The right to assemble needs regulating – Two unconstitutional “traps”

The right to assemble needs regulating - Two unconstitutional traps, Giorgos Sotirelis
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The Greek government’s bill under discussion on the right to assemble has reaffirmed the ills plaguing the country’s political landscape over the past decade: the inability of political parties, and especially the two major ones, to find common ground even on important institutional issues, the regulation of which has been pending for many years.

What’s worse is that this weakness is inextricably linked not only to a constant refutation of pre-election announcements in search of consensual solutions, but also to the easy accession of governments to unconstitutional methods, whenever they see their divisive logic being served. This is exactly what happened with the bill on the regulation of assembly, although the Municipality of Athens had drawn up a plan at some time, which could have been an acceptable basis for discussion.

The government, of course, invoked the municipality’s plan. But it did so completely hypocritically, because it skillfully introduced a series of problematic and largely unconstitutional provisions, which ultimately completely altered it, subjecting it to an authoritarian-paternalistic logic, which is not at all in line with a modern open and democratic society.

Let’s start with the obvious

First: should the right of assembly be regulated? Of course it should be. It was very wrong that previous governments had not done so, tolerating the extension of effect, for so many years, of a (truncated) junta legislative decree. Especially when this right presents several peculiarities, which stem from its twofold character. It is an individual right, but at the same time it is the necessary biosphere for the exercise of political rights, and on the other hand it is a medium for the realization of social rights.

Second: isn’t the fact that the adjustment is being made now suspect? Politically, everyone can have their own point of view, but from a constitutional point of view, this is indifferent: institutional policy is not exercised in greenhouse conditions, but on the basis of the turbulent and constantly evolving socio-political reality.

Third: should there be any restrictions on the right to assemble, based on the number of participants in the gathering? Obviously, this must be foreseen, mainly because the right to assemble is, by its very nature, highly conflictual, both in terms of freedom of movement and economic freedom.

The established method that theory and jurisprudence have developed to resolve emerging conflicts is “weighing”, through which practical harmonization and balanced satisfaction of all the above – by definition equal – constitutional rights is sought. Based on such balancing, it is reasonable not to close the center of Athens for a demonstrations by 50-100 people, at a time when it is possible for them to demonstrate without affecting the exercise of the other aforementioned rights.

I would add, however, that it is also not reasonable to close – only symbolically and for a short time – a national road network (especially when the “gathering” concerns a few dozen or hundreds of tractors, without their drivers, as has happened repeatedly).

At this point, however, it should be noted that hypocrisy abounded in government rhetoric, as such restrictions have been in place since 2013 (Presidential Decree 120/2013), but have never been implemented. On the contrary, the recent image given by the police is that it is trying to harass the citizens of the city center as much as possible, even for small demonstrations, as if it wants to provoke indignation against the exercise of the right in general.

Assembly and two unconstitutional proposals

But beyond the obvious, what we need to examine now, after some improvements to the bill, are two shoddy legislative proposals that are both anti-democratic and unconstitutional:

The first concerned the main feature of the constitutional protection of rallies, provided, of course, that they were “peaceful” and “unarmed.” That is, no prior permission is provided, neither by administrative (police), nor by judicial authorities. Consequently, the law can neither establish nor impede such a license.

In this light, even if a previous notification to the authorities is given (so that both police and citizens are informed in order to take action) and is economically tolerable, this notification does not mean that it could be a substitute for the previous license, as is the case with this bill. Because what else can the lack of notification mean except that is an independent reason for the dissolution of a normally planned gathering? As for “spontaneous” rallies (fortunately this provision was withdrawn, after the general political and legal outcry), the dependence of their realization was at the discretion of police authorities, which meant – now directly – the provision of a license.

The second critical problem is the term “objective liability” (civil and criminal) imposed on the organizers of the rallies, in terms of any deviations (in relation to damage to property and lives of citizens) that will be observed during the rallies. the – ultimately painless – legislative changes that have taken place in the relevant wording, placing such responsibility is unthinkable in a state governed under the rule of law.

Not only because it reverses the burden of proof on the attribution of responsibilities (it essentially introduces an almost irrefutable presumption of guilt of the organizers), but also because it moves in the absence of the reality of contemporary demonstrations. That is if a group of active citizens decides to apply online for a “public outdoor” (ie, not “spontaneous” or “emergency”) gathering and notify the police authority of its intention. How is it possible for them to “appoint a sufficient number of persons to provide assistance in guarding the assembly”, as provided by the bill, when they don’t know how many, or who will be participating?

As a result, who will dare organize such a gathering, under the sword of Damocles, of being blamed by the civil and criminal authorities for anything that happens during such rallies? In fact, this is much more so the case for the organizers of “spontaneous” rallies, for whom such an attribution of responsibilities applies “proportionally”. Will anyone dare to become an organizer, as provided by the bill, when the police may be waiting for him on the corner to frame him for anything illegal?

The responsibilities of the main opposition

Of course, there are other points in the bill, as it has been formulated, that are open to criticism. However, after the withdrawal of the “delictum sui generis” for participation in an “illegal” gathering, their problematic nature is rather minor and I will not expand on this further. I am content to note the mere observation that the involvement of Justice, as now provided for in the amendments that have been implemented, is creating rather more problems than it solves.

Before concluding, I cannot fail to point out that the main political opposition also has enormous responsibilities for the quality of the relevant dialogue, in contrast to lesser opposition KINAL party, which made proposals and achieved changes. KINAL will, however, be very exposed if it passes the bill while the two remaining major constitutional problems, I mentioned above, remain.

SYRIZA’s stance, however, was not very constructive. With the exception of a few sober approaches, an indiscriminate and unjustified “demand for rights” has prevailed with a complete underestimation of social and democratic responsibility and high pitched allegations (junta, etc.), which unfortunately once again reveal political immaturity and “constitutional populism.”

I want to believe that even at the last minute, the official opposition will retaliate, will finally abandon the old political agenda, which has again begun to resemble that of the communist party KKE, and will join forces with KINAL in plenary. The aim is to exhaust all the possibilities and to lead the government to withdraw the last two intensely problematic points, which in fact undermine the constitutional exercise of the right of assembly.

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