Court bans – restriction of freedom of peaceful assembly or interference?
In their article, the authors note that last year human rights groups pointed to a serious increase in cases where the authorities interfered in the right of freedom of peaceful assembly. They analyzed court rulings in the Single State Register of Court Rulings in cases on restriction of the right to peaceful assembly over the last two years in order to establish how this constitutionally enshrined right was being protected. The results staggered them.
Number of cases
Comparison of the number of court rulings in 2010 as against previous years showed a significant increase in the number of applications from the authorities to the courts to have restrictions imposed on the right to peaceful assembly. This refers to applications to ban a rally, picket, demonstration etc or to impose certain restrictions. At the same time the percentage of rejections of such court applications fell considerably. It is interesting that in Kyiv during 2009 the Kyiv City State Administration lost more than one such case, while in 2010 the District Administrative Court allowed all such applications (according to data from the Single State Register of Court Rulings).
In banning the holding of peaceful gatherings, the courts most often perceive a threat to national security and public order in cases involving:
“untimely” or “inappropriate” notification of an event;
coincidence of time or place of peaceful gatherings;
the possibility of an adverse affect on the movement of traffic or pedestrians;
an epidemic state at the time of the planned mass event;
possible obstruction to the activities of a public body or body of local self-government;
the failure of the planned mass event to comply with local acts on the holding of mass events;
the holding in the stated place and time of official events of national or local significance;
the need to ensure the safety of high-ranking officials or foreign guests, etc.
Specific examples of typical court rulings
Failure to provide “proper” notification
According to Article 39 of the Constitution, executive bodies or bodies of local self-government should be notified in advance if a peaceful gathering is to be held.
In deciding whether to establish restrictions on exercising the right to peaceful assembly, the courts sometimes resort to an assessment of the “timeliness” or “fullness” of the notification of the authorities of a planned peaceful gathering by its organizers.
For example, the Sevastopol District Administrative Court in a ruling from 22 May 2010 No. 9650806 came to the conclusion that “the respondent informed the Leninsky District State Administration of Sevastopol of the plan to hold a picket three days before the event which deprives the claimant, as a public body, of the possibility of carrying out all necessary measures for preparing for the holding of the given picket”. The court cited 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 “is in force at the present time” and envisages the submission of an application no later than 10 days before the event. The court also stated that in the notification “the timeframe, purpose, form, place of holding and number of participants in the picket are not indicated” which does not comply with the Decree of the Presidium of the Supreme Soviet of the USSR. “Infringement of the rules of procedure for organizing a picket” is deemed grounds for its ban.
The Crimean District Administrative Court had a different view when in its ruling from 2 July 2010, No. 10701594, it concluded that notification the day before an event “gives the opportunity for the public body to take measures to ensure public order”, thus finding that the respondents had notified in advance that a rally was to be held.
In some regions, the local councils have passed local legal acts (regulations) on the procedure for holding peaceful gatherings. These usually stipulate the procedure for registering a notification, the information which this should contain, and sometimes also a list of places where mass events may be held. For example, in Kherson it is in this way stated that when holding lengthy protests, the notification must state how rubbish will be taken away. Some courts use such local acts supposedly passed as part of the powers of the relevant council. For example, the Kherson District Administrative Court in its ruling of 8 October 2010 No. 11636833 banned a picket “in the interests of public order” and in order to “prevent riots and protest the rights and freedoms of citizens and others” since “in violation of the norms envisaged by Regulations No. 1140 the respondent did not stipulate in their application the methods and forms for ensuring that rubbish was cleared and other measures for avoiding infringements of the Rules for the city’s upkeep and providing bio-toilets which make it impossible to hold long-term events”.
Some courts in our view correctly indicate that these acts restrict the scope of citizens’ constitutional right to peaceful assembly by establishing artificial conditions which people need to fulfil in order to exercise this right and bans on the holding of meetings in different parts of a populated area (see, for example, the above-mentioned ruling of the Crimean District Administrative Court).
In our view, “untimely” notification or failure to provide “proper” notification, and even lack of notification of the authorities by the organizers of a peaceful gathering cannot be grounds for banning such an event at all. After all a gathering as long as it is peaceful and does not violate people’s rights cannot be considered unlawful. Notification serves to guarantee the exercising of the right to peaceful assembly and imposes on the relevant authorities the obligation to carry out “preparatory measures”, for example to ensure the unobstructed holding by members of the public of gatherings, rallies, marches or demonstrations, maintenance of public order, protection of the rights and freedoms of other people” (from a judgement of the Constitutional Court on a case regarding advance notification of peaceful gatherings from 19 April 2001).
This position is supported by the Venice Commission which considers that the authorities should ensure proper security, medical services and clearing up at mass events.
However the holding of a peaceful gathering without notification or without proper notification does not in itself jeopardize national security or public order, as does not the fact that people gather in a theatre or exhibition, or go in large numbers on public transport, or simply meet in a group in order to celebrate some event. This simply absolves the authorities of the duty to ensure more favourable conditions in advance for the holding of the peaceful event (for example, restricting traffic in the relevant place, erecting bio-toilets, etc).
“Inadmissibility” of simultaneous events
If two or more organizers notify an authority of separate, often opposite purposes for measures schedule for the same place and time, the courts also resort to establishing restriction on the right to peaceful assembly. In practice two forms of such restrictions are seen: most often all applicants have their mass events prohibited (for example, the ruling of the Kyiv District Administrative Court from 13 October 2009 No. 9204905. Somewhat less frequently, preference is given to those who first submitted notification (for example the ruling of the Kherson District Administrative Court from 9 September 2010, №11350351).
In the first instance the courts often cite the provisions of the Law on Associations of Citizens according to which all associations are equal before the law, while the courts which give preference to those who notified first usually refer to local subordinate acts, and sometimes to the principle of “reasonableness”.
Such practice encourages the authorities in obstructing peaceful gatherings. Some of them manage to prepare notification in advance from a puppet organization and when the notification from an “undesirable” organizer is received, the same time and place are added to the puppet organization’s notification and it is registered earlier.
The courts similarly ban peaceful gatherings if in the place announced measures of national or local significance such as ceremonies, concerts, visits by foreign delegations, etc, are planned. For example, establishing restrictions on the right to peaceful assembly “for the purpose of protecting national interests”, the Kyiv District Administrative Court in its ruling from 5 October 2010, No. 124703183, concluded that the holding of a peaceful event “may lead to the cancellation of the visit by the delegation of the planned locations and as a result cancellation of the official visit of the President of Slovakia, which could lead to a deterioration in the relations between the countries”.
Incidentally the stamp regarding the possibility of “deterioration in the relations between the countries” is not used for the first time by the capital’s District Administrative Court. In its ruling from 8 July 2010, No. 1170554 it managed to apply this to the visit by the President of the European Council, Herman Van Rompej, although the European Union is not a country.
This court has demonstrated unexpected concern over participants in peaceful gatherings. It banned several gatherings in the centre of Kyiv due to the visit by the US State Secretary Hillary Clinton whose official visit schedule envisaged visits to places where by coincidence rallies were planned. However the court justified this on the grounds that “the participants in such events could be subjected to danger from the actions of the law enforcement bodies” (resolution from 1 July 2010, No. 10203964). It would seem that Ukrainian law enforcement bodies during the period of official visits of foreign guests pose a danger to people.
No less inventive was the court which banned the holding of peaceful gatherings in connection with the fact that “the holding of the relevant mass events near the President’s Administration will adversely affect the image of Ukraine’s capital which will cause a negative impression of high-ranking officials of foreign countries about the country as a whole” (Ruling of the Kyiv District Administrative Court from 21 October 2010, No. 11803531).
However the holding of peaceful gatherings and official events or simultaneous peaceful gatherings, even where these are by organizations with opposite views, in our opinion, do not in themselves give grounds for asserting that there is a danger to national security or public order. If one agrees with the position of the courts, then you can assume that any people holding opposite interests are offenders and their meeting jeopardizes public order, while a rally in the view of foreign guests is a threat to national security due to a worsening in diplomatic relations. It is therefore expedient to follow the position of the Venice Commission which considers that simultaneous (including counter-demonstrations) and spontaneous peaceful gatherings should be permitted by law. The task is for the authorities to ensure safety during such events.
“Incapability” of the authorities
There are cases when the courts agree with the arguments of the claimants that the holding of a peaceful gathering involves the need to deploy additional police units in the area where the event is to be held. This can promote the committing of offences in other districts of the city, and thus create a threat to public order. Effectively in such cases the courts state that the police are incapable of carrying out their main duty in safeguarding law and order.
At the same time we should point out positive examples in resolving this issue. For example, in the ruling of the Lviv District Administrative Court from 18 September 2009, №5820746 it is stated that “”the assertion of the claimant that the Executive Committee of the Lviv City Council and the Lvivi City Department of Police in the Lviv Region will not be able to ensure the proper security for participants in the protest and maintenance of public order is not taken into consideration. In accordance with the requirements of Article 2 of the Law on the Police, one of the main tasks of the police is the protection and safeguarding of public order. Effectively from the explanations of the claimant’s representative one sees that the court is being asked to take a decision aimed at ensuring public order which is not the task of the court. The task of the court is to protect the rights, freedoms and interests of individuals and the rights and interests of legal entities in the area of public-legal relations… the non-enforcement or failure to properly carry out their duty as envisaged by law cannot be grounds for restricting the constitutional rights of others. The failure by the relevant individuals to carry out their duties, including with respect to ensuring the safety of actions and maintenance of public order, carries with it liability envisaged by law.”
The position also seems dubious of those courts which ban peaceful gatherings due to their possible impact on the movement of traffic or pedestrians. It is once again the task of the authorities, mainly the police to ensure that people do not go out onto the road or restrict the movement of traffic during the event by providing detours.
It is no less surprising when the courts ban the holding of pickets and rallies outside public bodies since that will supposedly obstruct the activities of the said body. An example of such a ban is the ruling of the Dnipropetrovsk District Administrative Court from 20 March 2009, № 3643859: «In the view of the court, the erection of a tent camp for 2000 participants in the indefinite protest near the administrative building of the Kryvy Rih City Council will obstruct the carrying out of the ordinary work of the bodies of local self-government of the territorial community of the city of Kryvy Rih”. What is involved here is effectively a ban on citizens freely expressing their opinion regarding the work of those bodies and the creation of an artificial barrier against dialogue between the authorities and the public.
Court practice on peaceful gatherings in Ukraine bears no relation, in our opinion, to European standards in the human rights field. Unfortunately, in connection with the changing relations regarding exercise of the right to peaceful assembly, court rulings are not often appealed against in higher level courts therefore court practice is not standardized. There are no explanations on such issues from the High Administrative Court. This is exacerbated by the lack of a special law complying with international standards and the idea that a gathering while it is peaceful cannot be unlawful.
In examination of court cases of this category, in our opinion, it would be expedient to work on the assumption that a peaceful gathering is lawful. The authorities should convincingly prove that the restrictions which they are proposing correspond to the criteria of being “necessary in a democratic society”, stipulated by the European Convention on Human Rights. The courts should in their rulings give a fair assessment of those arguments and where they allow the application should only apply those restrictions which are proportionate to the following of a constitutional object, that is, interfering as little as possible with freedom of peaceful assembly.
Roman Kuybida, Deputy Head of the Board of the Centre for Political and Legal Reform
Mykola Sereda, Student of the Law Faculty of the Kyiv National University