Ban on peaceful demonstration. The lack of a clear legal basis for the ban violated freedom of assembly
JUDGMENT
Cheremskyy v. Ukraine 07.12.2023 (app. no. 20981/13)
SUMMARY
The Executive Committee of the Kharkiv City Council asked the local court to prohibit the peaceful demonstration that the applicant intended to hold under the banner “Ukraine for Fair Elections” in a park in the city centre. The local authorities and the courts based this decision on the provisional legislation regulating the procedure for holding peaceful demonstrations.
Relying on Article 11 (freedom of assembly) of the ECHR, the applicant claimed that the ban was not based on the law. In particular, he pointed out that for 30 years the Government had not passed a law laying down clear and unambiguous rules for the holding of peaceful assemblies. Instead, restrictions were based on decisions taken at local government level, which unduly interfered with the freedom of peaceful assembly and were applied selectively.
The Court observed that it did not appear that the domestic case-law and judicial decisions in the present case compensated for the lack of a clear legal basis, in the applicable legislation, for the impugned restriction on the applicant’s right to freedom of assembly and, on balance, held that the restriction on the applicant’s right to hold an assembly was not based on legal provisions that met the requirements of the Convention on the Quality of Law.
Accordingly, the ECtHR found a violation of freedom of assembly (Article 11 ECHR) and awarded EUR 3,000 for non pecuniary damage.
PROVISION
Article 9
PRINCIPAL FACTS
On 11 August 2012 the applicant informed the local police in Kharkiv of his intention to hold a peaceful assembly, under the banner of “Ukraine for fair elections”, from 12 August 2012 onwards, for an indefinite period of time, in Shevchenko Park in Kharkiv city centre. The police transmitted the applicant’s notice to the Kharkiv City Council (hereinafter “the Council”).
There is no information of whether the applicant actually attempted to hold the demonstration on 12 August 2012 as he declared to the authorities.
On 13 August 2012 the Executive Committee of the Council decided that the assembly that the applicant planned to hold should not be permitted and requested the local court to prohibit it.
On the same day the Kharkiv District Administrative Court allowed the request and prohibited the assembly. The court noted that the matters under examination were regulated by the Temporary Regulations on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Kharkiv, which were binding under section 73 of the Local Self-Government in Ukraine Act (see paragraphs 13 and 14 below respectively), and that the procedure as set out in those regulations for the examination by the local authorities of the applicant’s notification had been observed. The court based its decision to ban the assembly on the following grounds: (a) the notice sent by the applicant did not provide clear details of the assembly; (b) the notice had not been sent a reasonable time in advance (it was dated 11 August 2012 and had been received by the Council on 13 August 2012, whereas the assembly had been scheduled for 12 August 2012); (c) the applicant planned to hold an assembly for an indefinite period of time; (d) the applicant had chosen the city centre as the location for the assembly, not far from areas with significant levels of road traffic; and (e) the proposed location of the assembly was a place where the people of Kharkiv liked to rest and take part in leisure activities. The court further noted that “there was no evidence to prove that the assembly was not contrary to the interests of the inhabitants of Kharkiv”. Moreover, the assembly could pose a risk to their health and life, as well as their right to move about safely in the city. The court also stated that “the material in the case file [did] not demonstrate that there [was] no possibility of a violation of the rights and freedoms of people [not participating in the assembly]”.
On 17 September 2012 the Kharkiv Administrative Court of Appeal dismissed the applicant’s appeal. The court noted that the time and place of the assembly coincided with the time and place of the Honey Fair and the Flower Show, which were to take place from 14 to 23 August 2012 in the same park. The holding of the assembly at the same time and place as those events could lead to a breach of public order and a threat to safety, because the applicant’s assembly could spontaneously be joined by an unknown number of people. If this were to happen, the number of participants in the applicant’s assembly would increase and the assembly would become unmanageable, all of which would hinder the movement of people and vehicles.
On 15 November 2012 the Higher Administrative Court rejected a request by the applicant for leave to appeal on points of law.
THE DECISION OF THE COURT…
The Court notes that no new legislation on freedom of assembly has been adopted in Ukraine since its above conclusions in Vyerentsov (ibid.) and, therefore, sees no reasons to depart from them in the present case.
The Court further notes that the Code of Administrative Justice, and its Article 182 in particular, provides for the procedure whereby the courts may impose restrictions on freedom of assembly “in the interests of national security and public order”, to avert “a real risk of disturbances or crime” or the endangering of “the health of the population or the rights and freedoms of other people”. In the Court’s opinion, this wording, which reproduces similar wording in Article 39 of the Constitution and Article 11 of the Convention, merely confirms that the right to freedom of assembly is not an absolute right and may be restricted for the purposes enumerated therein. In any event, the domestic authorities and the courts in the present case based their decisions to restrict the applicant’s right to freedom of assembly on the Temporary Regulations on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Kharkiv.
It is true that under Section 38 § 1 (b) (3) of the Local Self-Government in Ukraine Act, the legislator has delegated to local authorities powers to resolve issues concerning the holding of mass events and to secure public safety and order during the holding of such events. However, it does not appear that this delegation included rule-making powers on matters that required regulation by Act of Parliament. Despite this, the Temporary Regulations, an act of the Kharkiv municipality, purported to actually establish substantive rules and restrictions on organising and holding demonstrations in the city. In light of the requirements of Articles 39 and 92 of the Constitution such rule-making exercise by the local authorities on such important matter as freedom of assembly does not appear to have a legal basis in Ukrainian law and, therefore, the lawfulness of any restriction based on such an act of secondary legislation as the Temporary Regulations in question, is open to serious doubt.
The Court further observes that it does not appear that the domestic jurisprudence and the courts’ decisions in the present case could be seen as having compensated for the lack of clear legal basis, in the applicable legislation, of the impugned restriction on the applicant’s right to freedom of assembly. Indeed, the position taken by the Constitutional Court in its 2001 decision was that this can only be done by the adoption of legislation. Also, in the present case the local authorities and the courts focused on verifying whether the restrictions on the applicant’s freedom of assembly were in accordance with the restrictions which had been introduced by the local authorities, ignoring the apparent lack of legal basis for them to engage in such rule making themselves. In particular, the decision of the first-instance court suggests that it considered the Temporary Regulations to be binding and thus it limited itself to checking whether there were any procedural violations in their application.
The Court also notes that, in absence of clarity regarding the criteria for imposing restrictions on the freedom of assembly, the local authorities and the courts made a number of assumptions hat could be seen as rendering practically impossible any decision allowing the holding of a peaceful assembly. The Court is particularly concerned at the requirement placed on the applicant to prove that his assembly was not contrary to the interests of the local population. If this requirement is understood as referring to “interests” in the ordinary general sense of the word, it is important to emphasise that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by persons holding dissident views – as the authorities seem to have suggested in the case of the applicant – were made conditional on its being accepted by the majority (see, mutatis mutandis, Barankevich v. Russia, no. 10519/03, § 31, 26 July 2007). Moreover, such a requirement would seem to constitute an impossible task for anyone wishing to gather peacefully and express opinions, especially when such opinions are not favourable to those who are responsible for ensuring the right to peaceful assembly, and, moreover, appears to leave the issue of permission for any assembly in the city at the complete and unrestrained discretion of the local authorities.
In the light of the above, the Court considers the restriction of the applicant’s right to hold an assembly was not based on legal provisions that met the Convention requirements of quality of the law.
Having reached this conclusion, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in Article 11 § 2 have been complied with.
Accordingly, there has been a violation of Article 11 of the Convention.
