The chapter is prepared by an expert Mykhailo Kamenievyi.

 

Practice of the European Human Rights Court

On January 30, 2015, the decision of the ECHR on the case of Shvydka v. Ukraine, recognizing the violation of Article 10 of the European Convention on Human Rights and Fundamental Freedoms and Article 2 of Covenant No. 7 hereto, became final.[1]

The complainant was convicted of disorderly conduct and subject to a 10-day administrative arrest, for the fact that during a peaceful assembly she came up to the wreath laid by V. Yanukovych and tore off a piece of the ribbon bearing the sign “President of Ukraine V. F. Yanukovych” without damaging the wreath itself. The ECHR believes that national courts enforced the stiffest penalty to the complainant, a 63-year woman with clean records, for the offense that did not culminate in violence or threat. The ECHR found no justification of this action and considers the event disproportionate to the aim pursed.

On October 6, 2015, the ECHR recognized the violation of Articles 6 and 11 of the European Convention on Human Rights in the case of Karpiuk and Others v. Ukraine[2]. The case was about the resonant events of March 9, 2001, the high point of civil disobedience “Ukraine without Kuchma”, conflicts with law enforcement authorities and subsequent condemnation of key participants to imprisonment[3]. The ECHR decision became final on January 6, 2016.

On December 7, 2015, H.M. Nemyria and a group of other MPs of Ukraine registered the draft law No. 3587 on the guarantees of the freedom of peaceful assembly[4], which is actually slightly modified in the context of the previous draft law on this subject, registered in the VII Verkhovna Rada of Ukraine under No. 2508a[5]. At the same time, on December 11, 2015, I.V. Lutsenko and another group of MPs registered an alternative draft law[6] under No. 3587-1, proposing the introduction of much more liberal and less aggravate regulation of the right to exercise the freedom of assembly. Both draft laws were developed with an active participation of human rights advocates and activists and are under consideration of a relevant committee.

On March 17, 2015, the group of other MPs registered the draft law on introducing amendments to the Code on Administrative Offenses of Ukraine to prevent groundless bringing citizens to responsibility for the participation in peaceful assemblies^[7]. The draft law provides for repositioning of Article 185-1 of the Code on Administrative Offenses of Ukraine, establishing administrative responsibility for organizing and holding assemblies in spite of the legislative prohibition, as well as elimination of Article 185-2 of the Code on Administrative Offenses of Ukraine, which is hardly applied in practice. The draft law also offers to revoke the Decree of the Supreme Soviet of the USSR No. 9306-XI dated July 28, 1988 “On the procedure of organizing and holding meetings, strikes, street processions and demonstrations in the USSR”^[8]. The draft law is under consideration of a relevant committee.

 

Practice of the court of cassation

The Higher Administrative Court of Ukraine (HACU) continues to render doubtful judgements in the case of restrictions on freedom of assembly. Thus, the Resolution of the HACU dated August 6, 2015 in cassational proceeding No. К/800/66882/13[9] confirms the validity of limits on freedom of assembly on grounds that the claim was made against counter-assemblies. This position contradicts the ECHR jurisdiction[10].

At the same time, this court resolution confirms the position on the inconsistency of the claim under the lawsuit against “automatic” restrictions on freedom of assembly of an indefinite range of persons in the unlimited territory. This practice is positive in view of number of conflicting decisions of the HACU made in the previous years.

Unfortunately, the HACU continues to consider the aforesaid Decree of the Supreme Soviet of the USSR No. 9306-XI dated July 28, 1988 “On the procedure of organizing and holding meetings, strikes, street processions and demonstrations in the USSR” as valid in the territory of Ukraine, as indicated in the Resolution dated November 10, 2015 in cassational proceeding No. К/9991/47111/12[11].

Based on paragraph 3 of the Resolution of the HACU Plenum dated May 21, 2012 “On the practical application by administrative courts of the legislation when considering and resolving cases of the right to peaceful assembly (meetings, strikes, processions, demonstrations, etc.), back in May 2012, a working group was formed to prepare the draft resolution of the HACU Plenum “On the judicial practice of considering and resolving by administrative courts of cases of the right to peaceful assembly (meetings, strikes, processions, demonstrations, etc.)”.[12]

So far, this working group has not finished its work on the draft resolution yet, which could explain topical issues of application of the legislation of Ukraine to limit the freedom of assembly to the courts.

When considering cases of limiting the freedom of assembly, administrative courts began to explain to the complainants that the legal grounds for deciding on the limitation of the right to peaceful assembly consist in the fact that the organization of such an event may pose real danger of disorders or offenses, threat to public health or rights and freedoms of other people. Such danger shall not be imaginary, but based on actual facts or data on the presence of real danger to the interests of national security and public order; and the complainant shall not only notify of the threats arising in connection with the assembly, but also provide the court with the evidence that became the basis of such a conclusion.

To confirm this legal determination, courts refer to the HACU Resolution dated April 17, 2014 in cassational proceeding No. К/800/10127/14[13] and the Resolution of the Supreme Court of Ukraine dated November 11, 2015 in case No. 21-510а14[14].

Such justification for denials to satisfy administrative lawsuits against restrictions on freedom of assembly was provided, particularly, by the Kherson District Administrative Court[15][16], Donetsk District Administrative Court[17], Kharkiv District Administrative Court[18][19][20], Dnipropetrovsk District Administrative Court [21].

Another positive example is the one of the Kharkiv District Administrative Court, which, refusing to satisfy the lawsuit of the Kharkiv City Council against restrictions on freedom of assembly, stated in the resolution: “…the complainant provided no evidence indicative of any violent and offensive intentions of the defendant as an organizer of mass assemblies, and according the practice of the European Court on Human Rights “…a possibility of joining the demonstrations of extremists with violent intentions cannot, in itself, deny this right [right to peaceful assembly]… The burden of evidencing violent intentions of the organizers of assemblies is on the government” (paragraph 23 of the ECHR Resolution “Christian People’s Democratic Party” v. “Moldova”)”[22].

 

Responsibility for illegal interference with peaceful assemblies

According to Article 340 of the Criminal Code of Ukraine^[23], unlawful interference with the organization or holding peaceful meetings, rallies, processions and demonstrations, if these actions are taken by officials or with the use of physical force, are punishable with correctional labor of up to two years, or an arrest of up to six months, or custodial restraint of up to 5 years, or imprisonment of the same period.

In 2015, 26 reports of criminal offenses were recorded under this Article, 5 of which were closed. Therefore, 21 criminal offenses were considered under this Article; in 13 cases notices of suspicion were issued, and 6 criminal proceedings with an indictment were sent to the court.

According the judicial reports^[24], in the period from 2008 to first half of 2015, there were no accused persons, the judgements in respect of whom took legal effect for committing an offense under Article 340 of the Criminal Code of Ukraine.

The above statistics indicates very poor effectiveness of public authorities to bring persons interfering with peaceful assembly to responsibility.

 

Equality March as part of KyivPride2015

On June 6, 2015, the Equality March in matters of protection of rights of the LGBT community took place in Kyiv in Obolonska Naberezhna as part of KyivPride2015[25]. The assembly drew considerable attention of far-right movements, the activists of which tried to prevent the march and attacked peaceful participants.

A day before the march the President of Ukraine assured at the press conference that law enforcement officers would be able to secure the march, and noted that he himself would not join the march, though he is not against it[26]. The police provided public security and order during the assembly; however, they were criticized by the public and independent experts[27][28]. During the march its opponents used pyrotechnics with the result that 9 law enforcement officers were injured[29], one of them incurred severe injuries[30].

A likely organizer of the attacks and use of pyrotechnics is the Ukrainian Volunteer Corps “Right Sector”[31]. Officials of the movement refuse to have anything to do with such accusations and blame the organizers of the march, noting that they have warned of this scenario[32]. However, it was the Right Sector that threatened to undermine the march a day before it[33].

Following the march the police reported on the detention of 25 persons and commencement of a criminal proceeding under part 4 of Article 296 of the Criminal Code of Ukraine (vandalism)[34]. The results of the investigation are still unknown.

There is a general trend towards an increase of the violence level during peaceful assemblies, radicalization of the opposition of ideas and insufficient measures taken by law enforcement officers.

According to the reports[35] of the Center for Social and Labor Research, public authorities increased repressions against protests with a significant portion of these repressions aimed at the persons suspected of involvement in the activity of the self-proclaimed authority and militants in Eastern Ukraine, and this activity is ultra-violent in its nature[36]. At the same time, more and more often representatives of far-right forces constitute a source of violence during protests[37].

 

Recommendations

for the Ministry of Internal Affairs of Ukraine and the National Police

1. To urgently complete the formation of the Corps of Operational and Sudden Action (COSA) of the National Police and conduct regular trainings on international security standards of the freedom of assembly for the personnel.
2. To ensure the safety of organizers and participants of any assemblies, including counter-assemblies and spontaneous assemblies, regardless of their political position. Particular attention should be paid to the safety of peaceful assemblies that resulted in sharp non-acceptance of the majority of the population.
3. To exclude illegal interference with peaceful assemblies, particularly on part of paramilitary formations.
4. To develop, through the involvement of a wide range of public members, and to approve the instruction concerning assurance of public order during peaceful assemblies and public events by the decree of the MIA of Ukraine registered in the Ministry of Justice of Ukraine. The instruction should take into account the decision of the European Human Rights Court and Guidelines of OSCE/ODIHR on freedom of assemblies.
5. To update differential statistics for the number of peaceful assemblies held and their participants. For statistical purposes, to develop an effective and unique methodology for data collection and their generalization. To keep separate statistics for mass events (concerts, festivals, advertising actions, sport competitions, etc.) and assemblies under Article 39 of the Constitution of Ukraine.
6. To keep statistics for application of force by the police and officials of the National Guard of Ukraine against the participants of assemblies and for the number of the persons detained during the assemblies.
7. To introduce personified badges for the officials of the National Guard of Ukraine, involved in the protection of public order, by the example of the National Police.
8. According to the ECHR decision on the cases of Vierentsov v. Ukraine and Shmushkovych v. Ukraine, not to detain persons for violating the procedure of organizing and holding peaceful assemblies (Article 185-1 of the Administrative Offenses Code of Ukraine) and not to treat the denial of the organizers, participants of peaceful assemblies, and third persons to comply with the procedure of organizing and holding peaceful assemblies as deliberate non-obedience to a legal requirement of an officer of the law enforcement agency (Article 185 of the Administrative Offenses Code of Ukraine).
9. To abandon the practice of notifying local authorities and local self-government of the inability to ensure public order during the assemblies.

 

For the Higher Administrative Court of Ukraine

To annually generalize the judicial practice on cases of restrictions on freedom of assembly.

 

For local self-government authorities

1. To cancel local regulations establishing the procedure of organizing and holding peaceful assemblies and, if appropriate, to approve only those provisions governing the fulfillment of positive obligations by local self-government authorities according to Article 38 of the Law of Ukraine “On local self-government in Ukraine”.
2. To make complaints about restrictions on freedom of assembly only in exceptional cases and for compelling reasons.

 

For Verkhovna Rada of Ukraine

To make amendments to the current legislation of Ukraine on freedom of assembly: to exclude Article 185¹ of the Code on Administrative Offenses of Ukraine, amend Article 182 of the Administrative Court Procedure Code of Ukraine (to specify the procedure of limiting freedom of assembly and provide effective appeal mechanism), amend the Laws of Ukraine “On freedom of conscience and religious organizations” (to exclude the requirement for obtaining permits to hold religious events outside of religious buildings), “On the procedure for settling collective labor disputes (conflicts)” (to exclude a special regulation on holding peaceful assemblies outside of enterprises during strikes), “About court fee” (to release the defendants of court fees in cases of restrictions on freedom of assembly) and others.

 

For the Supreme Court of Ukraine

To carry out judicial practice analysis in the exercise of freedom of assembly. Specifically to appraise the legitimacy of the application of the 1988 Decree of the Supreme Soviet of the USSR, local regulations establishing the procedure of organizing and holding peaceful assemblies, automatic judicial restraints on an indefinite range of persons, administrative penalty under Article 185¹ of the Code on Administrative Offenses of Ukraine.

[1] http://zakon4.rada.gov.ua/laws/show/974_a40

[2] http://hudoc.echr.coe.int/eng?i=001-157510, http://precedent.in.ua/index.php?id=1447839230

[3] http://www.khpg.org/index.php?id=1444139892

[4] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=57310

[5] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=47751

[6] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=57396

[7] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=54424

[8] http://zakon4.rada.gov.ua/laws/show/v9306400-88

[9] http://reyestr.court.gov.ua/Review/48303450

[10] http://hudoc.echr.coe.int/eng?i=001-97049

[11] http://reyestr.court.gov.ua/Review/53646163

[12] http://zakon4.rada.gov.ua/laws/show/v0006760-12

[13] http://reyestr.court.gov.ua/Review/38499878

[14] http://reyestr.court.gov.ua/Review/41735934, http://www.scourt.gov.ua/clients/vsu/vsu.nsf/(documents)/EC229C47139BC10BC2257DA5004CA0DC

[15] http://reyestr.court.gov.ua/Review/53060570

[16] http://reyestr.court.gov.ua/Review/44067167

[17] http://reyestr.court.gov.ua/Review/51422253

[18] http://reyestr.court.gov.ua/Review/43100135

[19] http://reyestr.court.gov.ua/Review/43094535

[20] http://reyestr.court.gov.ua/Review/43688029

[21] http://reyestr.court.gov.ua/Review/43880611

[22] http://reyestr.court.gov.ua/Review/43094534

[23] http://zakon4.rada.gov.ua/laws/show/2341-14

[24] http://court.gov.ua/sudova_statystyka

[25] http://www.hromadske.tv/society/5572a0e22015a

[26] http://www.pravda.com.ua/news/2015/06/5/7070271

[27] http://www.kyivpride.org/ua/news/news_42.html

[28] http://ccl.org.ua/wp-content/uploads/2013/10/Zvit-roku.pdf

[29] http://ru.tsn.ua/kyiv/vozroslo-kolichestvo-postradavshih-milicionerov-vo-vremya-stolknoveniy-na-gey-parade-v-kieve-431397.html

[30] http://tsn.ua/kyiv/pid-chas-gey-paradu-v-kiyevi-travmuvali-p-yatoh-milicioneriv-odin-iz-nih-u-tyazhkomu-stani-433941.html

[31] http://dusia.telekritika.ua/system_category/28982

[32] http://ua.korrespondent.net/ukraine/3524334-pravyi-sektor-zvynuvachuie-v-zitknenniakh-pid-chas-hei-paradu-orhanizatoriv

[33] http://ua.korrespondent.net/kyiv/3522007-pravyi-sektor-pohrozhuie-zirvaty-parad-heiv-u-kyievi

[34] http://www.pravda.com.ua/news/2015/06/6/7070383

[35] http://cslr.org.ua/wp-content/uploads/2015/11/CSLR_report_24_Nov_2015.pdf

[36] http://cslr.org.ua/represiyi-derzhavnih-organiv-proti-protestiv-u-kvitni-serpni-2015-roku-2

[37] http://cslr.org.ua/ultrapravi-vse-chastishe-stayut-dzherelom-nasilstva-pid-chas-protestiv