Communicated on 25 June 2014

THIRD SECTION

Application no. 5591/10 Milica ĐORĐEVIĆ and others against Serbia and 3 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They are all represented by the Belgrade Center for Human Rights, a non-governmental organisation based in Serbia.

A. The relevant background

A n attempt was made on 31 June 2001 to hold a rally intended by its organisers to promote the equality and visibility of lesbian, gay bisexual and transgender population in Serbia (the “Belgrade Pride Parade”) in central Belgrade. This event was violently disrupted and the rally had to be stopped.

The next attempt to hold such a rally was made in 2009 (see below).

A “Pride Parade” was held in central Belgrade on 10 October 2010 with official permission. While the parade itself was held without incidents, the police had to confront numerous violent opponents who tried to disrupt it. It was reported that more than 100 police officers were injured.

No “Pride Parades” have been permitted since.

The applications concern the applicants ’ attempts to hold “Pride Parades” in 2009, 2011, 2012 and 2013.

B. The circumstances of the present cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Pride Parade in Belgrade in 2009 (Application no 5591/10)

(a) Introduction

The applicants in this case are Ms Milica Đorđević, Mr Dušan Kosanović, Ms Majda Puača, Ms Marija Savić and Ms Dragana Vučković.

(b) Organisation of the Pride Parade in 2009

The applicants, together with other persons, were involved in organisation of the Belgrade Pride Parade 2009.

The assembly was scheduled to take a place on 20 September 2009 at 1 p.m. in the centre of Belgrade, on the Plateau in front of the Faculty of Philosophy, including a procession through streets in central Belgrade. According to the applicants the location chosen had a symbolic importance because the Plateau in front of the Faculty of Philosophy and the Republic Square in central Belgrade are traditional public fora, spaces which symbolise democracy and human rights in Serbia.

On 21 July 2009 the general public was informed that the Pride Parade would to take place on 20 September 2009.

In August and September 2009 the organisers and representatives of the Ministry of the Interior held several meetings concerning security measures for the event.

On 7 September 2009 a submission containing a detailed plan of activities regarding the organisation and safety of the Pride Parade was sent to the police together with the request for the Ministry of the Interior to provide their own suggestions and opinions regarding the proposed plan.

On 8 September 2009, the Head of Police Department of the Republic of Serbia allegedly telephoned the coordinator of the Pride Parade safety evaluation study and asked him to convince the organisers to postpone the public assembly.

On 13 September 2009, an assistant head of the Police Department of the Republic of Serbia stated on a widely-watched television programme that he would not exclude the possibility of prohibiting the Pride Parade, should any safety risks arise.

The applicants allege that on 14 September 2009, at a meeting between the organisers and representatives of Ministry of the Interior, the organisers expressed their dissatisfaction with the level of cooperation of the police who, by that time, less than a week before the event, had still not responded to any of the safety plans and proposals sent and presented to them. Instead police officials had insisted that the organisers would be responsible for whatever might happen in Belgrade during the event. When asked about the most sensitive security issue, namely providing safety to the departure of participants by the police, for which the organisers suggested organised bus transfer to safe locations, the police officers allegedly laughed out loud at the suggestion, saying: “off you go, every which way ... ” ( kud koji, mili moji ).

On 15 September 2009 the local media reported on an evaluation by the Respondent State ’ s security services according to which it had been estimated that “on 20 September 2009 right wing organisations, parent ’ s associations and football hooligans were going to try to prevent violently the Pride Parade, if in the meantime the organiser of the parade did not voluntarily desist from holding the parade”.

On 17 September 2009 the City of Belgrade Department of Transport issued a permit for special regulation of traffic during the planned assembly, with the assistance of the Ministry of the Interior, upon fulfilment of certain conditions such as the obligation of organisers “to cover all costs as well as any increased costs of other organisations and citizens which might be the result of, or incurred, during the public assembly”.

On 18 September 2009, at the meeting between the organisers and the senior police officials, the Head of Police Department of Republic of Serbia, allegedly informed the organisers about the existence of a “political decision by top state officials” that the Pride Parade would be relocated to Ušće Park in New Belgrade.

On 19 September 2009 at 10 a.m. a final meeting was held between the organisers and Mr Mirko Cvetković, the then Prime Minister, who, according to the applicants, reiterated the proposal to relocate the public assembly, without providing any explanations as to how adequate arrangements could be made only a day before the Parade was to take a place.

At that meeting the Prime Minister gave the organisers the decision, issued by the General Police Director with the Ministry of the Interior on 19 September 2009 relocating the Parade from the centre of Belgrade to New Belgrade, because of “the extremely high risks”.

The organisers refused to hold parade on these conditions, considering that it would be a logistical impossibility to organise the Pride Parade at a new venue at only a day ’ s notice and that the new location ordered by the police was unsatisfactory for the message that the Parade was supposed to publicly send.

Ultimately, the Parade in 2009 was not held.

(c) Proceedings before the Constitutional Court

On 19 October 2009 the applicants lodged a constitutional appeal.

The applicants argued that the respondent State was responsible for a violation of their right to peaceful assembly because the police had de facto banned the Parade by the impugned decision of 19 September 2009 on the relocation of the event. They further argued that the State had failed to fulfil its positive obligation to protect participants in the planned event from the attacks by third parties, namely extreme nationalistic organisations.

In addition, the applicants argued that the State was responsible for the violation of prohibition of discrimination because the State organs, due to their own discriminatory motives had failed to protect the applicants ’ freedom of assembly and that the state ’ s bodies had failed to fulfil their positive obligation to protect the applicants from discriminatory treatment by third persons on the basis of their sexual orientation.

Furthermore, the applicants argued that their right to an effective remedy had been violated.

Finally, they requested the Constitutional Court to order the relevant State ’ s bodies to take all necessary and reasonable measures in order to ensure that the next Pride Parade would be held in safety and to prevent acts of discrimination and establish their right to pecuniary and non-pecuniary damage.

On 22 December 2011 the Constitutional Court found violations of the applicants ’ constitutional right to freedom of peaceful assembly and their right to an effective remedy. It rejected the other applicants ’ claims.

In particular, the Constitutional Court emphasised that the impugned decision on changing of location had no basis in the applicable legislation. The Constitutional Court considered that although the Ministry of the Interior ’ s decision of 19 September 2009 did not explicitly prohibit the Pride Parade but only changed its planned location, it effectively restricted the rights to peaceful assembly of the participants in the Pride Parade. Taking into account that the impugned decision had no legal basis and that it had been delivered to the applicants only one day before the scheduled time of the event, the Constitutional Court found violation of the applicants ’ constitutional right to peaceful assembly and their right to an effective remedy.

In relation to the applicants ’ complaints that the State authorities had failed to protect participants in the Pride Parade from violent acts directed against them from third parties, the Constitutional Court concluded that a potential threat of violence against participants of the event that had not taken place did not represent an arguable claim for finding a violation of the applicants ’ constitutional rights.

The Constitutional Court considered that the publication of its decision in the Respondent State ’ s Official Gazette represented sufficient just satisfaction for the applicants. The Constitutional Court added that “the essence of the violated right is of such a nature that just satisfaction cannot be reached by making an award in respect of any pecuniary or non-pecuniary damage suffered” by the applicants because they “were not the only organisers of the assembly, and also bearing in mind the rights of other persons who were potential participants in the assembly”.

In relation to the applicants ’ discrimination claim, the Constitutional Court considered that the prohibition of discrimination contained in Article 21 of the Serbian Constitution was of accessory nature, meaning that it can only be connected with a simultaneous violation of one particular constitutional right. The Constitutional Court explained that it had found no relevant indicators that the indirect ban of the Pride Parade had been motivated by the discriminatory attitude of the State authorities toward the applicants and concluded that the applicants had not been discriminated against on the basis of their sexual orientation.

2. Pride Parade in Belgrade in 2011 (Application no. 17802/12)

(a) Introduction

The applicants in this case are Ms Sonja Gabelić-Špicer, Mr Goran Miletić, Mr Darko Köning, Mr Slobodan Stojanović, Ms Jovanka Todorović-Savović and Mr Adam Puškar

The applicants are members of the organising committee of the Belgrade Pride Parade, an assembly similar to the one attempted in 2009 . They are also members of the Association “Pride parade Belgrade”, a non-governmental organisation established in October 2010 after the Pride Parade that was held in 2010.

(b) Organisation of the Pride Parade in 2011

The organisers of the Pride Parade in 2011 initiated preparatory activities of this event in February 2011. In July and August 2011 the organisers held a numerous meetings with various public officials in order to secure a political support for their activities in relation to the organisation of the assembly similar to the one attempted in 2009.

On 26 August 2011 the Association “Pride parade Belgrade” registered with the Police station Savski Venac a public assembly for 2 October 2011 at 11 a.m. to take place in Manjež Park, including a procession through streets in central Belgrade.

On 26 September 2011 the general public was informed that the Pride Parade was going to take place on 2 October 2011.

On the same date a manifestation called “Pride week” commenced. The “Pride week” took place between 26 and 30 September 2011. During this manifestation a number of films were shown, public debates were held, and books were presented.

All events during the Pride week were publicly announced and the media reported them. According to the applicants, the organisers did not receive any threats nor did any kind of attack against them occur.

In the period between 30 August 2011 and 29 September 2011, the organisers and representatives of the Ministry of the Interior and other State and local authorities ’ representatives held several meetings devoted to organisation of, and the safety issues concerning the Pride Parade.

On the last meeting held on 29 September 2011 the representatives of the police and the organisers discussed all details concerning the Pride Parade. According to the applicants, during that meeting the representatives of the police informed the organisers that 14 far-right organisations also had registered their public assemblies and/or processions to be held on the same date.

On 30 September 2011 media started to report that the Pride Parade would be banned and that the Council for National Security recommended banning of all rallies planned to be held on that day.

On 30 September 2011, the Ministry of the Interior, Police Department of Belgrade, Police Station Savski Venac issued a decision banning the public assembly Pride Parade registered to be held on 2 October 2011. As grounds for the ban the authorities cited grounds listed in Article 11 (1) of the Public Assembly Act, namely an obstruction of public transport, threat to health, public moral and safety of persons and property. In separate decisions the authorities also banned all other public assemblies registered to be held on 1 and 2 October 2011 on the same grounds.

On 30 September 2011 at 3 p.m. the representative of the Police Station Savski Venac invited the organisers to pick up the decision to ban the Pride Parade. At 4 p.m. the applicant Mr Goran Miletić was invited to a meeting with the representatives of the police at which reasons for banning all rallies on 1 and 2 October 2011 were presented to him.

According to the applicants, the applicant Mr Goran Miletić was informed that the police had collected information indicating that hooligans were planning to cause unrest in various parts of Belgrade by setting to fire old cars and car tyres and in that way prevent the police from adequately protecting the participants of the Pride Parade.

(c) Proceedings before the Constitutional Court

On 31 October 2011 the applicants and the Association “Pride parade Belgrade” lodged a constitutional appeal against the impugned decision of 30 September 2011. In particular, they argued that the State was responsible for failing to protect participants of the Pride Parade from violent attacks by the third parties and for failing to prevent the discrimination against them. They further requested the Court to establish their right to pecuniary and non-pecuniary damages.

On 18 April 2013 the Constitutional Court found that although that they had played several roles in the organisation of the Pride Parade the applicants lacked legal standing to lodge a constitutional appeal as the formal organiser of the event was the Association “Pride parade Belgrade”.

Further, the Constitutional Court found violations of the Association ’ s constitutional right to a judicial protection, its constitutional right to an effective remedy and the violation of the right to peaceful assembly. In finding violation of the above constitutional rights, the Constitutional Court reasoned that the Association “Pride parade Belgrade” had been deprived of the possibility to challenge the ban of the assembly because it had been delivered to it only two days before the scheduled assembly.

The Constitutional Court further awarded the Association “Pride parade Belgrade” 500 euros in respect of non-pecuniary damage and rejected its claim for pecuniary damage.

In its reasoning concerning the claimant ’ s discrimination claim the Constitutional Court established that authorities had banned all the other events scheduled to be held on that day and that organisers of the other event had been persons and organisation who supported opposite attitudes and ideas than the claimant and concluded that its discrimination claim was therefore ill-founded.

3. Pride Parade in Belgrade in 2012 (Application no. 23138/13)

(a) Introduction

The applicants in this case are Mr Goran Miletić, Mr Slobodan Stojanović, Mr Adam Puškar, Ms Maja Mićić, Ms Bojana Ivković and Mr Adorjan Karucz.

(b) Organisation of the Pride Parade in 2012

In 2012 the applicants together with other persons gathered around the Association “Pride parade Belgrade” decided to organise an assembly similar to the one attempted in 2009 and 2011. The Association “Pride parade Belgrade” appeared as a formal organiser of the Pride Parade. The applicants were directly involved in the organisation of the Pride Parade.

On 3 May 2012, the organisers notified the Police Station Savski Venac of the date, time and purposes of the assembly. The assembly was scheduled to take place at 9 a.m. on 6 October 2012. The assembly was to have two parts, a static assembly in Manjež Park and a procession through the streets in central Belgrade.

Stating the aim of obtaining political support for the planned event, the organisers sent dozens of letters to leading State and local officials, political parties, the ministers in the Government, members of the National Assembly but, according to the applicants, none of them met with the organisers.

With the aim of promoting equality and visibility of sexual minorities, in addition to the Parade, the organisers planned series of other events such as the Pride Week which was to be held between 1 October 2012 and 7 October 2012.

On 24 September 2012 the organisers had a meeting with representatives of the Ministry of the Interior. According to the applicants, the organisers briefed the police representatives on the activities planned in the week leading up to the Pride Parade and notified them of all the activities they had undertaken in order to hold the Parade. The organisers further asked the police to act preventively if there were threats of violence or unrest. At that meeting the organisers and the police agreed the final route the Pride participants would take.

On 2 October 2012 the applicants Goran Miletić and Maja Mićić, as representatives of the organisers, had a meeting with the Deputy Head of the Belgrade Police Department where they discussed specific operational issues regarding maintaining order among the Parade participants.

On 3 October 2012 , the Ministry of the Interior, Police Department of Belgrade, Police Station Savski Venac issued a decision banning the public assembly on public safety grounds. On the same date the organisers were served with the decision.

(c) Proceedings before the Constitutional Court

On 5 November 2012 the applicants lodged a constitutional appeal against the decision of 3 October 2012 .

On 9 July 2013 the Constitutional Court found that the applicants lacked legal standing to lodge a constitutional appeal as the formal organiser of the event was the Association “Pride Parade Belgrade” and dismissed the applicants ’ constitutional appeal. In addition, the Constitutional Court observed that the organisers had lodged their constitutional appeal after an expiration of the applicable 30 day time-limit for lodging a constitutional appeal.

4. Pride Parade in Belgrade in 2013 (Application no. 25474/14)

(a) Introduction

The applicants in this case are Mr Goran Miletić, Mr Ivan Đurić, Mr Marko Ilić, Ms Bojana Ivković, Ms Maja Mićić, Mr Adam Puškar, Ms Ivana Savić, Mr Slobodan Stojanović and the Association “Pride parade Belgrade”.

(b) Organisation of the Pride Parade in 2013

After the banning of the 2012 Parade, on 5 October 2012 the Association “Pride parade Belgrade” notified the Police Station Savski Venac of the date, time and purposes of the next assembly. The assembly was scheduled to take place at 9 a.m. on 28 September 2013. The assembly was to have two parts, a static assembly in Manjež Park and a procession through the streets in central Belgrade.

The organisers have been informed that in order for the planned public assembly to take place they needed to collect numerous permits from the competent public corporations and local authorities such as the Belgrade City Administration, the Belgrade City Department of Traffic, the Directorate for Public Transport and to pay deposit for the purpose of covering costs that might be the result of alternating the public traffic regime.

On 27 September 2013 at 7 p.m. the deputy commander of the Savski Venac Police Station invited the applicant Marko Ilić to pick up a decision to ban the Pride Parade. As in the previous years the Pride was banned on safety grounds.

On the same day the applicants organised a march in the front of the Serbian Government building to protest against the impugned decision to ban the Belgrade Pride Parade in 2013. The march went ahead without any incident.

On 23 October 2013 the applicants lodged a constitutional appeal before the Constitutional Court.

The proceedings before the Constitutional Court are still pending.

5. Other relevant developments

(a) The Serbian Commissioner for Protection of Equality Regular Annual Report for 2011

In her Annual Report for 2011 the Commissioner for the Protection of Equality ( Poverenica za zaštitu ravnopravnosti ), observed that “discrimination on the grounds of sexual orientation is still prevalent in Serbia in both public and private sphere” and characterised the ban of the Parade as an “event that marked 2011”. The Commissioner in her reaction on the ban of parade reasoned that ban of the Pride parade on safety grounds:

“ [s howed ] in the most direct way the high level of homophobia in Serbia The atmosphere of fear, threats violence and other severe forms of discrimination that are legally prohibited and punishable have reached the culmination and achieved its goal. Inability and unreadiness of the state to protect constitutional right to peaceful assembly and freedom of speech [showed] how little [had] been done in the previous years on promoting the rule of law and culture of peace and tolerance.”

(b) The Serbian Commissioner for Protection of Equality Regular Annual Report for 2012

“In her Warning of 14th September 2012 , the Commissioner expressed her grave concern over the fact that, three weeks ahead of the announced Gay Pride parade and the events planned on the occasion of this, there were increasingly frequent threats, instances of hate speech and violence against the LGBT population. At the same time, this group is still the only one in Serbia whose right to free assembly is brought into question and denied. It was pointed out that open threats and acts of violence created an atmosphere of fear and incited intolerance, hatred and hostility towards LGBT persons, which represented an attempt of sorts to prepare an alibi for the cancellation of the Gay Pride parade. ... everyone in Serbia should be worried on account of the level of hatred, intolerance and violence against a minority group, our fellow citizens, for as soon as the next day, they may turn against anyone of us ... the state and its organs of authority must show their power and readiness to protect the fundamental human rights ... including the right to peaceful assembly and freedom of speech...”

(c) The Serbian Ombudsman ’ s Annual Report for 2012

“.. there is a great problem due to the absence of mechanisms and will to apply the existing laws and insufficient promotion of tolerance for the LGBT population by state institutions. This is best illustrated by the impossibility of exercising the right to freedom of assembly, i.e. the repeated ban on the Pride Parade in 2012, despite the 2011 decision of the Constitutional Court of Serbia that state authorities violated the freedom of peaceful assembly of citizens by banning the Pride Parade in 2009.”

(d) Other relevant allegations

On 17 October 2011 the City of Jagodina awarded Mr Ivica Dačić, the then Prime Minister and Minister of the Interior, the Plaque of the City of Jagodina, for his contribution to the protection of its citizens. The banning of the Pride Parade was listed as one of the minister ’ s accomplishments. The president of the town council explained that “Minister Dačić was strong and resolute to postpone the Shame Parade for better times, for instance, 2075 or 2085, when different conditions will have been met”.

On 24 September 2013, the then Minister of the Interior, stated to the media that homosexuality was not normal: “because it is not natural, and if not natural, if it concerns minority and an exception, then they must take care not to offend the feelings of the majority” and that “homosexuals have the same rights as other citizens, but do not tell me that this is normal when it is not. If this is normal, why are we the exceptions?” The Minister expressed his opinion that he did not hate homosexuals, but that he could not accept that homosexuality was normal, and concluded: “If it exists in the EU countries that does not mean that we should support this phenomenon”.

According to the applicants, in 2013 several public assemblies that included the procession were held in central Belgrade. In February 2013 the Serb Radical Party organised a public assembly to mark the ten-year anniversary of Vojislav Šešelj ’ s voluntary surrender to the International Criminal Tribunal for Former Yugoslavia. Also in February, football supporters organised public procession to protest against violence between football supporters ’ groups. However, the applicants allege that the organisers of those assemblies were only required to notify the competent police department about the time and place of their respective assemblies.

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia 2006 ( Ustav Republike Srbije ; published in the Official Gazette of the Republic of Serbia (“OG RS”) no. 98/06)

The relevant provisions of the Constitution read as follows:

Article 21 §§ 2 and 3

“Everyone shall have the right to equal legal protection, without discrimination.

All direct or indirect discrimination based on any grounds, particularly on the grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability shall be prohibited.”

Article 36 § 2

“Everyone shall have the right to ... a legal remedy against any decision on his rights, obligations ... ”

Article 54

“Citizens may assemble freely.

An assembly held indoors shall not be subjected to permission or registering.

Gatherings, demonstrations and other forms of assembly held outdoors shall be reported to the state body, in accordance with the law.

Freedom of assembly may be restricted by law only if necessary to protect public health, morals, and the rights of others or the security of Republic of Serbia”

2. The Public Assembly Act ( Zakon o okupljanju građana ; published in OG RS no. 51/92, 53/93, 67/93, 48/94 and 101/05)

Pursuant to Section 1 of this Act a public assembly of citizens is free and should be exercised in a manner prescribed by the Act. Section 2 defines that “public assembly” refers to organising and holding a meeting or other type of gathering in a location adequate for that purpose. “Location adequate for a public assembly” refers to a location which is accessible to a gathering of persons and in which the public assembly does not cause any obstruction of traffic, threat to health, public moral or safety of persons and property. “Location for public gathering” also refers to a location in which public transport takes place when it is possible to ensure temporary alternation of traffic regime as well as protection of health and safety of persons and property for which purpose means are to be provided in accordance with the Act. According to Section 3 of the Act, a public assembly can be reported and organised as a procession.

Pursuant to Section 4 of the Act, an application to hold a public assembly can be submitted by any physical or legal entity (the organiser). According to this Section the organiser can organise the public assembly on the location in which public transport takes place only if he accepts to bear the costs of the alternation of traffic and in this regard has to pay a deposit.

Section 6 of the Act requires the organiser to submit an application for holding a public assembly containing the program and purpose of public assembly and in the case of public procession a detailed route of the procession.

The application has to be submitted to the authorised body, which is an organisational unit of the Ministry of the Interior in the territory in which the public assembly is to be held, at least 48 hours before the scheduled beginning of the public assembly.

Pursuant to Section 11 of the Act, the authorised body may ban the holding of the public assembly on the ground of preventing obstruction of public transport, threat to health, public moral or safety of persons and property. The authorised body has to inform the organisers of any ban on holding the public assembly at least 12 hours before the scheduled beginning of the assembly. An appeal lodged against the ban does not suspend its execution. The Act does not specify the time-limit for lodging an appeal; however practice has shown that the general deadline of 15 day provided by the Administrative Procedure Act should apply (see the Constitutional Court decision Už. No. 4078/2010 of 29 February 2012).

C. Relevant international material

1. United Nations Organisation documents

The Report of the Special Rapporteur on the right to freedom of peaceful assembly and freedom of association of 21 May 2012 (A/HRC/20/27) describes best practices that promote and protect, in particular, the right to freedom of peaceful assembly. It reads as follows:

“28. The Special Rapporteur believes that the exercise of fundamental freedoms should not be subject to previous authorization by the authorities ..., but at the most to a prior notification procedure, whose rationale is to allow State authorities to facilitate the exercise of the right to freedom of peaceful assembly and to take measures to protect public safety and order and the rights and freedoms of others. Such a notification should be subject to a proportionality assessment, not unduly bureaucratic and be required a maximum of, for example, 48 hours prior to the day the assembly is planned to take place ... Prior notification should ideally be required only for large meetings or meetings which may disrupt road traffic ...

29. Should the organizers fail to notify the authorities, the assembly should not be dissolved automatically...

30. In the case of simultaneous assemblies at the same place and time, the Special Rapporteur considers it good practice to allow, protect and facilitate all events, whenever possible. In the case of counter-demonstrations, which aim at expressing discontent with the message of other assemblies, such demonstrations should take place, but should not dissuade participants of the other assemblies from exercising their right to freedom of peaceful assembly. In this respect, the role of law enforcement authorities in protecting and facilitating the events is crucial.

...

33. The Special Rapporteur stresses that States have a positive obligation to actively protect peaceful assemblies ...

...

39. States also have a negative obligation not to unduly interfere with the right to peaceful assembly. The Special Rapporteur holds as best practice ‘ laws governing freedom of assembly [that] both avoid blanket time and location prohibitions, and provide for the possibility of other less intrusive restrictions ... Prohibition should be a measure of last resort and the authorities may prohibit a peaceful assembly only when a less restrictive response would not achieve the legitimate aim(s) pursued by the authorities ’ .

40. As mentioned earlier, any restrictions imposed must be necessary and proportionate to the aim pursued ... In addition, [assemblies] must be facilitated within “sight and sound” of its object and target audience, and “organizers of peaceful assemblies should not be coerced to follow the authorities ’ suggestions if these would undermine the essence of their right to freedom of peaceful assembly”. In this connection, he warns against the practice whereby authorities allow a demonstration to take place, but only on the outskirts of the city or in a specific square, where its impact will be muted.

41. The Special Rapporteur further concurs with the assessment of the ODIHR Panel of Experts that ‘ the free flow of traffic should not automatically take precedence over freedom of peaceful assembly”. In this regard, the Inter-American Commission on Human Rights has indicated that ‘ the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly ... [including] rerouting pedestrian and vehicular traffic in a certain area ’ . Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that ‘ in a democratic society, the urban space is not only an area for circulation, but also for participation ’ .

42. The Special Rapporteur stresses the importance of the regulatory authorities providing assembly organizers with “timely and fulsome reasons for the imposition of any restrictions, and the possibility of an expedited appeal procedure”. The organizers should be able to appeal before an independent and impartial court, which should take a decision promptly. In several States, the regulatory authority has the obligation to justify its decision (e.g. Senegal and Spain). In Bulgaria, the organizer of an assembly may file an appeal within three days of receipt of a decision banning an assembly; the competent administrative court shall then rule on the ban within 24 hours, and the decision of the court shall be announced immediately and is final. Similarly, in Estonia, a complaint may be filed with an administrative court, which is required to make a decision within the same or next day ...”

Report of the United Nations High Commissioner for Human Rights, “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity”, A/HRC/19/41

“D. Restrictions on freedom of expression, association and assembly

62. Under article 19 of the International Covenant on Civil and Political Rights, “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The Covenant also affirms that “everyone shall have the right to freedom of association with others...” (art. 22), and that “the right of peaceful assembly shall be recognized” (art. 21). Under the Covenant, States parties may limit enjoyment of these rights only insofar as restrictions are provided for by law and necessary to protect rights of others, national security, or public safety, order, health or morals. ...

64. LGBT defenders and supporters of related rights have been subjected to violence and harassment when convening meetings or cultural events, or participating in LGBT “equality marches”. In some States, such events are denied police protection or permits, sometimes under guise of threats to public morals or safety, which privileges the antagonists rather than those claiming rights.”

2. Council of Europe documents

Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, in the relevant part reads as follows :

“...

III. Freedom of expression and peaceful assembly

13. Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity.

14. Member states should take appropriate measures at national, regional and local levels to ensure that the right to freedom of peaceful assembly, as enshrined in Article 11 of the Convention, can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity.

15. Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly.

16. Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order ...”

The document entitled “The Compilation of Venice Commission Opinions Concerning Freedom of Assembly”, issued by the European Commission for Democracy throug h Law (Venice Commission) on 25 June 2012 (CDL(2012)014 rev), in relevant parts reads as follows:

“ 2.3. Simultaneous assemblies

The Guidelines explicitly provide that where notification is given for two or more assemblies at the same place and time, they should all be permitted and facilitated as much as possible, notwithstanding who submitted the notification first and how close to each other they plan to gather. This owes also to the fact that all persons and groups have an equal right to be present in public places to express their views ... as the OSCE/ODIHR – Venice Commission Guidelines point out, ‘ related simultaneous assemblies should be facilitated so that they occur within sight and sound of their target insofar as this does not physically interfere with the other assembly ’ . A prohibition on conducting public events in the place and time of another public event would be a disproportionate response, unless there is a clear and objective indication that both events cannot be managed in an appropriate manner through the exercise of policing powers ...

...

5.1. Legitimate grounds for restrictions - Content-based restrictions

... Restrictions on public assemblies should not be based upon the content of the message they seek to communicate. It is especially unacceptable if the interference with the right to freedom of assembly could be justified simply on the basis of the authorities´ own view of the merits of a particular protest. Any restrictions on the message of any content expressed should face heightened scrutiny and must only be imposed if there is an imminent threat of violence ...

...

5.2. Restrictions on Place, Time and Manner of holding Assemblies

Location is therefore one of the key aspects of freedom of assembly. The privilege of the organiser to decide which location fits best for the purpose of the assembly is part of the very essence of freedom of assembly. Assemblies in public spaces should not have to give way to more routine uses of the space, as it has long been recognised that use of public space for an assembly is just as much a legitimate use as any other. Moreover, the purpose of an assembly is often closely linked to a certain location and freedom of assembly includes the right of the assembly to take place within ‘ sight and sound ’ of its target object...

All public spaces should be open and available for the purpose of holding assemblies and so, official designation of sites suitable for assemblies inevitably limits the number of public places that may be used for an assembly as it excludes locations that are suitable for assemblies, simply because they have not been designated...

Blanket restrictions such as a ban on assemblies in specified locations are in principle problematic since they are not in line with the principle of proportionality which requires that the least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference...

Proper restrictions on the use of public places are based on whether the assembly will actually interfere with or disrupt the designated use of a location. ... The mere possibility of an assembly causing inconvenience does not provide a justification for prohibiting it...

The only legitimate restriction on location of an assembly is on site of hazardous areas and facilities which are closed to the public...

Whilst the right to counter-demonstrate does not extend to inhibiting the right of others to demonstrate, an ‘ imminent danger of a clash ’ should not necessarily be a reason for prohibiting one of the assemblies from taking place at the same time and in the same vicinity. Emphasis should be placed on the state ’ s duty to protect and facilitate each event and the state should make available adequate policing resources to facilitate both to the extent possible within sight and sound of one another...

6. NOTIFICATION OF ASSEMBLIES

... the notification procedure is for the purpose of providing information to the authorities to enable the facilitation of the right to assemble, rather than creating a system where permission must be sought to conduct an assembly. This emphasizes that the freedom to assemble should be enjoyed by all, and anything not expressly forbidden in law should be presumed to be permissible ... Any regime of prior notification must not be such as to frustrate the intention of the organisers to hold a peaceful assembly, and thus indirectly restrict their rights (for instance, by providing for too detailed and complicated requirements, and/or too onerous procedural conditions) ...

It is recommended that the length and conditions for the notification procedure be reasonable in relation to both the authorities and organizers and participants. [Domestic law] should also allow for adequate time in order that judicial review may take place, if needed before the scheduled assembly date...

6.1 Length of the notification period

...

Time limits should be so set that the decision of the executive body and the decision of the court at first instance can be delivered in time to allow the assembly to take place on the original intended date should the court find in favour of the organisers ... [The time limits ’ ] length and conditions should be reasonable not only in relation to the authorities but also allowing for a judicial review to take place before the scheduled assembly date. Omissions in the notification should be easily rectifiable without causing unnecessary delay of the assembly...

...

6.3 Regulatory authority and decision-making

...

It is recommended in addition that a co-operative process between the organizer and the authority be established in order to give the organizer the possibility to improve the framework of the assembly ... It is necessary that the decision-making and review process is fair and transparent...

...

7. REVIEW AND APPEAL

... The Venice Commission recalls that the right to an effective remedy entails a right to appeal the substance of any restrictions or prohibitions on an assembly. Appeals should be decided by courts in a prompt and timely manner so that any revisions to the authorities ’ decision can be implemented without further detriment to the applicant ’ s rights. In addition, [domestic law] should establish clearly the remedies available to organisers in cases of improperly prohibited or dispersed assemblies. The prompt and thorough investigation of any suspected unlawful use of force by the police during assemblies, including dispersal of the assemblies, should also be ensured.

...

The procedure of review of decisions to ban an assembly should be established in such manner so as to ensure that a decision on the legality of the ban on the assembly is made available to organisers before the planned date of the assembly. Considering the narrow schedule this can be achieved best by allowing for temporary injunctions ... In addition, the Venice Commission underlines that it is crucial not only that the court may genuinely review the decision of the public authorities, but also that it may do so before the assembly takes place, or else that a system of relief via court injunctions be available...

Joint Opinion on the Public Assembly Act of the Republic of Serbia adopted by the Venice Commission and OSCE/ODIHR, adopted by the Venice Commission at its 84 th Plenary Session (Venice, 15 ‑ 16 October 2010)

14. The title of the Law, currently “Public Assembly Act”, should be reformulated as “Law on the freedom of assembly” or “Law on freedom of peaceful assembly”. An assembly must be ‘ peaceful ’ if it is to be afforded the protection guaranteed in international instruments.

...

15. Article 6 of the Act provides an obligation of the organiser to submit an application prior to the assembly. Pursuant to international human rights law prior notification can only be required in order to enable the state to make necessary arrangements to facilitate freedom of assembly and to protect public order, public safety and the rights and freedoms of others. Therefore, it should be ensured that the understanding of the term “application” in the Act refers to a system of notification, rather than permission.

...

17. Article 6 currently provides for certain time limits for prior notification. It is recommended that if a notification period is established in the Act, the time limits set down for the application to be made should be more flexible, in the sense that they should be set forth “as a rule”. According to the OSCE/ODIHR – Venice Commission Guidelines, “The notification process should not be onerous or bureaucratic. The period of notice should not be unnecessarily lengthy, but should still allow adequate time prior to the notified date of the assembly for the relevant State authorities to plan and prepare for the event in satisfaction of their positive obligations, and for the completion of an expeditious appeal to (and ruling by) a court should any restrictions be challenged. If the authorities do not promptly present any objections to a notification, the organisers of a public assembly should be able proceed with their activities according to the terms notified and without restriction.”

...

26. Article 4 §§ 3 and 4 of the Act envisage that organisers of an assembly shall bear the costs incurred by temporary alteration of traffic and other costs incurred by additional performance of public services23. It is strongly recommended to repeal these provisions in view of the standard set by the OSCE/ODIHR-Venice Commission Guidelines, which note that “the costs of providing adequate security and safety measures (including traffic and crowd management, and first-aid services) should be fully covered by the public authorities. The state must not levy any additional financial charge for providing adequate and appropriate policing.

...

28. Article 11 of the ECHR protects freedom of assembly, however, only freedom of peaceful assembly is guaranteed. Although the state is given a wide margin of appreciation in order to deal with disorder or crime or to protect the rights and freedoms of others, this freedom is fundamental and presents such an essential element of a democracy that it cannot be restricted unless the persons exercising it have committed a reprehensible act. It is a positive obligation of the state to guarantee the effective exercise of the freedom of assembly.

29. Any restrictions imposed must have a formal basis in the primary legislation at the national level. This legislation should also state the mandate and powers of the restricting authority. The Act itself must be sufficiently precise to enable an individual to assess their anticipated conduct in view of its compliance [or non-compliance] with the Act in question and realise possible consequences of their conduct. The incorporation of clear definitions in domestic legislation is vital to ensuring that the Act remains easy to understand and apply.

30. Therefore, it is recommended to include in this Act a provision mirroring paragraph 2 of Article 11 of the ECHR. Such a provision would provide a proper basis for deciding upon restrictions on assemblies, including restrictions on the location of holding an assembly, on a case-by-case basis. A general provision can be introduced to the effect that restrictions of the right to freedom of assembly must pursue one of the legitimate aims listed in the Constitution of Serbia. Another provision should establish the meaning of proportionality of a restriction.

...

32. Location is ... . one of the key aspects of freedom of assembly. The privilege of the organiser to decide which location fits best for the purpose of the assembly is part of the very essence of freedom of assembly. Assemblies in public spaces should not have to give way to more routine uses of the space, as it has long been recognised that use of public space for an assembly is just as much a legitimate use as any other. Moreover, the purpose of an assembly is often closely linked to a certain location and the freedom of assembly includes the right of the assembly to take place within “sight and sound” of its target object.

...

33. It is therefore highly recommended to reconsider Article 2 § 2, which stipulates that assemblies may only be held in a location where it would not cause obstruction of public traffic (amongst others). As most assemblies are likely to cause an obstruction, the only question is whether the obstruction in any given case is reasonable or not. Otherwise, such a provision may be considered as a blanket limitation and thus excessive.

...

44. The OSCE/ODIHR – Venice Commission Guidelines emphasize that the termination and dispersal of assemblies should be a measure of last resort. Furthermore, dispersal should not occur unless law enforcement officials have taken all reasonable measures to facilitate and to protect the assembly from harm and unless there is an imminent threat of violence.

...

47. Article 11 par 1 of this Act also provides the possibility for banning and an assembly “on the grounds of preventing obstruction of public transport( ... .)”. Similarly to the recommendation provided on Article 2 par 2 (concerning the expression “obstruction of traffic” contained in the provision) this article is recommended to be repealed as it does not present legitimate ground for banning an assembly. Indeed, the provision contradicts Article 11 par 2 of the ECHR and should be narrowed to circumstances, in which such obstruction is unreasonable and when no reasonable alternative to the ban, such as the temporary re-routing or short interruption of traffic is available.

...

51. The right to an effective remedy entails a right to appeal the substance of any restrictions or prohibitions on an assembly. Appeals should take place in a prompt and timely manner so that any revisions to the authorities ’ decision can be implemented without further detriment to the applicant ’ s rights. Therefore, the Act should establish clearly the remedies available to organisers in cases of improperly prohibited or dispersed assemblies. ...

3. Other international documents

The 2008 Guidelines on Freedom of Peaceful Assembly (CDL(2008)062), prepared by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) in consultation with the European Commission for Democracy though Law (the Venice Commission) of the Council of Europe, read as follows:

“ 25. As a basic and fundamental right, freedom of assembly should, insofar as possible, be enjoyed without regulation. Anything not expressly forbidden in law should therefore be presumed to be permissible, and those wishing to assemble should not be required to obtain permission to do so. A presumption in favour of the freedom should be clearly and explicitly established in law ...

28. The state ’ s duty to protect peaceful assembly is of particular significance where the persons holding, or attempting to hold, the assembly are espousing a view that is unpopular, as this may increase the likelihood of violent opposition. However, potential disorder arising from hostility directed against those participating in a peaceful assembly must not be used to justify the imposition of restrictions on the peaceful assembly. In addition, the state ’ s positive duty to protect peaceful assemblies also extends to simultaneous opposition assemblies (often known as counter-demonstrations). The state should therefore make available adequate policing resources to facilitate demonstrations and related simultaneous assemblies within sight and sound of one another ...

Legitimate grounds for imposing restrictions on assemblies

61. Legitimate grounds for restriction (such as the prevention of disorder or crime, or the protection of the rights and freedoms of others) are prescribed by the relevant international and regional human rights instruments, and these should not be supplemented by additional grounds in domestic legislation.

62. The regulatory authorities must not raise obstacles to freedom of assembly unless there are compelling arguments to do so. Applying the guidance below should help the regulatory authorities test the validity of such arguments. The legitimate aims listed below (as provided in the limiting clauses in Article 21 of the ICCPR and Article 11 of the ECHR) are not a licence to impose restrictions, and the onus rests squarely on the authorities to substantiate any justifications for the imposition of restrictions.

Public order

63. The inherent imprecision of this term must not be exploited to justify the prohibition or dispersal of peaceful assemblies. Neither a hypothetical risk of public disorder nor the presence of a hostile audience is a legitimate basis for prohibiting a peaceful assembly. Prior restrictions imposed on the basis of the possibility of minor incidents of violence are likely to be disproportionate, and any isolated outbreak of violence should be dealt with by way of subsequent arrest and prosecution rather than prior restraint ...

Public safety

65. There is a significant overlap between public-safety considerations and those concerning the maintenance of public order. The state has a duty to protect public safety, and under no circumstances should this duty be assigned or delegated to the organizer of an assembly ...

Protection of health and morals

...

69. Measures allegedly safeguarding public morals should also meet an objective standard of whether they answer a pressing social need and comply with the principle of proportionality. There should be a requirement of state neutrality that precludes moral judgments on, for example, preferences for any sexual orientation over another ...

Protection of the rights and freedoms of others

70. The regulatory authority has a duty to strike a proper balance between the important freedom of peaceful assembly and the competing rights of those who live, work, shop, trade, and carry on business in the locality affected by an assembly. That balance should ensure that other activities taking place in the same space may also proceed if they themselves do not impose unreasonable burdens. Mere disruption, or even opposition to an assembly, is not therefore, of itself, a reason to impose prior restrictions on it. Given the need for tolerance in a democratic society, a high threshold will need to be overcome before it can be established that a public assembly will unreasonably infringe the rights and freedoms of others. This is particularly so given that freedom of assembly, by definition, amounts only to temporary interference with these other rights ...

National security

73. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) limit reliance on national-security grounds to justify restrictions of freedom of expression and assembly:

29. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.

30. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.

...

Types of restrictions

80. Restrictions on time, place, and manner. The types of restrictions that might be imposed on an assembly relate to its time, place, and manner. This originates from US jurisprudence, and it captures the sense that a wide spectrum of possible restrictions that do not interfere with the message communicated is available to the regulatory authority. In other words, rather than the choice for the authorities being between non-intervention and prohibition, there are many midrange limitations that might adequately serve the purpose(s) that they seek to achieve (including the prevention of activity that causes damage to property or harm to persons). These can be in relation to changes to the time or place of an event, or the manner in which the event is conducted. An example of manner restrictions might relate to the use of sound-amplification equipment or lighting and visual effects. In this case, regulation may be appropriate because of the location or time of day for which the assembly is proposed.

81. The regulatory authority must not impose restrictions simply to pre-empt possible disorder or interference with the rights of others. The fact that restrictions can be imposed during an event (and not only before it takes place) enables the authorities to both avoid imposing onerous prior restrictions and to ensure that restrictions correspond with and reflect the situation as it develops. This, however, in no way implies that the authorities can evade their obligations in relation to good administration ... by simply regulating freedom of assembly by administrative fiat. Furthermore ..., the use of negotiation and/or mediation can help resolve disputes around assemblies by enabling law enforcement authorities and the event organizer to reach agreement about any necessary limitations.

82. Given that there are often a limited number of ways to effectively communicate a particular message, the scope of any restrictions must be precisely defined. In situations where restrictions are imposed, these should strictly adhere to the principle of proportionality and should always aim to facilitate the assembly within sight and sound of its object/target audience ...

Advance notification

91. It is common for the regulatory authority to require advance written notice of public assemblies. Such a requirement is justified by the state ’ s positive duty to put in place any necessary arrangements to facilitate freedom of assembly and protect public order, public safety, and the rights and freedom of others ...

92. The notification process should not be onerous or bureaucratic, as this would undermine the freedom of assembly by discouraging those who might wish to hold an assembly. Furthermore, individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate. Where a lone demonstrator is joined by another or others, then the event should be treated as a spontaneous assembly ...

93. The period of notice should not be unnecessarily lengthy (normally no more than a few days), but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event (deploy police officers, equipment, etc.), for the regulatory body to give a prompt official response to the initial notification, and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged ...

Notification, not authorization

95. Legal provisions concerning advance notice should require a notice of intent rather than a request for permission. Although lawful in several jurisdictions, a permit requirement accords insufficient value to both the fundamental freedom to assemble and to the corresponding principle that everything not regulated by law should be presumed to be lawful. Those countries where a permit is required are encouraged to amend domestic legislation so as to require notification only. It is significant that, in a number of jurisdictions, permit procedures have been declared unconstitutional. Any permit system must clearly prescribe in law the criteria for issuance of a permit. In addition, the criteria should be confined to considerations of time, place, and manner, and should not provide a basis for content-based regulation ...

Decision-making and review process

103. The regulatory authority should make publicly available a clear explanation of the decision-making procedures. It should fairly and objectively assess all available information to determine whether the organizers and participants of a notified assembly are likely to conduct the event in a peaceful manner, and to ascertain the probable impact of the event on the rights and freedoms of other non-participants. In doing so, it may be necessary to facilitate meetings with the event organizer and other interested parties.

104. The regulatory authority should also ensure that any relevant concerns raised are communicated to the event organizer, and the organizer should be offered an opportunity to respond to any concerns raised. This is especially important if these concerns might later be cited as the basis for imposing restrictions on the event. Providing the organizer with such information allows them the opportunity to address the concerns, thus diminishing the potential for disorder and helping foster a co-operative, rather than confrontational, relationship between the organizers and the authorities.

105. The law should be sufficiently flexible to allow assembly organizers and regulatory authorities should make every effort to reach a mutual agreement on the time, place, and manner of an assembly. Such negotiation serves as a preventive tool helping avoid the imposition of arbitrary and unnecessary restrictions.

106. Any restrictions placed on an assembly should be communicated promptly and in writing to the event organizer with a brief explanation of the reason for each restriction (noting that such explanation must correspond with the permissible grounds enshrined in human rights law and as interpreted by the relevant courts). Such decisions should be communicated to the organizer within a reasonable time frame, i.e., sufficiently far in advance of the date of a proposed event to allow the decision to be appealed to an independent tribunal or court before the notified date of the event. If, for example, the required notification period is five days prior to the date of the assembly, the regulatory authority should publish its decision at least three days before the date of the event.

107. The regulatory authority should also publish its decisions so that the public has access to reliable information about events taking place in the public domain. This might be done, for example, by posting decisions on a dedicated website.

108. If restrictions are imposed on an assembly, the organizer should have recourse to an effective remedy through a combination of administrative and judicial review. The reviewing body should have access to the evidence on which the regulatory authority based its initial decision (including, for example, relevant police reports), as only then can it assess the proportionality of the restrictions imposed. The burden of proof should be on the regulatory authority to show that the restrictions imposed are reasonable in the circumstances ...

110. The assembly organizers should also be able to appeal the decision of the regulatory authority to an independent court or tribunal. This should be a de novo review, empowered to quash the contested decision and to remit the case for a new ruling. Any such review must also be prompt so that the case is heard and the court ruling published before the planned assembly date (in order to make it possible to still hold the assembly if the court invalidates the restrictions). One option to expedite this process would be to require the courts to give priority to appeals against restrictions on assemblies so as to permit the completion of judicial review prior to the date of the assembly ...

127. Restrictions imposed on individuals during an assembly may violate their rights to liberty and freedom of movement. Individuals should not be stopped and searched unless the police have a reasonable suspicion that they have committed, are committing, or are about to commit, an offence, and arrests must not be made simply for the purpose of removing a person from an assembly or preventing their attendance. Indeed, arrests made during an assembly should be limited to persons engaging in conduct that is creating a clear and present danger of imminent violence ...

OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Report Monitoring of Freedom of Peaceful Assembly in Selected OSCE Participating States (May 2011- June 2012)

83. Blanket bans on assemblies, such as the one t hat was in force in Serbia on 1 and 2 October 2011, are likely to be disproportionate in that they fail to take into account the individual circumstance of the assemblies involved. Police and security bodies in Serbia were clearly faced with real security challenges in relation to the 2011 Belgrade Pride ... However, it is a matter of concern that they decided to address them by imposing sweeping measures prohibiting all assemblies in Serbia for two days. By doing so, the authorities failed to identify and implement less intrusive measures to regulate assemblies and to miminimize security risks.

...

84. The lack of individualized and case- by-case approach in imposing restrictions on assemblies is further exemplified by the nature of individual decision by the Serbian police authorities ... which all cite identical grounds for ... prohibition. In this regard it should be noted that the authorities cannot evade charges of discriminatory restrictions simply by declaring a wider ban (which they might argue does not target any particular group but is rather an objective measure in the face of threatened public disorder).

85. There are also concerns as to the legal basis for the above-mentioned individual decisions, which are all apparently based on the blanket ban decided by the Council for National Security to impose restrictions on the enjoyment of human rights and specifically, on freedom of assembly. The blanket ban decision by the Council was only reported by the media and it unclear whether it exists in written form and what formal procedure was followed to reach it. Indeed,, no ruling by the Council of National security is mentioned in any individual decisions reviewed by ODIHR ... This conflicts with the principles of legality and transparent decision-making and had the effect of limiting access to an effective remedy against the ban ... ”

COMPLAINTS

The applicants complain under Article 11 of the Convention about a violation of their freedom of assembly when taken together with their right to expression protected by Article 10 of the Convention. The applicants claim, in particular, that the Respondent Sate is responsible for violation of their freedom of assembly on two separate grounds. First, the decision on change of location of the Parade in 2009 was not in accordance with domestic law and had no adequate justification, while the ban on holding the Parade in 2011, 2012 and 2013 did not pursue an adequate aim and was not necessary in a democratic society.

Under the same provision the applicants further claim that the Respondent State infringed its positive obligation to do all that it reasonably could in order to protect the participants in the Parade and prevent private actors, and among them, above all, extremist nationalist organisations, from attacking or otherwise seeking to prevent the applicants from exercising their freedom of assembly.

Relying on Article 14 taken together with Article 11 of the Convention and Article 1 of Protocol No. 12 to the Convention the applicants blame the State for its failure to protect their freedom of assembly because of a discriminatory intent on the part of the state authorities based on the perceived different sexual orientation of the applicants and potential participants in the Parade. The applicants further claim that the State failed to take all reasonable measures to prevent private acts of discrimination against them.

Finally, under Article 13 of the Convention the applicants complain that they did not have an effective remedy against the alleged violations of the Convention.

QUESTIONS TO THE PARTIES

As regards application no. 5591/10

1. May the applicants claim to be victims of a violation of Articles 11 and 13 of the Convention within the meaning of Article 34 thereof? In particular, has the Constitutional Court ’ s decision of 22 December 2011 afforded them adequate redress (see Eckle v. Germany , 15 July 1982, § 66, Series A no. 51; Lebedev v. Russia , no.4493/04, § 127, 25 October 2007)?

As regards applications nos. 17802/12 and 23138/13

2. May the applicants claim to be victims of a violation of the Convention within the meaning of Article 34 of the Convention considering that the formal organiser of the assembly was the Association “Pride parade Belgrade” and not the applicants themselves?

As regards all applications

3. Has there been a violation of the applicants ’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention?

In particular:

a) was the interference prescribed by law, within the meaning of Article 11 § 2 of the Convention?

b) did the interference pursue a “legitimate aim” on the part of the authorities, and if so

c) was it proportionate to that “legitimate aim”?

The Government are invited to provide the Court with the documents and relevant information including security assessments which served as basis for the relocation of the 2009 Parade and the ban of the Parades in 2011, 2012, and 2013.

4. Has there been an interference with the applicants ’ right to freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary within the meaning of Article 10 § 2?

5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 11 and 10 of the Convention, as required by Article 13 of the Convention?

6. Have the applicants suffered discrimination in the enjoyment of their freedoms of assembly and expression contrary to Article 14 of the Convention taken together with Article 11 of the Convention and Article 1 of Protocol No. 12 to the Convention?

Appendix

No

Application No

Lodged on

Applicant

Date of birth or date of registration

Place of residence or seat

Nationality

5591/10

30/12/2009

Milica ĐORĐEVIĆ

06/03/1981

Belgrade

Serbian

Dušan KOSANOVIĆ

02/06/1974

Belgrade

Serbian

Majda PUAÄŒA

09/12/1979

Belgrade

Serbian

Marija SAVIĆ

07/06/1979

Belgrade

Serbian

Dragana VUČKOVIĆ

04/08/1980

Zemun

Serbian

17802/12

20/03/2012

Sonja GABELIĆ ŠPICER

25/09/1974

Belgrade

Serbian

Goran MILETIĆ

15/11/1972

Belgrade

Serbian

Darko K Ö NING

16/06/1987

Zemun

Serbian

Slobodan STOJANOVIĆ

09/05/1978

Belgrade

Serbian

Jovanka TODOROVIĆ SAVOVIĆ

16/09/1980

Belgrade

Serbian

Adam PUÅ KAR

30/12/1976

Belgrade

Serbian

23138/13

21/03/2013

Goran MILETIĆ

15/11/1972

Belgrade

Serbian

Slobodan STOJANOVIĆ

09/05/1978

Belgrade

Serbian

Adam PUÅ KAR

30/12/1976

Belgrade

Serbian

Maja MIĆIĆ

25/05/1984

Belgrade

Serbian

Bojana IVKOVIĆ

27/01/1985

Belgrade

Serbian

Adorjan KARUCZ

25/03/1979

Kula

Serbian

25474/14

26/03/2014

Goran MILETIĆ

15/11/1972

Belgrade

Serbian

Ivan ĐURIĆ

15/12/1988

Belgrade

Serbian

Marko ILIĆ

05/02/1981

Belgrade

Serbian

Bojana IVKOVIĆ

27/01/1985

Belgrade

Serbian

Maja MIĆIĆ

25/05/1984

Belgrade

Serbian

ASSOCIATION PRIDE PARADE BELGRADE 16/10/2010

Belgrade, Serbia

Adam PUÅ KAR

30/12/1976

Belgrade

Serbian

Ivana SAVIĆ

06/01/1977

Belgrade

Serbian

Slobodan STOJANOVIĆ

09/05/1978

Belgrade

Serbian