war crimes in Ukraine

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Long-needed ECHR judgement on freedom of peaceful assembly in Ukraine

Given the ever-increasing number of peaceful protests banned by the authorities, Strasbourg’s judgement could not be more appropriate. The Court noted the “20-year legislative lacuna concerning freedom of peaceful assembly” and stressed the need for urgent reform

Over the last three years court bans of peaceful protests have become worryingly frequent, and the use of large contingents of Berkut riot police almost standard

Given the ever-increasing number of peaceful protests banned by the authorities, the European Court of Human Rights Chamber Judgement on 11 April could not be more appropriate.  The Court noted the “20-year legislative lacuna concerning freedom of peaceful assembly” and stressed the need for urgent reform.

The case has been reported here many times. In October 2010 Oleksiy Vyerentsov was sentenced to three days administrative detention for holding a demonstration without permission, even though such permission was not required by domestic law.  The initial ruling from the Halytsky District Court in Lviv was upheld by the Lviv Court of Appeal with both arguing that Vyerentsov had held the protest without permission, despite the fact that the Constitution stipulates only notification, not permission.

Oleksiy Verentsov was represented in Strasbourg by Volodymyr Yavorskyy who is now a member of the Ukrainian Helsinki Human Rights Union Board (and was its Executive Director in 2010).

The Court found unanimously that there had been:

a violation of Article 11 (freedom of peaceful assembly);

a violation of Article 7 (no punishment without law)

a violation of Article 6 §§ 1 and 3 (right to a fair trial).

The Court found that the Vyerentsov case disclosed a structural problem, namely a legislative lacuna concerning freedom of assembly which has remained in Ukraine since the end of the Soviet Union.  It noted the existence of only one document establishing procedure for holding demonstrations, the 1988 Soviet Decree which it said is not generally accepted by the Ukrainian courts as still applicable.

“Therefore, under Article 46 (binding force and implementation), the Court invited Ukraine to urgently reform its legislation and administrative practice to establish the requirements for the organisation and holding of peaceful demonstrations, as well as the grounds for their restriction”.

While acknowledging that time was needed given the transitional period Ukraine has been going through, however more than 20 years cannot be considered justified.

The full judgement can be found here.

The following are the facts as presented on the ECHR’s press release

The applicant, Oleksiy Oleksandrovych Vyerentsov, is a Ukrainian national who was born in 1973 and lives in Lviv (Ukraine). On behalf of a human rights NGO, Mr Vyerentsov notified the Lviv City Mayor that he would hold a series of demonstrations over several months to raise awareness about corruption in the prosecution service. On 12 October 2010, he organised a peaceful demonstration during which he was called aside by police officers who eventually let him go.

On 13 October, following a complaint that had been previously lodged by the local council, the Lviv Administrative Court issued a decision prohibiting the holding of the pre-announced further demonstrations as from 19 October. The same day,

Mr Vyerentsov was invited to the Galytskyy District Police Station, where he was accused in particular of breaching the procedure for organising and holding a demonstration. He was subsequently taken to the Galytskyy District Court, which found him guilty of the charges against him and sentenced him to three days of administrative detention. Once he had served his sentence, Mr Vyerentsov appealed against the court’s decision before the Regional Court of Appeal, which rejected his request. 

Decision of the Court

Article 11

The Court considered that the legal basis for the arrest of Mr Vyerentsov had been the Code on Administrative Offences establishing liability for breaches of the procedure for holding demonstration, which was deemed sufficiently accessible. However, the Court held that there had been no clear and foreseeable procedure for holding peaceful demonstrations in Ukraine since the end of the Soviet Union. Indeed, the general rules laid down in the Ukrainian Constitution as regards the possible restrictions on freedom of assembly still required further elaboration in the domestic law. 

In particular, in a decision of 19 April 2001 the Constitutional Court of Ukraine considered that the procedure regarding the notification of peaceful assembly to the Ukrainian authorities was a matter for legislative regulation. Moreover, the only existing document establishing such a procedure was the 1988 Decree, which had been adopted by a country that no longer exists – the USSR – and was not generally accepted by the Ukranian courts as still applicable.

Even though the Court acknowledged that it could take some time for a country to establish its legislative framework during a transitional period like the one Ukraine was currently going through, it could not agree that a delay of more than 20 years was justifiable - especially when such a fundamental right as freedom of peaceful demonstration was at stake. The Court therefore concluded that the interference with Mr Vyerentsov’s right to freedom of assembly had not been prescribed by law, in violation of Article 11.

Article 7

The Court reiterated that, although the offence of a breach of the procedure for holding demonstrations had been provided for by the Code on Administrative Offences, the said procedure had neither been clearly defined in the domestic law nor by the domestic courts, the practice of which had revealed numerous inconsistencies in this sphere.Accordingly, Mr Vyerentsov’s three-day administrative arrest had violated Article 7.

Article 6 §§ 1 and 3 

First, the Court noted that only a few hours had elapsed between the drawing up of the administrative offence report by the police and the examination of the case by the first instance court. As a result, Mr Vyerentsov had not been able to assess the charge against him and to prepare his defence accordingly. Second, although Mr Vyerentsov had asked to be represented by a lawyer as provided for under the Code on Administrative Offences, the first instance court had refused his request owing to his legal background as a human rights defender, which the Court found unlawful and arbitrary. Third, the main basis for the findings of the first instance court had been police reports, without any witnesses being questioned, despite Mr Vyerentsov’s request. Moreover, the Court of Appeal had failed to remedy those violations since, by the time it had examined the case, Mr Vyerentsov had already served his administrative detention.

Finally, despite their relevance, Mr Vyerentsov’s arguments had been totally ignored by the Ukranian courts, which had displayed a total lack of adequate reasoning in their decisions. The Court therefore held that there had been a violation of Article 6 §§ 1 and 3 (b), (c) and (d).

Article 46

The Court reiterated that Article 46 imposed on contracting States a legal obligation to implement appropriate measures to ensure the right of the applicant which the Court had found to have been violated. Such measures also had to be taken in respect of other people in a similar position, notably by solving the shortcoming found in the national system as quickly and as effectively as possible.

In this case, the violations of Article 11 and 7 had stemmed from a legislative lacuna concerning freedom of assembly, which had persisted in Ukraine for more than two decades. Therefore, the Court stressed that specific reforms in the legislation and administrative practice of Ukraine should be urgently implemented in order to establish the requirements for the organisation and holding of peaceful demonstrations as well as the grounds for their restriction.

Just satisfaction (Article 41)

The court held that Ukraine was to pay the applicant 6, 000 euros (EUR) in respect of non-pecuniary damage. 

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