USS: Rights to judical protection and remedy were violated during banning of Pride Parade 2011 but there was no discrimination

Belgrade, 29.04.2013.

Gay Straight Alliance (GSA; Alliance) welcomes the decision of the Constitutional Court of Serbia (USS; Court) to adopt a constitutional complaint (complaint) of the non-governmental organization Belgrade Pride Parade for banning Pride Parade 2011 in Belgrade (Pride 2011). Although the complaint was not adopted in full by the Court, but in part, it is very important that with this decision the Court stated that the Pride 2011 organizers’ rights, “the right to judicial protection under Article 22 of the Constitution, the right to a remedy under Article 36 of the Constitution and consequently the right to freedom of assembly under Article 54 of the Constitution”, have been violated.

ustavni-sud-srbije-grb

Adjudicating on the complaint about banning Pride 2011, the Constitutional Court rejected as constitutionally unfounded part of the complaint that relates to a violation of Article 21 of the Constitution, i.e. that with banning of Pride there was discrimination based on sexual orientation, and said that “the competent authority banned all public meetings and rallies in motion which were announced for the same or previous day, the conveners of which were people and organizations that represent opposing views and ideas, which makes the claim of the complainant – that the ban on their public gathering was the result of discrimination based on sexual orientation – constitutionally unfounded.”

A subject of concern is the reasoning of the USS decision which confirms that the disputed measure (ban of Pride 2011) was preceded by extensive and detailed safety assessment of Ministry of Interior (MUP) “made on the basis of specific and explicitly exposed collected facts and data”, which referred to the fact that on 2 October 2011 there would be disturbances of public peace and order, damage to private and public property and diplomatic missions. The Constitutional Court judged that on the basis of collected data it can not be concluded that the competent authority (MUP) banned Pride 2011 based on arbitrary and random reviews of relevant circumstances. Also, the USS says when MUP banned Pride 2011 two days before it was supposed to take place, they acted in accordance with the current Public Assembly Act; however, the impossibility of Pride 2011 organizers because of that same law to request a review of the decision and seek an effective remedy which would give them legal protection – was a violation of the right to judicial protection and remedy.

Also, the Court rejected a claim for material damage compensation because “there have been no determined assumptions that would allow a decision”, but found that there were grounds to determine the right to non-material compensation of 500 Euros to complainant, as a specific form of warning on repeated violation of the right to judicial protection and remedy, just as the Court already in its decision for Pride 2009 determined to announce that decision in the Serbian Official Gazette as a form of just satisfaction of complaint applicant.

GSA would particularly like to welcome the initiative of the Constitutional Court to evaluate the constitutionality of the Public Assembly Act because “the reasons stated in that decision (to ban the Pride 2011) indicate that the cause of confirmed violations is a systemic problem of mismatch of the current Public Assembly Act with the regulations of the Serbian Constitution from 2006”.

Namely, the current Public Assembly Act dates from 1992 and in many ways it is outdated. One of the most serious problems in it are the deadlines for appeal in the case of a ban on a gathering, since the Ministry of Interior (MUP) has the right to set the ban at least 12 hours before it takes place. This leaves a very short deadline to appeal to the court, which nevertheless does not delay the implementation of the ban, and the appeal procedure is regulated by the General Administrative Procedure Act, which means that the court on this appeal may decide by 30 or 60 days after receipt of the same, i.e. after the ban on the gathering. The Constitutional Court has just had this fact in mind when it made decisions on bans of Pride 2009 and 2011, where it stated that the applicants’ right to judicial protection and remedy was violated, and consequently the right to freedom of assembly, and it invoked certain decisions of the European Court of Human Rights in Strasbourg.

The need for a new Public Assembly Act was discussed in 2010 in the Working Group for improving the legal framework for freedom of assembly in Serbia, which consisted of representatives from a number of competent ministries as well as representatives of the following associations: Belgrade Centre for Human Rights, Women in Black and Gay Straight Alliance. Based on the recommendations of the Venice Commission, Working Group carefully analyzed all the aspects and experiences and made recommendations to be included in the draft of a new law. However, the Ministry of Interior as the official proposer of the law has not yet put in a draft of the new Public Assembly Act in the procedure.

GSA believes that this gap should be filled as soon as possible and also considers that it is very important that this draft be put in the procedure as soon as possible, with as broad as possible public debate about it, so that the majority of Serbian citizens can be made aware of the standards regarding freedom of assembly, which, if it is a peaceful rally, should apply to everyone – both the supporters and the opponents of any idea. The Alliance also believes that a broader dialogue on this subject, which would include many social factors, would increase people’s understanding of the many issues that have been in dispute, not only regarding Pride but more generally the freedom of assembly.

Here you can see the USS decision in integral form

GSA Info Center

Facebook

Twitter

YouTube