On the right of municipalities to set permanent places for meetings of citizens

Transcription

1 On the right of municipalities to set permanent places for meetings of citizens Case No. 11/99 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of Paragraph 2 of Article 6 of the Republic of Lithuania s Meetings Law with the Constitution of the Republic of Lithuania Vilnius, 7 January 2000 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė The court reporter Daiva Pitrėnaitė Audronė Ožiūnienė, a consultant to the Legal Department of the Office of the Seimas, acting as the representative of the party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 4 January 2000, in its public hearing, considered case No. 11/99 subsequent to the petition submitted to the Constitutional Court by the Kaunas Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 6 of the Republic of Lithuania s Meetings Law was in conformity with the Constitution of the Republic of Lithuania. The Constitutional Court has established: I The petitioner the Kaunas Regional Court considered a civil case concerning the restoration of violated rights and the recognition of the Decision (No. 54) On Setting the Place of Meetings of 31 July 1997 adopted by the Kaunas City Council as conflicting with Paragraph 1 of Article 36 of the Constitution and Article 5, Paragraph 4 of Article 6 and Article 18 of the Meetings Law and as null and void. By means of its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of Article 6 of the Republic of Lithuania s Meetings Law (Official Gazette Valstybės žinios,1993, No ; hereinafter referred to as the Law) was in conformity with Article 36 of the Constitution. II The request of the petitioner is based on the following arguments. Paragraph 2 of Article 6 of the Law grants the right to the municipalities to set permanent places for meetings of citizens. This norm conflicts with Article 36 of the Constitution Paragraph 1 whereof provides that citizens may not be prohibited or hindered from assembling unarmed in peaceful meetings,

2 while Paragraph 2 prescribes that the right to assemble in meetings may not be limited otherwise than by law and only when it is necessary to protect the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. Thus, in the opinion of the petitioner, under Paragraph 2 of Article 6 of the Law the municipalities are permitted to limit the constitutional right of citizens to assembly. III In the course of the preparation of the case for the judicial consideration, the representative of the party concerned explained in writing that the Law is designated for the implementation of the provisions of Article 36 of the Constitution. Regulating the conditions of and procedure for the arrangement of meetings, the Law provides for the form of the implementation of right of assembly on notice, i.e. the persons who arrange peaceful meetings do not need a prior permission of the State or municipalities. Paragraph 2 of Article 6 of the Law provides for a possibility for municipalities to set permanent places or premises for meetings while, of course, the requirements of the Law regarding the time, place and other circumstances are followed. The obligation to arrange meetings only in the places set by municipalities has not been consolidated in the Law, therefore, the impugned provision of Paragraph 2 of Article 6 of the Law should be regarded not as a limitation on the constitutional right of citizens to assembly, but rather as a condition facilitating the situation of the organisers and participants of the meetings (such places must be known to residents and easy to reach; in cases when the number of the participants of the meeting does not exceed 100, even the written notice concerning the arrangement of the meeting is not necessary); thus, this provision should be judged to be an additional condition of the guarantee of the implementation of the right of assembly. The representative of the party concerned also pointed out the fact that in other countries, too, the questions of arrangement of meetings are regulated by special laws which sometimes grant the right to local authorities to apply special measures at their discretion ensuring the security of arrangement of meetings. On the grounds of the arguments set forth, the representative of the party concerned maintains that an opportunity for municipalities to set permanent places or premises for meetings as established in the Law does not limit the constitutional right of citizens to assembly and is in compliance with Article 36 of the Constitution. IV 1. In the course of the preparation of the case for the judicial consideration, explanations of L. Sabutis, Chairman of the Public Administration Reforms and Municipal Affairs Committee of the Seimas, S. Kaktys, Minister of the Republic of Lithuania Administration Reforms and Municipal Affairs, Dr. G. Švedas, Vice-Minister of Justice of the Republic of Lithuania, Habil. Dr. V. Vadapalas, Director of the Department of the European Law under the Government of the Republic of Lithuania, S. Šiupšinskas, Director of the Administration of the Lithuanian Municipalities Association, Dr. E. Šileikis, a senior assistant at the State Law Department of Vilnius University, Assoc. Prof. Dr. E. Vaitiekienė who works at the Constitutional Law Department of the Law Academy of Lithuania, T. Klimas, Head of the Law Department of the University of Vytautas the Great, Dr. T. Birmontienė, Director of the Lithuanian Centre for Human Rights, A. Gazarianas, Chief Officer of the Research Centre of Self-Government Problems, J. Šiugždinienė, Director of the Self-government Training Centre at Kaunas Technological University, J. Elzbergas, Director of the Legal Department of the Vilnius City Municipality, H. Tamulis, Mayor of the

3 City of Kaunas, were received concerning the arguments of the petitioner. In all explanations opinions were stated that Paragraph 2 of Article 6 of the Law was in compliance with the Constitution. 2. In the course of the preparation of the case for the judicial consideration, the information of the Ministry of Administration Reforms and Municipal Affairs, the Lithuanian Municipalities Association and the Vilnius City Municipality concerning as to how the municipalities of the Republic of Lithuania interpret and apply the norm of Paragraph 2 of Article 6 of the Law. It needs to be noted that the absolute majority of the municipalities have not set the permanent places for meetings as yet. V At the court hearing, the representative of the party concerned virtually reiterated the explanations presented in writing. The Constitutional Court holds that: 1. On 2 December 1993, the Seimas adopted the Meetings Law. Article 6 of the Law provides: This law establishes the conditions of and procedure for arrangement of meetings in public places, i.e. streets, squares, parks, public gardens of towns and settlements, as well as in other public places and publicly used buildings. Municipalities may set permanent places or premises for meetings. It shall not be permitted to arrange meetings, rallies, pickets or other actions of groups or individuals at the establishments of state authority and administration, on the premises of municipalities, those of the police, sentence service, social rehabilitation, as well as those of the national defence, security service, prosecutor s office and courts, in military units and military objects, state banks, nuclear energy enterprises and other enterprises with special work security regime or those guarded by armed sentinels. Meetings near the buildings of the Seimas of the Republic of Lithuania, the official residence of the President of the Republic, the Government or courts may be arranged not closer than 75 metres, and near other establishments of state authority and administration, foreign diplomatic offices, municipalities establishments, prosecutor s office, establishments of the Ministry of Internal Affairs and the Ministry of National Defence, military units and other objects with special work security regime or those guarded by armed sentinels not closer than 25 metres from the main entrance into these buildings or objects, and in all cases free access to them must be guaranteed. In the opinion of the petitioner, under Paragraph 2 of Article 6 of the Law, municipalities are permitted to limit the constitutional right of citizens to assembly, therefore, this paragraph conflicts with Article 36 of the Constitution. 2. Article 36 of the Constitution provides: Citizens may not be prohibited or hindered from assembling unarmed in peaceful meetings. This right may not be limited otherwise than by law and only when it is necessary to protect the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. 3. The constitutional establishment of the right of assembly means that it is treated as one of fundamental human rights and values in the democratic society and is an indivisible element of the democratic system. It is an important condition of the implementation of the striving for an open, just, and harmonious civil society and state under the rule of law.

4 The right of assembly is the subjective right of citizens to participate in peaceful gatherings and freely to express their opinion and views, ensuring the expression of political activity of individuals in society and the State. The Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution), therefore, freedom of assembly should be treated not only as a democratic value to be taken for granted but also as an important guarantee so that various constitutional rights and freedoms would be implemented in all possible manner: the right of citizens to participate in the government of their state (Paragraph 1 of Article 33 of the Constitution), the right to criticise the work of State institutions and their officials (Paragraph 2 of Article 33 of the Constitution), the right of individuals to have their own convictions and freely express them (Paragraph 1 of Article 25 of the Constitution), their right to seek, obtain, or disseminate information or ideas (Paragraph 2 of Article 25 of the Constitution), the right of citizens to freely form societies, political parties, and associations (Paragraph 1 of Article 35 of the Constitution) etc. Thus, arrangement of meetings is one of the ways of civil and political action. 4. Article 36 of the Constitution not only provides for the right of citizens to assemble in peaceful meetings but also formulates the bases of legal regulation for the implementation of freedom of assembly and the opportunity is guaranteed therein to implement this freedom without violating the other values enshrined in the Constitution. This pre-supposes certain rights and duties of the legal relations linked with the arrangement and conduct of meetings and those of the subjects the organisers of meetings and the institutions and officials adopting decisions concerning the coordinated place, time and form of the meeting. On the one hand, organisers of meetings may freely choose the place, time, purpose and manner of meetings. In case these rights were absent, freedom of meetings itself would lose its sense. Alongside, the organisers of meetings must take measures so that the meeting, as provided for in Paragraph 2 of Article 36 of the Constitution, would not intimidate the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. In their turn, the institution or official adopting decisions concerning the coordinated place, time and form of the meeting must ascertain whether the meeting will not intimidate to the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. Coordinating the place for the meeting, this institution or official must also assess whether it is a proper place so that the security of the participants of the meeting would be ensured. 5. The right of individuals and citizens to peaceful meetings in case this does not violate the fundamental public values and the rights of other people is also established in the international law acts. For example, Paragraph 1 of Article 20 of the Universal Declaration of Human Rights provides: Everyone has the right to freedom of peaceful assembly and association. Under Paragraph 2 of Article 29 of the Declaration, in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are set by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Similarly it is provided in Article 21 of the International Covenant on Civil and Political Rights: The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides:

5 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with other, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights 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 the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. Interpreting the provisions of Article 11 of the Convention, in the case of Ezelin vs. France (European Court of Human Rights, judgment of 26 April 1991, Series A, No. 202), the European Court of Human Rights considered that the freedom to take part in a peaceful assembly, unlike in a demonstration that is prohibited, is of such importance that it cannot be restricted in any way, so long as the person concerned does not himself commit any reprehensible act on such an occasion. In the case of Platform Ärzte für das Leben (European Court of Human Rights, judgment of 21 June 1988, Series A, No. 139), the European Court of Human Rights also construed that the right to freely arrange peaceful assemblies includes not only the negative duty of the State not to interfere with the arrangement of a peaceful assembly but also its positive duty to ensure the proper security of the participants of such an assembly; coordinating the place of the assembly, a respective state institution must ascertain that it is a proper place so that the security of the participants of the assembly would be guaranteed. 6. Regulating the implementation of the right of citizens to assemble only in unarmed and only in peaceful meetings which is entrenched in Article 36 of the Constitution, the legislature enjoys the discretion to establish the procedure for the implementation of this right, however, it may not deny the essence of the right of assembly itself. The Constitutional Court notes that the interference of the State with the exercise of the right of assembly, as well as other rights and freedoms of individuals and citizens, is deemed to be lawful and necessary only in case the principle of proportionality between a limitation and a legitimate objective sought is followed. In all cases a balance must be maintained between the rights of persons and the public interest. Such is also the case-law of the European Court of Human Rights. Paragraph 2 of Article 36 of the Constitution provides that the right of citizens to assemble in unarmed peaceful meetings may not be limited otherwise than by law and only when it is necessary to protect the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. Thus, in the determination of the procedure for the implementation of freedom of assembly the Law may define the limits of the implementation of this freedom: it may contain particularised requirements as to the place, time and form of meetings, and it may establish as to what meetings are prohibited. The requirements as to the place, time and form of meetings may not deny the provision of Paragraph 2 of Article 36 of the Constitution by which the right to unarmed peaceful meetings may not be subjected to any limitations except those which are provided by law and are necessary to protect the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. Similarly, the legislature may not overstep the limits of the implementation of freedom of assembly defined in Paragraph 2 of Article 36 of the Constitution, by establishing as to which meetings are prohibited. The list of prohibited meetings contained in the Law must be exhaustive and may not be construed in an expansive manner. It is not permitted not to allow arranging the meetings which are not directly prohibited in the Law in case these meetings conform to the requirements as to their place (Paragraphs 3 and 4 of Article 6 of the Law) and as to their time (Article 7 of the Law) as established in the Law.

6 7. Under Article 5 of the Law, the meetings arranged according to the procedure established in the Law do not require any prior permission of the State or the municipality; the organisers shall coordinate the place (the route of the procession or demonstration), time and other procedure of its arrangement with the chief officer of the executive body of the municipal council or his authorised representative. It needs to be noted that the Law provides for the procedure of the submission of the notice regarding arrangement of the meeting and that of reception of a corresponding certificate but never for that of the issuance of the permission to arrange the meeting. Thus, the Law provides for the procedure of the implementation of the constitutional freedom of assembly on notice but never that requiring a permission. In cases when any public places prescribed in Paragraph 1 of Article 6 of the Law, i.e. streets, squares, parks, public gardens of towns and settlements, as well as in other public places and publicly used buildings, are chosen for the meeting, then the place for the meeting must be coordinated, conforming to the procedure established in the Law, with the chief officer of the executive body of the municipal council or his authorised representative. 8. Under the Law, the notice regarding the arrangement of the meeting shall be considered by the chief officer of the executive body of the municipal council or his authorised representative (Paragraph 2 of Article 10 of the Law). In case in the course of the consideration of the notice circumstances come to light due to which it is impossible to arrange the meeting in the form, at the place or the time pointed out in the notice, proposals regarding different forms, places or the time of the meeting may be submitted and considered only in the presence of the organisers of the meeting (Paragraph 3 of Article 10 of the Law). Under Item 2 of Paragraph 1 of Article 11 of the Law, upon the consideration of the notice of the organiser of the meeting or his representative concerning the arrangement of the meeting, the chief officer of the executive body of the municipal council or his authorised representative may adopt a decision to refuse to issue a certificate on the coordinated place, time and form of the meeting in case the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons may be violated. The organisers of the meeting may lodge a complaint against such a decision in court. The Constitutional Court notes that the chief officer of the executive body of the municipal council or his authorised representative, when he adopts a decision to refuse to issue a certificate on the coordinated place, time and form of the meeting, is bound by the bases of the limitation on freedom of assembly as indicated in Paragraph 2 of Article 36 of the Constitution: adopting such a decision, he must present clear proofs as to in what particular way the meeting is bound to violate the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. 9. The wording municipalities may set permanent places or premises for meetings contained in Paragraph 2 of Article 6 of the Law is not an imperative one. This norm is that of empowerment: municipalities have the right to set permanent places or premises for meetings but they are not obligated to do so. It needs to be noted, however, that when they set permanent places for meetings, municipalities may not violate the principle of equality of all persons. Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other State institutions and officers, Paragraph 2 of the same article provides that a person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions. Therefore, it is not permitted that in certain permanent places for meetings only particular persons may arrange meetings and that particular persons are prohibited from arrangement of meetings in the said places.

7 10. As mentioned before, the impugned Paragraph 2 of Article 6 of the Law provides that municipalities may set permanent places or premises for meetings, Paragraph 2 of Article 7 of the same law provides that municipalities may set the permanent time for meetings in the permanent places or premises for meetings. In such cases the Law provides for a simplified procedure for the implementation of the right of assembly. Paragraph 4 of Article 9 of the Law prescribes: In cases when a meeting is arranged in the permanent place or premises and the permanent time set by the municipality, and the number of the participants of the meeting is limited (100 people or less), the chief officer of the executive body of the municipal council or his authorised representative shall be informed about the arrangement of the meeting, however, a written notice shall not be necessary. The notice regarding pickets where 10 or less people participate shall not be necessary. 11. Summarising the legal regulation of the implementation of the right of assembly as provided in the Law, it should be noted that under the Law meetings may be arranged: first, in the permanent places set by the municipalities when, in case the meetings are arranged in such places, a prior assessment whether the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons indicated in Paragraph 2 of Article 36 of the Constitution would not be violated is not necessary, and, second, in other places where one has to assess in every particular case whether the said requirements of the Constitution would not be violated. The organisers of the meeting decide by themselves as to what alternative to choose. They may, at their own discretion, choose the permanent place set by the municipality and only inform the representative of the executive body of the municipality about the arranged meeting (Paragraph 4 of Article 9 of the Law) or to submit a written notice (Paragraphs 2 and 3 of Article 9 of the Law) concerning another place of the meeting. The establishment of places or premises for meetings simplifies the procedure for arrangement of meetings, however, organisers of meetings are not obligated in any way to arrange their meetings only at these places or on these premises, while the municipalities have no right to demand that meetings be arranged only at the permanent places set by them. 12. Taking account of the relation of the norm of Paragraph 2 of Article 6 of the Law with the other norms of the Law, it should be concluded that the impugned norms of the Law by which municipalities may set permanent places or premises for meetings may not be interpreted as granting the right to the municipalities not to allow people to assemble to peaceful meetings in other places which are not set by the municipality. Alongside, it needs to be noted that it is impossible to interpret the norm of the Law as prohibiting the citizens to assemble to peaceful meetings in other places which are not set by the municipality. Thus, the impugned Paragraph 2 of Article 6 of the Law does not impose a limitation on freedom of assembly consolidated in Article 36 of the Constitution, but rather establishes one of the ways of its implementation which may, under certain circumstances, be more favourable for organisers of meetings as the option for any other place for the arrangement of the meeting. On the grounds of the reasoning set forth, it should be concluded that Paragraph 2 of Article 6 of the Meetings Law is in compliance with Article 36 of the Constitution. Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following ruling:

8 To recognise that Paragraph 2 of Article 6 of the Republic of Lithuania s Meetings Law is in compliance with the Constitution of the Republic of Lithuania. This ruling of the Constitutional Court is final and not subject to appeal. The ruling is pronounced in the name of the Republic of Lithuania. Justices of the Constitutional Court: Egidijus Jarašiūnas Egidijus Kūris Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Vytautas Sinkevičius Stasys Stačiokas Teodora Staugaitienė