Obstructing those who obstruct peaceful gatherings


Another attempt is due this week to legislate guarantees for freedom of peaceful assembly.  Two draft bills are up for consideration, both called, unoriginally enough, “On Freedom of Peaceful Assembly” №2508а та №2508а-1.

Volodymyr Yavorsky, member of the Ukrainian Helsinki Human Rights Union Board, writes that both bills have their positive aspects and could be passed as a base, then refined for their second reading.  He personally sees the first as more balanced and well-thought-out.

Yavorsky’s reasons for believing a Peaceful Assembly Act is vitally needed were reported here.   He writes that all of the arguments presented several months ago remain valid.  In fact, he points out, there is even more information of local authorities bringing in their own restrictive regulations on peaceful assembly.  These would be cancelled if a law was adopted.

He stresses that civil society should support such a bill and sets out fundamental guarantees that it will provide.

A basic principle of No. 2508a is the presumption that peaceful gatherings can take place.  Even if notification has not been provided, this does not give grounds for stopping or restricting a peaceful meeting.

The police may intrude only if it ceases to be peaceful, and only to stop the disturbance of public order, not the meeting itself.

Clearly this will depend also on practice, nonetheless the guarantee will have been provided at legislative level and on this basis one will be able to demand better practice.

At present, there are no such guarantees, Yavorsky says, and the police use abstract norms from the Police Act at their own discretion to stop or restrict any peaceful gathering.  Not one police officer has ever been punished for this.

The government is not fulfilling its international obligations with respect to ensuring freedom of peaceful assembly.  This includes the positive duty of ensuring protection of participants, resolving organizational details, such as diverting traffic, ensuring that medical services are present, etc. 

These duties must also cover occasions where a vulnerable minority is likely to encounter aggressive opposition.

Draft No. 2508a clearly stipulates these positive duties and the possibility of demanding compensation if they are not fulfilled.

Yavorsky stresses again that with the present lack of clear rules, whether or not a peaceful gathering can take place depends on the will of local officials.  If a gathering is likely to attract politicians, the media etc, then officials will probably not try to put a spoke in the wheels.  If it’s ordinary citizens trying to organize a gathering, then, he says, its up to the officials who know that they don’t have to fear any adverse legal consequences.  

This can be seen from monitoring of peaceful assembly.  Where the authorities, like in Kharkiv, are against peaceful protest, there are more court bans and the police act in a much more aggressive manner.   The draft bill would prevent officials acting at their own discretion.

Obviously any law can be flouted, but then there need to be legal mechanisms again this.  There are no such mechanisms now and not one case of an official having been punished for obstructing a peaceful gathering.

The law would provide guarantees against unwarranted court bans. As reported here, around 90% of applications from local authorities for a ban on peaceful assembly are allowed. Various pretexts are given, the absolute majority of which are not in line with international standards. Around 70-80% of these pretexts would be banned if draft bill No. 2508a were adopted.

He believes that adoption of the law would lead to at least a halving of the number of bans. 

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