Why a law on peaceful assembly is needed

  With bans on peaceful assembly ever more frequent and all-purpose, banning any meetings in a particular place or timeframe, the need for legal regulation is clear.  It is just as clearly missing at present

In an article for Dzerkalo Tyzhnya, Volodymyr Yavorsky explains why the need for a decent law in Ukraine on freedom of peaceful assembly is so urgent.

First some more details about the ever worsening situation in this area. The number of court bans of peaceful gatherings is increasing radically.  A particularly worrying feature is that “more and more often such bans apply not to one event, and over a lengthy period, territory or indefinite number of meeting organizers. In 2011 there were at least 203 such bans; in 2012 already 313.  There has been a sharp rise in the number of cases where organizers of peaceful gatherings face administrative charges. Last year there were over a hundred.

The law enforcement bodies often illegally ban events; unwarrantedly detain their organizers or people taking part; restrict the routes they can take; block access to the place where such gatherings are planned; or don’t protect protesters from attacks.

Volodymyr Yavorsky believes that the reasons are not only political, but also related to the lack of a law on freedom of peaceful assembly.

He sets out arguments for swift adoption of a law, these being in brief, the following

There is no clear legal regulation of freedom of peaceful assembly

The authorities, courts and police use three mutually exclusive sources of regulation:

i) Unfortunately, least often, solely the Constitution (Article 39 stipulates only that notification is needed, not permission, and gives a list of reasonable grounds for bans);

ii) In at least 50 cities decisions by bodies of local self-government which are dubious from a constitutional point of view are used in place of a law;

iii)  Reference is made to the notorious 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”.

The Decree establishes a permission-based system for peaceful assembly and stipulates that applications must be filed 10 days before the planned gathering. 

The other problem, however, is the highly questionable validity of a decree issued by a no longer existing country.

Yavorsky writes that one can argue about which of the above three forms of regulation are correct, but practice shows that all of them are used.

This means that for organizers of a peaceful gathering, the consequences of their action cannot be foreseen.

Volodymyr Yavorsky represented Oleksiy Vyerentsov who recently one his case at the European Court of Human Rights.  A brief summary of the Court’s position as well as of the case can be found here

Most crucially, the Court found that the Vyerentsov case disclosed a structural problem, namely a legislative lacuna concerning freedom of assembly which has remained in Ukraine since the end of the Soviet Union.  It noted the existence of only one document establishing procedure for holding demonstrations, the 1988 Soviet Decree which it said is not generally accepted by the Ukrainian courts as still applicable.

“Therefore, under Article 46 (binding force and implementation), the Court invited Ukraine to urgently reform its legislation and administrative practice to establish the requirements for the organisation and holding of peaceful demonstrations, as well as the grounds for their restriction”.

While acknowledging that time was needed given the transitional period Ukraine has been going through, however more than 20 years cannot be considered justified.

There has been some argument among NGOs regarding whether a special law on peaceful assembly is needed, with those who believe it isn’t citing the European Court of Human Rights as purportedly backing this. 

Yavorsky rightly notes that the Court in Strasbourg cannot tell Ukraine how it must resolve the current situation however it makes it abundantly clear that regulation is required.

While a law cannot eliminate the scope for officials to abuse their powers and restrict freedom of assembly, it can narrow their options.

Yavorsky notes that the authorities use lack of legal certainty to prevent peaceful assembly.  Rules must be set which apply throughout the country