Glimmers of hope: positive court rulings from 2012

   An excellent initiative giving “positive feedback” and a good example to others by noting those courts and judges whose rulings have upheld freedom of peaceful assembly, of expression, the rights to wheelchair access and others

Human rights groups and analysts have published their assessment of court rulings in 2012 of the greatest importance for human rights. The first place in their rating goes to a ruling from the Kherson District Administrative Court on freedom of peaceful assembly (Judge O. Anisimov).

That court found the decision by the Kherson City Council on the procedure for organizing and holding rallies, demonstrations, etc in Kherson to have been unlawful and unconstitutional.  It actually went beyond the court application from the Prosecutor who had asked only for certain items of the decision to be declared unlawful.  Instead it found the entire decision to have been such since a local council does not have the authority to take decisions on issues which should be regulated solely through laws.

Tetyana Pechonchyk stressed the importance of this ruling given the negative trend in general towards banning peaceful gatherings. There had been more than 400 applications for such bans during 2012, with 90% of them being allowed. The Kherson oblast proved a positive exception with only one such ruling, with this being in favour of the organizers of the event.

Second place was shared by two rulings: one from the Dnipropetrovsk Administrative Court of Appeal (judges O. Lukmanova; P. Bozhko and T. Prokopchuk) and a ruling from the Kyiv Administrative Court of Appeal (judges A. Denisov; P. Hrom; A. Kuchma).

The Dnipropetrovsk Administrative Court of Appeal ruling concerned discrimination of people with disabilities.  In this vital ruling, reported in more detail here http://khpg.org/1356825951, the court found in favour of Dmytro Zharyi, a lawyer who is himself confined to a wheelchair, and ordered he State Service on Medicines for the Dnipropetrovsk Oblast to withdraw a pharmacy’s licence for failing to provide wheelchair access.

After information was circulated in the media about this victory, the Prime Minister initiated amendments to the licensing of pharmacies and medical establishments in order to ensure disabled access.

The Kyiv Administrative Court of Appeal ruling pertained to freedom of peaceful assembly and is outlined in more detail here http://khpg.org/en/1352234691  The court found that it was unlawful to apply the 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 restricts freedom of peaceful assembly by imposing restrictions (a 10-day notification period – translator) which are not imposed by Ukraine’s Constitution..  it therefore revoked the first instance court which had applied the Soviet decree in order to ban a meeting.

The third place went to a decision issued by Judge V. Bortnikova from the Pechersky District Court in Kyiv. She confirmed that the margin allowed for criticism of a public figure is broader than that for a private individual. She rejected the defamation suit brought by MP Vadim Kolesnichenko, one of the two authors of the highly controversial language law.  He was demanding that another MP be forced to retract statements in which the latter called Kolesnichenko “an agent of the Kremlin” and “a true terrorist, encroaching upon Ukraine’s statehood..  The court referred to European Court of Human Rights case law and found no infringement in the utterances.

Other rulings given a mention:

Judge O. Oryekhov from the Voroshylovsky District Court in Donetsk found against closure of a Ukrainian language school in Donetks;

The Kyiv Economic Court (three judges) ordered the cessation of development work in a protected zone around St Sophia;

The Kyivsky District Court in Kharkiv issued a ruling on the inadmissibility of age-based discrimination;

A Vinnytsa District Administrative Court ruling which awarded moral compensation for not being given an answer from the State Bailiffs Service;

A Lviv Regional Economic Court regarding a private enterprise which was harming the environment.  The court found in favour of the environmental organization Environment – People – Law and ruled that the enterprise had duties under the Public Information Act

The Deputy Director of the Centre for Political and Legal Reform, Roman Kuybida stressed that the rating demonstrates that civil society is following the activities of the judiciary closely.  Against a background of generally negative trends as regards court rulings, it does note the positive exceptions.  The rating is, in a sense, a kind of positive feedback. 

From a report on the Centre for Legal and Political Research site