REGULATION OF PUBLIC ASSEMBLIES (PENAL CODE, PUBLIC ORDER ACT, POLICE ACT)

[a summary; as per the official commentary to the Police Act]

A public assembly is defined in Ch 2 ss 1 and 2 of the Public Order Act as any

1. assembly constituting a demonstration or which is otherwise arranged for deliberations, the expression of opinions or the spreading of information in a public or private matter,

2. lecture arranged for teaching purposes or to impart general or civic education,

3. assembly arranged for the practising of a religion,

4. theatre or film performance, concert or any other assembly for the presentation of artistic work,

5. other assembly where the freedom of assembly is exercised, and any

6. circus performance.

An assembly is considered to be public if it is arranged for the public or open to the public, or if it is comparable to a public assembly in view of the admission requirements.

A public event is defined in Ch 2 s 3 of the Public Order Act as any

1. sporting event or display,

2. public dance,

3. funfair or parade,

4. market or exhibition, or any

5. other event which does not constitute a public assembly or a circus performance.

For an event to be regarded as public, it must be arranged for or be open to the public. However, an event where admission is limited to people who have an invitation, members of an association etc., is also considered an event open to the public if it is arranged by a company whose only or principal business is to arrange events of the type in question. The same applies if the event, in view of the number of people who have access to it, admission requirements etc., is comparable to a public event.

Chapter 2 ss 22 - 24 of the Public Order Act govern the right of the police to call off or disperse a public assembly or event.

A public assembly or event may be called off or dispersed

1. if permission is required for it and it is arranged in contravention of a decision under Ch 2 s 6 not to grant the organiser such permission, or

2. if it is held in contravention of a provision of Ch 2 s 15 or a prohibition laid down in Ch 2 s 25.

In addition,

3. a public assembly may be dispersed if a serious disturbance of public order occurs at the place of assembly, or, as a direct consequence of the assembly, in its immediate vicinity, or if it entails a serious risk to those present, or serious disruption to traffic, and

4. a public event may be dispersed if it involves something that is forbidden by law or if it results in disorder, danger to those present or serious disruption to traffic. A public event, as well as a public assembly for the presentation of artistic work, may be dispersed

5. if, unless permission to arrange the event has been obtained, it results in a serious disturbance of the peace in its vicinity due to noise or otherwise, or

6. if it continues beyond the time specified in the permit in accordance with Ch 2 s 16, second paragraph. Even where the conditions for dispersal are satisfied, this may only be done if less drastic measures have proved inadequate to prevent further illegal acts, restore order, protect those present or limit the disruption to traffic. The fact that the organiser of a public event or assembly for which permission is required has not applied for such permission, does not in itself constitute sufficient grounds for calling off or dispersing the assembly or event. However, where an event or assembly is held despite the fact that the application for permission has been rejected, either of these measures may be taken.

A situation in which it may be difficult to draw the line is when a procession of demonstrators do not follow the route specified by the police authority in the permit. If the route proposed in the application submitted by the organisers corresponds exactly to that approved by the police authority – i.e. if no section of the new route that the demonstrators have taken has been assessed and rejected by the police authority – the police should deal with the demonstration in the same way as they would a public assembly for which no permission has been sought. If, however, the new route has been assessed and not approved by the police authority, the provisions empowering the police to disperse an assembly may be applicable on the grounds that the procession is violating a decision by the police authority (cf. JO 1996/97 p 89). Decisions regarding the calling off or dispersal of a public event or assembly are made by the police authority. Unless otherwise decided, such a decision is effective immediately, even if it is appealed against.

As mentioned, there may sometimes be cause to call off or disperse a public assembly or event. If a police authority has made such a decision, a police officer may turn away or remove participants and onlookers under s 13 of the Police Act if this is necessary to achieve the purpose of the decision.

Measures against a non-public assembly or event may be taken under s 13c of the Police Act where a crowd by its conduct is disturbing public order or poses an immediate threat to the same. In these circumstances, members of the crowd may be turned away or removed if this is necessary to maintain public order. A decision to take such action is to be made by the police authority or, where in view of the situation such a decision cannot be delayed, by a police officer. A decision on removal is also considered to imply the authority to temporarily detain members of the crowd at the place.

In addition, a number of other measures can be taken against both public and non-public events or assemblies:

a. Under criminal law, the provisions regarding public order offences in the Penal Code may be applicable. If a crowd of people disturbs public order by demonstrating their intention to use violence for a common purpose in opposition to a public authority or otherwise to compel or obstruct a certain measure and does not disperse when ordered to do so by the authority, s 1 provides that instigators and leaders may be sentenced to imprisonment for at most four years and other participants in the crowd’s proceedings to pay a fine or to imprisonment for at most two years for riot. This provision is applicable e.g. when a crowd attempts to prevent the police from taking a member of the crowd into custody under s 13 of the Police Act. Section 2 provides that if a crowd, with the intent referred to in s 1, has proceeded to use violence towards a person, persons or property for a common purpose, the offence is to be regarded as violent riot. In such a case, instigators and leaders may be sentenced to imprisonment for at most ten years and other participants to imprisonment for at most four years. A person may be regarded as a ‘participant in the crowd’s proceedings’ even though he himself did not use violence, if he showed that he sympathised with the use of violence, e.g. by shouting in a threatening or encouraging manner or by running alongside an attacking crowd.

A member of the crowd who did not participate in any of these ways cannot be sentenced under the provisions concerning violent riot in Ch 16 s 2 of the Penal Code. In a case of riot, however, a participant may be sentenced under s 1 even if he does not sympathise with the intent manifested by the crowd, since he may still have taken part in the crowd’s proceedings (cf. Beckman et al, Comments to the Penal Code II, 6th edition, p 238 ff).

Chapter 16 s 3 of the Penal Code deals with the offence of disobeying police order. If a member of a crowd that is disturbing public order does not obey a command aimed at maintaining public order, or if he intrudes in an area that is protected or has been closed off against intrusion, he may be sentenced under this section to pay a fine or to imprisonment for at most six months. The sentence normally imposed by the courts in such a case is day fines. Moreover, under Ch 16 s 4 of the Penal Code, a person who disturbs or tries to prevent a public assembly arranged for the purpose of deliberation, instruction or hearing a lecture, may be sentenced to pay a fine or to imprisonment for at most six months for disturbing a public assembly. In a case of riot or violent riot the question may arise whether arrests should be made. The maximum penalty for disobeying police order and disturbing a public assembly is six months’ imprisonment. This means that an arrest under Ch 24 ss 1 and 7 in the Code of Procedure may not be effected, as it is laid down in these sections that a condition for such a measure is that the offence is punishable by at least one year’s imprisonment. However, in serious public order situations there may be grounds for arresting members of a crowd on suspicion of other offences, e.g. assault, illegal threats, aggravated criminal damage or theft, or complicity in such offences. Even someone who is not taking direct part in such acts may be arrested if he induces others to commit such acts in such a way that it can be regarded as complicity, e.g. by shouting encouragement or egging them on.

As a general principle, the assessment of whether there are grounds for arrest rests with the police officer at the scene. If such an assessment can be postponed, however, it should be referred to a public prosecutor. Hence, the chief officer on duty or some other commanding officer who is not present at the scene may not make such an assessment (cf. JO 1992/93 p 105 ff). Likewise, a decision to take someone in for questioning may only be made by a police officer present at the scene (cf. JO 1994/95 p 80 ff). In this connection, it should be borne in mind that under Ch 23 s 9 of the Code of Procedure a person who has been arrested must always be informed about the offence of which he is suspected and the grounds for his arrest. There is no requirement that the family of the arrested person be thus informed, however.

Under Ch 24 s 8 of the Code of Procedure, the police may in certain cases cancel a decision to arrest a person, if it is obvious that there are no longer grounds for further deprivation of liberty and if a public prosecutor has not yet been informed about the decision. These powers apply both in cases where an arrest is found to be unwarranted in view of circumstances that have come to light after the decision was made, and where the arrest was unwarranted even from the outset. The main rule is that such a decision is to be made by the police authority. However, it may also be made by police officer if, immediately after the arrest, he or she finds that there are no longer grounds for depriving the subject of his liberty. This authority is usually exercised where a police officer, before taking an arrested person to a police station, realises that he has made a mistake.

b. In addition to the provisions governing arrests, the provisions in s 13 of the Police Act may of course be applied.

c. The requirement that the prerequisites for an intervention under s 13 must be assessed on a case-to-case basis may cause practical problems, even though the criteria are fairly simple. For example, in a chaotic and threatening situation a police officer may be justified in detaining members of a crowd at the scene. Even though in such a situation the conditions for taking into custody or arresting the members of the crowd may be satisfied, it must be borne in mind that there may be innocent bystanders or passers-by at the scene. Assessing the conditions for an intervention on an individual basis may of course take some time. In such a case, it is essential that the assessments are made rapidly and the detention of people at the scene is effected such that it does not constitute a deprivation of liberty (cf. bill 1990/91:129 p 24 and JO 1992/93 p 69 ff). A crowd that constitutes a public assembly or event must not be detained at the scene in such a manner that the event or assembly has in effect been dispersed (cf. JO 1992/93 p 62 ff).

d. In a serious disturbance of public order or safety, or when there is a risk of such a disturbance, the police may prohibit access to an area or premises, if this is necessary to maintain public order. In the same circumstances, the police may also order members of

a crowd to follow a directed route. Decisions regarding such measures are made by the police authority or, in urgent cases, by a police officer.

e. Provisions empowering the police to close off or otherwise prohibit access to premises are also to be found in e.g. s 23 of the Police Act and Ch 27 s 15 of the Code of Procedure. Section 23 also empowers the police to take other measures such as a search of a person, a search of premises or an evacuation.

f. If a decision to prohibit access to an area or premises or to order a crowd to follow a directed route has been made under one of the provisions mentioned in d. and e. above, or under some other statutory provision, a police officer may turn away or remove a person who attempts to enter, or refuses to leave, the area or premises under s 13a of the Police Act, provided that this is necessary to maintain public order or safety.

[Police Act, Section 13a]

If a person attempts to gain entry to an area or premises to which access has been prohibited under this act or some other statute, a police officer may turn

away or remove him from the area or premises if this is necessary to maintain public order or safety. This also applies to someone who refuses to leave such an area or premises, or to someone who does not abide by an order to follow a directed route issued under this act.

Under s 24 of the Police Act the police may, subject to certain requirements, prohibit access to an area or premises and order members of a crowd to follow a directed route. Section 23 vests in the police a similar power which can be used in the performance of their protective and crime preventive duties, viz. to prohibit access to a building, room or some other place. Moreover, the police may prohibit access to an area under Ch 27 s 15 of the Code of Procedure for the purpose of a crime investigation.

A person who violates a decision made under s 13a can probably not be sentenced under Ch 17 s 13 of the Penal Code for violation of official order. However, the provisions of Ch 16 s 3 of the Penal Code regarding disobeying police order may be applicable under certain conditions. If a person, in addition to disobeying a decision made by the police, also behaves in a manner that disturbs public order, s 13 of the Police Act may of course also be applicable.

Section 13a also empowers a police officer to turn away or remove a person who fails to comply with such a decision, provided

1. that a decision to prohibit access has been made under the Police Act or some other act or that a decision regarding route directions has been made under the Police Act,

2. that the person who is to be turned away or removed has attempted to enter or refused to leave the area or premises in question, or refused to follow a directed route, and

3. that the measure is necessary for the maintenance of public order.

The requirement that such a measure must be necessary to maintain public order and safety notwithstanding, this provision is also applicable where the person who is trying to gain entry to the area or premises cannot be considered to be disturbing public order. The assessment of whether it is justifiable to remove someone under this provision must be based on the purpose of the access ban.

[Police Act, Section 13b]

If a police authority has decided to call off or disperse a public assembly or event under Chapter 2, ss 22 or 23 of the Public Order Act (1993:1617), a police officer may turn away or remove participants and onlookers if this is necessary to achieve the purpose of the decision.

It is not stated in the provisions of the Public Order Act concerning the calling off or dispersal of a public assembly or event what powers the police have when it comes to implementing such a decision. However, it is assumed that the police may take such measures as are necessary for the implementation of the decision. Since a removal involves a limitation of the constitutional freedom of movement, a police officer must have explicit statutory support for such a measure. Such support can be found in s 13b.

Section 13b is only applicable to participants and onlookers at a public assembly or event. However, there is no requirement in this section that a person must be disturbing public order to be turned away or removed. The decisive factor here is the purpose of the decision, i.e. that the assembly or event be called off or dispersed. Thus, the removal of a person who is disturbing public order outside the premises where the assembly or event is to take place has to be based on s 13, or on s 13c if he is in a crowd that is disturbing public order.

[Police Act, Section 13c]

If a crowd of people who do not constitute a public assembly or a public event under the Public Order Act (1993:1617), by their conduct are disturbing public order or are posing a threat to the same, the members of the crowd may be turned away or removed from the area or premises they are in, if this is necessary for the maintenance of public order. Such a measure may be taken without a previous decision by a police authority only if it is so urgent that such a decision cannot be awaited.

It follows from the principle of proportionality that the authority to remove a person also includes the authority to turn a person away. However, it was thought advisable also to include the latter measure in s 13c, as in ss 13 and 13b. As this provision is formulated, the police officer’s assessment may be limited to whether the crowd has caused a public order disturbance or whether it poses a threat to the same, and whether the person or persons against whom the officer intends to intervene can be regarded as members of that crowd. An additional requirement is that the measure must be necessary to maintain public order. The term ‘member of a crowd’ is also to be found in the provision concerning disobeying police order in Ch 16 s 3 of the Penal Code. The intention is that the legal practice that has evolved in connection with the latter provision be used as a guide in the application of s 13c. Hence it follows that the provisions of s 13c are applicable to anyone who has joined a crowd and is aware that the crowd is disturbing public order. They are not, however, applicable to a person who happens to be caught in such a crowd or to a passer-by.

A decision to remove a person under s 13c is also considered to give the police the power to detain a crowd at the scene for a short while with a view to establishing who are members of the crowd, which of these should be removed and how this can best be done (cf. bill 1996/97:175 p 27 and 1990/91:129 p 24). A crowd may not, however, be thus detained for the sole purpose of arresting a suspect who is in the crowd, as this would be a violation of the principle of purpose. Provided that the original purpose was to remove the members of the crowd from the scene, however, there is nothing to prevent such a measure eventually resulting in some other kind of intervention. A crowd may only be detained at the scene under s 13c a short while, otherwise such a measure might constitute a deprivation of liberty. This kind of measure may not be taken on the grounds that there are not enough police officers at the scene or that transport for those who are to be removed cannot be arranged.

It follows from the principles of necessity and proportionality that a removal must be limited to only a section of the crowd where this is considered sufficient to achieve the purpose of the intervention.