Human rights in Ukraine 2009 – 2010. 9. Freedom of peaceful assembly
Freedom of peaceful assembly is guaranteed by the Constitution and numerous international commitments accepted by Ukraine. In 1997 the European Convention on Human Rights was ratified, Article 11 of which guarantees to everyone the right to freedom of peaceful assembly; in 2007, under the auspices of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the ‘Guiding Principles on Freedom of Peaceful Assembly’ were approved with participation of Ukrainian representatives. These are exactly the minimum standards and norms, according to which the state-parties should form their internal policy in order to ensure the observation of the right to freedom of peaceful assembly, and public authorities should create necessary conditions for its implementation. The international standards in the sphere of peaceful assembly oblige a state not only to guarantee the freedom of assembly, that is not to interfere in its implementation, but also imply the positive obligation to ensure this right.
It should be noted that, although in 2005-2009 there were some violations of the freedom of peaceful assembly, the situation as a whole has changed for the better owing to active introduction of the European experience of demonstrations, rallies and meetings. In particular, the fundamental role of public authorities and the organs of local self-government began to include the observance of the right to peaceful assembly. It is clear that not all meetings were peaceful and legitimate, so the authorities had the competence to intervene and use legitimate forms of coercion.
However, after the presidential election the situation with freedom of peaceful assembly has fundamentally changed2. This happened for several reasons: lack of special law regulating the right to peaceful assembly, ungrounded prohibition by courts of peaceful assemblies, introduction of various restrictions of the right to peaceful assembly by local authorities as to the place of conduction, terms of the advance notification, etc.; pressure on activists and organizers of peaceful actions by law-enforcing agencies (the Security Service and militia) and administration of organizations, where the activists and initiators of peaceful assemblies were working or studying (heads of organizations, rectors of universities); illegal interruption, obstruction, abuse of authority or passivity of militia officers.
Only during the first 100 days of new government’s work mass media of regional and national level issued more than 350 critical publications about actions of militia during peaceful assemblies. This is an absolute record of critics, received by the Ministry of Interior in one sphere and during short period. Unfortunately, we have to recognize that the authorities have started to use militia to impede the conduction of peaceful assemblies.
The numbers of assemblies and their participants, according to the Department of Public Safety, are shown in charts 1 and 2.
Chart № 1. Number of mass assemblies in the country
Chart №2. Number of participants of mass assemblies
As at can be seen from publications in mass media, in 2010 the majority of protest actions were connected with economic and political issues.
Analyzing the amount of information on violations of the right to peaceful assembly in 2010, one can see that, in comparison with previous years, the number of violations of the freedom of assembly by militia has increased significantly and is higher than during previous 5 years together. All positive trends and developments that had appeared owing to joint work of the Ministry of Interior and human rights organizations, in particular in the framework of activities of public councils and cooperation with the Department for human rights monitoring, were destroyed with the arrival of new leaders of the Ministry of Interior in March 2010.
Certainly, the behavior and actions of each militia officer were affected, first of all, by personal attitude to peaceful assembly of Minister of Interior A. Mogilev, which attitude was expressed in the newspaper ‘Segodnya’. In his interview the Minister clearly stated his personal position on this issue:
‘...I would allocate for mass actions some great field on the outskirts of Kiev, where nobody will disturb anybody. And there you can shout as much as you want, like in Hyde Park in London. The people interested in your ideas will come there, and you will not interfere in the life of others’.
This position is absolutely inconsistent with the Constitution, national legislation, international standards and democratic values. Such views of a top official affect negatively the daily work of his subordinates and other activities of law-enforcing agencies. Excessive politicization of local authorities leads to illegal use of law-enforcing organs for solving the acute and conflict issues that concern local communities.
This situation is also aggravated by lack in the regions of proper prosecutors’ supervision and effective responding to the actions of militia during such events. Despite the scale and significance of the statements in mass media about violations by militia officers, no criminal or disciplinary proceedings were instituted in 2010 under Article 97 of the CPC of Ukraine. Territorial prosecutors offices should give legal assessment to the materials of inspections conducted by the control services of the Ministry of Interior. They should check the integrity and objectivity of such investigations and inform the public about the results. Unfortunately, this does not happen.
The position of people‘s deputies on this issue is surprising too. As early as in May 2010, representatives of the Ukrainian Helsinki Human Rights Group proclaimed the statement requiring from the Parliament to publish for public consultation the draft law ‘On conduction of peaceful assembly’. This draft has been adopted in the first reading hastily, almost in secret from the civil society, against the background of constant violations of freedom of assembly by the authorities and law-enforcing organs, and now it is ready for the second reading. Its text was not published on the Supreme Council website. Human rights activists repeatedly and soundly expressed their concern about probable restrictions of the right of citizens to peaceful assembly in the new draft.
The law-enforcing organs, on which the positive obligation to guarantee the right to peaceful assembly is relied, more and more often become the violators of this right. Instead of guaranteeing this right, militia officers perform exceptionally repressive and prohibitive functions regarding the citizens’ freedom of expression. The majority of human rights violations during peaceful actions on the side of law-enforcing officers are similar to the violations in previous years. Yet, it should be noted that their number has significantly increased. Most systematic types of violations are the following.
1. Preventing people from taking part in peaceful gatherings
This type of violations includes any attempt by the authorities, including law-enforcing organs, to prevent people from participation in peaceful actions. In 2010 the large-scale facts of such interference have been observed, which makes it possible to speak about giving corresponding orders to militia officers by the Ministry of Interior and/or by officials of regional administrations.
Thus, according to numerous statements of opposition political organizations and the participants, transport companies refused to take them to Kyiv where they planned to take part in peaceful actions on 11 May 2010. Unofficially, representatives of these transport companies told that they had received from local road militia warnings about prohibition of such trips to Kyiv. At that the officials hinted quite clearly that in case of non-obedience to these ‘warnings’ they would have problems with licenses for transport services, technical inspection, etc. Some most enthusiastic militiamen even took written obligations from the drivers. Those who did not respond to the warning and left Kyiv on 11 May 2010 were stopped at road militia posts and by mobile patrols under various flimsy reasons. Documents were taken away from the drivers, and in some cases the buses were returned back and placed to penalty areas. This happened in Ternopil, Sumy, Chernihiv, Khmelnitsky, Zaporizhia, Lviv and other regions. In Zaporozhye fans of the local football club ‘Metallurg’ even had problems with regional road militia in connection with their trip to Kyiv to the final match with ‘Dynamo’ (Kyiv) on 9 May 2010.
The attempt of the Ministry of Interior officials to justify such actions with large-scale measures for prevention of road accidents looks quite unconvincing. Comments on this situation to mass media and the public were given by the Ministry of Interior only in Lviv and Chernihiv regions. In Sumy region these events were commented by the head of auto-technical inspection of town department of road militia.
Discontent of citizens with the illegal actions of militia in Ternopil region resulted in the protest action held on 11 May 2010 under the slogan ‘Green road to Kyiv’ at the walls of local department of the Ministry of Interior. Despite numerous applications and the scale of the events, no service investigations regarding these facts were organized.
Similar incident also took place on 7 September, when representatives of the opposition published the information that militia tried to impede the protesters to get to Kyiv from various regions of Ukraine. In particular, in Lugansk, Lviv and Chernihiv regions road militia prohibited to transport companies to render services to the opposition. On the day before the departure representatives of the companies called their customers and told that they refused to drive protesters to Kyiv. They explained that road militia threatened to take away their licenses if they would transport the opposition.
On 13 May in Lugansk militia impeded the conduction of the motor rally devoted to the 67th anniversary of Kolkivska Republic. Before the beginning of this action militia officers blocked to rally participants the access to Teatralna Square. Valentin Shpak, head of the department of public security of Lutsk town department of the Ministry of Interior in the Volyn region, who was present at the place of the event, stated that militia would not allow to conduct this rally.
On 2 August 2010 Volyn Eparchy of the Ukrainian Orthodox Church of Kiev Patriarchate published the appeal to regional authorities and law-enforcing officials demanding to punish the militia officers, which, on 26-28 July, persuaded (or even directly threatened) the drivers and stopped the buses with pilgrims that were going to Kyiv to celebrate the christening of Russia and Ukraine.
The last case in 2010 of mass obstruction of transport companies throughout the country occurred in the second half of November, when entrepreneurs could not get to Kyiv to take part in the protests against the draft of the Tax Code.
2. Giving preference to one party of a mass action
Such violations are typical for demonstrations and counter-demonstrations, pickets and other protest actions, during which the cases are possible of conduction at the same place of actions by different parties with different ideological views. Rather often it is used by representatives of pro-government political parties to prevent actions of opposition and other actions that criticize the activities or passivity of the government. National law and international practice in such cases limit the coercive actions of law-enforcers only to separation of opposition parties. But Ukraine militiamen usually ignore this limitation and give preference to pro-government political forces, thus violating the rights of other participants of peaceful actions. This is confirmed by a number of facts that occurred in 2010. The most notable among them are the following.
On 27 May in Lviv, during the visit of the President of Ukraine, and on 4 April, during the actions at the walls of ‘Ukrainskiy Dom’, owing to the actions of militia, only the groups supporting the President could conduct their actions freely. The other party, the opposition, was simply shoved back by militia, which, naturally, caused just frustration.
Such double standard regarding different political forces was observed during the celebration of 100 days of Viktor Yanukovych’s presidency, which took place on 3 June 2010. On that day militia prevented the opposition from holding protest action near the Palace ‘Ukraina’, where Victor Yanukovych appeared. Meanwhile, activists from the Party of Regions were allowed to hold a rally in support of Yanukovych in front of the Palace. Activists from an opposition party were driven away from the Palace by the unit ‘Berkut’, 15 protesters were surrounded by a dense ring of militia officers and could not get out.
3. Unwarranted stopping of peaceful gatherings and detention of their participants
On 17 May 2010 in Kyiv, at the Mariinsky Palace, militia stopped a peaceful protest action ‘Ukraine - not Russia’ during the visit of Russian President Dmitry Medvedev, which action included partial denudation of women-participants. The participants of the action were detained and taken to militia station, where the protocols were drawn against them on the administrative violation under Article 173 of the Administrative Code (petty hooliganism).
On 27 April 2010, during a meeting near the monument to Taras Shevchenko in Kyiv, militia officers arbitrarily detained Alexey Kayda, the head of the Ternopil Regional Council. He was brought to Shevchenkivskiy district station and released after 2 hours without drawing any materials or protocol of detention.
On 15 May in Kharkiv militia did not allow local residents to hold peace march of protest against garbage on the city streets. Two activists were detained. The action was organized by representatives of the Kharkiv city office of all-Ukrainian youth public organization ‘Democratic Alliance’ and Foundation of regional initiatives.
On 28 May in Kharkiv militia detained nine, and 2 June – four participants of the protest action against sawing down trees in Gorky Park. The action was ceased, and the detained were accused of committing the administrative offense under Article 185 of Administrative Code of Ukraine, although they did not show any resistance to militia.
On 26 July law-enforcers detained eight members of the All-Ukrainian Union ‘Svoboda’, which tried to organize the theatrical performance ‘Glamour tour of the Kremlin rugby-player’. Immediately after the attempt to start the show militia arrested its organizers. Other participants were shoved back by the unit ‘Berkut’ to Nezalezhnosti Square and were held there some time in the encirclement.
On 2 September in Kharkiv the militia officers, including officers of the unit ‘Berkut’, detained about 30 people that were spreading the propaganda leaflets ‘Great lie’ containing criticism as to the actions of city power. According to the victims, they were detained under various pretexts: someone was suspected of possessing drugs, someone verbally accused of public disorder, and to somebody the ‘law-enforcers’ even failed to explain the reasons of the detention. At the militia station or in militia cars officers held ‘explanatory talks’ with the detainees, cautioning them against participation in public actions. Soon the activists were released without bringing any official accusations and without drawing administrative protocols.
On 15 October in Odessa militiamen strictly reacted to the peaceful action of Odessa dwellers that demanded to release the activist of autonomous Ukrainian opposition Alexei Makarov, accused of the attack on the office of TV channel ‘ATV’. Militia officers applied force and detained the participants of the action.
Such violations by militia officers have recently become very widespread. The negative practice of drawing ‘standard’ materials against detained participants of peaceful assemblies and bringing them to administrative responsibility under Article 185 of the Administrative Code (persistent disobedience to legal requirements of militia) is actively restored. This article is very convenient to use because in court the fault can be easily proven, since the preference is given to testimony of militia officers.
At the same time, the cases of bringing the officials to responsibility for unlawful interference in organization or conduction of meetings, rallies, marches and demonstrations (Article 340 of the Criminal Code of Ukraine) and for violation of the order of organization or conduction of meetings, rallies, street marches and demonstrations (Article 185-1 of Administrative Code) are very rare.
4. Unlawful failure by the police to react to scuffles between opponents
On 2 June 2010 in Kharkov a clash occurred between the participants of peaceful assembly aimed at protection from destruction of the trees in the Gorky Park and employees of ‘municipal guard’ and loggers. The clash took place with silent consent of militia. While sturdy ‘guards’ were beating the participants, the militiamen just watched at that and made no attempt to intervene or stop the offense, until the action participants were scattered around, and all the trees – sawn down. The militia officers completely ignored the danger to life of the participants conditioned by the brutality of the events. No attackers were detained. Instead, the law-enforcers detained several defenders of trees. On 3 June 2010 the Ukrainian Helsinki Human Rights Group and other human rights organizations published the statements about the fulfillment by militia of illegal instructions of local authorities. However, only on 5 June representatives of the Ministry of Interior managed to respond and notified about the appointment of check of the legality of actions of Kharkiv militia.
On 8 June 2010 in Kiev, in the park near metro station ‘Darnitsa’ a scuffle took place between workers and local residents who protested against the illegal sawing of trees in this park. After militia was called, soldiers arrived for some reasons, instead of representatives of the Ministry of Internal Affairs, who had no authority to do anything. Militia refused to visit the place, but invited people to come to the militia station and write statements there.
5. Excessive use of force and special means against participants of peaceful actions
Practice of the past five years minimized the application of such methods thanks to deliberate strategy of protection of public order and adequate response to aggression. However, recent progress in this direction began to give way to regular violent confrontation.
On 27 April, during a protest action near the Parliament concerning ratification of agreements with Russia, 43 participants from various regions of Ukraine got injuries and burns of various degrees as a result of using force and special means by militia.
Unlawful use of force by militia caused serious conflicts and public condemnation.
On 1 June 2010 students and youth held peaceful assemblies near administrative buildings of the Ministry of Interior in 18 regions of Ukraine. These extemporaneous protest actions ‘against militia arbitrariness’ were held in commemoration of student Igor Indylo, which had died in Shevchenkivskiy district station of Kyiv after his detention by militia.
On 9 November 2010, during picketing of the Ivano-Frankivsk regional administration and regional election commission, officers of the unit ‘Berkut’ beat up several supporters of the organization ‘Svoboda’. According to the press service of ‘Svoboda’, several participants tried to get to premises of the regional election commission and to demonstrate the examples of gross falsifications that occurred in Prykarpattya region during the election to Ivano-Frankivsk regional council.
Pass by Order of the Minister of the MIA and register with the Ministry of Justice “Method guidelines on safeguarding public order during mass-scale events and actions” drawn up in cooperation with members of civic organizations.
Set up MIA commissions with the participation of members of the public to investigate incidents during peaceful assembly which involved the police. The results of such commissions should be made public. .
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.
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 district administrative courts, the Higher Administrative Court and the Supreme Court.
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.
The Supreme Court should summarize court rulings in cases involving restrictions on the right of peaceful gatherings and demonstrations.
Pass the 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. It should be borne in mind that the draft law of the Cabinet of Ministers № 2450 from 6 May 20083 does not comply with international standards4 and the Constitution..
1 Prepared by Leonid Gema, Vadym Pivovarov, Association of Ukrainian Monitors of Observance of Human Rights by Law-Enforcing Organs, and Yevhen Zakharov, KHPG.
3 Draft law № 2450 from 6 May 2008 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=32431.
4 «European commission for democracy through law (Venice commission) joint opinion on the draft law on peaceful assemblies in Ukraine», http://www.helsinki.org.ua/en/index.php?id=1162206184.