Our monitoring has confirmed the internationally accepted viewpoint that the right to peaceful assembly is one of the most endangered political freedoms in Ukraine. See the stats on our monitoring map.
As a result of 10-months of monitoring, we had prepared a policy paper about the state of the observance of the right to peaceful assembly in Ukraine and we listed recommendations for improvements that were sent to all relevant government bodies. We have already received feedback from the President’s administration.
Here is a short summary of our policy paper (see full version in Ukrainian).
1. Old Soviet totalitarian legislation still being used
13 governments of regional (oblast) centers in Ukraine have officially confirmed that they use the USSR legislation adopted in 1988 regulating peaceful assembly, which clearly contradicts the Ukrainian Constitution as well as international treaties adopted by Ukraine (detailed explanation). This legislation in particular requires 10 days advance notice before such assembly and imposes an array of typically totalitarian requirements for organizers of assemblies (for example it requires official papers from all participants to confirm that the organizer is authorized to represent them).
We called on the Parliament of Ukraine to officially invalidate that legislation.
2. Unconstitutional acts of local governments being actively used
12 regional centers (and many smaller towns) had adopted local legislation regulating (in fact – restricting) the process of organizing peaceful assemblies. However the Constitution does not grant local governments such privilege, nor does any existing law. We had filed a lawsuit against the government of the capital city of Kyiv to invalidate that order and wrote to prosecutors of all the other 11 regional centers with a request to start the process of invalidating these orders. So far the prosecutors of two cities, Lutsk and Kherson, responded positively and issued protests to this legislations.
3. Illegal use of the terms “sanctioned” and “allowed” assemblies by the police
The Statute of Patrol Police has the requirement of a 10 day advance notice of assembly (a legacy of the abovementioned USSR-epoch legislation). This statute also mentions “non-sanctioned” assemblies as a reason for their forceful dismissal while Ukrainian law has no reference to any “sanction” or permits for assembly. The Statute is still valid and is actively used by the police while dealing with assemblies.
We sent a proposal to the Ministry of Interior to change the Statute and heard back that “our proposals will be evaluated” and the new editing of the Statute is being worked on. No changes occurred in 5 months so far. We consider these changes vital and submitted the proposal again.
4. Single person protests treated as assemblies
There are cases of single person protests (an individual carrying a placard or shouting slogans from his car) which were considered by the police as a peaceful assembly and charges were laid for violation of the rules for organizing assemblies. Despite the evident lexical idiocy the Ministry of Justice could not provide any answer whether they consider a single person protest to be an assembly or not (they sent back a lengthy letter without any trace of an answer to the question itself). We proposed that the Ministry of Interior regulate this conflict and were informed that our propositions will be evaluated. We drew attention to that matter of all relevant government bodies.
5. Law enforcement agents not wearing uniforms during assemblies
The common practice of having plain clothes policemen without uniforms during assemblies does not promote their professional behavior (the cases are many and include unmotivated physical violence against participants of peaceful assemblies). This practice also misleads citizens who could act improperly towards the law enforcers.
We propose amendments to the “Law on militia” (police in Ukraine) that should ban law enforcement personnel without uniform from being present on duty at assemblies.
6. Non systemic and non-public monitoring of assemblies by regional administrations
The government bodies responsible for monitoring peaceful assemblies are the regional administrations that report to the President’s administration. However only the Poltava regional administration sent us any results of such monitoring and none of administrations provided us their methodology of monitoring. Despite the official statement by Donetsk’s administration that it submits the results of monitoring to the President’s administration and the Cabinet of Ministers both government bodies denied any collection and analysis of such data.
The preliminary communication with the official of President’s administration revealed their interest in this problem. We heard promises that a work group would be formed to create monitoring methodology and procedure.
7. Draft of the law “On peaceful assemblies”
The draft of the law “On peaceful assemblies” is being worked on in the Parliament of Ukraine. We consider such a law to be unnecessary for Ukraine at this time (although this is not a popular opinion among NGOs). Since both the Constitution and the international treaties that Ukraine adopted fully define the freedom of assembly, the only issue that requires legal regulation, in our opinion, is the term of advance notice to local governments about an upcoming assembly.
However we prepared several amendments to the proposed draft law and introduced them to the author of the law, the Cabinet of Ministers, using proper legal channels. So far three of our amendments are included in the current version of the draft.
8. Court practice
Analysis of Court practice with suits initiated by local governments to ban peaceful assemblies shows obvious flaws in both the procedure and its implementation. Our monitoring revealed that courts upheld 82% of such suits in 2010 and 88% in 2012, which is disturbing. In many cases courts support as an argument the abovementioned unconstitutional laws of local governments although the Constitution of Ukraine and international treaties adopted by Ukraine have higher legal precedence and should have been used instead.
Court hearings are often held in the late evening or even at night time without proper notice to the defendants and generally do not provide sufficient time for defendants to prepare their defense.
An efficient mechanism of appeal of such rulings is absent (one typical case is described here in details).
We consider it vital to complement the existing Code of Administrative Procedure with legal tools for efficient appeals in cases of restriction of the right to peaceful assembly.
Olexander Severyn, doctor of law
Natalka Zubar, Civic Methodology and Information Center “Vsesvit”, CEO