International law and its relation to domestic law

International legal documents recognized by Tajikistan are a part of the national legislation. When the national legislation contradicts the international legislation the international law applies. The international legal documents recognized by Tajikistan come into force after their official publication. (Parts 3 and 4, Art. 10 of the Constitution edited as of June 22, 2003)

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International law and its relation to domestic law

International legal documents recognized by Tajikistan are a part of the national legislation. When the national legislation contradicts the international legislation the international law applies. The international legal documents recognized by Tajikistan come into force after their official publication. (Parts 3 and 4, Art. 10 of the Constitution edited as of June 22, 2003)

FREEDOM OF ASSEMBLY:

Legal framework

All citizens shall have the right to participate in assemblies, meetings, demonstrations, and rallies in accordance with the acting legislation. Nobody can be forced to take part in these events. (Art. 29 of the Constitution) The major law regulating peaceful assemblies is the Law of the Republic of Tajikistan “On assemblies, meetings, demonstrations and rallies.” (in the edition as of May 2, 1998) The state shall guarantee the rights of citizens by providing citizens and their associations with free access to streets, squares, parks, and other open spaces; distributing information through state mass media and audio-visual media; assisting organized public events on the part of the state bodies and officials. (Part 2, Art. 1 of the Law) At the same time, the law prohibits the usage of the state budget for organization and financing of demonstrations. (Part 2, Art. 22 of the Law)

Types of assemblies defined and protected in domestic law

The law foresees the following forms of the public events: assembly, meeting, demonstration, street procession, rally, and manifestation. (Art. 3 of the Law) The law also regulates events related to election campaigns, religious cult ceremonies and other events not prohibited by the acting legislation. (Para. 5, Art. 2 of the Law)

The law regulates public events aimed at expressing the collective view of the citizens on different issues concerning public and state life, attracting the attention of citizens, governmental bodies and non-governmental organizations to these issues or making certain requests of these bodies and organizations, and also for protection or support of some socially significant initiatives. (Part 3 of the Art. 1 of the Law) Such events do not include assemblies stipulated for by organizational charters, events conducted in premises, constructions or at the territories specifically equipped for such type of events and also the territories used by the owner, tenant or other authorized user. (Art. 2 of the Law)

Possible limitations/restrictions/conditions, including requirements for notification

The rights and freedoms of citizens shall be limited only in order to secure the rights and freedoms of other citizens, public order, protection of Constitutional order, and territorial integrity of the state. (Part 3, Art. 14 of the Constitution) In particular, the Constitution prohibits propaganda of the war. (Part 2, Art. 11 of the Constitution) It also prohibits propaganda and agitation unleashing social, racial, ethnic, religious, and language hatred. (Part 2, Art. 30 of the Constitution)

The law “On assemblies, meetings, demonstrations and rallies” assumes the possibility of imposing limitations on organization and conduction of public events, as well as citizens’ participation in them. Thus, the right to take part in assemblies, meetings, demonstrations and rallies shall be limited in the state of emergency. (Art. 47 of the Constitution) The state of emergency may be determined for the period for up to three months and, in the case of necessity, prolonged by the president. (Part 2, Art. 46)

The law requires preliminary written notification to be sent to heads of the respective administrative territorial units – autonomic oblast, oblast, city, rayon. The notification shall be submitted not later than fifteen days prior to the scheduled date of the event. The notification shall contain the aim, form, place or route of demonstration, time of the beginning and the end of demonstration, expected number of participants, names of the organizers and their home, work, and university addresses, date of notification submission and the contact phone number. The notification shall be signed by the organizer. (Art. 8 of the Law) The notification shall be reviewed within three days and the decision to permit or ban the event shall be made. (Part 1, Art. 15 of the Law)

The decision on this notification shall be accepted by the chair of the respective administrative territorial unit within three days.

Place, route and time of assemblies

The law permits to hold peaceful assemblies in all suitable places except for the places the usage of which is suspended or banned by the decisions of local Majlises (councils) of deputies. (Art. 9 of the Law) The ban concerns places that do not guarantee safety for citizens or are located close to dangerous and harmful industries and objects, including airports, railway and road junctions, bridges, overbridges, railway rights of way, oil-and-gas pipelines and power lines, power stations, fire and highly explosive objects.

The list may also include historical and cultural monuments, cemeteries and religious buildings, reserves, national parks and pilgrimage places. Events conducted in the proximity to governmental buildings shall not impede the normal work of the governmental bodies. Respective Majlisy of deputies shall define the maximum permissible distances from the above-mentioned buildings to the places where demonstrations are to be held. The list of places that are banned or suspended to be used for public events shall be published in mass media. (Art. 10 of the Law)

The law defines the time for assemblies from 8:00 to 20:00. (Art. 11 of the Law)

Power to ban assemblies

The head of administrative territorial units shall have the right to ban assemblies on the following grounds:

- the goal of the event is propaganda of the actions or the actions themselves that are banned by the Constitution and laws of the Republic of Tajikistan;

- the place and time coincide with another event announced earlier, the requested place is banned or suspended for public events;

- the event creates or may create disturbances for transport and citizens or poses a danger to the functioning of the organizations responsible for citizens’ life maintenance;

- there is a real danger to life, health, and security of citizens, their rights and legal interests are violated;

- the event violates the Law on Assemblies.

The chair of the respective administrative territorial unit shall make a decision on a ban within three days. (Part 1, Art. 15 of the Law) If the reasons mentioned in the items two and three above are present the organizer must be offered to conduct the event in another place, at another time or in another form. A written permission for a change must be submitted to the chair of the respective administrative territorial unit not later than three days prior to the scheduled event. (Part 4, Art. 15 of the Law)

After the organizer receives a decision about ban of the event all agitation must be stopped. (Part 3, Art. 13 of the Law) Within three days the court must consider an appeal regarding whether it was legal to ban the event. In case the appeal is satisfied the event shall be held and the authority instituted proceedings against.

Prior or during the event, depending on certain conditions, law enforcement officers have the right to prevent, suspend or ban the event. (Articles 19 and 20 of the Law)

Requirements for organizers, their rights and duties (including liability and penalties)

An organizer can be any citizen or a group of citizens indicated in the notification of the event. Organizers cannot be citizens defined by the court as incapable or limitedly capable, and also imprisoned individuals. (Art. 6 of the Law) A political party, public association or any other group of citizens initiating an event shall identify the organizer. (Part 2, Art. 6)

According to the law, the organizer shall have certain rights and responsibilities. Namely, the organizer shall have the right to:

- request the event to be held in the place an time specified in the notification if it does not contradict the acting legislation;

- demand the damage to be compensated in case the event has been banned illegally;

- demand from all participants of a demonstration to keep the public order and the order the event defined by the organizer, and demand from police officers to remove individuals violating the order from the place of the demonstration;

- suspend or terminate the event in case the participants commit illegal acts or violate the order of the event defined by the organizer;

- perform directive functions, collect money, signatures, provide technical support, and also authorize other individuals to perform these actions certifying their powers in written form;

- perform other actions to prepare and conduct the event. (Articles 12, 17 of the Law)

The organizer shall have the right to freely agitate citizens informing them about the place, time, purpose of the event and any other information pertaining to the preparation or conduction of the event. The organizer shall also have the right to call citizens and their associations for participation in the planned events. Other citizens shall also have the right to agitate other citizens. Mass media, leaflets, posters, advertisements and slogans may be used for preliminary agitation. In case the event is banned the agitation must ceased. (Art. 13 of the Law)

According to the law, the organizer shall have the following responsibilities: (Part 2, Art. 17 of the Law)

- to secure that all conditions for holding the event indicated in the notification, are observed;

- to secure that all participants of the event keep the order of the event and the public order;

- to suspend or terminate the demonstration in case the requirements or the organizer are not observed;

- to observe the legal requirements of the law enforcement bodies;

- to secure observation of the sanitary norms and rules during the events;

- to secure safety of the buildings, equipment, furniture, and other property, and also greenery  at the place of the event;

- to inform the participants of the event in case the event is banned or suspended.

In case of the necessity the organizer shall coordinate organizational maintenance of the event with the local authorities and law enforcement officers. (Art. 14 of the Law)

The organizer does not have the right to forbid the participants to express their opinions, if this does not contradict the goals of the event, does not violate the public order and the order of the event defined by the organizer. (Art. 23 of the Law) The participants shall have the right to take part in development, adoption and support of the decisions and other collective actions for reaching the goal of the event. (Part 1, Art. 18 of the Law)

If the organizers of the event violate the procedures for organizing and holding assemblies, meetings, demonstrations and rallies after being punished by the administrative penalty, they shall face a fine of one to two thousand minimum monthly wages or up to two years in prison. If the organizer violates the procedures using his or her official status or if the violation results in heinous crimes, he or she shall be punished by imprisonment for the period of three to five years and deprived of the right to occupy certain positions or engage in certain activities for up to five years or without time limitation. (Parts 1 and 2, Art. 160 of the Code)

Requirements for participants, their rights and duties (including liability and penalties)

Participants of the event may be representatives of political parties, public associations and other groups of citizens, citizens attending the event with the goal to take part in it, and also assisting the organizer with preparation and holding the event. (Art. 7 of the Law) Foreigners and individuals without citizenship have the same freedom to take part in peaceful assemblies as citizens except for the cases defined by the legislation. (Art. 4 of the Law) The latter include, in particular, limitation for foreign citizens to finance the events. (Part 2, Art. 22 of the Law)

During the event the participants must: (Art. 18 of the Law)

- follow all legal requirements of the organizer of a demonstration and law enforcement officers;

- keep the public order and the order of the demonstration defined by the organizer.

During the event the participants are prohibited to possess weapons, specially prepared or designed objects that can be used against life and health of other people, and also damaging property of organizations and individuals.

State and police powers and responsibilities (including liability and penalties)

Heads of administrative territorial units shall secure the right procedures of accepting and reviewing notifications on holding peaceful assemblies thus furthering realization of the right to peaceful assemblies and securing the public order and protection of the rights and freedoms of other citizens.

Heads of administrative territorial units shall primarily be responsible for reviewing notifications on holding peaceful assemblies making a decision within three days. (Part 1, Art. 15 of the Law) The incoming notifications are reviewed with regard to their correspondence with legislative requirements on time and place of the event, goals and nature of the issues raised at the event, and, probably, identifying objectives requiring participation and assistance of the law enforcement bodies.

The law does not provide a specific list of responsibilities of the executive bodies and procedures that must be followed to secure the right to peaceful assemblies. The majority of the powers of the authorities aim at preventing illegal actions. The procedures of interaction between state bodies and organizers are not sufficiently defined; and there is a lack of coordination of the state bodies’ actions and also their interaction with other services.

The law enforcement bodies shall have the control and direction powers to prohibit the event and request its suspension or termination. The law does not clearly define in which cases the law enforcement bodies make certain decisions. The law also does not define the procedures for the law enforcement bodies to follow depending on the decision they make.(Art. 19 of the Law) For example, by the law, the law enforcement bodies are not entitled assisting the organizer with taking measures against violators or any interfering. (Parts 2 and 3, Art. 19 of the Law)

To suspend or terminate a demonstration a law enforcement officer must request the organizer to eliminate the violations impeding the demonstration. After the violations have been eliminated the law enforcement bodies shall have the powers to solve the disputes with the organizer and then the event may be continued. If the violations have not been eliminated the event shall be terminated. (Art. 19 of the Law)

In case of the necessity to suspend or terminate the demonstration the law enforcement officers shall: (Part 1, Art. 20 of the Law)

- give an order to the organizer to suspend or terminate the demonstration explaining the reasons for its suspension or termination;

- define the time limit for implementation of the order;

- address directly the demonstration participants in case the organizer does not follow the order to suspend or terminate the demonstration;

- define the time limit for implementation of the repeated order;

- warn about the use of force in case the repeated order is not followed, and then shall have the right to use force and special means as provided by the law.

In case of mass riots, pogroms, treasons and in other cases demanding immediate actions the event shall not be suspended. (Part 2, Art. 20 of the Law)

According to the Criminal Code, the authorities who have impeded holding or participation in the peaceful assemblies, forced to participate, and also used force or threatened with the use of force shall face the punishment of imprisonment for three to five years with deprivation of the right to occupy certain positions or engage in certain activities for up to three years. (Art. 161 of the Code)

Rights of appeal

Any illegal action or decision may be appealed by organizers in the court according to the legislation. The court must consider an appeal on the illegal ban of the event within three days. (Art. 16 of the Law) The decision of the court of the first instance may be appealed in a higher court.

Analysis is provided by OSCE ODIHR expert Dmitry Kabak with assistance of the National Bureau for Human Rights and Rule of Law (Tajikistan) who provided necessary legal acts.

Posted in April 2006

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