MOSCOW, March 11 - RAPSI. The European Commission for Democracy through Law (Venice Commission) views a set of controversial amendments enacted on the heels of a series of opposition uprisings last year as “a step backward for the protection of freedom of assembly in the Russian Federation,” according to a copy of the opinion released to RAPSI Monday.

On the heels of several months of protests last summer, Russian legislators adopted amendments to a law on public protests increasing fines for protest-related offenses ten-fold, stipulating compulsory community service for those found in violation of the law, and prohibiting the use of masks during protests.

This is the sixth law that the Parliamentary Assembly of the Council of Europe (PACE) has referred to the Venice Commission for its review.
On the basis of PACE’s initial referral of the law to the Venice Commission last year, the latter adopted an opinion in March making several recommendations to the law.

Citing the Venice Commission Guidelines on Freedom of Peaceful Assembly (Guidelines), it was initially noted that “the Commission’s deep conviction that the protection of the freedom to peacefully assemble is crucial to creating a tolerant and pluralistic society in which groups with different beliefs, practices or policies can exist peacefully together. As a fundamental right, freedom of peaceful assembly should, insofar as possible, be enjoyed without regulation.”

Guided by these principles, the Venice Commission issued numerous recommendations, including:

- The explicit inclusion in the text of the amendments of a presumption in favor of holding assemblies, as well as inclusion of the principles of proportionality and non-discrimination;
- A revision of the sanctioning process, whereby organizers of a protest would not be required to cancel a planned gathering on the basis of logistical disagreements with the relevant authorities;
- A right to appeal any refusal by authorities to sanction a protest with time to spare before the scheduled event;
- A right to hold spontaneous or “urgent” assemblies, as well as the right to hold simultaneous or counter demonstrations, so long as these do not involve the threat of violence;
- A reduction of the liability of rally organizers in connection with their duties to maintain public order;
- And a narrowing of blanket restrictions governing the time and places of public events.

None of these recommendations were taken into account prior to the enactment of the amendments last summer.

The opinion notes however that a group of State Duma lawmakers challenged the amendments before Russia’s Constitutional Court, which in turn issued an opinion on the matter on February 14 of this year.

In the present opinion, the Venice Commission lauded the Constitutional Court for its careful analysis of international human rights norms, and in particular for acknowledging the Court’s focus on: “...the right of freedom of peaceful assembly is not subject to any restrictions other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

The Venice Commission voiced concern, however, with the Constitutional Court’s focus on Russian citizens. According to the opinion, “[c]are should be taken to ensure that guarantees of fundamental freedoms in the law should not be limited to citizens but be applied to all persons.”

The Venice Commission then proceeded to criticize the amendments on the basis of a variety of different issues.

First, the June 2012 amendments ban from organizing public events anyone that has been convicted of serious crimes against constitutional order and state security, as well as those that have been convicted of a plethora of lesser crimes and administrative offenses. To this, the Venice Commission notes: “The exclusion of whole categories of people for breaches of a variety of not only severe criminal but also administrative provisions, and irrespective of the gravity of such breaches, represents, in the Commission’s view, a disproportionate restriction of the right of freedom of assembly.”

The Commission thus recommends the removal from the amendments of “whole categories of people for breaches of variety not only of criminal but also of administrative offenses, irrespective of their gravity.”

With respect to increased liability on organizers for damages caused during protests, the Venice Commission notes that while organizers should exercise due care to prevent disorder, “he or she cannot exercise police power and cannot be required to do so.”

The Commission issued several recommendations with regard to the increased scope of liability for organizers. First, it recommends the inclusion of an indication that failure to demand intervention by internal affairs authorities should not entail negative consequences for protest organizers.

Likewise, the Commission recommends excluding the present stipulation that organizers should be held to account for the number of participants involved in protests.

Furthermore, it recommends limiting the scope of damages to the failure of organizers to exercise due care in leading protest movements.

With regard to the June 2012 amendments’ ban on the wearing of masks by protesters, the Venice Commission references the Guidelines, which establish that, “the wearing of a mask for expressive purposes at a peaceful assembly should not be prohibited so long as the mask or costume is not worn for the purposes of preventing the identification of a person whose conduct creates probable cause for arrest and so long as the mask does not create a clear and present danger of imminent unlawful conduct.”

Thus the commission views the June 2012 amendments’ blanket ban on masks a disproportionate restriction, and urges its repeal.

The Venice Commission took issue as well with the newly amped up penalty system established by the June 2012 amendments.

The opinion contextualizes its claim that the fee scale has been dramatically increased by explaining that “the maximum amounts (300 000 RUR for citizens and 600 000 RUR for officials) have the potential to severely affect the revenue of the individual concerned when compared to the average per capita monthly money income in the Russian Federation, which in 2011 was of RUR 20 702,721: the new maximum amounts of the administrative fines correspond to 14.5 and 29 times the average monthly income respectively.”

Thus the Commission recommends the revision and drastic lowering of penalties applicable in case of the law’s violation.

The opinion considered a series of other recommendations as well, on topics ranging from picketers to time-limits of public events and more.