CASE OF SHMUSHKOVYCH v. UKRAINE
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Public hearing)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Stanislav Shevchuk
5. The applicant was born in 1979 and lives in Odessa. 6. The applicant is a vice-president of Zelyonka (Зелёнка), a non-governmental youth organisation, and a member of the Odessa City Council. 7. On 17 March 2009 the applicant, acting on behalf of Zelyonka, notified the Odessa City Mayor and the Head of the Prymorsky District Police Department of Odessa of the organisation’s intention to hold a peaceful assembly (picket) in front of the Odessa City Council building on 19 March 2009 from 11 a.m. to 1 p.m. The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by the Council’s Department of Construction. 8. In reply, by a letter of the same date, the Odessa City Council informed the applicant that holding a picket within such short notice was liable to be considered unlawful. The letter indicated that, pursuant to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree – see paragraph 18 below), notification had to be given no later than ten days prior to the meeting in question. It further indicated that the Constitutional Court, in its decision of 19 April 2001 (see paragraph 20 below), had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting. It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in Ukraine and that the 1988 Decree was still in force. The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph 2 of the 1988 Decree and the person responsible held administratively liable under Article 185-1 of the Code of Administrative Offences (the CAO). 9. The picket took place as planned between 11 a.m. and 1 p.m. on 19 March 2009. According to the applicant, it was peaceful and only a few people took part in it. The police report of the same day noted that about 250 persons had taken part in the picket and that there had been no violation of public order. 10. On 4 April 2009 a police officer of the Prymorsky District Police Department of Odessa drew up an administrative offence report, in the applicant’s presence, indicating that on 19 March 2009 the applicant had organised and held a picket in violation of Article 185-1 of the CAO and the decision of the Constitutional Court of 19 April 2001. The applicant signed the report, adding a note to the effect that he considered his actions lawful. The report was referred to a court. 11. On 15 May 2009 the Prymorsky District Court of Odessa (“the District Court”) examined the applicant’s case. According to the record of the hearing, provided by the Government, the questioning took place between 1.24 and 1.34 p.m. After that the judge retired to the deliberations chamber. At 2.27 p.m. the judge publicly pronounced judgment and the hearing closed at 2.32 p.m. According to the Government, the full text of the judgment was pronounced publicly and three hours later the court clerk handed a hard copy of the judgment to the applicant’s representative. According to the applicant, the judgment was not pronounced in public but given to his representative in writing three hours after the end of the hearing. 12. In that judgment the District Court found that the applicant had violated public order by failing to give the Odessa City Council sufficient advance notification of the picket he had organised. The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him 170 Ukrainian hryvnias (UAH) (17 euros (EUR)). The court held, in particular, that the applicant was in breach of Article 185-1 of the CAO because he had not complied with the ten-day notification requirement. The court based its findings on the 1988 Decree, which provided that an application to hold an assembly had to be lodged with the relevant authority at least ten days in advance. The court further referred to the decision of the Constitutional Court and noted that the exact time-limits for notification were to be regulated by law. It further indicated that the 1988 Decree was valid in Ukraine under the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union (see paragraph 19 below). The court also pointed to the fact that the applicant had been informed by the Council that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability. 13. On 25 May 2009 the applicant appealed. He argued that the 1988 Decree, on which the first-instance court had based in its decision, was invalid and contrary to the Constitution. In particular, he noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only that the authorities had to be notified of an intention to hold such an assembly. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, whereas the 1988 Decree was not a law of Ukraine. He further noted that at the time of the picket there had been no judicial decision restricting the above-mentioned picket as required by Article 39 of the Constitution. The applicant also contended that his punishment violated Article 11 of the Convention and was not necessary as the picket had been peaceful and had not violated public order. Lastly, he complained that the decision in question had not been pronounced publicly which was contrary to Article 285 of the Code of Administrative Offences (see paragraph 17 below) and to Article 6 § 1 of the Convention. 14. On 16 July 2009 the Odessa Regional Court of Appeal, ruling in the presence of the applicant and his representative, upheld the decision of the first-instance court. Its ruling contained a summary of the facts of the case, outlined the applicant’s arguments and included an analysis of the pertinent legislation in line with that of the first-instance court. As to the applicant’s argument that it was unnecessary to punish him, the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it. The court did not however address the applicant’s complaint that the first-instance court’s judgment had not been pronounced publicly. 15. The applicant has not paid the fine. 16. The relevant provisions of the Constitution read, in so far as relevant, as follows: “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.” “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand. Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons. “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...” “1. Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...” 17. The relevant provisions of the Code read, in so far as relevant, as follows: “A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage. The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.” Article 285 Pronouncement and service of decision regarding an administrative offence “A decision shall be pronounced immediately after the examination of the case. Within three days a copy of the decision shall be given or sent to the person concerned ...” 18. The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia: “The Constitution of the USSR, according to the interests of the people and for strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom of meetings, rallies, street marches and demonstrations. The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings, streets, squares and other places... 1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies... 2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question... 3. The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application... 6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.” 19. The resolution provides in particular: “ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.” 20. In its decision the Constitutional Court held inter alia: “1. ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations. In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions... ... the Constitutional Court holds as follows: 1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others. Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...” 21. On 21 May 2012 the Plenary of the Higher Administrative Court of Ukraine by its Decree No. 6 decided to send this note for information to the judges of lower administrative courts. The note mentioned, inter alia, as follows: “...The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect. Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...” 22. In a judgment of the Babushkinsky District Court of Dnipropetrovs’k of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovs’k City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens. 23. In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree. The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 20 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others. It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention. 24. In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed a judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects. The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine. 25. Other relevant domestic law and practice and the relevant international documents can be found in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 26, 32, 33 and 38 to 43, 11 April 2013).