Human rights in Ukraine – 2008. 9. FREEDOM OF PEACEFUL ASSEMBLY

[1]

According to the Ministry of Internal Affairs (MIA), the number of mass gatherings fell in 2008 as compared with 2007. However, monitoring of the right to peaceful assembly which the «Respublica» Institute has been carrying out over several years found that the number of violations of this right by the authorities and bodies of local self-government increased in 2008.

1. General features of peaceful gatherings

The reduction in the number of peaceful gatherings and of those participating (by 25.6% and 30.5% respectively) was due to a drop in the number of political meetings (this falling by 86.4%, with the number of participants – by 91.4%, i.e. almost 11 times lower!) However such statistics in no way reflect a reduction in civic and political activity. It is just that 2007 saw snap parliamentary elections, and in spring of that year different political forces organized mass events (mainly in Kyiv) «for» or «against» the President’s Decrees dissolving the Verkhovna Rada, while in autumn the same political forces held mass actions in all regions as part of the election campaign.

In 2008 there were only a few local election campaigns (the largest of which was the early elections in Kyiv for Mayor and City Council in May). As a rule, people took part in the above-mentioned political gatherings for a certain amount of money from the organizers (according to reports in the press, from 50 to 100 UAH for a «working» day), while some rally participants manage to take part in events of different, sometimes ideologically opposite political forces. Therefore a reduction in the number of political meetings cannot be taken as an indicator of a fall in Ukrainians’ civic activity.

It is the number of meetings of a socio-economic nature organized by members of the public to defend their interests without the involvement of political parties which can provide an indication of how active Ukrainian citizens are. The number of such events in 2008 was 11.7% up on the previous year, although the number of participants decreased by 40.1%

It is typical that the Crimea and Kyiv take the lead both for political and socio-economic events. This is because the capital is where institutes of power to which protesters direct their demands are concentrated. The level of civic activity in the Crimea is the result of protest actions by the Crimean Tatars who are protesting against the behaviour of the authorities and demand observance of their socio-economic rights as repatriants (for example, for what they consider a just division of land and property). On the other hand, it is traditionally the western regions of Ukraine which take the lead in the number of religious events.

The following table gives figures from the MIA Department of Public Safety, for the number of gatherings in 2008 and of their participants, broken down into regions and types of gatherings (the Department’s classifications).

Types of peaceful assembly according to information from the MIA Department of Public Safety

2. Legal regulation of the right to peaceful assembly

During 2007, not one legal act was passed to regulate freedom of assembly. Thus, just as previously, the right to peaceful assembly is solely regulated by Article 39 of Ukraine’s Constitution which establishes a notification-based system, while also stipulating that the right of peaceful assembly can only be restricted by the court and only under certain circumstances.

At the same time the practice continues whereby bodies of local self-government pass «Regulations» stipulating how the right of peaceful assembly should be exercised in a given city. Such Regulations have been quashed by courts or cancelled by local councils in Kyiv, Lviv, Sumy and other cities. However in some cities, for example, Kharkiv, Kherson, Zaporizhya, similar Regulations remain in force despite the fact that they are in direct breach of the Constitution.

In 2007 human rights defenders managed to achieve a court ruling revoking the most draconian of any such regulations passed by bodies of local self-government in Dnipropetrovsk[2] It is important that the court ruling stated that bodies of local self-government cannot (in accordance with Article 92 of the Constitution) pass any decisions which regulate the exercising of civil rights. Yet by 10 April 2008, despite the Constitution and the court ruling, the Dnipropetrovsk City Executive Committee adopted new «Provisions» which repeat many of the unconstitutional features of those revoked by the court.

In May the Cabinet of Ministers submitted to parliament a draft law «On the procedure for organizing and holding peaceful gatherings»^[3]. The draft law was drawn up by the Ministry of Justice, taking into account numerous comments from the public and Council of Europe experts^[4]. The text was changed many times and as a result the version which reached parliament significantly narrows the present scope of freedom of peaceful assembly and worsens the situation. For example, in breach of the Constitution, the Cabinet of Ministers draft law prohibits the holding of peaceful gatherings if the local authorities have not been notified, and introduces the concept of an «authorized body of State power» which, without court order and effectively at its own discretion, receives the power to «suspend» meetings. The draft law also establishes grounds in addition to those in Article 39 of the Constitution for restricting freedom of assembly via a court order.

Thus the version of the draft law which reached parliament runs counter to the recommendations of the Council of Europe Venice Commission and human rights organizations, for example, UHHRU.

3. Court practice regarding restriction of freedom of peaceful assembly

The unconstitutionality of the above-mentioned «Regulations» is to some extent compensated for by the fact that they are not necessarily enforced. For example, the city authorities in Dnipropetrovsk did not once in 2008 ban any rallies or demonstrations on the basis of their new Regulations adopted on 10 April 2008. Other bodies of local self-government and local authorities, in applying to the court to have peaceful gatherings banned, argued for this not on the basis of items of their own Regulations, but on the basis of Article 39 § 2 of the Constitution, i.e. suggesting that the gatherings were a «threat» to national security and to citizens’ rights and health. Or they cited the invalid Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR» which is not valid in Ukraine.

As a rule the courts allowed applications from the authorities and banned gatherings. Moreover in several cases they effectively created free zones, separate from the Constitution, liquidating the right to peaceful assembly and prohibiting anybody from holding any actions for a considerable period.

For example, on 27 June the Uzhhorod City-District Court banned until the end of the summer (until 31 August this year) rallies outside the Transcarpathian Regional Administration

The court allowed an application from the City Prosecutor Oleksandr Stratyuk who referred in his application to the above-mentioned Decree of the Presidium of the Supreme Soviet of the USSR. The Prosecutor apparently lodged the application with the court at the request of the management of the Transcarpathian Regional Administration who claimed that a tent city on the square outside their building erected by the «Astreya» Association of Pensioners on 4 June was disturbing their work. It is typical that the several dozen protesters were carrying posters with slogans like «Baloha’s mates behind bars», «Baloha, give the people back their stolen land» and «We demand the dismissal of the heads of the criminalized law enforcement structures». Viktor Baloha is the former Governor of the Transcarpathian region, and presently the Head of the President’s Secretariat.

On 3 July the District Administrative Court, in response to an application from the Kominternivsk District Administration in the Odessa region, banned opponents of Ukraine’s joining NATO, from holding any protest actions near the settlement Chornomorske for a month (while Sea Breeze military training was underway). When the anti-NATO protesters did not comply with the court order, on 7 July they were manhandled by police officers led by the Deputy Head of the Police for the Odessa region and the Head of the Department for Public Safety. Several protesters, including women, were hospitalized and several detained. However the local court on 9 July 2008 did not find grounds for bringing administrative proceedings against those detained, and they were released. The anti-NATO protests, organized by the Progressive Socialist Party (Natalya Vitrenko’s party) continued, as however did the Sea Breeze exercises. It is symptomatic that the meetings in support of NATO, organized at the same time in Odessa, did not arouse protest from the local authorities, police or courts.

One should also mention a number of bans during 2008 by the District Administrative Court in Kyiv of gatherings in the capital.

For example, the court on several occasions allowed applications from the Kyiv City State Administration [KCSA] and banned protests by angry investors in the company «Elite Centre» which carried off perhaps the most flagrant building scam to date in Ukraine. The court problems of these people may be explained by the fact that the protests were planned near the President’s Secretariat or near the KCSA building.

The same court on 21 November, following an application from the KCSA, banned a march by opponents of the socio-economic policy of Kyiv Mayor Leonid Chernovetsky.

The court also banned events planned by several organizations for 22 November to mark the events of November and December 2004 (the «Orange Revolution»). The court justified the ban on the grounds that on that day in the centre of Kyiv other events were planned in accordance with the Presidential Decree which proclaimed 22 November Remembrance Day for the Victims of Holodomor 1932-1933.

We must therefore state that as before, on issues involving freedom of assembly, the court remains dependent on the local and national authorities. In 2008 there was no improvement in the attitude of the local authorities and the courts to the right of citizens to peaceful assembly.

4. Police behaviour during peaceful gatherings

A new Cabinet of Ministers was formed, following early elections, in December 2007. The post of Minister of Internal Affairs was once again filled by Yury Lutsenko, and his Deputy on issues of public safety became Oleksandr Savchenko, known for his crushing of «Ukraine without Kuchma» protest actions from 2000 to 2001. Compared with the positive trends in the attitude to freedom of assembly seen in 2007 under Minister of Internal Affairs Vasyl Tsushko and his Deputy Vasyl Fatkhutdinov, in 2008 there was an increase in violations of citizens’ right to peaceful assembly by Internal Affairs structures.

Analysis of police behaviour during peaceful gatherings indicates at least four types of violations of the right to peaceful assembly and provisions of Ukrainian legislation.

Unlawful use of force

There were very many cases where the police or private security firms with total lack of action from the police applied force and special means against participants in peaceful gatherings.

Ø On 16 March the police used force and detained around 10 picketers protesting against construction work on the territory of the Zhovtneva Hospital in Kyiv. They were freed only after the former First Deputy Minister of the MIA Gennady Moskal interceded, using very strong language.[5].

Ø On 7 June the police, after a protest action had ended, detained 9 protesters against construction work at 14 Umanska St. There were plans to initiate a criminal investigation against them under Article 296 of the Criminal Code («Hooliganism»), however following the intervention of human rights activists and the Human Rights Ombudsperson Nina Karpachova, they were all released;

Ø On 2 October on Pervomaiska St in Kyiv a security firm used force against people protesting over what they consider illegal building work;.

Ø On 17 October the police broke up a protest action in the Crimea against distribution of land sites, and in Kyiv against the seizure of the premises of a civic organization; 27 people were detained;

Ø On 18 October the police in Kyiv used force to stop a march by supporters of the Ukrainian Resistance Army [UPA] which had been banned by the court. 142 people were detained, and tear gas was used.[6]

Ø On 9 November the police broke up a protest against an increase in the cost of travelling on the Kyiv metro; 11 people were detained;[7]

The police also used force against football fans of the teams «Dnipro» in Oleksandriya, «Arsenal» in Lviv, «Shakhtar» in Donetsk and «Metalurg» in Zaporizhya. Hundreds of people were detained and beaten..

Bearing in mind that we have listed only the most prominent events, a clear trend emerges – throughout the year, though especially during the last months law enforcement officers began reacting more brutally to citizens’ gatherings.

With regard to some of the events mentioned above, checks were carried out as to whether police behaviour had been lawful by either the police themselves or the Prosecutor’s office (in response to demands from the public). Only in the case of the incident on Pervomaiska St. did the internal investigation undertaken by the Central MIA Department in Kyiv find that there had been infringements by police officers. 15 officers faced disciplinary proceedings, and the security firm lost its licence. No criminal proceedings were initiated. In the other cases, police officers from the MIA Department of Public Safety did not find any infringements in the actions of their colleagues from the Department of Public Safety. Following on from them, the Prosecutor’s office, using material from the internal police investigation, found no grounds for Prosecutor’s reaction.

However such response, or more accurately, lack of response, does not mean that the police behaviour was lawful, and that it does not require assessment from human rights groups. At the end of the day the authorities always justify the actions of their enforcement bodies.

So when exactly, according to Ukrainian legislation, do the police have the right to apply force against demonstrators? Article 12 of the Law «On the police», entitled «Conditions and limits of application of measures of physical influence, special means and firearms» states the following:

«The police have the right to apply measures of physical influence, special means and firearms in cases and according to rules of procedure foreseen by this Law.

The use of force, special means and firearms must be preceded by a warning of the intention to use them if circumstances allow. Force, special means and firearms are used without warning if there is a direct threat to the life or health of members of the public or police officers.»

 From the cases described above, the police did not identify themselves and did not warn of their intentions during the events of 16 March, 7 June, 17 October, 9 November and in all incidents involving football matches. Furthermore, on 17 October police officers refused to speak with the protesters when the latter tried to find out what exactly it was that the police wanted. In other cases (on Pervomaiska St and near the Zhovtneva Hospital) police officers did not stop the use of force against demonstrators by security firm employees or «unidentified individuals» whose actions directly fall under the definition in Article 296 of the Criminal Code – group hooliganism.

With regard to people detained, police officers drew up protocols under Article 185 of the Code of Administrative Offences (persistent failure to obey the lawful demands of a police officer). Yet what kind of failure to obey can be in question at all if these demands, lawful or not, were not even expressed aloud?

The fact that the use of force by the police and detention of participants of peaceful actions were unlawful is confirmed by the following.

No charges were brought against those taking part in the protest of 17 October 27 people) nor was any protocol drawn up, and all were released from the Holosiyivsky District Police Station within an hour. Furthermore, officers from the special unit «Berkut» who actually carried out the detentions refused to write reports about infringements by the protesters. Later when the case became publicized the police management decided to fabricate protocols under Article 185 since otherwise it would follow that the people had been detained without any grounds. Protocols were thus drawn up and passed to the court with respect to 10 protesters, (none of those detained has any information regarding administrative proceedings brought against them and who these 10 people are is not known). Due to infringements of legislation on drawing up protocols, the court returned them to the district police station, and it is not known what happened to the protocols later.

Thus police officers acted in breach of legislation during the detention and drawing up of protocols, yet this failed to elicit an appropriate response from either the MIA management or from the Prosecutor’s office.

While detaining those protesting against the price increases on 9 November, police officers clearly recalled their previous mistakes and drew up protocols under Article 185 of the Code of Administrative Offences. Then 12 people (11 detained and a journalist from the Internet publication «Ukrainska Pravda» who was not detained), at the ruling of the Shevchenkivsky District Court in Kyiv received from 1 to 3 days administrative arrest. A characteristic feature of this court hearing was the refusal by the court to listen to the testimony of witnesses to the incident. The only evidence, it transpired, for the court was the police protocol.

However it would have been worth listening to the witnesses. The judges would have learned that on both 9 November, and 17 October, most of those who had protocols drawn up were people who did not take part in the protests but were simply nearby. For example, on 17 October the police detained an employee of the civic organization «Union of small and medium-sized privatized enterprises» who was unfortunate enough during the protest action to be working in his office which was next to where the protest was taking place.

Inaction

During peaceful gatherings the police are obliged to ensure public order and stop the actions of those who obstruct the gathering or even use force against its participants. However the police on several occasions simply watched provocations or attacks on members of the gathering. This was the case many times in Odessa at rallies of extreme rightwing groups against the erection of a monument to Catherine the Great and at other public events in the South of the country. On 27 November unidentified individuals used force against demonstrators protesting against building work on the territory of the Zhovtneva Hospital in Kyiv. The police simply watched in silence.

Unlawful stopping of peaceful gatherings

What is involved in the final analysis is not only the unlawful use of force by police officers, but also their violation of freedom of peaceful assembly, as guaranteed by Article 39 of Ukraine’s Constitution and Article 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. The Constitution stipulates that only the courts may restrict freedom of assembly. In all the above-mentioned cases there were no court orders restricting or banning meetings or demonstrations. There was also no real risk of crimes or mass disturbances. The police therefore in breaking up protest actions and thus stopping them without the appropriate court order acted in breach of the Constitution and Article 11 of the European Convention on Human Rights.

Furthermore, on 18 October the police demanded that the UPA supporters taking part in the demonstration change the route which they had notified the Kyiv City State Administration of in advance, although neither KCSA nor the court had made any objection. The demands of the police were clearly unlawful since in this way the organizers were being asked to break the rules of holding a meeting by acting in breach of the information provided about it.

On 22 July a representative of SBU [the Security Service], together with the local police, obstructed an anti-NATO demonstration in the town of Henichesk in the Kherson region. Notification of the demonstration had been provided in the proper manner and there had been no court ban. Yet the demonstration did not take place due to flagrant interference by the enforcement bodies, for example, in detaining one of the protest organizers, freed short afterwards following the intervention by human rights organizations without any charges being laid by either the MIA or the SBU.

Unlawful countering of journalists’ activity

Last, but not least, during these cases of gatherings being broken up and people detained, the police, representatives of a regime which has declared its commitment to freedom of speech, showed the most «attention» to journalists. It was futile to show police officers their journalist ID and wear journalist badges. On 17 October 8 journalists were detained, and on 9 November – three, all carrying out their professional duties at a protest action. On 2 October one journalist ended up with a broken arm.

A journalist from «Ukrainska Pravda» Vitaly Selyk has been placed under custodial arrest for 24 hours accused of resisting the police (Article 185 of the Code of Administrative Offences). Selyk was detained on Sunday near the Kyiv City Administration building when he decided to follow the protest action against the increase in the fares on public transport. Having arrived at the place where the protest was taking place he saw two police cars hit each other and clapped. He was arrested by a police officer.[8]

Taking into account the above, one can assert that in the actions of the police in unlawfully dispersing protest actions and detaining protesters, there are elements of the crimes set down in Articles 340 (unlawful obstruction of meetings and demonstrations), 170 (obstruction of the lawful activities of citizens’ associations) and 365 (exceeding ones power or duties) of the Criminal Code.

In all cases mentioned in this unit, the gatherings were of a largely social and not political nature. And in all cases the police were on the side of the authorities or the builders.

5. The police and the public

Unlike 2007 when at the suggestion and with the participation of the public, the MIA carried out investigations into infringements of freedom of peaceful assembly, in 2008 all such suggestions were ignored by the MIA management. This was even when a decision to investigate the incidents of October and November was taken by the MIA Public Council.

In addition in 2008 the MIA management ignored the «Method guidelines on safeguarding public order during mass-scale events and actions», drawn up in 2007 by the Department of Public Safety together with members of the MIA Public Council. Instead, in 2008, « Method guidelines. Theoretical and organizational principles for preventing and stopping group infringements of public order and mass riots» were passed with the content being based not on how the police should protect the rights of citizens to peaceful assembly, but how to counter protest actions.

At the beginning of 2009 the MIA carried out police training exercises in the Crimea again not on the subject of how the Internal Affairs bodies should safeguard citizens’ rights, but on how to use teargas and light and noise grenades.

6. Recommendations

1) Pass by Order of the Minister of the MIA and register with the Ministry of Justice «Method guidelines on safeguarding public order during mass-scale events and actions» drawn up in cooperation with members of civic organizations.

2) Set up MIA commissions with the participation of members of the public to investigate incidents during peaceful assembly which involved the police. The results of such commissions should be made public. .

3) Carry out training of officers from special units and patrol squads of law enforcement agencies in the following: ensuring public order during peaceful gatherings; protecting those participating in peaceful gatherings; the grounds and conditions for using special means and physical force; ensuring independent control over how they use their authority during peaceful gatherings.

4) Translate into Ukrainian the Judgments of the European Court of Human Rights on Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms pertaining to the freedom of peaceful assembly and provide copies of these translations to all district administrative courts, the Higher Administrative Court and the Supreme Court.

5) Taking into account case law of the European Court of Human Rights, prepare and run a training course for judges of local and appeal courts of all 27 regions of Ukraine as to applying Article 11 of the European Convention for the Protection of Human Rights in court practice with regard to applications from the authorities to ban peaceful gatherings.

6) The Supreme Court should summarize court rulings in cases involving restrictions on the right of peaceful gatherings and demonstrations.

7) Pass the draft law on holding peaceful gatherings drawn up by Ukrainian human rights organizations in which the case law of the European Convention for the Protection of Human Rights and the positive practices in democratic countries are taken into consideration. It should be borne in mind that the draft law of the Cabinet of Ministers № 2450 from 6 May 2008[9] does not comply with international standards[10] and the Constitution..

8) Bodies of local self-government and public authorities (in particular in Kharkiv, Kherson, Zaporizhya and Poltava) should revoke any Regulations on rules and procedure for holding peaceful gatherings and using «small architectural forms» and bring other decisions into compliance with the Ukrainian Constitution and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Prosecutor’s Office of Ukraine should appeal through court procedure such decisions of local authorities where the latter have failed to respond.

9) The Human Rights Ombudsperson should pay more attention to infringements by local authorities and law enforcement agencies of the right to peaceful assembly.

10) Organizers of peaceful gatherings are advised to use court procedure to complain against any rulings by first instance courts restricting freedom of peaceful gatherings, and also against illegal actions of law enforcement bodies.

[1] By Volodymyr Chemerys, Institute “Respublica”», member of the UHHRU Board.

[2] For more information see “Human rights activists win important case for freedom of assembly at http://khpg.org.ua/en/index.php?id=1175986503  and   http://helsinki.org.ua/en/index.php?id=1181647090.

[3] Draft law № 2450 from 6 May 2008 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=32431.

[4] Cf. «European commission for democracy through law (Venice commission) joint opinion on the draft law on peaceful assemblies in Ukraine», http://helsinki.org.ua/en/index.php?id=1162206184.

[5] A video of these events can be viewed at: http://youtube.com/watch?v=-jThHiPCcH0.  

[6] Confirmation has been found of the use by “Berkut” of gas against UPA supporters // Internet publication “Korrespondent.net” 22 October 2008, http://korrespondent.net/ukraine/events/623158/?p=3&mode=DESC, as well as information on this at:: http://korrespondent.net/ukraine/events/620934,   http://korrespondent.net/ukraine/events/619196. A video clip can be viewed at: http://korrespondent.net/video/ukraine/623049. Information about the ban at: https://helsinki.org.ua/index.php?id=1223979834.

[7] A video of these events can be viewed at: http://youtube.com/watch?v=Mp7C5Naiex4.

[8] Journalist imprisoned for 24 hours for clapping, 10 November 2008, http://khpg.org/en/1226323919

[9] Draft law № 2450 from 6 May 2008 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=32431.

[10] «European commission for democracy through law (Venice commission) joint opinion on the draft law on peaceful assemblies in Ukraine», http://helsinki.org.ua/en/index.php?id=1162206184.