Protest against the felling of trees into a park and protestors’ rights.
Chernega and others v. Ukraine 18-06-2019 (no. 74768/10)
A protest againstthe felling of trees in a public park to build a road. Allegations of violations of protesters’ rights. State responsibility for acts of private guards recruited by a private company and coercing in the presence of the police. The ECtHR found that (a) the authorities did not conduct a proper investigation into alleged allegations of ill-treatment by two of the applicants; (b) that two other applicants were prevented from attending the hearing before the Court of Appeal; and (c) ensure the peaceful nature of the protests, mainly due to confusion about the role and powers of private security personnel and police in the region. Infringement of Articles 6 § 1 (right to a fair trial), 11 (right to peaceful assembly) and 3 (procedural aspect of the prohibition of inhuman and degrading treatment) of the ECHR
Article 6 § 1
The applicants are 11 Ukrainian nationals:
1. Denis Vadimovich Chernega, 2. Andrey Andreyevich Yevarnitskiy, 3. Gennadiy Leonidovich
Kovshyk, 4. Boris Yevgenyevich Zakharov, 5. Andrey Vladislavovich Yevarnitskiy, 6. Igor Fyodorovich
Yasinskiy, 7. Lyubov Vladimirovna Melnik, 8. Sergey Sergeyevich Melnik, 9. Andrey Viktorovich
Tsukanov, 10. Valeriy Yuryevich Bortnik, and 11. Mr Sergey Anatolyevich Kirilin.
They were born between 1957 and 1983 and they all live in Kharkiv.
The applicants took part in protests in May, June and July 2010 against the felling of trees in Gorky
Park in Kharkiv as part of a road-building project. The area was guarded at the time by security
guards hired by the contractor, but police officers were also in attendance.
In particular, the applicants alleged that the ninth applicant had been beaten on 27 May by
unidentified men in orange vests while the seventh had been assaulted several days later by men in black clothing with badges of the security company, Municipal Guard, a municipality-owned firm hired by the main contractor.
The applicants alleged that the third applicant had been threatened on 2 June by two workmen
holding chainsaws, however, the Government stated that it was the protesters themselves who had
approached the workmen, who had then retreated, holding their equipment out in front of them.
The first six applicants, and the eighth and the tenth, were arrested during the protests and were
charged with malicious insubordination to the police for refusing to leave the construction site.
The first and second applicants were found guilty of the charges and given sentences of 15 days
administrative detention, reduced to nine days on appeal. However, they were not present at the
appeal hearing. The sixth applicant (arrested on a different day and under different circumstances
than all the others) was given 10 days’ administrative detention while the other applicants who had
been arrested were fined or had their proceedings discontinued.
The protesters, including some of the applicants, complained to the authorities that they had been
assaulted by workmen and security guards during the protests and that the police had done nothing
to protect them. Neither the prosecutor’s office nor the police instituted any criminal proceedings.
THE DECISION OF THE COURT
The Court first held that the State could be held responsible for the actions of security guards, even
though they had been engaged by a private entity and had operated on the basis of a commercial
security guard licence. This was because they were authorised by law to exercise a certain degree of
compulsion and had operated mostly in the presence of police who had remained largely passive in
the face of most of their actions.
The Court declared the third applicant’s complaint under this provision as inadmissible for being
manifestly ill-founded. Video evidence corroborated the authorities’ findings that he had put himself
in danger by approaching a workman holding a chainsaw and that that person had not threatened
him. Nor could the Court find proof beyond a reasonable doubt that the seventh and ninth
applicants had suffered ill-treatment during clashes with security men in black and with workers,
which would have required the authorities to protect them.
However, the seventh and ninth applicants had had an arguable case as their injuries had been
documented, meaning that the authorities had had a duty to carry out an effective investigation.
In fact, the prosecutor’s office and the police had withheld or delayed communicating information –
in particular, the applicants had only learned of a decision by the police in August 2010 not to pursue
criminal proceedings over the applicants’ allegations of ill-treatment from the Government’s
observations on their Strasbourg case.
The applicants had not been able to challenge the authorities’ decisions in court, while the gathering
of full medical evidence had been hampered by the prosecution’s classification of its investigation as
a “pre-investigation” enquiry. In addition, the authorities had never investigated serious allegations
that there had been people present on the site of clashes who had worn security badges but who
were not duly authorised guards.
The Court thus found that there had been a violation of Article 3 under its procedural limb as regards
the seventh and ninth applicants.
Article 6 § 1
The appeal court in the first and second applicants’ cases had reviewed both the facts and law and
their presence in court had therefore been essential. Their lawyer had not specifically requested
they attend, but that was not a clear and unequivocal waiver of their right to be present.
In fact, they had not been informed of the hearing and there appeared to be no procedure in place
to permit people in detention, as they were at the time, to ask to be taken to court for appeal
hearings in administrative-offence cases. They had therefore neither waived their right to be present
in an unequivocal manner nor benefited from sufficient safeguards to ensure that such a waiver was
effective. There had therefore been a violation of both applicants’ rights under this Article.
The Court declared that several of the applicants’ complaints were inadmissible, including
allegations of violence against them during several of the days of protest and of threats from
workmen cutting down the trees and police officers. Other complaints by the first to the seventh
and the ninth applicants were admissible.
It found that there had been an interference with the first six applicants’ right to peaceful assembly
as they had been arrested and penalised for taking part in the protests. Rejecting the applicants’
allegation that those actions had been unlawful because there had been no court decision banning
their protest, the Court focussed on the question of whether the authorities’ actions had been
The first and second applicants had been sentenced to administrative detention for failure to obey
police orders to leave the area of the park marked as a construction site. However, it was not clear
who had issued that order – notably whether it was a police officer or a representative of one of the
companies involved in the construction project – and it could not be ruled out that there had been
confusion as to both the source of the order and how to comply with it(echrcaselaw.com).