(Excerpts of Dr. Friday’s Press Statement)
Social protests and disruptions
In its report, the IACHR: “… acknowledges that in different circumstances protests cause
disruption and affect the normal course of other activities, but this fact does not make these
forms of expression per se illegitimate. It is based on the fact that one of the functions of protest
is to channel and amplify the demands, aspirations, and grievances of different segments of the
population…”.
In para 41 , the OAS report says: “It is inherent to the functioning of a democratic society that
the State must continuously weigh competing or conflicting legitimate rights and interests
against each other. And this weighing, under the requirement of necessity…means that at times
the exercise of freedom of assembly can alter daily… routines, especially in large urban centers,
and even create nuisances or affect the exercise of other rights that should be protected and
guaranteed by the State, such as freedom of movement. Nevertheless, “such disruptions are part
of the mechanics of a pluralistic society in which diverse and sometimes conflicting interests
coexist and find the forums and channels in which to express themselves.””
“Restrictions must also be strictly “proportionate” to the legitimate aim for which they are
intended, and closely tailored to the achievement of that aim, interfering as little as possible with
the lawful exercise of that right. To determine the strict proportionality of the restrictive measure,
it must be determined whether the sacrifice of freedom of expression it entails is exaggerated or
excessive in relation to the advantages obtained through such measure.”
The Right to Participate in Protest without Prior Authorization
The IACHR has considered that the exercise of freedom of assembly through social protest
should not be subject to government authorization or excessive requirements that make it
difficult to carry out. Legal requirements underlying the prohibition or limitation of a meeting or
demonstration, such as the requirement of prior permission, are not compatible with freedom of
assembly or the exercise of freedom of expression in the inter-American system.
Prior notice, generally justified by States on the basis of the need to provide greater protection to
a demonstration, cannot function as a covert authorization mechanism. … the requirement of
prior notification must not be confused with the requirement of prior authorization granted in a
discretional manner, which must not be established in the law or practice of the administrative
authorities, even when it comes to public spaces..
The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and
association has been emphatic in stating that he “believes that the exercise of fundamental
freedoms should not be subject to previous authorization by the authorities (…), but at the most
to a prior notification procedure, whose rationale is to allow State authorities to facilitate the
exercise of the right to freedom of peaceful assembly and to take measures to protect public
safety and order and the rights and freedoms of others.” At the same time, the existence of
mechanisms requiring demonstrators to notify the authorities in advance of the place, date, and
time of the protest is only compatible with Article 13 of the ACHR when States require it in
order to be able to take measures to protect demonstrators and thus facilitate social protest.
Similarly, when notification procedures are very bureaucratic or intervene unnecessarily or
disproportionately in determining the place, time, and manner of a protest, have a chilling effect
on the exercise of this right. With regard to the requirement of prior notice to hold a protest, the
United Nations Special Rapporteur on the rights to freedom of peaceful assembly and
association, has said that “such a notification should be subject to a proportionality assessment,
not unduly bureaucratic.” In particular, prior notification should be requested only for large
gatherings or events that could cause transit disruptions in order to facilitate their conduct and
protect demonstrators.
In addition, the organizers’ failure to give prior notification to the authorities should not lead to
the break-up of the gathering or to the imposition of criminal or administrative penalties such as
fines or deprivation of liberty against the organizers, leaders, or their associations. Under this
same interpretation, the European Court of Human Rights held that the dissolution of a peaceful
demonstration for failure to comply with the prior notification requirement constitutes a
disproportionate restriction on the freedom of peaceful assembly.
Spontaneous demonstrations are also protected. Spontaneous gatherings should be exempt from
the notification requirement and law enforcement should, to the extent possible, protect and
facilitate spontaneous gatherings as they would any other such event.99 This Commission
recommends that States take account of the fact that there are events in which it is not possible to
identify the organizers and that, although announced in advance, take place in a highly
improvised and spontaneous manner. The impossibility of identifying the organizers of a
demonstration cannot justify the prohibition, dissolution, or repression of a demonstration. In
addition, a spontaneous change in a march’s route does not negate the obligation to facilitate
protest and protect demonstrators and third parties present.
The notification procedure, moreover, cannot be regarded as a binding commitment by the
organizers to the time, place, and manner of a protest. Nor is it reasonable for the notification
procedure to serve as a basis for the imposition of penalties for acts committed by third parties
against persons or organizations that have assumed the functions of dissemination, organization,
or dialogue with the State with respect to a protest.
The duty to not criminalize leaders and participants in demonstrations and protests. This is very
helpful guidance given what is happening here in SVG, where people homes have been raided
and two persons have been charged with offences stemming from their perceived roles in the
recent protests in Kingstown.
