77 As noted by the UN Human Rights Committee: “As far as restrictions on the manner of peaceful assemblies are concerned, participants should be left to determine whether they want to use equipment such as posters, megaphones, musical instruments or other technical means, such as projection equipment, to convey their message.”78

Content-based restrictions In principle, restrictions on assemblies should not be based on the content of the message they aim to communicate, so long as they do not exceed the limits of the right to freedom of expression.79 Under international human rights law, only propaganda for war or advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence should be deemed unlawful.80 Even where a content-based restriction is justified, authorities should take the least intrusive and restrictive measures to address the issue.81 Following the February 2022 military attack by the Russian Federation and the ensuing war in Ukraine, legislation restricting the content of assemblies was introduced in Moldova and Estonia, and law enforcement authorities faced challenges when implementing them in both countries. In Moldova, legislative amendments were passed in 2022 introducing bans82 on “generally known attributes or symbols used in the context of military aggression actions, war crimes or crimes against humanity, as well as in the context of propaganda and of the glorification of such actions.”83 According to the amendments, citizens in violation of this law can be punished

76 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022 77 In Women on Waves and Others v. Portugal, the ECtHR rejected the government’s argument that the applicant NGO could just as well carry out its advocacy for reproductive rights on land as on its vessel, which had been denied entry to territorial waters; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 148. 78 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 58. 79 Ibid., para. 48; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 149. 80 ICCPR, Article 20. 81 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 37. 82 Republic of Moldova Law No. 102 of 14 April 2022 on amendments to some normative acts. Article 1 of the Law No. 102 amended Article 1 of the Law on Countering Extremist Activity by expanding the categories of symbols whose use is considered extremist activity. Article 2(98) of the Law No. 102 introduced two contraventions into the Contravention Code of the Republic of Moldova. 83 These include “flags, coloured/awareness bands and ribbons (black and orange bi-colour band), emblems (graphic elements, letters or figures and their combinations), badges, uniforms, slogans, greetings, as well as other insignia of the kind used by the participants in military aggression actions, war crimes or crimes against humanity, as well as by persons who without participating in such actions contribute to the dissemination and propagation in the society of ideas instigating to, justifying, glorifying and exonerating acts of military aggression, war crimes or crimes against humanity.”

13 with a fine of up to LEI 9000 (around EUR 470) or from 30 to 60 hours of unpaid work benefitting the community.84 In its October 2022 legal opinion, the Venice Commission deemed these amendments to be generally in line with human rights law, although recommending further legal clarifications on some points and raising concerns regarding the legislative process leading to the adoption of the law.85 In April 2023 the Constitutional Court of Moldova issued a judgment on the legislative amendments, ruling them generally constitutional86 as long as applicable only “to acts committed for the purpose of justifying or glorifying acts of military aggression, war crimes or crimes against humanity”. In order to determine whether that is the case, the Court noted that state authorities should consider the context in which the symbols are being used.87 During a meeting with ODIHR, the General Police Inspectorate of Moldova stated that law enforcement was guided by this Constitutional Court ruling when facilitating assemblies. They told ODIHR that they interpreted the ruling as permitting the wearing of the St. George ribbon when used as a symbol of Victory Day,88 but not when associated with the war in Ukraine. The authorities further clarified that, during the Victory Day assembly monitored by ODIHR, the police would enforce the ban on the St. George ribbon based on the specific context of its use, whereas the use of the “Z” and “V” letters89 would be prohibited in all instances.90 While ODIHR monitors did not observe the use of any “Z” or “V” letters during the assembly, almost all participants carried some kind of symbols or slogans associated with the Second World War, including the St. George ribbon. Law enforcement generally did not interfere with their use, except on one occasion when police officers asked participants carrying a banner displaying Stalin to take it down. Although the participants briefly complied, they raised the banner again shortly after, but the police did not intervene further. The implementation of this law initially proved to be challenging and unpredictable, as law enforcement officials would fine some (but not all) of assembly participants for wearing symbols during assemblies in 2022.91 Overall, however, it is encouraging that the Constitutional Court intervened to clarify the amendments. Moreover, it is positive to note that

84 Contravention Code of the Republic of Moldova, Article 365. 85 Venice Commission, Republic of Moldova opinion “on amendments to the Audiovisual Media Services Code and to some normative acts including the ban on symbols associated with and used in military aggression actions” (October 2022). 86 Aside from the sentence “and which may be confused with them” in the definition of “extremist activity”. 87 Constitutional Court of the Republic of Moldova, Judgment to Review the Constitutionality of Article 365 of the Contravention Code and Article 1 of the Law on Countering Extremist Activity in the wording of Law No. 102 of April 14, 2022 (Complaints Nos 54a/2022 and 11g/2022). 88 The St. George ribbon is a symbol with historical and cultural significance, particularly in the Russian Federation and some other post-Soviet countries, where it is closely associated with Victory Day on 9 May. Victory Day commemorates the Soviet Union's victory over Nazi Germany in 1945, marking the end of World War II in Europe. 89 The letters "Z" and "V" have become prominent symbols associated with the February 2022 military attack by the Russian Federation and the ensuing war in Ukraine. 90 Meeting with the General Police Inspectorate of the Republic of Moldova in Chisinau, Moldova, 7 May 2024. 91 According to Amnesty International, during the assembly held to mark Victory Day in 2022, people displaying the banned symbols either at the event or on their cars were identified, and later 196 fines were issued by police. See: Amnesty International, Report 2022/23: The State of the World’s Human Rights (2023), p. 255.

14 law enforcement has actively used this judgment to guide their policing practices, leading to gradually consistent application of the law. In Estonia, in April 2022, a new provision was introduced in the Penal Code that prohibits “exhibiting of a symbol relating to an act of aggression, genocide, crime against humanity or commission of a war crime in a manner that supports or justifies such acts”.92 According to the Estonian authorities, this law was adopted “in connection with the attack by the Russian Federation on the sovereignty and territorial integrity of Ukraine”. 93 However, as ODIHR has observed, application of the law has been wider than in the context of the war in Ukraine. In November 2023, during a demonstration in support of Palestine, five people who used the slogan “From the river to the sea, Palestine will be free” were detained by police, interrogated and fined under this new provision.94 According to the Estonian Human Rights Centre (EHRC), it was the first time that this provision was used outside the context of the war in Ukraine, making it impossible for participants to foresee the prohibition of the slogan “From the river to the sea, Palestine will be free”.95 The EHRC represented four of the protesters as part of a strategic lawsuit, arguing that being fined for using a slogan widely used at international protests threatened the right to freedom of expression in Estonia.96 In July 2024, the Harju County Court upheld the fine imposed on one of the applicants, finding that the expression “From the river to the sea” was not protected by the right to freedom of expression, and that the police had the right to restrict its use. The EHRC appealed the decision to the Supreme Court, whose ruling was still pending at the time of publication.97 Ahead of the 1 June 2024 pro-Palestinian assembly monitored by ODIHR in Estonia, organizers told ODIHR that they were informed by law enforcement about the prohibition of the slogan.98 The police also confirmed to ODIHR ahead of the assembly that its use would be documented and reported.99 During the assembly, when two of the participants used the slogan, ODIHR monitors observed a patrol car with several police officers arriving shortly afterwards, and, once the assembly was starting to disperse, the police approached the two individuals to check and record their identity documents. In regard to this application, it should be noted that when states choose to restrict the right to freedom of expression, the legislative framework, which imposes any such limitations, must meet certain requirements. The law must be sufficiently precise to enable an individual to assess whether or not their conduct would be in breach of the law and also to foresee the likely consequences of any such breach.100 The Venice Commission assessed similar legislative amendments in Moldova and considered them sufficiently clear, as the category of banned symbols is made specific through the general description, the indication of an example and the

92 Penal Code of Estonia, § 151-1. 93 Procedural information regarding the adoption of the law can be accessed here. 94 Meeting with the Estonian Human Rights Centre, online, 27 May 2024. 95 Kelly Grossthal,“Standing for Freedom of Expression: Understanding the Defense of Young Protesters in Estonia. FAQ – Estonian Human Rights Centre”, Estonian Human Rights Centre (22 January 2024). 96 Kelly Grossthal, “Today's Court Decision is a Threat to Freedom of Speech and Respect for the Constitution in Estonia – Estonian Human Rights Centre”, Estonian Human Rights Centre (11 July 2024). 97 Ibid. 98 Meeting with assembly organizers in Tallinn, Estonia, 27 and 29 May 2024. 99 Meeting with law enforcement authorities in Tallinn, Estonia, 31 May 2024. 100 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 129.

15 requirement that the symbol should be objectively known to the general public at international and national level.101 At the same time, the Venice Commission noted that the new provision of the Estonian Penal Code does not provide any specific examples of such symbols. 102 The European Court of Human Rights (ECtHR) has emphasized that criminal-law provisions (e.g., related to hate speech) must clearly and precisely define the scope of relevant offences, in order to avoid a situation where the state’s discretion to prosecute for such offences becomes too broad and potentially subject to abuse through selective enforcement.103 Given its broad nature, it is unlikely that the newly introduced provision in the Estonian Penal Code meets the legality requirement, as set out by international human rights law. Its enforcement, including with respect to the 1 June 2024 protesters as observed by ODIHR, therefore constitutes a violation of the right to freedom of expression.

The role and duty of the organizers104

Providing event-related services In some participating States where ODIHR monitored assemblies, organizers are required to provide various event-related services and pay for event-related costs, such as clean-up.

In Romania, the law requires organizers to pay for “the value of the services and arrangements requested from the local councils for the normal conduct of public assemblies”.105 Authorities in Bucharest explained to ODIHR that organizers are expected to pay a tax for the use of public space.106 Organizers in Timisoara reported to ODIHR that they had to pay for some of the forms the authorities require them to fill in to hold their assembly. They were also asked to submit a security plan for the event, and were expected to hire security officers.107 According to local authorities, organizers are responsible for leaving the assembly location “as they found it”.108 After the Pride march, ODIHR monitors observed that the burden of cleaning up fell on the organizers. In Bucharest, organizers reported being required to hire a private company to conduct a risk assessment for the event, develop a security plan for the assembly and cover various expenses, including an ambulance, fencing, clean-up services, garbage cans, private security, rental of the park where the assembly ended and public parking fees for law

101 Venice Commission, Republic of Moldova Amicus Curiae Brief for the Constitutional Court of the Republic of Moldova on the clarity of provisions on combating extremist activities, 132nd Plenary Session, 21-22 October 2022, para 47. 102 Ibid., para 26. 103 Ibid., para 42. 104 Not all assemblies have an organizer. This is especially the case today, when digital tools are relied on more and more for social mobilization and advocacy. This section describes the organizer’s responsibilities in cases of assemblies with an identifiable organizer but does not suggest that assemblies without an identifiable organizer or unorganized assemblies should not be facilitated. In fact, assemblies should be facilitated by law enforcement whether or not they have a formal or named organizer. 105 Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 12(1)(e). 106 Meeting with local authorities and law enforcement in Bucharest, Romania, 8 July 2022. 107 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022. 108 Meeting with local authorities and law enforcement in Timisoara, Romania, 1 July 2022.

16 enforcement vehicles and horses stationed near the assembly’s endpoint.109 In Moldova, authorities reported that organizers were expected to provide toilets and clean-up, but would not be fined for a failure to do so.110 In Estonia, the law states that organizers must ensure waste removal at the end of an assembly.111 Organizers confirmed that, after any event, they are responsible for the clean-up.112

Such burdens imposed on organizers constitute bad practice, as the costs of providing additional services to facilitate and protect assemblies should be covered by the state. In particular, the costs of providing adequate security and safety (including traffic control, street cleaning, crowd management and medical services) should be fully covered by the public authorities, and no additional charge should be levied for providing such services.113 Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.114

Ensuring public order In all four states, authorities imposed on organizers duties related to ensuring public order, either by law or in practice.

In France, organizers are legally required to set up a committee of three organizers to undertake a variety of public order duties, such as managing the assembly, maintaining order and preventing crimes and other offences.115

Organizers in Romania also have a range of public order responsibilities under the law, including removing participants who disturb public order.116 Authorities in Timisoara confirmed that the organizers have a responsibility to ensure public order and the peacefulness of their assembly, and to communicate with law enforcement in case they identify violent elements during the assembly.117 In Bucharest, the authorities informed ODIHR that organizers

109 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 110 Meeting with the municipality in Chisinau, Moldova, 8 May 2024. 111 Law Enforcement Act of Estonia, para. 64(3). 112 Meeting with assembly organizers in Tallinn, Estonia, 27 May 2024. 113 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 89 and 155; General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 64. 114 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 89 and 155; General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 89. 115 Article 8 of the Law of 30 June 1881 on Freedom of Assembly: A committee of at least three organizers should be established to manage an assembly, maintain order, prevent breaches against the law, prohibit “speech against public order and good character” or prevent any act deemed to be a crime or other offence. 116 Other responsibilities include delineating the area for public assemblies with clear and visible markers, and taking measures to limit the space occupied during moving assemblies; preventing individuals carrying alcohol from participating in the assembly; establishing routes for participant inflow and outflow, ensuring timely occupation and vacating of assembly spaces; immediately interrupting the assembly if unlawful activities occur, with the option to resume once order is restored; and prohibiting the participation of individuals carrying weapons, explosives, or other dangerous items (Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 12). 117 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022.

17 have a duty to instruct participants on their behaviour.118 Organizers expressed concern that each year they learn about new public order duties that they are expected to undertake, such as providing fire extinguishers. They emphasized that these responsibilities should be clearly outlined in the agreement they sign with the municipality so they know what is expected of them.119

In Moldova, organizers are responsible for designating a coordinator and providing their name to local authorities ahead of the assembly. If participants violate public order or engage in an assembly deemed prohibited under the law, the organizers, in cooperation with the police and/or the carabinieri when necessary, have a duty to remove them. In case of serious violations, local authorities can also request that the organizers end the assembly immediately, although this is considered an exceptional measure when other actions are deemed insufficient.120

When it comes to Estonia, organizers have a duty to ensure the peacefulness of the assembly and the safety of participants, while also preventing any objects used from endangering non- participants, property or the environment. Organizers must also immediately terminate the assembly in case of “significant or serious immediate threat”, remain reachable from the time the assembly is announced until a day after it ends, comply with police orders to maintain order, and ensure timely removal of any structures used during the assembly. 121 The law also states that organizers may require a person who has committed a gross violation of order at the assembly to leave the assembly.122 Finally, organizers might be required to fulfil other obligations if it is “unavoidable for preventing or countering a serious threat”.123 Organizers in Tallinn confirmed that they had to ensure order was maintained during assemblies, including providing stewards (see below) and informing the police if they witnessed violence. For instance, during a pre-event meeting with the police, organizers were advised that certain slogans124 should not be displayed at the event. They were encouraged to take photos and report to the police if they observed anyone holding posters with these slogans. During the meeting, the police also reminded them that the laws of Estonia require organizers to ensure safety during the event. 125

Requirements imposed on organizers such as these constitute bad practice. In fact, as highlighted by the UN Special Rapporteur, assembly organizers cannot be held responsible for ensuring the maintenance of public order and providing adequate safety and security. These issues are the responsibility of public authorities. The duty of the state to protect the safety and security of all groups and individuals in their exercise of the right to freedom of peaceful assembly should be clearly defined in law and reinforced by the explicit commitment of the relevant institutions and authorities to fulfil this duty.126 Therefore, legislation that places the

118 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 119 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 120 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Articles 18 and 21. 121 Law Enforcement Act of Estonia, para. 64(3). 122 Ibid., para. 64(4). 123 Ibid., para. 70(2). 124 “From the river to the sea, Palestine will be free”. 125 Meeting with assembly organizers in Tallinn, Estonia, 29 May 2024. 126 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022.

18 duty to ensure peace and order at an assembly on the organizer, which is the case in all participating States where ODIHR monitored assemblies, creates an undue burden on organizers and may have unintended legal consequences by placing the responsibility for the wrongdoing of participants on organizers even if the latter had no control over such actions.

In Romania and Estonia, laws also include provisions requiring organizers to ensure the presence of stewards during their assembly.127 In Romania, such stewards must wear distinctive insignia and must be appointed together with the gendarmerie commander.128 In Timisoara, however, organizers reported to ODIHR that it was up to organizers to decide whether to have stewards or not,129 while in Bucharest organizers confirmed being required to hire private security for their event.130 In Estonia, the law specifies that stewards must assist the organizers in fulfilling their duties, remain present during the event and wear identifiable markings. If the police believe the number of stewards is insufficient or that they are incapable of fulfilling their roles, they can require the organizers to increase the number or replace them with more suitable individuals.131 Organizers in Estonia confirmed to ODIHR that they are required to provide stewards to undertake tasks such as facilitating the crossing of roads by assembly participants. Organizers told ODIHR that they also had to provide the phone number and ID details of the stewards when notifying their assembly.132 In Moldova, the law provides that the organizers may, but are not obliged to, set up their own body responsible for maintaining public order, which must be identifiable.133

Under some circumstances, it may be legitimate to recommend to the organizers of assemblies that they arrange a certain level of stewarding for their gathering, as is required in Moldovan law. In fact, assembly stewards can play an important role in facilitating an assembly and ensuring compliance with any lawfully imposed restriction.134 However, the use of stewards should in no way detract from the positive obligation of the state to provide adequately resourced policing arrangements or from the overall responsibility of law-enforcement agencies for maintaining public order.135 Stewards should not be regarded as a substitute for the adequate presence of law-enforcement personnel.136 Importantly, the use of stewards appointed by the organizers of an assembly should be encouraged but never required. 137 The legal obligation imposed on organizers to ensure the presence of stewards during an assembly in Romania and Estonia is, therefore, not in line with international human rights standards.138

127 Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 12(1); Law Enforcement Act of Estonia, para. 65(1). 128 Ibid., Article 12(1). 129 Meeting with assembly organizers in Timisoara, Romania, 30 June 2022 130 Meeting with assembly organizers in Bucharest, Romania, 8 July 2022. 131 Law Enforcement Act of Estonia, paras. 65(2) and 70(1). 132 Meeting with assembly organizers in Tallinn, Estonia, 27 and 29 May 2024. 133 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 18(2). 134 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 156 and 157. 135 Ibid., paras. 156 and 157. 136 Ibid., para. 156. 137 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 65; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 156 and 157. 138 General Comment 37 on Article 21 ICCPR (Right of peaceful assembly), CCPR/C/GC/37, 17 September 2020, para. 65; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, paras. 156 and 157.

19 Liability of organizers In all participating States where ODIHR monitored assemblies, a failure by organizers to comply with relevant legal requirements may result in administrative or criminal liability. In France, for example, organizers may be imprisoned for six months or fined EUR 7500 for organizing an unnotified or prohibited assembly, or an assembly that has been incompletely or inaccurately notified “in order to mislead the authorities about the objective or conditions of a proposed assembly”.139 According to French authorities, such sanctions are imposed proportionately by the judge following an individual examination of the circumstances.140 In Romania, organizers can be fined up to LEI 10.000 (about EUR 2000) for organizing an unnotified or prohibited assembly, for not adhering to the approved time and location of an assembly, or for failing to interrupt assemblies when required, and up to LEI 5000 (about EUR 1000) for organizing counter-demonstrations at the same time and place as declared assemblies.141 In Moldova, organizers may be subject to an administrative sanction for holding an unnotified assembly or for holding an assembly that does not comply with the terms of the notification.142 Organizers can also be held liable for the acts of participants which the organizers incite or instigate.143 According to the Contravention Code of Moldova, failure to submit a notification can be punished by a fine of up to LEI 1200 (about EUR 63), and failure to fulfil the organizers’ obligations under the law on assemblies can be punishable by a fine of up to LEI 900 (about EUR 47).144 Finally, in Estonia, violating the requirements for holding an assembly is punishable by a fine, whereas organizing or inciting participation in an unauthorized assembly can receive up to one year in prison or a fine.145 The Legal Department of the North Prefecture of the Police and Border Guard Board informed ODIHR that, to date, this penalty has not been applied to any assembly organizer.146 ODIHR notes that organizers of assemblies may be held liable for their failure to act within the law. However, any sanctions imposed after an assembly should strictly adhere to the principles of necessity and proportionality.147 In fact, the risk of a heavy and disproportionate penalty may, in itself, inhibit the enjoyment of the right to freedom of peaceful assembly. Provisions such as the ones in force in France raise concern, in that they may provide for prison sentences for a failure to comply with notification requirements. It is also important to note that if organizers do not comply with the requirement of notification, or with conditions imposed on assemblies during the notification process, this should only be punished if there is evidence to prove that they have done so intentionally and where the non-compliance is substantial. The burden of proof in such cases, however, rests with the public authorities.148

139 French Penal Code, Article 431-9. 140 Written correspondence with French authorities, January 2025. 141 Law No. 60 from 23rd September 1991 on the organization and conduct of public assemblies, Article 26. 142 Law No. 26-XVI of 2008 on Assemblies of the Republic of Moldova, Article 23(2). 143 Ibid., Article 23(3). 144 Contravention Code No. 218 of the Republic of Moldova, Article 67(2) and (3). 145 Estonian Penal Code, paras. 264¹ and 265. 146 Meeting with law enforcement authorities in Tallinn, Estonia, 31 May 2024. 147 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 222. 148 Ibid., para. 225.

20 Importantly, the amount of the fines imposed on organizers of assemblies should also be in line with the proportionality principle. The amount of the fine provided for in Romanian legislation (the maximum of which exceeds the equivalent of EUR 2000) and France (EUR 7500), in this regard, are excessive and could potentially become a powerful disincentive to the enjoyment of the right to freedom of peaceful assembly. In addition, assembly organizers can only be held individually liable where they have personally or intentionally incited, caused or participated in actual damage or disorder during the assembly. They should not be held liable for the failure to perform their responsibilities in cases where they are not responsible.149

Engagement and communication by law enforcement and municipal authorities

Open dialogue between the authorities (including the authority responsible for receiving notifications and law-enforcement officials) and, where identifiable, assembly organizers before, during and after an assembly enables a protective and facilitative approach, while helping to defuse tension and prevent escalation.150 Effective communication depends on a relationship of trust. Law-enforcement agencies should continually work on strategies to build trust with the communities they serve. If people trust the police, they are more willing to cooperate with them, which will, in turn, improve the effectiveness of the police. The legitimacy of the police is crucial for building public trust and confidence in their work, and legitimacy can only be achieved through accountable policing. Assembly organizers and participants should be able to choose whether or not to engage in communication with the police, and unwillingness or refusal to engage in such dialogue should not have negative repercussions for the organizers or their assembly.151 Fundamentally, law- enforcement authorities should always be forthcoming and should genuinely seek to cooperate with organizers, bearing in mind their duty to facilitate and protect peaceful assemblies.152

Pre-event communication In all of the locations where ODIHR monitored assemblies, municipal authorities and/or police representatives communicated with the organizers of the assemblies prior to the events. In Estonia and Moldova, authorities facilitated negotiations between multiple assembly organizers. In Moldova, the police told ODIHR that they held three meetings with all organizers of assemblies before 9 May events. The police held a joint meeting during which they invited the organizers to reach an agreement on the route, since all three had indicated that they wished to start marching from the same location.153 Similarly, the municipality of Chisinau noted that they attempted to communicate with the organizers prior to the assemblies.

149 Ibid., para. 224. 150 Geneva Academy of International Humanitarian Law and Human Rights, Facilitating Peaceful Protests, January 2014, p.16. 151 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 124 152 Ibid., para. 167 153 Meeting with law enforcement authorities in Chisinau, Moldova, 7 May 2022.

21 The municipality told ODIHR that they do not force organizers to engage with them if they not wish to do so.154 While proactive and positive overall, the communication between the police and organizers in some states was accompanied by burdensome requests. In Estonia, for example, the police reached out to the organizer of an assembly within five days after the online notification. Several days before the event, the police held a meeting with the organizer, during which they discussed the details of the event, including the brochure that the organizer was planning to disseminate at the event. The police asked the organizer to share it with them before the event, in order to advise on its content. The police also referred to a slogan that should not be used during the event155 and asked the organizer to take photos and inform them if slogans with such content appeared during the assembly. During the pre-event meeting, the police reminded them that the laws of Estonia require the organizers to ensure safety during the event.156 In some locations, the organizers viewed the communication as time-consuming and complicated. The organizer of the assembly monitored by ODIHR in Bucharest told ODIHR that they notified the municipality about their intention to hold an assembly five months before the event. The municipality held the first meeting with them almost two months later. In addition to the communication with the municipality, the organizer submitted a separate form to the gendarmerie and police 72 hours before the event. The organizer noted that, in total over the five months, they had to attend more than 15 meetings with public officials, including two committees (public order committee157 and a committee of public traffic158), separately with police and gendarmerie, the transport authority and other structures. The police appointed a contact point for the organizers one week before the event159. In Timisoara, the municipal officials informed ODIHR that they were engaged with organizers from the moment they submitted their request.160 The organizer of Timisoara Pride submitted their request five months before their event and were contacted by the municipality to attend a meeting with the public order committee two weeks later.161 Similar to procedures in Bucharest, the organizer had to attend a number of other meetings, including with the committee of public traffic, and engage with the traffic police regarding the road closure. The organizer told ODIHR that, while the traffic police were unresponsive to their requests, the gendarmerie were helpful and assured them that it was their duty to protect them and ensure safety during the event. In France, according to law enforcement authorities, liaison officers establish contact with assembly organizers as soon as possible to set up preliminary meetings. When an assembly is not declared, the communication happens during the demonstration itself. 162 The organizers of 1 May assemblies informed ODIHR that they almost always notify police about their intention

154 Meeting with municipality in Chisinau, Moldova, 8 May 2022. 155 “From the river to the sea, Palestine will be free”. 156 See on Duty of the organizers. 157 Comprised of representatives of the Bucharest police, the gendarmerie, the mayor and the secretary general. 158 Comprised of local police, the public transport authority, road police, and the authority on emergency situations. 159 Meeting with organizer of the assembly in Bucharest, 8 July 2022. 160 Meeting with the Timisoara Committee of Public Order, 1 July 2022. 161 Meeting with organizer of the assembly in Timisoara, 30 June 2022. 162 Meeting with law enforcement authorities in Paris, France, 29 April 2022.

22 to hold an assembly, so that negations can start as early as possible. The communication about the 1 May event was initiated by the organizer 10 days before the event. After the notification, they received an invitation to a meeting at the Paris Police Prefecture Directorate of Public Order and Traffic. However, two days before the event, they were still waiting to hear back from the police about the final confirmation of some of the requested modalities of the event (namely the exit routes for participants). They received the final acknowledgment of their notification, including some logistical requirements, the day before the assembly. Overall, organizers in France had conflicting views about the usefulness of engagement with the police prior to assemblies, largely based on negative experiences of what they viewed as excessive use of force by police at assemblies in previous years.163 As noted for most assemblies observed by ODIHR, communication between participants, organizers and the public authorities took place before assemblies. It is positive that, in many cases, communication was considered to be adequate by the police, municipality and assembly organizers. However, it is concerning that in Romania and Moldova, the communication was unnecessarily prolonged, involving multiple contact points, making it burdensome for organizers. Efforts should be made to make this process easy and accessible for organizers to enjoy the right to freedom of peaceful assembly without undue bureaucratic hurdles. Similarly, while it is positive that Estonian law enforcement proactively reached out to the assembly organizers, the communication largely consisted of reminding them of the excessive obligations of the organizers, including to ensure public order during the event, which, as noted above, (see Section on Duty of the organizers) is primarily the responsibility of the authorities. Finally, in all of the participating States where ODIHR monitored assemblies, regrettably, law enforcement and municipal structures had limited capacities to communicate with persons with various types of disabilities. On a positive note, in Moldova, the municipality of Chisinau was in the process of implementing a project to purchase services from sign language translators to assist with communication with deaf and hard-of-hearing people. The Estonian Chancellor had trained some police officers serving in patrol units on children’s rights, making Estonia the only state monitored by ODIHR to have conducted training on communication with children.164

Communication during and after the assembly During assemblies, communication between participants and police authorities was observed in a number of locations. Positively, liaison or dialogue police officers were engaged in communication with organizers during events in all states where ODIHR monitored assemblies. In Moldova, ODIHR monitors observed gender-balanced teams of police and carabinieri dialogue officers at both assemblies and at a small counter-demonstration. The dialogue teams worked alongside regular police and carabinieri forces and were seen on several occasions engaging with participants. The carabinieri informed ODIHR that that their dialogue teams were usually assigned to maintain contact between law enforcement and participants, and that they were present in the places where there is potential for provocations. Once deployed, they engage with the public,

163 Meeting with organizer of the assembly in Paris, 29 April 2022. 164 Meeting with Estonian Chancellor of Justice, 6 June 2024.

23 and intervene if necessary.165 On 9 May 2024, ODIHR observed a small counter-demonstration which was facilitated in what appeared to be the chosen location of the organizer — on the opposite side of the road to the main assembly. During some moments of tension between the participants from the opposing assemblies, police and carabinieri officers (all male) communicated with participants to defuse tensions. The Estonian authorities told ODIHR that they had been deploying dialogue police officers since 2022. Their main role during assemblies is to serve as a point of contact for assembly organizers and to advise but not to give orders. Dialogue officers are reportedly not used to gather intelligence, and the information which has been exchanged between dialogue officers and assembly organizers cannot be used against the organizers.166 In Tallinn, four police liaison officers (two men and two women) were assigned to the assembly monitored by ODIHR. They were engaging with participants and bystanders in English, Estonian and Russian. When two of the participants used a phrase considered banned by the Estonian police,167 the dialogue police officers did not intervene. The individuals were later approached and their identification was checked by regular police patrol officers. In Timisoara, the police liaison officer (a woman) was in touch with the organizer throughout the assembly and communicated with two counter-demonstrators who were using offensive language towards Pride participants. During this exchange, two gendarmes (both men) recorded their identification documents and escorted them away from the assembly location. The Pride organizer referred positively to their cooperation with the police liaison officer, referring to it as a productive dialogue.168 In Bucharest, ODIHR observed a large number of police liaison officers facilitating the march alongside the gendarmerie and communicating fairly frequently with the organizer and participants. However, the organizer was not satisfied, noting that the communication was aimed at transferring the burden of the safety of the participants onto them, rather than the authorities.169 In France, the police’s overall approach when policing assemblies is based on a principle of keeping a distance between the police and protesters to avoid confrontation.170 It is applied by various forces, especially by the Republican Security Company (Compagnie républicaine de sécurité) and the Mobile Gendarmerie Squadron (Escadron de gendarmerie mobile). In total, almost 2,000 police officers and gendarmes were deployed to facilitate the 1 May 2024 march, including riot police wearing helmets, other protective equipment and carrying various types of weapons. While ODIHR was informed that France has used dialogue officers since 2021 to engage with assembly organizers,171 the teams did not observe their presence during the 1 May assembly. The teams did not witness any communication between law enforcement officials and participants of the assembly in attempts to facilitate the assembly and reduce tensions. However, the organizers informed ODIHR that the police-assigned contact person was in touch with them continuously throughout the assembly.

165 Interview with law representatives of law enforcement in Moldova, 7 May 2024. 166 Meeting with Estonian Police and Border Guard Board, 31 May 2024. 167 “From the river to the sea, Palestine will be free”. 168 Interview with organizer of the assembly, 13 July 2022 169 Interview with organizer of the assembly, 15 August 2022 170 Meeting with law enforcement authorities in Paris, France, 29 April 2022. 171 Meeting with law enforcement authorities in Paris, France, 29 April 2022.

24 With the exception of in Estonia,172 ODIHR observed only very few women among law- enforcement officials facilitating assemblies, especially at command level. The gender balance among liaison teams was better than in other forces in all monitored countries. According to the respective authorities, in Estonia, 69 per cent of dialogue police officers are women and in Moldova the teams are evenly balanced. French and Romanian law-enforcement officials could not provide information on the gender balance of their police forces, including dialogue police officers.

Generally, the overall policing approach to assemblies should be driven by communication, seeking to prevent conflicts from occurring through dialogue and mediation, as well as to de- escalate and settle any conflicts that do occur peacefully.173 Engagement and communication by the police with assembly organizers and participants can help facilitate the enjoyment of the right to freedom of peaceful assembly and the effectiveness of the police, as well as reduce the risk of violence during assemblies. It is thus positive that, in most of the states where ODIHR monitored assemblies, dialogue continued between the organizer and law enforcement officials throughout course of the events.

Law enforcement tactics/maintenance of public order

According to international human rights standards, use of force by law-enforcement officials should always be an exception,174 and assemblies should ordinarily be facilitated with no resort to force. This requires a policing approach that actively seeks to avoid situations in which police might have to resort to the use of force from the outset and to de-escalate situations that might result in violence.175 In fulfilling their duties, police officers may only use force in line with the principles of legality, necessity and proportionality.176 In particular, they should differentiate as much and for as long as possible between those individuals who are engaged in violence and those who wish to assemble peacefully and not use force against the latter.177 In the context of assemblies, the use of force should be preceded by adequate prior warnings that give individual participants sufficient time to leave the area peacefully.178 Weapons that, by their nature, have an indiscriminate effect, such as tear gas, should only be used when violence is so widespread that it is no longer possible to deal only with violent

172 Estonia overall has a good gender balance among law enforcement officials: 45% of police officers are women, 39.9% of patrol officers are women and 30% of commanders are women. 173 Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, A/HRC/31/66, para. 38; OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 169. 174 See the commentary to Article 3 of the Code of Conduct for Law Enforcement Officials, General Assembly Resolution 34/169, 17 December 1979. 175 Amnesty International, Dutch Section, Guidelines for the Implementation of the UN Basic Principles for the Use of Force and Firearms by Law Enforcement Officials (hereinafter “Amnesty International Use of Force Guidelines”), Guideline 7a and Section 7.1; General Comment 37, para. 78 176 See, for example, Article 3 of the UN Code of Conduct for Law Enforcement Officials, General Assembly Resolution 34/169, 17 December 1979. Also see Ivan Vasilev v. Bulgaria (2007); General Comment 37, para. 78. 177 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 87. 178 Ibid., para. 181; General Comment 37, para. 78.

25 individuals.179 With regard to the use of tear gas, the ECtHR has also ruled that its unwarranted use by law-enforcement officers is not compatible with the prohibition of ill-treatment within the meaning of Article 3 of the ECtHR.180 The UN Special Rapporteur has warned that tear gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions.181 It is worth noting that the unnecessary, inappropriate, excessive or unlawful use of force by law-enforcement authorities not only violates human rights but is also counterproductive, notably in undermining police–community relations and causing widespread tension and unrest.182

Use of force, detention and dispersals The use of force, arrests and dispersal by law-enforcement officials was observed by ODIHR monitors in Paris, France. On 1 May 2024, ODIHR teams monitored the Labour Day march in Paris which gathered tens of thousands of participants. At the assembly starting point, ODIHR observed gendarmerie and different types of police forces, many of them dressed in riot gear and gas masks and visibly carrying weapons including batons, LBD launchers and 56 mm Cougar launchers (some pre- loaded), Penn Arms PGL-65 40mm revolver 6-shot launchers, impact rounds, hand grenades and CS sprays.183 A large number of police vehicles, including water cannon vehicles, were parked in side streets near the gathering points. At the start of the march, facilitated largely by stewards, the ODIHR monitoring team observed the formation of a block, consisting of approximately 1000-2000 people, some of whom were Black Block184 with covered faces. Once the march began, some 200-300 people, mainly young men, threw bottles, stones, pieces of pavement and fireworks towards law-enforcement officials who were positioned in a side street. The police (predominately male) charged towards the crowd, pushing them back towards the main route of the assembly and fired an unknown number of tear gas grenades, exploding grenades and rubber pellet grenades. The interaction between violent protesters and law enforcement caused a standoff between law enforcement and the main assembly which lasted for approximately 45 minutes. During this standoff, ODIHR teams observed about 200 participants demolishing bus stops and attacking shops, banks and offices of insurance companies. Bins and shop furniture were set on fire, requiring assistance from the firefighters. Some of the violent protesters used aggressive language towards bystanders and ODIHR monitors. ODIHR teams also observed two protesters attacking a crew of journalists documenting the violence, trying to take away their equipment.

179 Amnesty International Use of Force Guidelines, note 417. 180 Ali Günes v. Turkey (2012), para. 168. 181 United Nations General Assembly (2012), Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai. para. 35. 182 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 176. 183 According to the information provided by the police, the CRS (Campagnies Republicanes de Securite) general service units were equipped with their usual means of maintaining order: personal weapons (SIG Sauer 2022 9mm pistol, defence baton/tonfa), hand-held tear gas containers and some collective armaments (hand grenades and grenades for the COUGAR launcher (MP7, MP5, CM3, CM6), GM2L stun grenades, defensive ball launchers (LBD)). Two CRS water launchers were also deployed. 184 A group of assembly participants who wear black clothes and sometimes cover their faces. Some participants can engage in violent acts towards law enforcement, property, other participants or by-standers.

26 There was no visible police presence or any attempts to arrest the violent protesters, as confirmed to ODIHR by the police.185 Clashes between violent protesters and police continued for approximately three hours. All the while, the main assembly attempted to proceed to the end point of the march with multiple breaks due to the standoffs between the police and violent protesters. ODIHR teams recorded at least six exchanges with a similar pattern between the police and protesters. Despite the police’s assurances to ODIHR that warnings are always given prior to the use of force, ODIHR monitors did not record any audible warnings at any point during the assembly. According to information provided by the police, a special mobile police force, the Republican Security Company (Compagnie républicaine de sécurité — CRS), used 38 tear gas grenades (hand-held or by launcher) during the assembly. In addition, the use of 26 hand-held explosive stun grenades (GMD) and one use of a defensive bullet launcher (LBD) were recorded. The gendarmerie informed ODIHR that they did not fire any tear gas grenades, exploding grenades or rubber pellet grenades during the 1 May assembly, which corresponds with ODIHR’s observations. In addition to the force used by CRS, ODIHR observed the Intervention Company (Compagnie d’intervention), Violent Action Repression Brigades (BRAV-M) and Anti-Crime Squad (BAC) units on several occasions firing tear gas towards the protesters who were attacking public buildings. ODIHR did not receive information from these units about their use of force during the 1 May assembly. Neither the police nor gendarmerie reported any injuries to their officers. ODIHR monitors observed five injured persons including one woman with a head injury who was evacuated by medics, and a further three persons with minor injuries186. Two of ODIHR monitors were affected by tear gas. According to ODIHR’s observation, the overwhelming majority of the 1 May march participants were peaceful. Of an estimated thirty thousand participants, around 200-300 people were violent. The law enforcement presence during the assembly was significant, amounting to several thousands of officers who were engaged to facilitate this event. Despite this, the law enforcement failed to protect participants in the main assembly, bystanders, journalists, monitors and public property from a relatively small group of violent people. ODIHR did not observe any efforts to de-escalate the situation, engage in dialogue or prevent the disruption of the assembly and violence. On the contrary, the tactics used by law enforcement carried out a risk of escalating, rather than de-escalating tension. In ODIHR’s observation, the use of force, including tear gas, rubber bullets and exploding grenades, contrary to the requirements of international human rights law and French national laws, was not preceded by an audible warning. The lack of communication between the law enforcement and protesters was concerning, as it did not allow the participants sufficient time to disperse voluntarily.

185 Written reply from French police, 24 June 2022. 186 One man with an injured hand from broken glass, another man with a swollen knee and an imprint on his skin, possibly from a tear gas submunition disc or a rubber bullet and one woman affected by tear gas.

27 On all occasions when ODIHR observed the use of force, it was indiscriminate, affecting a large number of people in the area of the assembly, disproportionate and failed to meet the test of necessity. The principle of necessity requires an assessment of how much force is necessary to achieve the objective and to ensure that the level of force is minimum that can be still considered effective.187 While it was evident that the reason for using the force was to address the violent behaviour of some protesters, considerations as to the level of force that was necessary to achieve this aim, appeared to be lacking. At the end point of the march, the law enforcement cordoned off all exist routes, not permitting any participants to join or leave. ODIHR monitors were allowed to cross the police line after showing their monitoring ID to the law enforcement officers. The police then arrested an unknown number of participants who arrived at the end point. The law enforcement (CRS) informed ODIHR that they did not have data about the number of arrested persons.188 ODIHR did not receive a reply from other law enforcement forces. These detentions raise serious concerns. OSCE commitments provide that no one may be deprived of their liberty except on such grounds and in accordance with procedures that are established by law (Moscow 1991).189 In the context of assemblies, it is important to establish clear protocols for the lawful arrest of participants in assemblies, providing guidance on when detention is justified. The arrests carried out by French law enforcement, appeared to be at random and without a clearly identifiable ground. ODIHR observed one dispersal of the 1 May assembly in Paris. A decision was taken to disperse a small, peaceful crowd of demonstrators who had remained in the centre of a roundabout (the endpoint of the assembly) shortly after the end of the notified assembly time. The dispersal was announced by the police three times, using a low-volume megaphone. This was not audible to most ODIHR monitors who were in the location of dispersal. When some of the participants refused to leave, two gendarmerie officers sprayed the protesters with handheld tear gas from a distance of one metre. ODIHR teams did not hear a warning prior to the use of force. The dispersal, and the manner in which it was conducted, raise multiple concerns. Dispersing an assembly may violate the rights to freedom of expression and to peaceful assembly, as well as the right to bodily integrity. Dispersing an assembly may also escalate tensions and lead to violence between participants and law enforcement. For these reasons, it must be resorted to only when strictly unavoidable.190 Stemming from the presumption in favour of holding assemblies, non-violent unlawful assemblies should not be terminated for the mere reason of being unlawful. Rather, the principle of proportionality requires that unlawful assemblies — as long as they remain peaceful — should not be dispersed unless this is required due to additional factors linked to public order and security.191 Even then, the authorities should follow a graduated response and should aim to exhaust non-forceful means of intervention before adopting more forceful methods.

187 Amnesty International Use of Force Guidelines, p.14. 188 Written reply from French police, 24 June 2022. 189 A similar principle is enshrined in Article 9 of the ICCPR. 190 OSCE/ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 179. 191 Amnesty International Use of Force Guidelines, note 416, Guideline 7(b) and Section 7.2.

28 The small number of protesters in Paris who remained at the roundabout were peaceful and were not causing any obstruction to traffic or passers-by. The decision to disperse them, including by using unlawful, unnecessary and disproportionate force without warning, caused a significant increase in the tensions between law enforcement officials as well as members of the public at the location who voiced their concerns in support of the protesters. Such actions by the law-enforcement officers should be reassessed and investigated in line with international human rights standards on the use of force, the right to freedom from torture and inhuman or degrading treatment, the right to freedom of expression and the right to peaceful assembly.

Law enforcement identifiability Personal identification of law-enforcement officers was lacking in most of the countries where ODIHR monitored assemblies. In Moldova, neither police officers nor carabinieri are required to wear personal identification numbers on their uniforms. Some of the vehicles used by law enforcement were also unmarked. For example, during a tense interaction between participants of the main assembly and counter-demonstration in Chisinau, an unmarked white van drove out and parked between the assemblies. The van appeared to contain special police forces in black uniforms and wearing balaclavas. The van remained parked between the assemblies, surrounded by police and carabinieri, until the main assembly passed the location of the counter-demonstration. In Estonia, one of the dialogue police officers (of a total of four) and one of voluntary police officers (of two) did not have a name (a sticker) attached to their uniform. In France, all police officers and gendarmes must wear their rank and identification numbers in a place that is visible, regardless of the uniform they are wearing.192 ODIHR monitors had difficulties in observing personal identification numbers on all types of law enforcement uniforms in France, either due to their small size, or because they were covered up by riot gear, for example, by shoulder shields. About one third of law enforcement officials were not wearing any personal identification numbers. Likewise, some of the police vans were unmarked. In Romania, ODIHR observed that the majority of police officers was not wearing personal identification numbers during the protest observed in Bucharest, and only some gendarmes had individual identification numbers on their unforms. Similarly, a substantial number of police vehicles were unmarked in Bucharest. In Timisoara, neither police nor gendarmes were individually identifiable. One of the main principles of democratic policing highlights the need for the police to be accountable to citizens. States have an obligation to establish accessible and effective complaints mechanisms that are able to independently, promptly and thoroughly investigate allegations of human rights violations, including those related to assembly rights.193 To ensure accountability at all levels, law-enforcement personnel should be clearly and individually identifiable at all times while policing assemblies. They must display either their name or

192 Meeting with law enforcement authorities in Paris, France, 29 April 2022. 193 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, A/HRC/20/27, para. 77.

29 identification number on their uniform and/or headgear and must not remove or cover it or prevent people from reading it during an assembly.194 The lack of police identification, as observed by ODIHR in all of the monitored countries, is not in compliance with internationally accepted good practice. Efforts should be made to ensure that all law-enforcement officials wear individual identification numbers that are visible at all times.

Recommendations

The following recommendations are presented to OSCE participating States to address the challenges observed during ODIHR peaceful assembly monitoring missions. 1. On the main definitions and the scope of legal protection: • To ensure that the freedom of peaceful assembly is guaranteed in law to everyone under the jurisdiction of participating States, including children and non-citizens.

2. On notification and authorization requirements for assemblies: • To ensure that authorization/notification requirements are only imposed when necessary to facilitate the right to freedom of peaceful assembly or necessary to protect national security or public safety, public order, public health or morals or the rights and freedoms of others and only to the minimum extent necessary; • To ensure that the notification process is prompt, not unduly bureaucratic, widely accessible, free of charge and that the lack of notification or infringements of the notification process does not result in automatic prohibition or dispersal of an otherwise peaceful assembly or in imprisonment or heavy fines; • To ensure that the requirements for prior notification are not applied in a way that amounts to a de facto requirement for prior authorization; • To require that the primary regulatory body gives a prompt official response to an initial notification, and that the regulatory body must communicate with all state bodies involved in the regulatory process, including the relevant law-enforcement agencies; and • To recognize and expressly provide in the law for spontaneous assemblies where timely notification is not possible or practicable (such as where an assembly responds to an event that could not reasonably have been anticipated); such assemblies should be exempt from the requirement for prior notification.

3. On prior restrictions on assemblies: • To ensure that any restrictions on the right to freedom of peaceful assembly and freedom of expression have a basis in primary law and strictly adhere to the principle of proportionality, ensuring, in particular, that restrictions are narrowly tailored to

194 OSCE/ODIHR, Human Rights Handbook on Policing Assemblies, para. 153. Also see Izci v. Turkey (2013) and Ataykaya v. Turkey (2014) on the lack of identification of police officers involved in use of force.

30  meet the specific and legitimate aims pursued by the authorities and are necessary in a democratic society; • To refrain from imposing blanket restrictions on assemblies, which are likely to be disproportionate, and to ensure that each assembly is assessed individually; and • To ensure that assembly participants are able to convey their message within sight and sound of their intended audience and that limitations, based on security or other legitimate considerations, are only imposed on an exceptional basis and in a proportionate manner.

4. On the role of the organizer: • To ensure that the official duty to maintain public order during assemblies, including by protecting participants, is clearly defined in the law and is understood by law- enforcement officials and policymakers at all levels as a central responsibility of the state; • To ensure that assembly organizers are not held responsible for the maintenance of public order, which would essentially ask them to replace law-enforcement bodies, and that assembly organizers and participants are not held liable for the unlawful conduct of other people; • To ensure that the role of assembly stewards, in law and in practice, is clearly defined as the role of facilitators who assist organizers in managing events on a voluntary basis, and that they are not tasked with government functions that directly pertain to the maintenance of public order during assemblies; • To ensure that the role of assembly organizers is limited to making reasonable efforts to meet legal requirements for assemblies, which include making reasonable efforts to ensure that their assemblies are peaceful and that lawful instructions by law- enforcement officials are obeyed; and • To ensure that fees to cover the costs of clean-up after assemblies or costs of other public services (such as policing and medical services) are not imposed on assembly organizers.

5. On engagement and communication by law enforcement and municipal authorities: • To create conditions for effective communication between assembly organizers, participants and law-enforcement bodies before and during assemblies in order to better protect and facilitate the exercise of rights, create mutual trust and understanding, avoid unnecessary confrontation, reduce tension, prevent violence or stop any disruptive or unlawful incidents quickly, should such incidents occur; • To ensure that the law-enforcement authorities appoint easily accessible liaison officers or other appropriate intermediaries whom organizers can contact before, during and after an assembly, and that such appointments do not absolve other law- enforcement officials directly engaged in the facilitation of assemblies from the need to communicate effectively, as appropriate;

31  • To invest in adequate resources, policies and training for law enforcement and municipal authorities in improving skills in communication, including with children and persons with disabilities; • To ensure that law-enforcement authorities proactively seek a dialogue with assembly organizers, while those exercising their right to assemble are not compelled to negotiate with the authorities and that, generally, their participation in any such process is entirely optional and voluntary; • To adopt a ‘no surprises’ approach to policing assemblies by disclosing as much planning information as possible to the organizers and by withholding information only if there is a clear and justifiable need to do so. This approach may also extend to dialogue and communication with all groups involved, including potentially violent groups at the pre-assembly stage; and • To promote diversity in law enforcement, including better representation of women and minority groups, including for positions entailing operational work, such as policing assemblies, and for command positions.

6. On the use of force, detention and containment, as well as dispersals of assemblies: • To ensure that the use of force by law-enforcement officials during assemblies strictly adheres to the principles of necessity and proportionality and is consistent with the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; • To ensure that all instances of use of force are properly recorded and reported to ensure accountability of law enforcement; • To ensure that assembly policing tactics and training emphasize the prevention of the use of force and de-escalation based on communication, negotiation and dialogue; • To develop and make public comprehensive guidelines on the dispersal of assemblies in accordance with international human rights law and principles, detailing the following: 1) the circumstances that warrant dispersal; 2) all steps required to be taken before a decision to disperse (including de-escalation measures); 3) the individual or individuals who may issue a dispersal order; and 4) the preference for voluntary dispersal before resorting to any use of force; • To ensure that assembly participants are only detained when there are legitimate grounds for the deprivation of liberty and without unnecessary or excessive use of force during arrests; • To provide training for law-enforcement officials on facilitating the enjoyment of the right to freedom of peaceful assembly with a strong emphasis on human rights- compliant planning and preparation, crowd management measures consistent with OSCE commitments and human rights standards, and to consider enlisting ODIHR’s support in this regard; and • To ensure that law-enforcement officials are adequately trained, resourced and equipped (including with less-lethal technologies) to best enable differentiated, necessary and proportionate use of force in the context of policing assemblies.

32 Annexe: Assemblies monitored by ODIHR between May 2022 and June 2024

No. Date Participating City Type of event Short description State

1 01.05.2022 France Paris Demonstration on the A moving assembly with occasion of Labour 30,000 participants Day

2 01.05.2022 France Paris Anti-fascist gathering A static assembly with about for Brahim Bouarram 100 participants

3 01.05.2022 France Paris Laying of flowers at A static assembly with about Joan of Arc statue by 10 participants the French Rassemblement National

4 02.07.2022 Romania Timisoara LGBTI Pride A moving assembly with about 350 participants

5 09.07.2022 Romania Bucharest LGBTI Pride A moving assembly with about 10,000 participants

6 09.07.2022 Romania Bucharest ‘Normality’ march A moving assembly with about 100 participants

7 09.05.2024 Moldova Chisinau March to mark Victory A moving assembly with Day about 8,000-10,000 participants

8 09.05.2024 Moldova Chisinau Youth March for a A moving assembly with European Moldova about 150 participants

9 09.05.2024 Moldova Chisinau Demonstration against A static assembly with about the Victory Day protest 5 participants to mark Victory Day

10 01.06.2024 Estonia Tallinn Protest in Solidarity A static assembly with about with Palestine 300 participants

33