The Right of Citizens to Democratic Protests in Emergency Circumstances and Tightened Measures

The right of the citizens to democratic protests is an absolute and inalienable right guaranteed with Constitution in the democratic world. This basic right is usually practiced through protests organized mostly as public gatherings. These gatherings may be limited with measures which may include a curfew, emergency or other extraordinary situations declared by the executive branch.  

However, this does not stop the citizens in their right to express themselves in a protest using different forms and this also depends on the creative forms used in a protest. If we take Kosovo as an example in the current context of the COVID-19 Pandemic, the citizens being unable to gather in public spaces decided to protest at a certain time period from their balconies “by banging metal items to create noise” as an expression of dissatisfaction with the current political developments in Kosovo.

The right to democratic protests is enshrined in the international mechanisms, including the European Convention on Human Rights (ECHR). This Convention is directly applicable in Kosovo, and the freedom to gather is also guaranteed with the Constitution and the Law on Public Gatherings, passed by the Kosovo Assembly. In the virtual discussion organized by the Institute for Democracy and Development (D4D) and on this topic, the panelists in their presentations agreed that the protests are an absolute right in democratic countries. Also, there was a consent about the limitation of the public gatherings in the name of public health, due to the risk of virus spread in a pandemic situation. 

An interesting point during the discussion was the difference between the authoritarian and democratic states in the managing of the pandemic. In this aspect, one could say that everybody agreed that democratic states are managing better this process and that countries like Sweden, South Korea were mentioned as examples compared to the decisions taken from the authoritarian or totalitarian regimes such as China and Belarus. Another element that was discussed was the declaring of the state of emergency, by comparing the democratic countries with the authoritarian ones. The authoritarian and/or totalitarian states such as Belarus nearly don’t need to declare a state of emergency because the measures in use by the state are so coercive that there is no need for a state of emergency to be declared. A state of emergency may be declared also in democratic countries, but usually it is not preferred, because it may give room for violation of human rights, and therefore in some countries a state of emergency is used as an excuse to violate human rights.

Moreover, the case of Sweden is also being mentioned now by the World Health Organization (WHO) as an example on how to get back to normality or to leave from this emergency situation. The Swedish Government did not impose any tough or coercive measures; instead it provided recommendations to its citizens which were respected by the citizens because of the trust that has been built for years between the citizens and the state. This is an example of a democracy that has been developed for years now. This mutual trust creates advantages in managing of emergency situations, such as the COVID-19 Pandemic and recovering from such situations is much easier. The other matter that was discussed was the proportionality of measures for limiting the freedom of gathering even in a pandemic situation. In this case, Albania was mentioned as good example which is applying the measure of sanctioning with very high fines which does exceed the purpose, that is, as a measure is not proportionate to the “caused damage” or the committed offence.  

About the relation between the right to protest and the public health, there was also a consensus that they do not exclude each other, and that they can go alongside. In this way, the protests may be organized in different ways, leaving out the public gatherings because they pose a high risk of virus spreading, but this does not mean that the right to protest is denied. If we refer to the legislation on public gatherings, one has to say that the limitation of this basic human freedom should be on temporary basis only and in no way be imposed through decisions or laws without any time limit. The temporary limitation of the right to protest and proportionality of the measures taken versus the purpose were also two other elements for which there was consensus between the participants present in the discussion.  

https://d4d-ks.org/en/salons/citizens-right-democratic-protests-emergencies-conditions-tightening-measures/

Video of the debate can be found here: