31/66 Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies / RightDocs

Original HRC document

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Document Type: Final Report

Date: 2016 Feb

Session: 31st Regular Session (2016 Feb)

Agenda Item:

Human Rights Council Thirty-first session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the joint

report of the Special Rapporteur on the rights to freedom of peaceful assembly and of

association, Maina Kiai, and the Special Rapporteur on extrajudicial, summary or arbitrary

executions, Christof Heyns. In the report, submitted to the Council pursuant to its resolution

25/38, the special rapporteurs present a compilation of practical recommendations for the

proper management of assemblies. In each section of the compilation the special

rapporteurs provide a summary of applicable international legal standards, followed by

practical recommendations on how those principles might be implemented, with the aim of

ensuring better protection of the various rights of those engaged in assemblies.

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. The proper management of assemblies ............................................................................................ 3

A. States shall respect and ensure all rights of persons participating in assemblies ..................... 5

B. Every person has the inalienable right to take part in peaceful assemblies ............................. 6

C. Any restrictions imposed on peaceful assemblies shall comply

with international human rights standards ............................................................................... 8

D. States shall facilitate the exercise of the right of peaceful assembly ....................................... 10

E. Force shall not be used unless it is strictly unavoidable, and if applied

it must be done in accordance with international human rights law ........................................ 12

F. Every person shall enjoy the right to observe, monitor and record assemblies ....................... 16

G. The collection of personal information in relation to an assembly must

not interfere impermissibly with privacy or other rights ......................................................... 17

H. Every person has the right to access information related to assemblies .................................. 18

I. Business enterprises have a responsibility to respect human rights

in the context of assemblies ..................................................................................................... 19

J. The State and its organs shall be held accountable for their actions

in relation to assemblies ........................................................................................................... 20

III. Conclusion ....................................................................................................................................... 22

I. Introduction

1. Assemblies in various forms play a prominent role in the world today, presenting

new opportunities and challenges. A clear understanding of the applicable international

human rights law and standards, and of the lessons learned in the management of

assemblies over time, can help to protect the legitimate interests of everyone involved —

assembly participants, bystanders, monitors and authorities.

2. The Human Rights Council has dedicated increasing attention to the promotion and

protection of human rights in the context of assemblies.1 In March 2014, it adopted

resolution 25/38, in which it requested the Special Rapporteur on the rights to freedom of

peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary

or arbitrary executions to prepare a compilation of practical recommendations for the

proper management of assemblies.2

3. In developing those recommendations, the special rapporteurs consulted extensively

with relevant stakeholders, as requested by the Council, via questionnaire and participatory

consultation. The special rapporteurs held four consultations with State representatives,3

and four regional consultations with civil society, national human rights institutions,

regional human rights mechanisms and policing and other experts.4 A nine-member

advisory panel was convened and has provided feedback to the special rapporteurs at

various stages of the process.5

4. This compilation is aimed at providing guidance on how applicable international

human rights standards may be operationalized in domestic law and practice to ensure

greater protection of the rights involved. The recommendations are organized around 10

overarching principles, and in each section are preceded by a summary of applicable

international standards. The recommendations have been developed with reference to

global experience and lessons learned.

II. The proper management of assemblies

5. The ability to assemble and act collectively is vital to democratic, economic, social

and personal development, to the expression of ideas and to fostering engaged citizenry.

Assemblies can make a positive contribution to the development of democratic systems

and, alongside elections, play a fundamental role in public participation, holding

governments accountable and expressing the will of the people as part of the democratic

processes.

1 See A/HRC/19/40, A/HRC/22/28, and A/HRC/25/32 and Corr.1.

2 The assistance of Eleanor Jenkin and Kathleen Hardy in writing this report is acknowledged with

gratitude.

3 The first meeting was held in Geneva in June 2015. As a result of a request made by States during

that meeting, regional consultations were held for States from Africa and the Middle East (Pretoria)

and the Asia and Pacific region (Istanbul, Turkey). A final consultation for all States was convened in

Geneva in October 2015, which 54 States attended.

4 These consultations took place in Santiago (Americas and the Caribbean), Pretoria (Africa and

Middle East), Istanbul, Turkey (Asia and the Pacific) and Geneva (Europe and Central Asia). More

than 90 experts participated in the consultations.

5 The members of the advisory panel are: Otto Adang; Stuart Casey-Maslen; Gastón Chillier; Anara

Ibraeva; Asma Jahangir; Neil Jarman; Nicholas Opiyo; Ambiga Sreenevasan; and Jürg Wichtermann.

6. Assemblies are also an instrument through which other social, economic, political,

civil and cultural rights can be expressed, meaning they play a critical role in protecting and

promoting a broad range of human rights. They can be instrumental in amplifying the

voices of people who are marginalized or who present an alternative narrative to established

political and economic interests. Assemblies present ways to engage not only with the

State, but also with others who wield power in society, including corporations, religious,

educational and cultural institutions, and with public opinion in general.

7. The full and free exercise of the right to freedom of peaceful assembly is possible

only where an enabling and safe environment for the general public, including for civil

society and human rights defenders, exists and where access to spaces for public

participation is not excessively or unreasonably restricted. Barriers to forming and

operating associations, weak protection from reprisals for those exercising and defending

human rights, excessive and disproportionate punishments for violations of the law, and

unreasonable restrictions on the use of public spaces all negatively affect the right to

freedom of peaceful assembly.

8. The proper management of assemblies requires the protection and enjoyment of a

broad range of rights by all the parties involved. Those who take part in assemblies have a

number of protected rights, including the rights to: freedom of peaceful assembly,

expression, association and belief; participation in the conduct of public affairs; bodily

integrity, which includes the rights to security, to be free from cruel, inhuman or degrading

treatment or punishment, and to life; dignity; privacy; and an effective remedy for all

human rights violations.

9. Even if participants in an assembly are not peaceful and as a result forfeit their right

to peaceful assembly, they retain all the other rights, subject to the normal limitations. No

assembly should thus be considered unprotected.

10. An “assembly”, generally understood, is an intentional and temporary gathering in a

private or public space for a specific purpose, and can take the form of demonstrations,

meetings, strikes, processions, rallies or sit-ins with the purpose of voicing grievances and

aspirations or facilitating celebrations (see A/HRC/20/27, para. 24). Even sporting events,

music concerts and other such gatherings can potentially be included. While an assembly is

defined as a temporary gathering, this may include long-term demonstrations, including

extended sit-ins and “occupy”-style manifestations. Although an assembly has generally

been understood as a physical gathering of people, it has been recognized that human rights

protections, including for freedom of assembly, may apply to analogous interactions taking

place online.

11. The focus of the recommendations is on assemblies that express a common position,

grievance, aspiration or identity and that diverge from mainstream positions or challenge

established political, social, cultural or economic interests. In adopting this approach, the

special rapporteurs have been guided by the language used in Human Rights Council

resolution 25/38, in which the Council refers specifically to the promotion and protection of

human rights in the context of peaceful protests. It should be noted, however, that none of

the rights enjoyed by the participants of an assembly are in any way contingent upon the

political, or other, content of that assembly’s expression.

12. In the resolution the Council requests the special rapporteurs to focus on assemblies,

and does not confine those to peaceful assemblies. As a result, both peaceful and non-

peaceful assemblies are covered in the present report.

13. States have an obligation not only to refrain from violating the rights of individuals

involved in an assembly, but to ensure the rights of those who participate or are affected by

them, and to facilitate an enabling environment. The management of assemblies thus

encompasses facilitation and enablement, and is interpreted in this broad manner

throughout the following recommendations.

A. States shall respect and ensure all rights of persons participating

in assemblies

14. International law requires that States respect and ensure the rights of all individuals.

The obligation to respect rights means that States must refrain from restricting the exercise

of the rights where it is not expressly allowed under international law. The obligation to

ensure is a positive duty that requires States both to fulfil and to protect rights.6 The

protection of rights requires that positive measures be taken to prevent actions by non-State

actors that could interfere with their exercise. The fulfilment of rights requires States to

create, facilitate or provide the necessary conditions for the enjoyment of rights.

15. States must respect and ensure rights without discrimination on the basis of any

prohibited ground, including race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth, or other status. Freedom to organize and

participate in public assemblies must be guaranteed to individuals, groups, unregistered

associations, legal entities and corporate bodies.7

16. Particular effort should be made to ensure equal and effective protection of the rights

of groups or individuals who have historically experienced discrimination. This includes

women, children and young people, persons with disabilities, non-nationals (including

asylum seekers and refugees), members of ethnic and religious minorities, displaced

persons, persons with albinism, indigenous peoples and individuals who have been

discriminated against on the basis of their sexual orientation or gender identity

(A/HRC/26/29). This duty may require that authorities take additional measures to protect

and facilitate the exercise of the right to freedom of assembly by such groups.

17. Practical recommendations:

(a) States should ratify relevant international treaties and should establish

in law a positive presumption in favour of peaceful assembly. They should provide

legal protection for the different rights that protect those engaged in assemblies and

enact and continuously update the laws, policies and processes necessary to implement

these rights. No assembly should be treated as an unprotected assembly;

(b) States should ensure that all laws relating to the management of

assemblies are drafted unambiguously and are consistent with each other and with

international standards. Where ambiguity exists, the relevant provision(s) should be

interpreted in favour of those wishing to exercise their right to freedom of peaceful

assembly;

the implementation of the present practical recommendations and the international

standards relevant to the management of assemblies, and should seek technical

assistance from the Office of the United Nations High Commissioner for Human

Rights or other specialized agencies where appropriate;

6 European Court of Human Rights, Plattform Ärtze für das Leben v. Austria, application No.

10126/82, 21 June 1988.

7 See Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security

and Cooperation in Europe (OSCE), Guidelines on Freedom of Peaceful Assembly (2010), para. 2.5.

(d) States should provide the necessary support to, and sufficient oversight

of, the authorities involved in the management of assemblies, at all levels of

government. This includes sufficient training and necessary financial and human

resources;

(e) Political and other leaders should publicly recognize that there is room

for differences of opinion and promote a culture of tolerance.

B. Every person has the inalienable right to take part in peaceful

assemblies

18. Because international law recognizes an inalienable right to take part in peaceful

assemblies, it follows that there is a presumption in favour of holding peaceful assemblies.

Assemblies should be presumed lawful, subject to the permissible limitations set out in

article 21 of the International Covenant on Civil and Political Rights.8 The protection of the

right to freedom of peaceful assembly extends only to those assemblies that are peaceful. In

determining whether an assembly is protected under this right, the peacefulness of an

assembly should be presumed,9 and a broad interpretation of the term “peaceful” should be

afforded.10 Regard must be given to the manner in which the assembly is held and to the

intentions of the participants.

19. The right to freedom of peaceful assembly includes the right to plan, organize,

promote and advertise an assembly in any lawful manner. Any restrictions on such

activities should be considered as a prior restriction on the exercise of the right. Restrictions

on freedom of association and of expression may also effectively serve as a restriction on

freedom of peaceful assembly.

20. The right to freedom of peaceful assembly is held by each individual participating in

an assembly. Acts of sporadic violence or offences by some should not be attributed to

others whose intentions and behaviour remain peaceful in nature.11

21. Freedom of peaceful assembly is a right and not a privilege and as such its exercise

should not be subject to prior authorization by the authorities. State authorities may put in

place a system of prior notification, where the objective is to allow State authorities an

opportunity to facilitate the exercise of the right, to take measures to protect public safety

and/or public order and to protect the rights and freedoms of others. Any notification

procedure should not function as a de facto request for authorization or as a basis for

content-based regulation. Notification should not be expected for assemblies that do not

require prior preparation by State authorities, such as those where only a small number of

participants is expected, or where the impact on the public is expected to be minimal.

22. Any notification procedure(s) should not be overly bureaucratic, and should be

subject to a proportionality assessment.12 The notice period should not be unreasonably

long, but must allow sufficient time for relevant authorities to prepare appropriately for the

assembly. The notification procedure should be free of charge (see A/HRC/23/39, para. 57)

and widely accessible.

8 See A/HRC/23/39, para. 50, and OSCE, Guidelines, para. 30.

9 See A/HRC/20/27, para. 26, and A/HRC/23/39, para. 50.

10 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein,

Engel, 2005), p. 487.

11 European Court of Human Rights, Ziliberberg v. Moldova, application No. 61821/00, 4 May 2004.

12 See A/HRC/20/27, para. 28, and Inter-American Commission on Human Rights, Second Report on

the Situation of Human Rights Defenders in the Americas (2011), para. 137.

23. Failure to notify authorities of an assembly does not render an assembly unlawful,

and consequently should not be used as a basis for dispersing the assembly. Where there

has been a failure to properly notify, organizers, community or political leaders should not

be subject to criminal or administrative sanctions resulting in fines or imprisonment (see

A/HRC/20/27, para. 29). This applies equally in the case of spontaneous assemblies, where

prior notice is otherwise impracticable or where no identifiable organizer exists.

Spontaneous assemblies should be exempt from notification requirements,13 and law

enforcement authorities should, as far as possible, protect and facilitate spontaneous

assemblies as they would any other assembly.

24. The State’s obligation to facilitate and protect assemblies includes simultaneous

assemblies and counter-protests, in which one or more assemblies aim to express discontent

with the message of other assemblies. Assemblies, including spontaneous assemblies and

counter-protests, should, as far as possible, be facilitated to take place within sight and

sound of their target.14

25. The State’s obligation to facilitate extends to taking measures to protect those

exercising their rights from violence or interference.15 The mere existence of a risk,

however, is insufficient for prohibiting an assembly.16 Where the risk of violent clashes

between participants within or between assemblies exists, the least restrictive measures

must be taken to ensure the safety and security of participants and others.

26. While organizers should make reasonable efforts to comply with the law and to

encourage peaceful conduct of an assembly, organizers should not be held responsible for

the unlawful behaviour of others.17 To do so would violate the principle of individual

liability, weaken trust and cooperation between assembly organizers, participants and the

authorities, and discourage potential assembly organizers from exercising their rights.

27. No person should be held criminally, civilly or administratively liable for the mere

act of organizing or participating in a peaceful protest.

28. Practical recommendations:

(a) States must ensure that any system of prior notification gives effect to

the presumption in favour of assemblies, places narrow limits on the discretion of

authorities to restrict assemblies, and incorporates a proportionality assessment;

(b) States should not require organizers to obtain prior authorization to

hold an assembly, in law or practice. Where a notification system is in place, it must

facilitate peaceful assembly, and must not operate as a de facto requirement for prior

authorization;

simplify the notification process may include: multiple lodgement points, including

outside of urban areas, and in-person and assisted lodgement; the use of forms that

13 European Court of Human Rights, Bukta v. Hungary, application No. 25691/04, 17 July 2007.

14 However, where a counterdemonstration has been organized with the intention of interfering with the

rights of others to lawfully assemble, the counterdemonstration will fall within the ambit of article 5

of the International Covenant on Civil and Political Rights, and the protections afforded in respect of

the right to freedom of peaceful assembly will not apply.

15 See European Court of Human Rights, Ozgur Gundem v. Turkey, application No. 23144/93, 16 March

2000, paras. 42-43.

16 See European Court of Human Rights, Alekseyev v. Russia, application Nos. 4916/07, 25924/08 and

14599/09, 21 October 2010, para. 75.

17 See A/HRC/20/27, para. 31, and A/HRC/23/39, para. 78.

are easily accessible, concise and available in a variety of languages. Where Internet

penetration is high, authorities should consider using online lodgement systems;

(d) Any notice period must be as short as possible, while still allowing the

authorities sufficient time to prepare for the assembly — a maximum of several days,

ideally within 48 hours;

(e) Notification should be deemed to have been completed when a notice

providing sufficient information for the authority to reasonably determine the date,

time and location of the assembly and, when relevant, contact details of the organizer,

has been received. A response from the authority is not required to complete

notification or for the assembly to proceed;

(f) Where notification is submitted for two or more assemblies for the same

place and time, the authorities should conduct a thorough assessment of any risks and

develop strategies for their mitigation. Where it becomes necessary to impose

restrictions on one or more simultaneous assemblies, those restrictions should be

determined through mutual agreement or, where this is not possible, through a

process that does not discriminate between the proposed assemblies.

C. Any restrictions imposed on peaceful assemblies shall comply

with international human rights standards

29. Freedom of peaceful assembly is a fundamental right, and should be enjoyed without

restriction to the greatest extent possible. Only those restrictions which are necessary in a

democratic society in the interests of national security or public safety, public order, the

protection of public health or morals, or the protection of the rights and freedoms of others,

and are lawful, necessary, and proportionate to the aim pursued, may be applied. Any

restrictions are to be the exception rather than the norm, and must not impair the essence of

the right.18

30. To satisfy the requirement of lawfulness, any restrictions imposed must have a

legitimate and formal basis in law (the legality principle), as must the mandate and powers

of the restricting authority.19 The law itself must be sufficiently precise to enable an

individual to assess whether or not his or her conduct would be in breach of the law, and

also foresee the likely consequences of any such breach.20 To conform to the principle of

proportionality, any restriction must be appropriate to achieve its protective function. To

meet the necessity requirement it must also be the least intrusive instrument among those

which might achieve the desired result.21 It must be narrowly tailored to the specific aims

and concerns of the authorities, and take into account an analysis of the full range of rights

involved in the proposed assembly. In determining the least intrusive instrument to achieve

the desired result, authorities should consider a range of measures, with prohibition a last

resort. To this end, blanket bans, including bans on the exercise of the right entirely or on

any exercise of the right in specific places or at particular times, are intrinsically

disproportionate, because they preclude consideration of the specific circumstances of each

proposed assembly (see A/HRC/23/39, para. 63).

18 See Human Rights Committee, general comment No. 27 (1999) on freedom of movement, para. 13.

19 See OSCE/ODIHR, Guidelines, para. 35, and European Court of Human Rights, Hyde Park and

others v. Moldova, application No. 33482/06, 31 March 2009.

20 See European Court of Human Rights, Hashman and Harrup v. the United Kingdom, application No.

25594/94, 25 November 1999, para. 31, and Gillan and Quinton v. the United Kingdom, application

No. 4158/05, 12 January 2010, para. 76.

21 See Human Rights Committee, general comment No. 27, para. 14.

31. When a State invokes national security and protection of public order to restrict an

assembly, it must prove the precise nature of the threat and the specific risks posed.22 It is

not sufficient for the State to refer generally to the security situation. National, political or

government interest is not synonymous with national security or public order.

32. Assemblies are an equally legitimate use of public space as commercial activity or

the movement of vehicles and pedestrian traffic.23 Any use of public space requires some

measure of coordination to protect different interests, but there are many legitimate ways in

which individuals may use public spaces. A certain level of disruption to ordinary life

caused by assemblies, including disruption of traffic, annoyance and even harm to

commercial activities, must be tolerated if the right is not to be deprived of substance.24

33. Participants in assemblies are free to choose and express the content of their

message. Restrictions on the content of assemblies may be imposed only in conformity with

the legitimate limitations on rights outlined above, for example, where the message

advocates national, racial or religious hatred that constitutes incitement to discrimination,

hostility or violence. Where a content-based restriction is justified, authorities should take

the least intrusive and restrictive measures to address the issue.

34. “Time, place and manner” restrictions refer to prior restrictions regarding when,

where and how an assembly may be conducted. Such restrictions should never be used to

undermine the message or expressive value of an assembly or to dissuade the exercise of

the right to freedom of assembly.

35. The onus of justifying a limitation rests with the authority. If any restriction is

imposed there should be an option for organizers to seek judicial review and, where

relevant, administrative review, that is prompt, competent, independent and impartial.25

36. Practical recommendations:

(a) Laws governing State conduct in relation to assemblies should be drafted

unambiguously and should incorporate legality, necessity and proportionality tests.

Laws should state clearly the body with authority and responsibility for receiving and

responding to notifications, which should be independent of undue interference. This

body should not be granted excessive discretion: the criteria upon which it can impose

restrictions should be publicly available and must accord with international human

rights law and standards;

(b) Proposed restrictions should be put in writing, justified and

communicated to the organizers, including the justification for the restriction,

allowing an opportunity for the organizers to make submissions and to respond to any

proposed restriction;

prescribed by law, allowing sufficient time for an appeal — or urgent interim relief —

to be completed before the proposed time of the assembly;

22 See Human Rights Committee, communication No. 1119/2002, Lee v. the Republic of Korea, Views

adopted on 20 July 2005, para. 7.3.

23 See A/HRC/20/27, para. 41, and ODIHR/OSCE Guidelines, para. 20.

24 European Court of Human Rights, Kuznetsov v. Russia, application No. 10877/04, 23 October 2008,

para. 44, and Inter-American Commission on Human Rights, Report on Citizen Security and Human

Rights, para. 197.

25 Human Rights Council resolution 25/38; see also A/HRC/20/27, para. 42.

(d) Laws should provide access to administrative remedies. However,

exhaustion of administrative remedies should not be a prerequisite for an organizer to

seek judicial review.

D. States shall facilitate the exercise of the right of peaceful assembly

37. The positive obligation of the State to ensure rights requires that authorities facilitate

assemblies. States should plan properly for assemblies, which requires the collection and

analysis of information, anticipation of different scenarios and proper risk assessments.

Transparent decision-making is central to the process of planning and facilitating

assemblies and in ensuring that any action taken by law enforcement is proportionate and

necessary. Contingency plans and precautionary measures must also be put in place. Proper

planning and preparation requires continuous monitoring of activities and should be

adaptable to changing circumstances.

38. The proper facilitation of assemblies also benefits from effective communication

and collaboration among all relevant parties (see A/HRC/17/28, para. 119). Open dialogue

between authorities (including the authority responsible for receiving notices and law

enforcement officials) and, where identifiable, assembly organizers before, during and after

an assembly enables a protective and facilitative approach to be taken, helping to defuse

tension and prevent escalation.26 Law enforcement agencies and officials should take all

reasonable steps to communicate with assembly organizers and/or participants regarding

the policing operation and any safety or security measures.27 Communication is not limited

to verbal communication and law enforcement officials must be trained on the possible

impact of any indirect communication that may be perceived by organizers and participants

as intimidation, for example, the presence or use of certain equipment and the body

language of officials.

39. Effective communication depends on a relationship of trust. Law enforcement

agencies should continually work on strategies to build trust with the communities they

serve. The demographic makeup of law enforcement agencies should be representative of

the whole community. There should be a free flow of information before and throughout

assemblies, and all relevant parties should be informed of any changes in context and

circumstance. Communication and dialogue by assembly organizers and participants must

be entirely voluntary, and must not formally or informally impose on organizers an

obligation to negotiate the time, place or manner of the assembly with the authorities. Such

requirements would be tantamount to restricting the planned assembly (see A/HRC/23/39,

para. 56).

40. The State’s obligation to facilitate includes the responsibility to provide basic

services, including traffic management, medical assistance28 and clean-up services.29

Organizers should not be held responsible for the provision of such services, nor should

they be required to contribute to the cost of their provision.

26 Geneva Academy of International Humanitarian Law and Human Rights, Facilitating Peaceful

Protests (2014), p. 16.

27 See European Court of Human Rights, Frumkin v. Russia, application No. 74568/12, 5 January 2016,

paras. 127-128.

28 See principle 5 of the Basic Principles on the Use of Force and Firearms by Law Enforcement

Officials.

29 OSCE/ODIHR, Guidelines, para. 32.

41. A primary function of law enforcement, in addition to the obligation to facilitate, is

protecting the safety and rights of those who participate in assemblies, as well as monitors

and bystanders.

42. Law enforcement officials must be adequately trained in facilitating assemblies. This

training should include proper knowledge of the legal framework governing assemblies,

techniques of crowd facilitation and management, human rights in the context of assemblies

and the important role assemblies play in a democratic order. Training must include soft

skills such as effective communication, negotiation and mediation allowing law

enforcement officials to avoid escalation of violence and minimize conflict.30

43. Use of the tactic of stop-and-search by law enforcement against individuals

organizing or participating in an assembly may affect the rights to liberty and bodily

security, as well as privacy. Stop-and-search must not be arbitrary and must not violate the

principle of non-discrimination. It must be authorized by law, necessary and

proportionate.31 The mere fact that an individual is participating in a peaceful assembly

does not constitute reasonable grounds for conducting a search.

44. The authority to arrest can play an important protective function in assemblies, by

allowing law enforcement to remove from an assembly individuals who are acting

violently. The term “arrest” refers to any deprivation of liberty, and is not limited to formal

arrest under domestic law. It is critical that arrest powers are exercised consistently with

international human rights standards, including those relating to the rights to privacy,

liberty, and due-process rights.

45. No one may be subject to arbitrary arrest or detention. In the context of assemblies

this has particular import for the criminalization of assemblies and dissent. Arrest of

protestors to prevent or punish the exercise of their right to freedom of peaceful assembly,

for example on charges that are spurious, unreasonable or lack proportionality, may violate

these protections. Similarly, intrusive pre-emptive measures should not be used unless a

clear and present danger of imminent violence actually exists. “Mass arrest” of assembly

participants often amounts to indiscriminate and arbitrary arrests.

46. Where an arrest takes place detention conditions must meet minimum standards.

This applies to any location or situation in which an individual has been deprived of his or

her liberty, including jails, holding cells, public spaces and vehicles used to transfer

detainees, and any other location in which detainees are held. Detainees must be treated in a

humane manner and with respect for their dignity,32 and shall not be subjected to torture or

cruel, inhuman or degrading treatment or punishment.

47. The imposition of administrative detention is especially troubling. The Human

Rights Committee has emphasized that such detention, not in contemplation of prosecution

on a criminal charge, presents severe risks of arbitrary deprivation of liberty.33

48. The issue of proportionality is particularly relevant to administrative sanctions

imposed in the context of assemblies. Any penalty must not be excessive — for example, a

disproportionately large fine. Such penalties raise due-process concerns, and may have a

chilling effect more broadly on the exercise of the right to freedom of peaceful assembly.

30 See principle 20 of the Basic Principles, and OSCE/ODIHR, Guidelines, para. 147.

31 Working group on protecting human rights while countering terrorism, Basic Human Rights

Reference Guide: The Stopping and Searching of Persons (September 2010).

32 Principle 1 of the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment.

33 See the Committee’s general comment No. 35 (2014) on liberty and security of person, para. 15.

49. Practical recommendations:

(a) States should promote diversity in law enforcement, so that communities

see themselves in the police. This requires a sufficiently representative body with the

inclusion of women and minority groups;

(b) States should implement consistent planning approaches for all

assemblies that follow a model based on assessing threat and risk and that incorporate

human rights laws and standards as well as ethics;

their attempts to genuinely engage with assembly organizers and/or participants of

assemblies;

(d) Law enforcement agencies should ensure there is an accessible point of

contact within the organization before, during and after an assembly. The point of

contact should be trained in communication and conflict management skills and

respond to security issues and police conduct as well as to substantive demands and

views expressed by the participants. The liaison function should be separate from

other policing functions;

(e) States and law enforcement bodies should ensure that post-event

debriefing mechanisms for assemblies are established permanently to facilitate

learning and ensure the protection of rights;

(f) Law enforcement should cooperate with stewards, where organizers

choose to arrange them for an assembly. Stewards should be clearly identifiable and

should receive appropriate training and briefing. Authorities should not require

organizers to provide stewards;

(g) Intrusive anticipatory measures should not be used in an assembly.

Participants on their way to an assembly should not be stopped, searched or arrested

unless there is a clear and present danger of imminent violence.

E. Force shall not be used unless it is strictly unavoidable, and if applied it

must be done in accordance with international human rights law

50. States and their law enforcement agencies and officials are obligated under

international law to respect and protect, without discrimination, the rights of all those who

participate in assemblies, as well as monitors and bystanders.34 The normative framework

governing the use of force includes the principles of legality, precaution, necessity,

proportionality and accountability.

51. The principle of legality requires that States develop a domestic legal framework for

the use of force, especially potentially lethal force, that complies with international

standards (see A/HRC/26/36, para. 56). The normative framework should specifically

restrict the use of weapons and tactics during assemblies, including protests, and include a

formal approval and deployment process for weaponry and equipment.35

34 The conduct of law enforcement officials is governed, inter alia, by human rights law, the Code of

Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by

Law Enforcement Officials. See also the Principles on the Effective Prevention and Investigation of

Extra-legal, Arbitrary and Summary Executions.

35 See, for example, Amnesty International, Use of Force: Guidelines for Implementation of the UN

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (2015), p. 46.

52. The principle of precaution requires that all feasible steps be taken in planning,

preparing, and conducting an operation related to an assembly to avoid the use of force or,

where force is unavoidable, to minimize its harmful consequences. Even if the use of force

in a particular situation complies with the requirements of necessity and proportionality, but

the need to use force could reasonably have been prevented from arising in the first place, a

State may be held accountable for a failure to take due precautionary measures.36 Training

should include techniques of crowd facilitation and management consonant with the legal

framework governing assemblies.37 States must ensure that their law enforcement officials

are periodically trained in and tested on the lawful use of force, and on the use of the

weapons with which they are equipped.38

53. On the basis of a risk assessment, equipment for law enforcement officials deployed

during assemblies should include both appropriate personal protective equipment and

appropriate less-lethal weapons.39 Weapons and tactics should allow for a graduated

response and de-escalation of tensions. Accordingly, the provision of a firearm to law

enforcement officials with no less-lethal alternative other than a baton is unacceptable.

54. Where necessary, officials must be appropriately protected with equipment, such as

shields, helmets and stab- and/or bulletproof jackets, with a view to decreasing the need for

any use of weapons by law enforcement. Equipment and weapons that cannot achieve a

legitimate law enforcement objective or which present unwarranted risks, particularly in the

circumstances of an assembly, should not be authorized for use.40

55. States are required to procure less lethal weapons for use in appropriate situations,

with a view to increasingly restraining the application of means capable of causing death or

injury.41 Less-lethal weapons must be subject to independent scientific testing and approval,

and used responsibly by well-trained law enforcement officials, as such weapons may have

lethal or injurious effects if not used correctly or in compliance with international law and

human rights standards. States should work to establish and implement international

protocols for the training on and use of less-lethal weapons.

56. A growing range of weapons that are remote controlled are becoming available,

particularly in the context of the policing of assemblies. Great caution should be exercised

in this regard. Where advanced technology is employed, law enforcement officials must, at

all times, remain personally in control of the actual delivery or release of force (see

A/69/265, paras. 77-87).42

57. The use of force by law enforcement officials should be exceptional,43 and

assemblies should ordinarily be managed with no resort to force. Any use of force must

comply with the principles of necessity and proportionality. The necessity requirement

restricts the kind and degree of force used to the minimum necessary in the circumstances

(the least harmful means available), which is a factual cause and effect assessment. Any

force used should be targeted at individuals using violence or to avert an imminent threat.

36 European Court of Human Rights, McCann and Others v. United Kingdom, application No. 18984/91,

27 September 1995.

37 Principle 20 of the Basic Principles, and OSCE/ODIHR, Guidelines, para. 147.

38 Principle 19 of the Basic Principles.

39 Principle 2 of the Basic Principles. Less-lethal weapons may still have lethal consequences or affect

bystanders (see principle 3 of the Basic Principles).

40 See Amnesty International, Use of Force Guidelines, chap. 6.

41 Ibid.

42 See also African Commission on Human and Peoples’ Rights, general comment No. 3 (2015) on the

African Charter on Human and Peoples’ Rights: the right to life (article 4), para. 31.

43 See the commentary to article 3 of the Code of Conduct for Law Enforcement Officials.

58. The proportionality requirement sets a ceiling on the use of force based on the threat

posed by the person targeted. This is a value judgement that balances harm and benefit,

demanding that the harm that might result from the use of force is proportionate and

justifiable in relation to the expected benefit.

59. The principles of necessity and proportionality apply to the use of all force,

including potentially lethal force. Specific rules apply to the use of firearms for law

enforcement, also during assemblies.44 Firearms may be used only against an imminent

threat either to protect life or to prevent life-threatening injuries (making the use of force

proportionate). In addition, there must be no other feasible option, such as capture or the

use of non-lethal force to address the threat to life (making the force necessary).

60. Firearms should never be used simply to disperse an assembly; indiscriminate firing

into a crowd is always unlawful (see A/HRC/26/36, para. 75). Intentional lethal use of force

is only lawful where it is strictly unavoidable to protect another life from an imminent

threat; this is sometimes referred to as the protect life principle (ibid., para. 70).

61. Dispersing an assembly carries the risk of violating the rights to freedom of

expression and to peaceful assembly as well as the right to bodily integrity. Dispersing an

assembly also risks escalating tensions between participants and law enforcement. For these

reasons, it must be resorted to only when strictly unavoidable. For example, dispersal may

be considered where violence is serious and widespread and represents an imminent threat

to bodily safety or property, and where law enforcement officials have taken all reasonable

measures to facilitate the assembly and protect participants from harm. Before

countenancing dispersal, law enforcement agencies should seek to identify and isolate any

violent individuals separately from the main assembly and differentiate between violent

individuals in an assembly and others. This may allow the assembly to continue.

62. International law allows for dispersal of a peaceful assembly only in rare cases. For

example, a peaceful assembly that incites discrimination, hostility or violence, in

contravention of article 20 of the International Covenant on Civil and Political Rights, may

warrant dispersal if less intrusive and discriminatory means of managing the situation have

failed. Similarly, while mere inconvenience to others,45 or temporary disruption of

vehicular or pedestrian traffic, are to be tolerated, where an assembly prevents access to

essential services, such as blocking the emergency entrance to a hospital, or where

interference with traffic or the economy is serious and sustained, for example, where a

major highway is blocked for days, dispersal may be justified. Failure to notify authorities

of an assembly is not a basis for dispersal.

63. Only governmental authorities or high-ranking officers with sufficient and accurate

information of the situation unfolding on the ground should have the authority to order

dispersal. If dispersal is deemed necessary, the assembly and participants should be clearly

and audibly informed, and should also be given reasonable time to disperse voluntarily.46

Only if participants then fail to disperse may law enforcement officials intervene further.

64. As part of their responsibility to ensure accountability, States must establish

effective reporting and review procedures to address any incident in relation to an assembly

during which a potentially unlawful use of force occurs.47

65. A clear and transparent command structure must be established to minimize the risk

of violence or the use of force, and to ensure responsibility for unlawful acts or omissions

44 Principle 9 of the Basic Principles.

45 See Inter-American Commission on Human Rights, Report on Citizen Security, para. 198.

46 See OSCE/ODIHR, Guidelines, para. 168.

47 Principle 22 of the Basic Principles, and article 8, with commentary, of the Code of Conduct.

by officers.48 Proper record keeping of decisions made by command officers at all levels is

also required. Law enforcement officials must be clearly and individually identifiable, for

example by displaying a nameplate or number. In addition, there should be a clear system

of record keeping or register of the equipment provided to individual officers in an

operation, including vehicles, firearms and ammunition.

66. As a general rule, the military should not be used to police assemblies. In

exceptional circumstances where this becomes necessary, the military must be subordinate

to civilian authorities.49 The military must also be fully trained in, adopt and be bound by

international human rights law and principles, as well as any law enforcement policy,

guidelines and ethics, and be provided with any other training and equipment necessary. In

order to comply with these requirements, the State must put measures in place far in

advance, should such a situation arise later.

67. Practical recommendations:

(a) States should ensure that law enforcement officials have the equipment,

training and instructions necessary to police assemblies wherever possible without

recourse to any use of force;

(b) Tactics in the policing of assemblies should emphasize de-escalation

tactics based on communication, negotiation and engagement. Training of law

enforcement officials should include pre- and in-service instruction in both classroom

and scenario-based settings;

lethal weapons, by law enforcement agencies for use in assemblies, States should

subject such equipment to a transparent and independent assessment to determine

compliance with international human rights law and standards. In particular,

equipment should be assessed for accuracy, reliability and its ability to minimize

physical and psychological harm. Equipment should be procured only where there is

sufficient capacity to train officers effectively on its proper use;

(d) Specific regulations and detailed operational guidance should be

developed and publicly disseminated on the use of tactical options in assemblies,

including weapons, which, by design, tend to be indiscriminate, such as tear gas and

water cannons. Training must encompass the lawful and appropriate use of less-lethal

equipment in crowds. Law enforcement officials should also be properly trained on

protective equipment and clearly instructed that such equipment should be used

exclusively as defensive tools. States should monitor the effectiveness of the training in

the prevention of abuse or misuse of weapons and tactics;

(e) Automatic firearms should not be used in the policing of assemblies

under any circumstances;

(f) Autonomous weapons systems that require no meaningful human

control should be prohibited, and remotely controlled force should only ever be used

with the greatest caution;

(g) States should develop comprehensive guidelines on the dispersal of

assemblies in accordance with international human rights law and principles. Such

guidelines should be made public and provide practical guidance to law enforcement

officials detailing the circumstances that warrant dispersal, all steps required to be

48 Principles 24-26 of the Basic Principles.

49 Commentary to article 1 of the Code of Conduct.

taken before a decision to disperse (including de-escalation measures), and who may

issue a dispersal order;

(h) Effective systems for monitoring and reporting on the use of force must

be established by the State, and relevant information, including statistics on when and

against whom force is used, must be easily accessible to the public;

(i) The United Nations High Commissioner for Human Rights should

convene an expert group to examine the application of the international human rights

framework to less-lethal weapons and unmanned systems for law enforcement

purposes, including with a focus on their use in the context of assemblies;

(j) Effective controls should be established at national and international

levels prohibiting the trade in policing and crowd-control equipment, including

surveillance technology, where a serious risk exists that they could, in the context of

assemblies, facilitate unlawful killings, torture or other cruel, inhuman or degrading

treatment or punishment, or other human rights violations or abuses.

F. Every person shall enjoy the right to observe, monitor and record

assemblies

68. All persons enjoy the right to observe, and by extension monitor, assemblies. This

right is derived from the right to seek and receive information, which is protected under

article 19 (2) of the International Covenant on Civil and Political Rights. The concept of

monitoring encapsulates not only the act of observing an assembly, but also the active

collection, verification and immediate use of information to address human rights

problems.50

69. A monitor is generally defined as any non-participant third-party individual or group

whose primary aim is to observe and record the actions and activities taking place at public

assemblies.51 National human rights institutions, ombudsmen, intergovernmental entities

and civil society organizations all commonly act as monitors. Journalists, including citizen

journalists, play an important role.52

70. States have an obligation to protect the rights of assembly monitors. This includes

respecting and facilitating the right to observe and monitor all aspects of an assembly,

subject to the narrow permissible restrictions outlined in article 19 (3) of the International

Covenant on Civil and Political Rights. Monitors retain all other human rights. The State

should fully investigate any human rights violation or abuse against monitors, and should

pursue prosecution and provide adequate remedy. The protections afforded to monitors

apply irrespective of whether an assembly is peaceful.

71. Everyone — whether a participant, monitor or observer — shall enjoy the right to

record an assembly, which includes the right to record the law enforcement operation. This

also includes the right to record an interaction in which he or she is being recorded by a

State agent — sometimes referred to as the right to “record back”. The State should protect

this right. Confiscation, seizure and/or destruction of notes and visual or audio recording

equipment without due process should be prohibited and punished.

50 Office of the United Nations High Commissioner for Human Rights, Training Manual on Human

Rights Monitoring (United Nations publication, Sales No. E.01.XIV.2), para. 28.

51 OSCE/ODIHR, Guidelines, para. 201.

52 See, for example, OSCE, “Special report: handling of the media during political demonstrations”

(2007).

72. Practical recommendations:

(a) States should ensure that a comprehensive community engagement

strategy is in place that includes programmes and policies designed to build trust and

communication among law enforcement officials, the media and other assembly

monitors;

(b) Authorities should proactively engage with monitors by communicating

consistently before, during and after an assembly; by providing access and

information to members of the media and other monitors; and by considering and

responding to monitors’ reports after assemblies;

other relevant independent oversight bodies of anticipated assemblies and facilitate

the access required for them to monitor properly all phases of the assembly;

(d) States should prohibit by law any interference with the recording of an

assembly, including the seizure or damage of any equipment, except that pursuant to

a warrant from a judge, where the judge considers that it has probative value.

G. The collection of personal information in relation to an assembly

must not interfere impermissibly with privacy or other rights

73. The collection of accurate information by law enforcement may be useful to the

proper management of assemblies, enabling law enforcement to discharge their

responsibilities to prepare for and facilitate peaceful assemblies. The collection and

processing of personal information, such as through recording devices, closed-circuit

television and undercover policing, must comply with protections against arbitrary or

unlawful interference with privacy.

74. Legislation and policies regulating the collection and processing of information

relating to assemblies or their organizers and participants must incorporate legality,

necessity and proportionality tests. Given the intrusiveness of such methods, the threshold

for these tests is especially high. Where they interfere with the exercise of rights, data

collection and processing may represent a violation of the rights to freedom of peaceful

assembly and expression.

75. The capacity to use communication technologies securely and privately is vital to

the organization and conduct of assemblies. Restrictions to online access or expression

must be necessary and proportionate and applied by a body independent of any political,

commercial or other unwarranted influences, and there should be adequate safeguards

against abuse (see A/HRC/17/27, para. 69). The practice of blocking communications —

impeding the organization or publicizing of an assembly online — rarely satisfies these

requirements (ibid., para. 31).

76. While there may be legitimate law enforcement and accountability reasons to record

an assembly, the act of recording participants may have a chilling effect on the exercise of

rights, including freedom of assembly, association and expression. Recording peaceful

assembly participants in a context and manner that intimidates or harasses is an

impermissible interference to these rights.

77. The use of undercover officers to collect intelligence relating to assemblies is

problematic. It is highly intrusive and carries a high risk of rights violations and therefore

should not be allowed unless reasonable grounds exist to suspect that a serious criminal act

is likely to be committed. Authorities should consider whether the proposed undercover

activity is the only way to secure the required information, and whether the value of the

information justifies the intrusion. This should take into account the impact on the rights of

all those affected, not only the targets.

78. Practical recommendations:

(a) Domestic law should require that the public are notified when they are,

or may be, recorded during an assembly. This may, for example, require temporary

signage along the planned assembly route indicating fixed cameras, or advisories that

unmanned aerial vehicles are filming;

(b) States should implement robust and appropriate protections of public

privacy and safety prior to the adoption of any biometric technologies, including facial

recognition software, in the context of assemblies;

personal information may be collected or retained only for a lawful, legitimate law

enforcement purpose. Such information should be destroyed after a reasonable time

period set out in law;

(d) Relevant information should however be retained where it depicts use of

force, detention or arrest, or dispersal, or where it relates to the subject of a

complaint; or where law enforcement, oversight authorities or the subject of the

information have a reasonable suspicion that a crime or misconduct has been

committed;

(e) States should put in place mechanisms whereby individuals can ascertain

whether and, if so, what information has been stored, and be provided with access to

an effective process for making complaints relating to the collection, retention and use

of their personal information and that can lead to rectification or expungement;

(f) States should put in place clear democratic systems of control for

undercover policing — through consistent legislation, regulations and policies — that

explicitly incorporate necessity and proportionality tests and that set out clearly how

risks of intrusion are to be assessed and managed. This should include an internal

review process, as well as oversight by an independent, external body or bodies.

Authorization by judicial authority should be required for any undercover policing

activity in the context of an assembly.

H. Every person has the right to access information related to assemblies

79. The ability to access information is essential to enabling individuals to exercise their

rights in the context of assemblies and to ensuring accountability. Information includes

records held by a public body at any level or by private bodies performing public

functions.53

80. The public should have easy, prompt, effective and practical access to such

information, through proactive disclosure and the enactment of legislation to facilitate

public access to information. Legislation facilitating such access should be based on the

53 See Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and

expression, para. 18. See also the Declaration of Principles on Freedom of Expression in Africa.

principle of maximum disclosure, establishing a presumption that information is accessible,

subject only to a narrow system of exceptions.54

81. Exceptions to the right to information should be carefully tailored to protect

overriding public and private interests, including privacy. Exceptions should apply only

where there is a risk of substantial harm to the protected interest and where that harm is

greater than the overall public interest in having access to the information.55 The onus

should be on the public authority to demonstrate that the information falls within the scope

of an exception.56 Its decisions must be subject to oversight and review.

82. Practical recommendations:

(a) States should proactively disseminate key information relating to the

management of assemblies. Such information should include: laws and regulations

relating to the management of assemblies; information regarding the responsibilities

and procedures of agencies and bodies that manage assemblies; standard operating

procedures and policies, including codes of conduct, governing the policing of

assemblies; the types of equipment routinely used in policing assemblies; information

on the training of law enforcement officers; and information on how to access

accountability processes;

(b) States should enact comprehensive legislation, for example freedom of

information acts, to facilitate public access to information, based upon the principle of

maximum disclosure. States should manage information so that it is comprehensive

and easily retrieved, and should respond promptly and fully to all requests for

information;

alia, the power to receive and investigate complaints and to make binding orders for

the release of information where it finds in favour of the applicant or complainant.

I. Business enterprises have a responsibility to respect human rights

in the context of assemblies

83. Business enterprises have a responsibility to respect human rights, including in the

context of assemblies. This requires that businesses avoid causing or contributing to

adverse human rights impacts through their own activities, and address adverse human

rights impacts in which they are involved.57 This extends to impacts that are directly linked

to the operations, products or services of a business, such as where a business supplies less-

lethal weapons or equipment or surveillance technologies which are used in the policing of

assemblies.

84. The trend towards the privatization of public places, such as shopping malls,

pedestrian precincts and squares, means that assemblies commonly occur on property

owned by business enterprises, sometimes referred to as privately owned public space.

While private landowners generally have the right to determine who may access their

54 Joint declaration by the United Nations Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression, the OSCE Representative on Freedom of the Media and

the OAS Special Rapporteur for Freedom of Expression on access to information (6 December 2004).

55 Ibid.

56 Ibid.

57 Principles 11 and 13 (a) of the Guiding Principles on Business and Human Rights: Implementing the

United Nations “Protect, Respect and Remedy” Framework (A/HRC/17/31), annex.

property, the rights related to assembly may require positive measures of protection even in

the sphere of relations between individuals.58

85. Business enterprises also play an increasingly prominent role in the policing of

assemblies. For example, civilian private security services may perform a policing-type role

while protecting private property or assets during an assembly, and private companies often

play a role in surveillance (see A/HRC/23/39/Add.1, para. 33). Business entities should

carry out human rights due diligence,59 and where a potential impact on assembly and

related rights is identified mitigate these risks. Civilian private security services should not

perform policing-type functions in relation to assemblies. However, where this occurs, such

services must respect and protect human rights60 and should comply with the highest

voluntary standards of conduct.61

86. Business entities commonly seek injunctions and other civil remedies against

assembly organizers and participants on the basis, for example, of anti-harassment, trespass

or defamation laws, sometimes referred to as strategic lawsuits against public participation.

States have an obligation to ensure due process and to protect people from civil actions that

lack merit.

87. A State can incur responsibility for violations of human rights by non-State actors if

it: approves, supports or acquiesces in those acts; fails to exercise due diligence to prevent

the violation; or fails to ensure proper investigation and accountability. States also have a

duty to take appropriate measures to prevent, investigate and provide effective remedies for

relevant misconduct by business enterprises, and to hold to account private parties that are

responsible for causing or contributing to an arbitrary deprivation of life in the State’s

territory or jurisdiction.

88. Practical recommendations:

(a) States should protect individuals from interference with their rights in

the context of assemblies by business enterprises, including by taking steps to comply

with the responsibilities elucidated in the Guiding Principles on Business and Human

Rights;

(b) Where privately owned spaces are open to the general public and serve a

similar function as public spaces, they should be treated as a public space for the

purposes of the rights to freedom of assembly and expression;

protections from civil lawsuits brought frivolously, or with the purpose of chilling

public participation.

J. The State and its organs shall be held accountable for their actions

in relation to assemblies

89. The State bears an obligation to provide to those whose rights have been violated in

the context of an assembly an adequate, effective and prompt remedy determined by a

58 Plattform Ärtze für das Leben v. Austria, para. 32.

59 See principles 17-21 of the Guiding Principles on Business and Human Rights.

60 See the Guiding Principles on Business and Human Rights, and United Nations Office on Drugs and

Crime, State Regulation concerning Civilian Private Security Services and their Contribution to

Crime Prevention and Community Safety (2014).

61 See, for example, the Voluntary Principles on Security and Human Rights (2000), available from

www.voluntaryprinciples.org/.

competent authority having the power to enforce remedies.62 The right to remedy includes

the right to equal and effective access to justice; adequate, effective and prompt reparation

for harm suffered; and access to relevant information concerning violations and reparation

mechanisms.

90. States must investigate any allegations of violations in the context of assemblies

promptly and effectively through bodies that are independent and impartial. In addition, the

procedural component of the right to life requires States to investigate any alleged unlawful

or arbitrary killing. The failure of a State to properly investigate suspected unlawful or

arbitrary killing is a violation of the right to life itself (A/70/304). Likewise, lack of

accountability for violations of the rights to bodily integrity may itself constitute a violation

of those rights.63 Effective investigation includes the following factors: an official

investigation initiated by the State; independence from those implicated; capability of

determining whether the act was justified in the circumstances; a level of promptness and

reasonable expedition; and a level of public scrutiny.64

91. Where appropriate, criminal and/or civil sanctions must be applied. Liability should

extend to officers with command control where they have failed to exercise effective

command and control. Where superior officers knew, or should have known, that law

enforcement officials under their command resorted to the unlawful use of force or

firearms, and they did not take all measures in their power to prevent, suppress or report

such use, they should also be held responsible.65

92. The appropriate use of body-worn cameras by law enforcement personnel in the

context of assemblies could assist the work of internal investigations or civilian oversight

mechanisms. Such technology is in its infancy, and delicate balancing of potential

intrusions into privacy should be considered, but at this stage there seems to be potential to

promote accountability, where adequate safeguards are in place.

93. Prosecutors should carry out their functions impartially and without discrimination,

and should give due attention to prosecuting crimes committed by public officials.66 When

law enforcement officials are prosecuted, the judiciary shall decide matters impartially,

without any restrictions, improper influences, inducements, pressures, threats or

interferences, direct or indirect.67 Defendants should be brought before an ordinary court or

tribunal, and shall be availed of the fair trial protections guaranteed under international law.

94. In addition to guaranteeing accountability through judicial processes, States should

implement additional levels of non-judicial oversight, including an effective internal

investigations process and an independent oversight body. These systems should operate in

addition to, and not as an alternative to, criminal, public and private legal remedies for

police misconduct.68 The role of a dedicated civilian oversight body may be complemented

by the work of the national human rights institution or ombudsman.

62 See Human Rights Committee, general comment No. 31, para. 15. See also the Basic Principles and

Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International

Human Rights Law and Serious Violations of International Humanitarian Law.

63 McCann and Others v. United Kingdom.

64 European Court of Human Rights, Isayeva v. Russia, application No. 57950/00, 24 February 2005.