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04.12.2006

Important ruling for protecting freedom of assembly

   

On 29 November the Shevchenkivsky District Court in Kyiv (presided over by Judge Oksana Petrivna Pavlenko) quashed as unlawful the decision by the Shevchenkivsky District Prosecutor’s Office to refuse to launch a criminal investigation under article 340 of the Ukrainian Criminal Code (unlawful obstruction of political rallies, demonstrations, etc) over the obstruction to the Freedom March.

This obstruction was during the Freedom March on 6 May this year.  The court ordered the prosecutor’s office to carry out a comprehensive investigation into the affair, and in particular to question the deputy head of the central department of the Ministry of Internal Affairs in Kyiv, Lieutenant V. I. Oshovsky. It was he who said that he had taken the decision that the March should not take place.

The suit was lodged by the organizers of the Freedom March Ratushny and Bezverkha with the support of the “Respublica” Institute.

In our view this decision is of great important, demonstrating as it does for the first time that Article 340 of the Criminal Code is not merely on paper.

 

Background note

On 6 May 2006 the Kyiv police put obstructions in the way of the Freedom March which was aimed at drawing public attention to the spread of drugs and AIDS, to discrimination against drug users and to the issue of decriminalizing the use of soft drugs. A rally was scheduled on St. Michael’s Square, as well as a march through Kyiv streets and the submission of a petition to the Cabinet of Ministers.

The civic initiative “Objective reality” had informed the Kyiv City State Administration (KCSA) about the planned march on 13 April. Over the next three weeks they changed their planned route a number of times at the request of the KCSA. An official of the latter had stated clearly that there were no grounds for banning the action.  However closer to the date first the religious organization “Assembly of God”, and then the party “Ukrainian National Assembly” announced plans to hold their own actions on the same day and at the same time. On 4 May the head of the Kyiv Department of the Ministry of Internal Affairs informed the KCSA that there could be scuffles between the Freedom March participants and its opponents.

On 5 May the KCSA changed its position and approached the Shevchenkivsky District Court asking that the Freedom March be banned citing the possibility of conflict as their argument.

On the morning of 6 May the Court rejected the application to ban the March, but restricted the organizers from using sound amplifiers and from walking along the roads. This ruling was in keeping with case law of the European Court of Human Rights which does not consider the likelihood of counter-demonstrations to be sufficient grounds for banning a demonstration.

Despite the fact that an hour before the scheduled start of the Freedom March, opponents of it from a number of parties had amassed, the police were not there in any significant numbers to prevent conflict, and fights did occur.

At that point extra police were brought in who proceeded to surround the participants in the March (around 100 people) who had not demonstrated any aggression, while the belligerent participants in the counter-demonstration were left to freely move about the square. Police cordons prevented approximately 50 people from joining the March.  The members of the counter-demonstration also threw smoke bombs at the Freedom March people.  The police detained one of those throwing the bombs, but the other counter-demonstrators freed him (!)

Even after the participants of the counter-demonstration left the square, the police kept the Freedom March people there for around an hour, thus preventing them from holding their march at the time designated in their official notification, and which the court had seen no grounds for prohibiting.

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