CASE OF CHUMAK v. UKRAINE
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1968 and lives in Stryzhavka. 6. On 12 September 2006 the applicant submitted a written notice to the mayor of Vinnytsia informing him that the Chumatskyy Shlyakh civic youth association (“the Association”) registered in Vinnytsia, of which he was chairman, intended to hold a picket (пікет) outside the Vinnytsia Regional Authority (“the regional authority”) building. The notice read as follows: “We inform you that, starting from 14 September 2006 our organisation will hold a picket [in front] of the [regional authority] for an indefinite term in view of the unhealthy, in our view, social and economic state of affairs in the region. Beginning of the picket: 14 September 2005 at 14:00. Place: square in front of the [regional authority] building; Responsible person according to the decision of the Association’s management: Chumak S.V. [the applicant]. Chairman of the [Association] Chumak, Sergiy Viktorovych.” 7. According to the Government, the Association’s officially registered chairman at the material time was a certain Igor Viktorovyh Chumak. The applicant was neither the chairman, nor could he even be a member of the Association because according to the Association’s charter, membership was open to persons under the age of twenty-eight. At the time of the relevant events the applicant was older. 8. On 13 September 2006 the mayor’s office forwarded the applicant’s notice to the police, requesting that they maintain public order during the demonstration. 9. On 14 September 2006 the Association started the picket as intended. According to the applicant, several other local groups joined the action and two small camping tents (measuring 2 by 2 metres) were erected by the walls of the regional authority building on a 15-metre wide street for storing handout materials and displaying the protesters’ slogans. 10. On 15 September 2006 the executive committee of Vinnytsia City Council instituted administrative proceedings seeking “to enjoin the [Association] not to organise and carry out pickets on the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully erected ‘small architectural structures’ (малі архітектурні форми).” The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers-by, acting arrogantly towards them, obstructing the traffic and pedestrians and endangering the lives and health of local residents. Referring to Article 182 of the Code of Administrative Justice (“the CAJ”, see paragraph 20 below), which provided for the lodging of an action before the start of a picket, the plaintiff asked the court to admit its action for consideration out-of-time on the grounds that only after the picket had started had it become apparent that the protesters intended to engage in inappropriate conduct. The statement of claim was supplemented with applications by V.Ch. and Y.S., two passers-by, addressed to the police, in which they complained that the protesters had “acted arrogantly”, had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics. 11. On the same date the Leninskiy District Court in Vinnytsia (“the District Court”) held a hearing at which the applicant, representing the Association, denied the allegations that the picketers had engaged in any inappropriate conduct. According to him, during the hearing he had unsuccessfully made several requests for the production of evidence. Notably, he had requested that V.Ch., Y.S. and the police officers present at the site of the picket be summoned for questioning; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented; and that the site be inspected in order to determine whether, in fact, the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians. 12. Later on the same date, the District Court allowed the claim, having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately. The relevant part of the judgment read as follows: “... [the] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event, which fact resulted in missing the time-limit for lodging a court action as required by paragraph 1 of Article 182 of the Code of Administrative Justice of Ukraine; the court therefore resets the procedural time-limit ... The court, when deciding the case, takes into account that the participants in the event installed small architectural edifices on the pavement. In addition, during the event, they acted arrogantly, thus offending other citizens, obstructed the passage of pedestrians along Soborna street, and endangered road users, a fact confirmed by the complaints from Y.S. and V.Ch. In addition, the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely. Also the number of protesters is not defined ... and it may gradually increase. Accordingly, at any time during the picket of indeterminate length, it cannot be excluded that those taking part might repeatedly breach public order.” 13. The court also noted that the picket “may potentially encroach upon the rights and freedoms of other local residents” and held as follows: “[the court holds] to prohibit [the Association] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia, [and] from installing small architectural edifices in Vinnytsia; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [Administration’s] building ... To allow immediate enforcement of the court ruling ...” 14. At 9 p.m. on 15 September 2006 the protesters were dispersed by the police. 15. On 29 September 2006 the local registry office informed the applicant that V.Ch. and Y.S. were not registered as residents at the addresses indicated by them in their complaints lodged with the police. 16. On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006, which he signed as the Association’s chairman. He submitted that under Article 182 of the CAJ, a plaintiff’s action could not be examined when it had been lodged out of time. He further submitted that the court’s factual conclusions had been devoid of an evidentiary basis. In particular, there was no evidence whatsoever that the protesters had breached the law, apart from the complaints by V.Ch. and Y.S., who had given false home addresses and thus could not be identified. The applicant further complained that the court had rejected his request that those individuals be located and summoned, and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters. He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law (if any) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as “architectural structures” and whether there had been any obstruction of traffic or pedestrians. Lastly, the applicant complained that the sanction imposed by the District Court (a total and permanent ban on the Association organising peaceful assemblies in Vinnytsia) had been arbitrary and disproportionate. 17. On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant’s appeal and decided that, in view of namely, the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration) the administrative action lodged by the executive committee could be accepted for examination. It agreed with the District Court’s findings of fact and noted, in particular, that by installing the tents, the protesters had breached section 16 of the Populated Localities Development Act and section 18 of the Automobile Roads Act. At the same time, the Court of Appeal found that the sanction imposed on the protesters had been disproportionate. In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage a form of assembly such as the “picketing” of administrative buildings “with the installation on the streets of small architectural structures”. Accordingly, the court found that the term “peaceful assemblies” in the operative part of the District Court’s judgment had to be substituted with the term “pickets”. The court then rejected the applicant’s remaining arguments as unsubstantiated. 18. On 1 April 2009 the Higher Administrative Court of Ukraine dismissed an appeal on points of law lodged by the applicant.