International law and its relation to domestic law

The Constitution of the Russian Federation provides that “the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply” (Art. 15.4 of the Constitution of the Russian Federation, December 12, 1993).

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International law and its relation to domestic law

The Constitution of the Russian Federation provides that “the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply” (Art. 15.4 of the Constitution of the Russian Federation, December 12, 1993).

The Constitution of the Russian Federation also states that it “shall have supreme legal force and direct effect, and shall be applicable throughout the entire territory of the Russian Federation. Laws and other legal acts adopted by the Russian Federation may not contravene the Constitution of the Russian Federation” (Art. 15.1 of the Constitution. The Constitutional Court of the Russian Federation has not yet issued a decision clarifying if international law prevails also over the Constitution or only over primary and secondary legislation.). It also states that “the basic rights and liberties in conformity with the commonly recognized principles and norms of the international law shall be recognized and guaranteed in the Russian Federation and under its Constitution” (Art. 17.1 of the Constitution).

FREEDOM OF ASSEMBLY:

Legal framework

Citizens of the Russian Federation shall have the right to gather peacefully, without weapons, and to hold meetings, rallies, demonstrations, marches and pickets (Art. 31 of the Constitution). The procedure of preparation and conduct of assemblies as well as status of parties is stipulated by the Federal Law of the Russian Federation No.54-FL “On Meetings, Rallies, Demonstrations, Marches and Pickets” (Adopted on June 19, 2004, came into force on July 4, 2004. Hereinafter referred to as the Federal Law). No secondary legislation has been adopted yet in interpretation of the new Federal Law. Currently, the Decree of the President No.524 “On the Procedure for Organising and Conducting Political Rallies, Street marches, Demonstrations and Pickets” (Presidential Decree adopted on 25 May 1992. Public events were to be organized in the light of the provisions in the Declaration of Human and Civil Rights and Freedoms adopted by the Supreme Council of the RSFSR, November 22, 1991, provided that the authorities were first informed.  Exploiting the right to freedom of assembly to bring about violent change in the constitutional order, to inflame racial, ethnic, class or religious hatred or to propagandize violence and war was prohibited) is still in force. Regional and local authorities are entitled to issue secondary legislation aiming at regulating the procedure of conduct of meetings, street marches and placing pickets, as well as the procedure of notifying local authorities about this.

Types of assemblies defined and protected in domestic law

The State currently regulates only “public events”. A public event is “an open, peaceful, accessible to everyone event, conducted in a form of a meeting, rally, demonstration, march or picket; or an activity which combines these types of activity and is carried out at the initiative of citizens of the Russian Federation, political parties, other public associations and religious associations” (Art. 2 of the Federal Law). Aims pursued are freedom of expression, and voicing demands on issues of political, economic, social and cultural character, as well as issues related to internal politics. This definition includes assemblies conducted inside the buildings, static and in motion.

Spontaneous public events are not allowed by the Federal Law, unless only one person participates in them. If an organiser failed to submit a notification in time or failed to agree with the authorised body a change in place and (or) time of a public event he/she is not allowed to hold a public event (Art. 5.5 of the Federal Law). Under all other circumstances organisers of a public event will be subjected to administrative responsibility for violating a procedure of organising a meeting, rally, demonstration, marching or picketing (Art. 20 of the Code “On Administrative Offences”, December 30, 2001).

Possible limitations/restrictions/conditions, including requirements for notification

Individual restrictions of rights and liberties with identification of the extent and term of their duration may be instituted under conditions of the state of emergency in order to ensure the safety of citizens and protection of the constitutional system (Art. 56.1 of the Constitution). The Decree of the President of the Russian Federation “On the Introduction of a State of Emergency” may for an effective period of the state of emergency provide for the imposition of the ban on or restriction of meetings, rallies, demonstrations, marches, picketing and other mass events (Art. 11.1(f) of the Federal Constitutional Law No. 3-FCL “On the State of Emergency”, May 30, 2001).

Propaganda or campaigning inciting social, racial, national or religious hatred and strife is impermissible. The propaganda of social, racial, national, religious or language superiority is forbidden (Art. 29.2 of the Constitution). Involvement of extremist organisations, use of their symbols, or dissemination of their materials is prohibited during public events.

Public events can be terminated in case of commission of extremist acts during their conduct (Article 16 of the Law “On Countering Extremism” adopted by State Duma in the first reading on December 17, 2004).

Organisers are obliged to submit within the time limit of 15-10 days before a public event a notification in writing (Art. 7.1 of the Federal Law). This notification has to be sent to the executive body or the local self-government body. Notification in case of pickets by a group of individuals has to be submitted not later than three days before it is planned. No notification is required if a picket is organised by one individual. There is no requirement of notification if a meeting is planned. The Federal Law does not foresee an authorisation procedure, however there should be an agreement reached with an authorised authority.

A notification should contain information on the objective, form, place, route of procession of participants, date, time of beginning and ending, estimated amount of participants, forms and methods that organisers will use in order to ensure public order, provide medical aid, intention to use sound-amplifier; name or title of an organiser, information on his/her place of residence or stay or place of location and a phone number; names of those authorised by an organiser to fulfil organisational tasks; date of submitting a notification (Art. 7.3 of the Federal Law). A notification should be signed by an organiser and persons authorised by him/her to fulfil organisational tasks. Rules on submitting notifications are regulated by relevant laws adopted by subjects of the Russian Federation.

As mentioned above the regional and local authorities are entitled to issue secondary legislation aiming at regulating the procedure of conduct of meetings, street marches and placing pickets, as well as the procedure of notifying local authorities about this. At the same time limitations and prohibitions on places for public events can be introduced only by Federal Laws.

Place, route and time of assemblies

A public meeting may be held in any suitable place, as long as it does not create a threat of collapse of a building or any other security threat for participants of this public event (Art. 8 of the Federal Law. The Federal Law itself or any by-laws do not specify how the presence of threat can be assessed). The Federal Law (Art. 8.2 of the Federal Law. Borders of territories immediately adjacent to the buildings mentioned in the Art. 8.2 are determined by decisions of local executive authorities or local self-government according to the relevant laws on land management, usage and city-building) prohibits conduct of public events in the following places: territories immediately adjacent to the hazardous industrial objects and other objects, exploitation of which requires compliance with special safety rules; railways, oil-, gas- or related products pipelines, high-voltage power lines; territories which are immediately adjacent to the residences of the President of the Russian Federation, courts, and detention facilities (This last category of restrictions is justified in Explanatory Report to the Federal Law by “special legal regime”). The Federal Law also prohibits conduct of public events in the pre-border area if no specific permission by authorised border authorities has been granted (This prohibition is justified by a need to ensure order and security).

The Federal Law (Art. 8.3 of the Federal Law) prescribed that a procedure of conduct of public events on the territory of historical or cultural monuments is determined by the executive authority. A procedure of conduct of public events near the Kremlin, including the Red Square and the Alexander’s Garden, is determined by the President of the Russian Federation (Art. 8.4 of the Federal Law. This rule is prescribed by a need to protect monuments of history and culture). In response to a notification, authorised bodies may propose to organisers to change a place and time of conduct of a public event.

The law provides that it is allowed to hold assemblies only between 7 am and 11 pm of the same day (Art. 9 of the Federal Law) – this provision rules out an opportunity to express one’s opinion during several days in a row with construction of a so called “tent town”.  Another requirement to comply with the maximum filling in capacity of the territory (premises) where a meeting is held may be interpreted as a quantitative requirement.(Art.5.4 (7) of the Federal Law)

Power to ban assemblies

If a violation has not been rectified by an organiser (Art. 15 of the Federal Law), an authorised representative of local authorities is entitled to suspend a public event until such a violation is rectified. Following this, a public event may be resumed. If it is not rectified, an event is terminated.

A public event is terminated if there is a real threat to the life and health of citizens as well as property of physical and legal persons; if illegal actions are committed by participants and premeditated breach of the Federal Law is committed by an organiser (Art. 16 of the Federal Law).

An authorised representative of local authorities instructs an organiser to terminate an event (This instruction is reasoned and is given to an organizer in writing within 24 hours). If an organiser does not follow instructions, a representative of authorities addresses participants directly. If instructions are not followed again, police officers undertake necessary measures to terminate an event (Art. 17 of the Federal Law). Disobedience to their orders is punishable by law. 

In case of public disorder, termination of an event takes place according to the national law, in light of the urgent actions required.

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

One or more citizens; political parties; public or religious associations, their regional branches are allowed to organize a public event (Art. 5.1of the Federal Law). A person whose legal capacity has been either limited by a court or who was recognised by a court as legally incapable, or a person who is kept in detention facilities according to the decision of the court; as well as political parties, other public associations or religious associations, activities of which have been suspended or prohibited, or which have been dissolved in accordance with the law, can not be organizers of a public event (Art. 5.2 of the Federal Law). Children younger than sixteen years old can organize meetings and rallies. Those older than eighteen can organise demonstrations, marches and pickets (Art. 5.1 of the Federal Law)

Rights of organisers include a right to hold a public event, conduct preliminary campaigning through means of mass media, flyers, etc; authorise individual participants to fulfil organisational tasks related to conduct of an event; collect donations, signatures under resolutions and other appeals of citizens; utilise sound-amplifying equipment during an event (Art.5.3 of the Federal Law).

An organiser is obliged by the Federal Law to submit a notification about conduct of a public event; not later than three days before the planned event to inform the executive authority or the local self-government body in writing if the changes proposed by this body regarding a place and (or) time of conduct of an event are accepted or rejected by him/her; to ensure compliance with conditions of conduct of a public event listed in the notification; to demand from participants to maintain public order and rules of conduct of a public event; to ensure within its competence maintenance of public order or fulfil this duty together with an authorised representative of the local authorities or internal affairs; to suspend or interrupt a public event in case of commission of illegal acts by participants; to ensure compliance with filling in capacity of the territory of conduct of a public event; to ensure preservation of greenery, buildings, furniture, etc at the place of the public event; to convey to participants an order of authorised authorities to suspend or interrupt a public event; to possess a distinct sign of an organiser (Art. 5.4 of the Federal Law).

If a minor violation of legal order took place because of actions of participants, an organiser alone or together with the police officer can eliminate this violation at the request of an authorised representative of local authorities.

Violation of a prescribed procedure of organising a public event results in administrative fine payable by an organiser in the amount of 10-20 official minimal wages (It is established by the Federal Law "On official minimal wage”. As of October 2003 it is equivalent to 600 rubles).

Organisation or conduct of an authorised public event in immediate proximity to the territories of nuclear facilities, sources of radiation or the area of nuclear waste or radioactive materials storage, as well as participation in such events, and if this event complicated performance of duties of staff of these sites or created a threat to security of population and environment, is punishable by fine in the amount of 10-20 official minimal wages or administrative arrest up to 15 days (Art. 20.2 of the Code “On Administrative Offences”, December 30, 2001).

The Criminal Code (Art. 212 of the Criminal Code, June 13, 1996) foresees a fine from four up to ten years of imprisonment for organising a public disorder, which is accompanied with violence, arsons, use of firearms etc as well as armed resistance to the officers of state. Calls to active resistance to lawful demands of officers of state and to mass disorder, as well as violence against citizens are punishable by limitation of liberty up to two years, or arrest from two to four months, or deprivation of liberty up to three years.

It is an offence illegally to obstruct the conduct of or participation in a public event, or to coerce people into participation, if this is done by an official taking advantage of his official position or using or threatening to use force. It is punishable by fine in the amount of 500-700 minimal official wages, or deprivation of liberty up to three years, with a prohibition of taking certain posts or being involved in certain activities up to three years (Art. 149 of the Criminal Code).

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

The Federal Law stipulates that participants of a public event can be citizens, members of political parties, members of public and religious associations who are taking part in this event on a voluntary basis (Art. 6.1 of the Federal Law).  Consequently, the Federal Law does not guarantee the right to organise a public event to the stateless persons or foreign citizens.

The Federal Law mentions the following rights of participants: to participate in discussion and adoption of decisions or other collective actions in accordance with objectives of a public event; to use various symbolic or other means of public expression of collective or individual opinion, as well as means of campaigning not prohibited by the national law; adopt and send resolutions, demands and other appeals of citizens to the government bodies and bodies of local self-government, public and religious associations, international or other bodies and organisations (Art. 6.2 of the Federal Law).

Participants are obliged to comply with all legitimate demands of the organiser, persons nominated by him/her, authorised representatives of the executive body or the local self-government body and employees of internal affairs bodies; to respect public order and rules for conduct of a public event. Participants are prohibited from carrying arms with them to a public event as well any other items which may cause health or material damage to others (Art. 6.3 of the Federal Law).

The draft law prescribes to all participants of a public event to be in possession of a Schedule (Art. 2(8) of the Federal Law) which contains an hourly breakdown of activities which will take place during a given public event and which shows a person responsible for conducting each activity. Such schedule has to be prepared by organizers and submitted to the authorities for their information in advance of the planned event (It remains to be seen whether in case of only breach of the Schedule, but not public order, authorities will opt for termination of a public event). The law states that organisers, officials and other citizens can not prevent participants from expressing their opinions in a manner, which does not break public order and the Schedule (Art. 18.1 of the Federal Law).

Violation of a prescribed procedure of conduct a public event results in administrative fine payable by participant in the amount of 5-10 official minimal wages (It is established by the Federal Law "On official minimal wage”. As of October 2003 it is equivalent to 600 rubles).  The Criminal Code (Art. 212 of the Criminal Code, June 13, 1996) foresees a fine from three up to eight years of imprisonment for participating in a mass disorder, which is accompanied with violence, arsons, use of firearms etc as well as armed resistance to the officers of state.

Participation in an authorised public event in immediate proximity to the territories of nuclear facilities, sources of radiation or the area of nuclear waste or radioactive materials storage, and if this event complicated performance of duties of staff of these sites or created a threat to security of population and environment, is punishable by fine in the amount of 10-20 official minimal wages or administrative arrest up to 15 days.

Calls to active resistance to lawful demands of officers of state and to mass disorder, as well as violence against citizens are punishable by limitation of liberty up to two years, or arrest from two to four months, or deprivation of liberty up to three years.

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

Maintenance of public order, regulation of traffic, sanitary and medical services should be provided by the State free of charge (Article 18.3 of the Federal Law).

Firstly, an authorised body upon receipt of a notification is obliged to confirm it in writing, noting a date and time of its receipt. Secondly, it should communicate to an organiser within three days after receiving the notification a substantiated suggestion to change a place and (or) time of conduct of a public event, as well as suggestions on rectifying discrepancies in notified objectives, the form or other conditions for conduct of a public event, which may contradict the Federal law (Art. 12 of the Federal Law). In case of pickets when notification is submitted less than five days before it is planned, the authorised body has to reply on the same day.

If information contained in a notification and other information gives reasons to suspect that objectives of a planned public event and a format according to which it will be held do not comply with the Constitutional provisions and (or) will breach prohibitions foreseen by the national law on administrative offences or criminal law, the authorised body has to inform an organiser accordingly in writing and send a substantiated warning. Such warning should say that an organiser as well as other participants in case of breaches outlined in a warning and (or) violations during a public event, can be charged in accordance with the national law.

State bodies or local self-government bodies, which are addressed with concerns that were the reasons for conduct of a public event, are obliged to review these concerns, make relevant decisions and inform an organiser of a public event (Art. 18.2 of the Federal Law).

A head of the local police unit (which is in charge of the territory where a public event will be held) is obliged to appoint a representative who will assist an organiser with ensuring public order and security of citizens. An authorised police officer is entitled to demand from an organiser or can himself/herself start preventing citizens from joining a public event, if a filling in capacity of the given territory (premises) is exhausted.

An officer is allowed to remove at the request of an organiser those citizens who disobey lawful demands of an organiser. An officer is obliged to facilitate conduct of a public event within his/her competence and ensure safety of citizens and legality during conduct of a public event.

Use of force, firearms and special equipment for crowd control is regulated by law (Art. 12-15 of the Law No.1026-I “On Militia”, April 18, 1991). The law (Art. 14 of the Law “On Militia”) prohibits the use of special equipment when terminating unauthorised public events of peaceful nature, which do not interfere with the work of transport, communication, etc. Special equipment can be used only following instructions of the chief of police, a head of the criminal police, a head of the police division on public security, with an obligation to submit a subsequent report to the prosecutor within 24 hours after the use of this equipment.

Police officers are prohibited from using firearms if there is high concentration of people around and outsiders may be hurt. In case of use of a firearm, each police officer is obliged to submit a report within 24 hours to the chief of police. If actions or lack of actions on behalf of the police officer resulted in violation of rights of an individual, this individual can appeal to the chief of police, prosecutor or a court. Unlawful application of force causing death is punishable by law as well as application of force causing body harm.

The Criminal Code has a number articles foresaw for the crimes regarding assemblies, exceeding one's authority, causing body harm or other damage (Art. 109, 111, 112, 115, 116, 118, and 286 of the Criminal Code). Law enforcement officials are obliged to investigate all cases of complaints against abuse of force by police. Any damage caused by the State to a citizen or legal entity as a result of illegal actions or inactions of state bodies, has to be repaid at the expense of federal, local or municipal budget (Art. 1069 of the Civil Code, Part II, December 22, 1995). A civil claim can be brought against a police officer (Art. 114 of the Criminal Code).

Rights of appeal

All actions or inactions on behalf of the authorised bodies, public associations, and other officials which violate a right of citizens to hold a public event can be appealed to the court (Art. 19 of the Federal Law).

Comments

Adoption of the Federal Law was accompanied by lively public debate and heavy criticism of the initial draft, which was subsequently improved, partly due to involvement of the President of the Russian Federation. It is commendable that notification was made an underlying principle of the Federal Law. It remains to be seen how regional governments will uphold the essence of the notification requirement, when elaborating detailed rules on submission of notifications.

Analysis was written with the assistance of the NGO “The Moscow Helsinki Group” and the NGO “All-Russian Wide Movement for Human Rights” who completed the ODIHR Questionnaire.

Posted in June 2006

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