Freedom of peaceful assembly in Ukraine: need a real solution

Author: Marina Stavniychuk, chairman of the Public Union “For Democracy through Law”, member of the Venice Commission of Ukraine (2009-2013)

The issue of freedom of peaceful assembly can be safely attributed to the list of legislative phantoms national parliamentarism. This issue is again actualized. But, frankly, in the 26th year of independence – rather miserably.

Mountain gave birth to a mouse

The Constitutional Court of Ukraine in early September ruled in the case on constitutional representation of the Ukrainian Parliament Commissioner for Human Rights on compliance with the Constitution of Ukraine (constitutionality) of the provisions of Part. 5 of Article 21 of the Law of Ukraine “On Freedom of Conscience and Religious Organizations” (the case of advance notice of holding public worship, religious rites, ceremonies and processions). As might be expected, the SIC concluded that these provisions of the Act and the Decree of the Presidium of the USSR Supreme Soviet “On the procedure for organizing and holding meetings, rallies, marches and demonstrations in the USSR” (from 1988) did not meet the Constitution and null and void.

Let me remind you that, according to these acts, to conduct peaceful assembly had to get the permission of the relevant public authority or local government. Whereas Article 39 of the Constitution provides for not licensing and notification mechanism: according to it is enough to advance to warn authorities about the planned mass actions by citizens.

KSU is squeezed out of himself and so the obvious solution for almost a year. This is understandable. The point is “difficult”! (Not that, for example, changes to the Constitution of Ukraine in terms of justice, against which preventive controls implemented in one Saturday afternoon). For the case were brought DLC, the unit ASU, the Ministry of Justice, Culture, Interior, Security Service, SACU, Kyiv City State Administration, Ukrainian Helsinki Human Rights Union, Ukrainian Rada of Churches and Religious Organizations, the Institute for Religious Freedom, Legal Adviser OSCE Project Coordinator, scientists Kiev, Lviv and Uzhgorod National University, the National Academy of internal Affairs, National Law University.

I bring this extraordinary list of participants in the process of constitutional review to pokazat6 actually this huge mountain brought forth a mouse …

“Tick” and the laws of nature

Most interesting is that in his address to the LCP there was no point: the issue of who a year studying the judge – is not a subject of dispute! (Of course, the proponents of formal-positivist approach argue: how did – unconstitutional norm in the Law on Freedom of Conscience and Religious Organizations was 1991 dispute was!)

I note that with the same success of the Human Rights Ombudsman and his staff (about 250 people) could appeal to the Constitutional Court with the question as to whether the laws of nature, for example, snow in the middle of summer? “Yes, it is contrary to the laws of nature”, – have told the judge through the calendar year of dismal thoughts. Then all would be well.

COP may even be proud of: it went beyond the subject presentation Ms. Commissioners. Since taking into account the approach of the European Court of Human Rights in the issue of consideration of religious gatherings as a variety of peaceful assembly, ruled unconstitutional also a corresponding decree of the Presidium of the USSR Supreme Soviet. Neither authorized nor CCS are not particularly worried about the fact that they did, in fact, meaningless affair. We are talking about non-compliance of the Constitution of laws and decrees adopted before the adoption of the current Constitution. While directly in the order of the first article of the Transitional provisions of section 15 of the Constitution clearly established that the laws and other normative acts adopted before the entry into force of the Constitution are applicable to the extent not inconsistent with the Constitution.

Обосновывая отсутствие конституционного спора в вопросе свободы мирных собраний, прежде всего вернемся к позициям автора конституционного представления, которые изложены в Ежегодных докладах Уполномоченного о состоянии соблюдения и защиты прав и свобод человека в Украине (2012–2015 гг.). В этих докладах содержатся обобщенные рекомендации Уполномоченного ВРУ относительно срочного принятия соответствующего закона. Кстати, в 2016-м Доклад вообще уже не содержит такого мониторинга. Разве что упоминание о “неоднократных обращениях в Министерство культуры о необходимости внесения изменений в ЗУ “О свободе совести и религиозных организациях”, бездеятельность которого побудила Уполномоченную обратиться в КСУ. Будто не парламент, а Минкульт принимает законы. Оригинально!

It should also be noted that the submission of the Commissioner is not often, but refers to the case of the European Court of Human Rights, in particular against the Russian Federation and against Greece … However, there are no references to the key is for the Ukrainian business in matters of freedom of peaceful assembly, especially “Verentsov against Ukraine” (2013). Namely, in this decision the ECtHR finds a violation of articles 7 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, due to the presence of legislative omission in relation to regulation of freedom of assembly, in the existing legislation of Ukraine for more than two decades.

Therefore, the European Court of Human Rights pointed directly Ukraine on the systemic nature of the problem and called for an immediate reform of legislation and administrative practices of Ukraine to bring them in line with the conclusions of the Court and the requirements of the Convention.

A similar legal position as being already national practice, the ECHR states in yet another key decision – in “Shmushkovich against Ukraine” (2013), referring to the decision of the plenum of the SACU 21.05.2012 number 6: “… In judicial practice, in the course of solving cases on limiting the rights of peaceful assembly are instances of the order of the place of organization and holding of meetings, rallies, marches and demonstrations, established by the Decree of the Supreme Soviet of the USSR from July 28, 1988 № 9306-XI “on the procedure for organizing and conducting meetings, rallies , Marches and demonstrations in the USSR “. This approach is flawed vessels. […].”

Given this approach, for many years SACU unsuccessful appeals to the president, parliament, government to the issue of legislative regulation of relations in the realization of the right to peaceful assembly. Last appeal dated May 2015 – is to inform about the measures taken Prosecutor General of Ukraine! This is understandable, it is a criminal inactivity of subjects of authority.

In the end, it is necessary to recall the decision of the CCS on April 19, 2001 № 4-pr / 2001 in regard to the advance notification of peaceful assemblies, which also found that the timing of notification of peaceful assembly shall be subject to legal regulation.

Position consisting in the urgent need to eliminate the legal gap, and adhere to international organizations, the scope of which includes the issues of democracy, rule of law, freedom. The PACE Resolution 2116 (2016), adopted in May this year, once again demonstrates the lack of concern in Ukraine legislation on freedom of peaceful assembly. The Venice Commission since 2006 and to date has provided Ukraine has four conclusions on draft laws on peaceful assembly, and can be expected to fifth in October this year. ODIHR / OSCE, the UN and its agencies offer endless advice and carry out activities aimed at realization of the Ukrainian authorities the need to ensure the right to peaceful assembly properly.

So, KSU, together with the Commissioner, and along with an army of government officials, experts, scholars have spent years of time and taxpayers’ money, doing business that does not require its intervention as a court of law.

KSU decided not to have any impact on the effective solution of the problem of freedom of peaceful assembly in Ukraine. After all, in the constitutional and legal doctrine, and in political reality, as well as in the practice of peaceful assembly, in national and international justice in recent years reached a single overall legal position – the need to create a legislative mechanism pursuant to Articles 39, 92 of the Constitution to ensure peace Meeting in Ukraine based on the rule of law, the absolute priority of natural rights and freedoms, and consequently – the presumption of freedom …

Thus, the decision of the SIC, on which the Court has been working for almost a year, there is the “tick”, one of them put themselves Office of the Ombudsman for Human Rights BP, the other – he KSU. Another – all power: everyone will be talking to the UN and the OSCE, the Council of Europe about how exhausting they work and move forward … All of this fits into the modern “reforms” coordinate system – an imitation instead of real work. Even more than that: the situation with the appeal to the Constitutional Court on the obvious question and one-year period in consideration of the LCP is yet another shining example, I’m sorry, state and legal ignorance. While this ignorance will reign in power, we will live in a democratic country, we silently watch the insolvency and elementary irresponsibility, lack of political and legal culture, professionalism,

In search of meaning

Of course, I understand that there are limits to judicial discretion and authority of the court. However, convinced that it is always necessary to find a balance between the legal position of the Court and the positive impact of this position on the functioning of the country’s legal system and the formation of legal policy in the state. Otherwise, all meaning is lost. Therefore, the decision of LCP, and in particular the opinions of judges, I was struck by an absolutely formal approach, although considered one of the priorities of the constitutional rights of citizens of Ukraine, which is already more than 25 years, the state is not ensured. In this case, Article 70 of Law of Ukraine “On the Constitutional Court of Ukraine” gives the right to the Court, if necessary, to determine in its decision the procedure and terms of its execution, even entrust the relevant state authorities the obligation to implement that decision. Furthermore, the law gives the right to require proof of implementation of the decision. However, the composition of the LCP did not consider it necessary or not at all capable of influencing all available means to eliminate the complex constitutional and legal challenges in the realization of the rights of citizens. After all, even a hint of a legal gap and recommendations authorities to immediately eliminate it – no.

If this happens – this consideration would gain at least some legal meaning.

Background of freedom of peaceful assembly

At first glance, the situation is a stalemate. Allegedly decided to clear the narrow question of problems in the sphere of freedom of peaceful assembly, Human Rights Commissioner, the Constitutional Court, and with them all the power left unsolved the problem at all!

But this does not mean that society should not require legislative steps to ensure its Fundamental natural law! On the contrary, these requirements must be clearly articulated. All the more so in fact the authorities here do not need to invent a bicycle. It has long been constructed.

During the 6-8 parliamentary convocations ten (10!) Of bills on the settlement of the problem of peaceful assembly was registered. Work on removing the legal gap, which it is today, it continues to 2006. In December 2015 registered and pending draft 3587 “On guarantees of freedom of peaceful assembly” (main) and 3587-1 (alternate), and even in January 2015 – 1779 – the draft law on amendments to some legislative acts of Ukraine (regarding the rights of citizens in the course of peaceful assembly), which proposes changes in the law, having been the subject of the constitutional petition of Ms. authorized in the KSU. And besides – in the Rada system is still “hanging” project “On the procedure for organizing and conducting peaceful events” 2450 2008 city of fact, from that criticized the bill can be considered, the countdown went to prepare the bill is really modern in this area. Which nevertheless was gained, and even reached the second reading by Parliament in 2013 under the №2508a in the consolidated wording.

The history of the last revealing for two reasons: firstly, the bills now gathering dust in pending VR are pretty much a carbon copy of this document, and secondly – its adoption in 2012-2013. blocked precisely the current power policy, which then led the parliamentary opposition.

Through changes and transformation, tough discussions, even confrontation, through the expertise of the Venice Commission then still managed to create a mainly European law. For example, September 17, 2012 a member of the Group of Experts on Freedom of Peaceful Assembly of the OSCE law professor A.Vashkevich, while in Ukraine, said during a working meeting with me, that, if approved, 2508a bill he can become a model law for the dissemination of the OSCE progressive practice legislative regulation of peaceful assembly for the OSCE countries. In support of the bill also made Ukrainian Helsinki Human Rights Union, and other representatives of the public sector. There were, of course, and opponents.

And most importantly – even the previous government are inclined to believe, to accept the law! But … I did not agree then opposition. The unofficial reason was the following: “the opposition” considers that the adoption of this law will work on positive image of the then power! Because the votes to support is not enough.

The bill was withdrawn.

Today, already in power, the same story is repeated policy by blocking consideration. Tools used in this old, when authorities are not interested in making laws, the braking mechanism is activated through imitation intense activity. You can, for example, replace a few words (such as “militia” to “police”) in the bill and then send it to the Venice Commission. Now the question of freedom of peaceful assembly is running on such a circle: six months after the registration of the relevant laws, just before the summer recess, Speaker Paruby asked the Venice Commission to give an opinion on draft laws 3587 and 3587-1 …

Wandering in a circle, “power needs”

So, in fact, to eliminate the legal gap in the implementation of the freedom of peaceful assembly, the current parliament is necessary to find a political responsibility – to agree and adopt a quality law. As demanded by the Constitution and European partners. Even under its text is quite another name, and the group of authors of this just a few people left.

Fearfully? Maybe someone in the state intuitively confuses the right of citizens to peaceful assembly with their right to resistance, which, in fact, is the right of internal war? Do not be confused! My advice now – guaranteed freedom of peaceful assembly, to avoid having to actually guarantee the right to resist!

PS Just recently, in the period of continuous legal reform of the “new honest government,” I spoke with the head of the fund, poured hundreds of millions in “antikorruptsionerov” and “reformers” (in fact, many of them from the fund and out). And to my remark that the grants actually it would be appropriate to devote to the training of a new progressive legislation, including the Electoral Code and freedom of peaceful assembly, I received more than a laconic answer: “And how much power is needed?”

That’s just it seems that the emphasis grantor had to be different. As far as it is necessary for citizens of Ukraine? Everything would fall into place.

Sourse, 24/09/2016