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13.12.2002 | R. Topolevski

Legislative regulation of the freedom of gatherings in the system of the Ukrainian legal sources: a collision, a misunderstanding or a joke?

   

The time that passed since the independence of Ukraine was declared (11 years) and since the new Constitution was adopted allows to put the question about the effectiveness of the system Article 39 of the Constitution of Ukraine of 1996 reads: "Citizens have the right to gather peacefully and without weapons and to conduct meetings, rallies, marches and demonstrations, about which the executive organs or organs of local self-rule must be informed beforehand. This right may be restricted only by court and only in the interests of national security and public order: for preventing clashes or crimes, for protecting health of population or for protecting rights and freedoms of other people".

Answering the request of the Ministry of Interior of Ukraine concerning the official interpretation of the provisions of part 1 Article 39 of the Constitution of Ukraine, the Constitutional Court of Ukraine issued Resolution No. 4-рп/2001 of 19 April 2001, which reads:

"The citizens’ right to gather peacefully and without weapons and to conduct meetings, rallies, marches and demonstrations stipulated by Article 39 of the Constitution of Ukraine is their inalienable and inviolable right guaranteed by the Basic Law of Ukraine".

"Basing on the provisions of item 1 part 1 Article 92 of the Constitution of Ukraine stating that citizens’ and human rights and freedoms, as well as the guarantees of these rights and freedoms may be determined by laws onlyand that only a court, according to the law, may restrict the realization of citizens’ right for mass gatherings (part 2 Article 39), the Constitutional Court of Ukraine drew the conclusion that determination of the terms of informing the organs of the executive power or local self-rule with the account taken of the peculiarities of peaceful gatherings, their form, mass character, place and time of holding is a subject of legislative regulation" (Highlighted by the author. – Editor’s note).

"...The organizers of such peaceful gatherings must inform the mentioned organs about these actions beforehand in the established term. This term must not restrict the citizens’ right stipulated by Article 39 of the Ukrainian Constitution, but must guarantee this right and, at the same time, enable the organs of executive power or local self-rule to take the needed measures for the conduction of the meetings, rallies, marches and demonstrations, as well as for protecting public order and rights and freedoms of other people.

The determination of the concrete terms of informing with the account taken of the peculiarities of peaceful gatherings, their form, mass character, place and time of holding is a subject of legislative regulation".

Besides, the Constitutional Court pointed out in the motivational part of its decision: "According to part 3 Article 8 of the Ukrainian Constitution, the norms of the Constitution of Ukraine are the norms of direct action. They are applied as they are, independently of the fact whether some laws or other normative legal acts concerning them were adopted". (Highlighted by the author. – Editor’s note).

In other words, although the peculiarities of conducting meetings, peaceful marches and demonstrations must be regulated by laws, the absence of such laws must not and may not be the obstacle for realizing the right of a person for the freedom of gatherings. So, what must regulate this right?

The search for the legal sources regulating this sphere brings one to the question about the validity or invalidity of the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988, on which the Dzerzinski district court of Kharkov based its decisions concerning the restriction of the right for gatherings [See: V. Rechitskiy. The spirit of the law and the letter of the right// The freedom of expression and privacy. 2001.–No. 1 pp. 10-13]. Although the Resolution of the Supreme Rada of Ukraine "On the procedure of the temporary operation of some legal acts of the USSR on the territory of Ukraine" of 12 September 1991 envisages that "the legal acts of the USSR concerning the questions, which are not regulated by the Ukrainian laws, may be used on the territory of the republic before the adoption of the corresponding domestic laws, if it does not contradict the Constitution and operable laws of Ukraine", it does not mention that the above-mentioned resolution is valid. Even without taking into consideration the very contents of the resolution, which is typical namely for non-democratic and non-law-abiding state and provides the necessity of the permission on the side of the state organs to realize the unalienable and inviolable citizens’ Constitutional rightfor conducting meetings and demonstrations, one must acknowledge the inadmissibility of regulating such relations in this way in modern Ukrainian legal system. The matter is that the regulation of the social relations with a resolution is not a legislative regulation, as it is stated by the Constitutional Court. From this point of view it would be reasonable to discuss if the Ukrainian Constitution of 28 June 1998 is "a proper legal act", since the principles of regulating this problem stated by the Constitution not only fundamentally differ, but even contradict this resolution. Moreover, it is also noteworthy that the Constitution of the USSR of 7 October 1977, which, by the way, stipulated the right for peaceful gatherings without the restrictions introduced in the new Ukrainian Constitution (of 1996) [Article 50 of the Constitution of the USSR (of 1977): „According to the interests of the people and with the purpose of strengthening and developing the socialist system, the following freedoms are guaranteed to the citizens of the USSR: the freedom of expression, of the press; for meetings, rallies, street marches and demonstrations.

The realization of these political freedoms is guaranteed by rendering to citizens and their organizations buildings, streets and squares, by wide spreading of information, by giving the opportunity to use the press, TV and radio“.

Naturally, it should be noted that the realization of these freedoms was possible only „with the purpose of strengthening and developing the socialist system“ the people, who wanted to realize other goals were persecuted as political criminals. So, this article was a fiction, since it served not to the people, but to the state], was not officially revoked [It is obvious that the Constitution of the USSR became invalid because of the objective reason – the USSR itself was annihilated. We are sure that this also was one of the reasons why the above-mentioned resolution lost its validity.].

One more "filter" that could help to single out the invalid normative legal acts, including those in the sphere of peaceful gatherings, is the Constitution itself, in particular item 1 of the Transitive provisions: "Laws and other normative acts adopted before this Constitution came into effect are valid in the parts, which do not contradict the Constitution of Ukraine".

It is also interesting that Article 11 of the Convention on the protection of human rights and fundamental freedoms (the Convention, in what follows) provides the freedom for peaceful gatherings for everybody, and Article 39 of the Constitution of Ukraine provides this right only for Ukrainian citizens. It seems that the authors of the both law drafts concerning the conduction of peaceful mass actions that were considered by the Supreme Rada [The draft of Law of Ukraine No. 3004 of 16 October 2000 „On peaceful gatherings“ (handed by G. Udovenko) and the draft of Law of Ukraine No. 3004-2 of 10 August 2000 „On the procedure of conducting peaceful mass actions in Ukraine“ (handed by V. Pustovoytov).], do not notice this fact and, preferring the text of the Convention, state that this right must be extended on citizens, foreigners and apatrides [In its turn, Article 26 of the Ukrainian Constitution states that the foreigners and apatrides residing in Ukraine legally have the same rights, freedoms and duties as Ukrainian citizens with the exception of the cases envisaged by the Constitution, laws or international agreements of Ukraine. ].

The main problem in this sphere is the search of the balance between guaranteeing the freedom and the public order. The restrictions of this freedom stipulated by law must be reflected in the law. Even a court may not impose such restrictions [We want to draw the readers’ attention to item 13 of Resolution of the Plenum of the Supreme Court No. 9 of 1 November 1996 „On applying the Constitution of Ukraine for administration of justice“, which reads: „In agreement with Article 39 of the Constitution, citizens have the right to gather peacefully and without weapons for conducting meetings, rallies, marches and demonstrations; the organs of executive power or local self-rule must be informed about such actions in the proper term. The claims on the restrictions of this right are considered by courts according to the procedure established for the cases concerning administrative and legal relations“, and part 4 item 2: „If the contents of the Constitutional norm is a reason for the additional regulation of its provisions by law, the court considering the case must apply only those laws, which are based on the Constitution and do not contradict it“. By the way, there are still no laws legally approving this procedure. ] before such law is adopted,since the great probability exists of violating the Constitutional right of a person [In our opinion, it was the absence of such law that caused the situations when courts impeded citizens to realize this right, in particular, on the side of the Dzerzinski district court of Kharkov (see http://www.khpg.org/index_uk.html) ] because there are no legislatively determined criteria of court definition of the interests of national safety and public order.

Considering this question one must take into account the viewpoint of the European Court of human rights (the Court, in what follows) concerning the restrictions of this freedom. So, according to part 2 of Article 11 of the Convention: „No restrictions shall be placed on the exercise of these rights other than such as are prescribed by laws and are necessary in a democratic society…“ In the practices of the Law the solution of the question whether the restriction is prescribed by law, has some peculiarities. The Court analyzes not only the concrete law, but also the entire legislation, the legal framing as a whole [See the case Rekvenyi vs. Hungary]. In the case Tammer vs. Estoniathe Court stated that one of the demands following from the concept „prescribed by law“ is the predictability of consequences. Thus, to restrict the right for peaceful gatherings, which is protected not only by the Ukrainian Constitution, but also by the Convention, it is needed to define, precisely and unanimously, using the corresponding laws and obeying the Constitution, the criteria of such restriction that enable a person to regulate his behavior and to predict the consequences of a concrete action. [More details on the principle of legal confidence see: Yu. Zaytsev. Concepts of law and legality: opinion of the European court of human rights// Practices of the European court of human rights. Decisions. Comments, 2(14), 2002. – p. 9-14.] It is evident that the above-mentioned resolution does not meet the principle of the legal confidence and, according to the Court practices, may not be regarded as a law, which defines the restrictions of this right.

Unfortunately, we must admit that, in fact, the procedure of conducting peaceful mass actions in Ukraine is regulated nowadays only by such legal sources as the Convention on the protection of human rights and fundamental freedoms (1950), the Constitution of Ukraine (Article 39), Resolution of the Plenum of the Supreme Court No. 9 of 1 November 1996 „On applying the Constitution of Ukraine for administration of justice“ (item 13) and Resolution No. 4-рп/2001 of 19 April 2001 of the Constitutional Court of Ukraine (the case concerning the beforehand informing about peaceful gatherings).

Basing on the above-mentioned arguments one may draw the following conclusions:

It is necessary to organize the work of experts for compiling the list of the legal acts of the USSR that are still valid in Ukraine in accordance with the Resolution of the Supreme Rada of Ukraine "On the procedure of the temporary operation of some legal acts of the USSR on the territory of Ukraine" of 12 September 1991 and to approve this list officially; or to terminate completely the operation of all such acts as those, which contain the legal norms for regulating the relations in the social and political system incompatible with the principle of the superiority of the right [So, for example, it is not understandable whether Decree of the Presidium of the Supreme Soviet of the USSR of 26 March 1988 No. 6613-XI classified as „not for publishing“ became invalid, whether it agrees with the Constitution of Ukraine of 1996 and operating international agreements.]. The same procedure must be used to the laws and sublegal acts adopted before the Constitution of Ukraine (1996) became operable.

The normative and legal acts of the USSR and UkrSSR with the restricted access must be either declared invalid a priori or the classification of these documents as secret must be cancelled to determine whether they contradict the operating Constitution or not.

3. The absence of the normative acts intended for guaranteeing the norms of the Constitution is not a justification of the inactivity of these norms and does not implicate the impossibility of applying these norms by individuals;

4. The illegality of applying such norms of the Constitution, which are not worked out in details in laws and sublegal acts, may be considered only by courts [In accordance with part 3 Article 1 of the Ukrainian Law „On the judicial system of Ukraine“, „the jurisdiction of courts is spread to all legal relations in the country“].

5. The absence of the laws, which would regulate the provided (by the Ukrainian Constitution and the Convention) restrictions of human rights and fundamental freedoms, provokes the violations of these rights and freedoms on the side of state organs, in particular, unfortunately, on the side of courts. This problem must be solved as soon as possible.

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