Public Protest, Democratic Order and Legal Responsibility

A politico-legal analysis on protests, acts of vandalism and the protection of diplomatic missions in the democratic state

Nga Isuf B. Bajrami

Introduction

Public protest constitutes one of the most important institutions of contemporary democracy. Through it, citizens exercise the right to express political, social, economic or ideological positions, directly participating in public life beyond the classical mechanisms of political representation. In this sense, protest is not only a form of freedom of expression, but also an instrument of democratic control over public power.¹

Since the end of the twentieth century and particularly in European constitutional democracies, the right to peaceful assembly has been considered an integral part of a pluralistic democratic order. The European Court of Human Rights has consistently emphasized that democracy is not reduced merely to majority rule, but also requires the protection of critical, dissenting and minority political views.²

However, the political and legal history of democratic states also demonstrates that public protests entail certain risks to public order, national security and institutional stability. In particular, when within protests there appear acts of vandalism, violence, intimidation or attacks on state institutions and diplomatic missions, the need arises to define the boundary between the legitimate exercise of fundamental freedoms and conduct that exceeds constitutional protection.³

The reported events during the protest held in Tirana, where according to official statements masked individuals removed and desecrated the flag of the Embassy of the State of Israel, place the debate precisely at this intersection between freedom, responsibility and public security. Beyond the incident itself, the issue raises broader questions regarding the role of organizers, the individual responsibility of participants, the state's obligations to protect diplomatic missions, and the manner in which modern democracies should respond to phenomena of political radicalization within public protests.?

From the perspective of the theory of the rule of law, neither can protest be collectively criminalized nor can vandalism be justified in the name of protest. Constitutional democracy requires a careful balance between the protection of fundamental freedoms and the guarantee of legal order. This balance constitutes the basis of the following analysis.

I. Peaceful Protest as a Constitutional and Democratic Right

1. The right of assembly as a foundation of pluralist democracy

In contemporary constitutional literature, the right to peaceful assembly is considered one of the prerequisites for the existence of a functioning democracy. Without the ability to assemble, protest and publicly express dissatisfaction, citizens would remain limited only to periodic electoral mechanisms.?

John Rawls argues that the legitimacy of a democratic system is not measured only by electoral procedures, but also by the real possibility of citizens to participate in public debate.? In a similar manner, Jürgen Habermas considers the public sphere and democratic communication as fundamental elements of political legitimacy.?

For this reason, Article 11 of the European Convention on Human Rights guarantees freedom of peaceful assembly, while the jurisprudence of the European Court has interpreted this right broadly and in favor of citizens.?

In the case "Plattform Ärzte für das Leben v. Austria", the Court emphasized that the state has not only a duty to refrain from arbitrary interference in protests, but also a positive obligation to ensure conditions for effective peaceful protest.?

In the case "Oya Ataman v. Turkey", the Court clarified that even protests causing temporary disruptions in public life enjoy legal protection, provided they retain a peaceful character.¹?

Therefore, from a politico-legal point of view, protest should not be seen as a threat to democracy, but as one of its mechanisms.

II. MORAL, POLITICAL AND ORGANIZATIONAL RESPONSIBILITY OF PROTEST ORGANIZERS

2.1. The concept of organizational responsibility in constitutional democracies

One of the most debated issues in public assembly law relates to the legal and political position of protest organizers. In contemporary European doctrine there is a clear distinction between individual responsibility for unlawful acts and organizational responsibility for the management of the protest.¹¹

The fundamental principle is that organizers cannot bear automatic responsibility for every act committed by individuals during a public assembly. Such an approach would create a chilling effect on the exercise of freedom of assembly and would undermine the very essence of pluralist democracy.¹²

However, organizers are not merely formal initiators of the protest. They have an important role in ensuring its peaceful conduct and in creating conditions that minimize the risk of incidents.

According to OSCE/ODIHR standards, organizers must act as responsible actors of public life, cooperating with state authorities and undertaking reasonable measures to preserve the peaceful character of the protest.¹³

2.2. The obligation of public transparency

A fundamental element of the democratic legitimacy of protest is transparency.

In European democratic practice, a protest gains greater credibility when citizens and institutions have clear knowledge of:

organizers;

political or civic objectives;

concrete demands;

methods of organization;

responsible structures for its conduct.

Transparency is not only an administrative issue. It serves as a safeguard against political manipulation, infiltration of radical elements and instrumentalization of participants by third actors.¹?

2.3. Distancing from violence and vandalism

One of the key tests of organizers' responsibility is their reaction to incidents.

When acts of vandalism, attacks on institutions or other forms of violence appear during a protest, organizers have the moral and political obligation to immediately distance themselves publicly from such actions.¹?

Failure to distance does not automatically create criminal responsibility, but may produce serious political and ethical consequences.

In the literature on social movements, the ability of organizers to control the public narrative of the protest is considered decisive for preserving its legitimacy.¹?

When violent acts remain without reaction or are relativized, the perception is created that they are tolerated or implicitly accepted.

III. DESECRATION OF A DIPLOMATIC FLAG AND THE INTERNATIONAL LEGAL DIMENSION

3.1. Legal status of diplomatic missions

Under international law, diplomatic missions enjoy special protection due to the role they play in relations between states.¹?

This legal regime is codified in the Vienna Convention on Diplomatic Relations of 1961, considered one of the fundamental instruments of modern diplomatic law.¹?

According to Article 22 of the Convention, the receiving state has a special obligation to take all appropriate measures to protect the diplomatic mission against any intrusion, damage or impairment of its dignity.¹?

This obligation is not limited only to the embassy building, but also includes its official symbols.

3.2. The diplomatic flag as a legal and political symbol

The flag of a state in a diplomatic mission does not represent merely a material object.

In international law it represents sovereignty, state identity and the official presence of that state on the territory of another state.²?

For this reason, actions aimed at removing, damaging or desecrating a diplomatic flag have legal and political significance that goes beyond ordinary symbolic protest.

Although symbolic forms of political expression may be protected by freedom of expression, this protection is not absolute and must be balanced with the state's international obligations to protect diplomatic missions.²¹

3.3. Distinction between political protest and vandalism

One of the main challenges of modern jurisprudence is defining the boundary between symbolic protest and vandalism.

The ECtHR has consistently held that freedom of expression does not automatically include all forms of conduct.²²

When actions shift from symbolic expression to physical damage, threat or disturbance of public order, the state may intervene proportionately to protect legitimate interests of a democratic society.

Therefore, the desecration of a diplomatic flag cannot automatically be identified with peaceful protest. The legal assessment must be based on concrete circumstances, evidence and proportionality standards.

IV. MASKED PERSONS, PUBLIC SECURITY AND CHALLENGES OF CONSTITUTIONAL DEMOCRACY

4.1. Anonymity in public space and the concept of democratic responsibility

One of the most debated issues in contemporary security theory concerns the presence of masked individuals during mass protests.

In democratic societies there is a continuous tension between protection of individual freedoms and the need to guarantee public order. This tension becomes particularly visible when participants choose to conceal their identity.

On one hand, liberal doctrine accepts that in certain circumstances individuals may seek anonymity due to political beliefs or fear of stigmatization.²³

On the other hand, democratic states are based on the principle of individual accountability. Every citizen participating in public life must be able to bear responsibility for their actions in case of legal violations.²?

4.2. Masked individuals as a risk factor for public order

Studies of public security and crowd behavior show that anonymity may influence individual behavior within crowds.

The theory of deindividuation, developed by Philip Zimbardo and other social psychologists, argues that individuals who feel unidentifiable are more likely to engage in behaviors they would not normally undertake.²?

For this reason, many European legal systems consider masking during protests as a factor requiring increased monitoring by public authorities.

This does not mean that every masked person is an offender. Such a conclusion would be legally unacceptable. However, masking increases difficulties in identifying perpetrators of potential violent or vandalistic acts.²?

4.3. Radical infiltration and the phenomenon of "spoilers"

The history of protests in modern democracies shows that one of the greatest risks to peaceful protests is infiltration by individuals or groups who do not share the objectives of organizers.

Social movement literature uses the concept of "spoilers" or disruptive actors, referring to actors who seek to alter the direction of the protest, produce incidents or create political tensions.²?

These actors may have different motives:

ideological radicalization;

political provocation;

media gain;

delegitimization of the protest;

encouragement of confrontation with state institutions.

V. SPONTANEOUS PROTESTS AND NOTIFICATION REQUIREMENT

5.1. Spontaneous protest in European standards

European standards accept that not every protest can be planned in advance. Spontaneous reactions to political developments, international events or state decisions may require immediate public response.²?

For this reason, the ECtHR has recognized that spontaneous protests may enjoy legal protection even without prior notification, provided they remain peaceful and do not pose a serious risk to public order.²?

5.2. Importance of coordination with authorities

In a democratic state, prior notification should not be understood as a mechanism of political control over protest.

On the contrary, its primary function is to ensure the safety of the protesters themselves, other citizens and public institutions.³?

Through prior notification, authorities may:

plan security measures;

prevent clashes;

protect sensitive institutions;

guarantee effective exercise of the right of assembly.

VI. PRESUMPTION OF INNOCENCE AND PROHIBITION OF COLLECTIVE GUILT

6.1. Presumption of innocence

One of the foundations of the rule of law is the principle that every person is considered innocent until proven guilty in accordance with the law.³¹

This principle is not only a procedural criminal rule, but a fundamental safeguard against political and institutional arbitrariness.

Therefore, in the absence of verified evidence, responsibility cannot be attributed to:

protest organizers;

political figures;

members of parliament;

businesspersons;

specific social groups.

6.2. Prohibition of collective responsibility

Another fundamental principle of modern law is individualization of responsibility.

Criminal responsibility is personal.³²

This means that the actions of some individuals cannot automatically be attributed to all protesters or organizers.

VII. COMPARATIVE ANALYSIS

7.1. Germany

Germany is considered one of the most developed constitutional systems in the protection of freedom of assembly. Article 8 of the Basic Law guarantees peaceful assembly without weapons.³³

However, historical experience has led to stricter approaches regarding masking during demonstrations.³?

The Federal Constitutional Court has consistently held that protest is strongly protected, but violence is not covered by constitutional protection.³?

7.2. France

France combines strong protest rights with strong public order traditions.

Following the "Yellow Vests" movement, stricter measures were introduced regarding identification of violent actors.³?

7.3. United Kingdom

The UK model relies on cooperation between organizers and police authorities.³?

7.4. United States

US protection of protest is strongly linked to the First Amendment.³?

However, even in the US, there is a clear distinction between expression and conduct threatening public order, as demonstrated by the events of 6 January 2021.³?

VIII. RECOMMENDATIONS FOR STATE INSTITUTIONS AND PROTEST ORGANIZERS

8.1. For state institutions

In a democratic state, institutional response must be proportional, lawful and evidence-based.

Competent institutions must:

guarantee the right to peaceful assembly;

protect diplomatic missions and public institutions;

identify perpetrators of possible criminal acts;

avoid collective stigmatization of protesters;

respect the standards of the European Convention on Human Rights.

Investigations must be objective, professional and independent from political pressures.?²

8.2. For protest organizers

Organizers must develop a responsible democratic protest culture.

This includes:

public identification of organizers;

publication of objectives and demands;

coordination with competent authorities;

designation of internal monitoring structures;

immediate distancing from acts of violence and vandalism.

In modern democracies, the credibility of a protest is directly linked to its ability to maintain a peaceful character.?³

8.3. For civil society and the media

Civil society and the media play an important role in maintaining democratic balance.

They must:

report on the basis of facts;

avoid speculation;

refrain from premature attribution of responsibility;

contribute to rational public debate.

A public discourse based on emotions, polarization and unverified accusations may cause greater harm than the incident itself.??

IX. GENERAL CONCLUSIONS

From the above analysis, it follows that peaceful protest remains one of the fundamental pillars of the democratic constitutional order and an essential instrument of civic participation in public life.

However, the right to protest is not unlimited. It is exercised within the framework of the rule of law and in respect of the rights of others, public order, and the international obligations of the state.

Protest organizers bear moral and organizational responsibility for preserving the peaceful nature of assemblies and for distancing themselves from any form of violence or vandalism.

The desecration of the flag of a diplomatic mission cannot automatically be identified with peaceful protest and requires legal assessment in light of domestic and international law.

The presence of masked individuals raises serious concerns for public security, democratic transparency and the identification of potential perpetrators of unlawful acts.

However, respect for the presumption of innocence requires that responsibility not be attributed to organizers, political figures, members of parliament, businesspersons or specific social groups without clear, verifiable evidence and lawful procedures.

Ultimately, the strength of a democracy is measured not only by its ability to guarantee protest, but also by its ability to protect law, institutions and fundamental rights without undermining civil liberties.

X. CONSTITUTIONAL AND LEGAL FRAMEWORK OF ALBANIA

10.1. The right of assembly in the Albanian constitutional order

In the Republic of Albania, the right to peaceful assembly constitutes one of the fundamental freedoms guaranteed by the Constitution. This right is part of the catalogue of political freedoms ensuring active citizen participation in public life and the functioning of a pluralist democratic order.??

The Constitution recognizes the right of citizens to organize and assemble peacefully, considering it an inseparable element of the democratic and rule-of-law state.

Furthermore, under Article 17 of the Constitution, restrictions on fundamental rights are permitted only when prescribed by law, necessary in a democratic society, and proportionate to the aim pursued.??

This constitutional standard is consistent with European jurisprudence on proportionality and protection of fundamental freedoms.

10.2. Relationship between the Constitution and the European Convention on Human Rights

An important element of the Albanian legal system is that the European Convention on Human Rights forms part of the domestic legal order and enjoys a special normative status.??

As a result, the interpretation of the right to protest in Albania must be carried out not only in light of the Constitution but also in accordance with the standards developed by the European Court of Human Rights.

This implies that Albanian authorities are obliged to guarantee:

freedom of peaceful assembly;

proportionality of state interference;

effective protection of peaceful protesters;

investigation of unlawful acts affecting public order.

10.3. Obligations of the Albanian state regarding diplomatic missions

In addition to guaranteeing freedom of assembly, the Albanian state has clear international obligations to protect diplomatic missions.

These obligations derive from the Vienna Convention on Diplomatic Relations (1961), ratified and implemented by the Republic of Albania.??

In this framework, Albanian institutions have a positive duty to:

protect the physical integrity of embassies;

ensure the safety of diplomatic personnel;

protect official symbols of diplomatic missions;

prevent acts that undermine the dignity of diplomatic representations.

XI. METHODOLOGY

This study is based on a doctrinal-legal and comparative analysis method.

The doctrinal-legal analysis is based on:

the Constitution of the Republic of Albania;

the European Convention on Human Rights;

the Vienna Convention on Diplomatic Relations;

jurisprudence of the European Court of Human Rights;

OSCE/ODIHR standards;

documents of the Venice Commission.

The comparative method has been used to analyze practices of Germany, France, the United Kingdom, and the United States regarding public protests, public order and organizer responsibility.

The methodological approach aims to avoid biased political interpretations and to rely on internationally recognized legal standards.

BIBLIOGRAPHY

Normative sources

Constitution of the Republic of Albania.

European Convention on Human Rights.

Vienna Convention on Diplomatic Relations (1961).

Grundgesetz für die Bundesrepublik Deutschland.

Public Order Act 1986 (United Kingdom).

Case law

Plattform "Ärzte für das Leben" v. Austria (1988).

Oya Ataman v. Turkey (2006).

Bukta and Others v. Hungary (2007).

Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001).

McCann and Others v. United Kingdom (1995).

Texas v. Johnson (1989).

R (Laporte) v Chief Constable of Gloucestershire (2006).

Brokdorf Decision, Federal Constitutional Court (1985).

Scholarly literature

Beccaria, Cesare. On Crimes and Punishments.

Brownlie, Ian. Principles of Public International Law.

Dahl, Robert. Polyarchy: Participation and Opposition.

Denza, Eileen. Diplomatic Law.

Della Porta, Donatella & Diani, Mario. Social Movements: An Introduction.

Dworkin, Ronald. Taking Rights Seriously.

Garland, David. The Culture of Control.

Habermas, Jürgen. Between Facts and Norms.

Locke, John. Two Treatises of Government.

Rawls, John. Political Liberalism.

Shaw, Malcolm. International Law.

Stone, Geoffrey. Perilous Times.

Sunstein, Cass. Republic.com 2.0.

Tarrow, Sidney. Power in Movement.

Zimbardo, Philip. The Human Choice: Individuation, Reason and Order versus Deindividuation.

International documents

OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly, Third Edition.

Venice Commission, Reports and Opinions on Freedom of Assembly.

United Nations Human Rights Committee, General Comments on Freedom of Assembly.

United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Footnotes:

1. John Locke – Two Treatises of Government

John Locke, Two Treatises of Government (Cambridge University Press, 1988 [orig. 1689]), Book II, ch. XIX, paras 222–243.

Locke develops the theory of social contract where political power is conditional upon the consent of the governed. He recognizes the right of resistance when the state violates natural rights. This concept forms a theoretical basis for protest as a mechanism of democratic control.

2. ECtHR – Handyside v United Kingdom

European Court of Human Rights, Handyside v United Kingdom, App no. 5493/72, Judgment 7 Dec 1976, paras 49–50.

A landmark judgment affirming democratic pluralism and protecting expressions that "offend, shock or disturb".

3. Ronald Dworkin – Freedom's Law

Ronald Dworkin, Freedom's Law (Harvard University Press, 1996), ch. 1–3.

Rights function as "trumps" over majority politics, limiting state interference in freedom of expression.

4. OSCE/ODIHR & Venice Commission

OSCE/ODIHR & Venice Commission, Guidelines on Freedom of Peaceful Assembly, 3rd ed. (2020), paras 1.1–3.5.

Establishes the "facilitate, not restrict" standard for states and defines the role of organizers.

5. Robert Dahl – Polyarchy

Robert A. Dahl, Polyarchy: Participation and Opposition (Yale University Press, 1971), ch. 1–2.

Democracy as a competitive system where protest is a mechanism of political control.

6. John Rawls – Political Liberalism

John Rawls, Political Liberalism (Columbia University Press, 1993), Lecture VI, pp. 212–254.

Concept of "public reason" and pluralist consensus in democratic society.

7. Jürgen Habermas – Between Facts and Norms

Jürgen Habermas, Between Facts and Norms (MIT Press, 1996), ch. 3–4.

Discursive democracy where legitimacy arises from public communication.

8. Article 11 ECHR

European Convention on Human Rights, Article 11(1)–(2).

Guarantees peaceful assembly and allows restrictions only if lawful, necessary and proportionate.

9. Plattform Ärzte für das Leben v Austria

ECtHR, App no. 10126/82, Judgment 21 June 1988, paras 32–34.

Positive obligation of the state to protect protests from third-party interference.

10. Oya Ataman v Turkey

ECtHR, App no. 74552/01, Judgment 5 Dec 2006, paras 38–42.

Proportionality and tolerance of temporary disruptions.

11. Aileen Kavanagh

Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009), ch. 5.

Analyzes proportionality in UK constitutional law.

12. Thomas Emerson

Thomas Emerson, The System of Freedom of Expression (Random House, 1970), pp. 6–9.

Four functions of freedom of expression in democracy.

13. OSCE Guidelines

OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly (2020), paras 2.1–4.3.

State and organizer obligations.

14. Della Porta & Diani

Donatella Della Porta & Mario Diani, Social Movements (Wiley, 2020), ch. 6.

Structure of social movements and radicalization processes.

15. Venice Commission Reports

Venice Commission, CDL-AD(2019)017, paras 14–21.

Limits of state interference in assemblies.

16. Sidney Tarrow

Sidney Tarrow, Power in Movement (Cambridge University Press, 2011), pp. 23–45.

Protest as "contentious politics".

17. Eileen Denza

Eileen Denza, Diplomatic Law (Oxford University Press, 2016), pp. 80–115.

Inviolability of diplomatic missions.

18. Vienna Convention

Vienna Convention on Diplomatic Relations, Article 22(1)–(2).

Absolute protection of diplomatic missions.

19. Malcolm Shaw

Malcolm N. Shaw, International Law (Cambridge University Press, 2017), pp. 695–710.

State responsibility in international law.

20. Ian Brownlie

Ian Brownlie, Principles of Public International Law (Oxford University Press, 2012), pp. 350–365.

21. Stankov v Bulgaria

ECtHR, Apps nos. 29221/95 & 29225/95, Judgment 2 Oct 2001, paras 85–94.

22. Geoffrey Stone

Geoffrey R. Stone, Perilous Times (W.W. Norton, 2004), ch. 2–4.

23. Philip Zimbardo

Philip Zimbardo, The Lucifer Effect (Random House, 2007), ch. 7–9.

24. David Garland

David Garland, The Culture of Control (Oxford University Press, 2001), ch. 1.

25. Bukta v Hungary

ECtHR, App no. 25691/04, Judgment 17 July 2007, paras 36–39.

26. Venice Commission Report

CDL-AD(2013)003, paras 12–18.

27. Article 6(2) ECHR

Presumption of innocence as a fundamental procedural guarantee.

28. Cesare Beccaria

Cesare Beccaria, On Crimes and Punishments (1764), ch. 2–6.

29. German Basic Law Article 8

Grundgesetz (1949), Article 8(1)–(2).

30. Brokdorf Decision

Bundesverfassungsgericht, BVerfGE 69, 315 (1985), pp. 343–360.

31. Conseil Constitutionnel

Decision No. 2019-780 DC, paras 5–12.

32. Public Order Act 1986

Sections 11–14 (UK law on assemblies).

33. R (Laporte) v Chief Constable of Gloucestershire

[2006] UKHL 55, paras 44–52.

34. Texas v Johnson

491 U.S. 397 (1989), pp. 414–420.

35. January 6 Report

US House Select Committee, Final Report (2022), ch. 1–3.

36. McCann v United Kingdom

ECtHR (1995), paras 148–150.

37. Cass Sunstein

Cass R. Sunstein, Republic.com 2.0 (Princeton University Press, 2007), ch. 3.

38. Geoffrey Stone (free speech in crisis)

Stone, Perilous Times, ch. 5–6.

39. Philip Zimbardo (deindividuation)

Zimbardo, The Lucifer Effect, ch. 9–11.

40. David Garland (social control)

Garland, Culture of Control, ch. 2.

41. OSCE/ODIHR Guidelines

OSCE/ODIHR (2020), paras 1.1–5.0.

42. Handyside v United Kingdom (standard reaffirmed)

ECtHR, paras 49–50.

43. Plattform Ärzte (positive obligation)

ECtHR, paras 32–34.

44. Oya Ataman (state tolerance)

ECtHR, paras 38–42.

Tirana, 21.06.2026