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2020
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Law

PHILOSOPHY OF FREEDOM OF PEACEFUL ASSEMBLY IN CONSTITUTIONAL PRINCIPLES IN RUSSIA AND GERMANY

Salenko, Alexandr

Abstract. When it comes to principles of law, most often these issues in the legal consciousness of ordinary people are misunderstood and they are perceived solely as theoretical matter, as something completely out of touch with the real life on the ground and something without any practical importance. In this material, the author proves the opposite, namely, he shows on concrete cases when constitutional principles directly affect the nature of the actions of all subjects of freedom of peaceful assembly in Russia and Germany. The main attention is focused on the written principles of freedom of peaceful assembly, which are stipulated in the constitutional legislation of the two countries, namely, the author studies the content of two main constitutional principles of the freedom of assembly: principles of peacefulness and unarmed assembly. In addition, the article systematically reviews the existing unwritten principles of freedom of peaceful assembly, which originate in the provisions of international treaties, including the provisions of the “soft law”, which forms as a specific source of international law. Based on comparative research the author provides recommendations to amend the current federal law by introducing a separate chapter which would describe the freedom of peaceful assembly as the most important constitutional legal value and which would also consolidate the set of fundamental principles of this constitutional freedom: the presumption in favour of holding peaceful assemblies; the state’s positive obligation to facilitate and protect peaceful assembly; proportionality and on-discrimination of any restrictions imposed on freedom of assembly; the principle of good administration and transparency of the decision-making process, as well as the liability of the regulatory authority for the violation of the constitutional principles of freedom of peaceful assembly. The author ended with the conclusion that it is necessary to enshrine explicitly in the Russian legislation the positive obligation of state and municipal authorities to monitor the freedom of peaceful assembly, namely the obligation to collect, systematize and publish official statistical information on the number and types of public events heldin settlements of the Russian Federation, as well as the information about the number and reasons for ban of the public event during the notification procedure.

Keywords: constitutional principles; assemblies; meetings; demonstrations; marches; pickets; freedom of peaceful assembly; public assembly law; presumption in favour of holding peaceful assemblies; soft law; OSCE; United Nations; Germany; Russia; Federal Republic of Germany; Russian Federation; German Democratic Republic.

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