INTERNATIONAL HuMAr' RIGHTS CLINIC
FACULTY OF LAW, UNIVERSITY OF TORONTO
To: Renee Redman
Cc: Diana Juricevic
From: Nicole Simes
Date: Friday 16 October 2009
Memorandum on Freedom of Assembly
Introduction
You have asked the International Human Rights Program (“IHRP”) to research “freedom of
assembly” standards to determine whether the events surrounding the election in Iran on 12 June
2009 were in accordance with Iranian and International law.
The Constitution of Iran (“Constitution “) protects the right to freedom of peaceful assembly.
This right is also protected by many provisions in international law, including article 21 of the
International Covenant on Civil and Political Rights (“ICCPR “) to which Iran is a State Party.
Iran qualifies the right to freedom of assembly in the Constitution by stating that freedoms in the
Constitution may not be detrimental to the fundamental principles of Islam, the public interest or
the independence and integrity of Iran.
The assemblies of June 2009 in Iran were peaceful gatherings which should have attracted the
protections of Iranian law. However, the assemblies were subj ect to various restrictions by the
Iranian Government. Based on evidence provided by the Iran Human Rights Documentation
Center (“IHIRDC”), the Iranian Government used various forces to initially clash with, and later
disperse, demonstrators. In addition, demonstrators were attacked with batons, tear gas, and
1
rubber and regular bullets, and a number of demonstrators died as a result. Large numbers of
demonstrators were arrested and held for days without access to lawyers or any other legal
protections leading to various abuses.
Iran may argue that the demonstrations were legitimately restricted under Iranian law. However,
under international law, lawful restrictions on the right to freedom of assembly must be in
conformity with the domestic law, necessary in a democratic society and in pursuit of one or
more of the aims provided in article 21 of the ICCPR. The Government of Iran's restriction on
freedom of assembly was likely not in conformity with the law due to the lengthy notice period
required in order for a demonstration to be authorized by law and due to the vagueness of the
constitutional provisions upon which Iran may have relied. The infringement on freedom of
assembly was not proportional to the interest being protected due to the extreme nature of the
response by the Government, so it cannot be considered necessary in a democratic society. Even
if the suppression of the assemblies were in conformity with the law and necessary in a
democratic society, it can be argued that the restrictions were not for one of the legitimate aims
delineated in the ICCPR, namely, protecting national security, public safety or public order
(ordre public), public health, public morals, and the rights and freedoms of others. From this
analysis, it is possible that Iran violated its own Constitution in suppressing the assemblies in
June 2009 and a strong argument can be made that Iran violated international law.
Le2al Protections of Freedom of Assembly
IRANIAN LAW
Iran recognizes the importance of public demonstration and protest in the preamble of the
Constitution. In reviewing the creation of the Islamic Republic, the preamble states that:
In the course of this popular movement, the employees of all government
establishments took an active part in the effort to overthrow the tyrannical regime
by calling a general strike and particlpating in street demonstrations. The
2
widespread solidarity of men and women of all segments of society and of all
political and religious factions, played a clearly determining role in the struggle.'
The preamble also recognizes the importance of the participation of citizens by stating that the
“constitution guarantees the rejection of all forms of intellectual and social tyranny and
economic monopoly, and aims at entrusting the destinies of the people to the people
themselves.” 2 Further, the active and broad participation in society by Iranian citizens is
considered integral to achieving the goals of the constitution, including social development.” 3
The Iranian Constitution explicitly protects the right of peaceful assembly in article 27. Article
27 states that “public gatherings and marches may be freely held, provided arms are not carried
and that they are not detrimental to the fundamental principles of Islam”. 4 The freedom of
assembly is qualified within article 27 by the fundamental principles of Islam and it is qualified
in the remainder of the Constitution by the public interest and the independence and integrity of
Iran, in article 40 and article 9 respectively. Article 40 notes that “no one is entitled to exercise
his rights in a way injurious to others or detrimental to public interests.” 5 Whereas article 9
states that:
no individual, group, or authority, has the right to infringe in the slightest way
upon the political, cultural, economic, and military independence or the territorial
integrity of Iran under the pretext of exercising freedom. Similarly, no authority
has the right to abrogate legitimate freedoms, not even by enacting laws and
regulations for that purpose, under the pretext of preserving the independence and
territorial integrity of the country. 6
1 lran Constitution, preamble, online: Iran Human Rights Documentation Center
< . emphasis addedi
2 lran Constitution, preamble, online: Iran Human Rights Documentation Center
< . emphasis addedi
3 lran Constitution, preamble, online: Iran Human Rights Documentation Center
< > .
4 lran Constitution, Article 27, online: Iran Human Rights Documentation Center
< . emphasis addedi
Constitution, Article 40, online: Iran Human Rights Documentation Center
< . emphasis addedi
6 lran Constitution, Article 9, online: Iran Human Rights Documentation Center
< . emphasis addedi
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INTERNATIONAL LA W
Freedom of assembly is formally and explicitly protected in international law. It is enshrined in
many international treaties including article 20(1) of the Universal Declaration of Human Rights
and article 21 of the International Covenant on Civil and Political Rights. In addition, the right
is also found in regional treaties such as article 21 of the Organization of American States (OAS)
Declaration on the Rights and Duties of Man, article 15 of the OAS American Convention on
Human Rights, and article 11(1) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms. The widespread and formal protection of this right demonstrates its
acceptance and importance in international law. The principal provision in international law on
freedom of assembly for the purpose of this analysis is article 21 of the ICCPR. Article 21
provides that:
The right of peaceful assembly shall be recognized. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. 8
Universal Declaration on Human Rights, GA Res 217(111), UNGAOR, 3d Sess., UN Doc A1810 (1948), Article
20: (1), “Everyone has the right to freedom of peaceful assembly and association.” emphasis addedi;
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Article 21: “The right
of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those
imposed in conformity with the law and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public health or morals or the protection of the
rights and freedoms of others.” emphasis addedi;
Organization of American States, Declaration of the Rights and Duties of Man, Bogota, Colombia, 1948, Article
XXI. “Every person has the right to assemble peaceably with others in a formal public meeting or an informal
gathering, in connection with matters of common intemst of any nature.” emphasis addedi;
European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 11(1) “Everyone has
the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and
to join trade unions for the protection of his interests.” emphasis addedi;
Organization of American States, American Convention on Human Rights: Article 15. “Right of Assembly: The
right of peaceful assembly, without arms , is recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and necessary in a democratic society in the interest of national
security, public safety or public order, or to protect public health or morals or the rights or freedom of others.”
emphasis addedi
8 lnternational Covenant on Civil and PoliticalRights, 19 December 1966, 999 U.N.T.S. 171, Article 21.
4
Iran signed the ICCPR on 4 April 1968 and ratified it on 24 June 1975. As a State Party it is
bound by the provisions of the Covenant. The United Nations (“IJN”) Human Rights Committee
issues General Comments and Concluding Observations on the ICCPR and accepts complaints
against States Parties which have ratified the First Optional Protocol of the ICCPR. While Iran
is not legally bound by this jurisprudence, the Human Rights Committee's interpretation of the
rights of the ICCPR serves as persuasive authority for what Iran's legal obligations under the
ICCPR constitute in practice. In addition, while Iran is not bound by other regional human rights
treaties, the language protecting the freedom of assembly in the European Convention for the
Protection qf Human Rights and Fundamental Freedoms is very similar to that found in the
ICCPR so although the European Court of Human Rights (ECHR) applies a different treaty than
the UN Human Rights Committee, its case law is nonetheless relevant and applicable.
DEFINITION OF ASSEMBLY
The Iranian Constitution does not define an assembly, but assembly is defined through
international jurisprudence. The meetings which took place on and following 12 June 2009
were assemblies, based on the definition in international law. International jurisprudence
highlights that an assembly is a gathering of individuals privately or in a public space either in a
static meeting or a public procession, for discussing matters of common interest of any nature.'°
In Rassemblement Jurassien & Unite Jurassienne v. Switzerlancl the French speaking minority
and the German majority in a German-speaking municipality of Switzerland were in a dispute.
The Executive Council banned all meetings in the municipality to avoid potential clashes. The
applicants claimed that the Executive Council had violated their right to freedom of assembly.
The European Commission of Human Rights (the “European Commission”) held that the right to
United Nations Treaty Collection. Chapter fl Hunian Rights: International Covenant on Civil and Political
Rights. online: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsgno=IV-
4&chapter=4&lang=en>. Iran is a State Party to tile ICCPR and it has not made any reservations. The fact that Iran
has not signed the optional Protocol to the ICCPR does not diminish the relevance and importance of its existing
human rights obligations under the ICCPR.
10 The Organization of Amencan States Declai ation of the Rights and Duties of Ian Bogota Colombia 1948
Article XXI Article 21 defines directh w hat is protected b assembh a fonimi public meeting or an infoniml
gathering, in connection with matters of common interest of any nature.”
5
freedom of assembly “covers both private meetings and meetings in public thoroughfares.” 11
Similarly, in Christians against Racism and Fascism v. UK, the European Commission held that
an “assembly” includes both static and in-motion meetings.' 2 Based on these definitions, the
gatherings in June 2009 were assemblies since numerous people met and marched together in a
public space to promote a similar message.
PROTECTIONS FOR ‘PEACEFUL' ASSEMBLIES
Only peaceful assemblies are protected in the Iranian Constitution and under international
The assemblies in June 2009 were peaceful and should have attracted the right to peaceful
assembly under the Iranian Constitution and article 21 of the ICCPR. Evidently, a peaceful
assembly must be without violence. There cannot be physical attacks or threats, smashing of
public property, destroying of furniture, setting cars on fire or similar behaviour.' 4 Likewise, the
“notion of ‘peaceful assembly' does not ... cover a demonstration where the organisers and
participants have violent intentions”.' However, the risk that violent extremists outside of the
organizers of a demonstration may join the demonstration does not make the assembly
unpeaceful or remove the right to assemble.' 6 The demonstrations following the June election in
Iran were free from violence before the police or Government forces were involved and they
should have thus been protected under the right to peaceful assembly.
Rassemblement Jurassien & Unite Jurassienne v. Switzerland (1980), European Commission of Human Rights,
17 Decisions & Reports 93, at para. 3.
12 Christians against Racism and Fascism v. UK (1980), European Commission of Human Rights, 21 Decisions &
Reports 138, at para. 148.
13 See for example footnote 7.
14 Manfred No/ ak L / Cm enant on Cn ii and Political Rig/its CCPR Conimentai i 2 Re/ ised Edition (Kelil
Gennan: N.P. Engel Verlag, 2005) at 487.
1 G v. Germany (1989) European Commission of Human Rights, Application 13079/87, 60 Decisions and Reports
256. The applicant staged a sit-in demonstration in front of the Stuttgart barracks of the US forces. The applicant
was charged under the Gennan criminal code for having committed unlawful coercion. The court held that there
was no violation of his Article ii right to peaceful assembly but they did not find that his sit-in had violent
intentions.
16 Christians against Racism and Fascism v. UK (1980) European Commission of Human Rights, 21 Decisions &
Reports 138, at para. 148. The applicants planned a procession and asked for peniiission from the London police
although peniiission was not necessary. The Commissioner of the Metropolitan police ordered a ban on all public
procession for two months to avoid public disorder. The Commission did not find a violation of Article ii but held
that the possibilth of / iolent counter demonstrations or the possibilth of extremists w ith iolent intentions not
members of the organising association, joining the demonstration cannot as such take away that right. Even if there
is a real risk of a public procession resulting in disorder by developments outside the control of those organising it.”
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OBLIGATIONS ON THE STATE TO PROTECT PEA CEFUL ASSEMBLY
Article 21 of the ICCPR places a positive obligation on the State to protect the right to freedom
of assembly from interference, including that of governments and private parties. This
requirement of horizontal protection on behalf of the State is further recognized by the OAS
Report on Terror/sin and Human Rights. The OAS notes that the protection of the right to
peaceful assembly:
may entail not only the obligation of a state not to interfere with the exercise of
the right of assembly and of association, but in certain circumstances may require
positive measures on the part of the state to secure the effective exercise of the
freedom, for example by protecting participants in a demonstration from physical
violence by individuals who may hold opposite views.' 7
In Apple by and others v. United Kingdom, the ECHR recalled that genuine, effective exercise of
the freedom of assembly “does not depend merely on the State's duty not to interfere, but may
require positive measures of protection, even in the sphere of relations between
While the State is not under an absolute duty to ensure that assemblies proceed peacefully, it
must apply reasonable and appropriate measures to protect assemblies. In Platform ‘Arzte Fur
Das Leben' v. Austria the applicants' group faced extremely disruptive counter-demonstrators
during their march, despite the presence of large contingent of police.' 9 The applicants claimed
that Austria had a duty under article 11 to ensure the march could proceed peacefully. The
ECHR held that positive, reasonable, and appropriate measures are required on behalf of the
State to ensure demonstrations can proceed but an absolute guarantee by the State is not required.
Based on the above case law, even if the forces which dispersed the June assemblies in Iran were
not Government or official forces, Iran had a duty to ensure that the assemblies could proceed
1/ OAS, General Assembi , Report on Terrorism and Human Rights, at para. 359.
iS 4pplehi and othei s L nited kingdom (6 Ma 2003) European Court of Human Rights Application no
44306/98, at para. 39. The applicants alleged that they had been prevented from meeting in tile town centre, a
privately owned shopping centre, to impart infonimtion and ideas about proposed local development plans. The
Court found no violation of Article ii. While government has a duty to protect freedom of expression and assembly
it is not unlimited. This was a privately owned space and the owners were able to den entry to whomever they
chose.
19 Platform ‘Arzte Fur Das Leben ‘v. Austria (1988), European Court of Human Rights, Case No. 5/1987/128/179.
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peacefully. Iran may argue that this duty is not absolute, but in order to show that it acted
lawfully, Iran must prove that it used reasonable and appropriate measures to ensure that the
assemblies could proceed peacefully. The evidence provided by the IHRDC strongly suggests
that this was not the case and that Iran did not act to ensure the demonstrations would proceed
peacefully.
THE CONVERGENCE OF IRANIAN LAW AND INTERNATIONAL LAW
The gatherings in June 2009 were peaceful assemblies and, as such, they should have attracted
the protection of both the Iranian Constitution and the ICCPR. However, Iranian officials
restricted the right to freedom of assembly by suppressing the demonstrations. The only
restrictions on the right to freedom of assembly which are valid in international law are those that
are in conformity with the law, necessary in a democratic society, and in the interest of one of the
grounds provided in article 21 of the ICCPR.
The restriction on the freedom of assembly in June 2009 likely violated international law under
article 21 of the ICCPR. There is a strong argument to be made that the restrictions were not in
conformity with the law. The key argument against Iran is that the restrictions by the State and
the response by state officials to the demonstrations were not reasonable or proportional and
were therefore not necessary in a democratic society. Finally, even assuming the previous
arguments fail, there is evidence to suggest that Iran's action was not consistent with one of the
legitimate aims provided in article 21 of the ICCPR.
RESTRICTIONS MUST BE IN CONFORMITY WITH THE LAW
Any restriction on freedom of assembly must be in conformity with the law according to article
21 of the ICCPR. This is a lower legal threshold to meet than other articles in the ICCPR or
other regional human rights treaties. For example, the European Convention for the Protection
qfH uniaii Rights and Fundamental Freedoms requires that restrictions on the right to peaceful
assembly be ‘prescribed by law.' Actions which are prescribed by law must be authorized
8
through a parliamentary act or equivalent legislation or from norms in jurisprudence in the case
of common law jurisdictions. Actions which are in ‘conformity with the law' can include
legitimate administrative action by the State. 2 °
Iranian legislation, including the Constitution and the Penal Code provide a set of permissible
purposes for restricting the right to assembly. As these restrictions are set out in law, Iran could
claim that it meets the higher threshold of ‘prescribed by law'. However, Iran does not provide
any other conditions or requirements that must be met in order for a restriction to be lawful.
Even taking into account that there is a lower threshold for article 21 of the ICCPR, there is still
an argument to be made that the restriction on freedom of assembly was not in conformity with
the law.
Iran could argue that the assembly organizers did not give sufficient prior notice about the
gathering, as required by law. Whereas a notice period would not normally infringe upon the
right to assembly, it could be argued that the notice period required by Iran is too lengthy,
amounting to a violation of the right to assembly. Further, although Iran could also claim that
the assemblies violated provisions of the Constitution or the Penal Code and that suppressing
them was in conformity with the law, an argument can be made that the legal provisions in the
Iranian Constitution are not sufficiently precise or are overbroad and cannot be used to restrict
the right to peaceful assembly.
Requiren ent of Notice
Requiring prior notice for assemblies does not normally infringe upon the right to freedom of
assembly if the notice period is reasonable. However, Iranian law requires a lengthy notice
period which likely results in a violation of the right to assemble. Iranian legislation provides
that groups wishing to demonstrate must give detailed notice prior to the event and be authorized
to continue. The Regulations for Securing the Public Security and Lawful Marches requires in
article 30 that citizens submit an application to organize a march one week in advance of the
20 UN General Assembi , Annotations on the Text of the Draft International Covenants on Huiiian Rights. UN
Document A/2929, at para. 141.
9
event to the Interior Ministry. 2 ' Further, article 36 states that the application must include the
object, aim, date and time of event, the path and location, details of the organizers, and slogans to
be used.
The issue of requiring notice prior to a demonstration is addressed by the UN Human Rights
Committee and the ECHR. Requiring notice prior to a demonstration does not normally
encroach on the right to freedom of assembly and may be an acceptable restriction if the notice
period is reasonable. In Kivenmaa v. Finland the applicant held a banner and distributed leaflets
at the arrival of a foreign head of state. The applicant was arrested by the Finnish authorities for
holding a public meeting without giving prior notice. The UN Human Rights Committee held
that “a requirement to notify the police of an intended demonstration in a public place six hours
before its commencement may be compatible with the permitted limitations laid down in article
21 of the Covenant.” 22 Similarly, in Rassemblement Jurassien & Unite Jurassienne v.
Switzerland, discussed above, the European Commission held that requiring notice does not
infringe on the right to peaceful assembly. The European Commission stated that the
requirement of “such a procedure is in keeping with the requirements of article 11.1, if only in
order that the authorities may be in a position to ensure the peaceful nature of a meeting, and
accordingly does not as such constitute interference with the exercise of the right.” 23
Even where the requirements of being in conformity with the law and being reasonable are met,
restricting a demonstration based solely on a notice requirement may not be in conformity with
the law. Spontaneous demonstrations which do not threaten enumerated grounds for restricting
freedom of assembly (national security, public order, public morals, etc) should not be
suppressed solely on the basis of lacking prior notice. If the demonstrations in June were
spontaneous and they did not have prior authorization, they likely still required protection by
Iranian officials. In the Eva Molnar v. Hungary, the ECHR reiterated that requiring prior notice
21 Cited in Adineh Abghari, Introduction to the Iranian Legal System and the Protection of Human Rights in Iran
(London: British Institute of International and Comparative Law, 2008).
22 Kivenmaa v. Finland (21 March 1994), Human Rights Committee, Communication No. 412/1990 at para. 9.2.
The Conmiittee found a violation of article 21 because the restriction on the assembly was not in the interests of one
of the legitimate aims provides in article 21.
23 Rassemblement Jurassien & Unite Jurassienne v. Switzerland (1980), European Commission of Human Rights,
17 Decisions & Reports 93 at para. 3.
10
does not normally infringe on the right to peaceful assembly. But the court held that
“spontaneous gatherings must not be put down solely for lacking prior notice or article 11 lacks
substance.” 24
The requirement of notice must be for the protection of the peaceful nature of the assembly and
not to de facto prohibit all assemblies. This requires that the discretion of the official authorizing
or prohibiting an assembly not be used arbitrarily. In H/in at Lal shah v. Conunissioner qf Police,
the appellant's request for permission to hold a public meeting was rejected. He claimed that
requiring permission to hold a public meeting was a violation of his right to freedom of
assembly. 25 The Supreme Court of India held that requiring notice be given in advance of public
meetings is legitimate for the aim of ensuring the rights of others are protected and protecting
public order. The Court also held, however, that a law which confers arbitrary powers on the
authorized officer must be struck down. In addition, the court noted that the requirement of
notice cannot be such as to restrict the right to assembly entirely. Likewise, in Sa ‘ar Ac/v et al v.
Minister qf the Interior and qf the Police, 26 the Supreme Court of Israel also held that an
unfettered discretion to control the right of assembly is incompatible with the right.
While restricting the right to assembly for lack of prior notice may be in conformity with the law,
in the case of the events in Iran in June 2009, it can be argued that the notice period required was
too lengthy a requirement. The time period required by Iranian legislation prior to an assembly
is one week, considerably longer than the six hour timeframe considered acceptable by the
Human Rights Committee. 27
24 Eva Molnar v. Hungary (7 January 2009), European Court of Human Rights, Application no. 10346/05, at para.
37. The applicant alleged that tile dispersal of the demonstration in which she had participated because of a mere
lack of prior notification to the police had infringed her freedom of peaceful assembly, within the meaning of
Article ii of the Convention. The court found no violation of article ii because although the freedom of assembly
was infringed it was done so with a legitimate aim of preventing disorder and protecting the rights of others.
Hiinat Lal shah v. Commissioner ofPohce, Supreme Court of India, (1973) 1 SCC 227.
—( Sa ai 4di et al Iinistei of the Intei 10/ and of the Police Supreme Court of Ismel 34(2) Piskei Dm 169
excerpted in (1982) 12 Israeli Yeathook on Human Rights 296 cited in Nihal Jayawickrama, The Judicial
Application of Human Rights Law: National, Regional and International jurisprudence (Cambridge: Cambridge
University Press, 2002).
2/ Kivenmaa v. Finland (21 March 1994), Human Rights Committee, Communication No. 412/1990 at para. 9.2.
In Conformity with the Constitution or Penal Code
Just as requiring notice prior to an assembly may be a requirement which is in conformity with
the law, if a ban on an assembly is authorized by legislation then the ban is likely in conformity
with the law. In Ivanov and others v. Bulgaria, the ECHR held that a ban “imposed in
accordance with the procedure laid down in the Meetings and Marches Act” was “prescribed by
law.” 28 In June, the Iranian government refused the application of several leaders for peaceful
demonstrations and then cancelled several important religious and official days that had been
traditionally used for demonstrations. 29 Iran could argue that these restrictions were in
conformity with the law and therefore lawful under article 21. However, to be valid, laws must
be sufficiently clear and precise. It can be argued that the provisions in the Constitution and the
Penal Code are not sufficiently precise to restrict assemblies on that basis.
Iran could argue that the restrictions were in conformity with article 27 of the Constitution,
which states that no citizen may exert the right to freedom of assembly in a manner detrimental
to the fundamental principles of Islam. However, the phrase ‘detrimental to the fundamental
principles of Islam' is probably not sufficiently precise for officials to restrict an assembly based
on this criterion. Jurisprudence from the ECHR notes that citizens must be able to foresee what
conduct is appropriate when examining legislation or else the rule cannot be regarded as ‘law'.
In Djavit An v. Turkey, the ECHR stated that:
one of the requirements flowing from the expression “prescribed by law” is the
foreseeability of the measure concerned. A rule cannot be regarded as “law”
unless it is formulated with sufficient precision to enable the citizen to regulate
his conduct: he must be able — if need be with appropriate advice — to foresee, to
a degree that is reasonable in the circumstances, the consequences which a given
action may entail. 3 °
While the issue of foreseeability in Djavit An v. Turkey is discussed in the context of the terms
‘prescribed by law', a similar argument can be made that foreseeability is required for
Government action to be in ‘conformity with the law'. The phrase ‘detrimental to the
28 lvanov and others v. Bulgaria (24 November 2005), European Court of Human Rights, Application no. 46336/99,
atpara. 62.
29 provided by the IHRDC.
30 DjavitAn v. Turkey (9 July 2003), European Court of Human Rights, Application no. 20652/92, at para. 65.
12
fundamental principles of Islam' is likely not sufficiently precise for citizens to foresee what
action is prohibited by the law, even taking into account legitimate ‘administrative action' which
is permissible under the lower standard of in ‘conformity with the law'.
The notion that ‘detrimental to the fundamental principles of Islam' is not sufficiently precise to
be in conformity with the law has been addressed by the UN Committee on the Rights of the
Child (“CRC”). In its Concluding Observations, the CRC called on Iran to “establish clear
criteria to assess whether a given action or expression is in accordance with interpretations of
Islamic texts”. 3 ' Further, the Human Rights Committee has stated that States Parties to the
ICCPR must have “clear standards protecting the right of individuals to engage in peaceful
assembly”. 32
Alternatively, Iran could argue that the restrictions on the assemblies were in conformity with
other laws. For example, if the assemblies were injurious to the rights of others or the public
interest, Iran could argue that action against the assemblies was in conformity with the law in
article 40 of the Constitution. Additionally, article 9 of the Constitution provides that citizens
must not exercise any right in a manner which infringes the political, cultural, economic, and
military independence or the territorial integrity of Iran. If the assemblies in June infringed upon
any of these factors, Iran could argue that the restriction on the right to assemble was in
conformity with the law under article 9. Likewise, the Iranian Penal Code prevents offences
against public morals and civil unrest 33 and suppressing assemblies contrary to these provisions
31 UN Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child:
Iran (Islamic Republic of), 28 June 2000, CRC/C/15/ADD.123(CRC,2000), online:
< http://www.unhchr.chltbs/doc.nsf/(Symbol)/CRC.C. 15 . Add. 123 . En?OpenDocument > at para. 34. While the Ahzab
Act further outlines who will determine what is contrary to the fundamental principles of Islam, the finding by the
UN Committee on the Rights of the Child illustrates that this act does not provide enough detail for the phrase to be
sufficiently precise.
32 Human Rights Committee, Concluding Observations of the Human Rights Committee: Ukraine, 28 November
2006, CCPRIC/UKRICO/6, online:
< http://www.universalhumanrightsindex.org/documents/82 5/996/documentIenIpdf/text.pdf5 at para. 15. “During
the 2004 elections, students participating in a peaceful protest march to Kiev were arrested and detained en masse.
(art. 21) The State party should ensure that there are clear standards protecting the right of individuals to engage in
peaceful assembly and to exercise the right of free expression.”
‘ Iran Penal Code, approved by the Islamic Consultancy Parliament on 30 July 1991 and ratified by the High
Expediency Council on 28 November 1991, Book 5: Chapter 18: Offenses against Public Moral, online:
< http://mehr.org/Islamic Penal Code of Imn.pdf5
13
could be argued to be in conformity with the law. If Iran did assert such an argument, it could be
argued in response that the provisions in question are not sufficiently clear or precise to meet the
‘conformity with the law' requirement. However, this argument is weaker than that against the
phrase ‘detrimental to the fundamental principles of Islam'.
The Human Rights Committee has also suggested that legislation must not be overbroad. It
could be argued that the legal provisions on which Iran may rely are overbroad and therefore
unlawful. In its concluding observations of the Republic of Korea, the Committee noted that:
the prohibition of all assemblies on major roads in the capital would appear to be
overbroad. While some restrictions on assemblies on main roads in the interests of
public order are permissible, article 21 of the Covenant requires that all such
restrictions be in conformity with the law and be necessary in a democratic
society. The absolute restrictions on the right to hold assemblies on main roads
imposed by the State party do not meet these standards. 34
The provision that freedom of assembly not be exercised in a manner ‘detrimental to the
fundamental principles of Islam' could be considered overbroad such that it amounts to a de
facto ban on all assemblies. However, this argument is not as strong as the argument suggesting
that the phrase is not sufficiently precise.
As the arguments that the restriction on the right to freedom of assembly by Iran was not in
conformity with the law under article 21 of the ICCPR vary in strength, I will consider whether
Article 637 — Any man and woman who are not married and who commit a crime against public morality, excluding
adultery, should be sentenced to flogging (99 lashes). If one of them did not consent to tile crime, then only the one
who initiated the crime should be punished.
Article 638- Anyone who explicitly violates any religious taboo in public besides being punished for the act should
also be imprisoned from ten days to two months, or should be flogged (74 lashes). Note- women who appear in
public without a proper h /ab should be imprisoned from ten days to two months or pay a fine of 50,000 to 500,000
R yal.
Article 639 — The following people should be imprisoned from one to ten years, and in the case of category (a) the
property should be confiscated according to decision of the court.
a) anyone who manages a property where activities against public moral take place
b) anyone who encourages people to violate public moraL
Article 640 — The following people should be imprisoned from three months to one year and pay a fine of 1,500,000
to 6,000,000, and also be flogged up to 74 lashes, or any of these punishments.
c) anyone who publicizes any picture, text, photo, drawing, article, newsletter, newspaper, movie, or any other thing
that violates public morals
d) anyone who is included in the circulation of the above items
See also: Book 5, Chapter 1: Crimes against National Securit Book 2, Part 7: Punishment for Civil Unrest.
UN Human Rights Committee Concluding Oh seii ation s of the Huiiian Rights Committee Repuhlic of koi ea 1
November 1999, CCPRIC/79/Add. 114, online: < http://www.unhcr.org/refworld/docid/3ae6b0190.html > at para. 18.
14
the restrictions were necessary in a democratic society and whether they were for a legitimate
aim of article 21.
RESTRICTIONS MUST BE NECESSAR YIN A DEMO CRA TIC SOCIETY
Assuming that Iran is able to show that the restriction on the right to assembly was in conformity
with the law, it must prove that the restrictions were necessary in a democratic society to be
lawful in international law. International jurisprudence indicates that a response which is
necessary in a democratic society is proportional to the legitimate aim to be achieved. There is
evidence that the Iranian Government or Iranian officials attacked demonstrators with batons,
tear gas, rubber bullets and regular bullets which ultimately lead to the deaths of a number of
citizens. 35 In addition, large numbers of demonstrators were arrested and held for days without
access to lawyers or any other legal protections which lead to various abuses. Restrictions which
infringe the right of peaceful assembly must be proportional and reasonable. The type of
restriction on the right and the intensity of interference must be absolutely necessary to attain the
purpose (for example, defending national security).
While States are given a wide margin to prove that the means to restrict freedom of assembly are
necessary, there are limits to the flexibility. In Rassemblement Jurassien & Unite Jurassienne v.
Switzerland, discussed above, the European Commission held that:
it is primarily up to the national authorities to judge whether there is really an
imperative social requirement, as implied by the concept of “necessity'... . [ T]he
Convention allows the contracting states a margin of appreciation in applying
the measures restricting the exercise of a guaranteed right such as the right of
peaceful assembly. However, this margin is fairly broad once the authority.. is
confronted with a foreseeable danger affecting public safety and order and must
decide, often at short notice, what means to employ to prevent it. 36
However, States must provide clear, sufficient reasons to justify the infringement. States cannot
impose an outright ban on assemblies unless there are no other means to achieve the aim.
Additionally, where demonstrators are not involved in violence there is a degree of tolerance
Fact provided by the IHRDC.
36 Rassemblement Jurassien & Unite Jurassienne v. Switzerland (1980), European Commission on Human Rights,
17 Decisions & Reports 93 at para. 9.
15
required by the State. In Ollinger v. Austria, the ECHR reiterated that States have a margin of
appreciation for assessing whether a need exists to restrict an assembly. The Court noted,
however, that in deciding whether a restriction was valid under the Convention it will consider
“whether it was proportionate to that aim and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient.” 37 Similarly, the OAS Report on Terror/sin
and Human Rights calls for proportional and reasonable restrictions. States cannot ban
“participation in certain groups, absent evidence that clearly raised a threat to public safety or
security sufficient to justify an extreme measure of this nature”. 38 In addition, the ECHR held in
Nurettin Aldemnir and others v. Turkey that if demonstrators are not engaged in violence, then
authorities must show some tolerance towards the gathering. 39 Finally, in Denmark et al v.
Greece the European Commission held that restrictions on peaceful assembly which are
necessary in a democratic society cannot include an outright ban unless there is no other means
of protecting public order. 4 °
Ollingei 4 usti ia (29 September 2006) European Court of Human Rights Application no 76900/01 at para
33. A member of parliament for tile Green Party, notified the Salzburg Federal Police Authority
Bundespolizeithi eAtion) under section 2 of the Assembh Act (1 ei saininlungsgesetz) that on All Saints Da 1
November 1998, from 9 am, until 1 p.m., he would be holding a meeting at the Salzburg municipal cemetery in
front of the war memorial to commemorate Jews killed in Salzburg. Another group wished to commemorate the S S
killed in WW2. The applicants meeting was denied authorisation.
OAS General Assembh Repoi t on Tei / oiism and Huiiian Rights at pam 363 In the context of these rules and
principles, the Commission considers it important to emphasize that measures to prevent and punish terrorism must
be carefully tailored to recognize and guarantee due respect for these rights. This would generally prohibit states
from, for example, banning participation in certain groups, absent evidence that clearly raised a threat to public
safety or security sufficient to justify an extreme measure of this nature. These protections similarly require states to
ensure that laws or methods of investigation and prosecution are not purposefully designed or implemented in a way
that distinguishes to their detriment members of a group based upon a prohibited ground of discrimination, such as
religious beliefs, and to guarantee that methods of this nature are closely monitored and controlled to ensure against
human rights infringements.”
iii ettin 4ldeiiiii and othei s Titi ,kei (2 June 2008) European Court of Human Rights Applications nos
2124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02 at paras. 46-47. Trade union members
were protesting a bill to amend the trade union act. Demonstration was peaceful but authorities intervened quickly
which caused clashes. The Court found a violation of Article ii. “46. Where demonstrators do not engage in acts
of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article ii of the Convention is not to be deprived of all
substance.” “47. Accordingly, the Court considers that in the instant case the forceful intervention of the police
officers was disproportionate and was not necessary for the prevention of disorder within the meaning of the second
paragraph of Article 11 of the Convention.”
Deninai A et al Gi eece (The Greek Case) (1976) European Commission on Human Rights 12 Yearbook at
paras. 392-396.
16
Iran has been called on by the CRC in the past to develop appropriate and proportionate means to
protect public morals while safeguarding the right of every child to freedom of expression and
assembly. 4 ' The evidence gathered by the IHRDC reveals that this has not been achieved as the
response by the Iranian government and police following the June 12 elections was not
proportional to any aim to be achieved (e.g. protecting national security or public safety).
RESTRICTIONS MUST HAVE A LEGITIMATE AIM
Even if it were assumed that Iran is able to show that the restrictions on the assemblies were in
conformity with the law and necessary in a democratic society, it must still show that the aim of
restricting the assemblies was in the interest of one of the categories listed in article 21 of the
ICCPR. Specifically, any restrictions must be in the interest of protecting national security,
public safety, public order (ordre public), public health, public morals, or the rights and freedoms
of others. Given international law requirements, if Iran claims that the demonstrations were
contrary to the fundamental principles of Islam, it must show that the ‘fundamental principles of
Islam ' is a restriction which falls into one of the six categories above. This is also true for any
restrictions on the bases of article 9 and 40 of the Iranian Constitution or the Penal Code.
National Security
Iran may argue that the assemblies violated the independence and territorial integrity of Iran
contrary to article 9 of the Constitution. Under international law, freedom of assembly may be
restricted in the interests of national security. However, the precise nature of the threat to
national security must be clearly outlined by the State. In Tae Hoon Park v. Republic of Korea,
the applicant was arrested under the National Security Law of the Republic of Korea for
participating in an organization and demonstrations in the United States which were critical of
the US involvement in South Korea and which called for unity between North and South Korea.
Korea argued that the restriction of the right to assembly was justified to protect national
41 UN Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child:
Iran (Islamic Republic of), 28 June 2000, CRC/C/15/ADD.123(CRC,2000), online:
< http://www.unhchr.chltbs/doc.nsf/(Symbol)/CRC.C. 15 . Add. 123 . En?OpenDocument > at para. 34.
17
security. The Human Rights Committee found a violation of article 19 under the ICCPR because
South Korea did not “specify the precise nature of the threat which it contends that the author's
exercise of freedom of expression posed.” 42
It is unlikely that Iran specified the nature of any threat to national security posed by the
demonstrations held in June 2009. If this is the case, it cannot claim that it had the legitimate
aim of protecting national security under article 21 of the ICCPR. Additionally, article 9 of the
Constitution also provides that “no authority has the right to abrogate legitimate freedoms, not
even by enacting laws and regulations for that purpose, under the pretext of preserving the
independence and territorial integrity of the country.” This suggests that Iran will face obstacles
within its own constitution in trying to justify the suppression of the assemblies on the basis of
national security.
Public Safety and Public Order
Iran may argue that the assemblies posed a threat to public safety or order. However, States
must give relevant and substantiated evidence that there is a real risk to public order or safety. A
hypothetical risk to the safety of the public is not grounds for an outright ban on assemblies. In
the case of Stankov and the United Macedon/an Organ/sat/on Iii iiden v. Bulgaria, the applicants
were a political organization in southern Bulgaria. The group held meetings for the purpose of
gaining recognition of the Macedonian minority in Bulgaria. The police claimed there was fierce
anti-Bulgarian sentiment within these meetings and there was evidence that the organization had
previously taken part in violent clashes. Over a period of several years the group tried to get
authorization for further meetings. This authorization was routinely denied and followed by
mayoral bans on any assemblies on the grounds of a threat to public safety and order. The
ECHR found a violation of article 11. It held that “the decisions of the mayors and the local
courts referred only to a hypothetical danger for public order, without providing further details.
42 Tae Hoon Park v. Republic of Korea (20 October 1998), UN Human Rights Committee, Communication
628/1995, at para. 10.3.
18
The risk of minor incidents thus did not call for a ban on Ilinden's meetings.” 43 In another case
based on a similar factual situation, Ivanov and others v. Bulgaria, the ECHR reiterated that “the
Court must scrutinize the reasons given by the national authorities” for restricting assemblies.
Further, the Court noted that the bans did not state the basis for the conclusion that there was a
threat to public order. That Court stated that:
even assuming that the legitimate aims pursued were public safety and the
prevention of disorder, it can hardly be concluded that the authorities gave
relevant and sufficient reasons justifying the prohibitions of the rallies,
substantiating their finding that there was a risk to public order, and that the bans
were thus necessary in a democratic society. It should also be noted that in their
observations the Government did not specify any particular reasons to justify the
bans, but merely stated that the authorities had acted in conformity with national
law and that their actions had not been arbitrary. 44
Similarly, the Supreme Court of Israel held in Sa ‘ar Ac/v et al v. Minister qf the Interior and qf
the Police, that to lawfully deny the right to freedom of assembly, police must prove a real and
immediate danger of disturbance of public order. 4
Speeches and messages containing the words “struggle” and “liberation” do not necessarily
promote disorder. In Stankov and the United Iviacedonian Organisation Ilinden v. Bulgaria,
discussed above, the ECHR cited a previous case and noted that “the mere fact that a message
read out at a commemorative ceremony to a group of people... contained words such as
“resistance”, “struggle” and “liberation” did not necessarily mean that it constituted an
incitement to violence, armed resistance or an uprising”. 46
Consequently, the threshold for restricting the right to assemble in order to protect public safety
and order is high. It requires substantiated and clear evidence which, it can be argued, Iranian
officials have failed to establish in relation to suppressing the assemblies of June 2009.
Stankov and the L iited Macedonian Organisation Ilinden v. Bulgaria (2 January 2002), European Court of
Human Rights, Applications nos. 29221/95 and 29225/95, at para. 94.
aiim and othei s Btilgai ia (24 No/ ember 200 ) European Court of Human Rights Application no 46336/99
atpara. 63.
Sa ai 4di et al Iinistei of the Intei 10/ and of the Police Supreme Court of Israel 34(2) Piskei Dm 169
excerpted in (1982) 12 Israeli Yearbook on Human Rights 296.
Stan/ tm and the L nited Iacedoman Oiganisation Ilinden Bulgai ia (2 Januan 2002) European Court of
Human Rights, Applications nos. 29221/95 and 29225/95, at para. 102.
19
The Protection of Public Morals
Freedom of assembly may be restricted to protect public morals. The Iranian Government could
claim that restricting the assemblies in June 2009 on the basis of the fundamental principles of
Islam was for the legitimate aim of protecting public morals. It could further claim that the
assemblies violated the Penal Code provision criminalizing offences against public morals.
In international law, what constitutes ‘public morals' is broad and the UN Human Rights
Committee states that a margin of discretion must be given to national authorities when assessing
whether or not behaviour contravenes public morals. However, the Committee has also held that
determining what violates public morals cannot be a solely domestic question. In Hertzburg v.
Finland, the Finnish Broadcasting Corporation, of which Finland owned a 90% stake, prevented
several people from producing or airing television programs discussing or portraying
homosexuality. The applicants argued that their rights under article 19 on freedom of expression
had been violated. Finland claimed they had a right to restrict freedom of expression for the
protection of public morals. The Human Rights Committee found no violation of article 19(2)
primarily because “public morals differ widely. There is no universally applicable common
standard. Consequently, in this respect, a certain margin of discretion must be accorded to the
responsible national authorities.” 4 This case would lend support to Iran if it were to claim the
messages or actions of the assemblies were contrary to public morals. However, in another case,
Tooiien v. Australia, the Human Rights Committee held that it could not accept that “moral
issues are exclusively a matter of domestic concern, as this would open the door to withdrawing
from the Committee's scrutiny a potentially large number of statutes interfering with privacy.”
‘ Hei tzhuig Finland (1982) UN Human Rights Committee Commurncation No 61/1979 CCPRIC/1 /D/61/1979
atpara. 10.3.
48 Tooiien v. Australia (4 April 1994), UN Human Rights Committee, Communication No. 488/1992,
CCPR/C/50/D/488/1992, at para. 8.6. Toonen claimed that tile Tasmanian state law criminalizing private
homosexual acts violated his right to privacy under Article 17 of the ICCPR. There were differing views of the
State Part and Tasmania on the justifications of Article 17. Tasmania claimed that the interference with privacy
was justified on the grounds of protecting public health and public morals. The Human Rights Committee disagrees
and found Toonen' s rights under article 17 had been violated and that Tasmania should repeal the law.
20
Iran could claim that the assemblies in June 2009 were restricted in order to protect public
morals. It could be argued that, because what constitutes public morals in not a solely domestic
question, substantiated and clear evidence is required to show that given behaviour violates
public morals. If Iran does not produce this kind of clear evidence, then the June 2009 restriction
on the right to peaceful assembly was not valid under international law. Admittedly, this
argument is the weakest of those positing that Iran did not restrict freedom of assembly in
accordance with a legitimate aim provided in article 21 of the ICCPR. That said, if it could be
shown that the restrictions were not in conformity with the law or necessary in a democratic
society, then this argument is not necessary.
The Protection of the Rights and Freedon,s of Others
Governments must strike a balance between protecting the right of citizens to assemble
peacefully and protecting the rights of others. The rights of others, which could come in conflict
with the right to assemble, include the right to counter-demonstrate or the right to movement.
Iran may argue that the suppression of the assemblies in June 2009 was for the protection of the
rights of other citizens. This could be supported by article 40 of the Iranian Constitution which
states that no citizen may exercise his rights in a manner injurious to others. However, this aim
usually requires a balancing of rights and an outright ban on assemblies would be legitimate in
very few situations.
For example, an outright ban of assemblies of one group to protect the right to assemble of
another is not usually a valid restriction. In 0/linger v. Austria, the applicant notified the
Salzburg Federal Police Authority under section 2 of the Assembly Act that on All Saints' Day
he would be holding a meeting at the Salzburg municipal cemetery in front of the war memorial
in order to commemorate Jews killed in Salzburg. Another group had previously applied to
commemorate the Schutzstaffel (colloquially, the “SS”) killed in World War Two by assembling
on the same day in a similar location. The applicant's meeting was denied authorization. The
Court held that “the unconditional prohibition of a counter-demonstration is a very far-reaching
21
measure which would require particular justification, all the more so as the applicant wished... to
express an opinion on an issue of public interest” 49 .
Similarly, the freedom of movement of others cannot restrict the right to assembly in its entirety.
In Sa ‘ar Adv et a/v. Minister qf the Interior and qf the Po/ice, ° the Supreme Court of Israel held
that a balance must be found between the rights of those wishing to demonstrate and the right to
freedom of passage. The Court held that some inconvenience to residents of a city must be
expected in order to uphold the right to freedom of assembly. While restrictions may be placed
on an assembly to reduce this inconvenience, assemblies may not be banned outright in order to
protect the rights of other to movement.
CONCLUSION
Peaceful assemblies were suppressed by the Iranian Government and officials in June 2009.
Domestically, Iran may be able to justify this restriction on freedom of assembly through
provisions in its Constitution on the grounds that the assemblies were detrimental to the
fundamental principles of Islam, the public interest, the right of others or the independence and
integrity of Iran. However, as a party to the ICCPR, Iran may only restrict the right to freedom
of assembly in a manner which is in conformity with the law, necessary in a democratic society
and for the aim of protecting national security, public safety or public order (ordre pub/ic),
public health, public morals, or the rights and freedoms of others. It is unlikely that Iran will be
able to prove that the restriction on the right to freedom of assembly was pursuant to one of the
delineated aims of the ICCPR. However, even if it were able to do so, it is not probable that Iran
would be able to show that the restriction of freedom of assembly was proportional to that aim
and, therefore, necessary in a democratic society. As such, based on the given facts, there is a
strong argument that Iran violated international law under article 21 of the ICCPR when it
suppressed the demonstrations and assemblies held in June 2009.
0/linger v. Austria (29 September 2006), European Court of Human Rights, Application No. 76900/01 at para. 44.
Sa ai 4di et al Iinistei of the Intei 10/ and of the Police Supreme Court of Israel 34(2) Piskei Dm 169
excerpted in (1982) 12 Israeli Yeathook on Human Rights 296 cited in Nihal Jayawickrama, The Judicial
Application of Huiiian Rights Law: National, Regional and International jurisprudence (Cambridge: Cambridge
University Press, 2002).
22
