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23.07.2012

Pretexts for banning peaceful protest: if you could only laugh

   

  Maxim Sereda and Tetyana Pechonchyk have examined the ever-increasing number of occasions where totally peaceful protests are banned in Ukraine, and the pretexts offered.

According to the Single Register of Court Rulings, in the first half of 2012, there were at least 81 court rulings regarding applications to restrict freedom of peaceful assembly. Courts allowed the authorities’ applications in 74 cases; standing up for freedom of peaceful assembly in only 7 cases.

The reasons are sometimes truly absurd.

A recent example they site was the ruling of the District Administrative Court in Kyiv which from 4 to 9 July banned peaceful gatherings in the centre of Kyiv, this including the protest outside Ukraine House [Ukrainsky Dim] against the Kivalov-Kolesnichenko language law (considerably increasing the role of the Russian language).  The judges claimed that the use of megaphones and other sound amplifying devices would cause inconvenience to ordinary citizens.  The authors ask why, using such logic, the courts did not ban the Euro 2012 Championship which not only made a lot of noise, but closed metro stations.  They point out though that the judges are “improving” the grounds they give since they mention “European standards”, and even use a letter from the US embassy as a reason.

They quote a court ban based on the notorious Decree of the Presidium of the Supreme Soviet of the USSR (!) which tried to justify this by citing practice of the High Administrative Court, explanations from the Supreme Court and – most unconvincingly the European Court of Human Rights. 

Pure absurdity was seen in one of the reasons given for banning peaceful assembly in Kyiv at the beginning of July, this being the celebration of Independence Day in the USA. The court pointed to the importance of this holiday and “the real threat of terrorist attacks”.  It asserted that the US Embassy in Ukraine had sent a letter to the Kyiv City State Administration asking for it to help ban the holding by other organizations of public events and demonstrations around the residence of the US Ambassador.

Some administrative courts, the authors note, are more concerned about protecting the local authorities, than people’s rights and liberties.

In Cherkasy a court concluded that “holding a peaceful meeting aimed at fighting corrupt actions by the Head of the Cherkasy Regional State Administration would lead to false information being spread which would adversely affect the image of the authorities”. Another gem: the law “does not envisage the right of the public to hold peaceful gatherings as a measure for preventing or countering corruption”.

A Kyiv court in turn banned meetings citing visits to Ukraine of foreign guests since “holding … mass events outside the President’s Administration will adversely affect the image of Ukraine’s capital, which will cause the high-ranking officials from foreign countries to have a bad impression of the country as a whole”.

The authors quote the European Court of Human Rights which, to put it mildly, views the situation in a different light.

In another case, a Kyiv court actually said that a meeting in the centre of Kyiv could obstruct the official visit by the President of Slovakia “which could lead to a worsening of diplomatic relations between the countries”. The court referred to a risk to the interests of national security.

In March this year there were two court rulings from a Mykolaiv court banning peaceful assembly and citing the European Convention on Human Rights as providing justification for this. The court first banned a protest where destruction was planned of the portraits of President Yanukovych and a lawyer.

The court found that this “contradicts the moral principles of democratic society, demonstrates disrespect for social rules and norms of behaviour since the President is not merely one of the highest public officials of the country but personifies the country in foreign and internal relations”.  It goes on to cite Article 105 of the Constitution regarding particular protection for the honour and dignity of the Head of State.

The authors cite international documents regarding freedom of peaceful assembly, and also point out that it is not illegal in Ukraine to destroy the portrait of the President or any other person.

The next time, a demonstrator decided to throw a portrait of the Prosecutor of the Mykolaiv Region in the rubbish. The court prohibited him from doing so asserting that this “violates the moral principles of democratic society, creates a real threat to public order, protection of health or morality, and the protection of the rights and freedoms of other people, and the given actions could lead to disturbances between the protesters and other individuals”.

The European Court of Human Rights’ position is quite clear on this point. Peaceful gatherings cannot be banned because they may offend or annoy people holding different views.

These are just some of the examples given – and refuted through reference to the European Court of Human Rights and other international documents in the article by Maxim Sereda and Tetyana Pechonchyk from the Centre for Political and Legal Reform published here

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