The Right Inalienable and Inviolable?

Sep 18th, 2011 | By | Category: Freedom of Assembly, Investigations, Monitoring, News

“The right of citizens to assemble peacefully without arms and hold meetings, rallies, marches and demonstrations, enshrined in the article 39 of the Constitution of Ukraine is the inalienable and the inviolable right, guaranteed by the Supreme Law of Ukraine “.

(Excerpt from the ruling of the Constitutional Court of Ukraine of 19.04.2001)

 Disposition

Among the basic civil rights, the implementation of which determines the standing of citizens in relationship with the state, the right to peaceful assembly is among the major ones. The Constitution of Ukraine, article 39 states: “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government. Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.

Also we need to note that “The norms of the Constitution of Ukraine are norms of direct effect” (Constitution of Ukraine, article 8).

In 1997 Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms according to article 11 of which “Everyone has the right to freedom of peaceful assembly and to freedom of association with others <…>  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Article 9 of the Constitution of Ukraine and the “Law on International Agreements of Ukraine” rules that: “Current international agreements of Ukraine, the binding nature of which has been ratified by the Verkhovna Rada (ed. Parliament) of Ukraine, are a part of domestic legislation and shall be applied under the procedure provided for the norms of domestic legislation. If the international agreement of Ukraine, which has come into force under the set procedure, sets the rules other than those envisaged in the respective act of Ukrainian legislation, the rules of international agreement shall apply.

You need not be a professional lawyer to understand the above, but translating it into a plain text: our right to peaceful assembly is guaranteed by the Supreme Law and can be restricted in a democratic society only by a court ruling in compliance with the law and only if such restriction is justifiably necessary.

You need not be a professional lawyer or human rights activist to see that in Ukraine the practical implementation of the right to peaceful assembly is not quite so simple: we read and hear almost daily about court prohibitions of street actions, intervention by law enforcement agencies in public meetings, detention of  participants of demonstrations, etc.

Kiyv, 24.08.2011, photo by Viktor Kruk

Asking questions

We decided to investigate how the right to peaceful assembly is implemented in Ukraine in practice and mailed written requests for information to all city councils of regional (oblast’) centers of Ukraine plus the cities of Simferopol and Sevastopol; 26 cities in total. We asked:

1. Had the city council approved a procedure for dealing with applications from citizens, NGOs, political parties regarding the organization of peaceful meetings, rallies, demonstrations and other mass events (according to the article 39 of Constitution of Ukraine)? If yes – provide the copy of such acts. If no – explain what rules and criteria the city authorities are using when determining the grounds for appeal to the courts to restrict the right to assembly.

2. How many times has the city council appealed to the courts to restrict (or ban) the right of assembly during this year? How many times did the courts support the city authorities in such rulings.

All city councils replied. Dnipropetrovsk answered only on second request. Odesa and Kharkiv refused to disclose the data on the number of court appeals. Odesa city council replied they do not understand the timeframe requested and we sent them the request repeatedly. Kharkiv city councils replied that they do not keep stats on such decisions; we sued them for not providing public information.

Our research revealed that in Sevastopol citizens are required to submit the applications for public meetings to district (rayon) administrations and not to the city council as everywhere else. We have documents about court rulings to ban meetings based on the district administration’s application; however city council does not report these matters in their stats.

 The court as ultima ratio of authorities

According to the information provided to us during this year, in 23 cities of Ukraine city councils appealed to courts to ban 64 meetings. Courts supported such applications in 53 cases (82%).

Kyiv city council provided the data for 2009-2011 without breakdown by year. There were 48 appeals, 35 were supported (72%).  We have no data for Odesa and Kharkiv yet.

Many city councils told us they did not appeal to courts to ban or restrict meetings. However these responses may mean that the applications for meetings are submitted to other bodies like in Sevastopol. Luhansk city council did not bother with applications to the courts at all and banned all peaceful assemblies without court order (http://gorod.lugansk.ua/index.php?newsid=5047) during the visit of Russian Orthodox Church Patriarch. Kharkiv city council refused even to accept an application for a meeting (http://glavnoe.ua/news/n83150).

Therefore our research provides minimal evaluation of the implementation of the right to peaceful assembly in Ukraine in 2011.

The list of cities where city councils claimed to not appeal to the courts is as follows: Vinnytsia, Zhytomyr, Ivano-Frankivsk, Kirovograd, Luhansk, Rivne, Uzhgorod, Khmelnitsky, Chernivtsi, and Sevastopol. The cities with the most court appeals are the capital, Kyiv, (which is natural as most public meetings are held there), Dnipropetrovsk, Zaporizhzhya and Simferopol. The last three cities are not centers of public meeting activity and the high result for the number of court appeals there are not statistically justified.

 Grounds for court appeals

The answers to the question about “grounds for appeal to the court to restrict the right to assembly” were provided by 14 city councils. Only 2 referred to article 39 of the Constitution of Ukraine; most often the answers mentioned “the threat to interests of national security or public safety” – 9; “in cases of several applications for a public meeting in a same place” – 3; “in cases where the number of participants is higher than territorial capacities” – 2; incompatibility with local regulations – 2.

However our monitoring revealed that most common are appeals to courts based on the grounds of “several applications for a meeting in a same place”. We have documents about court decisions on that pretext from Kharkiv, Dnipropetrovsk, Donetsk, Simferopol, Odesa and other cities. The technique is as follows: 1. someone applies for a public meeting that the city authorities do not want, 2. an organization affiliated with the authorities then submits an application for a public meeting in the same place and at the same time, 3. the city council appeals to the court to ban both meetings, 4. the court supports that lawsuit.

This common practice is illegal. In such cases city authorities should not ban the public meetings but should suggest different places and/or times for concurrent meetings. In Kharkiv an NGO attempted to challenge such a ban at a higher level court, however they have had no success so far – the case is being ping-ponged between the courts of different jurisdictions.

 Rule of what?

The question “what rules and criteria are the city authorities are using when determining the grounds for appeal to the court to restrict the right to assembly” was answered by all city councils but the ones of Chernivtsi and Lviv.

Respondents are using:

  • Article 39 of Constitution of Ukraine – 13 city councils,
  • Ruling of Constitutional Court of Ukraine from 19.04.2001 – 8,
  • Law on Local Self-Government in Ukraine – 6,
  • Decree of the Presidium of the Verkhovna Rada of the USSR from 28.08.1988 №9306-XI “On the order of organizing and holding meetings, rallies, street processions and demonstrations in the USSR” – 5,
  • Article 182 of the Code of Administrative Procedure of Ukraine – 3,
  • Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms – 2,
  • Law About the improvements of human settlements – 2
  • Provisions for the general assembly of citizens at their hometown (decree of Verkhovna Rada of 17.12.1993) – 1
  • International Covenant on Civil and Political Rights – 1.

Local regulations on the procedure for dealing with applications for meetings had been found in 11 of 26 cities.

 Local deviations

Local regulations (titles vary) on the procedure for dealing with applications for public meetings are found in Dnipropetrovsk, Zhytomyr, Zaporizhzhya, Kyiv, Kirovograd, Lutsk, Rivne, Simferopol, Sumy, Kharkiv, Kherson.

Such regulation are the subject of a legal dispute in Zhytomyr and Simferopol. Earlier similar regulations were invalidated by the courts in Chernivtsi and Uzhgorod.

Existing local regulations are often focused on making public meeting organization overly complicated. For example in Dnipropetrovsk and Rivne a meeting can be forbidden if the “organizer’s statute does not foresee the activities related to organization of events”; in Zhytomyr “an organizer is required to enter into agreements with organizations recommended by the authorities in order to ensure public order, traffic safety, fire protection, sanitary norms, etc.”; organizers are requested to submit an application for a public meeting 10 days prior to the event (in 7 cities at least) or even 30 days before (in Ivano-Frankivsk). In Uzhgorod local regulations foresee the procedure of “coordination” with 4-11 communal services and organizations.

In Kyiv, regulations of 2005 forbid any events in the city center, tents and megaphones are also forbidden. Considering the number of events there, including those with tents and megaphones it becomes evident that the regulations are applied selectively.

However according to the article 144 of the Constitution of Ukraine “Bodies of local self-government, within the limits of authority determined by law, adopt decisions that are mandatory for execution throughout the respective territory.” According to the article 38 of “Law on Local Self-Government in Ukraine” the jurisdiction of the executive bodies of local councils allows them to “resolve, in accordance with the law, issues of conducting meetings, rallies, manifestations and demonstrations, sports events, shows and other mass events; to exercise control over ensuring public order during these events”.

Article 39 of the Constitution of Ukraine says: “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government. Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.

Today in Ukraine there is no law or legislative act that regulates assembly explicitly. And there is no law that allows the local authorities to restrict the right to peaceful assembly without a court order even by issuing local norms and regulations. Such restrictions are beyond their legitimate powers and violate citizens’ constitutional rights to peaceful assembly.

Back in the USSR

5 city councils (Vinnytsia, Ivano-Frankivsk, Odesa, Ternopil and Cherkasy) stated that when determining the grounds for appeal to the court to restrict the right to assembly they are using as legal ground the Decree of Presidium of Verkhovna Rada of USSR of 28.08.1988 №9306-XI “On the order of organizing and holding meetings, rallies, street processions and demonstrations in the USSR”, other city councils (for example in Kharkiv) are referring to this decree in their local regulations that they are using illegally (as shown above) to restrict the peaceful assembly.

Verkhovna Rada is not in a hurry to repeal its decree of 12.09.1991 “On a temporary effect on the territory of Ukraine of certain acts of the USSR” which states that “before the adopting the appropriate legislative acts of Ukraine the legislation of USSR is used on issues that are not covered by the Ukrainian law in cases where they do not conflict with the Constitution and the laws of Ukraine”, however:

  • a)      Since 1996 peaceful assembly in Ukraine is regulated by the article 39 of Constitution of Ukraine (which is an act of direct action and of highest legal force);
  • b)      Decree of 28.08.1988 №9306-XI contradicts the Constitution of Ukraine cause it declares the permission based organization of meetings and moreover talks about meetings in a nonexistent country, the USSR, regulates relationships of nonexistent citizens of a nonexistent country, refers to the Constitution of the USSR, etc.

According to article 19 of the Constitution of Ukraine government bodies and local authorities may act only according to the Constitution and the laws and not to the decrees (whether of the Presidium of the Verkhovna Rada of the USSR, or of the Verkhovna Rada of Ukraine); and according to article 92 Constitution of Ukraine citizen’s rights and freedoms are defined only by the law.

Therefore there are no legal reasons to use old Soviet regulations except nostalgia for old Soviet times on the part of Ukrainian authorities and the reflex desire of a bureaucrat who is afraid even of a ghost of free society, to ban, forbid and prohibit.

 Monitoring results short summary

Local authorities in Ukraine have no unified approach, no common practice of implementation of the right to free assembly. When citizens are trying to implement that right the authorities often violate the Constitution of Ukraine. The unnaturally high percentage of supported appeals of the local authorities for the restriction of the right to peaceful assembly could hardly mean impartiality of the courts.

 What next?

Being liberals that are well informed about the real life practice of the Ukrainian legislative process which often makes legal acts somehow illegal and is used as the means of depriving rights and freedoms rather than of defending them; we consider it unreasonable to adopt a specific law on peaceful assembly. We think the Constitution of Ukraine and the ratified international acts suffice.

The only exception which needs to be regulated is the issue of “early announcement” of peaceful assembly; only this issue (“the definition of the specific timing of such early announcement with regards to various of forms of peaceful assembly, number of attendees, place, time, etc.” ) in accordance to the ruling of the Constitutional Court of Ukraine of 19.04.2001. This could be the subject of legislation whether by means of a specific law or within  other legal acts that regulate the administrative relations between the state and the citizen.

We also consider it appropriate to initiate  legal proceedings about the cancellation (recognition as illegal and invalid) of the abovementioned local regulations and the Soviet relict – the abovementioned decrees of an nonexistent state.  We had already initiated a lawsuit on such regulation in one city and would be glad if others join us.

Moreover considering the mess associated with the application of different laws and regulations by the local authorities there could be  grounds (“non-uniform application”) for appeal to the Constitutional Court of Ukraine for interpretation of article 39 of the Constitution of Ukraine in a different, broader context than it was done in the ruling of 19.04.2001.

 PS.

Basically every normal (e.g. legal and democratic) state is the product of a “public gathering” held in some form to constitutionalize, to legitimize the governmental institutions and to determine the principles of relations between the state and the citizen. However every government that seeks to limit that fundamental right in peaceful times is delegitimizing itself and in fact provokes “public gatherings” that could in response, limit that government.

 

Natalka Zubar, CEO of Civic Information and Methodology Center “Vsesvit”

Olexander Severyn, doctor of law

 

 

6 Comments to “The Right Inalienable and Inviolable?”

  1. ukrainefan says:

    Congratulations on all your persistence and difficult investigative work. Very interesting that a city like Vinnitsa is still relying on USSR regulations.

  2. pani says:

    Today Kyiv city government published the project of local regulation on public meetings and … television recordings in capital of Ukraine! Even worse that all above. Here is the statement of human rights defenders on that (in Ukrainian) http://maidan.org.ua/2011/09/kmda-planuje-nezakonno-obmezhyty-svobodu-zibran-u-kyjevi/

  3. […] only rely on the legislations that complies with the Constitution and the laws. However this and similar regulations  were adopted clearly outside of the scope of the local government powers as defined by the […]

  4. […] which clearly contradicts Ukrainian Constitution and international treaties adopted by Ukraine (detailed explanation). This legislation in particular allows to require the advance notice of 10 days before the […]

  5. […] of the protesters. This document, essentially, said that the protest rally was illegal because of legislation, adopted back in Soviet days; and stated that “these AND OTHER people” should not demonstrate their protest. Also, in this […]

Leave a Comment

You must be logged in to post a comment.