Albanian government unable to meet low bar law
Washington D.C – Albi Cela
The protests of May 17 at the National Theatre (“May 17 protest”), and June 24 at “Deshmoret e Kombit” Boulevard (“June 24 protest”) in Tirana, showed once again the lack of professionalism within the Albanian State Police (“Police”). Despite being two of the most peaceful protests in the history of Albania, they will also be also remembered for the police brutality.
A very interesting aspect with regard to the management of these protests by the police, it’s that they violated Law No. 8773 dated 23.04.2001 “On Public Gatherings” (“LOPG”), which ironically, is not in compliance with international standards on the right to freedom of assembly. In the first part of this short analysis I will address the LOPG provisions violated by the police, and on the second part, the provisions which are not in compliance with international standards.
Violation of LOPG
The protest of May 17 was different in nature compared to the protest of June 24, especially due to the circumstances and political factors surrounding it. However, both of them were subject to a number of violations.
In terms of the manner it was held, the May 17 protest can be addressed as a “spontaneous assembly” under international human rights law, or as an “urgent gathering” under the LOPG language. The gathering was a quick response to the unilateral and unlawful actions of the Albanian government, who decided to demolish the National Theatre at 04:30 AM, while everyone was sleeping. Concerned about the destruction of a national monument, and the backslide of democracy and the rule of law in the country, Albanian citizens gathered infront of the theatre to protest against injustice. However, for a better insight on the decision to bring down the theatre, and the story behind it, you can refer to this op-ed I co-authored with a colleague back in June.
In terms of violations, two instances can be identified. Firstly, the Albanian citizens never had the opportunity to protest, and secondly, the protest was dispersed violently, in complete disregard of the LOPG provisions.
Under Article 3 of LOPG, the “State Police guarantees, and protects the right of every citizen to organize, and participate in a peaceful protest”. Assuming the police will do so, every citizen that wants to protest must comply with Articles 5 and 7 of the LOPG, which provide the notification procedures. Under Article 7, the police must be notified no later than three days before the protest is held. The country was under lockdown, gatherings were prohibited and no one knew the government would go “Hulk smash” all over the National Theatre on a Sunday morning while everyone was sleeping. It was clear that the government had used the pandemic to advance its corruptive political agenda, and suppress civic space.
At that point, the protest of May 17 turned into an “urgent gathering” under Article 7 of the LOPG, which provides that “under urgent circumstances, a gathering can be held can be held as long as the police is notified no later than three hours before the gathering”. Still, this was impossible. The protesters would have to notify the police at 02:00 AM so that they could protest at 05:00 AM (if they knew three hours in advance the theatre would be demolished), or notify them at 05:00 to protest at 08:00. It is clear that everything was orchestrated so that the civil society didn't have a chance to protest.
Under Article 8 of the LOPG, the police can disperse a protest held in public areas if it endangers public order or the security of other persons, crimes are committed, or due to a public emergency. In addition, Article 16 provides that a protest in a public area can be stopped by the police if an armed person is allowed to participate, there is reason to believe that the protest will be violent, or there is risk for the life or health of the protesters.
A pandemic is of course a compelling argument to stop or disperse a protest, however, as mentioned earlier, this case is very complex given that the government used it to advance its corruptive agenda.
What is more concerning, is the excessive use of force by the police. Under Article 23, the police can use force to disperse a protest, but “in any case the use of force should be kept at a minimum level”. However, footage from the protest shows that the police was brutal, and not only towards peaceful protesters, but also the press, who under Article 4 are “untouchable” in any circumstance, not to mention they were exempted from any lockdown measure.
The same can be argued about the June 24 protest. The lockdown was over and the country had re-opened, including bars, pubs, and restaurants. However, despite having notified the police in accordance with the requirements of Article 5 of the LOPG, the police didn’t provide the organisers with the reasoning why they weren’t allowed to protest. On the day of the protest the police violently dispersed a small crowd of less than 100 people, and arrested 17 of them. They were subsequently sanctioned and charged for participating in an illegal protest.
The LOPG doesn’t comply with international standards
Firstly, with regard to prior notifications, the LOPG requires a prior notification from the organisers of the protest. The police then have to authorise the protest by informing the organisers within the time limits under Articles 5 and 7, and only then, the protest is considered to be legitimate.
Under international human rights law domestic authorities are allowed to request advance notification of an assembly. This is confirmed by the Human Rights Committee under the International Covenant on Civil and Political Rights, and the European Court of Human Rights (“ECtHR”). The aim is to prevent disorder and crime.
However, when it comes to authorisations, most international authorities consider the that a prior authorisation is illegitimate. The Special Rapporteur on Freedom of Assembly and Association (“Special Rapporteur”) finds that “states should not impose authorisation requirements as they turn the right into a privilege to be disbanded by the authorities, and shift the burden to the organisers or participants to challenge a refusal, rather than the authorities to justify the restrictions.” The same view is supported by the OSCE.
On the other side the ECtHR accepts in principle that “authorisation requirements for assemblies may be legitimate, though only insofar as their aim is to enable the authorities to meet their duty to facilitate the assembly”.
However, when it comes to “spontaneous assemblies”, international authorities including the Special Rapporteur and OSCE, share the view that “spontaneous assemblies which are held in rapid response to an unforeseen development should not be subjected to prior notification procedures”. The ECtHR as well provides that “domestic authorities should not disperse a peaceful assembly held as an immediate response to a political event because of the absence of formal notice”. Yet, Article 7 of the LOPG imposes an obligation to send a written notification to the state police.
Secondly, Article 19 of the LOPG prohibits participation in a protest “with clothes or other tools that aim to conceal the identity of the person”. While this is for security reasons, the Special Rapporteur has expressed its concern on laws that ban the use of face coverings. He provides that “there may be legitimate and non-criminal reasons for wearing a mask or face covering during a demonstration, including fear of retribution.” He also provides that the laws which don’t make any exceptions, could be potentially used to discriminate, such as in the case of women wearing niqab. This would prevent them from attending a protest.
Such laws could also be used against individuals with medical disabilities who wear face masks for medical purposes. For instance, I myself suffer from severe allergic reactions and shortness of breath, from tear gas, pepper spray, or any other fume releasing object such as fireworks. In order to enjoy my constitutional right to protest, but at the same time make sure I stay healthy, I would wear a face mask in case other protesters decide to use fireworks, or in case that the police decides to resort to the use of tear gas, or pepper spray.
The Special Rapporteur also mentions the use of masks for political statements. For instance, certain peaceful protesters movements around the world have adopted the use of Guy Fawkes, Dali’s mask and hooded red costume from La Casa de Papel, more as a political statement rather than an attempt to conceal identity. In such cases, using a mask for the purpose of making a political statement would fall also under the right of freedom of expression which intertwines with the right to freedom of assembly.
Therefore, Article 19 should provide exceptions to the ban of face coverings for several reasons, including religious, health related issues, or for making political statements.
Thirdly, under Article 9 and 16 of the LOPG, a protest can be dispersed or stopped by the police if a crime is committed, the organiser of the protest allows armed people to participate in the protest, or when the police has a motivated reason to believe that the protest will turn violent. These scenarios are vague and leave space for abuse by the authorities.
The ECtHR has clearly stated that “an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.” Moreover, the Special Rapporteur provides that law-enforcement officers must be prepared and trained to remove individual participants or infiltrators with violent intentions, rather than prohibiting or dispersing the assembly”.
Therefore, Articles 9 and 16 of the LOPG must be more specific in providing cases when a protest can be stopped or dispersed. A petty theft, or a few violent protesters shouldn’t be sufficient to stop others from enjoying their right to peacefully protest.
The Albanian government shouldn’t only stop violating the LOPG, but should take serious steps to amend the law, so that it reflects the already established international standards on the right to freedom of assembly. It is essential for Albanians to be able to protest and not fear police brutality, retributio,n and other violations of fundamental human rights.
Albi Cela is the International Rule of Law and Security Program Fellow at the Sandra Day O’Connor College of Law at Arizona State University, a program held in cooperation with the McCain Institute for International Leadership in Washington, D.C. Albi is the founder of Rule of Law Albania, a platform which promotes rule of law, good governance, and democracy in Albania and beyond. The platform features also a podcast.