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11.06.2010

UHHRU Legal Opinion on the Draft Law No. 2450 “On Peaceful Assembly”

   

The Ukrainian Helsinki Human Rights Union has issued the following legal opinion of the bill on peaceful assembly presently awaiting its second reading.

Introduction

This legal opinion is based on a comparison of the norms of the bill to international human rights standards on peaceful assembly, for example, the Guidelines on Freedom of Peaceful Assembly adopted by the OSCE and Council of Europe (http://www.venice.coe.int/docs/2008/CDL%282008%29062-e.asp ), European Court of Human Rights judgments and the UN Human Rights Committee.

The draft law No. 2450 was submitted to the Verkhovna Rada by Tymoshenko’s government on 6 May 2009. The draft law had been prepared over several years and gone through a fair number of different versions. By the time it was submitted to parliament, at preparatory stage the draft had been analysed by the Council of Europe Venice Commission..  However all recommendations made by human rights organizations and international experts were rejected by those who drew up that draft law. On 3 June 2009 the draft law was passed in its first reading. It elicited a great many comments as well as protest from human rights groups and other members of the public. It was then sent back for a repeat analysis by the Venice Commission which on 14 December 2009 made its opinion public   This was once again fairly negative.

After this, from February to May 2010 a working group of the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-ethnic relations worked on the draft law. The makeup of this group is entirely unknown however certain members of the public were also included in it.

In the middle of May the Committee sent Draft Law No. 2450 for its second reading. The public learned about the prepared text only after insistent appeals at the beginning of June 2010.  There was no public discussion of the draft law.

On the content of the draft law

The draft law has changed greatly since being passed in its first reading. Its authors endeavoured to take international standards on peaceful assembly into account which has had a very positive impact on this draft law. There have been such serious changes that the Central Legal Department of the Verkhovna Rada in its Opinion from 1 June  states:

“in the process of preparing this draft law for its second reading, it can be seen that the provisions of Articles 4, 5, 6, 9, 11, 12, 13, 14, 15 have been significantly changed in order to bring them into line with Ukraine’s Constitution. This has led to an infringement of Article 116 § 1 of the Verkhovna Rada Regulations which state that proposals and amendments to a draft law for second reading, can be made only to the text of the draft law (articles, their paragraphs, items, sentences) which was passed by the Verkhovna Rada as its basis”.

The draft law is fairly liberal and in keeping with most international standards on human rights.

It should be noted that many offensive norms from previous versions have been left out:

-        on an authorized representative of the local authorities who could stop a peaceful gathering;

-        on it being the duty of the organizer to ensure order, wear a special sign indicating that s/he is the organizer, his or her liability for damage caused regardless of whether s/he was responsible;

The definition of basic concepts has been improved considerably, and persons over 14 years may organize peaceful gatherings.

It is worth adding that the special concepts of “counter-meeting” and “simultaneous peaceful gathering” have been introduced. These are not only not banned, but it is even stipulated that it is the duty of the local authorities and the police to ensure the holding of such gatherings, protecting public order. For example, in such cases, the police “shall ensure that the parties are kept at a safe distance from each other while not restricting the parties in their right to hold a simultaneous peaceful gathering in the given place”.

Together with these significant advantages, the draft law contains certain provisions which do not comply with international standards or are fairly controversial.

Scope of the law

In Article 2, regarding the scope of the law, some forms of peaceful assembly have been excluded (residents’ meetings, entertainment events, wedding processions, traditional festivals, etc) which is not in keeping with international standards. Of particular concern is the exclusion of religious rituals and ceremonies which also directly contradicts Articles 9 and 11 of the European Convention on Human Rights.  According to legislation there remains a permission-based system for holding these peaceful gatherings which is also in direct contravention of Article 39 of Ukraine’s Constitution. Legislation should be based on another principle where all these peaceful gatherings can have additional regulation, but with the law on peaceful assembly as base law.

The organizer of a peaceful assembly

There is a ban on people who are under administrative arrest, held in custody or imprisoned to organize a peaceful assembly. In our opinion, such a restriction is unwarranted. There is no danger on, for example, a politician, arrested for an administrative offence, organizing a peaceful gathering. This could also be an instrument of pressure on opposition peaceful gatherings with their organizers being detained for several days to disrupt the gathering.

On the place where a peaceful gathering is to be held

The draft law is unclear in stating that peaceful gatherings may be held only in places which are “suited for this”. This norm can be interpreted in different ways in order to restrict peaceful gatherings.

The draft law unwarrantedly prohibits with no exceptions peaceful gatherings in certain places:

1) territory “adjacent to dangerous industrial sites or other structures whose exploitation demands special safety rules”: legislation does not clearly define what these sites are which could be used to restrict peaceful gatherings. It is also disturbing that such gatherings are prohibited not only on the actual territory where such structures, etc are located, which can be justified, but even on adjacent territory which could potentially unwarrantedly restrict, for example, environmental peaceful gatherings or those held by the employees of the particular enterprise.

4) „territory around border zones”:  this concept is also not defined in domestic legislation. Yet if one follows international agreements which Ukraine has reached, for example, with Slovakia or Poland on local border area movement, this is 30 kilometres up to the border. This norm could be understood as a total ban on peaceful gatherings in all populated areas within 30 kilometres of the border which is clearly an unwarranted restriction on freedom of peaceful assembly.

It is rather questionable as to whether bodies of local self-government should have the right to stipulate a list of specific places around which it is prohibited to hold peaceful gatherings. It is extremely likely that this will be used for unwarranted restrictions.

Notification of peaceful gatherings

The draft law contains provisions making it mandatory to notify of a peaceful gathering 4 working days before it is to be held. Given, moreover, that this is working days, the period could be 5-6 days. In the version of the law passed at first reading, no time frame for notification was given at all.

An exception is made for spontaneous peaceful gatherings, that is, “unplanned peaceful gatherings held exclusively at the initiative of individuals, prompted by an event which has important public significance and which cannot be foreseen and organized in advance”. It is startling that such peaceful gatherings can be held only be individuals, and that all others may not. It is also not clearly spelled out what is meant by the importance of this event for the public and who is to demonstrate this importance, when and how.

International standards stipulate that the period for notification should not be long, however it should also not be short so as to enable preparation of appropriate safety measures, review the case in the local or appeal court.

In general the established time frame is not excessively long however it is also not entirely justified. It is difficult to understand why the holding of a single-person or small picket should give such notification and with such a large time frame. In our opinion, such small peaceful gatherings could take place without any notification if they don’t disrupt transport.

It would also be expedient to introduce a differential time scale for notification depending on the anticipated number of participants.

It would be desirable to adopt during the second reading in parliament amendment No. 80 by National Deputy V. Taran on reducing the notification period to 48 hours which is entirely sufficient to prepare for the majority of peaceful gatherings.

At present the courts and bodies of local self-government often use norms from Soviet legislation which the time frame for notification is 10 days. We consider such practice to be unlawful however it remains fairly widespread in many places. In view of this the proposed norm is some degree of progress as compared with the current situation, however in our opinion not enough.

According to judgments of Ukraine’s Constitutional Court and the European Court of Human Rights, the lack of notification may not be an obstruction to the holding of a peaceful gathering. That is, legislation should clearly state that the lack of notification is not grounds for stopping a peaceful gathering. Although it is envisaged that the organizer can be penalized for failure to notify, or notify at the right time, the draft law does not contain such a norm. In practice this will lead to the police considering such peaceful gatherings to be unlawful and their response will be to stop them in accordance with the norms of the law on the police. This in our opinion is the main problem regarding the provisions on notification. 

Although, it should be pointed out that the draft law does not entitle the police to stop peaceful gatherings at all, only giving them the right to stop offences taking place during the peaceful assembly.

On the forms and ways of holding a peaceful gathering

The draft law prohibits actions which violate “the normal functioning” of an enterprise, institution, organization, executive body and/or local self-government body.

This norm is clearly vague and indefinite. Could a loud cry through a loudspeaker be considered to infringe such normal functioning? Could this be the grounds for stopping such a peaceful gathering? This draft law does not give any answer to these vital questions.

The draft law gives organizers the right “to establish in the place where the peaceful gathering is held tends, stages and other temporary structures which do not obstruct road transport, the free movement of members of the public while it is being held”. It is clear that the erection of even such small structures like tents, not to mention stages, will certainly obstruct the free movement of members of the public, and will also possibly transport. Such a norm will, in our view, prohibit the use of these structures in the absolute majority of cases. This norm also runs counter to other norms of the draft law which state that the traffic police must ensure road diversions during a peaceful gathering.

The rights and duties of the police during a peaceful gathering

The draft law leaves out any definition of the rights and duties of the police during a peaceful gathering besides the provisions of counter-gatherings, the duty to safeguard protection of public order and to divert traffic.

For example, the draft law fails to mention the grounds for stopping a peaceful gathering when it is in progress. Is it possible to stop a peaceful gathering? Who may do so and on what grounds?  These questions receive no clear answer. The draft law does not give the police the right to stop a peaceful gathering in progress, but does not prohibit them from doing so, It allows them only to stop offences which is envisaged by the law on the police. There is no clear answer as to what a police officer should do where a peaceful gathering is being held with infringements, for example, without notification.

Nor does the draft law clearly stipulate the presumption that a peaceful gathering may be held. This presumption means that the authorities should do all possible so that the peaceful gathering can take place. This means for example that the peaceful gathering may not be stopped due to formal infringements of the procedure for its organization. This in practice means a ban on stopping peaceful assembly early.

The police should have the right to stop offences, not the actually gathering: hooliganism, riots, etc. A peaceful gathering can only be stopped where it has ceased to be peaceful.

Overall the positive duties of the State (the police) in protecting demonstrators are not set out sufficiently clearly and can be interpreted differently.

Prohibition of peaceful assembly

The draft law does not clearly stipulate the grounds for banning a peaceful gathering, repeating the norms of the Constitution. It should obviously be more specific in setting out the grounds for a ban. For example, it should contain a provision regarding the existence of specific facts suggesting the danger of the peaceful gathering, as well as establishing the criterion for restriction of peaceful assembly of “being necessary in a democratic society”, as detailed in judgments of the European Court of Human Rights. This would oblige the court to check the “real need” for restricting freedom of peaceful assembly, with explanation that infringements of public order are possible not being sufficient. The court should also check that the restriction is proportionate to the existing threat.

The draft law also has no provisions regarding any possibility of stopping a peaceful gathering not on a court order. The general reference to norms of the law on the police is rather vague regulation which gives the police powers which are too broad. The draft law contains no norms regarding police action being proportionate to the threat to public order. The inadequate regulation is confirmed by current practice by the police based solely on the norms of the law on the police.

On the other hand, the draft law does not establish any restrictions whatsoever on the aims for holding a peaceful gathering. For example, according to this law, it is impossible to ban a peaceful gathering aimed at calling for various forms of discrimination or propagandizing fascism. This does not meet international standards on human rights.

One can also agree with the Opinion of the Verkhovna Rada Central Legal Department regarding the infringement of Article 90 § 8 of the Verkhovna Rada Regulations which establish that if, to implement the provisions of a draft law, amendments are needed to other laws after it is passed, these amendments should be set out in the section “Transitional Provisions” of the draft law or in a separate draft law submitted at the same time by its initiator. Yet this draft law contains no amendments to other laws, but proposes that the Cabinet of Ministers draw these up within 90 days.

Conclusion

The draft law is a positive step when compared with previous versions. It remains in general liberal and most norms meet international standards. Even in its present form the draft law establishes many provisions for protecting freedom of peaceful assembly from the unwarranted intrusion by the authorities, this being very important in present conditions. However its implementation will to a large extent depend on court practice.

The adoption of such a law is an important step for standardizing regulation of freedom of peaceful assembly. At present a lot of bodies of local self-government have passed unlawful regulations creating a situation where in practice the procedure for holding peaceful gatherings varies from place to place. Court practice also differs widely. This explains the need to urgently adopt such a law. At present the lack of legal regulation of many issues regarding organization and running of peaceful gatherings leads to frequent abuse by the authorities.

The main failing of the draft law is its lack of clarity, foreseeablity and precision. It uses a huge number of value concepts which are sometimes even impossible to define: “participant in a peaceful assembly”;, “public place”. “event which has important public significance”. “free movement of pedestrians”, “a place suitable for a peaceful gathering”. “the territory around border zones”, “other structures whose exploitation demands special safety rules”, “actions which infringe the normal functioning”, “public order”, etc. All of this gives too broad a scope for interpretation by the authorities which in the final analysis boils down to unwarranted restrictions of freedom of peaceful assembly.

We recommend adopting during the consideration in parliament in its second reading amendment No. 80 proposed by National Deputy V. Taran regarding a reduction in the period of notification to 48 hours which is sufficient to prepare for most gatherings.

Lack of clarity of legal regulation, certain gaps and the lack of legal regulation of certain stages in the holding of peaceful gatherings (for example, the possibility of stopping them or the grounds for banning peaceful assembly) make it impossible to fully predict the consequences of the adoption of this draft law since all will depend on how it is applied. This is rather dangerous in view of the logical wish of all authorities to restrict the greatest number of peaceful protests.

However an even greater danger is the existing situation where each body understands issues regarding the holding of peaceful gatherings in their own way. Vagueness and lack of clarity make it impossible to uphold ones rights in the courts which can in general be viewed as a mass-scale restriction on freedom of peaceful assembly.

The draft law contains extremely unwarranted and broad restrictions on the place of peaceful assembly, as well as on the possibility of erecting temporary structures. In view of this, during the consideration of the draft law in its second reading, we recommend removing Amendment No. 51 of National Deputy V. Taran.

The draft law cannot regulation procedural issues of consideration of these cases in administrative courts, as well as clarifying liability for infringements of the procedure for holding or obstructing peaceful assembly since these questions are regulated by other laws. However the Code of Administrative Justice and the Code of Administrative Offences should be changed since their provisions run counter to international human rights standards. Clear and brief time frames should be set out for appealing rulings regarding peaceful assembly. It is also necessary to clearly stipulate which actions “obstruct peaceful assembly” and “infringements of the procedure for organizing and holding peaceful gatherings.”

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