PROHIBITION AND RESTRICTION OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY: CONSTITUTIONAL AND INTERNATIONAL PERSPECTIVE

Abstract

This article examines the right to freedom of peaceful assembly as a fundamental human right in a democratic society, focusing on ECHR jurisprudence and the constitutional approaches of various states. Its aim is to analyze ECHR case law and national legal frameworks to clarify how “restrictions” and “prohibitions” on assembly are defined and enforced, especially under emergency conditions (the COVID-19 pandemic and martial law).Any interference with assembly must be lawful, pursue a legitimate aim (such as security, public health or others’ rights), and be “necessary in a democratic society”. In particular, the Court has emphasized that a blanket prohibition on public gatherings is an “extremely serious” interference that requires a particularly compelling justification (for example, the ECtHR found an indiscriminate ban on mass rallies without adequate justification to be a disproportionate restriction).Comparative analysis reveals significant variation among constitutions. Some states simply guarantee assembly rights with few details, while others enumerate specific grounds for limiting them. For example, in Ukraine or Germany a mere notification suffices to hold a spontaneous gathering (subject to ex post judicial review), whereas in other countries organizers must seek prior permission – making any unsanctioned event effectively unlawful.Crucially, the terminology matters: when a law speaks of a “prohibition,” authorities tend to bar an assembly outright, but when it speaks of a “restriction,” they generally mean imposing conditions (on time, place or conduct) without denying the right itself. These legal distinctions are reflected in practice and shape how democracies tolerate or constrain public demonstrations.The study pays particular attention to crisis situations. It notes that the COVID-19 pandemic and wartime emergencies prompted many governments to impose strict rules (participant limits, social distancing) or even temporary total bans on gatherings. Several states officially derogated from international assembly obligations during these emergencies. Throughout, the principle of proportionality remains paramount: measures may not exceed what is objectively necessary, and once the crisis abates any overly broad prohibitions should be lifted or eased. This analysis highlights the delicate balance between protecting public order or health and preserving civil liberties in times of crisis.By systematizing these comparative approaches, this article contributes to human rights theory and doctrine.It clarifies that authorities must weigh each restriction against its necessity and distinguishes permissible constraints from impermissible bans. This framework has practical implications: a clear distinction between valid restrictions and prohibited actions will facilitate correct implementation of Article 11 of the Convention at the national level.Looking ahead, these findings can guide courts and policymakers by clarifying criteria and terminology for assembly restrictions even under emergency powers. The study argues that striking a principled balance between security requirements and fundamental freedoms is achievable under the rule of law. Its insights are therefore poised to inform ongoing legal debates and the evolving doctrine on civil liberties during extraordinary times.