In the case of Vyerentsov v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20372/11) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Oleksiy Oleksandrovych Vyerentsov
(“the applicant”), on 21 March 2011.
The applicant was represented by Mr V.M.
Yavorskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr N. Kulchytskyy, from the Ministry of
Justice.
The applicant alleged, in particular, that the
domestic authorities had violated his rights guaranteed by Article 6 §§ 1 and
3, Articles 7 and 11 of the Convention.
On 9 February 2012 notice of the application was given
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and lives in Lviv.
On 17 August 2010 the applicant notified the Lviv
City Mayor on behalf of a local human-rights NGO, “Vartovi zakonu”, of its intention
to hold a demonstration every Tuesday from 10.30 a.m. to 1 p.m. near the
building of the Lviv Regional
Prosecutor’s Office during the period between 17 August 2010 and 1 January
2011. The aim of the demonstration was to draw attention to the issue of
corruption in the prosecution service. The number of possible participants was
declared as up to fifty persons. There is no information as to whether any such
demonstration was held prior to 12 October 2010 (see below).
On 5 October 2010 the Executive Committee of the
Lviv City Council lodged a claim with the Lviv Administrative Court seeking to
restrict the demonstration announced by the applicant. On 6 October 2010 the
court left the above claim without consideration as being submitted too late.
The Executive Committee resubmitted its claim on 11 October with a request for renewal
of the time-limit for lodging the claim. The same day the court allowed the
request and accepted the claim for examination.
On Tuesday 12 October 2010, further to his
previous announcement of 17 August 2010, the applicant informed the City
Council about the demonstration to be held on that particular day. He thus organised
a peaceful demonstration near the Lviv Regional Prosecutor’s Office later that
day between 11.30 a.m. and 12.40 a.m. About twenty-five persons took part. They
were standing on the pavement in front of the building of the Prosecutor’s Office
when the police told them that they should remain at a distance of five metres
from the building. That would have forced the demonstrators to stand in the
road and obstruct the traffic. After some discussion with the police, they
crossed the road and stood on a lawn on the opposite side. The police, however,
told the demonstrators that they could not stand on the lawn and should move
away, which meant standing in the road again and obstructing the traffic,
causing temporary traffic-jams.
Immediately afterwards, the applicant was called
aside by two police officers. They grabbed his arms and took him in the
direction of the nearby police station. Some of the demonstrators requested the
officers to show them their identification and started filming the incident;
the officers then let the applicant go.
On 13 October 2010 the Lviv Regional
Administrative Court granted a request by the Executive Committee of the Lviv
City Council to prohibit the holding of the pre-announced demonstrations by the
applicant’s NGO as from 19 October 2010. The decision was appealed
against.
According to the applicant, on the same day he
was invited to the police station on the pretext that he had failed to appear
at a court hearing to which he had been summoned. Upon his arrival at the
Galytskyy District Police Station at about 5 p.m., the police accused the
applicant of having committed the administrative offences of malicious
disobedience to a lawful order by the police and of breaching the procedure for
organising and holding a demonstration on 12 October. Between 10 p.m. and
11 p.m. the police drew up reports on those administrative offences. The
applicant telephoned his lawyer, but the latter was not allowed onto the
premises of the police station. At 11 p.m. the applicant was placed in a cell,
where he remained without food until 3 p.m. on the next day, 14 October 2010.
On 14 October 2010, before taking him to the
court, the police drew up anew the reports on the administrative offences of
malicious disobedience to a lawful order by the police and of breaching the
procedure for organising and holding a demonstration. In their reports they
referred to provisions of the Code on Administrative Offences and to the procedure
for organising and holding meetings, rallies, street marches and demonstrations
in the city of Lviv (see paragraphs 21 and 28 to 30 below). The reports were
signed by the applicant.
At 3 p.m. the applicant was taken to the
Galytskyy District Court. He had no opportunity to study the case-file
materials before the court hearing. During the hearing, the court rejected the
applicant’s request to be represented by the lawyer of his choosing on the
ground that the applicant was a human-rights defender and could defend himself.
The applicant’s request to summon and question witnesses and examine a video
made during the events of 12 October 2010 was also rejected by the court.
By a decision of the same day, the court found
the applicant guilty of committing the administrative offences of malicious disobedience
to a lawful order by the police, and of breaching the procedure for organising
and holding a demonstration. The court noted that the applicant had held a
street march without the permission of the Lviv City Council and had ignored
the lawful demands of the police to stop breaching the peace. He also refused
to follow the police to their station but instead called the participants in the
demonstration, who shouted and threatened the officers. The applicant denied
all accusations. Having heard the applicant and examined the case-file
materials, the court concluded that the applicant’s testimony was refuted by
the written reports of the police officers and the traffic police officers. The
court noted that the said reports had been drawn up correctly and therefore had
to be taken into account. It sentenced the applicant to three days of
administrative detention starting from 6 p.m. on 14 October 2010 with
reference to the relevant provisions of the Code on Administrative Offences.
At around 6 p.m. on 17 October 2010 the
applicant was released.
On 18 October 2010 the applicant appealed
against the court’s decision of 14 October 2010. In his appeal, he complained
that he had been found guilty even though he had not committed the alleged
offences. He noted that under Article 39 of the Constitution a demonstration
could be held subject to notifying the authorities and any restrictions on
holding one could be imposed only by a court; no permission had therefore been
required. He also noted that he had notified the City Council twice about the gathering
in question and at the time it was held there had been no court decision
prohibiting it. Therefore, he considered that he had organised the gathering of
12 October 2010 lawfully and the conclusions of the first-instance court that
he had “held a meeting without permission of the City Council” had not been
based on law as no such permission was required by domestic law. He further challenged
the conclusion of the police that he had notified the authorities about the event
only a few hours in advance, claiming that he had already done so on 17 August
2010. Furthermore, in his opinion, even the requirement of notification two
days in advance, which had been established by the procedure for organising and
holding meetings, rallies, street marches and demonstrations in the city of
Lviv and to which the police referred in their reports on administrative
offences, was not based on law, as the Constitutional Court in its decision of
19 April 2001 had decided that the procedure for such notification had to be a
matter for legislative regulation.
The applicant further maintained in his appeal
that, in the absence of any lawful restrictions on holding a demonstration,
demands by the police to stop such an event could not be considered lawful and
the law did not provide for liability for disobeying unlawful demands of police
officers. He finally complained that the first-instance court had violated his
right to defend himself as it had refused to allow his lawyer to appear in the
case on the ground that the applicant was a human-rights defender and therefore
able to defend his rights himself.
In a supplement to his appeal of 27 October
2010, the applicant complained that his punishment violated Article 11 of the
Convention. Referring to provisions of Article 6 §§ 1 and 3 (b-d) of the
Convention, he further complained that his right to defend himself had been
violated, and that the first-instance court had refused to question the
witnesses and to examine a video record of the peaceful demonstration.
On 27 October 2010 the Lviv Regional Court of
Appeal examined the applicant’s appeal in the presence of the applicant and his
lawyer and rejected it. It summarised the findings of the first-instance court
and the arguments of the applicant’s appeal. The court noted that the findings
of the first-instance court as to the applicant’s guilt were well-founded and
corresponded to the factual circumstances of the case. Those findings, in the
court’s opinion, were confirmed by the police reports and other explanations
and evidence. In reply to the applicant’s arguments to the effect that there
had been no corpus delicti in his actions, the Court of Appeal noted
that they should be disregarded, because they were refuted by the body of
evidence in the case, without elaborating further on that point. The court
referred in its decision to the relevant provisions of the Code on
Administrative Offences.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
The relevant
provisions of the Constitution read, in so far as relevant, as follows:
Article 22
“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.”
Article 39
“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.
Article 92
“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 ...”
Chapter XV
Transitional Provisions
“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...”
B. Code on Administrative Offences
The relevant provisions of the Code read, in so
far as relevant, as follows:
Article 185
Malicious disobedience to a lawful order or demand by a
police officer, a member of a public body for the protection of public order or
the State border, or a military officer
“Malicious disobedience to a lawful order or demand by a police
officer who is carrying out his official duties ... shall be punishable by a
fine of between eight and fifteen times the minimum monthly wage, or by
correctional labour of between one and two months with a deduction of 20% of
earnings; or, in the event that in the particular circumstances of the case and
with regard to the offender’s character these measures are found to be
insufficient, by administrative detention of up to fifteen days.”
Article 185-1
Breach of the procedure for organising and holding meetings,
rallies, street marches and demonstrations
“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 185-2
Creation of conditions for the organisation and holding of meetings,
rallies, street marches and demonstrations, in violation of the established procedure
“The provision by officials of premises, transport, or
technical means, or the creating of other conditions for the organisation and
holding of meetings, rallies, street marches and demonstrations, in violation
of the established procedure, shall be punishable by a fine of between twenty and
one hundred times the minimum monthly wage.”
Paragraph 1 of Article 268 of the Code provides,
inter alia, for the following rights in respect of a person whose
administrative liability is engaged:
“A person whose administrative liability is engaged shall be
entitled to study the case materials, to give explanations, to present
evidence, to make requests, and to have the assistance of a lawyer ... during
the examination of the case ...”
The right to a lawyer in administrative offence
proceedings is further guaranteed by Article 271 of the Code.
24. According to Article
294 of the Code, a court resolution concerning an administrative offence could
be appealed against. The relevant part of the Article provides as to the
appellate court’s competence as follows:
“A court of appeal shall review the case within the scope of
the appeal. The court of appeal is not limited to arguments of the appeal if
incorrect application of substantive law or violation of procedural norms has
been established during the hearing. The court of appeal can examine new pieces
of evidence which have not been examined before, if it finds that the failure
to present them to the local court was justified or that the local court
rejected them without good reason.”
C. The Decree of the Presidium of the Supreme Soviet
of the USSR of 28 July 1988 on the procedure for organising and holding
meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree)
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 as follows:
“The Constitution of the USSR, according to the interests of
the people and for the strengthening and development of the socialist system,
guarantees to the citizens of the USSR the freedom to hold meetings, rallies,
street marches and demonstrations. Exercise of these political freedoms shall
be ensured to the working people and their organisations 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.”
D. The USSR Law on approving Decrees of the Presidium
of the Supreme Soviet of the USSR amending or supplementing certain USSR legal
acts (28 October 1988)
By enacting this Law, the Supreme Soviet of the USSR approved a number of Decrees of the Presidium, including the above-mentioned Decree of
28 July 1988.
E. The Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 on temporary application of certain legislative acts of the Soviet Union
The Resolution provides in particular:
“ ... before the relevant legislation of Ukraine is enacted,
the legislation of the USSR shall be 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.”
F. Decision of the Executive Committee of the Lviv
City Council of 16 April 2004 on the procedure for organising and holding
meetings, rallies, street marches and demonstrations in the city of Lviv
This decision introduced the procedure for
organising peaceful gatherings in the city of Lviv. According to that decision,
the freedom of assembly was guaranteed, but could be restricted by a court for
considerations of public health, prevention of crime and disorder and
protection of the rights of others. To restrict such a gathering, the Executive
Council could apply to a court. Item 7 of the procedure provided that
notification about a planned gathering had to be given at least two working
days prior to the date on which it was to be held.
Item 14 of the procedure specified that gatherings
could not be held in the road (except street marches and demonstrations), on
lawns and flower beds, or in front of the central entrance (not closer than
seven metres) and other entrances of administrative buildings. Nor could they
be held in case of non-compliance with sanitary norms. Item 16 of the procedure
specified that holding a gathering in breach of any of the restrictions imposed
by item 14 should be considered a breach of the peace and should engage
liability under the law. Item 15 further provided that the organisers should be
responsible for ensuring public order during a gathering. Item 20 further
provided that the authorities could apply to a court for the purpose of establishing
the liability of persons responsible for breaching the procedure.
On 1 June 2011 the Lviv City Council annulled the
decision of 16 April 2004 of its Executive Committee and ordered a new
procedure on the holding of such gatherings to be drawn up.
G. Domestic case-law
1. Decision of the Constitutional Court of Ukraine of
19 April 2001 in a case regarding timely notification of peaceful assembly
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 ...”
2. Review of the practice of the Supreme Court in cases
concerning administrative offences (Articles 185-185-2 of the Code on
Administrative Offences) of 1 March 2006
In its review the Supreme Court noted inter
alia as follows:
“... No legislation has been enacted in Ukraine establishing a mechanism for fulfilling the right to freedom of peaceful assembly. According
to the Resolution of the Verkhovna Rada of Ukraine of 12 September
1991 no. 1545-XII on temporary application of certain legislative acts of the
Soviet Union, the normative acts of the USSR remain in force, applying in order
of legal rank, for example, the Decree of the Presidium of the Supreme Soviet
of the USSR of 28 July 1988 on the procedure for organising and holding
meetings, rallies, street marches and demonstrations in the USSR ...”
3. Information note of April 2012 by the Higher
Administrative Court of Ukraine on a study and summary of the jurisprudence of
administrative courts applying the relevant legislation and deciding cases
concerning the exercise of the right to peaceful assembly (meetings, rallies,
marches, demonstrations, etc.) in 2010 and 2011
The note mentioned, inter alia, as
follows:
“...The legislation of Ukraine does not currently have a
special law regulating public relations in the sphere of peaceful assembly. One
of the urgent problems to be settled by such a law is the time-limits for
notifying the authorities of a planned peaceful gathering in order to ensure
that it is held in safe conditions. Article 39 of the Constitution of Ukraine,
while providing that the executive authorities or bodies of local
self-government must be notified in a timely manner that a peaceful gathering is
to be held, does not establish specific deadlines for such notification. The
uncertainty of this matter results in the relevant constitutional norm being
applied inconsistently and thus requires legal regulation ...
... 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 ...”
4. Decisions of administrative courts
In the judgment of the Babushkinsky District
Court of Dnipropetrovsk of 30 March 2007 in the case of S. v. the Executive
Committee of the Dnipropetrovsk City Council concerning the adoption of
regulations on holding mass events in the city of Dnipropetrovsk, 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.
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 31 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.
In another case the Kyiv Administrative Court of
Appeal, in a decision of 11 October 2012, quashed the 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.
According to the Ukrainian Helsinki Human Rights
Union in 2012 the Ukrainian authorities sought to restrict peaceful gatherings
in 358 cases and in 90% of the cases they succeeded.
H. Information letter of the Ministry of Justice of
Ukraine of 26 November 2009
At the request of a Ukrainian MP, the Ministry
of Justice sent an information letter to an NGO in Kyiv. The text of this
letter can be found on the official website of the Ukrainian Parliament.
The relevant parts of the letter read as
follows:
“... It should be noted that the current legislation on the
organisation and holding of peaceful demonstrations is not perfect. For
example, today the organisation and conduct of peaceful demonstrations is
regulated by the Decree of the Presidium of the Supreme Soviet of the USSR of
28 July 1988 N 9306 on the organisation and holding of meetings, rallies,
street marches and demonstrations in the USSR (hereinafter - “the Decree”)
which, in accordance with paragraph 1 of Chapter XV - Transitional Provisions
of the Constitution of Ukraine − is effective in so far as it does not
contradict the Constitution of Ukraine. The above Decree defined, in
particular, which persons were authorised to contact the executive bodies of
village, settlement and town councils to notify them of proposed peaceful
demonstrations; requirements for the content of such notifications;
requirements for the executive bodies of village, settlement and town councils
in ensuring conditions for the holding of a peaceful demonstration; etc.
Thus, the requirements as to the organisation and holding of
peaceful demonstrations, the time-limit for notification to be given to
executive or local government bodies, the documents to be attached to the
application for holding the event, etc. are currently not regulated by law ...
... Given the inadequacy of the current state of the legal
regulation of the procedure for the organisation and conduct of peaceful
demonstrations, which results in problems in the application of law, since the
legal norms are not formulated with sufficient clarity and are subject to
ambiguous interpretation by those wishing to have recourse to them (including
bodies of local government), only legislative regulation of the procedure for
organising and holding such demonstrations will eliminate the negative
practices that have arisen.
Because of the need for legislative support for the practical
application of the aforesaid right defined by Article 39 of the Constitution of
Ukraine - to assemble peacefully without arms and to hold meetings, rallies,
demonstrations, pickets and marches - the Ministry of Justice has drafted the
Law of Ukraine on the organisation and conduct of peaceful demonstrations,
which was submitted by the Government of Ukraine to the Verkhovna Rada of
Ukraine (registration N 2450 from 6 May 2008) and was approved by the
Parliament on its first reading on 3 June 2009 ...”
The draft law mentioned in the letter is
currently awaiting its second reading in Parliament.
III. INTERNATIONAL MATERIALS
A. Guidelines
on Freedom of Peaceful Assembly of the Organisation for Security and
Co-operation in Europe (2007)
The Guidelines provide in so far as relevant as
follows:
Section A
Procedural issues
“1. Advance notice. The legal provisions concerning
advance notice should require a notice of intent rather than a request for
permission. The notification process should not be onerous or bureaucratic. The
period of notice should not be unnecessarily lengthy, but should still allow
adequate time prior to the notified date of the assembly for the relevant state
authorities to plan and prepare for the event, and for the completion of an
expeditious appeal to a tribunal or court should the legality of any
restrictions imposed be challenged. If the authorities do not promptly present
any objections to a notification, the organizers of a public assembly should be
able to proceed with the planned activity in accordance with the terms notified
and without restriction.”
Section B, Interpretative Notes
1. Regulation of Freedom of Peaceful Assembly
“ ...
The legal framework
7. Regulating freedom of assembly in domestic law.
Freedom of peaceful assembly should be accorded constitutional protection that
ought to contain, at a minimum, a positive statement of both the right and the
obligation to safeguard it. There should also be a constitutional provision
that guarantees fair procedures in the determination of the rights contained
therein. Constitutional provisions, however, cannot provide for specific
details or procedures. As such, general constitutional provisions can be abused
and, of themselves, afford unduly wide discretion to the authorities.
...
9. Domestic laws regulating freedom of assembly must
be consistent with the international instruments ratified by that state, and
the legitimacy of domestic laws will be judged accordingly. Domestic laws must
also be interpreted and implemented in conformity with the relevant
international and regional jurisprudence.
2. General Principles
“ ...
Legality
30. Any restrictions imposed must have a formal
basis in primary law. The law itself must be sufficiently precise to enable an
individual to assess whether or not his or her conduct would be in breach of
the law, and to foresee what the consequences of such breaches would likely be.
The incorporation of clear definitions in domestic legislation is vital to
ensuring that the law remains easy to understand and to apply, and that
regulation does not encroach upon activities that ought not to be regulated.
Definitions should therefore be neither too elaborate nor too broad.”
4. Procedural Issues
“ ...
Advance notification
91. It is common for the regulatory authority to
require advance written notice of public assemblies. Such a requirement is
justified by the state’s positive duty to put in place any necessary
arrangements to facilitate freedom of assembly and protect public order, public
safety, and the rights and freedom of others. The UN Human Rights Committee has
held that a requirement to give notice, while a de facto restriction on
freedom of assembly, is compatible with the permitted limitations laid down in
Article 21 of the ICCPR. Similarly, the European Commission on Human Rights, in
Rassemblement Jurassien (1979), stated that: “Such a procedure is in
keeping with the requirements of Article 11(1), if only in order that the
authorities may be in a position to ensure the peaceful nature of the meeting,
and accordingly does not as such constitute interference with the exercise of
the right.”
92. The notification process should not be onerous
or bureaucratic, as this would undermine the freedom of assembly by discouraging
those who might wish to hold an assembly. Furthermore, individual demonstrators
should not be required to provide advance notification to the authorities of
their intention to demonstrate. Where a lone demonstrator is joined by another
or others, then the event should be treated as a spontaneous assembly...
93. The period of notice should not be unnecessarily
lengthy (normally no more than a few days), but should still allow adequate
time prior to the notified date of the assembly for the relevant state
authorities to plan and prepare for the event (deploy police officers,
equipment, etc.), for the regulatory body to give a prompt official response to
the initial notification, and for the completion of an expeditious appeal to a
tribunal or court should the legality of any restrictions imposed be
challenged.
94. The official receiving the notice should issue a
receipt explicitly confirming that the organizers of the assembly are in
compliance with the applicable notice requirements. The notice should also be
communicated immediately to all state organs involved in the regulatory
process, including the relevant police authorities.
Notification, not authorization
95. Legal provisions concerning advance notice
should require a notice of intent rather than a request for permission.
Although lawful in several jurisdictions, a permit requirement accords
insufficient value to both the fundamental freedom to assemble and to the
corresponding principle that everything not regulated by law should be presumed
to be lawful. Those countries where a permit is required are encouraged to
amend domestic legislation so as to require notification only. It is
significant that, in a number of jurisdictions, permit procedures have been
declared unconstitutional. Any permit system must clearly prescribe in law the
criteria for issuance of a permit. In addition, the criteria should be confined
to considerations of time, place, and manner, and should not provide a basis
for content-based regulation.
96. If the authorities do not respond promptly to a
notification, the organizers of a public assembly may proceed with the
activities according to the terms notified without restriction. Even in
countries where authorization rather than notification is still required,
authorization should be presumed granted if a response is not given within a
reasonable time.”
B. Opinion of the Venice Commission
At its 64th plenary session (21-22 October 2005)
the European Commission for Democracy through Law (the Venice Commission)
adopted an opinion interpreting the OSCE/ODIHR guidelines on drafting laws on
freedom of assembly with regard to the regulation of public meetings, including
the requirement of advance notice of demonstrations in public places:
“29. Establishing a regime of prior notification of
peaceful assemblies does not necessarily extend to an infringement of the
right. In fact, in several European countries such regimes do exist. The need
for advance notice generally arises in respect of certain meetings or
assemblies - for instance, when a procession is planned to take place on the
highway, or a static assembly is planned to take place on a public square -
which require the police and other authorities to enable it to occur and not to
use powers that they may validly have (for instance, of regulating traffic) to
obstruct the event.”
The Venice Commission also emphasised that the
regime of prior notification must not be such as to frustrate the intention of
the organisers to hold a peaceful demonstration, and thus indirectly restrict
their rights.
THE LAW
I. THE GOVERNMENT’S REQUEST
FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
. On
18 September 2012 the Government submitted a unilateral declaration requesting
the Court to strike out the application.
The applicant objected to the proposal.
. Having
studied the terms of the Government’s unilateral declaration, the Court
considers, in the particular circumstances of the applicant’s case, that it
does not provide a sufficient basis for concluding that respect for human
rights as defined in the Convention and its Protocols does not require it to
continue its examination of the case (see, mutatis mutandis, Rantsev
v. Cyprus and Russia, no. 25965/04, §§ 194-202, ECHR 2010 (extracts)).
In finding so, the Court also takes into account that the issues raised in the
present application under Articles 7 and 11 of the Convention have not been
previously examined by this Court in respect of Ukraine.
. This
being so, the Court rejects the Government’s request to strike the application
out of its list of cases under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE
CONVENTION
Under Article 11 the applicant complained that
the interference with his right to freedom of peaceful assembly was not
prescribed by law and was not necessary in a democratic society. The provision relied
upon reads as follows:
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the
state.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Government submitted in general terms that
the applicant’s case had been examined by domestic courts at two levels of
jurisdiction and they had not found any violation of the applicant’s rights.
Therefore, they considered that there had been no violation of the applicant’s
rights under this head.
The applicant maintained his original complaint.
The Court considers that the applicant’s
punishment for organising and holding a peaceful demonstration constituted an
interference with his right to freedom of peaceful assembly. An interference
will constitute a breach of Article 11 unless it is “prescribed by law”,
pursues one or more of the legitimate aims referred to in paragraph 2 and is
“necessary in a democratic society” for the achievement of such aim or aims.
The Court reiterates that the expression
“prescribed by law” in Article 11 of the Convention not only requires that the
impugned measure should have some basis in domestic law, but also refers to the
quality of the law in question. The law should be accessible to the persons
concerned and formulated with sufficient precision to enable them - if need be,
with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see, for
example, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979,
§ 49, Series A no. 30; Rekvényi v. Hungary [GC], no. 25390/94, § 34,
ECHR 1999-III; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V;
and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I).
The Court notes that the applicant was sentenced
to three-day administrative arrest under Articles 185 and 185-1 of the Code on
Administrative Offences. The latter provision prescribed a penalty for breaches
of the procedure for organising and holding demonstrations. Therefore, the
interference had a basis in domestic law. The Court has no reason to doubt that
the Code was accessible. It remains, therefore, to be determined whether the
application of this provision was foreseeable.
The Court reiterates that its power to review
compliance with domestic law is limited, as it is in the first place for the
national authorities to interpret and apply that law (see Mkrtchyan v.
Armenia, no. 6562/03, § 43, 11 January 2007). From the materials of
the case and the applicant’s submissions it is clear that there is no single
view on the applicability of the 1988 Decree and the existence of a clear and
foreseeable procedure for organising and holding peaceful demonstrations. The
practice of the domestic courts also reveals inconsistencies in this sphere
(see paragraph 33 above). It is true that the Constitution of Ukraine provides
for some general rules as to the possible restrictions on the freedom of
assembly, but those rules require further elaboration in the domestic law. The
only existing document establishing such a procedure is the 1988 Decree, whose
provisions are not generally accepted as the valid procedure for holding demonstrations
and which provides, as is confirmed in the practice of the domestic courts (see
paragraphs 34 to 36 above), for a different procedure from the one outlined in
the Constitution. Indeed, whilst the Ukrainian Constitution requires advance
notification to the authorities of an intention to hold a demonstration and stipulates
that any restriction thereon can be imposed only by a court, the 1988 Decree,
drafted in accordance with the Constitution of the USSR of 1978, provides that
persons wishing to hold a peaceful demonstration have to seek permission from
the local administration which is also entitled to ban any such demonstration.
From the preamble of the Decree it is clear that it had been intended for a very
different purpose, namely for only certain categories of individuals to be
provided by the administration with facilities to express their views in favour
of a particular ideology, this in itself being incompatible with the very
essence of the freedom of assembly guaranteed by the Ukrainian Constitution and
the Convention. As found by a domestic court (see paragraph 36 above),
demonstrations under the 1988 Decree were considered on the basis of their
compatibility with “non-existent constitutions of non-existent subjects”.
Therefore, it cannot be concluded that the “procedure” referred to in Article
185-1 of the Code on Administrative Offences was formulated with sufficient
precision to enable the applicant to foresee, to a degree that was reasonable
in the circumstances, the consequences of his actions (see, mutatis mutandis,
Mkrtchyan, ibid.). Nor do the procedures introduced by the local
authorities to regulate the organisation and holding of demonstrations in their
particular regions appear to provide a sufficient legal basis, for the same
reason - there was no general Act of Parliament on which such local documents
could be based and the domestic courts moreover doubted the validity of such
local decisions (see paragraph 34 above).
The Court further observes that, admittedly, the
Resolution of the Ukrainian Parliament on temporary application of certain
legislative acts of the Soviet Union refers to temporary application of Soviet
legislation and no law has yet been enacted by the Ukrainian Parliament
regulating the procedure for holding peaceful demonstrations, although Articles
39 and 92 of the Constitution clearly require that such a procedure be
established by law, that is, by an Act of the Ukrainian Parliament. Whilst the Court
accepts that it may take some time for a country to establish its legislative
framework during a transitional period, it cannot agree that a delay of more
than twenty years is justifiable, especially when such a fundamental right as
freedom of peaceful assembly is at stake. The Court thus concludes that the
interference with the applicant’s right to freedom of peaceful assembly was not
prescribed by law.
Having reached this conclusion, the Court does
not need to verify whether the other two requirements (legitimate aim and
necessity of the interference) set forth in Article 11 § 2 have been complied
with.
Accordingly, there has been a violation of
Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 7 OF THE
CONVENTION
Under Article 7 of the Convention, the applicant
complains that he was found guilty of breaching the procedure for the holding
of demonstrations, despite the fact that such procedure was not clearly defined
in the domestic law. The said Article reads as follows:
“1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the
time the criminal offence was committed.
2. This article shall not prejudice the trial and
punishment of any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law recognised
by civilised nations.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Government maintained the same argument as
set out above (see paragraph 49).
The applicant maintained his original complaint.
The Court reiterates that the guarantee enshrined in Article 7, which is
an essential element of the rule of law, occupies a prominent place in
the Convention system of protection, as is underlined by the fact that no
derogation from it is permissible under Article 15 of the Convention in time of
war or other public emergency. It should be construed and applied, as follows
from its object and purpose, in such a way as to provide effective safeguards
against arbitrary prosecution, conviction and punishment (see S.W. v. the
United Kingdom, 22 November 1995, § 34, Series A no. 335-B, and C.R.
v. the United Kingdom, 22 November 1995, § 33, Series A no. 335-C).
Accordingly, it embodies, in general terms, the principle that only the law can
define a crime and prescribe a penalty (nullum
crimen, nulla poena sine lege) (see Kokkinakis v. Greece, 25
May 1993, § 52, Series A no. 260-A). While it prohibits in
particular extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the criminal
law must not be extensively construed to an accused’s detriment, for instance
by analogy (see Coëme and Others v. Belgium,
nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII; Achour v. France [GC], no.
67335/01, § 41, ECHR 2006-IV; and Kononov v. Latvia [GC],
no. 36376/04, § 185, ECHR 2010).
When speaking of “law” Article 7
alludes to the very same concept as that to which the Convention refers
elsewhere when using that term, a concept which comprises statute law as well
as case-law (see, mutatis mutandis,
The Sunday Times (no. 1), cited above, § 47; Kruslin v. France,
24 April 1990, § 29, Series A no. 176-A; and Casado Coca v. Spain,
24 February 1994, § 43, Series A no. 285-A). In this connection, the
Court has always understood the term “law” in its “substantive” sense, not its
“formal” one. It has thus included both enactments of lower rank than statutes
and unwritten law (see, in particular, mutatis
mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June
1971, § 93, Series A no. 12). In sum, the “law” is the provision in force
as the competent courts have interpreted it (see Leyla
Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005-XI).
Furthermore, the term “law” implies qualitative
requirements, including those of accessibility and foreseeability (see, among
other authorities, Cantoni v. France, 15 November 1996, § 29, Reports
of Judgments and Decisions 1996-V; Coëme
and Others, cited above, § 145; and E.K.
v. Turkey, no. 28496/95, § 51, 7 February 2002).
These qualitative requirements must be satisfied as regards both the definition
of an offence and the penalty that the offence in question carries (see Achour [GC], cited above, § 41). An
individual must know from the wording of the relevant provision and, if need
be, with the assistance of the courts’ interpretation thereof, what acts and
omissions will render him criminally responsible and what penalty will be
imposed for the act and/or omission in question (see, among other authorities, Cantoni, cited above, § 29). Furthermore,
a law may still satisfy the requirement of “foreseeability” where the person
concerned has to take appropriate legal advice to assess, to a degree that is
reasonable in the circumstances, the consequences which a given action may
entail (see, among other authorities, Cantoni,
cited above, § 35, and Achour
[GC], cited above, § 54).
The Court has acknowledged in its case-law that,
however clearly drafted a legal provision may be, in any system of law,
including criminal law, there is an inevitable element of judicial
interpretation. There will always be a need for elucidation of doubtful points
and for adaptation to changing circumstances. Again, whilst certainty is highly
desirable, it may bring in its train excessive rigidity and the law must be
able to keep pace with changing circumstances. Accordingly, many laws are
inevitably couched in terms which, to a greater or lesser extent, are vague and
whose interpretation and application are questions of practice (see, mutatis mutandis, The Sunday Times
(no. 1), cited above, § 49, and Kokkinakis,
cited above, § 40). The role of adjudication vested in the courts is precisely
to dissipate such interpretational doubts as remain (see, mutatis mutandis, Cantoni, cited above).
In the circumstances of the present case, the Court
notes that the applicant was punished under Articles 185 and 185-1 of the Code
on Administrative Offences, which established liability for disobedience to
lawful orders of the police and for breaches of the procedure for holding demonstrations.
The legal basis for the applicant’s punishment was therefore the law on
administrative offences as applicable at the material time.
The Court reiterates its earlier findings that
although the offence of a breach of the procedure for holding demonstrations was
provided for by the Code on Administrative Offences, the basis of that offence,
that is the said procedure, was not established in the domestic law with
sufficient precision (see paragraphs 54 and 55 above). In the absence of clear
and foreseeable legislation laying down the rules for the holding of peaceful demonstrations,
his punishment for breaching an inexistent procedure was incompatible with
Article 7 of the Convention. In these circumstances, it is not necessary to
examine separately whether the police orders could be considered lawful and
therefore foreseeable from the viewpoint of the same provision.
There has accordingly been a violation of Article 7 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
Referring to Article 6 § 1, the applicant
complained that the court decisions in his case were ill-founded and that the
courts had failed to respond to his pertinent arguments. Furthermore, he had
had no time to prepare his defence, to examine witnesses or to obtain the
assistance of a lawyer as guaranteed by Article 6 § 3 (b), (c) and (d) of the
Convention:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him ...”
A. Admissibility
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
The Government maintained the same argument as
set out above (see paragraph 49).
The applicant maintained his original complaint.
The Court reiterates that the requirements of
Article 6 § 3 are to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 § 1. The Court will therefore examine the relevant
complaints under both provisions taken together (see, among many other
authorities, F.C.B. v. Italy, 28 August 1991, § 29, Series A
no. 208-B, and Poitrimol v. France, 23 November 1993, § 29,
Series A no. 277-A).
1. The right to adequate time and facilities to
prepare one’s defence
The applicant maintained that the reports on
administrative offences had been drawn up just several hours before the court
hearing and he had not been allowed to study any other case-file materials
prior to that hearing.
The Government made no observations on the
merits.
The Court reiterates that Article 6 § 3 (b)
guarantees the accused “adequate time and facilities for the preparation of his
defence” and therefore implies that the substantive defence activity on his
behalf may comprise everything which is “necessary” to prepare for the main
trial. The accused must have the opportunity to organise his defence in an
appropriate way and without restriction as to the opportunity to put all
relevant defence arguments before the trial court and thus to influence the
outcome of the proceedings (see Can
v. Austria, 30 September 1985, § 53, Series A no. 96; Connolly v. the
United Kingdom (dec.), no. 27245/95, 26 June 1996; and Mayzit v. Russia,
no. 63378/00, § 78, 20 January 2005). Furthermore, the facilities available to
everyone charged with a criminal offence should include the opportunity to
acquaint himself for the purposes of preparing his defence with the results of
investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, (dec.), no.
29835/96, 15 January 1997, and Foucher v. France, 18 March 1997, §§
26-38, Reports 1997-II). The issue of the adequacy of the time and
facilities afforded to an accused must be assessed in the light of the
circumstances of each particular case.
In the present case, the Court notes that
despite the lack of a clear indication of the exact lapse of time between the drawing
up of the administrative offence reports and the examination of the applicant’s
administrative case, it is evident that this period was not longer than a few
hours. Even if it is accepted that the applicant’s case was not a complex one,
the Court doubts that the circumstances in which the applicant’s trial was
conducted were such as to enable him to familiarise himself properly with and
to assess adequately the charge and evidence against him and to develop a
viable legal strategy for his defence. The further appeal proceedings could not
remedy the situation, given that, by the time the appellate court examined the
case, the applicant had already served his administrative detention.
Furthermore, the appellate court failed to reply to the applicant’s complaint
under this head. Therefore, the Court concludes that the applicant was not
afforded adequate time and facilities for the preparation of his defence.
There has accordingly been a violation of
Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of
the Convention.
2. The right to defend oneself through legal
assistance of one’s own choosing
The Court emphasises that, although not
absolute, the right of everyone charged with a criminal offence to be
effectively defended by a lawyer, assigned officially if need be, is one of the
fundamental features of fair trial
(see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II).
The very fact of restricting access of a detained suspect to a lawyer may
prejudice the rights of the defence even where no incriminating statements are obtained
as a result (see, for example, Dayanan v. Turkey, no. 7377/03, §§ 32-33,
13 October 2009).
In the present case, the right to legal
representation was guaranteed to the applicant by the Code on Administrative
Offences and the applicant expressly requested to be represented by a lawyer of
his choosing. The domestic court, however, refused that request on the ground
that the applicant was a human rights defender himself. This fact does not
necessarily mean, however, that every human rights defender is a lawyer and,
even if such a person is a lawyer, like the applicant, that he was not
vulnerable or in need of an advocate’s support in his procedural capacity as a
suspect. If the applicant considered that he needed legal assistance and the
domestic legislation guaranteed him the right to a lawyer regardless of his own
legal background, the refusal of the domestic authorities to allow his legal
representation appears to be unlawful and arbitrary. The further appeal
proceedings, in which the applicant was represented by the lawyer, could not
remedy the situation, given that, by the time the appellate court examined the
case, the applicant had already served his administrative detention.
Furthermore, the appellate court failed to reply to the applicant’s complaint
under this head too.
In these circumstances the Court concludes that
there has been a violation of Article 6 § 1 taken together with Article 6 § 3
(c) of the Convention in the present case.
3. The right to examine or have examined witnesses
The Court reiterates that all the evidence must
normally be produced at a public hearing, in the presence of the accused, with
a view to adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence. It may prove necessary in
certain circumstances to refer to statements made during the investigative
stage. If the defendant has been given an adequate and proper opportunity to
challenge such statements, either when made or at a later stage, their
admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The
corollary of that, however, is that the defendant’s conviction should not be
based either solely or to a decisive extent on statements which the defence has
not been able to challenge (see Zhoglo v. Ukraine, no. 17988/02, §§
38-40, 24 April 2008, with further references; and Al-Khawaja and
Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06,
§§ 118-119, ECHR 2011).
In the circumstances of the present case, the
applicant was the only person questioned by the court. Otherwise, the court
findings were based exclusively on the written submissions, principally reports
of the police. Neither the police officers themselves, nor the participants in the
demonstration who had eye-witnessed the events of 12 October 2010 and had filmed
them had been summoned and questioned by the court, despite the applicant’s
request for their appearance. The appeal proceedings, in which the applicant
and his lawyer had been present, could not remedy the situation, given that, by
the time the appellate court examined the case, the applicant had already
served his administrative detention. Furthermore, the appellate court failed to
call any witnesses and to reply to the applicant’s complaint under this head.
The Court accordingly concludes that there has
been a violation of Article 6 § 1 taken together with Article 6 § 3 (d) of the
Convention in the present case too.
4. Reasoning of the domestic courts in the applicant’s
case
The Court notes that, according to its
established case-law reflecting a principle related to the proper
administration of justice, judgments of courts and tribunals should adequately
state the reasons on which they are based. The extent to which this duty to
give reasons applies may vary according to the nature of the decision and must
be determined in the light of the circumstances of the case (see García Ruiz
v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I, with further
references).
The Court also reiterates that its duty, under
Article 19 of the Convention, is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In particular, it is
not its function to deal with errors of fact or of law allegedly committed by a
national court unless and in so far as they may have infringed rights and
freedoms protected by the Convention (see Schenk v. Switzerland, 12 July
1988, § 45-46, Series A no. 140, and Teixeira de Castro v.
Portugal, 9 June 1998, § 34, Reports 1998-IV).
In that context, regard must also be had, in
particular, to whether the applicant was given the opportunity of challenging
the authenticity of the evidence and of opposing its use. The quality of the
evidence is also taken into account, including whether the circumstances in
which it was obtained cast doubt on its reliability or accuracy (see Jalloh
v. Germany [GC], no. 54810/00, § 96, ECHR 2006-IX).
In the present case, the applicant’s arguments
before the judicial authorities concerned both the factual circumstances and
the legal issues of his case. In particular, in his appeal he advanced a number
of legal arguments concerning the legislative regulation of the procedure for
holding peaceful demonstrations, mainly complaining that he had been accused of
holding one without permission, even though such permission was not required by
law. In the Court’s opinion, these arguments were both important and pertinent.
Furthermore, the legal framework for the exercise of freedom of assembly in Ukraine, which has been examined in detail in the present case, clearly demonstrates that
the answers to his arguments were not obvious and self-evident. Nevertheless,
the domestic courts, in particular the Court of Appeal, which examined the
applicant’s written arguments on the issue, ignored them altogether, simply
stating that they were refuted by the (unnamed) case-file materials and the
body of evidence in the case. Neither did it answer to the applicant’s
complaints about a violation of his procedural rights as guaranteed by Article
6 § 3 (b-d) of the Convention (see paragraphs 76, 79 and 82 above).
The Court has previously held, in the context of
its examination of the fairness of criminal proceedings, that by ignoring a
specific, pertinent and important point made by the accused, the domestic
courts had fallen short of their obligations under Article 6 § 1 of the
Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). It observes a similar issue in the present case,
where that requirement was not met.
Having
regard to the above considerations, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention on account of the lack of adequate
reasoning in the domestic courts’ decisions.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained that there had
been no grounds for his arrest on 13 October 2010. Furthermore, his arrest had
been conducted in violation of the domestic law and he had been taken to the
police station under a false pretext. He also complained that the domestic
courts had not taken into account the time of his actual arrest and therefore
he had spent an additional twenty-six hours in detention. The applicant
maintained that the domestic legislation did not provide for compensation for
unlawful detention in cases like his. He complained that he had had no
effective domestic remedy by which to challenge the lawfulness of his arrest
and detention after the three-day period of administrative arrest had expired.
He referred to Article 5 §§ 1 (a) and (c) and 5 and Article 13 of the
Convention.
Lastly, making his complaint under Article 7, the
applicant referred to Article 18 as well, but did not provide any explanations
whatsoever as to the relevance of this provision to his above complaint or any
other complaint.
The Court finds that the applicant’s
submissions and the case-file materials in its possession do not disclose any
appearance of a violation of the above provisions. It follows that this part of
the application is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Before examining the claims for just satisfaction
submitted by the applicant under Article 41 of the Convention, and having
regard to the circumstances of the case, the Court considers it necessary to
determine what consequences may be drawn from Article 46 of the Convention for the respondent State. Article 46 of the
Convention reads as follows:
“1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The Court reiterates that Article 46 of the
Convention, as interpreted in the light of Article 1, imposes on the respondent
State a legal obligation to implement, under the supervision of the Committee
of Ministers, appropriate general and/or individual measures to secure the
right of the applicant which the Court has found to have been violated. Such
measures must also be taken in respect of other persons in the applicant’s
position, notably by solving the problems that have led to the Court’s findings
(see Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR
2000-VIII;
Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §
120, ECHR 2002-VI; Lukenda
v. Slovenia, no. 23032/02, § 94, ECHR 2005-X; and S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and
30566/04, § 134, ECHR 2008-...). This obligation has been consistently
emphasised by the Committee of Ministers in the supervision of the execution of
the Court’s judgments (see, for example, ResDH(97)336, IntResDH(99)434, IntResDH(2001)65 and
ResDH(2006)1). In theory it is not for the Court to determine what
measures of redress may be appropriate for a respondent State to take in
accordance with its obligations under Article 46 of the Convention. However, the Court’s
concern is to facilitate the rapid and effective suppression of a shortcoming
found in the national system of protection of human rights (see Driza
v. Albania, no. 33771/02, § 125, ECHR 2007-XII (extracts)).
In the present case the Court found violations
of Articles 11 and 7 which stem from a legislative lacuna concerning freedom of
assembly which remains in the Ukrainian legal system for more than two decades.
It has been the Court’s practice, when
discovering a shortcoming in the national legal system, to identify its source in order to assist
the Contracting States in finding an appropriate solution and the Committee of
Ministers in supervising the execution of judgments (see, for example, Maria
Violeta Lăzărescu v. Romania, no. 10636/06, § 27, 23 February 2010; Driza, cited above, §§ 122-126;
and Ürper and Others v. Turkey, nos. 14526/07, 14747/07, 15022/07,
15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07, §§ 51 and 52, 20 October 2009). Having regard to the
structural nature of the problem disclosed in the present case, the Court
stresses that specific reforms in Ukraine’s legislation and administrative
practice should be urgently implemented in order to bring such legislation and practice into line
with the Court’s conclusions in the present
judgment and to ensure their compliance with the requirements of Articles 7 and
11 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 6,000 euros (EUR) in
respect of non-pecuniary damage.
The Government disagreed. They maintained that
there was no causal link between the applicant’s allegations and the applicant’s
claim. They further considered the amount claimed as being excessive.
The Court considers that the applicant suffered
non-pecuniary damage which cannot be compensated for by the mere finding of a
violation of his Convention rights. Having regard to the circumstances of the
case and ruling on an equitable basis, as required by Article 41, the Court
awards the amount claimed in respect of non-pecuniary damage in full.
B. Costs and expenses
The applicant did not submit any claim under
this head. Accordingly, the Court makes no award.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government’s request to strike the application out of the
list;
2. Declares the complaints under Articles 6,
7 and 11 of the Convention admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 11 of the Convention;
4. Holds that there has been a violation of
Article 7 of the Convention;
5. Holds that there has been a violation of
Article 6 §§ 1 and 3 (b) of the Convention;
6. Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention;
7. Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention;
8. Holds that there has been a violation of
Article 6 § 1 of the Convention on account
of the lack of adequate reasoning in the domestic courts’ decisions;
9. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at the rate applicable at
the date of settlement, EUR 6,000 (six thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 11 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
