Comments on the Czech government's draft Assembly Act and on the changes, envisaged in a number of other legal provisions (Czech Parliamentary Paper No. 1163)

Ekologicky pravni servis, (The Environmental Law Service) is a public interest law organisation, based in the towns of Brno and Tábor, who analyse legal developments in the Czech Republic from an independent point of view. (In 2001, they published, among other things, their "Report on Violence", an analysis of the work of the Civic Legal Observers (Obcanske pravni hlidky - OPH) during the Annual Meeting of the IMF and World Bank in Prague in September 2000. In July 2001, they presented their findings about the activity of the Czech police in September 2000 to the United Nations Human Rights Committee in Geneva, whose concluding observations ar available as its document CCPR/CO/72/CZE.

The contact address of The Environmental Law Service is e-mail is: eps.brno@ecn.cz. The ELS is financed by the Environmental Partnership, the European Commission, the German Marshall Fund, the Open Society Fund and other organisations. Their 2000 annual report is available from the same e-mail.

Pavel Černý and Martin Škop of the Environmental Law Service have written an analysis of the Czech Home Secretary Stanislav Gross's draft Freedom of Assembly Act. In certain aspects, this new draft law is stricter and less clear than a similar, 19th century law which was in force in Austria-Hungary [of which the current Czech Republic was a part until 1918]. In this sense, this draft Assembly Act constitutes a substantial curtailment of the freedom of assembly in the Czech Republic. The draft Freedom ofAssembly Act, if adopted in this form, could even be abused by agents provocateurs. The Environmental Law Service proposes that the draft Act be redrawn. In this sense, the ECL will attempt to lobby individual members of the Czech Parliament in the forthcoming months.

When this government's draft Freedom of Assembly Act is compared to the Freedom of Assembly Act which is currently in force (Act No. 84/1990), it becomes clear that the new draft Act represents an attempt seriously to curtail the right of peaceful assembly, as this right is defined in Article 19 of the [Czech] Bill of Fundamental Rights and Freedoms.

Partially, this is due to the openly declared intentions of the Czech Home Secretary (see Stanislav Gross's speech in Parliament) which we regard as unacceptable in a democratic society. Partially, the curtailment of the right to free assembly is the result of many vague and inaccurately formulated provisions in this draft Act which would lead to a weakening of the rule of law if this Act is adopted.

In brief, the reasons why the draft Act should be rewriten are as follows:

1. The organisers of public gatherings have been emburdened by a number of vaguely defined duties. These can be abused
2. The introduction of a period of time by which the planned gathering must be notified in advance to the authorities makes it possible for the authorities to act in an arbitrary fashion
3. The remedies and the right to appeal against the ban and/or the dissolution of a public gathering are not defined precisely
4. The draft Act is in many ways superficial and incomplete and if approved, it will be difficult to use it in practice.

AD 1

It is not possible to accept that the organiser of a gathering must bear absolute responsibility for the peaceful nature of the gathering. This responsibility is placed upon the organiser under Article 9 in conjunction with Article 20 (b) of the Draft Act. It is undoubtedly proper to impose on the organiser such duties which might contribute to the peaceful nature of the gathering, but the state and its appropriate authorities cannot divest themselves of their responsibility for keeping public law and order. The organiser of the gathering has no means of enforcing law and order and cannot effectively correct any disruptive behaviour by participants during the course of the gathering. The provision which makes the organiser responsible for the peaceful nature of the gathering takes away responsibility for the maintenance of law and order from the Czech Police. It is the task of the Police to keep public order and to take measures to re-introduce public order, if it has been disrupted (Article 2 (1 b) of the Czech Police Act, No 283/1991 of the Collection of Laws).

It is unjustified to place the responsibility for public order on the organiser of the gathering especially at the moment when the participants of the gathering refuse to disperse peacefully after the end of the gathering. The organiser in such a situation has no practical or legal instrument to influence the behaviour of the participants of the demonstration. It is even more absurd to place on the organiser the duty of "cleansing the area where the gathering has taken place and the route of the procession" since the litter present in these areas may not have had any connection with the gathering in question.

Article 8 d) fails to define clearly in what way the organiser is dutibound to make it possible for a representative of the authorities to follow the course of the gathering. This article may mean either that the organiser of the gathering is not allowed to prevent the representative of the authorities from watching the gathering, or that the organiser must actively cooperate with the representative of the authorities. The Act should avoid such contradictory provisions. A duty, thus defined, is difficult to check and difficult to fulfil.

It is unacceptable that the authorities are given the right arbitrarily to decide who is the organiser of the gathering in such cases where gatherings have not been officially notified to the authorities and/or in such cases when the organiser "cannot be identified" (Articles 11 and 17 (2) of the Draft Act). The authorities are free to choose any person in the gathering as its "organiser": it is likely that they might choose someone present whom they do not like. Such a person may then be punished, under Article 20 of the Act. The draft Act does not contain any provision for such a person to defend oneself against such punishment.

AD 2

The period within which the organisers must notify the authorities about the planned gathering (Article 4 (2) of the draft Act) is inappropriately and unreasonably long. To compare: the 1867 Austria-Hungary "Right of Assembly Act" required that the authorities be notified a three days before a gathering was due to take place (in the case of registered assemblies, the period was only 24 hours). In current German law, the period is 48 hours, in urgent cases, the gathering can take place immediately after notification. In Austria the notification period is 24 hours. In Poland, the notification period is three days. This new Czech draft Act demands that the authorities are officially notified of the gathering nine working days before the gathering is due to take place, while the day of notification and the day on which the gathering is taking place do not count. The period is thus 11 working days, i.e. 15 calendar days.

The way the draft Act proposes to define this period is illogical. According to the draft Act, the period begins "on the day, following the day on which the notification was submitted". In fact, on this day the period for the submission of the notification ends. Thus, the term "period" is used incorrectly from the technical and legal point of view. Uncertainty is increased by the fact that only working days are counted and by the fact that the day on which the gathering is due to take place must be added to the seven working days of the stipulated notification period, if the organiser is to notify the authorities "in time". This whole provision has been drafted in a way which makes it unclear to the notifier of the gathering how to count time.

The possibility to notify the authorities later, i.e. within the period of seven working days (etc.) before the gathering is due to take place (Article 4 (4)) may not be a satisfactory solution, since the authorities may reject without reason a notification, submitted later than the before the specified period. The possibility of refusing to accept a later notification may substantially curtail the freedom of assembly for gatherings, planned to be held in reaction to topical events.

AD 3

The currently valid Czech Assembly Act lacks a right to appeal against the authorities' decision to ban and/or dissolve the gathering. The new draft Act has not dealt with this problem. The draft Act makes the position of the organiser of the gathering even more difficult in this respect. The draft Act fails to specify a period within which a court must issue a verdict if the organisers decide to start legal action in order to revert the authorities'decision to ban their gathering. An imprecise formulation is used: "the court will make a decision as a matter of priority and as soon as possible". Such vague formulations are now being removed from Czech legal regulations - see the new provision for the period within which a court must decide about an injunction (Article 75 (4) of the civic court regulations) or the regulations for decision-making in electoral matters (Articles 200 (v) and 200 (w) of the civic court regulations).

The new definition of the characteristics of the official complaint against the banning of the gathering is unclear. According to Article 15 (1) it is necessary to attach a written version of the banning order to the official complaint, due to be submitted to the courts. It is unclear whether this is the same document which is mentioned under Article 14 (1) of the draft Act. This document, confirming the banning of the gathering is due to be sent by the authorities to the organiser of the gathering only for "information" - the draft Act does not stipulate within which period the authorities must issue it. It is possible that the authorities will not send out the document within the period of 15 days within which, according to Article 15 (1) an official complaint against the banning of the gathering must be made to the courts. If the official complaint lacks an enclosure which the law demands, the complaint may be rejected.

If the court decides to anull the ban, imposed on the the gathering, Article 15 (2) of the draft Act says that the gathering may take place at a different time "after an agreement with the authorities". However, the draft Act does not require the authorities to conclude such an agreement with the organiser of the gathering.

It is possible to voice similar reservations against the characteristics of objections raised against the dissolution of the gathering. These are even less satisfactory (Article 19).

AD 4

We regard this Act as shoddily drafted. If it is adopted, it may lead to many unclear and contradictory situations. There is no provision in this draft act stating clearly that no advance permission is needed from a state authority to hold a public gathering (see Article 1 (1) of the currently valid Right of Assembly Act, and Article 19 of the Bill of Rights and Freedoms). The new draft Act introduces a complex and unclear procedure for the advance notification of public gatherings (see above, ad 2). This procedure may lead in practice to an abolishment of this constitutional freedom.

The link between Article 6 (1) (f) and Article 8 (a) is unclear. Article 6 (1) (f) of the draft Act requires that the notification of the planned gathering must include information about the authorities who have allowed the gathering. Article 8 (a) says that the presence of a representative of the authorities at the gathering is optional.

Article 8 (f) which demands that the organisers should cleanse the area where the gathering took place and/or the route of the procession is also unclear. Such a requirement is justified if the gathering has messed up the area. But according to the draft law, the organiser of the gathering is dutibound to cleanse the area even if it was already dirty before the beginning of the gathering and even if the gathering did not mess up the place.

The interpretation of Article 12 (1) (c) and (d) may be also controversial. According to (c) the authorities will send their representative to the gathering, but according to (d), only the authorities - not their individual representative - may ask the police for help. There is no provision for the devolution of certain rights to the individual representative of the authorities. This may lead to delays in restoring law and order in and to difficulties in applying this Act. This legislative and technical fault may paralyse the action of the authorities and its individual representatives.

To conclude:

The draft law disproportionally curtails the right to free assembly in the Czech Republic. The draft law has failed to improve with a number of unclear provisions in the currently valid Act No. 84/1990. It ha created a number of new inaccuracies which it is impossible to clear up by interpretation.

The new draft Act makes it possible to be used by the authorities against public gatherings which the local and state authorities might find "uncomfortable" (this may include almost all public gatherings). It is possible to imagine that not only gatherings of extremists, but also gatherings of local opposition politicians might be suppressed. Political opponents may be thus harassed by the local authorities, using this draft Act.

This draft Act can be used by agents provocateurs. If a masked agent provocateur takes part in a peaceful assembly and initiates acts of disorder, the gathering will be dissolved by the authorities and its organiser will be punished. Thus this draft Act might mean that people will be afraid to hold peaceful gatherings because they might get into difficulties with the authorities.

For all these reasons it is in our view proper to return the Act to the person who has submitted it to be redrafted.

On behalf of the Environmental Law Service

Mgr. Pavel Černý

Mgr. Martin Škop