The right to peaceful assembly is one of the most important fundamental rights in a democratic constitutional state. It is through the exercise of this right that (among other things) freedom of expression and control of power can be exercised over the leadership of a country. However, the outbreak of the coronavirus pandemic in the spring of 2020 led to the introduction of special legal regimes in some countries, which also entailed restrictions on fundamental rights. Of these, the restriction of the right to peaceful assembly is of particular importance for the reasons outlined above. The present study examines the practice in European countries where the right of assembly was not only restricted, but also prohibited. The study describes the content of the restrictive rules and draws conclusions by analysing the constitutional court decisions that have examined them. An important conclusion of the study is that, in similar cases in the future, countries should act with greater leniency in respect of the right to peaceful assembly in order to protect against epidemics.
Keywords: right to peaceful assembly, special legal order, ban of the right of assembly, restriction of fundamental rights, constitutional court decisions, comparative law
The right to peaceful assembly,[2] as a fundamental right of communication and as a fundamental means of monitoring the democratic exercise of power,[3] is of great importance not only under normal law, but also under special legal order. However, due to the specific nature of the special legal order[4] (i.e. that the purpose of the special legal order is to restore as soon as possible the normal legal order, which has been disturbed, and to deal with and remedy the situation or state of affairs which has given rise to the special legal order) situations may arise, where, for example, the requirement to reduce social contact (e.g. in the event of a pandemic) or to maintain public safety (e.g. in a war or civil war situation) may limit the exercise of the right to assembly.
Due to the COVID-19 pandemic in spring 2020, various special legal orders were introduced across Europe (e.g. state of emergency in Hungary), which also entailed restrictions on various fundamental rights (e.g. the right to free movement through curfews). Although not in all European countries, in many cases the right to assembly was also restricted. In this study, I will review the practices of countries where the right to peaceful assembly was not only restricted, but also banned in order to mitigate the effects of the COVID-19 pandemic. Following a review of the regulatory practice in each of the (concerned) countries, I will also examine the assessment of these rules by the national constitutional courts, which raises the questions: ad1) what were the reasons for the total ban on the right of assembly; and ad2) what conclusions can be drawn from the practice of the constitutional courts of each of the states concerned?
In this study, I will examine these issues by analysing the legislation of the (concerned) countries and the decisions of the constitutional courts. The main rea-
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son for narrowing the focus of the analysis (i.e. to examine only the practice of countries that introduced a total ban on the right to assembly) is that any other restriction on the right to assembly (e.g. the French example, where participation in assemblies was subject to a COVID card) did not fully empty the content of the right to peaceful assembly, but an indiscriminate total ban did.
Before examining the issues identified above, it is important to review what exactly is meant by the right to peaceful assembly in "peacetime".
The right to freedom of assembly is a first-generation right,[5] which includes political rights, fundamental rights of communication[6] and freedom[7] of assembly, and gives everyone the right to peaceful assembly. In its Decision 4/2007 (II. 13.) AB, the Hungarian Constitutional Court ruled that the freedom of peaceful assembly is a prerequisite and fundamental value of a democratic society.[8] And events held under the right of assembly are inextricably linked to the value of democratic publicity, these events allow citizens to criticise the political process and influence it through their protests. Peaceful events are therefore also of value for the consolidation of political and social order and the legitimacy of representative bodies.[9]
The right to peaceful assembly has got extensive practice both internationally[10] and in Hungary. For example, the European Court of Human Rights (hereinafter: ECtHR)[11] has pointed out in several judgments (in the context of freedom of assembly) that one of the purposes of the freedom of assembly is to provide a space for public debate and protest.[12] Consequently, the protection of freedom of opinion and expression is one of the purposes of the freedom of assembly protected under Article 11 of the European Convention on Human Rights (hereinafter: ECHR).[13] In addition, the ECtHR has in several judgments reaffirmed its position that everyone has the right to freedom of peaceful assembly, protected by Article 11 of ECHR.[14] In this context, it is also worth highlighting the Brokdorf decision of the German Constitutional Court, which can be considered one of the most influential decisions on the right of assembly to date. In this decision, the German Constitutional Court stated, inter alia, that the right of assembly is an indispensable component of the functioning of a democratic society as a framework for the formation of political opinions and the political will, and that the court considers as an assembly any event which has the specific aim of drawing the attention of the community to an opinion, and that it must protect this freedom regardless of the content of the opinion expressed.[15] The importance of the peaceful nature of demonstrations has also been repeatedly underlined by the Venice Commission in its recommendations, when it confirmed that the freedom of assembly is a fundamental democratic right that cannot be interpreted restrictively and includes all peaceful assemblies.[16]
The Hungarian Constitutional Court has addressed the right of assembly in several decisions. In this context, it is important to highlight Decision 28/2014 (IX. 29.) AB, in which the Hungarian Constitutional Court ruled that the right of assembly in the constitutional sense protects not only those assemblies held in public space that are directly political, but also other assemblies that are not directly political, but are intended to discuss public affairs in the broad sense. According to the Hungarian Constitutional Court, the assemblies protected by the right of assembly are not limited to gatherings, assemblies, grand assemblies, and parades held in a traditional form. When it comes to taking a position on the question whether an assembly is covered by the right of assembly, it is of crucial importance whether the assembly is typically oriented to the simple expression of opinions, the dissemination of views for a common purpose, or simply for entertainment.[17] In its Decision 14/2016 (VII.18.) AB, the
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