Defending the right to peaceful assembly
Oleksandr Severyn from the Maidan Allianceof an important explanation from the High Administrative Court and a court victory over a worrying relic of the Soviet past. As reported on many times, local authorities in independent Ukraine continue to pull out a decree from Soviet times in order to justify unconstitutional restrictions on freedom of assembly.
Unlike Ukraine’s Constitution, the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR” establishes a permission-based system for peaceful assembly and stipulates that applications must be filed 10 days before the planned gathering. These restrictions run counter to practice in democratic countries, but they are also simply invalid being based on a decree issued by a non-existent country, superseded by Ukraine’s Constitution.
Oleksandr Severyn reports that at the beginning of 2012 13 city councils of regional centres responded to Maidan information requests by saying that when considering notification of plans to hold peaceful gatherings, they are guided by this same defunct Soviet decree. He adds that the Justice Ministry has at least twice suggested that the decree is valid, and the courts continue to cite it.
On 21 May 2012 the High Administrative Court issued aon administrative court practice in applying legislation during cases in 2010 – 2011 on the right to peaceful assembly. In Item 2 of the Plenum’s Resolution from that day, the High Administrative Court finally states unequivocally that “in case law when examining cases pertaining to restriction of the right to peaceful assembly, there have been cases where the Procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR established by Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 has been applied. This approach is wrong.
Since the norms of this Decree establish a permission-based (registration) procedure for holding peaceful gatherings and give the authorities and bodies of local self-government the right to ban them, while the norms of Ukraine’s Constitution envisage notification procedure for holding gatherings (through informing the authorities) and give only the court the authority to ban a peaceful gathering, the said act should not be used by courts in resolving cases of the category under review”.
The Kyiv Administrative Court of Appeal allowed the appeal lodged by Oleksandr Severyn and his colleagues against a prohibition ruling from the Kyiv District Administrative Court. It agreed with their argument that the Decree runs counter to Ukraine’s Constitution since it establishes a permission-based procedure, that it applies to the holding of gatherings in the now dissolved Soviet Union. They pointed out that according to Article 19 of the Constitution the authorities and bodies of local self-government may only act in accordance with the Constitution and Laws of Ukraine.
Severyn writes that while Ukraine does not have precedent law, members of the public who wish to challenge unlawful restrictions would be advised to refer to the above mention judgements.
He adds that it is to be hoped that the High Administrative Court will carry out Item 3 of the Plenum’s Resolution and “Recommend that the President of the High Administrative Court creates a working group to prepare a draft resolution of the High Administrative Court Plenum on Court Practice by Administrative Courts regarding Examination and Judgements regarding the Exercise of the Right to Peaceful Assembly (rallies, meetings, processions, demonstrations, etc).”
Severyn notes that unfortunately courts are also issuing rulings restricting the right to peaceful assembly not only of specific respondents, but to an indefinite group “all other individuals exercising their right to peaceful assembly”. The absurdity of this, he says, is clear.