2013 23/10

This week in Parliament legal guarantees of freedom of peaceful assembly are attempted to be established once again. Draft decrees “On freedom of assembly» № 2508a and № 2508a-1 are to be discussed.

Both bills, oddly enough, have their benefits, and both of them could be taken as a basis.

However, according to the executive director of the Ukraine Helsinki Council for Human Rights Vladimir Yavorsky, the first project is more rationalized and balanced. It seems that, basing on a combination of the both bills it is quite possible to develop a very good draft bill for a second reading.

But it is important to adopt one of them in the first reading. And most likely it is possible in project № 2508a.

“A few months ago I was paying attention to the issue “Why do we need a law on freedom of peaceful assembly”. Since then none of the arguments has lost its applicability, on the contrary, certain arguments become even more important,” – said the Ukrainian expert.

10 arguments in favor of the law “On freedom of peaceful assembly” expressed by one of the authors of the bill № 2508 deputy Andrey Shauchenka.

10 arguments in favor of the law on freedom of a peaceful assembly:

1. The bill is a package solution – it’s not just a new special decree, but also changes in the 9 already existing decrees, in particular, the Code of Administrative Procedure, the Code of Administrative Offences and the Law “On Militia”.

2. Adoption of the decree will be the execution of judgments of the European Court of Human Rights in the case “Verentsov against Ukraine” dated 2013/05/11.

3. Project cancels responsibility under art. 185-1 and 185-2 of the Code of Administrative Offences, which are now used to fine or arrest organizers of peaceful assemblies.

4. The law introduces a clear and comprehensive list of reasons for restrictions of peaceful assemblies, which should put an end to unjustified injunctions.

5. The law provides that failure or late submission of appeal on a peaceful assembly cannot be the reason for its ban.

6. The project provides the possibility of spontaneous assemblies in accordance with European standards.

7. The law guarantees the right to counter-assemblies.

8. The project rests of “positive obligation” on the authorities to ensure the safety of a peaceful assembly.

9. The law provides a separate article on guarantees for journalists’ work during a peaceful assembly.

10. The law excludes the possibility to apply the decree of the Presidium of the Supreme Soviet of the USSR “On the procedure of organizing and holding meetings, rallies, marches and demonstrations”, adopted in 1988, and acts of local government for a ban of peaceful assemblies.

It should be noted that the authors of the draft law and human rights activists in Ukraine consider the adoption of the law very important, as it helps to protect the rights of citizens to go out for public expression and protest. The law is currently important and necessary because of the increasing number of absurd court decisions to prohibit any peaceful assembly.

It is also noted that in the country which is preparing for a membership in the European Union, there is an increase of local regulations which introduce limitations for peaceful protests. The number of such acts of local self-government is increasing, each of which introduces a unique procedure of peaceful assembly. For example, today there are nearly 90 (!) local orders of peaceful assembly in Ukraine. The draft law № 2508a is planned to cancel all of these orders.

Obviously, it is time to stop such initiative of the local authorities who, by their acts restrict peaceful assembly in violation of the actual standards of the right to peaceful assembly of citizens.

As the authors of the bill note, if it goes on like this, people will be able to gather “more than three” only on football or concerts. One cannot continue to ignore these trends, since they lead to the spread of illegal restrictions and strengthening of the repressive mechanisms. (Ed.: it might be the case for a clear example of the actual abolition of the right to peaceful assembly in Belarus by introducing unrealistic in practice and unconstitutional requirements of local authorities in relation to the order of peaceful assemblies – as a result it is almost impossible in Belarus to realize this civil right guaranteed by the Constitution and ICCPR).

What guarantees can give the Ukrainians a new law on freedom of peaceful assembly

Web-site of the newspaper “Ukrainian Truth” presents expert material of the Ukrainian lawyer Vladimir Yavorsky on the matter.

Vladimir Yavorsky, the executive director of the Ukrainian Helsinki Council on Human Rights.____________________________________

Guarantees of a peaceful assembly

The cornerstone of the project № 2508 is the presumption of a peaceful assembly, which retains its peaceful nature. Even if you have not filed or filed the appeal on a peaceful assembly not timely, it does not give grounds for the suspension or restriction of a peaceful assembly.

Only if the meeting is losing its peaceful nature, the police have the right to interfere, and it is exclusively for the termination of offenses, and not to end the meeting itself.

Of course, this part of the law also depends on practice. But at least at the legislative level such guarantees are introduced, on the basis of which establishing of a good practice should be required.

At present, there are no such guarantees: a militia officer in his or her sole discretion, guided by abstract rules of law on the militia, can suspend or restrict any peaceful assembly. There are many examples of such actions.

Not a single militia officer has been punished for such acts ever.

Protection guarantees

The state in accordance with international standards has a positive obligation on the exercise of the freedom of peaceful assembly. Today this obligation is not defined legally, and local governments often transfer it on the demonstrators.

This duty is to protect the participants of the meeting – namely, it is the change of traffic, ensuring the provision of medical care, cleaning, etc.

In Ukraine, when a peaceful gathering is conducted by a minority, it often runs the risk of a violent resistance. And in such a situation, the militia’s duty to protect the participants of the meeting should be the real mechanism of the freedom of a peaceful assembly.

Project № 2508 clearly defines these positive obligations and establishes the possibility of filing a claim for damages in the case of non-compliance of militia’s duties.

Guaranteed protection against arbitrary government

What do we have now?

In Ukraine there are no clear rules on peaceful assemblies. They use mutually exclusive norms and officials juggle them depending on their self-interests.

In fact, today holding or not holding a peaceful assembly depends on the will of a local official.

If your party has a people’s deputy, many journalists, even some influential people – the official will probably be afraid to obstruct. But if you are ordinary citizens – you are completely at the mercy of the official who clearly understands that there will be no legal negative consequences for him or her.

It is very clearly seen from the monitoring freedom of assembly: if the authorities are loyal, peaceful assemblies occur with much less problems than under a hostile ruling power, as for example, in Kharkiv. The authorities there do not want any meetings, so there is more injunctions there, and the police act in a more aggressive manner.

It is clear that the freedom of a peaceful assembly can not depend on the will of the officials. It is important to withdraw the soil in the form of legal ignorance from the officials, which gives them unlimited space to maneuver. The bill № 2508 defines the rights and duties of officials very clearly, completely depriving them of the grounds for arbitrariness.

Of course, the law sometimes can be not performed. But then different legal mechanisms must function – and this is a matter of establishing a positive legal practice, not a question of the law itself.

Today it is not possible to recognize actions of officials, and we can see it from the lack of even a single case of their official punishment for obstacles in the conduct of peaceful assembly.

What will change, if the bill passes?

The guarantee of protection from arbitrary injunctions

Studies of previous years show that about 90% of authorities’ submissions to ban a peaceful assembly are approved by courts for various reasons.

The vast majority of these cases violate international human rights standards. Under public pressure, the percentage dropped this year, but still, unreasonable ban decisions clearly dominate.

Obviously, it is a question of judges depending on the ruling power. But still there are other reasons. Courts also juggle the various rules of law very successfully in different cases using various bases, making full use of legal uncertainty.

The decree № 2508a, except for the definition of clear grounds for banning the assembly, also makes a lot of changes in procedural law by limiting judicial tyranny.

In fact, the decree prohibits about 70-80 % of reasons previously used by courts, and a lot of other reasons are given refinement that will impede their widespread.

It is safe to say that after the adoption of this law, the number of prohibitions should be reduced at least by half.

“I do not see benefits of the decree on freedom of peaceful assembly № 2508a as a cure-all. It contains some controversial provisions. But any of them can be eliminated at the stage of project preparation for the second reading. Especially since the completion of the project is carried out by the parliamentary committee on human rights, which is controlled by the opposition, and the working group on the draft law includes virtually everyone from civil society,” – said Vladimir Yavorsky.

Marina Govorukhina born 02.11.1982. She graduated from the Kharkov University of Internal Affairs and International School of Leadership (Germany). She worked as editor in chief of Ukrainian newspaper “The Bar”.
Opinion of Marina Govorukhina, PR-manager of “Ukrainian Helsinki Council on Human Rights” and member of the board of “Information Center on Human Rights”.

Will the decree worsen the current situation?

The decree № 2508, recommended by the Committee of the Supreme Council of the Committee on Human Rights, National Minorities and International Relations contains the thesis “failure or late submission of application on a peaceful assembly can not be a ground for restricting the freedom of peaceful assemblies” which means that the protesters have no duty to inform the authorities about the event in 24 hours. And this means that courts can not use such reasons as “they submitted the application late” to prevent events.

The project protects spontaneous peaceful assemblies, for which it will be enough to inform the militia in any form or by any means before the peaceful meeting or even during the event.

The draft stipulates that the Code of Administrative Offences will remove two articles on the responsibility for breaking the rules of peaceful assembly.

The draft law (Article 3) prohibits local government to introduce procedures for peaceful assemblies. After all, it should be governed only by the law and the Constitution.

When will be the decree voted for?

In fact, if voting for the bill, the ruling party will already prove its pro-European orientation, and fulfill commitments of the European Court of Human Rights and the Committee of Ministers of the Council of Europe.

Opposition will secure protection from unlawful restrictions and pressure upon activists – organizers of peaceful demonstrations.

Quoting gazeta.dt.ua
Prepared by Aliaksiey Lapitsky
Belarusian Legal Portal

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