A Police State in Ukraine?
The first impression from what one saw on Khreshchatyk St.on the morning of 14 October 2006 was that a state of emergency had been declared in Ukraine.
The central and adjoining streets of the capital were barricaded, with special tourniquets and officers from special purpose units [spetsnaz] blocking all ways to the centre of Kyiv. It was possible to stroll along Maidan Nezalezhnosti [Independence Square] only if you had the identity document of a person in favour with the defenders of public order.
On 14 October Ukraine showed the entire world that it is a police state, a country where citizens can gather and move around the centre of its capital only with the permission of their Majesties, the cops.
“There was nothing like this under Kuchma”, a colleague said, who himself participated in the actions of “Ukraine under Kuchma”.
Sure, on that day in Kyiv various opposing political forces were all planning rallies which could have turned into the sort of brawls that took place last year.
Sure, on 13 October the Shevchenkivsky District Court in Kyiv prohibited five political organizations from holding their political rallies in the city centre.
However why were people not linked to parties who had come to Khreschatyk with no intention whatsoever of beating the heads in of ideological opponents prevented from getting to a metro station or to the No.18 trolleybus?
After all, the court prohibited demonstrations so that the demonstrators would “not stop Kyiv residents and visitors to the city from relaxing”, yet it was by no means the demonstrators who prevented such relaxation, but the state authorities.
Having got over feelings able to shock anyone, one needs to ask oneself and demand from the authorities answers to two questions.
The first question is whether it was legal to prohibit political rallies on 14 October, the anniversary of the founding of the Ukrainian Resistance Army [UPA] and the festival of Pokrova [the Protection of the Virgin Mary] in the Orthodox Calendar.
The second would ask how adequate the actions of the police in preventing infringements of public order.
With regard to the first question: on Friday Shevchenkivsky Court Judge Nataliya Buzhak handed down a ruling prohibiting demonstrations planned by the communists, nationalists and, for some reason, that of Chernobyl veterans purely because the Kyiv City State Administration, the police and the President’s Administration believed that fights might break out on Khreshchatyk on 14 October.
This court ruling was thus not at all based on legal arguments. The court merely “legitimized” the wishes of the applicants.
It is to be regretted that the decision to ban demonstrations on Khreshchatyk was taken by precisely the same court which more than two years ago now rejected applications by the Kyiv City State Administration to have meetings banned, and it was the Shevchenkivsky Court in November 2004 which turned down the application to ban a political rally which marked the beginning of the “Orange Revolution”.
Yet we are forced to state that on 13 October the Shevchenkivsky Court issued a ruling which runs counter to the European Convention for the Protection of Human Rights and Fundamental Freedoms, case law of the European Court of Human Rights, as well as the Ukrainian Constitution and legislation, and violates the innate and inviolable right of citizens to peaceful assembly.
The situation which arose on Saturday on Kyiv streets is called “counter-demonstrations” in the European Court case law.
The European Court of Human Rights has handed down judgments on several cases regarding counter-demonstrations. Article 17 of the Law on the application of European Court rulings in Ukraine states that these judgments shall be a “source of the Law”, that is, they are in effect mandatory on Ukrainian territory.
One of these judgments was in the case of Plattform “Ärzte für das Leben” (“Doctors for the right to life”) v. Austria [21 June 1988]:
“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”. The Court goes on to say that any state which recognizes the European Convention for the Protection of Human Rights and Fundamental Freedoms has positive duties with regard to gatherings: This means that the state must ensure that the right to hold peaceful meetings is exercised both by those holding the demonstration, and those from the counter-demonstration. These positive obligations follow from Article 11 of the European Convention which guarantees all freedom of assembly and association.
The court may therefore not prohibit a demonstration merely on the grounds that a counter-demonstration will be held, while the positive duty of the police as a state authority is not to limit the rights of all citizens, including those not planning to take part in any of the events of 14 October, but to ensure that all citizens may exercise their rights. The latter include the right of assembly for those people who were planning to take part in one or other of the events of 14 October.
This means that the police officers should not have closed off Khreschatyk St to everybody, but instead guarded both meetings – of supporters and opponents of the Ukrainian Resistance Army. They should have guarded them and prevented any violations of public order. This is what they have an obligation to do in accordance with the law “On the police”.
Police officers on Saturday asked how they could prevent confrontations if they didn’t close off Khreschatyk St.
The author of this article could give them a few pieces of advice, but will refrain since he is not a police officer. Working out and implementing measures for protecting public order is the task of the Ministry of Internal Affairs which exists on taxpayers’ money and not that of the citizens who pay those taxes.
At the end of the day, Ukrainian police officers could study the experience of the Northern Ireland police which in conditions which are far more difficult than those in Ukraine are able to safeguard public order during counter-demonstrations of Catholics and “Orange” [Unionists].
We would repeat that Ukrainians of different political views do not pay the courts and the police to restrict their rights, but in order that the latter ensure that these rights may be exercises, and preferably without posing questions which do not fall within the competence of the average citizen.
Of course the simplest solution for the police is to impose a curfew and to simply prohibit people from leading their homes. Then there will be no demonstrations, mass disturbances, infringements of public order. Instead the police will be able to take in their salary and rest.
A curfew in Ukraine is the author’s fantasy, yet the events of 14 October showed a trend which could lead to such curfews.
Civic society must therefore stop the cops from the outset, or it will be too late.
For ourselves we already have possible answers to the questions which 14 October posed. We would now like to receive an answer to these questions from the Ukrainian authorities – the President, the Ministry of Internal Affairs and the Mayor of Kyiv.
Member of the Board of the Institute “Respublica”
Member of the Board of the Ukrainian Helsinki Human Rights Union
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