Sharp criticism of the draft law on peaceful assembly
Volodymyr Chemerys from the “Respublica” Institute has little positive to say about the draft law “On the procedure for organizing and holding peaceful gatherings” (No. 2450) passed in its first reading on 3 June.
The “Respublica” Institute, together with other civic organizations, drew up a draft law “On freedom of peaceful assembly” back in 2005. It received a positive assessment from the Venice Commission and was tabled in parliament by various deputies during the previous two sessions of the Verkhovna Rada. It was, however, never considered, and when “Respublica” endeavoured to have it tabled in the new term, it transpired that the above-mentioned draft law, which the author calls a Cabinet of Ministers draft law, had been tabled long before and the timeframe for providing an alternative had been missed.
The author stresses that corrections will be proposed before the draft law’s second reading, however believes that they cannot significantly improve the situation and is therefore hoping that parliament can be made to see sense and reject the draft law altogether. If it passes it, “Respublica” will call on the President to refuse to sign it, and they will be able to table the draft law “On freedom of peaceful assembly” which is in keeping with the Constitution and the European Convention on Human Rights.
1. The wording of the draft law tabled by the Cabinet of Ministers is such that it is quite sufficient to stop a meeting if an “authorized representative of an executive body or bodies of local self-government” thinks that a gathering of more than three people is a “disruption of public order”.
This is despite the fact that Article 39 of the Constitution stipulates that freedom of assembly can only be restricted by the court and only in strictly defined cases.
2. Another important point in the draft law is the timeframe for notifying of a planned gathering, and whether such notification is mandatory.
The author points out that Article 11 of the European Convention guarantees freedom of assembly, and points out that the European Court of Human Rights has stipulated that the lack of notification of a meeting does not constitute grounds for banning it.
However Article 5 of the draft law states that a peaceful gathering may not be held if the organizers have not provided notification within the timeframe stipulated by the Law.
The author gives the example of an Odessa City Council deputy, Mykhailo Shmushkovich who held a rally after notifying the authorities of his plans two days earlier. There was no ban on the meeting and it passed without any problem, however later he was fined 170 UAH under the Code of Administrative Offences because the Odessa City Executive Committee decided that the notification should have been 10 days before the event, not 2.
The draft law states that the authorities should be notified 5 days before the gathering. Why 5, and not 2 or 10 is not clear. There can also be argument as to why notification is needed at all. From the point of view of the authorities, the author believes, this enables them to ban the meeting or stop it, if notification was not given in the time period stipulated. He says that the authorities always have an interest in there being less gatherings, especially those of the opposition. From the point of view of those taking part in a gathering, notification should give them confidence that the authorities will take measures to protect them in exercising their rights. Stipulating a particular timeframe should make it possible to hold the law enforcement bodies answerable if they did not fulfil their obligation to protect people’s rights.
The author stresses that this approach has been endorsed by the European Court of Human Rights whose case law is a source of law in Ukraine, as well as by a judgment of Ukraine’s Constitutional Court on 19.04.2001.
He believes that a period of 5 days is excessive since there are occasions when response to an even is needed swiftly. It may be that 5 days is needed for the law enforcement agencies to provide proper cover, etc, however under no circumstances should lack of such notification be used as an excuse for banning a gathering.
3. Article 22 of the draft law gives much more cases when the court may ban gatherings, than does Article 39 of the Constitution.
4. The Code of Administrative Justice stipulates that applications from the authorities to ban a gathering should be considered before the latter begins. In practice this is several days or hours before. This means that the organizers do not have the possibility of reinstating their right to hold the meeting, since appeals take months to be heard. The author believes that the law should stipulate special timeframes for such appeals, as is the case with elections. This is not provided for by the draft law.
From an article by Volodymyr Chemerys at www.helsinki.org.ua