Public Assemblies Act
Freedom of assembly is one of the most essential human rights that form the basis of a democratic society. It is closely tied in with several other human rights such as freedom of expression, which is considered to be the cornerstone of a democratic society along with freedom of thought, conscience and religion. Freedom of assembly, along with freedom of expression is essential for providing or the protection of other human rights, as it allows people to stand up for their rights and demand that the state respects their rights through the use of these freedoms.
Constitution of the Republic of Estonia establishes freedom of assembly in §47: “Everyone has the right, without prior permission, to assemble peacefully and to conduct meetings.” A similar provision can be found in European Convention of Human Rights (Article 11) and the UN International Covenant on Civil and Political Rights (Article 21). It is, however, not an absolute right – it can be limited, and on certain occasions it has to be limited. The constitution, as well as the European Convention and UN Covenant, albeit worded slightly differently, allow restriction of the freedom of assembly in certain cases and pursuant to procedure provided for by law to “ensure national security, public order, morals, traffic safety, and the safety of participants in a meeting, or to prevent the spread of an infectious disease.”
The main act that regulates freedom of assembly in Estonia is the Public Assemblies Act, which states that a public meeting as regulated by law is “a demonstration, meeting, picket, a religious event, procession or any other protest taking place on a square, in a park, on a road, in the street or any other public place in the open air” (§2). This law came to force in 1997 but was in desperate need of updating and modernisation to bring it into accordance with current standards. Ken-Marti Vaher, the chairman of the Legal Affairs Committee of the Parliament considered the outdated act even unconstitutional when he spoke at the discussion of its amendment in 2008.
Modernisation of the Public Assemblies Act
The constitutionality of the regulation of public assemblies came under doubt primarily in regards to the notification requirements of such assemblies. Thus far, the notification period had been seven days in most cases, which poses a problem considering that most protests are to do with topical decisions, which need to be reacted to immediately. “Certain assemblies and protests lose their actuality as time passes and from point of view of democracy it is essential to be able to show one’s opinion faster”.
The amendments that came to force on July 13th, 2008 state that there are two deadlines for notifying of public assemblies, depending on the scope and nature of the assembly:
- A public assembly must be notified of to the local municipality government, the county government or the government of the Republic of Estonia (depending on the territory where the event will take place) at least four days but not earlier than three months in advance if it requires (§7 section 1):
– Diversion of traffic;
– Setting up a marquee, a stage, a tribune or some other construction of a large scale, or
– Use of sound or lighting equipment;
- On other occasions the police must be notified of the assembly at least two hours in advance (§7 sections 2).
In specific cases public assemblies are not allowed (Public Assemblies Act §3, 5 and 8 section 6 and Emergency Act, §27 section 1). Amendments of 2008 brought in new wording of Public Assemblies Act §3 section 3. Now a public assembly is prohibited if it “incites hatred, violence or discrimination based on nationality, race, colour, gender, language, origin, creed, sexual orientation, political opinions or proprietary or social situations”. In addition to Minister of Internal Affairs and the prefect who were stated in the previous act it is now also within the power of the Director-General of Police and Border Guard Administration to prohibit a public assembly (Public Assemblies Act, §8 section 7).
Regulation of the prohibition of public assemblies has been remarkably more flexible since the amendments to the act were made. The officials no longer have the duty to prohibit a meeting if it contradicts provisions of Public Assemblies Act, but they are given a certain amount of discretion to decide and even make proposals to the organisers of the meeting in order to bring the assembly into conformity with the law (§8).
Therefore, the changes made in the Public Assemblies act in 2008 constitute change in the right direction. The notification period for public meetings has been made shorter and it now enables the public to react to topical issues operatively. It is also a positive development that there is now more flexibility in a situation, where the public assembly or its notice does not comply with provisions of the law. The officials have the opportunity to decide, taking certain issues into consideration, whether to prohibit the public meeting from taking place or to make proposals to the organisers on how to bring the assembly or its notice into conformity with the law.
Application of Public Assemblies Act
Despite the generally positive changes in the Public Assemblies Act, the practice so far has demonstrated some shortcomings. In 2008 and 2009 the attempts of animal rights’ activists to protest against using animals in a circus received media attention. The Circus Tour that travelled around Estonia was joined on both summers by animal rights’ activists, who arranged protests at most stops of the tour. The persons involved with the Circus Tour, who were tired of the protests, registered a protest of their own at the place where the tour stopped, thereby impeding the animal rights’ activists from registering a protest. This happened in 2008 as well as in 2009. Having registered their demonstration, they did not hide their true motives, giving comments on their plan in the press on several occasions.
Human rights and freedoms are not unrestricted and the freedom of assembly is no exception in this regards. Most of these rights can and should be restricted. The Constitution of the Republic of Estonia demands the honouring and the taking into account of human rights and freedoms of others (§19 section 2).
The international human rights treaties that are binding on Estonia have approached this subject from a slightly different angle – they prohibit people from using their rights and freedoms in a way that contradicts their meaning. This rule has thus far been used in extreme situations concerning freedom of expression, assembly or association for the purpose of inciting racial hatred or in activity contradicting democratic public order. The duty stated in the Constitution of Republic of Estonia has, at first glance, a wider application. The purpose of §19 section 2 of the constitution is to require persons to use their rights in a manner that respects the rights and freedoms of others. If this requirement is ignored the state has the right and duty to react to it.
The duty of the state stems from paragraphs 13 and 14 of the constitution, which affords everyone the right to the protection of the state; and thereby requires the state and local government to guarantee the rights and freedoms of persons. These provisions require the state (and the local government) to actively “protect anyone from interfering with activity of other people”. The state must actively apply the requirements stemming from law, but it also has to interpret the norms of law “in the light of the constitution”. Therefore, the law should not be applied automatically; it must also be ensured that the application of a specific norm is in accordance with human rights and freedoms guaranteed in the constitution under the relevant circumstances.
If a situation arises where the application of a norm of law brings about a restriction of a person’s human right or freedom, the state has the duty to find a balance between the opposing interests. The purpose of this is to find a solution that restricts the rights of everyone involved as little as possible and fulfils the purpose of the specific basic right or freedom as much as possible.
The conflict between the Circus Tour and animal rights’ activists took place because of a distortion of the principle of freedom of assembly for personal gain. The persons involved with the Circus Tour, who were behind the pseudo-demonstration, clearly abused their freedom of assembly. This is clearly demonstrated by their statements in various media outlets. They registered a public assembly in the name of protection of plants, not to hold a public meeting, but to restrict the animal rights’ activists from holding a meeting of their own. Thereby these people violated their duty stemming from the constitution to honour and take into account other people’s rights (§19 section 2).
Did this course of action create obligations for the state? According to the constitution, this created the obligation to protect the freedom of assembly of the animal rights’ activists for the state (§13 and 14). Upon finding out the plan of people associated with the Circus Tour, the state should have taken action. The animal rights’ activists could have sped up the process by notifying the local government of a public assembly that contradicts with the constitution. The local government should have made a balanced decision between the interests of people involved and acted accordingly. A possible solution could have been to hold negotiations between organisers of two opposing public assemblies.
According to changes that came to force in the summer of 2008, the local government no longer has the absolute obligation to prohibit an assembly from taking place if it contradicts the provisions of Public Assemblies Act. The statement of grounds for the changes made emphasised relaxing of rules, which would allow officials a certain amount of room for consideration and the opportunity to make proposals to organisers (§8) that would remedy the situation. In this case the local government came to a conclusion that disregarded its scope of consideration and made an automatic decision not to register the assembly that was notified of later. According to the constitution the local government needs to depart from a persons’ basic rights upon interpreting the law and in the case of collision try to balance opposing interests in a way that facilitates the realisation of everyone’s rights to as great an extent as possible.
The local government failed to fulfil its duty stemming from the constitution. As a result, the persons wishing to use their human rights and freedoms purposefully were deprived of this opportunity. Yet persons who never intended to hold a public meeting were given that right. The local government should have known of the assembly’s unconstitutionality (at least on the second occurrence in 2009 when persons associated with the Circus Tour repeated the 2008 incident, having notified the public of it through media previously). Therefore the local government was in breach of its constitutional duty and the animal rights’ activists, who did not manage to register their meeting, had the right to demand the local government to protect their rights.
Organizing public assemblies has become a great deal simpler with the latest amendments and there are no great reproaches to the wording of the Act. However, there are still some matters of concern regarding the application of the act, as demonstrated by the Circus Tour incident. An important aspect is raising awareness amongst officials on the nuances of regulation of public assemblies.
 European Court of Human Rights, Handyside v United Kingdom (7 December 1976), para 49.
 Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 1950, entry into force for Estonia 1996.
 International Covenant on Civil and Political Rights, adopted 1966, entry into force 1976, entry into force for Estonia 1992.
 Avaliku koosoleku seadus [Public Assemblies Act] (RT I 1997, 30, 472; RT I 2009, 62, 405).
 Ken-Marti Vaher, Records of the XI Parliament, III session, 4.06.2008 at 14:50.
 Ken-Marti Vaher, Records of the XI Parliament, III session, 4.06.2008 at 14:50. Also Silver Meikar’s explanation for changing §4 p 2 of the draft. – the second readon, Draft Act 222 II, Muudatusettepanekute loetelu politseiseaduse ja sellega seonduvate seaduste muutmise seaduse eelnõule [Motion to amend the Police Act and acts connected to it] (04.06.2008), p 11.
 Silver Meikar, Records of the XI Parliament, III session, 4.06.2008 at 14:50.
 Hädaolukorra seadus [Emergency Act] (RT I 2009, 39, 262; RT I 2009, 62, 405).
 Tarlach McGonagle, The Potential for Practice of an Intangible Idea, 13 Media Law and Policy 28, p 38. For example, European Convention of Human Rights (Art 17), Charter of fundamental rights of the European Union, Official Journal of the European Union 303, 14/12/2007, pp 1-16 (art 54), Covenant on Civil and Political Rights (art 5(1)).
 See for example European Court of Human Rights, Norwood v United Kingdom (16 November 2004); European Court of Human Rights, W.P. and Others v Poland (2 September 2004); European Court of Human Rights, Gustafsson v Sweden (25 April 1996).
 This provision has also been discussed by the Supreme Court: “Any use of basic rights is limited by §19 section 2 of the Constitution, which states that everyone has the obligation to honour and respect others’ human rights and freedoms and follow the law in the course of enjoying their rights and freedoms” – Special Panel of the Supreme Court, 3-2-1-99-97 (1.12.1997).
 Taavi Annus, Riigiõigus [Constitutional law], Juura 2006, p 223; Rait Maruste, Konstitutsionalism ning põhiõiguste ja -vabaduste kaitse [Constitutionalism and protection of basic rights and freedoms], Juura 2004, p 295.
 Annus (reference 77), p 223.
 Annus (reference 77), p 235-236; also Eesti Vabariigi põhiseadus, kommenteeritud väljaanne [Constitution of Republic of Estonia, commented] (second, improved edition), Juura 2008, p 129.
 Kaldoja (reference 73); Kass (reference 73).