memorandum by Mr Díaz Tejera, rapporteur
1. On 24 June 2013 the Parliamentary Assembly agreed
to the proposal submitted by the United European Left group to hold
a debate under urgent procedure on “Popular protest and challenges
to freedom of assembly, media and speech”. On the same day, the
Committee on Political Affairs and Democracy appointed me rapporteur.
2. Popular protest has erupted in many European (and
non-European) countries recently. Demonstrations take place mostly
in a non-organised way, independently from political parties and
civil society organisations, its participants co-ordinating with
one another through social media. I believe that the right of citizens
to demonstrate against their democratically elected governments
is as legitimate as the right of such governments not to change
their policies in face of protests.
3. Demonstrations which took place in London, Madrid, Paris and
Stockholm, in Greece, Italy, Portugal, Brazil, Russia and Turkey,
among other places, are recent examples. In all cases, the protests
started peacefully, even if in some cases small minorities did engage
in violent activity. The response by public authorities and action
taken by police forces were at times disproportionate.
4. Recently, on 31 May 2013, a peaceful demonstration organised
by opponents to an urban renovation project in Istanbul led to a
heavy-handed police intervention and triggered an unprecedented
popular protest movement in Turkey. In dozens of Turkish towns,
hundreds of thousands of people expressed their disagreement with
the attitude of the public authorities and took part in demonstrations.
In many places, these demonstrations resulted in violent clashes
with the law-enforcement forces, involving systematic use of tear gas
(pepper spray) and water cannons and in some cases the firing of
rubber bullets. The four dead, including a police officer, and the
almost 8 000 injured (59 of whom seriously) are to be deplored.
The images of the repression of the demonstrations – and of
their grave consequences – have had an impact on Turkish and international
public opinion. Among international reactions, we can refer to the statements
by Mr Nils Muižnieks, Council of Europe Commissioner for Human Rights,
on 5 June 2013, calling for the immediate cessation of the use of
force against peaceful demonstrators,Note
that of the Secretary General of
the Council of Europe, Mr Thorbjørn Jagland, on 16 June 2013, calling
for further dialogue,Note
that of Ms Josette Durrieu, rapporteur
of the Monitoring Committee on the post-monitoring dialogue with
appealing for calm; that of the
United Nations High Commissioner for Human Rights, Ms Navi Pillay,
urging the Turkish Government and civil society to rely on the decision
to suspend further action on the Gezi Park development and to act
in a way that will defuse tensions,Note
the statements of the Secretary
General of the United Nations, Mr Ban Ki Moon, during this period,
or even the Resolution of the European Parliament of 13 June 2013
on the situation in TurkeyNote
which caused an uproar among the
highest Turkish authorities. At this very moment, the Secretary
General of the Council of Europe is paying an official visit to
6. In the face of these recent cases of excessive use of force
to disperse demonstrators, we should call on the authorities to
ensure that police action, where necessary, remains proportionate.
It should be noted that the position of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) and the case law of the European Court of Human Rights underline
the serious health consequences of the use of tear gas.
3 Protests and social
7. Most regions of the world, including Council of Europe
member States, have witnessed the rapid rise of social networking
with the help of smartphone technologies. As vehicles for organising
and expressing dissent, the Internet and social media such as Twitter
and Facebook have already proven significant tools in many protests,
causes, uprisings and conflicts.
8. Social media played a key part in Turkey’s recent protests,
not least because much of the Turkish media downplayed the protests,
particularly in the early stages. As a result of the lack of mainstream
media coverage, social media played a key role in keeping people
informed, with Twitter hashtags “#OccupyGezi” and “#DirenGeziParki”
(“Resist Gezi Park”).
9. In general, it is becoming too frequent to hear political
leaders attacking the use of the Internet and social networks, accused
of being vehicles for misinformation and incitement to protests
against democratic institutions, and therefore of endangering the
public and social order.
10. We must strongly reject this view. We cannot forget, for example,
the key role played by the social media in the historic movements
of the Arab Spring. Clearly, there is a danger of manipulation on
the web, as there is in the traditional media. However, that is
no justification for referring to the main forum for free dialogue among
citizens as a threat to our democracies.
4 Freedom of assembly,
of expression and of the media
11. Articles 10 and 11 of the European Convention on
Human Rights (ETS No. 5), which guarantee, respectively, the freedom
of expression and the freedom of assembly (and association), have
a common feature in that they are qualified rights and they share
a two-paragraph structure, in which paragraph 1 states the right
and paragraph 2 sets out the circumstances in which interference
with it may be justifiable.
12. In so far as the freedom of assembly is concerned, this includes
public or private meetings, marches, processions, demonstrations
and sit-ins. The purpose may be political, religious or spiritual,
social or another; no limit has been imposed on purpose, but any
assembly must be peaceful. Incidental violence will not mean an
assembly forfeits protection unless it had a disruptive purpose.
In such circumstances, the State has a “positive obligation”, in
other words, a duty to protect those exercising their right of peaceful
assembly from violence by counter-demonstrators. In one case, for
example, the police had formed a cordon to keep rival demonstrators
apart but failed to prevent physical attacks and damage to property.
The European Court of Human Rights found they had not done enough
to enable a lawful demonstration to proceed peacefully (United Macedonian Organisation Ilinden and
Ivanov v. Bulgaria).
13. Under paragraph 2 of Article 11, restrictions or bans on assemblies
must be i) prescribed by law ii) for a permitted purpose and iii)
necessary in a democratic society, proportionate and non-discriminatory.
The permitted purposes are: national security or public safety,
the prevention of disorder or crime; the protection of health or
morals, and the protection of the rights and freedoms of others.
14. Authorities have substantial discretion in assessing whether
a proposed assembly poses any risk of endangering public safety,
etc., which could justify interference, but the presumption must
be that a peaceful assembly is allowed. It is not a breach to require
prior notification or authorisation, but refusing permission is an
interference, which requires justification by the strict standards
of paragraph 2. There can be a breach even if the assemblies went
ahead in defiance of the refusal.
15. The authorities need to be careful that restrictions are non-discriminatory.
The fact that organisers are an unpopular group of individuals is
not a sufficient reason to prevent their assembly. The authorities
in such situations should demonstrate “pluralism, tolerance and
broadmindedness”. The same principles would apply to minority ethnic
or political groups, or to other minorities like lesbian, gay, bisexual
and transgender persons (LGBT) wishing to hold marches and demonstrations.
As regards freedom of expression and more specifically freedom
of the media, I refer the reader to Resolution 1920 (2013)
on the state of media freedom in Europe, adopted by
our Assembly in January 2013, as well as to the report prepared
by Mr Mats Johansson for the Committee on Culture, Science, Education
and Media (Doc. 13078
17. It seems self-evident to assert that the possibility for the
media to cover mass demonstrations by the people is a fundamental
aspect of the freedom of the media: this is not merely one of the
inherent components of the right to media freedom, it is also the
media’s duty to inform us about these events, which are part of
the life of our democracies, and indeed are the signs that we are
still living in a democracy. And yet, we have to acknowledge that
this obvious aspect of the media’s role can be forgotten.
18. A democratic State has not only the duty to refrain from any
unlawful interference but also the obligation to take the necessary
steps to ensure that the media’s right to freedom to inform – particularly
in the case of mass movements – and everybody’s right to freedom
of access to information – especially in the case of public protests
and challenges to authority – are guaranteed in practice and can
be exercised without fear or hindrance.
19. Freedom of association, assembly and demonstration,
including non-organised and non-authorised protest, is an essential
right in a democracy, safeguarded by Article 11 of the European
Convention on Human Rights and constantly upheld by the European
Court of Human Rights in its case law. Any restriction of this right
must be provided for by law and necessary in a democratic society.
It is for the authorities to guarantee the exercise of the right
of expression and demonstration.
20. Therefore the role of law-enforcement forces in the case of
popular protest should be that of ensuring and protecting the rights
of demonstrators, their freedom of association and their freedom
of expression, while protecting other people and public and private
property. In the course of action, it may sometimes not be evident
for a police officer to strike the right balance and therefore it
is vital to have very clear guidelines and instructions, as well
as an accountable hierarchy.
21. Citizens are entitled to objective and full information and
it is for the authorities to guarantee conditions conducive to the
effective exercise of media freedom and freedom of expression, in
accordance with the case law of the European Court of Human Rights.
In particular, there is a need to clarify the issues of ownership
and independence of the media.
Consequently, the Assembly should urge the authorities of
Council of Europe member States, where appropriate, to take the
necessary measures to bring their legislation into line with Council
of Europe standards and the case law of the European Court of Human
Rights, including as regards freedom of expression, of the media
and of assembly. Inter alia
, they should:
- guarantee freedom of assembly
and demonstration in accordance with the case law of the European Court
of Human Rights and ensure that this freedom can be exercised in
- investigate the use of excessive or disproportionate force
by members of the law-enforcement forces and impose sanctions on
those responsible; reinforce human rights training for members of
the security forces, and also for judges and prosecutors, in partnership
with the Council of Europe;
- draw up clear instructions concerning the use of tear
gas (pepper spray) and prohibit its use in confined spaces;
- ensure media freedom, put an end to the harassment and
the arrests of journalists and the searches of media premises and
refrain from imposing sanctions on media outlets covering popular
protests, in line also with Resolution
- reform the Criminal Code and the Code of Criminal Procedure,
as well as anti-terrorism legislation and the Administrative Code,
whenever the relevant legislation is not in line with Council of
Europe standards and the case law of the European Court of Human
- examine means of consulting the population or involving
it in the management of public affairs, both at national and local
levels, drawing on relevant European standards and good practices,
in line also with Resolution
1746 (2010) on democracy in Europe: crisis and perspectives.
23. Finally, the Assembly should invite the Secretary General
of the Council of Europe to consider the elaboration of guidelines
on respect of human rights in the policing of demonstrations.
24. Let me conclude that we must not forget that sovereignty belongs
to the people and that governments and elected representatives are
there only to serve them. The authority conferred upon them by the
majority of the electorate never gives them the right to muffle,
or worse to silence, those who disagree with them, who are dissatisfied
or who demand change. In contrast, this authority makes them accountable
and should prompt them to listen carefully.
25. Even though it is for the democratically elected representatives
to take decisions which run counter to the expectations of the crowds
if that is in the general interest, they cannot ignore the will
of the people. The latter cannot be reduced to mere voting but must
be given the opportunity to be expressed in other ways every day,
specifically through the right to freedom of expression, assembly
and peaceful demonstration.