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12.07.2013 | Halya Coynash

Abuse of National Security

   

Ukraine’s leaders are presently falling over each other in their haste to express concern regarding a brutal rape and subsequent popular revolt in the town of Vradiyivka.  President Yanukovych has apparently complained that he was not phoned when residents stormed the police station where one of the police officers identified by the victim was being shielded from prosecution. 

The President’s words sound good until you ask yourself what actions would have been taken. The answer is, unfortunately, by no means clear.  A recent ban on any peaceful protest at all outside the President’s Administration until the end of 2013 is particularly telling.  The ban was issued in response to a picket by the mother of a small disabled child who had gone on hunger strike in a desperate attempt to attract the President’s attention to their plight.

Although the authorities have presently backed off from initial attempts to bring charges over damage during the popular protest in Vradiyivka, local residents anticipate repressive measures once emotions subside and the media loses interest. 

During Yanukovych’s presidency, the number of peaceful protests banned has risen markedly, as have entirely inappropriate measures involving the Berkut riot police against protesters.

What is particularly disturbing is that a bill just registered in parliament on freedom of peaceful assembly, even if passed, might not necessarily improve the situation.  This latest ban, as well as its predecessors, cites, in verbose if unconvincing fashion, domestic and international legislation in alleged justification for restricting the constitutionally enshrined right to peaceful protest.

The application to ban two peaceful protests outside the President’s Administration came, as usual, from the Kyiv City State Administration, but was purportedly prompted by the Kyiv Police.  They had stated that the protests would arouse disgruntlement from ordinary members of the public, obstruct the normal functioning of the authorities; and, most incredibly, jeopardize the safety of people under State guard.

Judge Keleberda of the District Administrative Court in Kyiv didn’t stop at half measures, but in a 16 June ruling, just made public, banned any protests on the relevant streets to the end of the year. 

Since the Constitution does not specify how much prior notification must be given, documents of dubious legality, such as a decree from the now long-defunct Soviet Union, are frequently used to prohibit gatherings where it s claimed, insufficient warning was given. In this case there was even some justification since both organizers appear to have notified of their plans on the very day that their protest began.  Judge Keleberda mentions the infringement, but clearly feels more is required. 

Not surprisingly since one of the notifications was from 14 January 2013, and the other was issued on 6 June.  If the police had not been given time in advance to organize any extra efforts to safeguard public order, they could certainly have done so by the time the application for a ban was lodged. 

Two protests were thus underway when the ban was issued.  Since – according to the judge – risk to national security must be considered, some detail seems called for.  On 14 January the Kyiv authorities were notified of the continuation of an indefinite hunger strike and protest by up to 50 people with the use of banners and loudspeakers,   The aim seems modest enough – to draw the President’s attention to rights infringements by his subordinates. 

Why a protest involving a picket by a mother wanting the President to know about the problems she and her small disabled child were facing proved the final straw for the Kyiv Administration and the Police is not easy to understand. 

Fathoming how such protests could threaten national security is quite simply impossible, yet Judge Keleberda was not daunted by the task.  He cites among others Ukraine’s Constitution and the European Convention on Human Rights to demonstrate that restrictions on peaceful assembly may be needed if the protests could jeopardize national security or the rights of others. 

With the broad scope of the Law on the Principles of Ukraine’s National Security to set him off, it was a mere hop, skip and a jump to yet another blanket ban.  The court, he says, believes it possible that this indefinite hunger strike could infringe “the interests of national security and public order”.  The court has concluded that the indefinite use of loudspeakers violates public order and the rights and freedoms of residents of the adjacent buildings, while “protests planned for outside the President’s Administration create difficulties in organizing the State protection of President Yanukovych and other public officials …”

Since public access per se demands the appropriate security measures, are we to assume it a matter of time before the public are banned altogether?  For three years now all plans to hold entirely peaceful protests outside Yanukovych’s controversial residence at Mezhyhirya have resulted in court bans.  A blanket ban recently stopped any peaceful protest outside the Prosecutor General’s Office for two months. 

A law on peaceful assembly is undoubtedly needed, but can only provide deceptive gloss where the courts restrict the fundamental right to peaceful protest claiming this to be “in defence of other people’s rights” or citing nebulous considerations of “national security”.

Ukrainian courts have become lavish in quoting international documents and the European Court of Human Rights, while brazenly ignoring a key demand – that any restrictions be needed in a democratic society.  The bans rapidly becoming commonplace in Ukraine are needed only by those who fear the public and want them to go away.

As Vradiyivka showed, they won’t. 

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