search  
print

Human rights in Ukraine – 2006. IX. Freedom of Assembly

   

[1]

1.  Legal regulation of freedom of peaceful assembly

1.1. The Ukrainian Constitution

Freedom of peaceful assembly is guaranteed by Article 39 of the 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”.

In a Judgment from 19 April 2001 the Constitutional Court 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 of events planned. 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.  Particular aspects of court cases involving restrictions on freedom of assembly

Article 182 of the Code of Administrative Justice of Ukraine (CAJU)[2] outlines “special aspects of court proceedings on administrative applications from those with the authority to restrict the right to peaceful assembly”, while Article 183 of the CAJU details the “special aspects of court proceedings on 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 the public authorities and bodies of local self-government, on receiving notification of a planned gathering have the right to apply to their local administrative court for permission 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. As a result court bans are, as a rule, issued several hours before the beginning of the peaceful gathering which prevents the organizers from appealing against the ruling and thus defending their rights.

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 public authorities 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.

It should be noted that while in 2006 the authorities and bodies of local self-government applied on several occasions to the courts to have meetings banned, as per Article 182 of the CAJU, there were no applications from the organizers of gatherings under Article 183 to have restrictions removed. This is explained firstly, as monitoring of freedom of assembly in Ukraine from 2004-2006 carried out by the civic organization Institute “Respublica” found, by the fact that the restrictions and obstructions to peaceful assembly were not in most cases created by the authorities or bodies of local self-government notified by the organizers, but by law enforcement agencies or local courts.  Secondly, the obstructions only emerged during the meetings, and not earlier. Furthermore, CAJU does not set particular time limits for appeals against rulings of district administrative courts banning or restricting freedom of assembly.

Ukrainian court practice shows that although in the majority of cases courts of appeal overturn bans imposed by first instance courts, the review process of such appeals can go on for months. This means that even if the administrative court of appeal 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 examination 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 courts of appeal.

1.3. Legislation on peaceful assembly dating from the former USSR

In Ukraine there is no legislation which regulates enjoyment of the right to peaceful gatherings, aside from those provisions and restrictions of a general nature mentioned above. However the public authorities, bodies of local self-government and the courts are to this day using normative acts of the former USSR, such as, 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, for example, the “Temporary Regulations on review procedure by the city executive committee of issues involving the holding of gatherings, political rallies, marches and demonstrations in 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 review procedure 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 – “persistent failure to comply with 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 “persistent failure to comply”, 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, nor were any cases recorded for 2006.

Article 296 of the Criminal Code (“group hooliganism”) is also applied to participants of gatherings responsible for organized confrontation with law enforcement officers, members of counter-demonstrations or other members of the public. This article allows for periods of up to 10 days imprisonment.

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) 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.

In 2006, according to information from the Ministry of Internal Affairs (MIA), 158 participants in gatherings faced administrative charges under Articles 185 and 185-1 of the CAO. Twenty criminal investigations were launched under Article 296 of the Criminal Code (“group hooliganism”), but not one under Article 340.  There are no recorded cases in 2006 of officials being punished for obstructing the right of peaceful assembly.

In 2006 the organizers of a “Freedom March” (which takes place in almost 300 cities in the world on the first Saturday in May each year) informed the prosecutor’s office of the central district in Kyiv that the heads of the Kyiv police force had obstructed their demonstration (there are more details about this further in the section). Having infringed the time period for examining the application, as well as procedural norms (witnesses, the organizers of the March and police officers were not questioned), the prosecutor’s office refused to launch a criminal investigation under Article 340 of the Criminal Code. ККУ. Then, following an appeal from the organizers of the March, on 29 November 2006 the Shevchenkivsky District Court in Kyiv revoked the Prosecutor’s resolution and ordered another review of the original application. At the present point in time, the prosecutor’s office is still examining the March organizers’ application.

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 rights and civil liberties,  the guarantees of these rights and liberties; the main duties of the citizen are determined exclusively by the laws of Ukraine, and not by rulings passed by local executive bodies.

The Law “On local self-government in Ukraine” empowers executive bodies of village, settlement and city councils to only “resolve in accordance with the law issues pertaining to the holding of meetings, political rallies, demonstrations, sport, shows and other mass events and ensure 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 unconstitutional limitations on the right to freedom of assembly.

The “Temporary Regulations on review procedure by the city executive committee of issues involving the holding of gatherings, political rallies, marches and demonstrations in Kharkiv” stipulate 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. According to the “Regulations on organizing and holding mass events in Dnipropetrovsk”, approved by the Dnipropetrovsk City Executive Committee in 2003, rallies are permitted in the city only in one place designated by the city authorities, and processions only according to one route. In order to hold a rally in the city, the organizers must, pursuant to these “Regulations” coordinate their plans with eight (!!!) municipal services.

It should be mentioned that in many cases neither the organizers of the meetings nor the local authorities adhered to the norms of such legal acts. The rallies were held without being agreed in the “necessary” manner and not in the places “designated” without any consequences. On some occasions, however, the local authorities lodged applications with the court to ban meetings specifically on the basis of such “Regulations”, and the court issued such bans.

The fact that these “Regulations” are in contravention of both the Ukrainian Constitution and international human rights laws to which Ukraine is a signatory, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms, is confirmed by the fact that in all cases where members of the public have asked the court to have the “Regulations” quashed, the courts have allowed their applications.

Thus for example in 2005 the relevant acts of the Lviv and Kyiv City Councils were cancelled, while in 2006 the Sumy City Council itself revoked its “regulations” passed in 2003. In March 2007, on a civil suit lodged in Dnipropetrovsk by Andriy Shulyak, representing the “Respublica” Institute, the Babushkinsky District Court in Dnipropetrovsk quashed the above mentioned document of the Dnipropetrovsk City Executive Committee[3].

Ukrainian human rights organizations have begun a campaign of civil law suits demand that such acts are revoked in all cities of the country where they are presently in force.

1.6.  Regulations on erecting «small architectural forms» in the context 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, and their erection should undoubtedly be subject to regulation by the local authorities.

However in Ukraine it has become traditional to hold acts of protest in the form of «tent cities» The erection of tent cities, i.e. tents put up not for commercial activity, but in order to hold a peaceful gathering, needs to be regulated within the framework of norms on the right to free assembly, and not regulations regarding «small architectural forms».

During 2006, particularly in Kyiv, the practice became widespread where representatives of the municipal improvements department (the department responsible for improvements to a district or the city as a whole) issued “instructions” stating that «small architectural forms», meaning tents erected by participants in a peaceful gathering, infringe the appearance of the city and must be dismantled. Such practice is a convenient way for the local authorities to stop protest actions without court sanction and therefore in violation of the Constitution. Where participants in some gatherings have refused to voluntarily dismantle the tents, the «small architectural forms» have been pulled down by the municipal authorities.

On 21 March 2006 representatives of the Kyiv municipal improvements department handed the inhabitants of a tent city of Maidan Nezalezhnosti [Independence Square] an instruction stating that they had to remove from the central square of the capital “unlawfully erected small architectural forms”. The tents had been erected by people living in Transdniester, as well as Ukrainian citizens belonging to the party “Bratstvo” [“Brotherhood”], as a sign of protest against the Ukrainian Government’s policy towards Transdniester (a breakaway region of the Republic of Moldova). After this, the municipal services removed the tents without a court ban on the action. The police did not intervene while the tents were being dismantled, although they detained three members of the protest action who were, however, soon released with no charges being laid.

A similar scenario was played out on 21 October 2006 by representatives of the improvements department for the Holosiyivsky District in Kyiv against tents erected by inhabitants of the village Troeshchyna around President Yushchenko’s dacha near the village of Koncha-Zaspa. The picketers, around 30 elderly women, were demanding that the President become personally involved in resolving land issues in their village. Representatives of the police – the specially trained units “Berkut” and “Sokil” whose numbers were several times greater than those of the picketers not only failed to prevent the tents being pulled down, but actually detained five members of the picket. Two were released immediately, but three others received warnings.

However, from December 2006, following a change in leadership in the Ministry of Internal Affairs, the situation changed. That is, the municipal authorities continued to apply some “orders” regarding “small architectural forms” in order to stop rallies and pickets however police officers refused to cooperate with them in unlawful dispersal of peaceful assembly.

Thus, on 27 December the Kyiv municipal services, on the basis of an “order” and without court sancetion, dismantled a tent city erected by the civic organizations “Public Council of Ukraine” on Maidan Nezalezhnosti. The police refused to take any part in dismantling the tents referring to the lack of an appropriate court ruling. They also refused to write up protocols on administrative offences by inhabitants of the tent city, saying that there had not been any such offences. Nobody was detained. The next day the “Public Council of Ukraine” re-erected their tent city in the same place and then before New Year voluntarily dismantled it.

The police also refused to work with the municipal authorities in dismantling the tent city near Koncha-Zaspa re-erected at the beginning of 2007. In response to a letter from the Kyiv Mayor Leonid Chernivetsky where the Mayor complained about the “inaction” of the Kyiv police on getting rid of tent cities in December 2006, the Minister of Internal Affairs Vasyl Tsushko replied that the police officers had acted in accordance with the law.

1.7. Draft laws on 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” which on 15 July was tabled in the Verkhovna Rada (registration No, 7819)[4]  by State Deputy, Viktor Musiyaka. It was not, however, considered by the fourth Verkhovna Rada, and therefore the authors of the bill found support from representatives of all five factions of the fifth Verkhovna Rada elected in 2006 – Taras Chornovil from the Party of the Regions, Andriy Shevchenko from the Bloc of Yulia Tymoshenko, Kateryna Levchenko from Nasha Ukraina [Our Ukraine], Yevhen Filindash from the Socialist Party and Oleksandr Holub from the Communist Party.

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 serving a sentence in penal institutions. 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 public authority 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, are the most frequent violations of the right to peaceful assembly.

The Draft Law sets out special time periods for judicial examination of appeals against rulings handed down by first instance courts restricting 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”.

The Draft Law also imposes liability where officials or other individuals have violated the right to freedom of assembly

In 2006 a draft law on peaceful assembly was also presented by the Ministry of Justice. Following cooperation between civic organizations and the Ministry, the Government’s draft changed considerably from its original form and became closer to the draft offered by civic organizations. At the present time it is still being worked on.

Both these draft laws received a generally positive assessment from OSCE and Venice Commission experts (Opinion No. 385/2006)[5].

Two other draft laws on freedom of assembly were also tabled in the Verkhovna Rada. One of them was from National Deputy H. Udovenko (Nasha Ukraina) and was similar to a bill submitted by the same Deputy and rejected back in 2004. The draft is like the law currently in force in the Russian Federation which significantly restricts freedom of assembly and has been used as the grounds on numerous occasions for breaking up rallies of the Russian opposition. The other bill, from O. Feldman (Bloc of Yulia Tymoshenko) also received criticism from Ukrainian civic organizations for imposing considerable restrictions on freedom of assembly (excessively long periods required for notifying of meetings, limitations on freedom of assembly in terms of time and space, excessively broad powers for the police in stopping gatherings, etc).

However, given the political crisis which broke out in Ukraine in early 2007, it is unlikely that any of these draft laws will be considered in the near future.

2.  Infringements of freedom of peaceful assembly during 2006

2.1. General Overview

2006 again saw violations on a large scale of the right to freedom of peaceful assembly by the local authorities, bodies of local self-government, law enforcement agencies and first instance courts.

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 municipal services, private security outfits or 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.

2006 saw 170.7 thousand events in which 85.3 million people took part. By comparison, in 2005 there were 124.4 thousand such events involving 63 million people (based on figures from the Ministry of Internal Affairs Department of Public Safety).  According to the same data, over the last ten years the number of mass events has become 16 times higher. The police state that 109 events (involving 54 thousand people) took place “with infringements of the procedure for mass events”, with these leading to 28 criminal investigations (under Article 296 of the Criminal Code “group hooliganism”). Administrative charges were laid against 158 members of gatherings (under Articles 185 and 185-1 of the CAO).

Given that during 2005 administrative charges were only laid against 40 organizers and active participants in events, one can conclude that in 2006 more Ukrainians exercised their right to peaceful assembly (35% more than the previous year), however more people also came into conflict with the authorities in exercising their right.

The largest mass events were different types of holiday celebrations organized by the authorities, and no infringements were recorded. Most such infringements were in connection with meetings organized by groups opposing the present administration (the Progressive Socialist Party, “Bratstvo” [“Brotherhood”), “Proryv” [“Breakthrough”] and others). At the same time, the number of infringements against meetings of a social, rather than political, nature increased against 2005.

Unlike 2005, the geographical scope of violations of freedom of assembly narrowed in 2006. In a lot of regions no infringements were recorded at all, however an increase in the numbers of infringements was observed in Kyiv (where the majority of mass events were held), Kharkiv (where there had been none in 2005), Sevastopol and the Autonomous Republic of the Crimea.

2.2. Infringements of the rights of people taking part in peaceful gatherings with political demands  

In 2006, as previously, the largest numbers were drawn by mass events connected with various holidays or significant dates organized by the authorities, sporting or musical events and so forth. All these gatherings passed without any encroachments on freedom of assembly except for the celebration on Independence Day on 24 August. On that occasions the Kyiv police blocked members of the Bloc of Yulia Tymoshenko (BYuT) near the metro station “Zoloti vorota” and of the Public Council of Ukraine on Maidan Nezalezhnosti [Independence Square] while they were trying to get to St Sophia Square where ceremonies were taking place with the participation of the countries leaders and show President Yushchenko banners condemning his appointment of the leader of the Party of the Regions Viktor Yanukovych Prime Minister.

Another category of mass events was that of political gatherings – those either held by political organizations or under political banners. The largest of these was the rally of the Crimean Tatar Mejilis to mark the anniversary of the deportation of the Crimean Tatars from the Crimea (in Simferopol on 18 May); protests against the entry into the Feodosiya port of a NATO warship (the Crimea, June); protests against the appointment of  Viktor Yanukovych Prime Minister and counter-demonstrations by Yanukovych supporters (Kyiv, July – August); a demonstration by those calling for the Ukrainian Resistance Army [UPA] being recognized as having fought for Ukraine in the Second World War and a counter-demonstration of their opponents (Kyiv, 15 October).

In some cases these meetings were prohibited by the court on the application of the local authorities. This was the case, for example, with the demonstration by Crimean Tatars and counter-demonstration by ethnic Russians in Partenit (Crimea, 11 May); the demonstration by the supporters of the UPA and counter-demonstration of their opponents (Kyiv,, the court ban was on 14 October); the demonstrations of left-wing and right-wing groups marking the anniversary of the October Revolution of 1917 (Kyiv, 6 November).  It should be noted that all these bans applied to both the demonstration and counter-demonstration (more detail can be found under “Court restrictions on freedom of assembly”).

There were a number of unwarranted detentions during gatherings organized by opposition groups. For example, on 21 January, after a rally organized in Sevastopol by the National Front “Sevastopol – Crimea – Russia”, one of the members of the Front, the leader of the Crimean youth organization “Proryv” [“Breakthrough”] Oleksy Dobychin and another leader of “Proryv” Oleksandr Dubrovsky were detained by members of a special unit of the police and taken by them to Simferopol, to the Central Department of the Crimean MI. After an interrogation lasting several hours and concerning, in particular, details about a rally organized by “Proryv” in the city of Perekop, the two men were released. They had not been allowed to notify their parents or friends about where they were. No charges were laid against Dobychin and Dubrovsky, and they therefore consider the incident to have been an attempt at intimidation.

According to information from the MIA Department of Public Safety, during lengthy protest actions in Feodosiya 24 people were detained. According to unofficial information which “Respublica” received from police officers, the Feodosiya law enforcement officers generally sympathized with the protesters and began detaining people only after insistent demands from the MIA management and the President’s Secretariat. This would seemingly explain the fact that among the 24 people, 16 were detained for road offences (participants in the car rally in support of the protests), and 4 Russian Federation nationals detained for (as per the police protocol) “while on Ukrainian territory, they took an active part in a political rally and chanted anti-Ukrainian and anti-State slogans”.  The lack of grounds for detaining these four is shown by the fact that the local court in Feodosiya found no grounds for punishing them since neither their being on Ukrainian territory (there is a visa-free regime between Ukraine and Russia), nor their participation in a political rally (including active participation), nor the slogans (slogans against the President or against Ukraine joining NATO are not prohibited in Ukraine) constituted any crime.  According to information from the opposition, the head of the Feodosiya police was dismissed in June 2006 effectively because he refused to obey an instruction from the MIA management to disperse protesters without a court warrant.

It should, however, be mentioned that the participants in the Feodosiya protests used force to stop members of the party “Pora” hold a counter-demonstration, and they returned under police guard to the coach which had brought them to the Crimea from Kyiv.

There were also no grounds for detaining members of the meetings mentioned early on 21 March in Kyiv and 21 October in Koncha-Zaspa.

According to police figures, 56 people were detained during the events of 15 October in Kyiv, the most notable in terms of violations of the right to peaceful assembly during 2006 in Ukraine. Prior to that, on 14 October, the Shevchenkivsky District Court in Kyiv had banned three political forces from holding any actions in the centre of the capital: the All-Ukrainian Association “Svoboda” (supporters of UPA), the Communist Party (opponents of UPA) and the Chernobyl Committee (with no connection to the UPA – the party had planned to hold a protest action with non-political social demands). The only grounds for the court ban was that a counter-demonstration was planned, which contravenes not only the Ukrainian Constitution, but also the case law of the European Court of Human Rights.

In the evening of that day the police, accompanied by the then Minister of Internal Affairs Yury Lutsenko, without a court order (since the 14 October ruling concerned only the meetings planned for 15 October), dismantled the tent city previously erected by UPA supporters on Kyiv’s central square.

On 15 October in the morning the police, using special cordons blocked off the entire central part of Kyiv, Khreshchatyk (Street), Maidan Nezalezhnosti [Independence Square] and adjoining streets, with MIA officials asserting that this was in enforcement of the court ruling. Kyiv looked like a city under siege. Members of the public with no relation to the actions either in support of UPA or against it could not get to the metro, the Central Post Office, trolleybus stops and so forth. Their freedom of movement was thus restricted. It proved impossible not only for the civic association “Svoboda” and the Communist Party to hold their events on Khreshchatyk and Maidan, but also the Bloc of Natalya Vitrenko and a number of right-wing organizations which the court had not prohibited from gathering on Maidan. They all held their rallies along the police cordons.

Despite the police “security” measures which more likely provoked clashes, the events did not pass without run-ins. According to information from participants in the events representing different political forces, more than 56 people were detained.  Some of those who took part, for example, Oleh Buryachok, a member of UNA – UNSD [the Ukrainian National Assembly – Ukrainian National Self-Defence] received serious injuries. The next day, following the intervention of human rights organizations, those detained were released.

The then Minister of the MIA Y. Lutsenko, commenting on such measures for obstructing political rallies unprecedented in Ukraine’s modern history, stated that after the measures applied by the police on 15 October, different political forces would gather in different places, thus avoiding clashes.

The “Respublica” Institute considers that such police measures could lead to a situation where if different groups are planning a counter-demonstration, the centre of the capital will always be blocked for members of the public. It could even mean that no political rallies and demonstrations will be able to take place in the centre of Kyiv.[6]

However after the top leaders of the MIA were changed on 1 December, the police stopped obstructing any counter-demonstrations, even where there was a court ban. In the most fraught situations, the police forced a chain between the opposing demonstrations. Clashes have thus fair been avoided.

2.3. Infringements of the rights of people 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 non-political organizations. Unlike 2005 when the majority of such demands concerned stopping what the participants saw as illegal construction work in cities, the slogans and demands voiced at social actions had a more varied nature. Examples of such meetings are the above-mentioned picket near the President’s dacha at Koncha-Zaspa and Freedom March.

  During 2006 the number of infringements of freedom of assembly with regard to actions with social demands was greater than in 2005. This can be explained by the fact that the demands began touching the interests of the leaders of the country and the local authorities to a greater extent.

Freedom March is an international action aimed at drawing public attention to discrimination against drug users and to the issue of decriminalizing the use of soft drugs. Given the controversial issues of the event planned for 6 May, its organizer – the civic initiative “Objective reality” had informed the Kyiv City State Administration (KCSA) about the planned march in advance, on 13 April. This was specifically in order to coordinate all issues which could arise during the action with the KCSA and the police. During the three-way negotiations (the KCSA, police and organizers), the latter agreed to suggestions on changing both the time and the route of the March. Yet on 4 May the then head of the Kyiv Police Vitaly Yarema asked the KCSA to lodge an application with the court to ban the March since other organizations were planning their own actions at the same time and in his view, “there is a real danger of disturbances or crimes, and a risk to public health and the rights and liberties of other people”. The religious organization “Assembly of God”, which the Mayor Leonid Chernovetsky is connected with, had declared their intention to whole an action under banners opposing the legalization of soft drugs. 

On 5 May the day before the event, clearly in order to prevent the March organizers from appealing against a ban, the application was lodged with the court. On the morning of the scheduled event, the Shevchenkivsky District Court, having considered the application from the KCSA , refused to ban the Freedom March, only restricting the organizers – Taras Ratushny and Anastasia Bezverka – 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 (Judgment in the Case of the Platform "Ärzte für das Leben" [“Doctors for Life”] v. Austria)

However the Kyiv police were not able to avert disruption to public order at the beginning of the event when counter-demonstrators, representing extreme right-wing nationalist organizations (UNA – UNSD, the Ukrainian Conservative Party and Ukrainian National Labour Party), which had only announced their action on the morning of 6 May attacked the March participants. Later the police obstructed the Freedom March by forming a ring around approximately 100 participants in the March (around 100 people) who had not demonstrated any aggression. At the same time the counter-demonstrators were not prevented from moving freely around St Michael Square, and even threw smoke bombs at the Freedom March people who had now become a convenient target.  The police prevented approximately 50 people from joining the other participants inside the cordoned-off ring. They thus prevented them from carrying out the march even after its opponents had left the square and the danger of clashes had subsided.

In general observers pointed to a certain degree of coordination between police actions and the counter-demonstrators on that day. And the then Minister of Internal Affairs Yury Lutsenko said that if he hadn’t been the Minister, he would have joined the opponents of the March.

In response to a question from the Institute “Respublica” as to why, against a court ruling, the police had obstructed a peaceful gathering, the Deputy Head of the Kyiv Police Lieutenant Vitaly Oshovsky said that he had personally taken the decision that the “March won’t take place”.

The case over obstruction by the authorities of a peaceful meeting gained wide publicity and a number of human rights and civic organizations, as well as public figures, issued a statement which said that such actions and statements by representatives of the police could testify to the imposition in Ukraine of a police state.[7].

2.4. Court restrictions on 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 2006 were unwarranted or based on unconstitutional grounds, for example:

1.  Decisions by bodies of local self-government which run counter to the Constitution of Ukraine (as discussed above).

2.  The absolute majority of court bans on demonstrations in 2006 were based purely on the fact that a counter-demonstration was planned. This, in the view of both the applicants – the local authorities, and the court, presented “the risk of disturbances or crimes, a risk to public health and the rights and liberties of other people”. Based on 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. They also ran counter to both the Constitution and to judgments passed down by the European Court of Human Rights.

The single exception to this negative practice was the ruling already mentioned handed down by the Shevchenkivsky District Court on 6 May 2006 which not only rejected the application from the authorities to ban a demonstration on the grounds that a counter-demonstration was planned, but also took into consideration, probably for the first time in Ukraine, provisions of the Law “On the application in Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and judgments of the European Court of Human Rights” which states that such judgments “are a source of law” in Ukraine (Article 17).

Of course, every demonstration, procession or other similar action, which is accompanied by a counter-demonstration, can lead to clashes and cause the law enforcement agencies 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 Platform "Ärzte für das Leben" v. 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: The European Court stated in its judgment:

“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”.

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.

.In a lot of cases the courts disregarded the presumption of innocence in that their rulings restricted citizens’ rights, i.e. punished them, not for real offences, but for the “likelihood” (in the view of the applicant and the court) of offences, in other words for offences they hadn’t committed. All such bans were based on these grounds.

If in 2005 we pointed to positive trends which had emerged in the attitude of the courts to freedom of assembly, with courts, even those which had previously imposed unwarranted restrictions on freedom of assembly, beginning to hand down judgments in compliance with the Constitution. (the same Shevchenkivsky District Court in Kyiv), with regard to 2006 we are forced to note the opposite trend. For example, whereas in October 2005 the Shevchenkivsky District Court rejected an application from the Kyiv City State Administration to ban rallies of both the supporters and opponents of recognizing the UPA as having fought for Ukraine in the Second World War on the grounds that the rallies were scheduled for the same place and time, in an analogous situation in October 2006 the same court ruled to ban both rallies. This court passed similar rulings on a number of occasions in 2006 (for example, on 6 November).

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.

Nonetheless one positive trend did emerge in 2006 with regard to court rulings on freedom of assembly. Not one ruling was recorded banning “small architectural forms”. However, as mentioned above, in the absence of such judgments the local authorities applied administrative extrajudicial prohibitions.

3.  Conclusions and recommendations

Despite the lack of domestic legislation, courts do not generally apply case law of the European Court of Human Rights, but instead use 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.

We are forced to note a negative trend in court rulings pertaining to freedom of assembly as against 2005. First instance courts (for example, the Shevchenkivsky District Court in Kyiv), even where they had previously turned down applications from the local authorities to ban political rallies where the applications were based on unconstitutional grounds (for example, the fact that a counter-demonstration was planned), began accepting such grounds and banning rallies in 2006.

The practice also became more widespread in 2006 of applying extrajudicial bans on “small architectural forms” (i.e. banning peaceful gatherings taking place in the form of tent cities) through the use of “instructions” from municipal services.

Courts of first instance, in the majority of cases, grant applications from the authorities to prohibit the holding of peaceful gatherings.  Reviews of appeals against the “automatic” rulings of first instance courts drag on for several months making 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 slightest even hypothetical suggestion that there could be 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 unwarrantedly detain activists and those attending peaceful gatherings (the number of such detentions and administrative penalties almost quadrupled in comparison with 2005). They also use excessive force to disperse peaceful gatherings, and apply levels of suppression to peaceful individuals which are disproportionate to the threat to public order 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. The development in court practice of quashing such acts passed by the local authorities can however be welcomed.

In view of the above, legal means need to be legislated for protecting the rights of individuals to freedom of peaceful assembly.

A positive move was observed at the end of 2006 in the attitude of the police to freedom of assembly. This was seen in the fact that the police no longer enforced extrajudicial “instructions” from the municipal services and did not obstruct counter-demonstrations. Also throughout 2006 the police cooperated with human rights organizations via the public human rights councils attached both to the Ministry of Internal Affairs, and to local departments of the MIA. As a result, from December 2006 the practice of dispersing meetings was stopped. There were virtually no clashes during meetings either between participants and the police, or between members of a demonstration and counter-demonstration, and the number of participants in gatherings significantly decreased.

 

Recommendations

1.  Draw up instructions for law enforcement agencies regulating their behaviour during peaceful gatherings.

2.  Carry out training of officers from special units and patrol squads of law enforcement agencies in 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.  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 provide copies of these translations to all local and appellate administrative courts.

4.  Taking into account case law of the European Court of Human Rights, 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.  It would be useful 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.  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 public authorities should revoke any Regulations on rules and procedure for holding peaceful gatherings and using «small architectural forms» and bring other decisions into compliance with the Ukrainian Constitution 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 infringements by local authorities and law enforcement agencies of the right to peaceful assembly.

9.  Organizers of peaceful gatherings are advised to use court procedure to complain against any rulings by first instance courts restricting freedom of peaceful gatherings, and also against illegal actions of law enforcement bodies. The Institute «Republic» and the Ukrainian Helsinki Human Rights Union give such cases priority when providing legal assistance.



[1]  Prepared by Volodymyr Chemerys, member of the Board of the Institute “Respublica” and of the Board of the Ukrainian Helsinki Human Rights Union.  It not otherwise stated, material used in this chapter is that of the Institute “Respublica” or of UHHRUРозділ підготовлено .

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

[3] More information can be found in English at http://www.helsinki.org.ua/en/index.php?id=1176280368.

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

[5] The Council of Europe Venice Commission’s Opinion is available in English on the UHHRU website:: http://www.helsinki.org.ua/en/index.php?id=1162206184.

[6]  For more details on this, see: “A police state in Ukraine?”  http://www.helsinki.org.ua/en/index.php?id=1161071797.

[7] The statement in Ukrainian is available at  http://www.helsinki.org.ua/index.php?id=1147355900.

Recommend this post
X




forgot the password

registration

X

X

send me a new password


on top