UHHRU Position on the Peaceful Assembly Draft Law
Following all kinds of rumours and inaccuracies regarding the Ukrainian Helsinki Human Rights Union’s position on draft Law 2450 on Freedom of Peaceful Assembly, the Head of the Board and Executive Director have issued a statement.
In it they confirm UHHRU’s view that the situation with regard to peaceful assembly in Ukraine is extremely bad. Courts are more and more frequently imposing bans, generally applying legislation from Soviet times which is in breach of Ukraine’s Constitution.
Monitoring has shown that in 90% of all cases examined by the courts, bans are issued. The grounds are often absurd and the courts often extend the ban to cover an unlimited range of people and a long period of time that the ban is in force.
A law based on European standards would be able to influence the situation and strengthen legal forms of protection of freedom of peaceful assembly. For this reason, UHHRU representatives took part in the working group on revising Draft Law No. 2450.
On 5 June 2012 UHHRU addressed an open appeal to the members of the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-Ethnic Relations. At the time, unfortunately, it had not been possible to gain consensus between members of the working groups on a number of issues and UHHRU therefore made public proposals put forward by members of various organizations.
The main point which was unresolved was the unwillingness of members of the Verkhovna Rada Committee to include final provisions in the draft law envisaging the abolition of administrative liability for infringements of the procedure for organizing and holding peaceful gatherings (i.e. exclusion of Article 185-1 of the Code of Administrative Offences).as well as amendments to the Law on Local Self-Government and the Administrative Justice Code.
UHHRU also supported proposals on shortening the minimum timeframe and differentiated times depending on the type of meeting.
Unfortunately the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-Ethnic Relations decided to stop work on the draft law and adopted it, with votes from both the ruling majority and the opposition. UHHRU found that it had not been possible to resolve all issues but that the working group had managed to introduce important amendments which are worth noting.
1, Spontaneous gatherings are envisaged with these not governed by the general time frame for notification, as well as counter-meetings and simultaneous gatherings which at present almost never take place being banned by the courts.
2. Very rare, clear and exhaustive grounds are stipulated for restricting freedom of assembly, and measures are introduced which are less restrictive than bans.
3. A ban on restricting freedom of peaceful assembly on the grounds that notification was not given or not given on time.
4. Restrictions on the place where peaceful gatherings can be held are based only on the law, and not acts issued by bodies of local self-government, as happens now.
5. Local authorities will not be able to demand information from the organizer on how rubbish will be taken away, who will provide medical assistance etc since all these things are the direct obligation of the local authorities.
6. The courts will not be able to apply bans covering an unstipulated number of gatherings over a certain time on a particular areas as has been frequently happening of late.
Furthermore, MP Miroshnychenko supported and submitted to parliament draft Law No. 10569 which envisages amendments to the above-mentioned laws as UHHRU demanded.
This includes exclusion of punishment in the form of 15 days administrative arrest for infringements of procedure for holding peaceful gatherings, and liability can apply only where there are negative consequences. Amendments to administrative proceedings would mean that the authorities had one day for approaching the court, as well as short time frames for lodging appeals, so that if there had been prior notification the organizer could quickly obtain the final ruling. This would make bans issued by courts sitting late at night impossible. The court would also have the obligation to justify decisions to restrict peaceful assembly in accordance with European Court of Human Rights criteria – those necessary in a democratic society and proportionality of the restriction. These amendments significantly improve the situation and strengthen protection of organizers and participants in peaceful assembly.
In view of this, on 6 September UHHRU joined other organizations in calling for draft Laws No. 10569 and No. 2450 to be passed, and for a widespread information campaign on explaining their provisions.
Change in legislation will make it possible to achieve different practice in enforcement of the law than that which is presently seen. We will continue efforts to improve the text of the draft law the possibilities of which have not been exhausted. UHHRU proposals will soon be presented. However we consider that the position of activists who view the present situation with freedom of peaceful assembly as acceptable and are extremely disappointed with the negative result of the vote in parliament on the highly important draft Law No. 10569 as flawed. Such a situation can in no way be considered likely to succeed.
The statement is signed by Yevhen Zakharov, Head of the UHHRU Board and Arkady Bushchenko, UHHRU Executive Director.