Another dangerous and baffling ruling from the High Administrative Court
Heavyhanded police tactics to prevent a peaceful protest against the language law in Cherkasy
The High Administrative Court has already taken one decision in February which has aroused serious doubts as to its constitutionality. Its cancellation of the election results in two single-mandate electoral districts, thus removing their mandate from two apparently elected MPs, has aroused considerable concern, especially since these were two MPs who had refused to join the ruling party.
Another ruling, passed earlier, but reported by the Ukrainian Helsinki Human Rights Union on Tuesday could also have serious ramifications for a fundamental democratic freedom which has been increasingly under threat in the last three years, namely freedom of peaceful assembly.
Ukraine still has no law on peaceful assembly and just why this is a serious problem is highlighted by the said court judgement. On 27 January 2013 the High Administrative Court found in favour of a suit lodged by the Kyiv City State Administration against the Chornobyl Union Ukraine which clearly wanted to ban a protest on the grounds of not having received enough notification.
Article 39 of Ukraine’s Constitution is quite clear, but not specific about freedom of peaceful assembly. Paragraph one states that peaceful gatherings may be held upon notification in advance. Paragraph two is worth citing in full:
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.
Since all issues pertaining to freedom of peaceful assembly should be regulated by a law, and this at present does not exist, the High Administrative Court has decided that city councils may themselves decide what time period is needed for notification.
This is nowhere stated in the Constitution, nor regulated by a law, despite the ruling very clearly restricting freedom of peaceful assembly. It is probable that most of the city authorities who have almost consistently sought to have any peaceful protest banned will establish as lengthy a time frame as they think they can get away with. This is likely to be the ten day period in the notorious Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 which is still now, in independent Ukraine, often cited by courts.
This effectively means that despite a notification, not permission-based system for peaceful gatherings, a very large number of perfectly peaceful protests can be banned because they failed to give such an enormous period of warning.
The ruling seems very far from constitutional, as pointed out by the UHHRU Director for Strategic Litigations, Mykhailo Tarakhkalo, and certainly fails to meet European standards.
It is particularly disturbing given the clear trend towards banning peaceful gatherings, often on the flimsiest grounds. As reported, since 2009 (the last year before the judicial reforms introduced by President Yanukovych) the number of applications from local authorities to ban gatherings in 2012 had tripled, with the number of bans four and a half times higher.
It should also be noted that these bans are generally enforced, often with Berkut riot police or other law enforcement bodies using rough methods and often detaining people.