The Justice is considered as such only if
it meets the requirements of Fairness
and provides efficient reinstallation of rights.
(from the ruling of the Constitutional Court of Ukraine of 19/10/1999)
For most Ukrainians “mockery of justice” is still an abstract idea they cannot relate to. Unless you cross the path of someone in power you do not need to worry about it, the logic of an average citizen goes. However, mockery of justice is getting closer and closer to everyone.
Article 39 of the Ukrainian Constitution guarantees the right to peaceful assembly with an advance notification of government bodies. However, if a law abiding citizen organizing a peaceful assembly notifies local government about his intent and the government does not like his plans, the citizen becomes fully exposed to the mockery of justice.
Three groups of Ukrainians living in the city of Kharkiv decided to hold three different assemblies on June 5, 2012 addressing the same issue – they wanted to protest proposed legislation endangering the Ukrainian language. They notified the local government about their intent on June 1st, the last work day before the planned events.
The Constitution and International Treaties ratified by Ukraine obligate the government to assist its citizens in exercising their rights. Nevertheless, the special committee called by Kharkiv City Council recommended all three groups to drop the idea to assemble. When they refused to do so, the City Council filed lawsuits to ban the planned assemblies. According to the timestamps on the Administrative court records, the committee had made its decision earlier than the citizens presented the actual notifications to the City Council. The court accepted the case for review immediately and ordered a hearing 3 hours after the decision of the committee was passed on paper.
When a citizen files a lawsuit against the government, he usually has to wait for a long time for the hearings to start. In addition, hearings routinely get postponed for no apparent reason and there is no progress for months or even years. The government, on the other hand, has precedence over the citizens who want to organize a peaceful assembly, as the Code of Administrative Procedure stipulates. Government’s lawsuits to ban an assembly can be processed in court immediately; while the citizen has no way to appeal such court rulings quickly and efficiently or even prepare a line of defense. It’s legal, but the question whether it’s fair is rhetoric.
The idea of administrative courts that emerged late in ХVIII century in France was to protect citizens from arbitrary actions of government officials. But that’s theory. Let’s get back to the Ukrainian practice.
As law and common sense would suggest, the defendants in the cases above should have been properly informed about the court hearings. The question whether advance warning of three hours is proper is rhetoric as well, but it is legal in Ukraine. Two defendants were informed and the third one was not. All court hearings were held, one of them in the absence of the defendant clueless about the proceedings.
The defendants had 30 minutes to study the records. Requests for more time were turned down by the court.
The plaintiff – Kharkiv City Council – failed to provide a single piece of evidence. One of the reasons to ban the assembly was the alledged lack of free space in the central Freedom Square. At least that’s what the government’s attorney said in court. The defendant Dmytro Pylypets who planned to organize one of the assemblies stated the opposite –there is plenty of space for 50 people. The attorney failed to provide any proof that 50 people could not be safely situated in one of biggest squares of Europe (12 hectares). The defendant could not provide any evidence either since 30 minutes is simply not enough to study the documents and then go outside and make photos. Without a shade of a doubt, the court supported the government, regardless of the norm in the Code of Administrative Procedure stipulating that “both sides shall provide evidence to substantiate their claims”. Practice shows that not both should.
The government should provide valid reasons to restrict the right to peaceful assembly. In particular it should produce specific facts of possible violations of civil order or rights and freedoms of other people. Assumptions cannot be adduced in such cases since it is clear sign of arbitrary action by the government and/or the court. In these three cases, as well as in many similar ones, the government’s side did not provide any expert conclusion why the planned assemblies could “invoke the grounded rage of other citizens”, any explanation why the police is unable to maintain public order during the assembly of 50 people, why it could not prevent them from blocking street traffic, no explanation where they learned about the threat of blocking traffic, etc. The three activist groups had held many assemblies before and never violated public order, blocked traffic or did anything illegal.
The mere assumption about the “rage of other citizens” is negligible from legal standpoint and is logically absurd since for any assembly there are citizens who do not support the cause. It’s fairer to rewrite the Constitution and honestly declare the state antidemocratic and unlawful than to use such arguments in court.
However, all these “arguments” were used in court rulingd as reasons to ban the assemblies. We have full sets of court records for two of the cases and a complete video recording of one (all links to documents in Ukrainian are found at the end). The City Council’s attorney had initially filed a motion to ban videotaping.
During the hearings, the defendants tried to dispute the absurd arguments of the City Council. However, all three courts satisfied the government’s lawsuits issuing almost identical rulings. Therefore, the courts held formal hearings totally ignoring the essence of the right to peaceful assembly and the principles of fair trial.
The government had to prove that the citizen’s intent to hold an assembly could endanger national security or public order, to prove that this danger was so serious that the ban of assembly was “necessary in democratic society” (according to international treaties Ukraine ratified). However, meeting the City Council demand the court ruled that 50 people would obstruct movement in a huge square, obstruct people’s fun and leisure in the square (in a middle of work day), etc. Ad absurdum.
What could the defendant do after the court decision? He could appeal during 10 days. However, it does not matter for the assembly since the ban comes into effect immediately and the appeal court is in no hurry at all to process the citizen’s appeal. Therefore, a citizen does not have even a theoretical oppotunity to reinstate his right before the planned assembly date.
Theoretically, the appellate court could rule that the government should not have “recommend the citizen to drop the idea of assembly” and should have assisted him in holding the event in a more suitable place. The appeal court could even invalidate the ruling of the first instance court; however this would have been post factum, after the planned assembly date.
These three cases in Kharkiv are not exceptions. Similar court hearings occur everywhere supporting similar legally negligible government arguments. According to our monitoring, Ukrainian courts supported 83% and 88% of city council lawsuits to ban assemblies in 2010 and 2011 respectively. However we still have no idea how many lawsuits were filed by Kharkiv City Council and supported by Kharkiv courts since the City Council gives no answer to repeated information requests and the city prosecutor does not react to complaints about violation of the law “On access to public information”. Almost all active NGOs, trade unions and political parties in Kharkiv had assemblies banned by the local administrative courts at least once.
Albert Dicey – one of the most renowned constitutional law theorists wrote that specific evidence should be provided and assumptions of any kind are unacceptable to restrict the right to peaceful assembly. However what do the theories and Constitution of Ukraine have to do with the Ukrainian government?
The court rulings in Kharkiv were also substantiated by something titled “Provisional regulations on the issues of organizing and holding meetings, rallies and demonstrations, marches” adopted by Kharkiv city council in 2007. According to the Code of Administrative Procedure, court can 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 Constitution and the laws and are the arbitrary actions of the city councils.
We filed the complaints to prosecutors of all regional (oblast) centers where such regulations are used, some prosecutors opened legal proceedings to invalidate the regulations (e.g. in Lutsk), some illegally dismissed our complaints (e.g. in Kharkiv), most totally ignored. however we will try to use all legal instruments to invalidate them all.
Unfortunately the described court practice is not related only to the right of peaceful assembly. We had encountered ourselves the mockery of justice concerning the implementation of the right to information, when trying to challenge in appeal courts the illegal acts of government bodies. Of course under such circumstances the terms “rule of law”, “equality and adversary of the parties in the process” could be used only sarcastically.
The courts in Ukraine mostly ignore their main task as defined by Code of Administrative Procedure, i.e. “the defense of the rights, freedoms and interests of citizens … from violations of central and local governments and their representatives”. In the cases described above the Ukrainian state violated not only domestic law but also international treaties – Convention for the Protection of Human Rights and Fundamental Freedoms and International Covenant on Civil and Political Rights
There is a huge gap between actually performed “justice” and fair procedure. Actually performed “justice” is a medieval mockery of the concepts of justice. The mockery of justice servile to the government kills any shoots of legal culture in society, invokes hostility towards government and forces civic activists to neglect the law. What is the sense of abiding the law if the law is not right and the justice is not fair? The government is destroying its legal base this way but they do not see it and do not care….
Natalka Zubar, CEO of Civic Information and Methodology Center “Vsesvit”
Olexander Severyn, doctor of law
with kind help of Michael Savchyn, doctor of law