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Human rights in Ukraine 2011. X. FREEDOM OF PEACEFUL ASSEMBLY

22.03.2012

[1]

1. Introduction

The Constitution of Ukraine guarantees 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.The Constitutional Court of Ukraine in its decree as of April 19, 2001, stipulated that the right for peaceful assembly is “an inalienable and inviolable” right of citizens, and gave the official interpretation of Article 39 of the Constitution, in particular, concerning the conditions for notification of the governmental agencies about conducting of a public event. The Constitutional Court also determined that separate provisions of Article 39 of the Constitution are to be detailed in a separate law, which has not been adopted yet.

The documents concerning freedom of peaceful assembly that are obligatory for implementation include the International Covenant on Civil and Political rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE 1990. Also, the practice of the United Nations Commission for Human Rights and of the European Court of Human Rights is an integral component of the international law in this sphere. Besides, of great importance are the ODIHR OSCE Guidelines on Freedom of Peaceful Assembly.

In Ukraine, the national level documents, which regulate organization and conducting of peaceful assembly and responsibility for violation, are the Constitution, the Code on Administrative Offenses, the Criminal Code, a separate section of the Code on Administrative Legal Proceedings and the above-mentioned decree of the Constitutional Court. Ukraine still has not adopted a specific law that would regulate organization and conducting of peaceful assembly, although both the Council of Europe and the European Union have been long recommending its adoption. Because of absence of such a law, administrative courts groundlessly prohibit peaceful gatherings, their participants are brought to administrative responsibility, law-enforcement agencies are violating human rights in various ways, bodies of local self-government establish various constraints on peaceful assembly concerning the site of conducting or terms of preliminary notification, etc.

Taking into account the course for European integration declared by the state highest authorities, the governmental agencies and bodies of local self-government must create all necessary conditions to guarantee observance of human rights, including the right to exercise the freedom of peaceful assembly. But as the analysis of the data obtained during the monitoring of observance and guaranteeing of the right for peaceful assembly in 2011 shows, the international standards in the area of observance of the right for the freedom of peaceful assembly in Ukraine are barely observed, if ever. These standards oblige the state not only to respect the freedom of peaceful assembly (by not intervening with the right to exercise it), but also place the state under a positive duty to guarantee it and facilitate exercising of this right.

In 2011, according to the Ministry of Internal Affairs data, 160 thousand of peaceful gatherings took place; this is somewhat less than in 2010. But the number of court injunctions that prohibited peaceful gatherings in 2011 was larger than in 2010, and in 2010 it was twice as large as in 2009.[2] Compared to 2010, the law-enforcement agencies engaged in large-scale and systemic violations of the freedom for peaceful assembly even more often: intervening with the purpose of prevention from participation in peaceful gatherings, favoring of one of the opposing sides during an event, groundless cessation of peaceful gatherings and detaining of its participants, police officers’ illegal ignoring of and failure to respond to clashes that emerge between opponents, excessive use of force and special means against participants of peaceful actions and others.

One of the reasons of such violations is the absence of a specialized law. But certain steps forward are being taken. For instance, the Commission for Strengthening Democracy and the Rule of Law, which is a consultative and advisory body under the President of Ukraine, developed a new draft law “On freedom of peaceful assembly”. This enactment was reviewed positively by the European Commission for Democracy through Law (Venice Commission), and it is being currently publicly discussed.

2. Court prohibitions of peaceful gatherings

2.1. Data from the Unified register of judicial decisions[3]

In 2011, according to the data of the Unified state register of judicial decisions, district administrative courts approved 227 orders in cases concerning prohibition of peaceful gatherings.

In 203 cases (89.4%) the courts prohibited peaceful gatherings (in 2010 — in 83% cases). Only in 24 cases (10.6%) courts declined to satisfy claims from the governmental agencies. At the same time, 11 rulings on dismissal of claims (4.8%) were issued by Sevastopol district administrative court, which means, in the entire country (besides Sevastopol), the number of dismissed claims by the governmental agencies to prohibit peaceful gatherings is only 5 per cent.

The top regions with the most cases concerning prohibition of peaceful gatherings in 2011 were: the Autonomous Republic of Crimea, Odeska oblast, Sevastopol, Dnipropetrovska and Kharkivska oblasts. In Donetska, Zaporizka, Kyivska, Lvivska, Odeska, Poltavska, Sumska, Ternopilska, Kharkivska and Cherkaska oblasts, the courts satisfied all claims of the governmental agencies that demanded prohibition of peaceful gatherings.

In Mykolayivska oblast, all judicial decisions were in favor of organizers of peaceful gatherings, in Chernihivska oblast one half of them, in Sevastopol — the largest number of such decisions — 11, what constituted 48% of the total number of judicial decisions.

At the same time, in seven regions, according to the data of the register of judicial decisions, there were no such cases at all — that is, in Vinnytska, Zhytomyrska, Zakarpatska, Ivano-Frankivska, Kirovogradska, Rivnenska and Khmelnytska oblasts. Very few such cases were in Volyn and Chernihiv oblasts.

The practice of courts of appeal of the corresponding levels shows that these courts predominantly leave the courts’ decisions standing, both concerning prohibition of peaceful gatherings and dismissal of such claims. Only two decisions of courts of appeal dismissed prohibition but in both cases it happened already after the dates the peaceful gatherings were supposed to take place.

In 2011, the Supreme Administrative Court of Ukraine approved no decision in favor of organizers of peaceful gatherings.

As the Unified state register of judicial decisions includes not all judicial decisions, this data cannot be considered a valid judicial statistics.

2.2. Territorial aspect[4]

The researchers failed to establish a direct dependence between the number of cases on constraints on peaceful gatherings and public activity of the population in the regions. There are many regions where the number of peaceful gatherings is rather high, and prohibitions are comparatively few (for instance, Lvivska and Odesa oblasts). And Kyiv and Crimea are the most active, but at the same time the number of judicial decisions on prohibition of peaceful gatherings is the highest here.

What is found instead is another dependence: the number of judicial interferences in the freedom of peaceful assembly is higher where the bodies of local self-government adopted local acts that specify the “procedure” of exercising the right for peaceful assembly, in fact abridging the constitutional freedom of peaceful assembly. For instance, they establish the timeframe for notification of the governmental agencies about conducting of a peaceful gathering, limit the events to specific locations (for instance, in Poltava — a location near the stadium, far from the governmental agencies), etc.

Violations of conditions stipulated in these enactments are often being used to file a lawsuit in court for prohibition of peaceful gatherings. In the regions where these provisions were adopted, the number of cases when the local authorities go to court with a demand to constraint the right for peaceful assembly is significantly larger compared to a rather small number of peaceful gatherings. The examples of this are such cities as Dnipropetrovsk, Zaporizhzhia, Kherson.

It should be mentioned that in 2011 the similar provisions in Chernivtsi and Simferopol were contested and repealed by judicial procedure as they were adopted with exceeding of the limits of authority and violated the freedom of peaceful assembly. But the negative influence of such provisions over exercise of the freedom of peaceful assembly is persistent.

2.3. Grounds of judicial prohibitions of peaceful gatherings

None of the grounds used by the administrative courts for prohibition of peaceful gatherings follows from the constitutional norms and international standards. Here are the motifs that are most often used as the ground for a judicial decision[5]:

—  the notification about the gathering was provided too late;

—  there are not enough police officers to protect public order;

—  there are foreign delegations in the city;

—  another request on conducting a gathering at the same time and at the same place was already submitted (“counter-gathering”).

In such cases the reason for prohibition of peaceful gatherings is nothing more but a groundless assumption about possible violation of public order in the course of the event. Following this logic, one can prohibit any sports competitions as they pose a risk of a trauma and thus are a threat to participants’ health.

Such motifs — a health threat — are also traditionally used by the courts, especially for prohibiting gatherings that coincide with holidays. For instance, Volyn district administrative court prohibited a gathering because it “will take place in the location and at the same time as the Easter and May holidays, in connection with what in the central part of the city there will be significant numbers of people what can lead to violations of public order and create a real threat to citizens’ health” (decree No. 14873408 as of April 12, 2011). Kherson district administrative court used similar arguments when it prohibited celebration of the Independence Day:

The public holiday will involve increase in concentration of the population in the city, including on Svoboda Square, that is why if the mentioned action were to be conducted the city authorities would be unable to properly secure protection of law and order, as well as organize proper medical assistance, because in case of conducting of the я action a significant number of officers of the law-enforcement agencies and staff of health care institutions would be engaged in conducting the public holiday. Besides, concentration of the population on the public holiday obliges the bodies of local self-government to secure free movement and leisure of citizens” (decree No. 18140626 as of August 23, 2011).

Reduction of social guarantees, significant cuts in pensions for separate categories of the population led to numerous social protests. To stop them, the authorities were in all possible ways employing courts, which were very accommodating and, as a rule, would prohibit peaceful protest actions based on varied feeble reasons. In Donetsk for the first time in judicial practice the court prohibited a peaceful action on the ground of a threat of a terrorist attack, which had nothing to do with reality. The decision of the court was approved on November 23, but it was executed only on November 27: if it were a real threat of a terrorist attack it had to be executed immediately. Besides, a football match in Donetsk was not canceled although the number of fans there was significantly larger than the number of the picketing participants. The judicial decision resulted in a death of Gennadiy Konopliov, 74, a former miner, while the police were destroying the picketers’ tents.

3. Monitoring violations of freedom of peaceful assembly
by agencies of the Ministry of Internal Affairs

3.1. Preventing people from taking part in peaceful gatherings

During 2011, obstructions for those willing to participate in peaceful gatherings, as the case was in 2010, were taking place on a large scale. This gives the reason to believe that police officers received the corresponding centralized instructions at the level of the Ministry of Internal Affairs and/or from local authorities at the level of district and oblast state administrations.

This idea is supported by the MIA instruction as of January 10, 2011, No. 266/Рт signed by Victor Ratushniak, vice Minister of Internal Affairs, which demands from the heads of territorial branches, MIA Departments and Chief MIA Departments, to tighten control in connection with public actions that are planned for January 17 and 22, 2011, and to collect information about their participants. For instance, Part 2. of the mentioned instruction obliges police officers to take measures to prevent trips of technically defective motor transport carrying participants of events, and Part 6 demands to submit to the Department of Public Safety information on organized trips (that specifies the surnames of seniors, contact phone numbers, departure time, arrival time, type of transportation, number of persons) and mass events planned on the local territory.

Similar provisions are listed in the instruction of Sergiy Popkov, first vice Minister, as of October 10, 2011, No. 14336/Пп on deployment of operational HQs in connection with the fact that some parties and non-governmental organizations from various areas of the political spectrum are planning to conduct mass and other events. According to this instruction, the heads of MIA Departments and Chief MIA Departments are obliged to secure constant collection, analysis and exchange with other law-enforcement agencies of information with the purpose of prevention of violations of public order, timely influence on a course of events, prevention of their escalation during mass events in the capital and in the regions of the country.

To implement such instructions of the MIA of Ukraine, in the oblasts usually a corresponding order of the head of a MIA Department/Chief MIA Departments is prepared. It informs the personnel about the demands of the superiors, as well vests in them the responsibility to secure collection and aggregation of information on mass events, to severely warn organizers, and in case of a corresponding unofficial instruction — to prevent citizens leaving for Kyiv to participate in mass actions. Here is a quote of one of such instructions:

“On May 14, 2011, in the city of Kyiv near the administrative building of Verkhovna Rada of Ukraine the All-Ukrainian action “Day of Wrath” starts at 11 am. To participate in this event significant number of citizens are planning to go to the capital of the state, also in support of this action mass events are planned on the territory of the oblast.

DEMAND:

1.2. Taking into account the current situation, to secure constant control over timely obtaining of information about intentions of departure of the organized groups of citizens or separate persons to the capital of the state or to the oblast center for participation in mass events or alternative actions of protests. Additionally, to conduct with the organizers preventative work on non-admission of administrative offenses, to secure immediate submission of this data to the Department of Public Safety with the specified time of departure, time of arrival, type of transport, number of persons, surnames of seniors and their contact phone numbers.

1.3. During the work meetings with initiators and organizers of such events, to demand from them strict observance of law and order and warn them about the responsibility in case of its violation; if any wrongful are committed, to record them and take response measures.

2. The road police department is to organize a thorough maintenance inspection of motor transport the citizens are taking to the location of the action. To take actions to prohibit departure of technically defective motor transport. To conduct with drivers the briefings on strict observance of the road traffic regulations.”

Obviously, in this way the top officials of the Ministry of Internal Affairs in fact “planned” the violation of human rights — prevention of buses taking people to mass gatherings, collection of information about those going there. Following these instructions, departures of protesters to different cities of Ukraine were prohibited, for instance, on the ground of their buses being in a poor technical state.

According to the police officers, their actions are legal as “preventative influence” is conducted with the purpose of “prevention of offenses” and is one of the tasks of the police, in accordance with Article 2 of the Law of Ukraine “On Police”. Besides, the police are obliged to participate in legal education of the population, and so at conducting such conversations, to give grounds to their actions, police officers refer to necessity to remind about the effective legislative norms and responsibility for their violation.

But we believe that preventative work should be directed at guaranteeing of the right of citizens to conduct peaceful assembly. Instead, under the guise of explaining the legislation and responsibility for its violation, pressure is exercised over citizens, first of all, to force them to give up on participation in mass events. Taking into account the fact that the reason for this kind of work is the intention of people to conduct a public event, any interference of police officers can be qualified as directed at constraining the rights of citizens for participation in peaceful gatherings. And collection of information about participants or organizers of a public event is nothing if not a brutal violation of their right to privacy.

Here there are several examples of interference with participation in peaceful gatherings.

1. According to the message from Mykhailo Volynets, head of the Independent Miners’ trade union of Ukraine, the law-enforcement agencies were using all possible means to disturb the participants of the protest action “Take Ukraine from tycoons, give it back to citizens!” According to him, when the Coalition of representatives of Orange Revolution was campaigning for support of the “car protest” in the city of Kyiv, their car with leaflets was stopped several times by road police officers who tried to arrest the car[6].

2. A similar message came also from Andriy Panayotov, coordinator of preparation for the nation-wide protest march within the framework of the All-Ukrainian public action “Vpered!”, who informed that the local authorities keep pressuring transport operators to refuse to carry citizens to Kyiv for the action protest planned for May 19. Similar messages also came from Khmelnytsk, Chernihiv and other cities.[7]

3. In Crimea, the police officers warned the organizers and participants of a satirical flash-mob “Good afternoon, Vasyl Georgiyovych!” about administrative responsibility for conducting this action. The Republic’s police believe that such events can be conducted only with the permission from Simferopol city council. “Organization, conducting and participation in this action will be considered as a violation of the effective legislation in the sphere of challenging the established management procedure”, — stated the chief department of the Ministry of Internal Affairs of Ukraine in the Autonomous Republic of Crimea and warned that the penalty following this article carries punishment in the form of either a fine starting from UAH 170 or administrative arrest for the term of up to 15 days.[8]6

4. On September 8, the representatives of Dnipropetrovsk city organization “Batkivshchyna” released a statement that the oblast department of road police refused to give a permission to transport operators to leave for Kyiv. According to Maksym Kuriachy, leader of Dnipropetrovsk city organization of the “Batkivshchyna” Party, about 20 transport operators they contacted with the request to organize a trip to Kyiv failed to obtain the permit for leaving from the officers of the oblast road police administration.[9]7

3.2. Giving preference to one party of a mass action

Similar violations often take place when demonstrations and counter-demonstrations, as well as pickets and other actions of civil disobedience are being conducted, when it is possible that at the same place and time several actions are conducted by people with different or opposing ideological views. Rather often this is used by representatives of the political forces supporting the ruling party to make it impossible to conduct their actions for representatives of the opposition and other participants that want to voice criticism of the authorities’ actions or failures to act. The demands of the national legislation and the international practice in such cases limit the coercive actions of officers the law-enforcement agencies to dividing or separating the opposing parties. But officers of the law-enforcement agencies of Ukraine, as a rule, ignore this limitation and often give preference to the political forces that support the ruling party, and at that violate rights of other participants of peaceful events. This has been manifested in a series of events that happened in 2011.

For instance, on May 25, during the student protest action with a demand to dismiss the Ministry draft law “On Higher Education” the police allowed the “supporters” of the draft law “On Higher Education” to stand closer to the Presidential Administration, what pushed the students towards Instytutska Street.[10]8

3.3. Unwarranted stopping of peaceful gatherings
and detention of their participants

This kind of violations committed by police officers has been happening more and more often in the recent time. They are actively restoring the negative practice of drawing up of “template” protocols on detained participants of peaceful gatherings to bring them to administrative responsibility following Article 185 of the Code of Ukraine on Administrative Offenses (blatant disobedience to a lawful demand of a police officer). For a long time this article was very convenient in application as in the judicial practice the guilt can be easily proved through giving preference to the statements of police officers.

But on October 11, 2011, the Constitutional Court of Ukraine ruled unconstitutional the provision of the Law “On Police”, which entitled the police to detain persons who failed to obey the police officers’ lawful demands until the trial. The corresponding decision[11]9 was published on October 13 at the court’s official website. At the same time it happens really seldom that civil servants are brought to responsibility for illegal preventing on their behalf to conducting of meetings, rallies, marches and demonstrations (Article 340 of the Criminal Code of Ukraine) and for violation of the procedure of organization and conducting of meetings, rallies, street marches and demonstrations (Article 185-1 of the Code of Ukraine on Administrative Offenses).

Here are several examples of illegal detentions of gatherings’ participants.

1. Detention of Inna Shevchenko, activist of the women’ s movement “FEMEN”, in the central street of Kyiv — Khreshchatyk, where she together with other participants was conducting a peaceful action on the occasion of the International Hugging Day, during which the participants were hugging everybody willing.[12]10

2. On September 15, several dozens of fighters of the Tactical Assault Group “Berkut” disrupted the trade-fair “Thanks to people of Donbass” organized by the company Prostoprint in 5 minutes after it started on Maidan Nezalezhnosti in Kyiv. The organizers of the action submitted to Kyiv City State Administration a request for conducting the event and were granted the corresponding permission. But in 5 minutes after the fair opened with about 200 persons around, several dozens of “Berkut” fighters surrounded the action organizers. At that Denys Oleynykov, organizer of the fair and owner of the company, found himself outside the ring, in the crowd of the “audience” of this happening, and all the employees of his company together with the products they brought for the fair were surrounded.[13]11

3. In Donetsk oblast, the police detained a group of retired women who were standing on the road President Victor Yanukovych was taking from Donetsk airport to Makiyivka and who intended to draw his attention to their problems with their hand-made poster. The press office of Donetsk city department of the police confirmed: “Yes, they are detained and are staying in Kyivsky rayon department. The posters they prepared are offensive to the President and thus were seized. Now a protocol is being drawn up following Article 185-1 of the Code of Ukraine on Administrative Offenses.” What can you say — the police is rather original in their interpretation of some women appearing in the street as a violation of the procedure of organization and conducting of meetings, rallies, street marches and demonstrations.[14]12

4. On September 17, in downtown Donetsk the police and anonymous uninformed people were detaining participants of the action conducted by the organization “Patriot Ukrainy” /’ Patriot of Ukraine’ / together with fans of football clubs. After the action participants walked for about 500 meters, the police officers came up to them and claimed that this political action “was not declared” and that it had to be stopped, and then detained about 10 persons. They were kept for a couple of hours in Voroshylovsky district department of internal affairs and then were allowed to go.
For the seven most active participants of the action, protocols were drawn up following Article 185-1
of the Code of Ukraine on Administrative Offenses: “violation of the procedure of organization and conducting of meetings, rallies, street marches and demonstrations”.[15]13

5. On October 12, 2010, in Lviv, on 11.30 till 12.40 the non-governmental organization “Vartovi Zakonu” was picketing in front of the prosecutor’ s office with the demand to investigate the malversations in the sphere of housing maintenance and utilities under the motto “Get rid of corruption in the prosecutor’ s office!”. On October 13, the court prohibited the non-governmental organization “Vartovi Zakonu” to conduct picketing of the prosecutor’s office every Tuesday, starting from October 19, 2010. During the peaceful gatherings, no violations of public order were registered, what was confirmed by the numerous videos made at the event.

Despite this, police officers demanded to stop the picketing and to send the organizers over to the rayon police department. They explained their demands by the fact that the organizers failed to obtain the permission for conducting a peaceful gathering. On October 14, two organizers of the picketing, Oleksiy Verentsov and Igor Taniachkevych, were detained by the police, taken to the court, which sentenced them to three days of administrative arrest for blatant disobedience to the lawful demand of the police and violation of the procedure of organization of peaceful gatherings (Articles 185 and 185-1 of the Code on Administrative Offenses).[16]14 The lawyers of the Ukrainian Helsinki Human Rights Union prepared and filed a petition to the European Court on violation of Articles 5 and 11 of the European Convention. This petition is being considered by the Court as a matter of priority and already by the middle of 2011 it went through communication. We can expect a positive court decision for the applicants as early as in 2012.

3.4. Unlawful failure by the police to respond to scuffles between opponents

As a very illustrative case of this we can mention total inaction of the police on May 9, 2011, after the official events near the hill of Glory and Mars Field, when scuffles took place between representatives of the electoral association “Svoboda”/’ Freedom’ / and representatives of “Russki Mir”/’ Russian Unity’ / and “Rodina”/’ Motherland’ /. According to the data of “Svoboda”, two members of this organization were hospitalized. One of them, born in 1983, was shot in a leg, the other, born in 1988, was wounded in the head, he was diagnosed with a concussion.[17]15

During the rally of the Communist Party of Ukraine, which was held on Maidan Nezalezhnosti on November 7, representatives of the electoral association “Svoboda”, despite the prohibition issued by Kyiv district administrative court, tore a red flag. This caused a fight between “Svoboda” men and Communists. When the column was marching towards Maidan Nezalezhnosti, representatives of “Svoboda” tried to stop them several times. They were throwing various things, eggs in the direction of the Communists’ column.[18]16 The police failed to respond in any way to these actions committed by representatives of “Svoboda”.

3.5. Excessive use of force and special means against participants of peaceful gatherings

Analysis of the police’ s actions gives reasons to believe that use of force and special means against participants of peaceful gatherings by officers of the law-enforcement agencies is not common. Mostly, the police are trying to keep to the strategy of protection of public order and adequate tactics of responding to manifestations of aggression.

At the same time, there were several cases of police officers’ inappropriate use of special means. For instance, during the events that took place on August 24 in downtown Kyiv, dozens of participants of the march of the opposition supporters got hurt because the fighters of the police Tactical Assault Group “Berkut” fired tear gas. On the next day, on August 25, the capital city police confirmed the fact that when the opposition supporters tried to break through the police cordon some of the “Berkut” fighters fired some kind of spray. But, as the representative of the main department of Ministry of Internal Affairs worded it, it was unknown what gas exactly was fired.

On September 22, during the action of protest against the policy promoted by Dmytro Tabachnyck, Minister of Education on Sofiyska Square in Kyiv several insignificant scuffles happened between the fighters of the Tactical Assault Group “Berkut” and participants of the peaceful assembly. As a result, four of the most active protesters were detained. Before this, the police surrounded the equipment brought by the action organizers and prevented them from taking it back.[19]18

This topic is especially urgent in connection with the next European football championship “Euro-2012”, which is to be held in Ukraine, as it demonstrates the law-enforcement agencies’ ability to secure safety of citizens during the championship without violation of their rights.

As it is known, on the Internet the information about the event, in the course of which the Tactical Assault Group “Berkut” conducted detention of fans of the football club “Tavria”, got spread together with the photos. As the fans themselves recounted, it was not enough that after the match they were not allowed to leave the stadium for an hour with no reason whatsoever: they were groundlessly manhandled. At the sector exit they were surrounded by “Berkut” fighters who closed the ring and did not let anyone out of it. After that, they used rubber truncheons to force the fans to go towards the stadium gate. About 50 persons were body-searched and sent to the police.

3.6. Persecution of participants of peaceful gatherings after the event was conducted

With the purpose of reducing citizens’ involvement and activity concerning participation in mass actions, rather often the authorities are looking for an occasion to take revenge against participants of actions and protests after they are over.

For instance, on May 19, in Kyiv the All-Ukrainian civil action of protest “Vpered” took place. After the event, the Coordination council of the mentioned action issued a statement that the authorities were increasing the pressure on the action activists. As it was emphasized in the statement, in Alchevsk the controlling agencies increased the pressure on M.Oleksiuk, coordinator of the All-Ukrainian civil action “Vpered” and trade union activist[20]19. “Oleksiuk himself on numerous occasions appealed to both the city and oblast prosecutor’ s offices with complaints for illegitimate actions of the controlling agencies. But there was no response from the law-enforcement agencies”, — informed UNIAN[21]2.

In Chernihiv, O.Varnakova, head of the trade union of enterprisers of Chernihiv oblast and member of the coordination council “Vpered”, was threatened that she would be charged with criminal charges. in Kryvyi Rih, immediately after the Spring protest march the administration of the local sanitary and epidemiological agency organized an unscheduled inspection at the market, enterprisers at which were actively supporting the action of “Vpered”, and made an attempt to close down 10 stores owned by people who “by chance” turned out to be trade union activists.

Similar cases happened also after the march of the opposition during celebration of the Independence Day in the city of Kyiv. After the peaceful event was over, the investigation department of the MIA department in the city of Kyiv detained two participants of the action (Article 115, the Criminal Code of Practice — detention by the criminal investigator of the person suspected of committing a crime) and initiated against them criminal cases according to Part 3, Article 296 of the Criminal Code of Ukraine (hooliganism).

The office of liaison issued the following statement in this regard:

“Taking into account the fact that blatant violation of public order was taking place based on the motifs of sheer disrespect to the society (inappropriate mottoes, calls to disregard demands of the court and so on) and was connected to resistance to the representatives of the authorities who were on duty protecting public order, in accordance with the above-mentioned Article, these activists may serve a term from two to five years.”[22]

4. Recommendations

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

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

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

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

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

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

7. Pass the draft law on holding peaceful gatherings drawn up by Ukrainian human rights organizations in which the case law of the European Convention for the Protection of Human Rights and the positive practices in democratic countries are taken into consideration.

 

 

[1]  Prepared by Yevhen Zakharov, KHPG on the base of research of the administrative courts practice on cases concerning restriction of right to peaceful assembly, provided by the Center of Policy and Law Reforms (Roman Kuybida, Maksim Sereda), and monitoring freedom of peaceful assembly, provided by the Association of Ukrainian Monitors of Observance of Human Rights by Law-Enforcing Organs (Vadym Pivovarov and others).

[2]  Roman Kuybida. Prohibiting meetings, courts used the Edict of the soviet times. Gazeta.ua, December 6, 2011.

[3]  Maksim Sereda, http://pravo.org.ua/index.php/2010-03-07-18-06-07/adminyust/488–2011-

[4]  Roman Kuybida, Maksim Sereda. Peaceful gatherings: year of prohibitions // Juridical review of Ukraine. — 2012. — No. 1–2 (862–863). — С. 18–19, http://pravo.org.ua/index.php/2010-03-07-18-06-07/adminyust/465-2012-01-16-16-55–52.

[5]  Roman Kuybida. Prohibiting meetings, courts used the Edict of the soviet times. Gazeta.ua, December 6, 2011.

[6]  http://umdpl.info/index.php?id=1301039762

[7]  http://umdpl.info/index.php?id=1305659268

[8]  http://umdpl.info/index.php?id=1313152982

[9]  http://umdpl.info/index.php?id=1312788317

[10]  http://dyvensvit.org/osvita/217-osvita-statti/3752-studentskyj-ruh-dvi-akciji–dva-sposoby-zhyttja

[11]  http://ccu.gov.ua/uk/publish/of Article/158601

[12]  http://vpg.org.ua/2011/01/blog-post_16.html

[13]  http://umdpl.info/index.php?id=1316165543

[14]  http://umdpl.info/index.php?id=1313742357

[15]  http://umdpl.info/index.php?id=1316420953

[16]  http://pravotoday.in.ua/ua/press-centre/publications/pub-349/

[17]  http://galinfo.com.ua/news/87455.html

[18]  http://ukr.obozrevatel.com/news/svobodivtsi-na-hreschatiku-pobilisya-z-komunistami.htm

[19]  http://umdpl.info/index.php?id=1316718183

[20]  http://govpered.org.ua/index.php/news/109-tisknaativistivvpered

[21]  http://ukrainianweek.com.ua/News/23480

[22]  http://ura-inform.com/uk/politics/2011/08/30/protest

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