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Can the new version of the law on peaceful assembly make a difference?

12.06.2012    source:
Roman Kuybida, one of the members of the working group on the Law on Peaceful Assembly believes that progress has finally been made and that the law if passed could improve the situation with freedom of assembly

Roman Kuybida, Deputy Head of the Centre for Political and Legal Reform has recently been part of the working group formed to make important changes to a controversial bill on freedom of peaceful assembly.   Over the last four years, he says, Draft Law No. 2450 On the Procedure for Organizing and Holding Peaceful Gatherings has aroused a lot of criticism, as well as two critical assessments from the Venice Commission.

In March this year, the Verkhovna Rada returned the bill for a repeat second reading, with a larger number of representatives of civic society included in the working group on amendments.

He considers that the version that they have achieved, while not ideal, can change the authorities’ attitude to the fundamental human right to freedom of peaceful assembly. It is important, he stresses, that the authorities stop seeing meetings as a threat and that they recognize their role as indicators of social problems that need to be resolved.

The draft bill was considered on 6 June by the Verkhovna Rada Committee on Human Rights, National Minorities and Inter-Ethnic Relations which recommended that parliament adopt it.

He points to the following ways in which the reworked bill differs from its predecessors:

 “The working group agreed that the law is aimed at ensuring freedom of peaceful assembly and restricting interference with exercising this freedom, and not regulation of the procedure for holding peaceful gatherings, and not protecting the population or the authorities from peaceful demonstrators.” The new draft bill is thus to be called “On Freedom of Peaceful Assembly”.

Notification of a planned meeting should now serve as a signal for measures to be taken to ensure safety, not as time for the authorities to organize a court ban.

The period required for notification has been halved, with it now being no less than 2 working days before the beginning of the meeting.

However even this period was of concern to the members of the working group from the Ukrainian Helsinki Human Rights Union and the Movement For Peaceful Protest.  They proposed 12 or 24 hours. Roman Kuybida says that in the present conditions of court bans, including over not notifying in enough time, he sees the issue as relevant.  He believes, however, it will cease to be so critical since the draft law does allow for spontaneous peaceful gatherings, i.e. gatherings caused by an event which could not be foreseen and therefore notified of. On the other hand, the authorities can be notified even by phoning 102 of such a spontaneous meeting and from the moment they are told, the authorities bear responsibility for ensuring the safety of those taking part and of public order.

In addition, failure to notify at all or within the stipulated timeframe cannot be grounds for any restrictions since the gatherings are peaceful.

Nor can such failure to notify at all or within the stipulated timeframe be grounds for administrative liability.

Unfortunately the transitional provisions do not contain amendments to the Code of Administrative Offences, with Article 185-1 which is the most repressive norm still intact, This makes it possible to bring administrative proceedings, even impose administrative arrest (i.e. imprisonment) for so-called “unauthorized meetings”.

On the other hand, Roman Kuybida notes, an hour before the Parliamentary Committee’s meeting, Yury Miroshnychenko tabled in parliament a draft law which would make amendments to some laws on peaceful assembly.  Most of the provisions were also drawn up by the same working group.  If both are passed and come into effect, most of the problems will be removed.

A progressive feature of the draft law is that peaceful gatherings may take place in any public place.  At present the authorities quite often breach the Constitution by passing local acts restricting where meetings can take place.

The draft law now suggests a list of places with no public access.  Unfortunately however the list is not exhaustive and the possibility is envisaged of other laws establishing other such restrictions. Kuybida says that this does not promote legal clarity since it makes identification of such places harder.

He says that it is impossible that the provisions of the law are aimed at reducing the number of applications to the court regarding restriction of freedom of peaceful assembly.

The constitutional grounds for applying to the court for a ban on a peaceful gathering have been set out in more detail.

The recent appeal from the Ukrainian Helsinki Human Rights Union states that The law must not allow any grounds for restricting peaceful gatherings aside from those set down in Article 39 of the Constitution.  There should be no provision allowing for restriction of the right to peaceful assembly on the grounds of “the imposition by decision of the Cabinet of Ministers on the relevant territory of quarantine in accordance with the Law on Protection of the Population from Infectious Illnesses, if this envisages the possibility of restriction by the court of freedom of peaceful assembly in order to protect the population from epidemic (outbreak) of a particularly dangerous infectious illness”, since this is in breach of Articles 22, 39, 64 of the Constitution, by reducing the scope and content of this right.

At least with regard to the provision about quarantine, this does not appear to have been heeded.

Roman Kuybida lists them, ending with “the gathering is aimed at obstructing the exercising by others of their rights and freedoms” and says that only this last involves a fair degree of value judgement.  He points out that the courts should interpret this in line with European Court of Human Rights case law. 

The fact of obstruction merely because a large number of people will be gathered is insufficient. Restrictions are only warranted of meetings aimed at obstructing others from enjoying their rights and freedoms, i.e. by physically preventing believers from entering a church. In fact, the draft law envisages ways around a total ban even in such situations, Roman Kuybida says.  For example, it can restrict the amount of time the protesters can stand there in order to enable believers to enter after the protesters have expressed their views.

Importantly, the draft law does not allow peaceful assembly restrictions on the grounds that another is planned, i.e. counter-demonstrations, or concerts etc. These are the grounds at present most often used for banning peaceful gatherings.

All of this, Roman Kuybida writes, should make it possible for judges to refuse to take on themselves responsibility for public order when this in fact lies with the law enforcement agencies’

The draft law also stipulates that if an authority wishes to apply to the courts, it must initiate negotiations with the organizers of the meeting objected to and attempt to remove the grounds cited for restricted peaceful assembly.

Roman Kuybida believes that adoption of the draft law could prove an important step towards overcoming present repressive practice by the Ukrainian authorities. He stresses that work will also be needed to educate those involved in implementing the law.

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