Article 20 of UDHR
“1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.”
Article 21 of ICCPR
“The right of peaceful assembly shall be recognized. 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, the protection of public health or morals or the protection of the rights and freedoms of others.”
Article 22 (1) and (2) of ICCPR
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.”
Freedom of peaceful assembly and of association are, together with freedom of expression, key rights in a democratic society, since they enable the people to participate in the democratic process.
Freedom of assembly Scope
Protecting freedom of assembly means guaranteeing the right to hold meetings to publicly discuss or disseminate information or ideas – but only if they are “peaceful”, a term that must be interpreted broadly. For instance, States Parties must prevent a peaceful assembly from leading to a riot as a result of provocation or the use of force by security forces or private parties, such as counter-demonstrators or agents provocateurs.
States are under an obligation to take positive measures to guarantee this right and protect it against interference by State agencies and private parties alike. To that end, authorities must take measures to ensure the smooth functioning of gatherings and demonstrations. Accordingly, they should be informed of the location and time of a planned assembly with sufficient advance notice, and should be granted access to it.
Limitations
The right to assemble peacefully is subject to restrictions, which must be:
• in conformity with the law: interference with freedom of assembly can be undertaken independently by administrative authorities, particularly the police, on the basis of a general statutory authorization;
• necessary in a democratic society: they must be proportional and compatible with the basic democratic values of pluralism, tolerance, broad-mindedness and popular sovereignty;
• aimed at a legitimate purpose, such as national security, public safety, public order, public health and morals and the rights and freedoms of others (for instance, an assembly may be broken up if it constitutes a specific threat to persons or passers-by).
Freedom of association Scope
Protecting freedom of association means guaranteeing the right of anyone to found an association with like-minded persons or to join an existing association. Thus, a strict one-party system that precludes the formation and activities of other political parties violates freedom of association. The formation of and membership in an association must be voluntary; nobody may be forced – directly or indirectly – by the State or by private parties to join a political party, a religious society, a commercial undertaking or a sports club. States are under an obligation to provide the legal framework for setting up associations and to protect this right against interference by private parties.
Freedom of association includes the right to form and join trade unions to protect one’s interests. Trade union rights are laid down more specifically in Article 8 of ICESCR.
Box 73 The case of Socialist Party of Turkey (STP) and Others v. Turkey (European Court of Human Rights, 2003)
STP was formed on 6 November 1992, but on 30 November 1993 the Constitutional Court of Turkey ordered its dissolution on the grounds that its programme was liable to undermine the territorial integrity of the State and the unity of the nation. It found that STP had called for a right of self-determination for the Kurds and supported the right to “wage a war of independence”, and likened its views to those of terrorist groups. The applicants alleged, inter alia, that the party’s dissolution had infringed their rights, as guaranteed under Article 11 of ECHR on freedom of association.
The European Court of Human Rights found that the dissolution of STP amounted to a violation of the applicants’ right to freedom of association. It said there could be no justification for hindering a political group merely because it sought to debate in public the situation of part of the State’s population and to participate in the nation’s political life in order to find, by democratic means, solutions capable of satisfying every group concerned. Moreover, since the Constitutional Court had ruled even before STP had begun its activities, the European Court found that there was no evidence before it to support the allegation that STP had any responsibility for the problems posed by terrorism in Turkey. According to the European Court, the dissolution was therefore disproportionate and unnecessary in a democratic society.
Limitations
Freedom of association is subject to the same restrictions as freedom of assembly: any limitations must be provided for by law, must be necessary in a democratic society, and must serve one of the purposes justifying interference, namely protection of national security, public safety, public order, public health or morals and the interests and freedoms of others. Associations that advocate national, racial or religious hatred should be banned in the interest of others, pursuant to Article 20 (2) of ICCPR, which prohibits any advocacy of national, racial or religious hatred.