• Research / Analysis of the human rights situation in Ukraine / Human rights in Ukraine – 2004. Human rights organizations’ report
Human rights in Ukraine – 2004. X. RIGHT TO FREEDOM OF PEACEFUL ASSEMBLIES
1. Overview of Ukrainian legislation on the right to freedom of peaceful assembly
1.1. 1.1. The Constitution of Ukraine and international documents.
The right to peaceful assembly is guaranteed by Article 39 of the Ukrainian Constitution:
«Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government. Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons».
In addition, Ukraine has undertaken to fulfil the commitments of a number of international documents which concern human rights and which contain references to the right to peaceful assembly – the Universal Declaration of Human Rights (Article 20), the International Covenant on Civil and Political rights (Article 21), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 11).
The Constitutional Court of Ukraine in its ruling of 19 April, 2001 stated that the right to peaceful assembly is an «inalienable and inviolable» right of citizens and gave an official interpretation of Article 39 of the Constitution, in particular, as regards time periods for informing State authorities of plans to hold a mass action. The Constitutional Court also indicated that certain provisions of Article 39 of the Constitution should be specified in more detail by a separate law which has yet to be adopted.
1.2. The use in Ukraine of legislation on peaceful assembly of the former USSR
There is no Law in Ukraine regulating the protection of the right to peaceful assembly aside from constitutional provisions and limitations of a general nature.
State executive bodies, bodies of local self-government and the courts continue to use normative legislation of the former USSR, such as the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR». This is, in our opinion, illegal.
The Resolution of the Verkhovna Rada of Ukraine «On the temporary legal force of certain legislative norms of the USSR on the territory of Ukraine» from 12 September 1991 provided that «until adoption of the relevant norms of Ukrainian legislation, the legislative norms of the USSR shall be used with regard to issues not regulated by Ukrainian legislation, on condition that they do not contravene Constitution and Laws of Ukraine». However, this does not at all mean that the given decree has legal force.
This Decree establishes a permission-based procedure with a 10-day time period for notification of the holding of mass gatherings. The permission-based procedure involves the issuing of a permit by an executive body for the holding of a meeting on submission of the relevant application by the organizers of the action.
The Decree thus contravenes the Constitution of Ukraine, in particular Article 39, which sets out procedure for notification of the organization of mass gatherings, not for seeking permission, and does not contain the limitations concerning the terms for prior notification. It also runs counter to other provisions of the Constitution.
Nonetheless, the Mukachevo District Court effectively took upon itself the authority of the Constitutional Court and directly stated in its decision on prohibiting pickets from 1 to 4 May 2004 that the Decree of the Presidium of the Supreme Soviet of the USSR from 28.07.1988 «was in force on the day of submission to the Mukachevo District Council of applications to hold a picket.
The notification procedure involves the filing of notification about the planned event to be held by the organizers to local executive bodies, who in their turn should not prohibit the event. Such peaceful gatherings may be banned solely by the court following an application by local executive bodies.
1.3 Liability for violation of the right to freedom of peaceful assembly
Law enforcement bodies apply general legal regulations for ensuring public order, yet almost all individuals detained when a mass gathering is being broken up are held responsible for «malicious refusal to heed a lawful direction or demand from a police officer» (Article 185 of the Administrative Offences Code of Ukraine) or «breach of procedure for organizing and holding meetings, political rallies, street actions and demonstrations (Article 185-1 of the Administrative Offences Code of Ukraine).
These Articles allow for punishment in the form of warnings, fines from 8 to 25 minimum wages before tax (from approximately 20 to 80 US dollars), community service for a period from one to two months, with twenty percent deduction from wages or administrative arrest for up to 15 days.
Furthermore, law enforcement officers frequently apply the legal regulations of Article 129 of the Criminal Code of Ukraine imposing responsibility for blocking roads or transport communications.
Nor has there been any case where officials or functionaries were punished for preventing individuals from practising their right to free assembly.
1.4 Legislative acts ofd. When sending a case back for further investigation, the judge must decide on the preventive measure to be taken with regard to the accused.
It is interesting to see how court employees view certain aspects of the application of law in Ukraine. Thus, the majority of those asked – 60 % – considered that the principle of further investigations did not conflict with the principle of the presumption of innocence.
Such a position is, at very least, curious, since, in accordance with Article 62 of the Constitution of Ukraine the presumption of innocence is affirmed and all doubts as to the proof of guilt of the accused should be interpreted in his or her favour.
Guilt which has not been proven is, in accordance with criminal process doctrine, treated as proven innocence. However, most court employees hold a different point of view. They consider that further investigation, which is clear evidence of the incompleteness of criminal investigation and the lack of certainty as to guilt are not infringements of the principle of presumption of innocence. The prosecution is thus given a second chance to prove guilt, which from the point of view of the possibilities of the investigation apparatus, violates yet another principle of justice – that being the equality of arms.
The practice of sending a case back for further investigation is a flagrant example of the violation of not only the periods for review of a case, but also directly of a persons human rights in the area of defending their rights.
A considerable number of claims to the European Court relating to violations of Article 6 of the European Convention deal with infringement of the right to consideration of ones case within ‘a reasonable time.
According to the «Report on consideration of criminal cases by courts of first instance», in 2004, the Supreme Court of Ukraine, appeal, local and military courts sent 1499 cases involving crimes against life or health back for further investigation. 510 of these cases involved premeditated murder and 554 – aggravated assault. An additional 360 cases dealing with crimes against electoral, labour or other individual human rights and freedoms, and 6688 cases regarding crimes against property were also sent back for further scrutiny. Thus, using the general figure provided of 219, 873 criminal cases which were brought to court through 2004, 14,273 cases were returned for further investigation, this being 6,5 % of the overall number.
An additional 3.3 % of criminal cases had not been considered within 6 months, without taken into account cases which were terminated.
The abolition of the system of Courts of Cassation, and slow progress on creating higher courts has led to the Supreme Court of Ukraine becoming seriously overloaded. At the beginning of 2004, approximately 20 000 cases were awaiting attention, by the end of 2004, this number had increased by 10 000.
An example of violation of the «reasonable time» requirement is seen in the European Court decision in the case «Sem Merith vs. Ukraine»  dated March 30, 2004. The essence of this case is as follows. Mr. Merith, a citizen of Israel, was involved in commerce in Ukraine. On suspicion of crimes involving abuse of power by an official, a criminal investigation against him was launched, and in 1998 he was detained. Initially he was kept in custody as a preventive measure. This all happened in 1998. Although later other preventive measures were chosen: first, he gave a written undertaking not to leave his place of residence, then an undertaking to appear before the investigating authorities and courts when requested and was allowed to leave the country. Criminal investigation continued, all his property remained under arrest, despite 6 years having passed since the beginning of the case,
The European Court ruled that in this case the rights, guaranteed in Article 6 («a fair and public hearing within a reasonable time») and Article 13 (absence of an effective remedy before a national authority to challenge such timing of the case) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated. Ukraine was ordered to pay 2,500 Euros in moral damages to the plaintiff and 1500 Euros court costs.
In the viewpoint of the European Court, hearings in cases that involve criminal charges should be conducted within a reasonable time frame. This notion is rather broad, so over the years of its activity the European Court has developed a set of criteria to define «reasonable time of hearings»: the complexity of the case, behaviour of the plaintiff, and behaviour of the authorities.
It is clear from the facts of this case that a criminal investigation lasting six years could not meet the requirements of the European Court for «a reasonable time» of hearings. However, as well as stating that the time period had been unreasonable, the European Court made another comment regarding Ukraine, noting that Ukrainian legislation lacks effective ways of protecting a person from violation of reasonable periods for consideration of a case, and does not allow for the possibility of obtaining compensation if such a violation takes place.
Ukrainian legislation should, therefore, be supplemented with norms that:
ensure the right of any individual or legal entity to get compensation from the State if the reasonable period for dealing with their case in courts of general jurisdiction have been violated;
consolidate procedure for making a complaint about violations of reasonable time scales and for receiving compensations for damages incurred;
state the sources of financing the compensation for damages caused by the violation of the reasonable time requirement.
Another interesting case on reasonable time is «Trehubenko vs. Ukraine». Here the European Court ruled unanimously that Ukraine had violated paragraph one of Article 6 of the European Convention, in the context of having the possibility to lodge a protest to a judge of the Supreme Court of Ukraine over a court decision that had already come into force.
Taking into consideration the financial and social status of the applicant, his age, and health, the Court decided that nullification of the given decision was a disproportionate interference in his rights to enjoy his possessions. That gave grounds for the unanimous decision of the European Court that the case included violation of Article 1 of Protocol # 1 of the European Convention for Protection of Human Rights and Fundamental Freedoms.
The European Court awarded 3,536 Euro to the plaintiff as compensation for material damages, and 5,000 Euros for moral damages.
The European Court of Human Rights decision in the case of Trehubenko challenges the entire procedure for supervision and the functions of the Supreme Court as an overseeing body that can review court decisions which have already come into force.
There seems little doubt that the partial restoration of the procedure of general surveillance of the Office of the Prosecutor, which was included in a recently adopted Constitutional reform will also violate a persons right to a fair trial and be in contravention of Article 6 of the European Convention. 
The Draft of the Criminal Procedure Code has effectively rejected the practice of sending cases back for further investigation, however the practice of returning a case to the office of the prosecutor which was introduced with the amendments from 21 June 2001 to the current Criminal Procedure Code (Article 249-1 of CPC), has been retained. At present the judge may, at the stage of preliminary consideration, return a case to the office of the prosecutor if the latter has infringed Articles 228-232 of the CPC, which are, in essence, its main activity as the representative of the prosecution.
For local executive bodies concerning the right to free assembly
The Constitution states that the right to peaceful assembly may only be limited in accordance with the law. In spite of this, local executive bodies frequently adopt their own legislative acts which flagrantly violate freedom of peaceful assembly.
Such decisions have been taken by city councils of the majority of Ukrainian regional centres, in particular, in Kyiv, Kharkiv, Donetsk, Dnipropetrovsk, Sumy, Lviv and in some district centres. One should also add that, in accordance with Article 92 of the Constitution, human and citizens rights and freedoms, the guarantees of these rights and freedoms, the main duties of the citizen, are determined exclusively by the laws of Ukraine, and not by decisions of local executive bodies.
Most of these decisions by city councils have been based on the Decree of the Presidium of the Supreme Soviet of the USSR, and have imposed a ten-day period for providing notification about actions. These decisions, moreover, have established significant anti-constitutional limitations on the right to free assembly.
For example, «The Regulations on holding mass events in Dnipropetrovsk», approved by decision of the executive committee on 21 August 2003 states:
«18. In order to ensure appropriate conditions of safety, public order, sanitary norms and rules in holding mass events, the organizers must:
-1. ensure that a metal barrier is set up around the stage and around the crowd (exactly what it says – the crowd!!!, – authors note); -2. ensure the installation of the required number of mobile toilets; -3. insure their liability before third parties (viewers, guests, participants);
4. hold the mass events not later then 11 p. m.
19. The organizers of the mass events together with the representatives of
– the Dnipropetrovsk local department of the Ministry of Internal Affair in the Dnipropetrovsk region;;
– the Dnipropetrovsk state communal enterprise of the electricity network for outside lighting «Misksvitlo»;
– the Dnipropetrovsk city electricity network «Dniprooblenergo»;
– the transport department of the city council;
– the department for emergencies and civil defence of the citys population;
– the explosives technical department of the Ministry of Internal Affairs in the Dnipropetrovsk region;
– 8th state fire prevention brigade;
should draw up a report 3 hours before the start of the mass action on the results of the examination of the venue and submit the report to the city council».
As for meetings of religious communities, these «Regulations» establish a permission procedure for holding mass events which contradicts the notification procedure guaranteed by Article 39 of the Constitution and Article 21 of the Law on Freedom of Conscience and Religious Organizations: «Religious events outside the places and buildings foreseen by the Law of Ukraine «On freedom of conscience and religious organizations» are carried out each time with the consent of the executive committee of the city council after consideration of the purpose and program for the holding of the event by the office of internal policy of the city council».
The Institute «Republic» turned to a number of regional offices of the prosecutor with a proposal to register protest at the decisions of the relevant local authorities, who were establishing procedure for organizing and holding mass events. As no responses arrived during the term provided by the Law, the Institute turned to the General Prosecutor of Ukraine with a proposal to protest the decisions of:
Dnipropetrovsk City Council №2207 from 21.08.03 – «Regulations for holding mass events in Dnipropetrovsk»;
Lviv City Council № 367 from 16.04.2004 – «On the procedure for organizing and holding meetings, political rallies, pickets, street actions and demonstrations in Lviv»;
Sumy City Council №757-МР from 28.04.2004 – «On regulations for holding mass events in Sumy»
Kharkiv City Council №221 from 07.03.2000 «On the approval of temporary regulations «On procedure for Executive Committee review of issues concerning the organization and running of meeting, actions, rallies, and demonstrations in the City of Kharkiv»;
Chernivtsi City Council № 265/10 from 17.04.96 «On places for meeting, demonstrations and other mass political actions in Chernivtsi»;
Zaporizhye City Council №2 from 12.01.01 «Regulations on the procedure for considering applications for holding meetings, political rallies, street actions and demonstrations in Zaporizhye».
The application of regulations which regulate the establishment of «small architectural forms» when fulfilling citizens rights to free assembly.
Some city councils use different regulations for regulating and holding mass events which formally do not touch on the right to peaceful assembly, these being regulations on the establishment on city territory of «small architectural forms». Such regulations have been passed by the councils of many cities, including Kyiv and Donetsk.
«Small architectural forms» are kiosks, stalls, tents and other small constructions, which are erected by businesses of various forms of ownership for commercial purposes. Such «forms» are, moreover, intended to function for a long time. The erection of such «forms» should undoubtedly be subject to regulation by local authorities which does not contravene European practice of issuing permits for the erection of «small architectural forms» for commercial purposes.
However since 1990 during the student hunger strikes in Ukraine, it has become traditional to hold acts of protest in the form of «tent cities». No commercial activity is carried out in these tent cities: their purpose is to draw attention to socially important issues and to publicize the views of their inhabitants. Moreover, such tent cities cease to exist when the protest action ends. For this reason, legal regulation for establishing tent cities should be implemented within the framework of regulations about the right to free assembly, and not regulations about «small architectural forms».
Nonetheless, city councils frequently use regulations about «small architectural forms» in order to restrict the right of citizens to assemble peacefully. This was the case in Kyiv in 2001, when on the decision of the Starokyivsky District Court based on regulations about «small architectural forms», the tent cities of the protest action «Ukraine without Kuchma» were dismantled. This also happened in Donetsk in December 2004, when the Donetsk City Executive Committee applied to the district court to prohibit the erection of tents on the territory of the city (during the court hearing, in which the Institute «Republic» represented the respondent, an Executive Committee representative withdrew the application).
1.5 Draft Laws on the protection of the right to freedom of peaceful assembly
In 2004 the parliament of Ukraine considered two Draft Laws on the freedom of peaceful assembly (Draft Law № 5242 «On the procedure for organizing and running peaceful rallies and actions in Ukraine», tabled State Deputies G. Udovenko, I. Mygovych, I. Sporadenko, V. Taran-Teren; Draft Law № 5242-2 «On meetings, political rallies, marches and demonstrations» introduced by the President of Ukraine). The Draft Law proposed by the President was virtually an exact copy of the draft law proposed by the Russian government for the consideration of the State Duma, which caused a wave of protest from Russian human rights activists.
The other Draft Law was proposed by a group of State Deputies, representing parliamentary factions then in opposition. An undoubtedly positive feature of Draft № 5242 was the norm establishing that organizers did not need to notify the appropriate local executive bodies or bodies of local government in written form about a picket by a group of no more than 50 people. No less p instance, the judge may return a case to the prosecutor, if he/she considers that the prosecutor did not check whether «a crime was committed» (Article 228 of the CPC). In practice, this means that the judge sees no evidence in the case of an actual crime, but does not wish to take the decision to terminate the case. He/she therefore sends it back to the prosecutor so that «it gets buried with other cases» or so that the prosecutor «uses some magic» to come up with some kind of crime».
A judge may also send the case to the prosecutor if he/she considers that not all the people involved have been charged (Article 228 of the CPC), or that the charge should «be replaced by a more serious one» (Article 231 of the CPC).
Furthermore, the Draft of the new Criminal Procedure Code allows for cases to be returned to the prosecutor not only at the stage of preliminary investigation, but also when the main hearings have begun. This procedure may take place where the investigator has not informed the participants in the criminal process of the termination of the criminal case, has not shown them the case material, has incorrectly prepared the prosecutors conclusions, has not added necessary material to the latter, or has not sent the case to the prosecutor. The same procedure is foreseen where the prosecutor has not confirmed the indictment or other decision about directing the case to court, or s/he did not submit to the defendant a copy of the indictment or a decree about amendments to it.
As an expert from the Kharkiv Human Rights Protection Group, Arkadiy Bushchenko, notes, this option is excessive for the purpose of removing formal discrepancies (which can happen in any field), while being clearly inadequate for rectifying significant failings. Many grounds for returning a case to the prosecutor during the main court proceedings can be eliminated during the very hearings. For instance, the court might give time for the accused to become familiar with case material and then satisfy his/her claims if deemed justified.
Overall the development of legislation on criminal procedure, especially in the area of reasonable time, should be directed towards strengthening the adversarial principle which forms the basis for proceedings in all European countries, and complies with basic requirements for protecting human rights.
The practice of sending cases back for further investigation should be entirely discarded. It is vital to ensure the presumption of innocence of a person during investigation and when using preventive measures.
Evidence which has not been obtained through the adversarial process should not have legal force and anything which is not proven should be interpreted as being in favour of the accused.
4. Independence and impartiality of the court
The independence of the judiciary and its equal standing in relation to other branches of state power are the hallmarks of a State based on law, in which every citizen has the right to protection of his/her rights and freedoms by an authorized, independent, impartial and objective court.
Independence of the judiciary is a universally recognized right in international law. In adherence to fundamental principles of independence of judicial bodies, stated in UN General Assembly resolutions 40/32 and 40/146 dated November 29 and December 13, 1985 respectively, each member-state takes on the obligation to allocate sufficient funds to ensure that judicial bodies are able to properly fulfil their functions. The independence of the judiciary is guaranteed by the state and is stated in the Constitution or laws of the country. All state and other institutions are obliged to respect the independence of the judiciary and adhere to it (paragraphs 1 and 7).
Paragraph «b» of part 2 of principle 1 of the Recommendations of the Committee of the European Council on the independence of the judiciary dated October 13, 1994 proclaims that legislative and executive powers must ensure the independence of judges and oppose any efforts to jeopardize this independence.
Furthermore, the Vienna Declaration and the Action Plan adopted during the Second World Conference on Human Rights on June 25, 1993 stressed the importance of appropriate funding of all establishments of the judiciary (paragraph 27).
According to the provisions of Article 6 of the European Charter on the Status of Judges «Judges are entitled to remuneration, the level of which is fixed so as to shield them from pressure aimed at influencing their decisions and more generally their behaviour within their jurisdiction…
Remuneration may vary depending on the length of service, the nature of the duties which judges are assigned to discharge in a professional capacity, and the importance of the tasks which are imposed on them, assessed under transparent conditions.
… judges who have reached the legal age of judicial retirement, having performed their judicial duties for a fixed period, are paid a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge»..
The European Court when deciding whether a judicial body is independent considers the following factors:
the procedure for appointment of its members;
the duration of their service in this capacity;
the existence of safeguards that shield them from pressure, and those which provide the given body with the external features of independence.
The European Court of Human Rights has ruled that a judicial body should act independently of both executive power and parties of the case. 
The judicial system and proceedings should be organized in such a way as to prevent any opportunity for exercising pressure on judges nor any justified doubts among the parties to the case as to the impartiality of the judges in making their judgment..
The adoption of the Constitution of Ukraine raised the issue of whether to reject the system of military courts. The existence of such courts within a system of courts of general jurisdiction is not in keeping with the constitutional principles of specialization and territoriality, since military courts carry out civil and criminal court proceedings in military units. Furthermore, judges of military courts have a particularly privileged status as compared with other judges. This raises well-founded doubts as to the independence and impartiality of these judges. The law «On the Judicial system of Ukraine» of 2004, despite proclaiming a single status for all judges, retained the special status of military court judges. These judges are in military service and belong to the staff of the Armed Forces of Ukraine.
These judges salaries and careers depend on their military rank, obtained through the active participation in the military command. A military judge also uses all kinds of military equipment and enjoys the social benefits of servicemen, thus in part being in the keeping of a State body (the Ministry of Defence) which is frequently an interested party in military cases. The special status of military judges discriminates against other judges and raises understandable doubts as to the independence of these courts.
Here we should mention the legal practice of the European Court of Human Rights, which considers that the independence and fairness of a military judge who is on military service and holds the rank of officer, regardless of any safeguards designed to shield him from pressure, must be in doubt, and that the existence of such a situation violates paragraph 1 of Article 6 of the European Convention Among other positive points of Draft Law № 5242 was the identification of a range of activities that did not fall within the force of the Law, such as, for example, weddings, meetings of civic organizations, national festivals, etc, whereas one can assume that in accordance with Draft Law № 5242-2, these would demand such procedure. Despite the fact that the two drafts were submitted by the representatives of different political forces, to a large extent they were similar. Sometimes the difference was largely one of numbers. For example, the Constitution of Ukraine does not foresee any limitation on the right to peaceful assembly either with regard to place, time, duration or organizers. Yet both Draft Laws introduced limitations with regard to all of these criteria on the right of citizens to assemble and freely express their opinion. In all cases the limitations are without court decisions, but solely on the decision of officials of law enforcement agencies, State executive bodies or bodies of local self-government. The Presidents Draft Law introduced restrictions as to places for holding «public actions» (the Drafts term) – no nearer than 50 meters from the Presidents residence, buildings of the Verkhovna Rada, the Cabinet of Ministers of Ukraine, the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the General Prosecutor of Ukraine, diplomatic representatives of foreign states, missions of international organizations, that is, places which are most often targets of pickets or protest actions. The State Deputies Draft law also foresees these restrictions, however in their Draft the distance is 25 meters. The Presidents Draft demanded that organizers give notice of an action 10 days in advance, whereas the Deputies Draft stipulates three days in advance. Furthermore, Article 10 of the Presidents Draft, in contravention of Article 39 of the Constitution established restrictions in time and duration when holding mass events: «A public action may begin no earlier than 9 a.m. and finish no later than 22.00 … The maximum duration of a public action held by the same organizer (s) must not exceed five consecutive hours». Of particular concern to human rights activists was the provision of the Presidents Draft about «authorized law enforcement agencies, State executive bodies and bodies of local self-government» which would have the power to «take decisions to suspend or stop public actions» (Article 14 of the Draft) and «to «move citizens from the place where a public action was being held» (Article 15) at their own discretion, without a court ruling. The Deputies Draft law also contained a similar regulation about the right of representatives of law enforcement agencies «to stop» the holding of peaceful actions. However, on 4 June, 2004 the Verkhovna Rada rejected both Drafts. It is symbolic that the Russian State Duma passed an analogous Draft on the very same day. 2. Overview of violations of the right to freedom of peaceful assembly during 2004 2.1. A general assessment of violations of the right to freedom of peaceful assembly in Ukraine During 2004, there were mass violations of the right to freedom of peaceful assembly by local State executive bodies, bodies of local self-government, law enforcement agencies and courts of first instance A number of pickets, political rallies and demonstrations (in the majority of cases those of the opposition) were groundlessly prohibited by the courts. In dispersing political rallies and marches with social demands (even without court-sanctioned prohibition), the police used force, as a result of which participants received injuries. In some cases, participants of peaceful gatherings were attacked by unidentified individuals, whom the victims believe, not without cause, were connected with law enforcement officers. Despite the fact that in many cases criminal investigations were launched in connection with these assaults, not one of those responsible was detained. A number of organizers and participants in peaceful events were subjected to administrative persecution. There were criminal investigations initiated against participants in protest actions – supporters of both main Presidential candidates – for blocking administrative buildings and transport routes. However, these cases were soon closed. Violations of the right to freedom of peaceful assembly were recorded in virtually all regions of Ukraine. In 2004, Ukrainian citizens became more active in using their right to political rallies and demonstrations, and the political rallies were more hard-hitting in comparison with previous years. However, one should not attribute this sharpening to the election campaign alone. During the first nine months of the year, political rallies with purely social demands provoked a much harsher reaction from the authorities than rallies of a political or pre-election character. On the other hand, from October to December the many political rallies and demonstrations of opponents of the President and regime took place with a relatively small number of violations of the right to peaceful assembly. 2.2. Overview of violations of the right to peaceful assembly during 2004 2.2.1. Categories of mass events Judging by information from the Public Relations Department of the Ministry of Internal Affairs of Ukraine, from January to September 2004 there were 40 thousand mass events in Ukraine, in which more than 25 million people took part. The majority of them were linked to a particular date and took place on State or religious holidays: New Year – 3.8 thousand events with 2.5 million participants; Victory Day – mass events in 7 thousand populated areas with 5 million participants; Day of Kyiv – more than 150 thousand participants; Day of Youth – around 1,100 events and 315 thousand participants; (on Constitution Day there were not many mass events). All these gatherings took place virtually without trouble (with the exception of a few football fans detained after the match «Shakhtar»- «Dnipro» and individuals in a state of alcoholic intoxication). Another category of mass events were political meetings – those which were held by political organizations under political slogans. The pre-election events should also be placed in this category. There is no information about numbers in official sources. The largest of these were demonstrations on 9 March (the birth date of Taras Shevchenko), 1 May, organized by parties of various political leanings, the mass rallies of 4 July in Kyiv when Viktor Yushchenko declared that he would run for President, and in Zaporizhye – when Viktor Janukovych announced his candidacy. According to estimates of the Institute «Republic», there were more than a thousand of such events in various cities of Ukraine in which around 300 thousand people took part. In many cases, course of first instance, on application of bodies of local self-government, banned such political rallies (as a rule – rallies of opposition parties, but in some cases (Lviv) – rallies of the pro-regime Social-Democratic Party of Ukraine (o). 2.2.2. Court restrictions on the right to freedom of peaceful assembly. According to information from the State Court Administration of Ukraine, during 2004 the courts received 308 applications from bodies of local self-government (executive committees) and local State executive bodies (regional State administrations) to limit the rights of href="#_ftn21" name=_ftnref21>
Among other positive points of Draft Law № 5242 was the identification of a range of activities that did not fall within the force of the Law, such as, for example, weddings, meetings of civic organizations, national festivals, etc, whereas one can assume that in accordance with Draft Law № 5242-2, these would demand such procedure.
Despite the fact that the two drafts were submitted by the representatives of different political forces, to a large extent they were similar. Sometimes the difference was largely one of numbers.
For example, the Constitution of Ukraine does not foresee any limitation on the right to peaceful assembly either with regard to place, time, duration or organizers. Yet both Draft Laws introduced limitations with regard to all of these criteria on the right of citizens to assemble and freely express their opinion. In all cases the limitations are without court decisions, but solely on the decision of officials of law enforcement agencies, State executive bodies or bodies of local self-government.
The Presidents Draft Law introduced restrictions as to places for holding «public actions» (the Drafts
term) – no nearer than 50 meters from the Presidents residence, buildings of the Verkhovna Rada, the Cabinet of Ministers of Ukraine, the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the General Prosecutor of Ukraine, diplomatic representatives of foreign states, missions of international organizations, that is, places which are most often targets of pickets or protest actions. The State Deputies Draft law also foresees these restrictions, however in their Draft the distance is 25 meters. The Presidents Draft demanded that organizers give notice of an action 10 days in advance, whereas the Deputies Draft stipulates three days in advance.
Furthermore, Article 10 of the Presidents Draft, in contravention of Article 39 of the Constitution established restrictions in time and duration when holding mass events: «A public action may begin no earlier than 9 a.m. and finish no later than 22.00 … The maximum duration of a public action held by the same organizer (s) must not exceed five consecutive hours». Of particular concern to human rights activists was the provision of the Presidents Draft about «authorized law enforcement agencies, State executive bodies and bodies of local self-government» which would have the power to «take decisions to suspend or stop public actions» (Article 14 of the Draft) and «to «move citizens from the place where a public action was being held» (Article 15) at their own discretion, without a court ruling. The Deputies Draft law also contained a similar regulation about the right of representatives of law enforcement agencies «to stop» the holding of peaceful actions.
However, on 4 June, 2004 the Verkhovna Rada rejected both Drafts. It is symbolic that the Russian State Duma passed an analogous Draft on the very same day.
2. Overview of violations of the right to freedom of peaceful assembly during 2004
2.1. A general assessment of violations of the right to freedom of peaceful assembly in Ukraine
During 2004, there were mass violations of the right to freedom of peaceful assembly by local State executive bodies, bodies of local self-government, law enforcement agencies and courts of first instance
A number of pickets, political rallies and demonstrations (in the majority of cases those of the opposition) were groundlessly prohibited by the courts.
In dispersing political rallies and marches with social demands (even without court-sanctioned prohibition), the police used force, as a result of which participants received injuries.
In some cases, participants of peaceful gatherings were attacked by unidentified individuals, whom the victims believe, not without cause, were connected with law enforcement officers. Despite the fact that in many cases criminal investigations were launched in connection with these assaults, not one of those responsible was detained.
A number of organizers and participants in peaceful events were subjected to administrative persecution.
There were criminal investigations initiated against participants in protest actions – supporters of both main Presidential candidates – for blocking administrative buildings and transport routes. However, these cases were soon closed.
Violations of the right to freedom of peaceful assembly were recorded in virtually all regions of Ukraine.
In 2004, Ukrainian citizens became more active in using their right to political rallies and demonstrations, and the political rallies were more hard-hitting in comparison with previous years. However, one should not attribute this sharpening to the election campaign alone. During the first nine months of the year, political rallies with purely social demands provoked a much harsher reaction from the authorities than rallies of a political or pre-election character. On the other hand, from October to December the many political rallies and demonstrations of opponents of the President and regime took place with a relatively small number of violations of the right to peaceful assembly.
2.2. Overview of violations of the right to peaceful assembly during 2004
2.2.1. Categories of mass events
Judging by information from the Public Relations Department of the Ministry of Internal Affairs of Ukraine, from January to September 2004 there were 40 thousand mass events in Ukraine, in which more than 25 million people took part. The majority of them were linked to a particular date and took place on State or religious holidays: New Year – 3.8 thousand events with 2.5 million participants; Victory Day – mass events in 7 thousand populated areas with 5 million participants; Day of Kyiv – more than 150 thousand participants; Day of Youth – around 1,100 events and 315 thousand participants; (on Constitution Day there were not many mass events). All these gatherings took place virtually without trouble (with the exception of a few football fans detained after the match «Shakhtar»- «Dnipro» and individuals in a state of alcoholic intoxication).
Another category of mass events were political meetings – those which were held by political organizations under political slogans. The pre-election events should also be placed in this category. There is no information about numbers in official sources. The largest of these were demonstrations on 9 March (the birth date of Taras Shevchenko), 1 May, organized by parties of various political leanings, the mass rallies of 4 July in Kyiv when Viktor Yushchenko declared that he would run for President, and in Zaporizhye – when Viktor Janukovych announced his candidacy. According to estimates of the Institute «Republic», there were more than a thousand of such events in various cities of Ukraine in which around 300 thousand people took part.
In many cases, course of first instance, on application of bodies of local self-government, banned such political rallies (as a rule – rallies of opposition parties, but in some cases (Lviv) – rallies of the pro-regime Social-Democratic Party of Ukraine (o).
2.2.2. Court restrictions on the right to freedom of peaceful assembly.
According to information from the State Court Administration of Ukraine, during 2004 the courts received 308 applications from bodies of local self-government (executive committees) and local State executive bodies (regional State administrations) to limit the rights of href="#_ftn21" name=_ftnref21>. The European Court of Human Rights, in considering the case «Dobertin vs. France», noted that the elimination of the National Security Court and Paris Military Court were important changes which should improve the protection of the right to a fair trail, envisaged in Article 6 of the Convention
The level of confidence in the military courts is not high amongst servicemen. Even if one considers the present backlogs in courts, there can be no justification in retaining military courts. The existence of military courts within a system of courts of general jurisdiction is also placed in question by Article 125 of the Constitution of Ukraine which states that «the creation of extraordinary and special courts shall not be permitted».
In view of the above, the government draft introduced into Parliament in 2004, which envisages the abolition of military courts within Ukraines court system, can only be welcomed.
Nonetheless, the Human Rights Ombudsperson, Nina Karpachova believes that the liquidation of the system of military courts may lead to disorganization of the work of the courts as regards cases involving military servicemen, and may negatively affect their position and the guarantees of protection of their constitutional rights. Therefore, the Ukrainian Human Rights Ombudsperson has addressed an appeal to the President of Ukraine, asking him to use all means to stop the liquidation of military courts, which she deems ill-considered.
In Ukraine a judge is initially appointed by the President for a period of five years, and is then elected by Parliament with indefinite tenure. The responsibility for choosing judges rests with a system of qualifying committees for judges and the Higher Council of Justice. The qualifying committees carry out the initial choice of candidates for the position of judge by checking whether each candidate meets the qualifying conditions and by carrying out attestation of the potential judges. The Higher Council of Justice then interviews those candidates recommended, and submits their shortlist to the President for appointment. In Parliament, the candidacy of judges is discussed first in the Committee on Legal Policy.
Such procedure, should independence of judges be properly respected, does not in general pose any threats to court independence, since a judges life tenure does not depend on the will of the President who makes the initial appointment, and thus a judge upon his or her appointment or election ceases to depend upon the appointing or electing authority. In addition, the procedure involves independent collegiate bodies – the qualifying committees and the High Justice Council.
At the same time, one can point to many failings in the procedure for becoming a judge. The progression from candidate to judge depends to a fairly large extent on individual officials of the executive and judiciary, who are involved at certain stages in the process of choosing judges. The vague nature of provisions of the law «On the Judiciary of Ukraine» (2002) provides a lot of scope for abuse on the part of officials. Many provisions of the law can have more than one interpretation which in practice leads to a selection procedure which is not transparent. The State Judicial Administration, presidents of courts, and Administration of the President are also involved in the selection process, as well as the qualifying committees and the High Justice Council. We can expect these institutions to create various barriers at each of the stages of selection.
The authority to prepare materials for appointment and election of judges has been transferred from the Ministry of Justice to the State Judicial Administration, which acts as a mediator at every stage of the documentation processing. One should keep in mind that the State Judicial Administration is an executive body, whose directors are appointed by the President.
The role of court chairpersons in the selection and careers of judges remains significant. Since 2002 some of their functions have passed from chairpersons of courts of appeal to chairpersons of higher courts. Thus, the Chairperson of the Supreme Court makes submissions as to the appointment or election of judges and requests the appropriate qualifying committees to make conclusions as to the feasibility of appointing or electing judges, while the chairpersons of higher specialized courts submit requests as to appointment or election of judges of the respective specialized courts. One should also take into consideration the fact that the chairpersons of courts are appointed and dismissed by the President of Ukraine, which places upon them the need to be loyal towards the Presidential Administration. 
The Law «On the Judiciary of Ukraine» has retained the provision that for qualification attestation, a candidate must provide a reference from his or her place of work, written by the chairperson of his or her court. This means that without such a reference, a judge seeking life tenure may be denied a qualifying attestation, which may also serve as a lever for unlawful influence on a judge by his or her court chairperson.
Professionalism, independence, and impartiality of judges are vital for ensuring just decisions in court cases. The system of selecting judges, the prestige and authority of the position of judge need to ensure the formation of a highly-qualified corps of judges. The deepening specialization of the court and of judges should contribute to the quality of court decisions and to the resolution of cases in reasonable time.
A mechanism for judges responsibility needs to guarantee effective and prompt reaction to cases involving judges self-will or incompetence.
In a growing number of instances people without the sufficient moral and professional qualities required for the high status of a judge are nonetheless appointed to such a position. Judges are often former police officers or prosecutors who prove incapable of shedding their stereotypical thinking based on the point of view of the prosecution.
As mentioned, officials of the executive and judiciary can have a disproportionate influence on the appointment of judges. Unfortunately the requirement for competition when appointing judges has virtually no force. There are less people applying for the position of judge then there are actual judicial seats. The situation, however, is different in the capital or other large cities, where there are fees, albeit not broadcast, for services in facilitating somebodys appointment. No competitive procedure at all is envisaged in the process of election of judges for courts of higher jurisdiction, which, also contributes to corruption in this area.
The system of disciplinary liability of judges is far from perfect; in many cases it allows judges to avoid liability, and in some cases the system for disciplinary liability is used to crack down on a particular judge.
An example of this can be seen in the case of Judge Yuriy Vasylenko, who brought an action against President Kuchma, and as a result instead himself faced disciplinary proceedings.
Presently disciplinary authority is exerted by qualifying committees of courts (both judges of local and appeal courts) and the Higher Council of Justice (for judges of higher courts and of the Supreme Court). These also consider complaints about decisions to bring disciplinary proceedings against judges of local and appeal courts.
However, issues of judicial discipline are not directly tied to qualifications. For instance, the appearance of a judge drunk in the courtroom bears no connection with his professional knowledge but constitutes an administrative offence. That is why the authority to impose disciplinarindividuals, civic or political organizations to peaceful assembly. One such case had not been dealt with since 2003.
Decisions were passed in 269 of such cases. In 229 of the cases, the application was satisfied and the right of individuals limited. In 15, the case was closed, and in 21 cases the applications remained unconsidered. 3 cases were referred to other courts jurisdiction. Thus, in all 308 cases were concluded, of which 3 cases not within the terms established by the Civil Procedure Code of Ukraine.
In the majority of cases, courts of first instance «automatically» satisfied the applications of the local executive bodies, which is demonstrated by the number of such decision in relation to the general number of applications to the court. The applications were satisfied in 74.3 percent of the cases.
In all cases analyzed by the Institute «Republic», such decisions were unfounded or based on unconstitutional principles – the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR» or decisions of bodies of local self-government which run counter to the Constitution of Ukraine. Appeal courts however, as a rule, reversed (in the case of a rally being banned), or softened (in the case of administrative arrest of participants in rallies) the rulings of district and city district courts, which yet again demonstrates the fact that these decisions were unfounded and incorrect.
Furthermore, in the majority of cases, courts of first instance infringed a number of procedural norms. For example, the Romen City District Court held their hearing on 5 August in the presence of only one of the parties – the representative of the Sumy Regional State Administration – and without a representative for the students who had organized a march on foot from Sumy to Kyiv. The court thus listened only to the arguments of the State authorities, which violates the principles of impartiality and of adversarial proceedings.
In many cases the court disregarded the principle of the presumption of innocence: the rights of citizens were restricted – that is, they were punished – not for real violations, but for «the likelihood» (in the opinion of the claimant and the court) of violations, in other words, for violations which the citizens had not committed. Nor were such assumptions substantiated by any facts (any clashes between the parties in the past, danger presented by the participants, etc).
For example, the district courts of Kyiv, Lviv, Mukachevo and other cities from 28 to 30 April 2004, at the application of local State executive bodies and bodies of local self-government withdrew (limited) the right to hold demonstrations and political rallies on 1 May – International Workers Day, a traditional day in Ukraine for holding political demonstrations, of representatives of various – left-wing and right-wing forces: the Ukrainian National Assembly and the Union of Ukrainian Anarchists, the Communist Party of Ukraine and the political block «Our Ukraine», the Progressive Socialist Party and the Socialist Party, the association «Prosvita» and the charitable fund «Rusin women of Transcarpathia». These bans were unprecedented in the recent history of Ukraine for their mass scale: such a number of prohibitions is characteristic more of a state of emergency and one can only perhaps compare it with the number of bans at the beginning of 2001 (the period of protest actions of «Ukraine without Kuchma»).
The grounds given for such court decisions was «the likelihood» of clashes between representatives of different political forces during mass events, and the above-mentioned Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR».
-We would quote a few of these arguments concerning «the likelihood» of violations:
«Its (the mass events) direction indicates a strong likelihood of violations of public order in the place where the event would be held» (the application of the Kyiv City State Administration to the Shevchenkivsk District Court of 28 April 2004, signed by the Deputy Head of the Kyiv City State Administration B. Stichinsky);
-The picket of the Mukachevo Town Hall by two organizations (Ukrainian Social-Democratic Youth and the Fund for Regional Initiatives)« «leads the court to fear that a situation of conflict may arise between them» (the decision of the Mukachevo City District Court of 30 April, 2004, Chairman: O. Kuropyatnyk).
The fact that for the court justification for banning a political rally could be «the likelihood» or «fear» of classes between different political forces during mass events, led to the appearance of a new ‘political technology for the banning of actions by individual political forces. This ‘political technology, which had been applied previously, from 1 May 2004 took on a massive character. After one of the organizations had notified of their plan to hold an event, another organization with different politicaly liability on judges should not belong to the competence of qualifying committees. The difficulty of making a judge liable for disciplinary offences is further compounded by the fact that these bodies do not work on a regular basis, and the periods for imposing disciplinary liability are limited.
As a rule, interference with the course of justice occurs at the initiative of the chairpersons of courts, who have many levers of influence over judges, starting from distribution of cases among judges and ending with decisions as to bonuses.
Legislative guarantees for remuneration of judges in Ukraine do not contribute to the independence of judges. The system of remuneration, where, in the absence of an appropriate law, a judges salary is at the discretion of the President of Ukraine and the Cabinet of Ministers of Ukraine, is evidence of the significant dependence of judges on the Head of the State and on the Government. Some legislative acts regarding remuneration of judges are not published to avoid making this dependence too obvious. To eliminate corruption in judicial bodies and to strengthen independence and impartiality of the judiciary, it is necessary to review the salaries of judges and prepare a draft «On Salaries of Judges and Court Staff».
Low salaries prevent the position of judge being considered prestigious in professional lawyer circles. On the other hand, the opportunities for gaining illegal profit from this post attract those whose aims directly contradict fair and impartial judicial proceedings and decisions.
One should note that judges salaries decreased in 2004, this especially affecting local judges and auxiliary staff, and this created impossible conditions for their activity. For example, the monthly salary of a judge of the appeal court last year was on average around 2,100 UH, whereas this year, judges say that they received 1,700 UH per month. Salaries in commercial courts are much higher. Auxiliary staff in local courts receive 250-300 UH per month, and the salary of newly appointed judges of local courts is about 400-600 UH. 
To create additional safeguards for the independence of judges and to generate an increase in court confidence we should implement at procedural level the institute of trial by jury. The involvement of juries is important first of all because the law allows judges very wide discretionary powers, and the result of the decision on a case is dependent upon the moral assessment of the circumstances (juvenile delinquency cases, cases which determine a childs future, deal with questions of guardianship and care, etc.),. Usually it is not judges knowledge of legislation, but their life experience and general moral level which play a vital role in the correct and fair interpretation of laws.
There is a real need to develop mechanisms of legislative control over the functioning of juries. To begin with, trial by jury should be introduced only in specific categories of cases, for instance, those involving very serious kinds of crimes. The accused should have the right to choose between trial by jury and a panel of professional judges. While both jury and professional judges coexist in Ukraine, it is crucial to separate their functions. The jury in its verdict decides whether a crime was committed, whether it was committed by the accused, whether the accused should answer for the crime, while a professional judge passes sentence in the case based on the verdict of the jury and norms of criminal legislation.
The status of the Prosecutors office also influences the independence of the judiciary. According to the Constitution of Ukraine (Article 121) this status is limited to two functions: prosecution in leanings informed the relevant local body of their intention to hold their own event at the same time and in the same places as the first organization. The court then banned both political rallies, referring to the possibility of classes between different political forces.
Despite the flimsiness of the grounds, the courts in all the above-mentioned cases satisfied the applications of local State executive bodies and bodies of local self-government to restrict the right of citizens to peaceful assembly.
Of course, every demonstration, march or other similar action causes the authorities a lot of problems. However, the European Court of Human Rights has confirmed that Article 11 refers to the positive obligations of the State to defend those who are carrying out their rights to peaceful assembly free of violence from opponents, in particular from counter demonstrations (the case of the organization «The Platform of «Doctors for Life» against Austria, 1985, Paragraphs from 65 to 72). Since both parties have the same right which is guaranteed by Article 11 of the European Convention, where one of the parties is aiming to disrupt the activity of the other, the authorities must in the first instance protect the rights of those who are carrying out their gathering peacefully:
«Any demonstration can irritate or offend those who are against the ideas or demands in support of which it is being held. Nonetheless, its participants must have the opportunity to hold it without fear of physical force being applied by opponents; such fears would hinder them in expressing their opinions on socially important issues. In a democratic society the right to hold a counter-demonstration cannot determine the right to a demonstration. Following from this, the protection of true, effective freedom to hold peaceful meetings cannot lie only in the States lack of interference: the purely negative concept of the role of the State contradicts both the subject and the aim of Article 11» – the European Court of Human Rights states with regard to this decision.
In view of this, the widespread practice of prohibiting peaceful gatherings purely on the basis of the fact that peaceful meetings of two opposing sides will be held in one and the same place, cannot serve as justification for restricting the right to peaceful assembly. Such practice should be deemed to contravene European standards.
Decisions to restrict the right to peaceful assembly are, as a rule, taken the day before mass events which does not allow the organizers the possibility of appealing the decision of district courts before the beginning of the event and, thus, effectively deprives them of the chance to reinstate their constitutional right to peaceful assembly.
Another violation by local State executive bodies, in particular, the Kyiv City State Administration, was the refusal to accept court on behalf of the State and supervision of the adherence to law of bodies that conduct investigative operations, detective enquiry and pre-trial investigation. Provisions of the Draft of the Criminal Procedure Code contradict the Constitution and endow the Prosecutors office with the right to conduct pre-trial investigation (Article 232). It is a contradiction for both pre-trial investigation and supervision over the lawfulness of its activities to be carried out by one and the same body.
In order to prevent possible abuse in carrying out pre-trial investigation, particularly as regards protecting the rights of suspects and defendants, the Constitution removed the right of carrying out pre-trial investigation from the jurisdiction of the Prosecutors office. We should note, however, that transitional provisions of the Constitution temporarily retain pre-trial investigation as a function of the Prosecutors office until a system of pre-trial investigation can be created. Moreover, the wording used in the transitional provisions effectively permits the retention of these powers indefinitely. This does not, however, give grounds for accepting a new code with outdated norms which entirely ignore Article 121 of the Constitution, do not comply with the requirements of competitiveness in judicial proceedings, and which contradict the provisions of Article 6 of the European Convention.
5. «Equality of arms» and adversarial proceedings.
The present Ukrainian system of criminal justice still retains the principal features of the old Soviet model. It is based upon strict centralization, lacks clear values of morality and fairness, and manifests formalism and red tape, which develop into bribery and corruption. Ostensibly declaring the ideals of democracy, in practice this system opts rather for a repressive approach.
The system of criminal justice in Ukraine is at this stage an effective instrument for limiting democracy. It is used for political and economic purposes both at the highest political level, and on local scale. The years of independence have not achieved a satisfactory level of de-politicization of its law enforcement system nor judiciary. In all parts of the country, instances of the dependence of judges are not infrequent. The effectiveness of the activity of legal instruments aimed at ensuring independence of judges is extremely low. Unfortunately, it must be acknowledged that in recent years, there has been little evidence of appropriate activity from judges themselves in standing up for the principles of judicial independence.
The activities of criminal prosecution bodies is characterized by duplication of efforts, and where there is a conflict of interests, departmental considerations prevail over public interest. The delegation of functions in criminal justice does not conform to best democratic practice. At pre-trial stage, the role of the judiciary is artificially downgraded. A prosecutorial approach has become firmly entrenched.
Certain failings are highlighted by lawyer and expert in criminal law and process for the Kharkiv Human Rights Group, Arkady Bushchenko: «In several cases the Criminal Procedure code makes it possible to act in a way that violates standards of independence as regards review of cases by the Prosecutor. For example, according to paragraph 1 of Article 112 of CPC, possible brutal treatment meted out by «a serviceman of the Armed Forces of Ukraine» should, at the first stage, be investigated by the commander of the military subdivision. According to Paragraph 5 of the same Article, an appeal against brutality from the staff of «a corrective labour institution, pre-trial detention centre, corrective labour and treatment centre, and educational and labour centre» will be investigated by the head of respective institution. Only in cases where this official is charged, shall further investigation be conducted by the office of the prosecutor».
The failings of the existing system of procedural consolidation and assessment of legal evidence are compounded by signs of susceptibility of court experts to administrative pressure. Expert establishments maintain close ties with investigating bodies.
The process of safeguarding the principle of competitiveness during trials remains on a very low level. Lawyers do notification from organizers of mass events on the grounds that the working day had ended. For example, in the case of the civic organization, Ukrainan National Self-defence, the notification was not accepted at 17.00 on 30 April, although the working day in the Kyiv City State Administration ends at 18.00. Among other reasons, this can be explained by the lack of legislative definition of the procedure for submitting notification of plans to hold peaceful gatherings.
The majority of organizers of mass events on 1 May 2004 did not adhere to the rulings of the courts, arguing that they were unconstitutional. They were only heeded by the bloc «Our Ukraine» in Kyiv (before the decision of the court on 28 April, having considered the suggestion of the Kyiv City State Administration, «Our Ukraine» changed the form and place where its events were to be held) and by the Ukrainian Social-Democratic Youth and the Fund for Regional Initiatives in Mukachevo.
Despite this, no incidents where the law enforcement bodies placed obstacles in the way of holding these actions were recorded. There were also no clashes between representatives of different political forces, which the local executive bodies and judges had been so concerned about. In particular, there were no confrontations in «problem» regions where such classes had taken place previously – neither in Lviv between communists and nationalists, nor in Donetsk between representatives of «Our Ukraine» and the Party of Regions of Ukraine.
Most court prohibitions were for the rallies on 1 May, however bans continued after this date. For example, the Ordzhonikidze District Court in Zaporizhye banned an event by the opposition bloc «Our Ukraine» on 15 May; The Suvorovsky District Court in Kherson satisfied the application of the Kherson City Executive Committee to limit the rights of the Kherson organization of the Ukrainian Peoples Party and other organizations to hold a rally on 17 June; the Horodnyansky District Court of the Chernihiv region prohibited the Chernihiv organization of the Socialist Party of Ukraine and the Chernihiv Trade Union of Businesspeople from setting up a tent city in the village of Senkivke on 26 – 27 June during the international festival «Druzhba – 2004».
A protest action by education employees in Lviv demanding that State executive bodies carry out the rulings of the courts of the Lviv region with regard to ensuring social payments to educational workers in accordance with Article 57 of the Law of Ukraine «On education», which began on 7 October, involved setting up a tent city (a traditional form of protest actions since the 1990s) near the premises of the election headquarters of Presidential candidate Viktor Yanukovych, the incumbent Prime Minister of Ukraine. On 29 October, one of the initiators of the action, Andriy Sokolov approached the Executive Committee of the Lviv City Council to give notice that it would take place. In response, on 5 October the City Council turned to the local court of the Halytsky District Court in Lviv with an application to limit the right of citizens to hold this action. The Council argued that the organizers of the tent city had not adhered to one of the requirements of the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the organization of meetings, political rallies and demonstrations in the USSR», in accordance with which the initiators of the action must inform local authorities about the event 10 days in advance. Moreover, in the view of the City Council, the teachers action could also be an infringement of the Law on the elections, hampering the work of the regional headquarters of Yanukovych. Such an action would also, they argued, interfere with pedestrian movement and transport. On 7 October, the Halytsky District Court considered and satisfied the claim of the Executive Committee. The participants in the action did not have time to appeal the court ruling (which was given on the day when the action was to begin) and disregarded it. It was not adhered to (and no effort even was made to adhere to it) by the law enforcement bodies and executive bodies.
The Institute «Republic» recorded only two cases where the courts of first instance did not satisfy applications from local executive bodies regarding «limitation of the right to peaceful assembly» from January to September 2004 (the term «limitation of the right» in court decisions usually means simply prohibition): On 19 May the Lutsk City District Council rejected an application from the Lutsk City Executive Committee, and on 9 June, the Leninsky District Court in Kirovohrad turned down an application from the Kirovohrad City Executive Committee. In both cases, the local authorities had been trying to ban actions of «Our Ukraine».
On the other hand, from September to December 2004, «Republic» recorded only two instances of court bans on peaceful gatherings – in Dnipropetrovsk and Lviv (the latter was mentioned above) – however in neither case was the court ruling adhered to, and no repressions against the organizers nor participants in the rallies were applied.
On the other hand, during the final months of the year courts of first instance in the majority of cases did not satisfy the applications of local executive bodies to limit the right to peaceful assembly, deeming there to be no constitutional grounds. Even courts which had previously, «automatically», accepted the call from the local authorities to prohibit peaceful gatherings, now rejected such applications.
2.2.3. Persecution of the organizers and participants of peaceful gatherings
In the majority of cases, political organizations did not adhere to court rulings, considering them to be an infringement of Article 39 of the Constitution of Ukraine which guarantees the right to peaceful gatherings and the police did not use force against them. Nonetheless a number of participants in opposition actions experienced persecution at a later stage.
In accordance with the demands of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, persecution of individuals for their participation in peaceful gatherings is a violation of their right to freedom of peaceful assembly.
On 5 May, two activists of the opposition bloc «Our Ukraine» – Ivan Varchenko and Evhen Zolotaryov – were sentenced by a judge of the Kyivsky District Court in Kharkiv, Volodymir Pletnyov, to 10 and 15 days administrative arrest, respectively, on the basis of Article 185 of the Administrative Offences Code in Ukraine («an unlawful march») during their political action of 1 May «Last shirt for Yanukovych»). After a protest at these decisions was lodged by the Prosecutor of the Kharkiv region, Vasyl Sinchuk, Judge Pletnyov shortened the period of administrative arrest of both Varchenko and Zolotaryov to 3 days. Soon afterwards, by a Resolution of the Head of the Appeal Court of the Kharkiv region, Vasyl Bryntsev, this decision was declared unlawful and annulled.
On 20 May 2004, a resident from Transcarpathia, Andriy Flenko, was detained. Flenko had informed of his intention to picket the Transcarpathian Regional State Administration to demand the implementation of the Resolution of the Verkhovna Rada about the events in Mukachevo from 12 May 2004, and in particular, the resignation of the Governor of Transcarpathia, Risak, the Head of the Regional Department of the Ministry of Internal Affairs in Transcarpathia, Vartsaby and his deputy, Rusin. Despite the fact that there was no court sanction for prohibiting the picket, the activist was detained, and the tents erected in the course of the action were removed. Under pressure from civic organizations, Flenko was soon released.
In Mukachevo on 22 May, Kostyantin Sidorenko, who had previously taken part in protest actions, was detained. On 25 May, the Mukachevo City District Court sentenced him according to Article 185 of the Administrative Offences Code («resisting law enforcement officers») to 5 days anot have sufficient influence on the court to achieve fairness of court rulings, while offices of the Prosecutor severely restrict professional independence of their employees when taking part in trials.
Provisions of the Draft of the Criminal Procedure Code also flagrantly violate the right to defence. Thus, the Draft stipulates that the defending lawyer may become involved in proceedings only after the first interrogation (part 2 of Article 52), or not earlier than the moment when the individual is declared a suspect or actually charged (paragraph one of part two of Article 55). We believe that this directly restricts the constitutional right of each person to defence from accusations and to legal assistance, since the adherence to this right should not depend on such circumstances as the conducting of a first interrogation or the laying of charges. With regard to this issue, the Draft worsens the position of a suspect or accused, in comparison with the current Code of Criminal Procedure of Ukraine which allows for a first meeting with defence lawyer prior to the first interrogation (articles 43 and 43-1).
The procedure for challenging a judge in Ukrainian legislation does not, in practice, meet the requirements of the equality of parties. According to the Civil Procedure Code of 2004, the challenge is considered by the very judge who has been challenged. In corporate and criminal court proceedings, the situation remains intact that the president of the court considers any challenges brought. The first variant raises doubts as to the objectivity of a decision concerning a challenge from the point of view of the fundamental principle: «Nobody can be judge in their own case». After all, a challenge by its very nature is a dispute between a party and the judge as to possible bias shown. The second variant is inadmissible since the president of the court may not have any special procedural rights as compared with other judges. A judge occupying an administrative post in court should not interfere in the decisions relating to cases made by other judges.
Ukraine is in a league of countries with an exceptionally high number of cases of remand in custody at pre-trial stage. The practice of falsifying administrative arrests in order to make the detention of a suspect appear lawful has become common. Those in detention are frequently subjected to unlawful methods of physical and psychological pressure. A confession of guilt from the accused remains the dominant form of evidence, while suspects are often bargained into making confessions by procedural benefits. Evidence is often rigged or destroyed.
The principle of the presumption of innocence, affirmed in the Constitution of Ukraine, is observed in an entirely unsatisfactory manner. Any doubts as to the defendants guilt are more often interpreted not in his or her favour but rather the opposite. It is common practice for law enforcement bodies to inform the media of a persons proven guilt in committing a crime before sentence is passed in court, and even before the charge has been laid in court.
In the last ten years the procedural status of a suspect has become extremely restricted. Suspects are subjected to the same range of repressive measures, including preventive measures, as a person already charged.
One of the dominant ideas in Ukrainian criminal procedure remains that of limited judicial control. In accordance with this, the judge at the pre-trial stage appears only occasionally and is not entitled to confirm or assess court evidence. Having taken a decision about remand in custody of the individual, or about issuing a search warrant, the judge is then kept distant from the case.
An example of a violation of human rights in the context of equality of arms can be seen in the practice of sending cases back from the court for further investigation, and also the introduction in 2001 of the right of the court to authorize the criminal investigation unit to look for evidence as an alternative to further investigation.
The procedure for court review does not ensure adherence to the principle of adversarial proceedings. Evidence provided by the prosecution is more often given attention by the judge than evidence from the defence. The abolition of the principle of continuity of court review in a criminal case has resulted in serious abuses in the court.
Administration of justice was significantly damaged by the rejection of collegial forms of court procedure. The vast majority of criminal cases are heard and decided upon by a single judge. The adjudication rules make it possible for a sole judge to pronounce sentences of up to ten years of imprisonment in all cases. If under the law a certain offence is punishable by a term in excess of ten years a panel of judges will sit only if requested by the accused. Compulsory review by a panel of judges is foreseen only for crimes which allow a sentence of life imprisonment. For eight years now there hasdministrative arrest.
In May, a journalist of the Sumy Regional Television and Radio Company, Kostyantin Yelishevych, was dismissed for having made a speech at a political rally organized by students in Sumy.
On 10 June 2004, the Zarichny District Court in Sumy began its consideration of the case involving Artem Semenchenko, the Head of the Sumy city organization of the opposition Ukrainian National Party and of the regional youth civic organization «Youth of the Sumy region». He was charged with infringements to the procedure for organizing and holding meetings, political rallies, street marches and demonstrations (Article 185-1 of the Administrative Offences Code of Ukraine) during the cultural and artistic ‘extreme festival «Energy of youth», held on 5 June in the childrens park «Kazka» («Fairytale»). On the application of the City Police Department, Semenchenko was accused of having organized a street march at 21.00, after the festival, under the banner of the civic organization «Youth of the Sumy region» through the centre of the city, Independence Square to Soborna Street. However, 22 June, the Zarichny District Court quashed the charge.
There were also other forms of repression against participants in the protest actions of the Sumy students. For example, on 24 September, in the middle of a lecture attended by about 150 people, a student of the Sumy National Agricultural University (SNAU) was informed by the Dean of the Agronomy Faculty, Viktor Kabanets: «We have expelled our main revolutionary and political activist». The expulsion order was signed by the Acting Rector of SNAU, Valery Zhmailov, with the following grounds being given: «In connection with flagrant violations of disciplinary procedure of SNAU and missed lectures which could lead to his falling behind in his studies». Some men in uniform – university guards – then entered the lecture hall and forcibly removed the student from the territory of the university. A few days later, after a query to the Ministry of Education about the above-mentioned events by State Deputy of Ukraine, Valentina Semenyuk, which she made from the tribune of the Verkhovna Rada, Stepanenko was reinstated in the university. Repressions against the students led to a new wave of protest among students and residents of Sumy.
2.2.4. The lack of been concerted effort to not allow the introduction of trial by jury.
The main direction for the development of criminal procedure legislation should be the principle of adversarial proceedings which dominates in procedure in European countries and meets the basic demands for defending human rights. It is crucial that the practice of sending cases back for further investigation be abandoned, and that the presumption of innocence of an individual is maintained when carrying out investigations or when using preventive measures.
Evidence obtained in non-adversarial proceedings should have no legal force, while everything that has not been proven should be interpreted in favour of the accused.
6. The right to Legal Assistance
The European Convention does not clearly state that there must be free legal assistance in civil cases. It has, however, ruled that legal assistance must be provided to meet the interests of justice. Article 59 of the Constitution of Ukraine affirms that «Everyone has the right to legal assistance».
It is up to the judge to determine whether the interests of justice require that free legal assistance be provided to a party in a civil case when s/he cannot afford a lawyer.
If a person accused is entitled to free legal assistance, then this assistance should be practical and effective, not theoretical and illusory.
Legislation regulates the necessary amount of state legal costs and establishes the categories of citizens and cases where benefits are due. However, given the low standard of living in Ukraine, it is financially impossible for the average citizen to pay for qualified legal assistance to prepare a case for court.
Justice cannot be considered accessible to all if the State lacks efficient mechanisms for providing legal assistance. The absence of effective mechanisms for providing legal assistance to the poorest layers of society is a violation of the right to a fair trial. In such a situation, judges in civil cases often provide legal consultation to the parties which creates serious doubts about their impartiality and violates the principle of adversarial parties.
The quality of legal assistance in criminal cases is low, since state fees to lawyers for providing free assistance are extremely low. Lawyers, appointed to defend a person in a criminal court case do not even bother to waste their time collecting the fee. However information from human rights groups suggest that even those funds allocated by the state budget for providing legal assistance are not being used by departments of justice.
The Kharkiv Group for Human Rights Protection approached regional departments of justice and courts of appeal requesting data on the use of budget funding alaction by law enforcement bodies during attacks on participants of peaceful gatherings
Although representatives of law enforcement bodies did not directly use force against participants of peaceful gatherings in the majority of cases, there were some incidents where the participants were assaulted by unidentified individuals and sustained bodily injuries. On these occasions, the police did not interfere and did not stop these breaches of public order.
In many cases criminal cases over assault with intent to injure were opened, however these have not to this day been investigated. All of this gives grounds for assuming that the attacks on participants of peaceful gatherings were carried out by individuals connected with law enforcement bodies or the local authorities.
The European Court of Human Rights has frequently reiterated that the guarantee of the right to freedom of peaceful assembly implies positive obligations on the part of the State to protect those who are exercising their right to peaceful assembly against violence from opponents.
«Any demonstration can irritate or offend those who are against the ideas or demands in support of which it is being held. Nonetheless, its participants must have the opportunity to hold it without fear of physical force being applied by opponents; such fears would hinder them in expressing their opinions on socially important issues». – it states in its ruling on the caslocated for paying lawyers providing free legal assistance in criminal cases. The statistic data received was uninspiring.e «Platform «Doctors for life» against Austria» (1985 Paragraphs 65 to 72).
For example, on 23 October 2004 at about 15.00 in Kyiv, near the Kyiv Regional State Administration which houses the Central Election Commission of Ukraine (CEC) a political rally began organized by supporters of the bloc «Our Ukraine». After it ended, some 100 supporters remained on the square around the premises of the CEC, together with Presidential candidate Viktor Yushchenko and State Deputies from his election headquarters. Around 23.00, a group of young people (according to different accounts – from 50 to 100 individuals), coming from Kutuzov Street and Druzhba Narodiv Avenue, strode up to the people standing near the CEC, on Lesya Ukrainka Square. Conflict arose between the two groups which lasted less than a minute, but left 8 people with bodily injuries. The Department for Contact with the Public of the Ministry of Internal Affairs (MIA) stated that criminal cases in connection with this incident had been launched by detective units of the Central Department of the MIA of Ukraine in Kyiv and offices of the Prosecutor. The State Deputies said that identity cards of law enforcement bodies had been found on the assailants caught.
A slightly different situation arose in Chernihiv on 26 November 2004 where, during a picket of the Chernihiv City Council, both police officers and those taking part in the meeting were beaten up. Encouraged by State Deputy Mikola Rudkovsky, a loosely-controlled crowd attempted to storm the Council building despite meeting legitimate resistance from the police officers who were guarding it. As a result of the actions of the meetings organizers, a fight broke out in which police officers used special equipment (truncheons, light and noise grenades). As a result of the illegal storming of the building, which was instigated by a State Deputy, several police officers received injuries and were taken to hospital. Despite the absolute illegality of the actions of the participants, and particularly those of the leader of the meeting, nobody was brought to justice for violating the law.
On 29 November 2004, in Luhansk, a column of about 70 Yushchenko supporters were attacked by thirty unidentified individuals, armed with baseball bats and metal bars. They began hitting those in the column and taking away mobile phones, video recorders and cameras from journalists. Four people were hospitalized as a result: Yury Motsny, Oleksandr Veliky, Yevhen Savchenko and a Canadian citizen, Silvie Rossel. A criminal case was launched under Part 2, Article 296 of the Criminal Code of Ukraine (for hooliganism). The Luhansk police did not take measures to ensure the safety of the column of Yushchenko supporters, and stood by, making no attempts to intervene. A criminal investigation is now under way, however there is no sign of its being near conclusion. The Ukrainian Helsinki Union for Human Rights has lodged a claim concerning the unlawful actions of the law enforcement officers who neglected their duty to protect public order and who, in our opinion, are not making proper efforts to investigate this crime.
The police also stood by passively when the tents of Yushchenko supporters in Donetsk were taken down on 10 December 2004.
It is also worth mentioning that not one case of direct confrontation between supporters of Yanukovych and Yushchenko taking part in mass events was recorded, even when these events took place next to each other and at the same time (as was the case in Kyiv, Kharkiv, Dnipropetrovsk and other cities).
On 28 November 2004 in Donetsk, Yanukovych supporters broke up a political rally of Yushchenko supporters. Physical force was applied against thirty people, they had eggs thrown at them and were beaten up. The law enforcement officers distanced themselves and failed to carry out their duty. Furthermore, according to some information, they even helped to break up the meeting. A number of representatives of the political opposition were forced to seek medical assistance in hospitals. Yet the police refused to accept their complaints about the assault.
2.2.5. Specific features of violations of the rights of participants of peaceful meetings presenting demands of a social nature
Mass actions wit In Ivano-Frankivsk region 12000 UH had been allocated, of which 210 had actually been spent, leaving 11 790 UH at the end of the year recorded as budget revenue. In the Kherson region, during the second half of 2004, 49 200 UH had been received, of which not one had been spent. The same was found in the Transcarpathian, Chernivetsky regions, and in the city of Sevastopol, where of the 7 500 UH received, none had been spent. In the Dnipropetrovsk region 18 191 of the 107 000 UH received had been used to pay for the services of 249 defence lawyers. Even in Kyiv of the 28 000 UH received, only 7 000 had been spent. One should note that the amounts which are given to different regional departments of justice vary considerably between 7 500 and 165 000 UH.
Modern civil procedural legislation in Ukraine allows the court to free a person from court charges, in particular for legal defence charges. However there remains no effective mechanism for involving lawyers in these cases, nor for paying for their services.
According to the European Court of Human Rights practice a state should guarantee legal assistance when «this is necessary for providing real access to justice or when legislation of member-states requires legal representation in some categories of cases or in cases of complexity of judicial proceedings». To comply with the standards established by the European Court of Human Rights according to the Convention, the vast majority of European Council member-states have developed a procedure for providing legal assistance free of charge or for an acceptable fee in civil and administrative cases.
The right to legal assistance in the interpretation of the European Court is an integral part of a wider notion of the right of access to the court, stipulated by Article 6 of the Convention. 
According to Recommendation № R (93) of the First Committee of Ministers of the Council of Europe to its member-states with regard to effective access to law and justice for the poorest layers of society, dated January 8, 1993, states should facilitate effective access of the poorest to court by providing and covering the costs of legal assistance in all adversarial or non-adversarial proceedings. Member-states are also encouraged to create consulting centres in the areas where poor people live. 
Ukraine should, accordingly, create the conditions which would guarantee legal assistance to individuals whose income is too small to enable them to defend their interests in court. Legal assistance to people with low-income should be granted free of charge or for an acceptable fee not only in criminal but also in civil and administrative cases, where defence of the most fundamental human rights is involved. The state should facilitate the establishment of community bar associations in bodies of local self-government for rendering legal assistance free of charge to members of the community.
All of the above suggests that Ukrainian legislation needs to provide a better regulated system of access to the courts. In certain cases it should also determine liability of those directly or indirectly preventing citizens from turning to the courts to defend their infringed rights. There is also an urgent need for a law regulating the provision of free legal assistance to people with low incomes. 77.5% of judges surveyed agreed that there was a need for such a law.
Any practising lawyer will tell you how «happily» they defend «free» clients, and how «easy» it is later to receive the money owed them from the State budget. With regard to this, perhaps the idea, suggested by court employees, that the best solution for stimulating the provision of free legal aid would be to provide tax relief to those lawyers involved, should be taken seriously (53 % of those questioned agreed).
The Committee on Legal Policy of the Verkhovna Rada is currently reviewing a draft «On Legal Assistance» № 6320 dated November 9, 2004. The purpose of the Draft is to regulate legal relations with regard to mechanisms for satisfying and defending the right of individuals to legal aid. To achieve these aims, the Draft foresees the creation in Ukraine of a single system of legal assistance outlining the sole subjects providing legal assistance (legal advisors), the types of legal assistance, the principles of legal assistance and the bases and measures for liability in cases where the legal assistance was not of adequate quality.
7. Enforcement of Court Decisions
Failure to carry out court decisions is one of the most urgent problems of access to judicial proceedings in Ukraine. Complaints regarding violation of Article 6 of the Convention due to non-enforcement of the decisions of national courts make up the largest number of appeals made to the European Court of Human Rights against Ukraine. These appeals concern the non-enforcement of court decisions in civil cases, most of all, as regards payment of debts from salaries and social payments. The existing mechanisms for enforcement of court decisions have proven to be ineffective. Courts do not have levers of control to ensure that their decisions are implemented.
Most of the cases that are directed from the European Court for communication with Ukrainian Government deal with Articles 6 and 13 of the European Convention on Human Rights and Article 1 of Protocol 1 to the Convention. The subject of this communication is the adherence by State bodies to the above-mentioned documents with regard to the time taken to carry out the decisions of national courts, when a judgment has been pronounced in favour of the applicant, existence of effective means for legal protection when a court decision is not implemented for a long time, and, in connection with this, when the State interferes in an applicants right to peaceful possession of his/her property.
Practice shows that in the majority of cases, violations in judicial proceedings in cases involving the bankruptcy of enterprises which are in debt usually influence the duration of enforcement of decisions of national courts.
The situation is still further complicated by the moratorium on the bankruptcy of enterprises which are partially owned by the State. On the one hand, they do not have the money to carry out the courts decision, yet on the other, they are prevented by the imposed prohibition from selling the property. This ultimately means that decisions made by Ukrainian courts obliging indebted enterprises to pay their debts cannot be enforced which in turn leads to a violation of citizens constitutional rights. The Verkhovna Rada this year considered a draft law to amend the provisions for the moratorium on bankruptcy of these enterprises, however rejected all such proposals.
The European Court paying special attention to the time taken to enforce court decisions in the light of a set of measures taken by a state to accelerate the resolution of internal systematic problems (final resolution on eligibility of decision in case «Sokur vs. Ukraine»; decisions in cases «Piven vs. Ukraine, «Zhovnir vs. Ukraine», «Voytenko vs. Ukraine», «Shmalko vs. Ukraine», «Romashov vs. Ukraine») . The European Court through its decisions declares that state bodies, by not implementing the decisions of the court, have rendered the provisions of Paragraph 1 of Article 6 meaningless.
We should take into consideration that statements on violation of rights were issued after failure to enforce court decisions made by national courts within reasonable time. The time taken to implement court decisions in the above-mentioned cases had varied from 4 to 6 years. The European Court awarded 2,000 to 3,200 Euros for non-pecuniary damage in each of these cases. The amount to be paid as compensah a social message were smaller in number, but passed in a much more heated atmosphere than those of a political nature. The State authorities were harsher in their reaction to such actions. Law enforcement bodies resorted to force against those participating in the actions even in those cases where the organizers had informed the local authorities in advance about the planned action and where there was no court order restricting the right to peaceful assembly or banning the action.
For example, on 15 May, the Kyiv police used force to disperse a picket of the protest action «SOS» taking place near the Verkhovna Rada of Ukraine. The participants in «SOS» – the parents of young people (in their opinion) illegally convicted – had informed the local authorities in time about their planned action and the action had not been prohibited by the court. However the picket (a few dozen older men and women) was broken up. Those taking part received injuries which were confirmed by medical institutions, yet the Pechersky District Office of the Prosecutor in Kyiv refused to launch a criminal case concerning the assault and the instances of law enforcement officers exceeding their authority.
Participants in the «SOS» action were again detained on 17 September while holding a picket near the Administration Offices of the President of Ukraine. However, no charges were brought against those detained and they only had «preventive chats. In a few hours, after the briefing of the Deputy Head of this institution, Vasyl Baziv which took place in the Administration Offices, those detained were released.
The largest number of court bans, police actions with the use of force and cases of persecution of participants occurred during the protests by students of the universities of Sumy, directed against the merger of some higher education institutions, and the appointment of State Deputy, O.Tsarenko, as Rector of the merged university. The students made no political demands and did not represent any political party or Presidential candidate.
However, on the night from 31 July to 1 August, the Sumy police detained more than 20 participants of the student protest who were staying in a tent city on Shevchenko Square. Nine of them were sentenced to one days administrative arrest under Article 185 of the Administrative Offences Code («resisting the police»). Two were detained for 72 hours, but the law enforcement officers could not manage to lay charges of possession of drugs, allegedly found when searching the tent city. At around 12 oclock on 1 August the Sumy police again attacked the tent city, which had been erected after the organizers informed the local authorities of their intention to carry out this form of protest action. There was no court sanction limiting the right of the organizers of the tent city to peaceful assembly, yet the police officers took the tents down. The attack on the student protest tent city took place in the presence of the Mayor of Sumy, Volodymyr Omelchenko.
On 5 August, the Romen City District Court of the Sumy region considered an application from the Sumy Regional State Administration ««to limit the holding of a walk by Sumy students from the city of Sumy to Kyiv», and decided:
«To ban the walk from Sumy – Romen – Kyiv by Sumy students under the title «Student Resistance»
In the morning of 6 August, the Sumy police, referring to the decision of the Romen City District Court, detained around 30 students taking part in the walk from Sumy to Kyiv. All of them were sentenced to one days administrative arrest under the «traditional» Article 185 of the Administrative Offences Code («resisting the police»). One of the participants – a student of Sumy Pedagogical University, Vyacheslav Kobylyakov, was taken to hospital with serious injuries. On both occasions involving detention – 1 and 6 August, the Deputy Head of the Sumy Police Department, Kostyantin Bezsalov, was in charge of the police.
The Ukrainian State authorities were also criticized by a number of human rights organizations over the Sumy students.
On 16 August, one of the organizers of the Sumy students protest actions, Oleksandra Vesnych, with the legal support of the Institute «Republic», lodged a complaint to the Appeal Court of the Sumy region about the ruling of the Romen City District Court from 5.08.04. The complaint points to the incompatibility of this ruling with Article 39 of the Constitution of Ukraine and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as to the violation by the Romen City District Court of a number of procedural norms – consideration of the case in the absence of one of the parties, violation of the principle of equality of arms, and of impartiality during the court hearings. The complaint also mentions that during the walk of the Sumy students there were no breaches of public order, and there was no risk to the health of the population, nor to the rights of other individuals.
The Appeal Court of the Sumy region, having considered Vesnychs complaint, on 8 November reversed the ruling of the Romen City District Court from 5 August. Yet by 2 December the Sumy Regional State Administration had turned to the Supreme Court of Ukraine with a cassation appeal against this resolution, stating that «The Appeal Court of the Sumy region mistakenly concluded that infringements were made in the procedure for resolving issues». The Sumy Regional State Administration asks the Supreme Court to reverse the resolution of the Sumy Appeal Court and to reinstate the resolution of the Romen City District Court. The Supreme Court has yet to consider this cassation appeal.
Several thousand vendors of the «Troeschina» market in Kyiv, in protest at the closing of this market, on 25 August blocked off the transport route across Moskowsky bridge. The Police did not interfere in these events even when scuffles arose between those participating in the political meeting and car drivers. The next day, several dozen protesters were sentenced to 15 days administrative arrest.
On the other hand, protest actions by vendors of the Central Market in Kharkiv, which took place in May, passed off without incident.
A separate place in this category of mass actions should be given to the meetings in Simferopol commemorating the 60th anniversary of the deportation of Crimean Tatars (the estimates of law enforcement officers put the figure of those who took part at 25 thousand), as well as a number of meetings against the war in Iraq, which took place through May and June (Kyiv, Sumy, Khmelnitsky and others) and which were organized both by civic and by political organizations (the Communist Party of Ukraine and the Socialist party of Ukraine, without large numbers of participants. These meetings passed without trouble, and the State authorities took no measures against them.
2.3. Specific features of exercising the right to peaceful assembly during the Presidential campaign (October – December 2004)
In connection with the Presidential elections (31 October 2004), the number of demonstrations, political rallies and pickets in Ukraine increased significantly, as did the numbers of those taking part. Virtually all mass actions were of a political nature, with even actions on social issues taking on a political slant.
Basically political in nature were also the actions of ecologists in Kyiv protesting against decisions of the Kyiv City Council which gave a number of pieces of land in the nature reserve zones of Kyiv – Feofania and Pushcha-Voditsa to be used by politicians of the pro-regime camp (to be fair, one should mention that among these politicians were a few figures of the political opposition.
In all, judging by information from the Public Relations Department of the Ministry of Internal Affairs of Ukraine, from October to November 2004 (up till the second round of Presidential elections on 21 November), hundreds of thousands of people in all regions of Ukraine took part in pre-election mass events. The tion was considerably higher than the actual sum of debt. Thus, legal practice of the European Court shows that the amount of compensation usually depends on the period of delay in implementing a court decision.
The European Court, in the case «Shmalko vs. Ukraine», emphasizes that «Paragraph 1 of Article 6 entitles everyone to address court or arbitration with a claim that deals with any of his/her civil rights and obligations. Thus, this Article proclaims the «right to a trial». The ability to put forward a claim of civil procedure to court is one of the aspects of this right and a manifestation of court accessibility. But this right would be insubstantial if the State legal system was to permit that a final court decision that has binding force could be not enforced if its enforcement might cause damages to one of the parties. Article 6 does not make any sense under the assumption that while describing in detail all the procedural safeguards of the conflicting parties, namely fair public and reasonably timed trial, it does not imply enforcement of court decisions. If Article 6 is interpreted only as a safeguard for access to judicial bodies and judicial proceedings, it might cause situations that contradict the rule of law principle, which is agreed to be respected by all the states that ratified the Convention. Thus for the purposes of Article 6, enforcement of court decision should be viewed as an integral part of «hearings». 
As a result of this, the European Court stated that it was impossible to use State financial difficulties as an excuse for non-fulfilment of a court decision of paramount importance for an applicant. The decision dealt with providing compensation to an applicant. State bodies during 1996-1998 had failed to provide him with free medication that he needed to take on day-to-day basis. This is why the European Court considered that the State bodies had been obliged to follow the courts decision immediately due to age, the health condition and nature of disability of the applicant and to pay all the necessary expenses. The European Court awarded the claimant 1000 Euros for non-pecuniary damage and 300 Euros as compensation for procedural costs.
Usually the European Court adopts a simplified procedure for cases that deal with non-fulfilment of court decisions since they do not contain complex legal issues. This means that, after the Court has agreed that the application is admissible and that its substance is clear, it makes the decision immediately.
«Voytenko vs. Ukraine» is another example of a case when the court decision was not enforced in violation of paragraph 1 of Article 6, Article 13 and Protocol 1 to the Convention. The Government had partially agreed on the necessity to execute the decision made in favour of the claimant, but claimed that the reason for non-enforcement of the decision was lack of budgetary funds and legislative means. In this case, the Court had to consider a delay of four years in implementing the decision. The amount of compensation sum awarded to the clamant consisted of two parts, each of which belonged to different categories of budget classification. Thus the full settlement of one payment of compensation to the claimant in 2001 had not immediately meant any progress on the settlement of the second one. The State did not set aside expenses for the second payment from the Ukrainian State Budget which resulted in a four-year delay period in payment. The Court decided that this four-year delay in justice, aside from violating Article 6, also constituted interference in his right to peacefully enjoy his possessions in the context of paragraph 1 of Article 1 of the protocol to the Convention. The claimant was awarded 2,000 Euros as compensation for non-pecuniary damage and 33 Euros as compensation for court costs.
The lack of proper enforcement of a court decision regarding salary debt also formed the grounds for satisfying the appeal in the case «Zhovner vs. Ukraine» . Here the European Court awarded 3200 Euros as compensation for non-pecuniary damage and 50 Euros in material damages.
Due to the fact that issues involving the non-enforcement of court decisions in Ukraine are under the close scrutiny of the European Court, and that the number of cases directed to the European Court regarding this problem is constantly increasing, there is an urgent need to secure legislative safeguards for human rights protection especially in the area of ensuring that individuals receive compensations awarded to them through court decisions within reasonable time.
Statistics on complaints concerning decisions, actions or omissions of state executive bodies are extremely low, constituting a mere 0.7% of all the cases viewed by Ukrainian courts in 2004. This strange discrepancy is first of all caused by the lack of awareness on the part of the average person as to the procedure for appealing against such actions, since the procedure itself was only introduced on 19 October, 2000 with additions to the Civil Procedure Code, Chapter 31-Г: «Appeals against Decisions, Actions or Omissions of Officials in the State Executive service». Moreover, an appeal with a similar complaint about untimely enforcement of decisions is a prerequisite for subsequent appeals to the European Court, as has been repeatedly indicated in cases against Ukraine.
Accessibility of justice in Ukraine is challenged by non-enforcement of court decisions. Appeals concerning violation of right to a fair trial through non-enforcement of court decisions of national courts form a bulk of all the applications against Ukraine to the European Court of Human Rights. Existing mechanisms for carrying out court decisions have proven to be inefficient. Judges lack control over enforcement of their decisions.
8. Conclusions and Recommendations
The system of justice in Ukraine, despite certain achievements in carrying out court reforms, cannot be considered transparent and accessible. The court system does not meet the needs of judicial proceedings and does not provide sufficient procedural safeguards. Court decisions are often not properly implemented. Judges are neither independent nor highly professional. The Prosecutors office still has wide powers which often duplicate court functions.
In order to improve access to the justice system, effective mechanisms for providing state assistance in bearing legal costs should be introduced; the texts of court decisions should be widely publicized; legal and administrative means should be used to decrease the workload of courts; the State should be made liable for damages incurred by parties to legal proceedings as a result of unlawful actions or the inaction of the courts or court structures; the State should lose its monopoly in implementing court decisions.
In the field of criminal justice, measures are needed to ensure effective enforcement of the right of defence of people detained. The practice of sending criminal cases back from the court for further investigation or to the Prosecutor should be abolished, and trial by jury should be introduced.
The rules for civil proceedings should be amended to bring them into line with European standards.
In order to ensure independence of judges it is necessary to take the following steps: to improve funding of judicial self-government; to introduce a transparent procedure for selection of judges; to reinforce safeguards of independent decision-making by judges, which automatically means preventing chairpersons of courts and executive bodies from interfering with judicial proceedings and to establish viable mechanisms for disciplinary liability of judges.
The prosecutors office should be deprived of the right to supervise the observance of laws, and also to conduct pre-trial investigation.
Thus in order to improve access to justice the State should:
1) compensate damages incurred by parties to proceedings as a result of unlalargest of these were students viche in support of Presidential candidate Viktor Yushchenko (16 October, with around 20 thousand people), the political rally of Yushchenko supporters near the premises of Central Election Commission (23 October, 13 thousand people) and the all-Ukrainian charity socio-cultural action «Youth – against! Youth – for!» (basically an event in support of Presidential candidate Viktor Yanukovych which took place in many cities of Ukraine).
In the evening of 21 November in Kyiv, and on 22 November in many other cities, primarily in the West and Center of Ukraine, actions by supporters of Viktor Yushchenko began. The demands of these actions were the annulment of the results of the second round of elections, in which, according to the Central Election Commission, Yanukovych had won, and the declaration of Yushchenko the winner. The actions were, in the majority of cases, indefinite. Meetings took place not only in cities, but also in many villages (in the West of Ukraine, in the Kyiv, Chernihiv and Sumy regions) where there had been no mass events for decades.
After the Court Chamber for Civil Cases of the Supreme Court of Ukraine ruled on 3 December 2004 that, due to numerous violations of Ukrainian legislation during the second round of the Presidential elections, it was impossible to establish the results of the elections, and that there would be a re-run of the second round, and especially after the Verkhovna Rada on 8 December passed a vote of no confidence in the Central Election Commission, and also approved amendments to the Constitution – the «political reform» – the protest actions by Yushchenko supporters began to abate. However, the last tents – in Kyiv – were only dismantled on the eve of the inauguration of the new President on 23 January 2005.
On the other hand, especially after the re-run on 26 December 2004, which Viktor Yushchenko won, mass actions by supporters of Presidential candidate Yanukovych began in the East and South of Ukraine (these actions were, however, on a smaller scale than the actions by Yushchenko supporters).
In general, during these actions from October to December 2004, the number of violations of the right to peaceful assembly decreased markedly in comparison with the previous nine months. One can explain this as a change in attitude of State executive bodies and bodies of local self-government to the right of people to peaceful assembly brought about through mass pressure on the executive bodies by civic organizations and the participants of demonstrations themselves.
Court restrictions on the right to freedom of peaceful assembly in the last months of the year
Throughout this period the Institute «Republic» recorded only two cases where peaceful actions were prohibited by the courts – in Dnipropetrovsk and Lviv (we have discussed this incident already) – however in neither case was the court ruling adhered to, and no repressions against the organizers or those taking part in the meetings were applied.
Instead, courts of first instance did not, in most cases, satisfy the applications of local executive bodies to restrict the right to peaceful gatherings, not finding any constitutional justification for this. Even courts which had previously «automatically» satisfied such submissions from the local authorities about prohibiting peaceful gatherings now turned such submissions down.
For example, on 28 October 2004, the Zarichny District Court in Sumy rejected the application of the city council to restrict the right to peaceful assembly of supporters of the Presidential candidate Viktor Yushchenko, and the Shevchenkivsk District Court in Kyiv twice – on 6 and 20 November – turned down an application from the Kyiv City State Administration to «limit» the right of Yushchenkos headquarters to peaceful meetings which they were planning to hold on Independence Square in the centre of Kyiv. Previously, in 2002, this very court, on the application of the Kyiv City State Administration, had prohibited an action by the political opposition «Rise, Ukraine!» on European Square in Kyiv.
In its ruling of 20 November, the Shevchenkivsk District Court in Kyiv effectively gave «the green light» for Yushchenkos headquarters on the night from 21 to 22 November to hold a «parallel vote-count in the second round of Presidential elections» action on Independence Square, which in the morning of 22 November turned into an indefinite protest action against the official results of the elections.
Moreover, on 22 November, the Kyiv City Council, whose executive body is the Kyiv City State Administration – the initiator of the court bans on peaceful gatherings mentioned earlier, under the leadership of the Kyiv Mayor, Oleksandr Omelchenko, decided to support the protest actions by Yushchenko supporters on Independence Square. Similar decisions were taken by the majority of city councils on the territory of West and Central Ukraine.
Nor did local councils in Eastern and Southern Ukraine from October to December apply to the court to limit the right to hold peaceful actions of Yanukovych supporters, and as for attempts to gain court restrictions on the right of Yushchenko supporters to hold peaceful meetings, «Republic» recorded only one such attempt, in Donetsk.
On 10 December, several Yushchenko supporters, who had arrived in Donetsk from Kyiv, erected tents near the monument to John Hues, a British founder of Donetsk. Within twenty minutes, the tent city had been demolished by a group of unidentified individuals. A criminal case was opened into the assault on the tent city activists and the journalists present at that moment (which is yet to be investigated), but on the same day, the Executive Committee of the Donetsk City Council lodged an application with the court to limit the right of Ostap Kryvdyk (who had notified the Executive Committee about the planned action) to erect tents on the territory of the city of Donetsk. In its application, the City Executive Committee referred to the ruling of the City Council back in 1999, which regulated procedure for organizing and holding mass events in the city, and the ruling of the Mayors Office from the current year (11 June 2004) on «small architectural forms» with the supplements to it adopted on 25 November, at the height of the protest action. In these supplements, the Donetsk City Council decided: «To introduce supplements to the ruling of the City Council of 11 June 2004, №11/11 «On the approval of Rules for locating small architectural forms on the territory of Donetsk», by supplementing Paragraph 12 of the Rules with the following paragraph: «On the territory of the city it is prohibited to erect small architectural forms, including tents, with the intention of living in them».
On 13 December 2004, the Voroshilivsky District Court in Donetsk began its consideration of the City Executive Committees application to limit the right of Ukrainian citizen, Kryvdyk (whose interests are represented by a lawyer from the Institute «Republic») to erect tents in Donetsk, however during the court hearing, a representative of the City Executive Committee, Maksim Rovinsky, withdrew their application.
Repression of those taking part in peaceful meetings, and police dispersal of peaceful gatherings
From October to December 2004, there was one recorded incident involving the dispersal by the police of a peaceful gathering without court sanction. This incident was yet again in Sumy.
Near the building of the Kovpakivsky District Court in Sumy, on 13 November, an unplanned political meeting took place, with 100 – 150 participants. The reason for the meeting was the detention of Presidential candidate Viktor Yushchenkos observers at polling station № 46. On the same day, 6 people were sentenced to 10 days administrative arrest for «resisting officers of law enforcement bodies» during the night after the first round of the elections, when they demanded that the results of the voting be displayed on the prewful activity or lack of action of judges;
2) stimulate the development of non-judicial means of settling legal issues (notary services, mediation, independent arbitration);
3) promote the establishment of information centres with local courts, giving consultations on the judicial process and disseminating other information on the organizational basics and operation of courts;
4) create conditions for the judiciary to function transparently; to provide public access to texts of court decisions though placing them on websites and making them available in public libraries excluding parts that deal with private and commercial information;
5) introduce mechanisms for providing state assistance in bearing court costs and for providing free or reasonably priced legal assistance to people on low incomes, and also adopt a law «On Legal Assistance» that would regulate which types of legal assistance can be provided, and the grounds and mechanisms for exempting people from payment of fees for legal assistance;
6) improve the system of enforcement of court decisions, de-monopolize state enforcement-related activities, and adopt legislation that would determine mechanisms for implementing the decisions of the European Court of Human Rights;
7) implement judicial control over enforcement of court decisions;
8) bring the powers of the office of the prosecutor into compliance with the Constitution of Ukraine; deprive the prosecutors office of functions of general supervision and pre-trial investigation.
For the creation of a stable system of courts of general jurisdiction it is necessary:
1) in cases stipulated by law to recognize general courts as being specialized in the field of civil, criminal, or other trials;
2) to eliminate the system of military courts;
3) to create a system of administrative courts.
In order to create reliable safeguards for courts it is necessary to:
1) limit the administrative authority of court chairpersons, transferring the authority for appointments from court chairpersons to bodies of judicial self-government;
2) fully separate the administration of justice from support and logistic functions.
In the sphere of criminal justice and with regard to organization of activities of courts, investigation bodies and the office of the Prosecutor, bringing the Ukrainian legal system into line with European standards implies reform both of the relevant structures and of procedures. Specifically, these tasks imply immediate:
1) strengthening of guarantees of judicial independence, which includes a significant reduction in the influence on judges imposed by political factors, the judicial administration and a move to non-deficit funding of courts;
2) securing real independence of court experts by managing forensic and expertise institutions through the Ministries of Justice and Healthcare and by developing within law enforcement agencies a many-layered system of units, laboratories and institutes specializing in narrow spheres of criminal research;
3) strengthening the professional independence of employees of the prosecutors office by partially decentralizing their service and strengthening the procedural status of prosecutors; it is also time to develop discretional components in the system of procedural prosecutor powers;
4) broadening the guarantees for lawyers activity, ensuring real independence of defence lawyers in the judicial process from unlawful influences of judges or prosecutors.
In developing the civil procedural law of Ukraine, it is expedient to bring civil justice into line with European standards, especially as regards review of cases involving aliens, the recognition or enforcement of the decisions of foreign courts.
Administrative justice should envisage:
1) a procedure for settlement of all public law disputes with bodies of power, not only of disputes between individuals and the authorities;
2) public access to the decisions of administrative courts;
3) efficient mechanisms for implementing judicial rulings and relevant control over this enforcement
To improve the status of judges measures should be taken immediately to:
1) make the procedure for selection and career growth of judges as transparent as possible, introduce short training sessions for newly-appointed judges, as well as regular professional development training sessions with an emphasis on human rights;
2) standardize the status of judges of courts of different specialized jurisdictions and develop legislation that would establish a single mechanism of remuneration for judges;
3) establish additional safeguards against ungrounded liability, increase the efficiency of mechanisms for disciplinary proceedings, and introduce relevant institutional changes.
 Available on the European Court of Human Rights website: http://echr.coe.int/Hudoc.htm (original text), on the human rights RUPOR website http://helsinki.org.ua (Ukrainian text), and on the official webpage of the Ministry of Justice of Ukraine: http://minjust.gov.ua.
 Level of fulfilment of Regional Programs of Organized Financing of Judicial Activities during 2003-2005 as on January 1, 2005. State Judicial Administration. Available from State Judicial Administration of Ukraine webpage: www.courts.gov.ua
 Available from the human rights website RUPOR: http://helsinki.org.ua/index.php?id=1085042799.
 Decree of the Cabinet of Ministers of Ukraine «On Adoption of the State Program for Administrative Financing of Judicial Activities during 2003-2005» dated June 16, 2003 // Official Herald of Ukraine. – 2003. – №25. – p. 1197.
 The financing of the judicial system is increasing from year to year – Ministry of Finance, Information Agency IAT «Liga», news published on the Internet, 22 January 2004, 09:17, http://liga.net/news.
 Resolution of a joint extended sitting of the Presidium of the Supreme Court of Ukraine, the Councils of Judges of Ukraine and the Collegium of the State Judicial Administration of Ukraine «Summing up the work of the State Judiciary Administration of Ukraine in 2003, and the priorities for directions in the management of provisions for the activities of the courts in the current year» from 20 February 2004 // Visnyk of the Supreme Court of Ukraine. – 2004. – №5 (45). – С. 9-11.
 Available from the human rights website RUPOR: http://helsinki.org.ua/index.php?id=1098084859
 О.Сорочкін, А.Бурий, В.Разік, З.Сірик. Відповідність законодавства України статті 6 Конвенції про захист прав людини та основних свобод / O. Sorochkin, A. Buriy, V. Razik, Z. Siryk. Conformity of Ukrainian Legislation and Article 6 of the European Convention on Human Rights and Fundamental Freedoms. – Lviv, 2003. p. 137.
 Interim resolution Res DH(2004)14 with regard to court decision of the European Court of Human Rights dated July 25, 2002 (final resolution dated November 6, 2002) in the case «Sovtransavto-Holding vs. Ukraine» (adopted by the Cabinet of Ministers during the 81st meeting of the Ministers on February 11, 2004).
 ECHR, Merith vs. Ukraine, Judgment 30 March, 2004.
 Valid court decisions may not be cancelled.. On-line edition on human rights RUPOR. Available frmises of the polling station. Neither defending lawyers, nor journalists, nor the parents of those detained were admitted to the hearing of the Kovpakivsky District Court , where the observers case was being considered. Later, the individuals convicted at this closed court process were declared prisoners of conscience by the international human rights organization «Amnesty International» – Ukraines first prisoners of conscience.
The participants of the spontaneous demonstration demanded an explanation and prevented the police vehicle which was to carry those detained to the place where they were to be held in custody. A special detachment of the police, «Berkut», together with unidentified individuals in civilian clothes, dispersed the demonstration. Bats were used, as well as teargas. The journalist, Irina Cherny had her dictaphone machine taken away, and was also beaten up. Several participants of the demonstration were hospitalized with serious injuries.
Such action by the police led to a new wave of mass actions of disobedience in Sumy, in particular, Sumy students erected a tent city near the Regional State Administration building, and over 20 students declared a hunger strike. Ukrainian human rights groups, and the Human Rights Ombudsperson, all came out in defence of the observers. According to the ruling of the Sumy Appeal Court, they should have been released on 17 November, however they were held for all 10 days of the administrative punishment. On 21 December 2004, the Kovpakivsky District Court of Sumy reconsidered its ruling of 13 November and concluded that the observers representing Presidential candidate Yushchenko had not committed any violations. The latter have now lodged complaints about their illegal convictions and are demanding compensation.
Some participants of peaceful meetings also experienced repression after the meetings. For example, some participants of the All-Ukrainian Student Viche in support of Presidential candidate Viktor Yushchenko, which took place in Kyiv on 16 October 2004, were, a few days after returning home, accused of various criminal acts (dealing in counterfeit money, theft of mobile phones, etc). Such incidents were recorded in the cities of Chernihiv, Vinnytsa, Sevastopol and Poltava. In all these cases, local courts declared the charges groundless.
In particular, on 18 October 2004 in Chernihiv more than 20 students of local institutes were detained. Some of them, in contravention of current legislation, were not even charged. However some of them were told that they looked suspiciously like people who had, the day before, stolen a mobile phone, or to somebody who, a month earlier, had raped a person in a city park. They were soon released however in the evening of that same day, a third-year student of the Chernihiv State Pedagogical University, Oleksandr Kovalenko, was detained. He was accused of buying and selling counterfeit money, however as a result of pressure from civic organizations and the help of a lawyer, found for him by the Chernihiv Civic Committee for the Protection of Human Rights, the criminal case against him was dropped.
Later – at the end of October in Kyiv and other Ukrainian cities, there were searches on a huge scale of offices and private homes of civic activists who had organized or taken part in the organization of pickets, political rallies and demonstrations. In the course of these searches, the police found nothing illegal.
The Institute «Republic» considers such actions by law enforcement officers to be persecution and intimidation of those taking part in peaceful gatherings.
Applications from representatives of State executive bodies and bodies of local self-government to limit the right to peaceful assembly
While the number of cases where the right to peaceful assembly was infringed between October and December decreased, it should be noted that the heads of State executive bodies and bodies of local self-government continued to call for restrictions of this right and gave instructions to law enforcement bodies to use force to stop political rallies and demonstrations. However, in the vast majority of cases, law enforcement officers, the courts and subordinates of these officials did not follow their instructions.
For example, on 5 November the Head of the Kyiv City State Administration, Oleksandr Omelchenko, told journalists that the local authorities would not allow an action under the banner: «The People shall not be overcome» on Independence Square. He also stressed, referring to the ruling of the Kyiv City Council № 317/418 from 24 червня 1999, that it was not permitted to hold mass actions (with the exception of general national holidays) on Kreshchatik (Street) and Independence Square.
Such applications contravene Article 39 of the Constitution of Ukraine which does not allow for restrictions, as regards place or time, on the right to free assembly, and, according to Article 92 of the Constitution, neither bodies of local self-government nor State executive bodies have the authority to establish any norms which impinge on human rights or limit these rights on their territory. In accordance with Article 39 of the Constitution of Ukraine, it is sufficient to merely inform local authorities of planned peaceful gatherings, and no permission as such is required.
In November 2004, a special session of the Odessa City Council adopted an appeal to the citizens of Odessa. Taking into account heightened tension around the social and political situation in Ukraine, bearing in mind the proposals of the Mayor of Odessa, Ruslan Bodelan and of different factions, the city council suggesting prohibiting the holding in the city of any political rallies, pickets or other actions which would not contribute to stabilizing the socio-economic situation, and to also ban any illegal bodies, committees or other formations (by this was meant civic coordination bodies which were taking charge of organizing and holding demonstrations).
Similar calls were heard from the Head of the Council of Ministers of the Autonomous Republic of the Crimea, Serhiy Kunitsyn. He suggested imposing a moratorium on all political actions in the region «aimed at politicizing the situation».
On 22 November 2004, a joint appeal from the General Prosecutor of Ukraine, the State Security Service of Ukraine, and the Ministry of Internal Affairs of Ukraine, was issued, in which these bodies called on Ukrainians to refrain from mass actions after the second round of Presidential elections. While we have nothing against calls from citizens to take part or not take part in various actions, we must nonetheless point out here we have an appeal from State executive bodies, the so called «enforcement bodies». Moreover, the tone of this appeal enables one to interpret it as a warning to citizens of Ukraine to refrain from exercising their constitutional right to peaceful assembly.
3. Conclusions and recommendations
Despite the lack of national legislation, courts do not in the main apply the practice of the European Court of Human Rights, but use instead norms established by unconstitutional rulings of local authorities. As a result of this, the majority of rulings of national courts, especially those of first instance, contravene Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Local authorities, law enforcement bodies and the overwhelming majority of courts interpret the time period for prior notification extremely broadly. Most of them think that this period should be no less than 10 days, as was used in the USSR. The Constitutional Court has stated that specific time periods should be defined by law, saying that: «These time periods must not limit the right of citizens as foreseen by Article 39 of the Constitution of Ukraine, but should serve as guarantee of this right and at the same time provide the possibility for the relevant State executive bodies and bodies of local self government to take measures to ensure that gatherings, polom: http://helsinki.org.ua/index.php?id=1106064919.
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 ECHR, Rinhaisen vs. Austria: Judgment 16 July 1971
 ECHR rulings on the following cases: Engel and others (1976), Jong, Baljet and Brink (1984), H.C.M.A. (1989) vs. Kingdom of Netherlands; Findlay (1997), Morris (2002) vs. United Kingdom; Incal (1998), Sahiner (2001) vs. Turkey.
 ECHR, Sinclair vs. Turkey: Judgment 28 October, 1998.
 ECHR Dobertin vs. France: Judgment 25 February, 1993.
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 Implementation of basic principles of criminal justice in the Draft of the Code of Criminal Procedure of Ukraine. Available from the website of the CentreforPoliticalandLegalReform:http://cppr.info/?w=r&i=61&d=153.
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 Правова допомога: Зарубіжний досвід та пропозиції для України // Автори-упорядники О.Банчук, М.Демкова. / Legal Assistance: International Experience and Proposals for Ukraine // O. Banchuk, M. Demkova. – Kyiv, 2004, p. 11.
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 Available on the European Court of Human Rights website: http://echr.coe.int/Hudoc.htm (original text), on the human rights RUPOR website(Ukrainiantext)http://helsinki.org.ua/index.php?r=9&t=1.