Comment: Outdated Law Hinders Albanians’ Right to Protest
The right to peacefully assemble is a right protected under the Constitution of Albania and several international human right instruments, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights, both ratified by the Albanian parliament. As such, we have an obligation to comply with the standards set forth by these two documents. However, the Albanian law “On Public Gatherings” (LOPG) of 2001 is not in compliance with these standards.
Firstly, the LOPG requires organizers to notify the police of the protest. The police must authorize it by informing the organizers 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 can request advance notification. 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 authorizations, most international authorities consider that a prior authorization is illegitimate. The Special Rapporteur on Freedom of Assembly and Association finds that “states should not impose authorization requirements as they turn the right into a privilege to be disbanded by the authorities, and shift the burden to the organizers 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 “authorization 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”.
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 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 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 the police decide 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 also fall 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 organizer 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 behavior.” 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.
These are only a few major flaws of this law. It is paramount to amend it, so that it reflects the best international practice on the right to freedom of assembly. It is essential for Albanians to be able to protest and not fear police brutality, retribution, or 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.