On the Decision of the Dzerzinski district court of Kharkov: another juridical commentary
12.12.2001
On 29 January 2001 the Dzerzinski district court of Kharkov took the decision on the civil case following the claim of the Kharkov city executive committee on the prohibition to set an agitation post of the Kharkov oblast organization of the Socialist party of Ukraine.
V. Rechitskiy, the Constitutional expert of the KhG
In the motivating part of its decision the Dzerzinski district court used as an argument the proof that ‘in the process of realizing their constitutional rights mentioned in Articles 34 and 39 by Ukrainian citizens and political parties neither the Constitution itself nor other legal acts stipulate the opportunity of erecting tents in public places and other places, where people gather’. This argument the court regarded as convincing to serve basic for the prohibition of setting tents on the Svoboda Square in Kharkov (on the tarmac covered ground near Lenin’s monument).
As to this argument and the court decision as a whole, the KhG finds it necessary to note the following.
The representatives of the Socialist party and some other public organizations, who intended to take part in the tent agitation post, are subjects of the civil society and not representatives of the state (state officers) with distinctly delineated competence. That is why in the legal sense their actions are less limited than those of the representatives of the state. Namely such are (must be) actions of other private citizens. In the given civil case the actions of Kharkovites, who, from the constitutional viewpoint, enjoy freedoms of citizens. That is why the principle ‘Only that is permitted, what is explicitly stipulated by law’ is not applicable to them, This principle may be properly implied to determine the only the freedom of actions of state representatives.
If to apply the principle ‘Only that is permitted, what is explicitly stipulated by law’ to the decision of the Dzerzinski district court, then one must conclude that the court may not prohibit the erection of tents, since neither in the Constitution of Ukraine nor in any operating laws there indications about such measures. Indeed, neither in the Ukrainian legislation, nor in Ukrainian sublegal acts, not in the legislation of the former USSR there are no indications which equipment may be used in public meetings, rallies, marches, demonstrations or pickets with agitation posts. This thesis has a practical confirmation. For example, in the Ukrainian legislation there is no special permission to take the armored cars and tanks to the central street of Kyiv during holidays. As well, there are no norms permitting to create special mechanical stands, pyramids, platforms and even tribunes for participants and spectators of rallies, marches, etc. In other words, all the technical equipment of various public actions in Ukraine is based on political traditions and common sense of the organizers and participants.
The court decision juridically presupposes that the tents and the agitation post were intended to erect in a ‘crowded place’. That was the thesis, which was later used by the court to prove the collision of the intentions of the organizers of the agitation post with the interests of supporting public order, which must be protected by the local executive power. However the court did not take into account that the Svoboda Square by the reason of its tremendous size, by its common arrangement and name is not so much a crossroads as the place specially designed for political and other public (for example, cultural) gatherings. This is confirmed, for example, by recent holding there political meetings organized by the authorities in protection of President Kuchma. In other words the Svoboda Square is the city area, which can and must be a place of great gatherings of people. The square plays its role, in particular, because of the meetings and agitation posts – natural legal forms of the realization of political constitutional rights.
To sum up, one must admit that in its decision the Dzerzinski district court again obeyed the wishes of the city executive power. In every law-abiding and democratic state the juridical and executive power are separated from each other by their functions, although the executive power naturally fulfils the decisions of courts. In the given situation, however, one can see the reverse order. At first the executive power presses on the juridical power making it take the decisions profitable for the former and then energetically fulfils the decisions.
In the motivating part of its decision the Dzerzinski court refers to the Decree of the Presidium of the Supreme Soviet of the USSR ‘On the procedure of organizing meetings, rallies, street marches and demonstrations in the USSR’ of 28 July 1998. The court considers this document as an operating law referring to the resolution of the Supreme Soviet of Ukraine ‘On the procedure of temporary application of separate acts of the Soviet le on the territory of Ukraine’ of 12 September 1991.
The Kharkov Group for human rights protection has already commented similar, not very convincing, court arguments. In the given case we would like to point out that the Resolution of 12 September 1991 does not contain a concrete list of the Soviet legal acts, which can be applied in Ukraine. Instead, the Resolution reads: ‘Stipulate that until the adoption of the suitable legal acts by the independent Ukraine, the corresponding Soviet legal acts may be applied in Ukraine, unless they contradict the Ukrainian Constitution and laws’.
Commenting the given norm, the KhG pays a special attention to the fact that in the above-mentioned Resolution of 1991 the Ukrainian Constitution of 1978 is meant, and not the Ukrainian Constitution of 1991. If the Decree of the Presidium of the Supreme Soviet of the USSR may be admitted to agree with the letter and spirit of the Soviet Constitution of 1977 and the Ukrainian Constitution of 1978 following from the former, then it is obviously wrong about the Ukrainian Constitution of 1996.
Thus, in it decision the Dzerzinski district court still ignores the fact that the Resolution ‘On the procedure of temporary application of separate acts of the Soviet le on the territory of Ukraine’ includes as a basic one the juridical reference to the Basic Law, which, in fact, is not operable for a long time. As well comrade Dzerzinski is long dead, but the Dzerzinski district court is alive and kicking.
V. Rechitskiy, the Constitutional expert of the KhG
In the motivating part of its decision the Dzerzinski district court used as an argument the proof that ‘in the process of realizing their constitutional rights mentioned in Articles 34 and 39 by Ukrainian citizens and political parties neither the Constitution itself nor other legal acts stipulate the opportunity of erecting tents in public places and other places, where people gather’. This argument the court regarded as convincing to serve basic for the prohibition of setting tents on the Svoboda Square in Kharkov (on the tarmac covered ground near Lenin’s monument).
As to this argument and the court decision as a whole, the KhG finds it necessary to note the following.
The representatives of the Socialist party and some other public organizations, who intended to take part in the tent agitation post, are subjects of the civil society and not representatives of the state (state officers) with distinctly delineated competence. That is why in the legal sense their actions are less limited than those of the representatives of the state. Namely such are (must be) actions of other private citizens. In the given civil case the actions of Kharkovites, who, from the constitutional viewpoint, enjoy freedoms of citizens. That is why the principle ‘Only that is permitted, what is explicitly stipulated by law’ is not applicable to them, This principle may be properly implied to determine the only the freedom of actions of state representatives.
If to apply the principle ‘Only that is permitted, what is explicitly stipulated by law’ to the decision of the Dzerzinski district court, then one must conclude that the court may not prohibit the erection of tents, since neither in the Constitution of Ukraine nor in any operating laws there indications about such measures. Indeed, neither in the Ukrainian legislation, nor in Ukrainian sublegal acts, not in the legislation of the former USSR there are no indications which equipment may be used in public meetings, rallies, marches, demonstrations or pickets with agitation posts. This thesis has a practical confirmation. For example, in the Ukrainian legislation there is no special permission to take the armored cars and tanks to the central street of Kyiv during holidays. As well, there are no norms permitting to create special mechanical stands, pyramids, platforms and even tribunes for participants and spectators of rallies, marches, etc. In other words, all the technical equipment of various public actions in Ukraine is based on political traditions and common sense of the organizers and participants.
The court decision juridically presupposes that the tents and the agitation post were intended to erect in a ‘crowded place’. That was the thesis, which was later used by the court to prove the collision of the intentions of the organizers of the agitation post with the interests of supporting public order, which must be protected by the local executive power. However the court did not take into account that the Svoboda Square by the reason of its tremendous size, by its common arrangement and name is not so much a crossroads as the place specially designed for political and other public (for example, cultural) gatherings. This is confirmed, for example, by recent holding there political meetings organized by the authorities in protection of President Kuchma. In other words the Svoboda Square is the city area, which can and must be a place of great gatherings of people. The square plays its role, in particular, because of the meetings and agitation posts – natural legal forms of the realization of political constitutional rights.
To sum up, one must admit that in its decision the Dzerzinski district court again obeyed the wishes of the city executive power. In every law-abiding and democratic state the juridical and executive power are separated from each other by their functions, although the executive power naturally fulfils the decisions of courts. In the given situation, however, one can see the reverse order. At first the executive power presses on the juridical power making it take the decisions profitable for the former and then energetically fulfils the decisions.
In the motivating part of its decision the Dzerzinski court refers to the Decree of the Presidium of the Supreme Soviet of the USSR ‘On the procedure of organizing meetings, rallies, street marches and demonstrations in the USSR’ of 28 July 1998. The court considers this document as an operating law referring to the resolution of the Supreme Soviet of Ukraine ‘On the procedure of temporary application of separate acts of the Soviet le on the territory of Ukraine’ of 12 September 1991.
The Kharkov Group for human rights protection has already commented similar, not very convincing, court arguments. In the given case we would like to point out that the Resolution of 12 September 1991 does not contain a concrete list of the Soviet legal acts, which can be applied in Ukraine. Instead, the Resolution reads: ‘Stipulate that until the adoption of the suitable legal acts by the independent Ukraine, the corresponding Soviet legal acts may be applied in Ukraine, unless they contradict the Ukrainian Constitution and laws’.
Commenting the given norm, the KhG pays a special attention to the fact that in the above-mentioned Resolution of 1991 the Ukrainian Constitution of 1978 is meant, and not the Ukrainian Constitution of 1991. If the Decree of the Presidium of the Supreme Soviet of the USSR may be admitted to agree with the letter and spirit of the Soviet Constitution of 1977 and the Ukrainian Constitution of 1978 following from the former, then it is obviously wrong about the Ukrainian Constitution of 1996.
Thus, in it decision the Dzerzinski district court still ignores the fact that the Resolution ‘On the procedure of temporary application of separate acts of the Soviet le on the territory of Ukraine’ includes as a basic one the juridical reference to the Basic Law, which, in fact, is not operable for a long time. As well comrade Dzerzinski is long dead, but the Dzerzinski district court is alive and kicking.