Human rights in Ukraine – 2005: VIII. Freedom of Assembly

LEGAL REGULATION OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY

1.1.   THE CONSTITUTION OF UKRAINE

The right to peaceful assembly is guaranteed by Article 39 of the Ukrainian Constitution:

“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.

Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons”.

The Ukrainian Constitutional Court in a Ruling from 19 April 2001 noted that the right to peaceful assembly is an “inalienable and inviolable” right, and gave an official interpretation of Article 39 of the Constitution, in particular with regard to notification in advance. The Constitutional Court also stated that there should be a separate law to provide specification for particular provisions of Article 39, but such a law has yet to be adopted.

1.2.  SPECIAL DETAILS OF COURT PROCEEDINGS IN CASES INVOLVING RESTRICTIONS ON FREEDOM OF ASSEMBLY

Article 182 of the Code of Administrative Justice of Ukraine (CAJU)[1]) outlines “special details of proceedings in cases involving administrative applications from those holding authority to allow a restriction of the right to peaceful assembly”, whereas Article 183 of the CAJU gives the “special details of proceedings in cases involving administrative applications to have limitations of the right to peaceful assembly revoked”.  These articles establish special time periods for reviewing such cases.

Article 182 stipulates that state executive bodies and bodies of local self-government, on receiving notification of a planned gathering have the right to address an application to their local administrative court to have the gathering banned or various kinds of restrictions on the freedom of assembly imposed. In accordance with the CAJU the administrative court must review the case within three days of the application being lodged, and in the event that the proceedings have been started less than three days before the intended holding of the gathering, then immediately.  A court application which arrives on the day that the meeting is planned to take place, or after it has occurred, is not reviewed. Court rulings in such cases must be enforced without delay.

Article 183 establishes that the organizers of the meeting have the right to lodge an appeal with the administrative court for the place where the gathering is planned “with a court application to remove the restriction on exercising the right to peaceful assembly imposed by state executive bodies or bodies of local self-government after being notified of the planned gathering”. The procedural requirements as regards time limits for reviewing the appeal are the same as in Article 182.

These special details have yet to be clearly defined in law. As a result the periods for reviewing such cases are systematically infringed, with court bans being issued several hours before the beginning of the peaceful gathering, this clearly violating the right to assembly.

However, monitoring of the right to peaceful assembly in Ukraine carried out by the civic organization – Institute “Respublica”  from 2004 – 2005 found that restrictions and obstacles against exercising freedom of assembly in the majority of cases were not  imposed by the bodies notified by meeting organizers (that is, local state administrations or executive bodies of local self-government), but rather by agencies of the Ministry of Internal Affairs (with or without the knowledge of the relevant local state administrations or executive bodies of local self-government).  According again to Article 183 of the CAJU organizers of meetings may not lodge court appeals against those whom they did not notify (for example, agencies of the Ministry of Internal Affairs).

Furthermore, the CAJU does not set down special time periods for appeals against rulings of district administrative courts on banning meetings or imposing restrictions on freedom of assembly.

Case law from Ukrainian court practice shows that although in the majority of cases appeal courts overturn the rulings of courts of first instance on banning gatherings, the review process of such appeals can last a month from when the appeal was lodged. In this way, even if the appeal administrative court accepts that the district administrative court made a mistake and rules that the meeting may be held at the time and in the place planned by its organizers, in fact the right of the organizers and participants in the gathering to hold their meeting in the designated time and place cannot now be restored.

The demand that special time frames for judicial review of an appeal be established so that the organizers or participants in an assembly may still restore their rights is stipulated by the OSCE/ODIHR Guidelines

for drafting laws pertaining to the freedom of assembly (October 2004). However until now, for the reasons mentioned above (the long periods required for judicial review of appeals), the majority of organizers of meetings in Ukraine, in the event of a ban being imposed on holding the gathering, do not lodge an appeal with the relevant appeal courts.

1.3. THE USE IN UKRAINE OF LEGISLATION ON PEACEFUL ASSEMBLY DATING FROM THE FORMER USSR

In Ukraine there is no legislation which regulates the exercising of the right to peaceful gatherings, aside from those provisions and restrictions of a general nature mentioned above. This was discussed in detail in last year’s annual report[2].

However the state authorities, bodies of local self-government and the courts are to this day using normative acts of the former USSR, like for example the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR» which we consider to be unlawful.

The Decree runs counter to the Constitution of Ukraine, in particular, Article 39 which stipulates procedure for notifying the authorities on mass gatherings organized, and not procedure for seeking permission to hold them, and which does not contain limitations with regard to when notification must be given. The Decree also contravenes other provisions of the Constitution.

Yet such regulations as, for example, “Temporary Regulations on procedure for review by the city executive committee of issues involving the holding of gatherings, political rallies, marches and demonstrations in the city of Kharkiv”, adopted by the Kharkiv City Council on 7 March 2004 (No. 221) and still in effect now, directly refer to the above-mentioned Decree.  The Kharkiv document states: “The Temporary Regulations on procedure for review by the city executive committee of issues involving the holding of gatherings, political rallies, marches and demonstrations were drawn up in accordance with … the Decree Presidium of the Supreme Soviet of the USSR «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR»  (in effect on the territory of Ukraine in accordance with the Resolution of the Verkhovna Rada of Ukraine from 12.09.91 “«On the temporary legal force of certain legislative norms of the USSR on the territory of Ukraine»). The Kharkiv City Council has thus effectively taken upon itself the powers of the Constitutional Court of Ukraine in deciding that Decree mentioned complies with the current Constitution of Ukraine.

1.4. LIABILITY FOR VIOLATION OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY

Law enforcement agencies apply general legal norms on ensuring public order, yet almost all individuals detained when a mass gathering is dispersed are charged under Articles 185 and 185-1 of the Code of Administrative Offences of Ukraine (CAO).

Article 185 of the CAO – “malicious disobedience to a lawful instruction or demand from a police officer” allows for a fine from 8 to 25 times the minimum monthly wage before tax (approximately 30 to 85 US dollars), community service for a period from one to two months, with twenty percent deduction from wages or administrative arrest for up to 15 days.

Article 185-1 of the CAO – “breach of the procedure for organizing and holding meetings, political rallies, marches and demonstrations” imposes various penalties for the participants and organizers of these gatherings. Participants receive a warning or fine of between 10 to 25 times the minimum monthly wage before tax, while the organizers can be liable to a fine from 20 to 100 times the minimum monthly wage before tax (from around 70 to 350 US dollars), community service for a period from one to two months, with twenty percent deduction from wages or administrative arrest for up to 15 days.  The same penalties as for organizers are to be imposed on participants if they have previously done the same thing.  This difference arose as a result of the fact that the Verkhovna Rada of Ukraine on 2 June 2005 introduced amendments to the CAO which remove administrative arrest as punishment for participants in gatherings if they have breached “the procedure for organizing and holding meetings” for the first time.

However in the majority of cases it is specifically Article 185 of the CAO which is applied to both participants in and organizers of meetings because it is considerably easier for police officers to convince a Ukrainian court that there was “malicious disobedience”, than that there was a “breach of the procedure for organizing and holding meetings”, since for the former, in practice, Ukrainian courts find the evidence of the police officers themselves sufficient.

Additionally, in 2005 law enforcement officers applied legal norms of Article 279 of the Criminal Code of Ukraine on liability for blocking transport routes. This article imposes fines of up to 50 times the minimum monthly wage before tax (around 170 US dollars), community work for up to two years, custodial arrest for a period of up to six months or limitation of liberty for up to three years. However throughout 2005, according to information from the State Court Administration, nobody was convicted of this offence.

From 2004 – 2005, parliament tried to change the form of the offence set out in Article 279 of the Criminal Code.  For example, Draft Law No. 3091 from 10 February 2003 “On introducing amendments to Article 279 of the Criminal Code of Ukraine (on liability for blocking transport routes) suggested making an exception in the application of this Article to cover cases where citizens are exercising their right to peaceful assembly. However the Verkhovna Rada of Ukraine on 2 June 2005 rejected the Draft Law which had been passed at its first reading on 7 October 2004.

In Ukrainian legislation there is a penalty for “unlawful obstruction of the organizing or holding of gatherings, political rallies, marches and demonstrations (Article 340 of the Criminal Code of Ukraine) for officials or for any individuals if their actions were carried out with the use of physical violence, of community work for a period of up to two years, custodial arrest for a period of up to six months or limitation of liberty for the same period. However there were no cases recorded during 2005 of any officials incurring punishment for obstructing the right to free assembly.

For example, on 21 April the then  Mayor of Kyiv, Oleksandr Omelchenko, personally burst into the tent city near the Mayor’s Office, ripped down several posters and seized a video camera from the tent occupants. The police standing nearby did not intervene, and although the behaviour of Kyiv’s Mayor was a subject of discussion in the Verkhovna Rada, the law enforcement agencies brought no charges against Omelchenko.

On the other hand the capital’s police did launch a criminal investigation under Article 293 of the Criminal Code of Ukraine – “the breaching of public order by a group” – against the members of the Ukrainian National Assembly who during the night of 30 May 2005 in Kyiv destroyed the tent city of opponents of Mayor Omelchenko and inflicted injuries on the tent inhabitants.  In October 2005 the case was submitted to the Shevchenkivsky District Court in Kyiv, however as of 1 March 2006 the court review had not been concluded. The accused claimed during the investigation that they had been incited by officials of the Kyiv City State Administration to break up the tent city, however the investigators did not pay attention to this testimony.

1.5. LEGISLATIVE ACTS OF BODIES OF LOCAL SELF-GOVERNMENT CONCERNING THE RIGHT TO FREE ASSEMBLY

The Constitution stipulates that the right to free assembly may be limited only in accordance with the law. Despite this, local authorities often pass their own legal acts which have no relation to the law and which thereby flagrantly violate the freedom of peaceful assembly.

Such rulings were passed during the 1990s and 2000s by city councils of the majority of regional centres in Ukraine, in particular, in Kyiv, Kharkiv, Donetsk, Dnipropetrovsk, Sumy, Lviv, Kirovohrad, Poltava and in some district centres (for example, Izyum in the Kharkiv region, Okhtyrka in the Sumy region, and others).

One should add here that, in accordance with Article 92 of the Constitution, the human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen are determined exclusively by the laws of Ukraine, and not by rulings passed by local executive bodies.

In turn, the Law of Ukraine “On local self-government in Ukraine” empowers executive bodies of village, settlement and city councils with only “resolving in accordance with the law issues pertaining to the holding of meetings, political rallies, demonstrations, sport, shows and other mass events and ensuring that public order is maintained during them” (Article 38 of the Law). However as an analysis carried out by the Institute «Respublica» showed, all rulings passed by Ukrainian bodies of local self-government on freedom of assembly are in contravention of the Constitution of Ukraine – a law of direct effect – and limit civil liberties. Most of these rulings of local councils are based on the Decree already mentioned of the Presidium of the Supreme Soviet of the USSR and establish a ten day period for notification of a planned event. Moreover, such rulings establish significant and anti-constitutional limitations on the right to freedom of assembly.

“Temporary Regulations on procedure for review by the city executive committee of issues involving the holding of gatherings, political rallies, marches and demonstrations in the city of Kharkiv” in its turn stipulates that “as a result of a review of the notification (of the planned event – author) a decision may be taken to prohibit the holding of a mass event”.  This regulation means that in Kharkiv permission-based rules and procedure have effectively been introduced for holding gatherings. However, it should be mentioned, that the given rules and procedure were not applied in the city during 2005.

On 17 November 2005 the Kyiv City Council adopted a ruling “On introducing amendments to the Ruling of the Kyiv Rada from 24 November 1999 No. 317/418 “On defining the rules and procedure for organizing and holding nongovernmental mass public events of a political, cultural-education, sport, recreational or other nature in Kyiv”.  According to this, in the centre of the capital (including near the buildings housing the Secretariat of the President, the government and the Kyiv State Administration , “only overall state or city events are held in accordance with Decrees of the President of Ukraine, Resolutions and Instructions of the Cabinet of Ministers of Ukraine, Rulings of the Kyiv City Council, Instructions of the Kyiv City Council, Instructions of the executive body of the Kyiv City Council (the Kyiv City State Administration”.  In addition, Point 12 of the given Ruling of the Kyiv Council states: “During official state events in the residence of the President of Ukraine, in order to ensure security, to restrict the movement of pedestrians and vehicles along Bankova Street from Building No. 3 to Lyuteranska Street”.

This ruling therefore runs counter to the Constitution of Ukraine in limiting freedom of assembly by limiting where they can be held.

On 7 March 2006 the Shevchenkivsky District Court in Kyiv revoked the Kyiv City Council’s Ruling from 17 November 2005 as being in contravention of Article 39 of the Constitution of Ukraine. Representatives of the Kyiv Council immediately lodged an appeal against this decision of the district court in the appeal court.

At the beginning of 2005 the Halytsky District Court in Lviv declared as unconstitutional the Ruling of the Lviv City Council No. 367 from 16 April 2004 “On rules and procedure for organizing and holding meetings, political rallies, pickets, street marches and demonstrations in Lviv” which in its basic provisions was similar to the above-mentioned Ruling of the Kyiv City Council.

On 7 November 2005 the Babushkinsky District Court in Dnipropetrovsk rejected an application from the Dnipropetrovsk City Executive Committee to prohibit a political rally by the initiative group of the “Ozerka” Market near the premises of the City Council on the grounds that the “Regulations on holding mass events in the city of Dnipropetrovsk” assigned another place for holding political rallies. The Court did not take the “Regulations” into consideration, and instead referred to the norms of the Constitution of Ukraine which do not contain any limitations on places where freedom of assembly can be exercised.  However, despite this, the bodies of local self-government in Dnipropetrovsk, as in other cities where similar regulations were passed, have not revoked them and are continuing to apply them.

A case was recorded where the settlement council of Hrebinki in the Kyiv region, in reaction to a demonstration of residents demanding an investigation into the murder of Hrebinki resident, Volodymyr Nabokov, adopted a ruling which seriously limited civil rights.

On 25 July, the Hrebinki Settlement Council during its meeting agreed an appeal to the Ministry of Internal Affairs calling for a criminal investigation to be launched against the Head of the Vasylkiv district organization of the Ukrainian People’s Party, Leonid Kovalchuk, the organizer of the demonstration. The residents of Hrebinki during the said demonstration had been among the first to use a form of protest which was new for Ukraine: two hundred protesters without any break walked across a pedestrian crossing and in such fashion, while not breaking the road code, effectively paralyzed vehicle movement along the road between Kyiv and Odessa. The Hrebinki Council Deputies also demanded that the gathering of signatures on a petition from local residents to the President of Ukraine, Viktor Yushchenko and the heads of law enforcement agencies be prohibited. The petition called for an objective investigation to be carried out into the murder and for the local prosecutor and head of the Vasylkiv District Administration considered by the residents to be obstructing the investigation to be dismissed.

1.6. THE APPLICATION OF REGULATIONS REGULATING THE ESTABLISHMENT OF «SMALL ARCHITECTURAL FORMS», IN THE EXERCISE BY INDIVIDUALS OF THE RIGHT TO PEACEFUL ASSEMBLY

For regulating and holding mass events, some local authorities make use of another regulation which formally has no bearing on the right to peaceful assembly, this being a regulation regarding the establishment on city territory of «small architectural forms». Such regulations have been passed by the councils of many cities, including Kyiv and Donetsk.

«Small architectural forms» are kiosks, stalls, tents and other small constructions which are erected by businesses of various forms of ownership for commercial purposes. Such «forms» are, moreover, intended to function for a long time. The erection of such «forms» should undoubtedly be subject to regulation by local authorities.

However in Ukraine it has become traditional to hold acts of protest in the form of «tent cities» The legal regulation for the establishment of such tent settlements should be implemented within the framework of regulations on the right to free assembly, and not regulations regarding «small architectural forms».

  For example, on 7 April 2005, the Pechersky District Court in Kyiv allowed the application of the Kyiv City State Administration to dismantle a tent city erected by representatives of the civic organization “New Generation” near the premises of the Prosecutor General of Ukraine (Riznytska Street in Kyiv) in protest against the detention of the Head of the Donetsk Regional Council, Boris Kolesnikov.

However on 19 April already, the Shevchenkivsky District Court in Kyiv rejected the application of the Kyiv City State Administration (KCSA) to impose a ban on the tent city of supporters of the recently arrested Kolesnikov. In its application, the KCSA, in particular, claimed that the “location of small architectural forms which include tents, require a permit from the central department of city planning, architecture and design of the city landscape within the KCSA”. In its ruling, the Court directly stated that “tents are not “small architectural forms” and that the obtaining of permits for their erection is not required by law”.

Yet despite the Court’s ruling, the Kyiv City Council on 17 November 2005 in its Resolution “On introducing amendments to the Ruling of the Kyiv City Council from 24 June 1999, № 317/418  “On defining the rules and procedure for organizing and holding nongovernmental mass public events of a political, cultural-education, sport, recreational or other nature in Kyiv” once again stressed that “it is prohibited to erect small architectural forms (kiosks, stalls, awnings, tents, including those which are temporary and mobile, intended for vending, information, advertising, presentation or other purposes), external forms of advertising (advertising stalls, any kinds of stands, shields, panels, flags, screens, placards, stickers and others) without permission received according to the rules and procedure set down in Ukrainian legislation.”

1.7.   DRAFT LAWS ON THE PROTECTION OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY

Before 2005 no Draft Law on freedom of assembly had been passed by Ukraine’s parliament. In 2005 the Institute “Respublica”, in cooperation with specialists from the Ukrainian Helsinki Human Rights Union, drew up a draft law “On freedom of peaceful assembly” and on 15 July it was tabled in the Verkhovna Rada (registration No, 7819)[3]  by State Deputy, Viktor Musiyaka.

The Draft Law was prepared in compliance with the OSCE/ODIHR Guidelines for drafting laws pertaining to the freedom of assembly” as well as with case law of the European Court of Human Rights, and its key parameters are as follows. Together with the concepts “gathering”, “political rally”, “march”, “demonstration”, in accordance with European practice, the following concepts have been introduced: “spontaneous demonstration” (that is, gatherings not organized by any individual or legal entity),”counter demonstration” {gatherings which take place at the same time and in the same place with the aim of expressing different or opposing views), as well as, in keeping with the Ukrainian tradition, the concept of “tent cities”.

The Draft Law guarantees the right to peaceful assembly for citizens of Ukraine, foreign nationals and stateless persons, those younger than 18, persons whose civil activities have been restricted by order of the court, as well as those who are in penal institutions serving a court-imposed sentence. In compliance with the Constitution of Ukraine the Draft Law does not contain any restrictions on freedom of assembly, either in time or in space, or by dictating the duration, form of the assembly or the number of participants.

A list is provided of circumstances which may not be used as grounds for limiting freedom of assembly, in particular the following:  the absence of notification of a plan to hold a peaceful gathering; the lack of an organizer (organizers) of a peaceful gathering in the event of a spontaneous demonstration; the holding of a counter demonstration; the scheduled coincidence of the peaceful gathering with measures linked with a public holiday, sporting event, concert, festival, folk festivals, etc; the discussion during a peaceful gathering of issues pertaining to the dismissal of any state officials, a change of those in power, of the constitutional order, of the administrative or political system or of territorial integrity; calls to hold a nationwide or local referendum, early elections to any state body or body of local self-government, or to a boycott of a referendum or elections; the blocking by participants in a peaceful gathering of streets, roads, buildings or other constructions; the level of noise at the place where the peaceful gathering is held; the inability of the relevant agency of the Ministry of Internal Affairs to ensure the protection of public order during a peaceful assembly. All such circumstances were identified in the course of monitoring of the observance of the freedom of assembly in Ukraine as being those which, in contravention of the Constitution of Ukraine, most frequently violate the right to peaceful assembly.

The Draft Law sets out special time periods for judicial review of appeals against rulings handed down by courts of first instance which restrict freedom of assembly.:  “An application to bring an appeal or an appeal submitted by a claimant against a court ruling limiting the right to peaceful assembly, shall be reviewed as first priority, within a two-day period from when it is received, however under all circumstances before the date that the peaceful gathering is planned for, and in the event that the court ruling restricting the right to freedom of assembly was taken just before the beginning of the peaceful gathering – immediately”.

Also envisaged in the Draft is liability of officials or other individuals for violations of the right to freedom of assembly

The Draft Law “On freedom of peaceful assembly” has elicited different reactions. For example, the Main Scientific and Analytical Department {MSAD) of the Verkhovna Rada of Ukraine proposed that the Draft be returned “for reworking and then submitted again for its first reading”.  In contravention of Article 26 of the Constitution of Ukraine (“Foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine”, and the freedom of assembly for non-citizens of Ukraine is not limited by either the Constitution, current laws or international treaties), .MSAD suggests depriving foreign nationals and stateless persons of the right to freedom of assembly.

MSAD, furthermore, does not consider the circumstances named in the Draft as those which may not constitute grounds for limiting freedom of assembly as being circumstances which preclude such restriction, and instead proposes that specific legal grounds be defined for restricting the exercising the right of citizens to peaceful assembly”

On the other hand, the Kharkiv Human Rights Protection Group (KHPG) in general positively assessed the Draft and commented that “the Draft Law is on the whole successful, however needs, of course, some “cosmetic” legal refinement” (KHPG constitutional expert, Vsevolod Rechytskky).

In any case, the Verkhovna Rada did not mange to review the Draft Law “On freedom of peaceful assembly” in 2005.  Then at the very beginning of 2006, 10 January, Parliament refused to include the Draft on the agenda, meaning that the draft was effectively rejected. It should also be noted that the Chairperson of the Profile Committee of the Verkhovna Rada of Ukraine on Human Rights, National Minorities and Inter-ethnic Relations, H. Udovenko, registered a Resolution on returning the draft law on freedom of peaceful assembly to be worked on. The Institute “Respublica”, having refined the draft law and taken KHPG’s comments into consideration, is offering it for review by the next parliamentary session in 2006.

1.8.   APPLICATIONS AND PROPOSALS FROM OFFICIALS WITH REGARD TO LEGISLATIVE REGULATION ON EXERCISING THE RIGHT TO PEACEFUL ASSEMBLY

During 2005, a number of high-ranking  Ukrainian  officials (the President, officials from the Ministry of Internal Affairs, the Mayor of Kyiv and Kyiv City State Administration representatives) spoke of the need to provide legislative regulation for ensuring the right to peaceful assembly. They put forward several specific suggestions however did not table in parliament a single draft law on freedom of assembly.

Back on 21 February, less than a month after his inauguration,  Ukraine’s President Viktor Yushchenko, in referring to anti-war demonstrators who had arrived at the building of the State Secretariat (the former Presidential Administration) on Bankova Street in Kyiv, commented: “That doesn’t mean that one can hold unsanctioned political rallies every day”. This statement by the President runs counter to Ukrainian legislation on peaceful assembly which does not envisage the issuing of sanctions for the holding of political rallies, pickets and demonstrations, and imposes only procedure for notification of plans to hold such rallies or demonstrations.

  Soon after, on 25 March, near the building of the State Secretariat  temporary fencing was erected (in December 2004, during the “Orange Revolution”, the wall around the Presidential Administration, put up in President Kuchma’s time, was pulled down by demonstrators supporting Viktor Yushchenko), and a week later a permanent fence was erected.  The practice which existed under Kuchma of restricting the right to peaceful assembly directly around the residence of the President has thus been restored. The State Secretariat, furthermore, applied to the Kyiv City Council to have the territory around the Secretariat added to the list of sites where meetings initiated by nongovernmental structures may not be held.  This application found its implementation in the Ruling already mentioned of the Kyiv City Council from 17 November 2005.  On the initiative of the State Secretariat , therefore, but in contravention of the Constitution, freedom of assembly has been restricted around its premises.

On 15 October 2005 a demonstration was held in Kyiv by those calling for the OUN and UPA [Organization of Ukrainian Nationalists and. Ukrainian Resistance Army]  to be acknowledged as having fought for Ukraine during the Second World War (“The Brotherhood of Fighters of the UPA”, UNA – UNSD [the Ukrainian National Assembly – Ukrainian National Self-Defence], the Union of Ukrainian Officers) as well as a counter-demonstration by opponents of the OUN – UPA  (Progressive Socialist Party of Ukraine and “Proryv” [“Breakthrough”]).  Police agencies and the Kyiv City State Administration proved unable to safeguard public order and the exercising by both sides of their right to peaceful assembly (even though both groups of demonstrators had warned in advance of their intention to hold such demonstrations) and scuffles broke out on Kreshchatyk Street between the demonstrators. Following this, the Minister of Internal Affairs, Yury Lutsenko, approached the Verkhovna Rada and the Head of the Kyiv Police, Vitaly Yarema - the Kyiv City Council, suggesting that a 10-day time period be imposed for giving notification of a planned meeting. This suggestion was in accordance with the above-mentioned Decree of the Presidium of the Supreme Soviet of the USSR from 1988, but is in contravention of the Ruling of the Constitutional Court of Ukraine from 19 April 2001 which states: “The length of time periods imposed for prior warning should be reasonable and should not restrict the right of citizens enshrined in Article 39 of the Constitution of Ukraine, to hold gatherings, political rallies, marches and demonstrations. Such time periods should serve to safeguard the ability to exercise this right”.

It is clear that a period of 10 days does not give the public a chance to actively respond to socially important events taking place in the country. These could be, for example, the “removal from the candidate list” of a particular candidate on the eve of the elections, or an attempted coup (as during the August 1991 coup in Moscow), etc

  In addition, the Ministry of Internal Affairs (MIA) officials suggested imposing liability on organizers (those who submitted the notification of a meeting) for disturbances caused by participants in the gatherings. That is, effectively the MIA, in order to make its own work of identifying disturbers of public order easier were proposing to equate the concepts “organizer of a political rally” with “organizer of a disturbance or crime”.

Without even considering the fact that such an “innovation” in legislation would make it possible to bring organizers of a political rally to answer in cases where public order had been disrupted by people with no relation to the rally organizers (or, for example, by people who as provocateurs wished to break up the gathering), such a resolution of the issue is inadmissible from a legal point of view as it contradicts the principle of individual responsibility and, in essence, introduces a principle of collective liability.

OVERVIEW OF VIOLATIONS OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY DURING 2005

2.1.   GENERAL ASSESSMENT

During 2005, there were mass violations of the right to freedom of peaceful assembly by local state authorities, bodies of local self-government, law enforcement agencies and courts of first instance

A number of pickets, political rallies and demonstrations (in the majority of cases those of the opposition) were groundlessly prohibited by the courts. Some political rallies and tent cities were broken up without any court warrant. In dispersing political rallies and marches the police used force, as a result of which demonstrators received injuries.

In some cases, participants in peaceful meetings were attacked by unidentified individuals not connected with the police (employees of private security outfits, political opponents). In the majority of such cases law enforcement officers took no action.

  A number of organizers and participants in peaceful events faced administrative penalties.

  Two criminal investigations were initiated in connection with the blocking of administrative buildings and transport routes by supporters of both main presidential candidates in the 2004 elections.  The criminal investigation launched at the end of 2004 to do with the blocking of Khreshchatyk Street, the main street in Kyiv, and administrative buildings by supporters of the current President, Viktor Yushchenko, during the “Orange Revolution” was closed at the beginning of 2005. On the other hand, also at the beginning of 2005 a criminal investigation was launched against supporters of the present opposition leader, Viktor Yanukovych, who had blocked a vehicle road near the city of Armyansk during a “car run of friendship” organized by Yushchenko supporters. This case is presently being reviewed by the court.

Unlike 2004 when violations of freedom of assembly were recorded in virtually all regions of Ukraine, during 2005 some regions saw no such violations. These included the Sumy region (which had been a “record breaker” in infringements of freedom of assembly during 2004), as well as the Luhansk, Kharkiv, Chernihiv, Volyn and Lviv regions.  On the other hand, the number of such violations in some areas increased significantly, in particular, in the cities of Kyiv and Sevastopol, the Autonomous Republic of the Crimea, as well as in the Transcarpathian, Dnipropetrovsk, Donetsk and Odessa regions.

In general less mass gatherings were held in Ukraine in 2005, as opposed to 2004, and the numbers of participants were smaller. The decrease in the number of political rallies and demonstrations in 2005 is however attributable to the fact that the statistics for gatherings in 2004 in Ukraine take into account the mass political rallies and demonstrations which, in November and December, during the “Orange Revolution”, took place over the entire territory of Ukraine.

According to the Department of Civil Defence of the Ministry of Internal Affairs, over the last ten years in Ukraine the number of mass actions has become 16 times higher. Just in the first six months of 2005 almost 89 thousand mass actions were registered, this being 27,5 percent more than over the equivalent periods in 2004.  Over the second half of 2005 the number of political rallies was much lower than during the same period for 2004 (due to the “Orange Revolution”.  According to the Department’s statistics, in the course of 2005 over 124,4 thousand mass events took place in Ukraine, with the participation of 63 million people. In order to ensure public order and safety during mass events and other actions, over 1 million officers of law enforcement agencies were deployed. For infringements in organizing and holding mass events in 2005, administrative charges were brought against 40 organizers and active participants in such events. One can conclude that there is a steady tendency in Ukraine for the number of people using their right to assembly to be increasing from year to year.

If one considers the trends as regards violations of freedom of assembly, then it should be noted that despite a decrease in the number of meetings as compared with 2004, in 2005 more actual violations of the right to peaceful assembly were recorded than in the previous year, with an absolute majority of these being in relation to opponents of the current regime.

2.2.   PARTICULAR ASPECTS OF VIOLATIONS OF CIVIL RIGHTS DURING HOLIDAY, SPORTING AND CONCERT EVENTS

In 2005, as in 2004, the largest numbers were drawn by mass events connected with various holidays or significant dates, those on state or religious holidays, as well as sporting and musical events: New Year, the Inauguration of President Yushchenko, Easter, Victory Day, and Independence Day. All these gatherings were organized and took place with the participation of central or local authorities and basically passed without any incidents. On the other hand, unlike in 2004 when sporting and musical events passed off on the whole peacefully, in 2005 several incidents occurred at such events.

  For example, on 29 May during the final match of the Ukrainian Football Cup at the capital’s “Olimpiysky” Stadium, after one of the spectators lit a smoke bomb, the police surged in using batons against all the spectators in that section, not excepting women and children. After the match was over, the spectators spent around 2 hours surrounded by the police and not able to even get water in a 30 degree heat wave. They were then subjected to a procedure of forced recording of their “testimony” on video.

  On 13 June UHHRU sent an open letter concerning these events to the Ministry of Internal Affairs, demanding that a proper investigation be carried out into facts suggesting that the actions of the police were clearly not proportionate to the risk to public order[4]  The MIA shortly responded publicly, stating that the police had acted in accordance with Ukrainian legislation and that no infringements on their part had been uncovered.[5]

The Yalta City Council on 18 August refused to provide a concert area for the group “Green grey” which was scheduled as part of a musical tour entitled “Our right”. The reason given for the concert being banned was that not far from the area where the musicians planned to perform, there was supposed to be another event. The musicians themselves believe that the reason for the ban was that they were collecting signatures during the tour against “discrimination” of the Russian language.

2.3. PARTICULAR FEATURES OF VIOLATIONS OF THE RIGHTS OF THOSE TAKING PART IN PEACEFUL ASSEMBLY WITH DEMANDS OF A POLITICAL NATURE

Another category of mass events was that of political gatherings – those either held by political organizations or under political banners. The largest numbers were seen at the protest “For Ukraine without Yushchenko” (Donetsk, August), demonstrations “for” or “against” acknowledging the role of the UNA – UPA in fighting for Ukraine during the Second World War (Kyiv, 15 October), the anniversary of the “October Revolution” (held in Kyiv, 7 November), the anniversary of the “Orange Revolution” (Kyiv, 22 November). A large number of political gatherings (although with a smaller number of people than in the events just mentioned) were in the form of pickets with the demand to release representatives of the opposition just detained, in particular, the Head of the Donetsk Regional Council, Boris (a member of Yanukovych’s Party of the Regions) and ex-head of the Transcarpathian Regional State Administration, Ivan Rizak (member of the United Social Democratic Party of Ukraine)

In many instances the courts of first instance, on applications from bodies of local self-government, prohibited political rallies of the opposition, and several opposition gatherings were dispersed, for example:

-  30 January: the tent city of the Progressive Socialist Party of Ukraine (PSPU) in Dnipropetrovsk;

-   9 April: the tent city of supporters of ex-Mayor of Odessa, Ruslan Bodelan;

-   7 May: the tent city of PSPU and the party “Derzhava” [“The State”] in Sevastopol;

-   15 and 20 June the tent city of the United Social Democratic Party of Ukraine  in Uzhhorod;

-   24 August: a demonstration of participations in the protest action “For Ukraine without Yushchenko” in Donetsk;

-   22 November: a political rally of the party “Bratstvo” [“Brotherhood”] in Kyiv.

In some cases (Sevastopol, Donetsk), the opposition gatherings were broken up without the appropriate court rulings. It should be noted that violations of the right to peaceful assembly were also recorded in the case of pro-regime groups. For example, on 12 April the Zhovtnevy District Court in Poltava banned representatives of the Popular Movement of Ukraine (RUKH), the party “Batkivshchyna” [“Motherland”] and the Socialist Party of Ukraine (government parties) from holding an indefinite protest action calling for new elections for the Mayor of Poltava, while on 27 October the Babushkinsky District Court in Dnipropetrovsk, on the application of the city council, banned the local branch of the People’s Union “Our Ukraine” from holding events in the city centre to mark the first anniversary of the “Orange Revolution”.  However, despite even court rulings, no gathering of pro-regime parties or organizations in 2005 was dispersed, and the events were held within incident.

Overall, in contrast to 2004 when the greatest numbers of violations occurred in relation to gatherings putting forward social demands, in 2005 it was specifically political meetings where more violations of the right to peaceful assembly were observed.

2.4   Particular aspects of violations of the rights of those taking part in peaceful gatherings with social demands

Another kind of gathering is that of meetings with demands of a social nature. The organizers of such meetings are, as a rule, civic and non-political organizations. In 2005 the majority of these meetings and pickets were protest actions against what their participants saw as illegal construction work in cities. Most of the meetings took place in Kyiv, however there were also some in other cities of Ukraine (for example, the protest against the construction work on the bank of the Cheshka Lake in Sumy).

Among such meetings of a social nature, one should also add the picket of the Economic and Legal Technical College under the Interregional Academy of Personnel Management (IAPM) by the civic organization the Centre for Gays and Lesbians “Our world” in protest at the expulsion of a student because of his sexual orientation; rallies on environmental issues; as well as the continuation of the action SOS which appeared back in 2003 and is an action of citizens seeking what they consider to be the restoration of justice (for example, a large number of participants are parents of people whom they believe to have been unfairly convicted of crimes).

The number of participants in “social meetings” was much smaller than the numbers taking part in other meetings, yet force against participants of these meetings was also applied by the “protectors of public order”. The primary reason here is probably that a protest against construction work in cities is first of all a protest against the politics of the local authorities. And in Kyiv, where there were the most such protests during 2005 (the organizers of the protest actions were the Kyiv Rescue Forum civic union and initiative groups of residents whose homes adjoined the area under construction), the primary demand was for the resignation of the Mayor of Kyiv, Oleksandr Omelchenko, i.e. an essentially political demand. This is evidently due to the overall politicization of public life in Ukraine (as a result of which, incidentally, the number of “political” rallies, as opposed to “social” rallies has increased), as well as to the imminence of general elections (including elections for bodies of local self-government) which took place on 26 March 2006.

  Rallies and pickets by the Kyiv Rescue Forum in a number of cases (for example, on 24 February at Pecherska and on 7 June at Troeshchyna) were broken up without the appropriate court rulings by employees of private security firms. The police who were present did not intervene.

In 2005 as in 2004, Kyiv police officers dispersed participants in an SOS protest action who were putting forward purely social demands. On 13 September 2005 the police, referring to a Ruling of the Pechersky District Court in Kyiv from 7 September, dismantled a tent city erected near the President of Ukraine’s reception centre by citizens demanding a review of court rulings on the basis of which they considered that they had been illegally deprived of their homes or that their relatives had been imprisoned. According to the tent city occupants, during the dismantling of the tents, the police and court bailiffs did not show any court warrant and brutally beat up several of the picketers.  In particular, one woman, a pensioner, was taken to hospital with head injuries. The picketers claim that during the procedure, personal items, documents, money and mobile telephones belonging to participants in the protest were removed.

As already mentioned, on 15 May 2004 a picket by participants in an SOS protest action near the Verkhovna Rada was also dispersed by the Kyiv police. The majority of those who suffered at that time were the same people who were present on 13 September 2005.

Representatives of the Kyiv City Council, together with police officers, tried to obstruct the Centre for Gays and Lesbians “Our world” in carrying out a protest action against the expulsion of a student from the Interregional Academy of Personnel Management because of his sexual orientation. Having given prior notification to the Kyiv City State Administration of their planned action, a day before the scheduled event “Our world” received a faxed message with the signature of the Deputy Mayor of Kyiv, V.V. Ilhov. The letter stated: “Resulting from our review (of your notification of the action – author), we inform that the Kyiv City State Administration has received notification of another planned mass event coinciding in place and time with the action you plan. In view of this, it will not be possible for you to carry out your event”. Thus, in contravention of the Constitution, the Kyiv city authorities took it upon themselves to prohibit meetings.

Then on 17 May, during a picket of the Economic and Legal Technical College under the Interregional Academy of Personnel Management individuals in civilian clothing tried to push the representatives of “Our world” away from the college buildings. A source linked with IAPM identified them as officers of the Solomyansky District Police Station in Kyiv. At the same time, in the technical college building a fairly aggressive protest action took place by those against homosexuals. The picket of protest against homophobia did in fact take place. Aggression from the organizers and participants in the protest action of their opponents was only restrained by the presence of television cameras.

2.5.   COURT RESTRICTIONS OF THE RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY

In all cases analyzed by the Institute “Respublica”, rulings by Ukrainian courts on restricting the right to peaceful assembly issued in 2005 were unwarranted or based on unconstitutional  grounds. They were based, in particular, on the following:grounds.

1.  Decisions by bodies of local self-government which run counter to the Constitution of Ukraine. For example, on 17 January  the Babushkinsky District Court in Dnipropetrovsk, on the basis of “Regulations on holding mass events in the city of Dnipropetrovsk” passed by a decision of the city executive committee from 21 August 2003, banned a tent city of the Progressive Socialist Party of Ukraine (PSPU)  The tent city was dismantled on 30 January. On 22 April the same court using identical grounds prohibited a political rally by the United Social Democratic Party of Ukraine (the members of the opposition did hold the rally, however they were fined on the ruling of the same Babushkinsky Court 85 UH for using sound amplifiers).  

2  Regulations about “small architectural forms”.  For example, on 1 March the Voroshylivsky District Court in Donetsk, on the basis of a decision of the city council on “small architectural forms” adopted in 2004, prohibited supporters of Viktor Yanukovych from erecting tents on the central square of the city. The opposition supporters complied with the court ruling and dismantled their tents.

3. On the grounds that “the restriction on exercising this right may be imposed by the court in accordance with the law and only in the interests of …  public order, with the purpose of … protecting the health of the population, or protecting the rights and freedoms of other persons” (Article 39 of the Constitution of Ukraine). On the basis of the results of “Respublica”s monitoring, we are forced to state that all court rulings passed in this manner lacked the grounds to which the judges referred in their rulings.

For example on 7 April the Pechersky District Court allowed the application of the Kyiv City State Administration to dismantle a tent city erected by representatives of the civic organization “New Generation” near the building which houses the Prosecutor General of Ukraine (Riznytska Street in Kyiv) in protest against the taking into custody of the Head of the Donetsk Regional Council, Boris Kolesnikov. The court referred to the conclusion of an expert study which stated that the noise level in one of the offices of the Prosecutor General on the second floor exceeded the permitted norm, and also to complaints from residents of adjacent buildings whom the tent city stopped from moving along the street (the court deemed these facts to constitute a violation of the civil rights by the occupants of the tent city). Following this “New Generation” suspended their protest action.

On 14 June the Uzhhorod City District Court granted an application from the Uzhhorod city executive committee to prohibit the tent city erected by the local organization of the Ukrainian Social Democratic Youth on 16 May near the premises of the regional state administration to protest against the detention in custody of the ex-governor of Transcarpathia, Ivan Rizak. In the court’s ruling, there was an original interpretation of the constitutional provisions on “protecting the health of the population” and “public order”.  In the opinion of the city executive committee and of the court, while the tent city was in place “there is a risk to the life of the tent city inhabitants and the threat of a disruption of public order”. The court hearing was held without representatives from the respondent (Ukrainian Social Democratic Youth, with the latter not even being informed of the time and place of the court review.

Cases were recorded where the court issued not a ruling, but a resolution prohibiting the holding of a meeting even before the court review of the merits of the case involving a ban.  On 8 April the judge of the Prymorsky District Court in Odessa passed a resolution in accordance with which the tent city of supporters of ex-mayor of the city, Ruslan Bodelan, located on Dumska Square, needed to be removed before the review of the merits of the application of the city executive committee.  The latter was then headed by the pro-regime Mayor, Edward Hurivets who had asked for the protest action by supporters of Bodelan to be banned. After court bailiffs on the morning of 9 April read the tent city inhabitants this resolution, a group of people who, according to the tent city inhabitants, belonged to organizations supporting President Yushchenko and Mayor Hurivets, proceeded to pull the tents down.  During scuffles personal belongings and documents were stolen. Many of the protestors were detained by the police. Those who lived outside Odessa were forced by the police to leave the city.

At the same time one should note positive trends which emerged in the attitude of the courts to freedom of assembly in 2005. Some courts, even those which had previously imposed unwarranted restrictions on freedom of assembly, began passing rulings in compliance with the Constitution.

For example, the Babushkinsky District Court in Dnipropetrovsk, which on 17 January, 22 April and 27 October had banned meetings on the basis of the already mentioned decision of the city executive committee from 21 August 2003, on 7 November rejected demands by the executive committee of the Dnipropetrovsk City Council which was asking the court “to restrict the right to hold a mass event” by the initiative group of the Market “Ozerka” on the grounds that “the place where the mass event is planned contravenes the Regulations on holding mass events in Dnipropetrovsk … from 21.08.2003, No. 2207”  (the initiative group of the Market “Ozerka” was intended to begin an indefinite hunger strike near the premises of the city executive committee). For the first time in its practice, the Babushkinsky District Court did not take the Regulations on holding mass events in Dnipropetrovsk into consideration, but instead considered the situation from the point of view of the provisions of Article 39 of the Constitution of Ukraine. In its ruling the court stated: “No evidence has been provided the court by representatives of the claimant to suggest that the hunger strike of five women near the premises of the executive committee can create a real threat of disturbances or crimes, a threat to the health of the population or of the rights and freedoms of other persons (all of the listed items being the grounds which can justify a court ban on a political rally set out in paragraph 2 of  Article 39 of the Constitution of Ukraine – author.)”

In its turn the Shevchenkivsky District Court in Kyiv on 19 April passed a ruling which contained several conceptual provisions with regard to freedom of assembly. The District Court rejected the application of the Kyiv City State Administration “to impose restrictions on the All-Ukrainian youth organization “The Union of Youth of the Regions of Ukraine” holding a round-the-clock picket from 9.00 on 09.04.2005 in the Mariyinsky Park opposite the premises of the Cabinet of Ministers of Ukraine, with the erection of tents, use of sound amplification equipment, and lighting of bonfires”. The court noted that:

1) „tents are not “an architectural form” and there is no requirement in law for permits to erect them ”;

2) „all questions regarding the safeguarding of public order, the rights and freedoms of other persons, are the responsibility of the claimant (that is, the executive bodies, in this case, the Kyiv City State Administration - author.), and not that of the organizers of these mass events”.  Thus, a Ukrainian court effectively implemented the practice of the European Court of Human Rights in accordance with which the state has a positive duty to protect assembly, specifically the duty to safeguard gatherings, those taking part in them and the rights of other people during the gatherings. Moreover, the court basically recognized as unfounded the demands of the heads of the enforcement agenciesof Ukraine to impose liability on the organizers of gatherings for the observance by those attending the meetings of public order.

3) „in their essence all mass public events are overall state or regional (political rallies, marches, demonstrations, etc) regardless of whether they are being held by state authorities, bodies of local self-government, businesses, institutions, civic organizations, parties or individuals – and to some degree or other infringe the rights and freedoms of other people. These infringements may be linked with a ban or restriction on transport routes, a limitation on the work of trading or other enterprises, exceeding noise limits, etc.  Therefore the creation of additional inconvenience for the public, the increase in noise may not constitute a legal justification for demanding a limitation on the rights and freedoms of citizens to peaceful assembly”. Thus, a Ukrainian court for the first time recognized as unfounded the practice of banning gatherings on the pretext that the gatherings would be too noisy or would cause inconvenience to those not taking part.

In October, the same Shevchenkivsky District Court rejected an application from the Kyiv City State Administration to ban both supporters and opponents of the move to declare the OUN – UPA to have fought for Ukraine in World War II on the grounds that these rallies would be taking place at the same time and place (in the morning of 15 October on Kreshchatyk Street).  The Ukrainian court effectively recognized as unlawful the practice dominating in the country up to that time of banning counter demonstrations.

However the Kyiv police were unable to avert clashes between the opposing sides on 15 October and perhaps therefore on 21 November the Shevchenkivsky District Court allowed the application from the Kyiv City State Administration (KCSA) to ban the party “Bratstvo” [“Brotherhood”] from holding a political rally on 22 November on European Square, a few hundred metres from Maidan Nezalezhnosti [Independence Square] where at the same time state celebrations were scheduled to mark the anniversary of the “Orange Revolution” with the participation of President Yushchenko. The KCSA raised no objections as to the holding of the latter. The grounds for the ban were again the danger (in the opinion of the KCSA and the court) of clashes between political opponents. On the basis of this court ruling, representatives of “Bratstvo” were detained by force on 22 November near the premises of the Cabinet of Ministers of Ukraine – a few hundred metres from European Square, the place where the political rally had been planned for.

On 15 July the Balaklavsky District Court in Sevastopol created an extremely “interesting” precedent “restricting the right” of one of the parties (the party “Derzhava” [“State”], which had established a “blockade” under the banner “We won’t let in NATO troops!)  to hold any gatherings on the territory of the Balaklavsky District of Sevastopol. The term “restriction of the right” was not used in the court ruling. This ruling flagrantly violates the Ukrainian Constitution which prohibits discrimination against any individuals for their political views and does not allow for any restriction of freedom of assembly without specification of the time period.

In many cases Ukrainian courts in reviewing cases involving freedom of assembly infringed a number of procedural norms. For example, the Babushkinsky District Court in Dnipropetrovsk held its hearing on 22 April in the presence of only one of the parties – the representative of the Dnipropetrovsk city executive committee which was seeking a ban on a political rally calling for the dismissal of the May of the city, Ivan Kupichenko, by the United Social Democrat Party and without anyone representing the organizers of the rally. The court therefore heard only the arguments of the authorities, this violating the principles of impartiality and adversarial proceedings.

A hearing of the Pechersky District Court in the capital on 7 September took place with representatives from the SOS protest action. The court prohibited the protesters from erecting a tent city near the reception centre of the Ukrainian President, Viktor Yushchenko.  On the basis of this ruling, on 13 September police officers pulled down the tent city.  Right up to when the gathering was dispersed the SOS protestors had no idea that a court ruling had banned their protest action.

In a lot of instances the court disregarded the presumption of innocence: the rights of citizens was restricted, that is, they were punished not for real violations but due to the ‘likelihood’ (in the opinion of the appellants and the court) of violations, in other words for violations which nobody had yet committed. It was precisely on these grounds that Kyiv’s Shevchenkivsky District Court  on 21 November granted the KCSA’s application to prohibit the party “Bratstvo” from holding its rally on European Square, not far from Maidan Nezalezhnosti at the same time as the scheduled festivities to mark the anniversary of the “Orange Revolution” which President Yushchenko was to attend.

Of course, every demonstration, march or other similar action causes the authorities a lot of problems. However, the European Court of Human Rights has confirmed that Article 11 should be understood as referring to the positive obligations of the State to defend those who are carrying out their rights to peaceful assembly free of violence from opponents, including from counter demonstrations (the case of the organization «The Platform of «Doctors for Life» against Austria, 1985, Paragraphs 65 to 72). Since both parties have the same right which is guaranteed by Article 11 of the European Convention, where one of the parties is aiming to disrupt the activity of the other, the authorities must in the first instance protect the rights of those who are carrying out their gathering peacefully:

“A demonstration may annoy or give offence to persons opposed  to the ideas or claims that it is seeking to

promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and

purpose of Article 11”. –  the European Court of Human Rights states with regard to this decision[6].

In view of this, the widespread practice of prohibiting peaceful gatherings purely on the basis of the fact that

peaceful meetings of two opposing sides will be held in one and the same place, cannot serve as justification for restricting the right to peaceful assembly. Such practice should be deemed to contravene European standards.

Decisions to restrict the right to peaceful assembly are, as a rule, taken the day before mass events.  This means that the organizers are not given the opportunity to appeal the decision of district courts before the beginning of the event and, they are thus effectively deprived of the chance to reinstate their constitutional right to peaceful assembly.

2.6.  PERSECUTION OF ORGANIZERS AND THOSE TAKING PART IN PEACEFUL GATHERINGS

In accordance with Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of the case law of the European Court of Human Rights, persecution of individuals for their participation in peaceful gatherings is a violation of their right to freedom of peaceful assembly.

.  In 2005 there were a number of cases of unwarranted detention of those taking part in gatherings, as well as persecution of organizers of such gatherings after they had been held. In all cases such persecution was directed at opponents of the authorities both at a national, and local, level.

  On 13 May near the premises of the Kyiv City State Administration the coordinator of a picket in protest at the shooting of stray dogs, Vitaly Chernyakhivsky, was detained, and accused of damaging municipal property. His camera was taken away, however no official charges against him were laid.

Then in summer Vitaly Chernyakhivsky, one of the leaders of the civic union Kyiv Rescue Forum and an organizer of protest rallies against construction work in the capital, which was being carried out by the Mayor of Kyiv, was detained by police officers after a press conference at which he criticized the policy of the Mayor. On the ruling of the Shevchenkivsky District Court, Chernyakhivsky was sentenced to administrative arrest for supposedly having used foul language in a public place. However the next day as a result of pressure from civic organizations and after protest from the Kyiv Prosecutor’s Office, Chernyakhivsky was released. A criminal case was also launched on obviously fabricated grounds. UHHRU found him a defence lawyer thanks to which he remained at liberty, and the criminal charges were stalled.

2.7. The lack of action by law enforcement agencies during attacks on participants of peaceful gatherings

Although officers of law enforcement agencies did not directly apply force against those taking part in peaceful gatherings, on several occasions such participants were attacked by employees of municipal services, private security firms, political opponents or simply unidentified individuals and received injuries. The police moreover did not intervene and did not take measures to stop the disruption of public order.

For example, in the early hours of 30 January in Dnipropetrovsk a group which included employees of the municipal services and the “Youth Team for Yushchenko”, led by the head of the department for internal policy of the city executive committee, Mr Kvitko, pulled down a tent city erected by supporters of the former presidential candidate Viktor Yanukovych on Lenin Square. During the incident the assailants allegedly stole personal belongings of the tent city inhabitants. Police officers did not take any action and simply watched the scuffle.

On 24 February in Kyiv a tent city of opponents of construction work in the centre of the city on Staronavodnytska Street was set upon by employees of one of the security firms. Four of the tent city inhabitants ended up in hospital. There had been no court ruling allowing the dismantling of the tent city. The police here too watched on calmly.

On 7 May in Sevastopol a group of Ukrainian military servicemen at the command of their officers attacked a tent city which had been erected by members of the Progressive Socialist Party of Ukraine and the party “Derzhava” on 4 May at the wharf in protest at the presence in the Sevastopol port of a German naval boat.  Two people – Valery Ivanov and Vasyl Shareiko received injuries. Police officers standing nearby did not react in any way to the requests by members of PSPU to protect them and did not interfere.

In Kyiv on 7 June residents of buildings on the corner of Mayakovsky Avenue and Kashtanova Street at Troeshchyna, the majority of them families of those who took part in the liquidation of the Chernobyl Disaster, blocked roads leading into the square where a private enterprise “Rubin” had begun building a sport and health complex.  Those taking part in the blockade were in possession of a court ruling to stop the construction. In response employees of the private security firm “Sprut” used sticks and teargas against the picketers. The police officers present did not intervene. The picketers suffered numerous injuries.

On 19 July in Sevastopol aggressively inclined members of pro-Russian organizations carrying Russian flags attacked students from the civic organization “Studentske Bratstvo” [“Ukrainian Student Brotherhood”) who were protesting against violations by the Black Sea Fleet of the Russian Federation (BSF RF) of Ukrainian legislation. The assailants ripped up Ukrainian flags and with the use of force pushed the students away from the headquarters of the BSF RF. The Ukrainian police officers did not intervene.

On 19 November the management of the art-club “Torba” in the Kyivsky District of Vinohradar informed the Podilsk District Police Station that during a concert by the Lithuanian pop group “Togo Bravo” which performs songs with an anti-fascist theme, there might be conflict  with local “skinheads”.  The police responded by suggesting that the concert be cancelled, and according to witnesses demanded 700 dollars from the management to guard the concert. When the concert ended, more than 20 “skinheads” wielding metal pipes, bricks and bottles attacked both the musicians and the audience. Several people suffered serious injuries and were taken to hospital. The police arrived 10 minutes before the violence ended. Not one of the “skinheads” was detained. A criminal investigation in connection with the assault was only launched at the beginning of 2006 after numerous publications in the press.

Conclusions and recommendations

Despite the lack of national legislation, courts do not in the main apply case law of the European Court of Human Rights, but use instead norms established by unconstitutional rulings of local authorities. As a result of this, the majority of rulings of national courts, especially those of first instance, contravene Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Nonetheless we must acknowledge certain positive trends with regard to court rulings which emerged in 2004 and developed further in 2005. Courts of first instance (for example the Halytsky District Court in Lviv, the Shevchenkivsky District Court in Kyiv, the Babushkinsky District Court in Dnipropetrovsk), even those which had on unconstitutional  grounds previously banned gatherings (for example, on the basis of regulations of bodies of local self-government concerning mass events, or on regulations about “small architectural forms”), in 2005 began basing their rulings exclusively on constitutional principles and rejecting applications from local authorities to have meetings banned.

Local authorities, law enforcement agenciesand the overwhelming majority of courts interpret the time period for prior notification extremely broadly. Most of them think that this period should be no less than 10 days, as was used in the USSR. The Constitutional Court has stated that specific time periods should be defined by law and should serve as a safeguard for exercising this right.  

Clearly, a norm requiring organizers to warn the authorities of plans to hold public peaceful gatherings does not contravene European practice however it is obvious that such time periods must be reasonable and flexible. Experience shows that administrative and court practice often infringe these demands and impose unwarranted restrictions on people’s rights. In the majority of court rulings restricting the right to peaceful assemblies, the grounds for such restrictions were the submission by the organizers of mass events of notification outside the time limits determined by rulings of local councils.

In this way, administrative practice as actually applied in Ukraine, prohibits the holding of spontaneous mass meetings, the relevance and need for which may disappear within a few days. This, in turn, does not comply with European human rights standards.

Courts of first instance, in the majority of cases, grant applications from the authorities to prohibit the holding of peaceful gatherings.  Review of appeals against the “automatic” rulings of courts of first instance drag on for several months which makes it impossible to effectively defend and reinstate the right which has been violated. It is moreover impossible to demand compensation for losses incurred by the passing of such rulings since illegitimate rulings of courts of first instance are largely reversed by the appeal courts.

We would also note  the large number of court rulings prohibiting peaceful gatherings passed the day before they are due to take place, this eliminating the possibility of appealing such a ruling, and also resulting in the postponement of such actions which creates additional conflict.

The state, as represented by law enforcement agencies (the police) does not fulfil its positive obligations in accordance with Article 11 of the European Convention, in particular, as regards creating the conditions for holding peaceful gatherings and ensuring law and order. At the least, even theoretical, suggestion of a threat to public order, the courts ban these events, especially when a demonstration or other mass actions by the opposition are involved.

One should also note that law enforcement agencies often use excessive force to disperse peaceful gatherings, and apply levels of suppression to peaceful individuals which are disproportionate to the threat presented.

In general, the authorities cannot establish a blanket ban on peaceful assembly in this or that specific place.  Administrative practice in Ukraine demonstrates that bodies of local self-government pass separate normative acts (which, incidentally, does not fall within their authority and contravenes the Constitution of Ukraine) which prohibit the holding of any public and peaceful mass actions in the centres of populated areas. They then provide places for holding political rallies and demonstrations on the outskirts of the city or in stadiums which contradicts the very essence of the right to peaceful gatherings.

In view of the above, it is necessary to introduce through legislation the legal means for protecting the rights of individuals to exercise their right to peaceful assembly.

Recommendations

1  To prepare instructions for law enforcement agencies which regulate their behaviour during peaceful gatherings;

2  To carry out training of employees of special units and patrol units of law enforcement agenciesin the following: ensuring public order during peaceful gatherings; protecting those participating in peaceful gatherings; the grounds and conditions for using special means and physical force; ensuring independent control over how they use their authority during peaceful gatherings.

3  To translate into Ukrainian the Judgments of the European Court of Human Rights on Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms pertaining to the freedom of peaceful assembly and to provide copies of these translations to all local and appeal courts;

4  Taking into account case law of the European Court of Human Rights, to prepare and run a training course for judges of local and appeal courts of all 27 regions of Ukraine as to applying Article 11 of the European Convention for the Protection of Human Rights in court practice with regard to applications from the authorities to ban peaceful gatherings

5  For the Supreme Court of Ukraine to provide general principles for court rulings in cases involving restrictions on the right to free assembly and demonstrations;

6  To pass a draft law on holding peaceful gatherings drawn up by Ukrainian  human rights organizations in which the case law of the European Convention for the Protection of Human Rights and the positive practices in democratic countries are taken into consideration;

7  Bodies of local self-government and State executive bodies should revoke all decisions adopting Regulations on rules and procedure for holding peaceful gatherings and using «small architectural forms», bring other decisions into compliance with the Constitution of Ukraine and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Prosecutor’s Office of Ukraine should appeal through court procedure such decisions of local authorities where the latter have failed to respond.

8  The Human Rights Ombudsperson should pay more attention to violations by local authorities and law enforcement agenciesof the right to peaceful assembly.

9  Organizers of peaceful gatherings are advised to use court procedure to complaint against any rulings by courts of first instance on limiting the right to peaceful gatherings, and also against illegal actions of law enforcement bodies. The Institute «Republic» and the Ukrainian Helsinki Union on Human Rights give these cases priority for providing legal assistance where such violations occur.

[1]  The Code came into force on 1 September 2005

[2]  Human Rights in Ukraine – 2004. Human Rights Organizations’ Report.  Kharkiv: Folio, 2005.  – p. 151 The report is available on the Internet in Ukrainian and English at: www.helsinki.org.ua.

[3]  The Draft Law is available (in Ukrainian) on the website of the Verkhovna Rada of Ukraine http://rada.gov.ua.

[4]  The text in Ukrainian of the l3 June letter is available on the UHHRU website at: http://helsinki.org.ua/index.php?id=1118666950.

[5]  The response (in Ukrainian) is also available at: http://helsinki.org.ua/index.php?id=1119805572.

[6]  Plattform "Ärzte für das Leben" v. Austria - 10126/82 [1988] ECHR 15 (21 June 1988)