When at last the legislation will be controlled by right?

Evhen Zakharov, the Kharkiv Group for human rights protection
Each autumn the Kharkiv Group for human rights protection (KhPG), the Directorate of human rights of the Council of Europe and the Information office of the Council of Europe hold the seminars on "hot topics" in Kyiv. The seminar "The European standards on the freedom of peaceful assemblies and the freedom of associations in Ukraine and the improvement of the Ukrainian laws" that took place on 28-29 November was also organised in the framework of this tradition. The seminar was supported by the Council of Europe, the international "Renaissance" Foundation and the National Endowment for Democracy (USA). The financial aid granted to the seminar by several sponsors allowed to prepare and publish the book "The freedom of peaceful assemblies and the freedom of associations in Ukraine" in Ukrainian and English. This book presents the review of the reports concerning the violations of these fundamental freedoms in Ukraine, of the Ukrainian laws on the freedom of assemblies and the freedom of associations, of the corresponding court and administrative practices. The "Fundamental principles of the status of NGOs in Europe" adopted by the Council of Europe on 6 July 2002 and the explanatory memorandum to these principles were translated for the Ukrainian-language edition. To the English edition the KhPG included the translations of the law drafts compiled by the group concerning the public control over state activities, which now seem to be extremely important. In addition, the opportunity appeared to invite 60 participants from other regions of Ukraine. Altogether, 134 persons took part in the seminar, among them 87 representatives of the non-profit NGOs, 20 state officers (5 persons from the Supreme Rada of Ukraine, 5 – from the Ministry of Justice, 4 – from the Ministry of Interior, 3 judges; the USS, Constitutional Court and the ombudsperson’s office were represented by one person each), 14 journalists, 8 teachers of law schools and 5 advocates. All in all, 46 lawyers were present on the seminar.

The city trade unions hall situated on the main street of Kyiv, Khreshchatik, was overcrowded. With great interest the public listened to the brilliant lectures of Jeremy McBride, an expert of the Council of Europe, a professor of the Birmingham University. He delivered the lectures on Article 11 of the Convention on the protection of human rights and fundamental freedoms, which protects the freedom of assemblies and associations, and on the fundamental principles of the status of NGOs in Europe, the author of which is professor McBride himself. The elucidation of the European standards in this sphere demonstrated the pessimistic picture of the Ukrainian reality: the corpus of the Ukrainian laws regulating the peaceful assemblies still consists mainly of the normative acts of the Soviet times, which have the pronounced permissive character thus contradicting the Ukrainian Constitution. Yet, the authorities follow these obsolete legal acts. As a result, we have the unjust administrative and court decisions, when political actions are prohibited because of the absence of public conveniences, since, they say, this would lead to the deterioration of the epidemiological situation and active reproduction of rodents, because of the care of the health of the demonstrators, whose immunity would abruptly worsen owing to the cold season, because of the violation of the right for rest of those, who would walk around during the demonstration, etc. It seems that the obsolete laws are anxiously preserved to prevent the opposition to have the legal grounds for their political actions.

At the same time, there were many cases, where people were forced to take part in the actions of power-loyal political forces, such as the meetings in the support of the Constitution or the visits of various VIP. When schoolchildren in Kharkiv were driven to the frost with Russian flags to greet Russian President Putin and spent 4 hours outdoors, nobody recollected about their immunity…

The situation with regulating the freedom of associations is not better. Although 10 years ago the law "On citizens’ unions" was adopted, it is also obsolete now and needs the essential changes. Oleksandr Vinnikov, a well-known specialist in the sphere of non-commercial right, told in his lecture that 15 articles of this law (out of 34) contain the violations of the European Convention.

The main problem is that an organisation may be registered, according to this law, only if it plans to protect the rights and interests of its members. The organisations protecting public interests, in particular all human rights protecting NGOs, are formally illegal in Ukraine. The participants of the seminar recalled the numerous cases, where the officials refused to register NGOs, the examples of court appeals against such refusals were presented, as well as the information that one Kyivan organisation even handed a complaint about the violation of Article 11 of the European Convention to the European Court of human rights.

The seminar confirmed that there are many people both in state agencies and in public organisations, who understand well the imperfection of the operating laws and the fallaciousness of the existing practices. This allows one to hope for positive changes. But we know from our own bitter experience that the enormous joint efforts are needed to achieve these changes. So, let us go…
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