Unprecedented ruling touching on freedom of assembly

On 16 July the Odessa Regional Court of Appeal rejected the appeal brought by Mykhailo Shmushkovych against the ruling of the Prymorsky Court in Odessa. The latter had found him guilty of violating the rules of procedure for organizing peaceful assembly and had referred to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 which besides a permission-based system, also imposes a 10 day timeframe for submitting applications regarding the organizing of a gathering.

On 19 May near the Odessa City Executive Committee a picket was held by people who had two years earlier had paid money towards the construction of housing begun by the Department for capital construction of the Odessa City Executive Committee. As of the present time the building has not been finished since the said Department has not fulfilled its obligations with regard to financing. The indignant private investors who have ended up without either money or a home came to a protest organized by Mr Shmushkovych who is an opposition deputy of the Odessa City Council. 

Information about the planned picket was provided in time, three days before the event. Following this he received a warning which has become standard in Odessa from the Department of Internal Policy of the City Executive Committee. This stated that having “considered” the notification, the Department found elements of an offence in accordance with this same Soviet Decree from 1988.

There was a meeting of the Executive Committee scheduled for 19 May and other protests were planned outside the Mayor’s offices, however the Head of the Department made no objections about the others.

Mr Shmushkovych received a visit from the police who issued him with a protocol about an offence under Article 185-1 of the Code of Administrative Offences (not observing the procedure for organizing peaceful gatherings). It was on the basis of this protocol that the Prymorsky Coiurt found him guilty of the said administrative offence.

Mr Shmushkovych approached the Ukrainian Helsinki Human Rights Union for legal assistance, and in the appeal he was represented by member of the UHHRU Board and Head of the “Respublica” Institute Volodymyr Chemerys. The latter has long specialized in cases involving freedom of peaceful assembly and presented arguments based on the Constitution, and judgments of the Constitutional Court. To no avail, however, and the original ruling was upheld, with no further right of appeal.
It is only the Prymorsky Court which is applying this Soviet Decree which has been found by the Constitutional Court to be invalid and in breach of the Constitution.

UHHRU is treating this case as a strategic litigation since it involves a systemic violation which the law suit can help to identify and eradicate.