Implementation of the Right to Peaceful Gatherings: Factors of Restrictive Measures and Ensuring their Legitimacy

• Main Authors: Maksym Bondar, Nikitina Valeriia
• Format: Article
• Language: English
• Published: National University of Kyiv-Mohyla Academy 2019-02-01
• Series: Наукові записки НаУКМА: Юридичні науки
• Subjects: right to peaceful gatherings; limitation factors; time; place; manner; three-component test
• Online Access: http://nrplaw.ukma.edu.ua/article/view/185589/185172
• ISSN: 2617-2607; 2663-0621

The article studies the origin and essence of the right to peaceful assemblies and analyzes the historical development of the contents of the right to peaceful assemblies. Several possible definitions are given, in particular in the international law and national legislation. Examples of definitions derived by philosophers and lawyers are also given. The paper outlines historical experience of Ukraine on the issue of the protection of peaceful gatherings, as well as the current situation, both in the legislative aspect and in the aspect of legal proceedings. The factors limiting the right to peaceful assemblies, namely place, time and method, are analyzed. The details of such components of the place factor as private property and public institutions are disclosed. As an example, the paper addresses the cases of British and American Supreme Courts, as well as the cases of ECHR. In addition, the article seeks to establish a reasonable timeframe, illustrating, as an example, the cases of the ECHR and the British Supreme Court. The latter factor determines the factor of the method, substantiating its theoretical aspects by judicial practice. In a separate section, the article deduces a three-component test, emphasizing the importance of the three-component test as the only effective mechanism for setting the framework for the regulation of peaceful assembly. At the same time, possible shortcomings of each link of the three-component test are presented separately. The paper concludes that the establishment of specific general restrictions on peaceful assembly is not possible either in terms of place, or in terms of time or method. Therefore, it is important to remember the need for individual consideration of each case and the application of a three-component test in order to balance the right to peaceful assembly.