Right to freedom of peaceful assembly

Marianne Meiorg

No remarkable changes in regulation concerning rights and freedoms of organising assemblies took place in 2010. And the attention of the public amounted to singular articles in the press and the social media. As an outstanding exception to this general trend, the Chancellor of Justice published the recommendations to the Tallinn City Government on the correct implementation of the regulation on public assemblies in the summer of 2010.

The recommendation of the Chancellor of Justice touched upon the topic that was dealt with in the annual report “Human Rights in Estonia 2008–2009”, in other words the dispute between the Circus Tour and the animal rights’ activists.^[1] On September 30^th, 2009 the representative of the movement Loomade Nimel passed an application to the Chancellor of Justice which requested investigation into the legality of cancellation of the protest that was to take place on September 19^th, 2009. The Chancellor of Justice analysed the events thoroughly in the June 21^st, 2010 recommendation to Tallinn City Government and also gave his legal appraisal.

Essentially, the Chancellor of Justice found that failing to register the public assembly for the movement Loomade Nimel,[2] because an assembly for Taimede Nimel[3] had already been registered to take place at the same time and place on the grounds of safety, was unlawful. According to the recommendation of the Chancellor of Justice, the organiser is advised to choose another time for the assembly if another public assembly has already been registered at the requested place and time.

If in that case the public meeting loses its meaning, a new place must be chosen in the vicinity, however, not in the immediate vicinity of the assembly that had been registered earlier. The Chancellor of Justice also found the fictitious public assemblies deplorable if their actual intention is to preclude constitutional rights of others (in this case the right to assembly and freedom of expression). Chancellor of Justice considered it necessary to point out that the public authority should not have the right to decide over the admissibility of the content of assemblies.

A similar case from 2009 and 2010 is that of the traditional public meeting held in Hirvepark on August 23^rd. The competing events for the same date and the same place are the event celebrating the anniversary of the Molotov-Ribbentrop pact and the event celebrating the 1987 protest against Soviet rule. The latter is traditionally organised by Pro Patria and Respublica Union (IRL), the former by nationalist Jüri Liim, who has had the luck to register the event in Hirvepark first for the last two years.

Amendments to the Penal Code

Some important developments that did not make it into the annual report “Human Rights in Estonia 2008–2009” took place at the end of 2009. An interesting case from the point of view of implementation of the right to freedom of peaceful assembly and the Public Assemblies Act, which did not make it in the report was the Administrative Law Chamber of the Supreme Court judgment 3-3-1-80-09.^[4]

The Supreme Court gave an appraisal to the appeal of the non-profit organisation Öine Vahtkond concerning the repeated ban of organising a public assembly imposed by the Northern Police Prefecture in March and April of 2008.

Sergey Tydyyakov, a member of the non-profit organisation Öine Vahtkond gave three notices of public assembly to Tallinn City Government in March and April of 2008, in order to organise a meeting “for preservation of democratic values in modern Estonia” in Hirvepark, Falgi park and Tuvi park. Northern Police Prefecture banned all of these assemblies. The assembly was allowed to take place on the condition that it is held in the park next to the Centre of Russian Culture or the Tallinn Military Cemetery near the monument of the bronze soldier. The assembly took place on April 26^th, 2008 in the park next to the Centre of Russian Culture.

Even though the Supreme Court reviewed the cassation for non-patrimonial damage, it also approved the earlier Tallinn Administrative Court judgment in the case, which declared the referrals of Northern Police Prefecture banning the assemblies unlawful. Northern Police Prefecture had thus breached the Public Assemblies Act, as there was no basis for banning the public assembly. The Police had not referred to bases that could have justified the ban of these assemblies in their referrals. Even though this judgment cannot guarantee that such cases will not occur in the future, the right to freedom of assembly is, nevertheless, protected from arbitrariness of the police and the local governments by the constitution.

The Penal Code amendments crucial to the right of freedom of assembly that did not make it into the respective chapter of the previous annual human rights report entered into force at the end of 2009. These amendments were paid remarkable amount of attention to in the political sphere and the press during the adoption process, especially what concerns § 238 of the Penal Code. Different stages of processing these changes and the story of development deserve a more thorough approach.

Until November 14^th, 2009, before the amendment proposal was made, the § 238 was worded as follows:

 “§ 238. Organising mass disorder

Organising a disorder involving a large number of persons, if such disorder results in desecration, destruction, arson or other similar acts, is punishable by 1 to 5 years’ imprisonment.”^[5]

Point 6 of motions to amend the draft of the act amending Penal Code (416 SE) advised to word § 238 as follows:

 “§ 238. Organising mass disorder or preparation and appeal to commit it

 (1) Organising or preparing or appealing to take part in a disorder involving a large number of persons that may result in desecration, destruction, arson or other similar acts, is punishable by 1 to 5 years’ imprisonment.

 (2) The same offence, if it has resulted in desecration, destruction, arson or other similar acts, is punishable by 3 to 5 years’ imprisonment.”

In the appraisal of Silver Meikar and Aleksei Lotman this amendment would have been a hazard to democracy in Estonia. In their opinion, only those assemblies that have assault on public order and public security as their purpose must be punishable. Excessive limitations on freedom of peaceful assembly may obstruct and deter people from expressing their opinion peacefully, which in turn restricts the freedom of speech, an essential and constitutionally as well as internationally protected and recognised human right.

The draft was passed as law on the third reading on June 15^th, after having gone through several changes, with 52 members of Riigikogu in favour of it and 30 against. In that reincarnation the § 238 read as follows:

Ҥ 238. Organising mass disorder and preparation and appeal to participation

 (1) Organising or preparing or inciting to participate in a disorder involving a large number of persons that may result in desecration, destruction, arson or other similar acts, is punishable by pecuniary punishment or up to 5 years’ imprisonment.

 (2) The same offence, if it has resulted in desecration, destruction, arson or other similar acts, is punishable by 3 to 8 years’ imprisonment.”

Compared to the first motion to amend the amendment adopted by Riigikogu differs mainly for the severity of the sanction. An offence based on subsection 1 is now punishable by pecuniary punishment as well as imprisonment. Nonetheless, many doubted the constitutionality of this provision and President Toomas Hendrik Ilves decided not to proclaim this act on July 1^st, 2009. The President explained his stance regarding § 238 that there is an extremely small possibility that any event or action may result in other events and actions. Estonian Penal Code does not entail any other necessary elements of a criminal offence of similar construction. The definition of disorder is also without a clear definition.

It cannot be precluded that the definition of disorder could be made to include an unregistered public assembly. In the President’s appraisal the adopted form of the paragraph is in contradiction with § 47 of the Constitution that guarantees the right to freedom of peaceful assembly, and that principle would lose its meaning if the organiser of a peaceful assembly is made punishable for offences that took place at the meeting despite of his intentions. If the new wording of § 238 of the Penal Code came into force, it would be almost completely unforeseeable for the organisers of peaceful assemblies or the persons inciting participation whether he is facing a punishment for a criminal offence against the state or not.^[6]

The following autumn the problem areas pointed out by the President were addressed and the draft was amended. The second reading of the second legislative proceeding of the act that President had not proclaimed took place on October 14^th, which was followed by the third reading on October 15^th, where the draft was finally passed as law. The President proclaimed it law on October 27^th and the amendment that came into force on November 15^th reads more severe yet more lenient than the initial proposal:

“Organising or preparing or inciting to participate in a disorder involving a large number of persons, if it has resulted in desecration, destruction, arson or other similar acts, is punishable by 3 to 8 years’ imprisonment.”^[7]

Therefore, unlike per the initial motion to amend, organising a public assembly or preparing or participating in an assembly, which merely may result in desecration, destruction, arson or other similar acts, is no longer punishable under § 238. Yet the possible punishment compared to the earlier law has been increased notably. The minimal imprisonment for this offence has risen to three years from the previous one year and the maximum imprisonment to eight years from the previous five.

For the purpose of providing the right to freedom of assembly the current wording of § 238 of the Penal Code is preferable to its earlier motions to amend, however, the sanction that prescribes a minimum of three years’ imprisonment for breaching this paragraph may have a restrictive effect on a fundamental right that is the right to freedom of assembly. It is disputable, whether a term of punishment of such severity can be considered proportionate to potential offences committed under § 238 of the Penal Code. Yet the rights of these people must also be considered.

Protests and public assemblies in 2010

It seems that the amendments that came into force at the end of 2009 have not impeded organising public assemblies. Large protests and public assemblies are not customary in Estonia nor were there surprises in 2010, when no remarkable protests took place. The assemblies are commonly organised by various political forces, Estonian nationalists and Russia-minded unions.

There has already been a mention of the annual meeting in Hirvepark that takes place on August 23rd. The 20^th division Estonian veterans’ assembly on July 31^st, 2010 at Sinimäe also received wider attention. The non-profit organisation Öine Vahtkond also wished to have an assembly at the same location. Vaivara rural municipality government rejected their appeal, and Öine Vahtkond therefore sued the Vaivara rural municipality government. Tartu Administrative Court rejected the organisation’s appeal. At last Öine Vahtkond organised the assembly “World without Nazism” a bit further from the assembly of the SS veterans. 100–130 people took place in the assembly of Öine Vahtkond. More than 300 people participated at the assembly of the veterans. Öine Vahtkond still accused the police of obstructing their arrival at Sinimäe and sending back some of the people who were on their way to the assembly. It must be noted that the assemblies of various interest groups at Sinimäe have always caused differences of opinion and controversy, and therefore there is always the chance that smaller or greater offences may be committed in the course of it.

So far the commemorative events that have been organised since 1994 have passed without conflicts, but considering the increased activity of Öine Vahtkond in the recent years, one must be careful organising these events and manage the risks pre-emptively, especially in the light of the 2009 amendments to the Penal Code.

Öine Vahtkond has organised other protests in addition to the ones at Sinimäe. For example, on April 22^nd, 2010 a protest was held in Tammsaare park against NATO and its actions in Afghanistan. It must be noted that the organisation’s first choice of location for this protest was the vicinity of the Ministry of Foreign Affairs, but the police did not grant them the permission to have the meeting at that location. Öine Vahtkond went to court against the decision of the police. Smaller protests also took place on the third anniversary of the April protests of 2010.

Another protest worth noting is the one organised by the Centre Party that took place on May 1^st on Toompea, where a demonstration against government took place, demanding protection for current and future old age pensioners and the reversal of the raise of minimum age limit of old age pensioners, ending the educational reform shutting down schools and demanding passing an act in Riigikogu that would create jobs. Circa 1500 people took part in that protest. On February 2^nd, 2010 the members of the Estonian National Independence Party (ERSP) organised a protest in front of the Russian Embassy in Tallinn demanding returning the land lost to Russia after the Tartu Peace Treaty. The protest was peaceful. On May 9^th, 2010 a protest organised by the Nationalists’ Tallinn Club was held in Tammsaare park for the protection of Estonian kroon and against adoption of the euro. Circa 50 people took part in this assembly.

Summary

The events of 2010 indicate that severer provisions regarding the right to public assembly have not proved to be an obstacle in organising various protests. Possibilities for organising public assemblies are available and the limitations are not unreasonable. Yet the small number of people participating in protests indicates the low level of democracy in the Estonian society as people are not interested in protecting their rights and expressing their opinions in matters important to them.

The positive development is the Chancellor of Justice’s recommendation on registering public assemblies. According to this recommendation the authority registering the assembly does not have the automatic right to refuse to register it if the time and place of the assembly coincides with another assembly. In that case the responsible authority must offer alternatives.