Freedom of Peaceful Assembly the Kharkiv District Administrative Court way
A recent Judgement by the Kharkiv District Administrative Court banning a peaceful gathering would be comical were the discrepancies with fundamental principles, articulated by the European Court of Human Rights so serious.
The court states that in resolving the dispute, it must take into account the provisions of Article 39 of the Constitution which establishes that “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.”
It then goes on to explain that this is in accord with the European Convention on Human Rights, citing Article 11 and the fact that any restrictions must be those necessary in a democratic society and established by law etc.
, ”At the same time, analyzing the provisions of the above-mentioned norms of law, the court does not find grounds for ignoring the instructions of Article 39 § 2 which states: “Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons”
“In Kharkiv there are people with different views and therefore during the above-mentioned event conflict could arise with people not taking part in the protest.
Bearing in mind the above, in holding this event there is a real danger of violation of public order, as well as violation of the rights and freedoms of other citizens not taking part in the picket”.
The Kharkiv District Administrative Court unfortunately preferred to ignore a vital principle with regard to peaceful assembly, stressed by the European Court of Human Rights a number of times, for example:
32. A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.
Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23).
The case of Plattform "Ärzte für das Leben"* v. Austria, 21 June 1988.