UN writes to Mandić and parliamentary groups: Concerned about amendments to the Law on Public Gatherings

The United Nations (UN) Resident Coordinator in Montenegro, Diego Sorilja, delivered a document to the Speaker of Parliament Andrija Mandić (New Serbian Democracy) and all heads of parliamentary groups expressing concern regarding the Bill on Amendments to the Law on Public Gatherings and Public Events.

The draft law has been debated in parliament, and amendments to the regulation propose a ban on blocking highways, expressways, main, regional or local roads and border crossings if protesters thereby prevent or hinder traffic and the movement of other citizens. Fines ranging from 500 to 10.000 euros are foreseen for those who do not comply.

The document signed by Sorilja and UN human rights adviser Annette Lanting, which "Vijesti" had access to, expresses concern over the possibility that the proposed amendments are not compatible with Article 21 on peaceful assembly guaranteed by the International Covenant on Civil and Political Rights.

"We are concerned about the possibility that the proposed amendments are not compatible with Article 21 on peaceful assembly which guarantees International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights – ICCPR), which Montenegro signed in 2006," the document states.

They stated that they believe that the proposed amendments provide for a general ban on public gatherings on main roads, expressways, motorways, regional roads and border crossings, and that, under international law, restrictions on the use of public spaces can only be imposed when such gatherings impose a "disproportionate burden", in which case the authorities must provide "detailed justification for any restrictions".

"Such restrictions must not be general prohibitions, may only be imposed in individual cases, should be the least intrusive and justified in accordance with legitimate reasons permitted by Article 21 of the ICCPR, be necessary in a democratic society, proportionate and non-discriminatory. Second, increasing fines appears unnecessary, disproportionately high and may have a deterrent effect, limiting the exercise of the right to freedom of assembly," the UN said.

They said they based their analysis on the "authoritative interpretation of the right to peaceful assembly" by the UN Human Rights Committee, the body that monitors the implementation of the ICCPR by signatory states.

"This interpretation is established in The Committee's general comment No. 37 (GC37) on Article 21 of the ICCPR of 17 September 2020," it states.

They pointed out that, in addition, they consulted the case law and guidelines of the human rights protection system of the Council of Europe and the OSCE.

"The UN Human Rights Committee, the Council of Europe's Venice Commission and the OSCE Office for Democratic Institutions and Human Rights (ODIHR) have noted that the gatherings legitimate use of public and other spaces and that by their nature they may entail a certain level of disruption in daily life. Such disruptions require a significant level of tolerance and must be accommodated," the document states.

The UN has emphasized that a key component of the right to peaceful assembly is the ability of organizers and participants to choose the location of the gathering.

"The Human Rights Committee notes that peaceful assemblies may in principle be held in all spaces to which the public has access (...) such as (...) streets (GC37, paragraph 55). 'The imposition of any restrictions should be guided by the aim of facilitating the right, and not by seeking unnecessary and disproportionate restrictions on it.' Restrictions 'may not (...) impair the essence of the right or be aimed at discouraging participation in assemblies due to the effect of intimidation' (GC37, paragraph 36). The Committee calls 'general restrictions on peaceful assemblies (...) presumptively disproportionate' (GC37, paragraph 38)," they stated.

They also pointed out that the European Court of Human Rights has also established the need for a "degree of tolerance" for the disruption of traffic when roads are used for public gatherings, and that such disruption does not justify interference with the right to peaceful assembly.

They add that, with regard to criminal or administrative sanctions for organizers or participants in a peaceful assembly for unlawful conduct, the UN Human Rights Committee states that such sanctions must be "proportionate, non-discriminatory in nature and must not (...) restrict conduct protected by the Covenant."

"Finally, the UN system recommends that amendments to laws, especially laws affecting fundamental rights, be the result of a meaningful participatory process that includes discussions with key stakeholders, including civil society. The UN system in Montenegro is available to provide the parliament with any additional support that would be useful," the document submitted to the highest legislative house reads.

The proposal for amending the regulations is signed by Seid Hadžić from the Europe Now Movement list, Duško Stjepović (Democrats), Jelena Kljajević (Democratic People's Party), Dejan Đurović (New Serbian Democracy) and Bogdan Božović (Socialist People's Party).

The current Law on Public Gatherings and Public Events does not recognize public roads and traffic routes as spaces unsuitable for protests.