Galyna Mykhailiuk & Larry A DiMatteo. New Perspectives. Volume 29, Issue 1. January 2021.
The right to freedom of peaceful assembly is guaranteed by Article 39 of the Ukrainian Constitution. However, there is no stand-alone law or case law that defines, regulates and supports the process of organizing and conducting peaceful assemblies. This is largely due to the fact that until the 2014 Maidan Revolution (Euromaidan), Ukraine’s history was one of autocratic rule. This article argues that given this historical context, secondary legislation is needed to safeguard this freedom and entrench it into Ukrainian legal culture. The idea of the right to peaceful assembly is sacrosanct. This article analyses the key elements needed to transform this idea into an ideal law. For example, any such legislation should follow the spirit of the European Convention of Human Rights (ECHR), especially in the area of limitations of the personal freedom. Ukraine has moved forward on a broad reform agenda including reforms of the judiciary in order to create an independent and competent court system. It is widely recognized that such a system is needed to fight widespread corruption. The article argues that now is the time to enact a law on peaceful assembly in order to elevate Ukraine’s legal system to EU and international standards.
Introduction
This article provides a unique comparative analysis. Parallel bills, Draft Laws No. 3587 and No. 3587-1 “On Freedom of Peaceful Assembly,” are currently under consideration in Ukraine. They will be compared with each other and benchmarked against international standards. The goal is to offer recommendations taken from these analyses that will provide a framework for a comprehensive and balanced law protecting the right to freedom of assembly. The idea of needing secondary legislation to support this Constitutional right is widely accepted. However, the enactment of such a law in Ukraine has remained elusive. The goal of this article is to analyze recent attempts and propose a “model law.”
Article 39 of the Ukrainian Constitution states that citizens have the right to “assemble peacefully without arms and to hold rallies, meetings, processions, and demonstrations,” after filing a notice to executive authorities or local self-government bodies (“authorities”). In 2001, the Constitutional Court of Ukraine confirmed Article 39’s requirement of notifying authorities within a reasonable time prior to the date of the event. It left to the Ukrainian parliament, the Verkhovna Rada (VRU), to resolve other issues related to peaceful assembly, such as the meaning of reasonable notice, content of the notice, government’s ability to place restrictions on the event, and whether the courts have jurisdiction to impose restrictions on the exercise of this right. Article 79 states that restrictions may be instituted “in the interests of national security and public order, for the purposes of preventing disturbances or crimes, protection of the health of the population, or protection of the rights and freedoms of other persons.” This leads to the question of what constitutes threats to the public order and health? What prevents this provision from being used politically, as had been done in the past, to stop people from exercising their constitutional right to assemble and protest against the government? The government committing violence against peaceful protesters, during the Maidan Revolution of 2014, is indelibly ensconced in the minds of Ukrainians.
The OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) notes that vague constitutional provisions relating to the freedom of assembly “afford excessively wide discretion to the authorities and increase the possibility of abuse.” Until September 2016, this fundamental right was still regarded as being governed by the Soviet-era “Decree On the Procedure of Organization and Conduct of Assemblies, Rallies, Street Tours and Demonstrations in the USSR,” an obsolete act that required public assemblies to be authorized in advance. Pursuant to this Decree, state authorities had wide discretion to grant or refuse permission. It was common practice for courts to support challenges to such protests issued by the Executive Branch. In 2016, the Constitutional Court ruled the Decree to be an unconstitutional infringement on the right to assembly.
Numerous scholars have advocated the enactment of a secondary law to concretize this freedom in more specific and detailed prose, with clear and narrow grounds to justify a judicial ban on protests, in accord with the rules of the European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR). The purpose of the legislation would be to provide certainty of law in support of this fundamental right. Others fear that adopting a specific law would only bring about new restrictions. This article argues that what is needed is a new legal framework that would serve as a guide for sound decision-making by state authorities. However, any new law would need to balance a need for clear rules against the dangers of over-regulation or bureaucratization.
The unfortunate past of peaceful assembly in Ukraine
The impetus for buttressing the right to freedom of peaceful assembly was the systematic violations of law by government forces (police and national guard) that occurred during the Euromaidan or Revolution of Dignity, when “the government tried to restrict the rights of its citizens to gather peacefully and express their opinions.” On 30 November 2013, peaceful protesters were attacked by special police forces (Berkut) over a 3-month period, resulting in more than a hundred deaths. Since the Euromaidan, Ukrainian society has struggled to build new institutions in line with the rule of law and human rights principles including the right to peaceful assembly.
As a member of the Council of Europe and other international bodies, Ukraine has been under increasing pressure to adopt ad hoc legislation on peaceful assemblies, particularly after the ECtHR’s 2013 decisions in Vyerentsov v. Ukraine and Shmushkovych v. Ukraine. Both judgments found Ukraine’s former government to be in violation (inter alia) of Article 11 of the ECHR for violently trying to prevent the Maidan protests. The Court stressed the urgency of reforms to establish the requirements for the organization and holding of peaceful assemblies, as well as the grounds for their lawful restriction. The United Nations has repeatedly emphasized the need for such a targeted law. In 2012, Recommendation 97.123 of the Universal Periodic Review of the UN (UPR) noted the importance of implementing legislation on “the right to freedom of assembly in accordance with the standards of Article 21 of the International Covenant on Civil and Political Rights.” This imperative was restated in the 2017 UPR on Ukraine.
It is against this background that the 2015 Draft Laws “On Freedom of Peaceful Assembly” No. 3587 and No. 3587-1 (No. 3587/No. 3587-1) were introduced in the VRU from the Committee on Human Rights, National Minorities, and Interethnic Relations. No. 3587 is more protective of the right to assembly, while No. 3587-1 was inspired by those with strong reservations regarding the need for such a law. These Drafts are more recent examples of numerous bills on peaceful assembly that were introduced and rejected over the last 15 years or so. Unfortunately, the current draft laws again fail to take into account the shortcomings of previous bills. The previous attempts have been disparaged as bills “On [Un]freedom of peaceful assemblies.” In late 2016, the Venice Commission, Council of Europe and the OSCE-ODIHR published a Joint Opinion No. 854/2016 regarding Draft Laws No. 3587 and 3587-1, discussing their shortcomings. It is these shortcomings that is the focus of this article, with the purpose of using the best parts of each law and international best practices to provide the framework for a model law.
The next three sections will analyze the core elements of the proposed laws: (1) definitions, scope and reservations; (2) organization and conduct of peaceful assemblies; (3) notification requirements; (4) treatment of media and observers; (5) state obligations vis-à-vis facilitating and protecting peaceful assemblies; (6) role of the judiciary; (7) safeguard mechanisms to protect freedom of peaceful assembly; and (8) liability of police and government authorities.
General issues
This section examines key characteristics of any such model law including the importance of a clear definition of peaceful assembly, meetings exempted from the law, and limitations on the power of government authorities.
Definitions
Article 1 of No. 3587 and No. 3587-1 provide a list of definitions. Unfortunately, the lack of clarity in some of the definitions is problematic and require change. In defining “peaceful assembly,” No. 3587 paragraph 1(1) Article 1 refers to a “public event held in a public place peacefully, without weapons” and in the form of an assembly, meeting, demonstration or in any other form which is not prohibited by law, with the “aim of expressing personal, public or political points of view on any issue.” Similarly, Article 1, paragraph 1 of No. 3587-1 defines an assembly as “an event held peacefully.” The term “event” fails to catch the essence of the concept of assembly, which usually involves the “gathering” of people or a similar word.
An important form of freedom of assembly is spontaneity. Article 1(5) of No. 3587 provides: “spontaneous peaceful assembly shall mean an assembly constituting an instrument of immediate response by the society or a group of people to a certain event or information notice could not be filed within the time-limits established by the Law.” The expression “instrument of” may lure the interpreter into inferring a certain degree of prior organization; however, as it is known, spontaneous assemblies can also consist of gatherings with no identifiable organizer. Such assemblies are coincidental and occur when a group of persons assembles at a particular place with no previous advertising or invitation. The aforesaid definition should be redrafted to provide that a spontaneous peaceful assembly is a gathering which constitutes an immediate and unorganized response by the society or a group of people to a certain event, in such a manner that notice of the assembly could not be filed within the time limits established by the law. Unlike No. 3587, No. 3587-1 does not include a definition of spontaneous assembly.
Scope of application problems with exemptions
Article 2, paragraph 1 of No. 3587 stipulates that the “[l]aw shall apply to social relations associated with exercising and protecting the freedom of assembly.” Paragraph 2 states that the law shall not apply to social relations associated with the organization and holding of a number of meetings. The expression “social relations” is too vague a term to describe the matters regulated by the law. It would be more appropriate if paragraph 1 was reformulated as follows: “This Law regulates the exercise and protection of the freedom of peaceful assembly.” Article 2 reference to “legal relations” may be misinterpreted and should be stricken since most such serial meetings are unlikely to be in open public places.
Freedom of assembly has increased significance in the context of elections, when political parties, candidates and other groups and organizations seek to publicize their views and mobilize support. Article 2(3) of No. 3587 exempts assemblies associated with election campaigns from the scope of the law. The Laws of Ukraine “On Elections of People’s Deputies of Ukraine,” “On Elections of the President of Ukraine,” “On Local Elections,” and “On All-Ukrainian Referendum,” stipulate that holding peaceful assemblies may be one of the forms of election campaigning, but do not regulate such assemblies in detail. They only prohibit the holding of assemblies during the “days of silence” covering the eve of and day of voting. In view of this, it would be better to remove the exception in question from paragraph 2 (not requiring prior notice), which would allow time for the implementation of security and safety measures. Article 2 of No. 3587 does not provide any exemption for assemblies aimed at supporting the election of candidates.
Paragraph 2(5) of Article 2 of No. 3587 provides an exemption for “wedding processions, funerals, if they are not part of a peaceful assembly.” However, this exemption should be clarified since there may be cases where, due to the size of the event or the number of people involved (wedding procession or funeral of a public figure), such events may be considered public assemblies. Sometimes funerals may also take on political overtones and be used as public demonstrations. Paragraph 2(6) of Article 2 of No. 3587 excludes from its scope of application “liturgies, church rituals, ceremonies and processions in cases covered by the Law of Ukraine on Freedom of Conscience and Religious Organizations.” The exclusion of religious assemblies is discussed in Article 21, paragraph 5 of the 1991 Law of Ukraine “On Freedom of Conscience and Religious Organisations.” Such rituals, ceremonies and processions require permission of the relevant local state administrations, executive bodies of village, and city council; the petition for the grant of such a permit shall be filed not later than 10 days before the event. It follows from the above that the draft law provides a ground for exclusion of religious assemblies based on the fact that the modalities (time, place and other circumstances) of holding such assemblies are governed by a special law. It must be noted, however, that the Constitutional Court of Ukraine, upon petition of the Ukrainian Parliament Commissioner for Human Rights (Ombudsman), declared this provision unconstitutional in 2016. In particular, the Court argued that the requirement to obtain an authorization for religious gatherings in public places is contrary to Article 39, paragraph 1 of the Constitution of Ukraine, which deals with notice requirements. In the light of this court decision, the exclusion foreseen by paragraph 2(6) should be removed.
Statutory reservation of powers
Pursuant to Article 3, paragraph 2 of No. 3587, “[e]xecutive authorities, authorities of the Autonomous Republic of Crimea, local self-government bodies and their officials may not establish, through their acts, the modalities, including the place of assembly, for exercising the freedom of assembly.” Presumably, this provision aims to ban national and local executive authorities from regulating specific aspects of the exercise of the right to freedom of assembly through supplemental legislation at different levels of government. The rationale behind this approach is twofold. First, in accordance with international standards, the guarantees for human rights and freedoms should be regulated by primary legislation, (Acts of Parliament) as noted in Article 92, paragraph 1(1) of the Constitution of Ukraine, which requires that the guarantees of human and citizen rights and freedoms be determined exclusively by the laws of Ukraine. Second, the 2013 Annual Report of the Ukrainian Parliament Commissioner for Human Rights cautions that the legal vacuum resulting from the lack of a law on freedom of assembly in Ukraine has been filled with by-laws adopted by local authorities, which has contributed to unjustified bans of peaceful assemblies by administrative courts, and are often give rise to human rights’ violations by law enforcement officers.
It must be noted that No. 3587 does not include any “empowering provision” delegating law-making power to executive authorities at lower or local levels of government. Nevertheless, the possibility of adopting by-laws in this area should not be ruled out completely. Local regulations, having a bearing on the exercise of the freedom of peaceful assembly, may need to be enacted by various authorities within their area of responsibility, in order to apply the national law. For instance, the police may issue specific orders and instructions concerning the policing of peaceful assemblies, based on the Law on National Police. Accordingly, Article 3, paragraph 2 should be interpreted as implying a statutory reservation of powers, by virtue of which the authorities referred to therein may not establish, through their sub-legal acts, general requirements regarding time, place, and other modalities of a peaceful assembly, given that such requirements can only be established by national law. No. 3587-1 includes a rule similar to Article 3, paragraph 2 of No. 3587.
Organizing and holding a peaceful assembly
This section reviews the operative elements in the holding of a peaceful assembly, relating to organizers, participants, notification requirements, modalities or characteristics of peaceful assembly, funding of protests, and the rights of mass media and observers.
Organizer
No. 3587 provides in Article 4 that a peaceful assembly may be organized by one or more natural persons with Ukrainian citizenship, foreigners or stateless persons, legal persons, or entities without legal personality, such as associations. This provision is deficient insofar as it does not consider that a peaceful assembly may also take place without an organizer. By contrast, No. 3587-1 covers such a possibility. In fact, a spontaneous assembly is not only one organized in response to a certain event, where the organizer is unable to meet the legal deadline for prior notification, but also one where there is no organizer at all, such as when the assembly constitutes an impulsive response of the people. In order to solve this problem, another paragraph stating that “a peaceful assembly may occur spontaneously without an identifiable organizer” should be added to Article 4. This would also clarify the definition of spontaneous assemblies provided for in Article 1, sub-paragraph 5, which vaguely refers to an “immediate response.” The emotional component of the public reaction is often the real determinant of the immediacy of the response, as a result of which prior notice is not possible.
No. 3587-1 raises even more concerns regarding the rights and obligations of the organizer. A rather awkward provision, which should be removed is Article 5, paragraph 3. This provision empowers the organizer of an event to determine whether the event is a peaceful assembly. Instead, the assessment of whether an assembly poses any risk of endangering public safety should be made by the authorities, including law enforcement, based on an objective appraisal of the situation. There should also be a presumption in favor of recognizing peacefully assemblies and that authorities will be held accountable for the improper use of their discretion.
Equally problematic is Article 5, paragraph 5 of No. 3587-1, which stipulates that “the organiser shall have the right to define the participants of an assembly.” However, the call for participation may attract people other than the organizer’s targeted audience and they should be allowed to join. Article 5, paragraph 2(3) of No. 3587 allows organizers “to erect, without special permission at the time of holding a peaceful assembly, tents, stages and other temporary constructions in a place of peaceful assembly or along its route, which do not impede road traffic, movement of pedestrians, and do not block access to buildings.”
Another questionable provision is Article 6, paragraph 1 of No. 3587-1. It provides that the “[o]rganiser of an assembly shall notify an executive authority or local self-government body of holding an assembly in cases where ensuring the security of assembly participants is regarded as necessary.” While international standards do not require advance notification, Article 39 of the Constitution of Ukraine provides at paragraph 1 that “[c]itizens have the right to assemble peacefully (…) upon notifying in advance the bodies of executive power or local self-government.” Nonetheless, Article 6 raises concerns for two reasons. First, the organizer may not have the expertise to assess the need for security to protect public order and safety. Second, the purpose of notification is not only to enable state authorities to ensure security, but also to protect the rights and freedoms of others by setting alternative routes or measures to minimize traffic disturbances.
Participants
There is no consensus on whether foreigners can participate in peaceful assemblies. The right to peaceful assembly enshrined in Article 39 of the Constitution is guaranteed as a right of citizens. Article 16 of the Convention for the Protection of Human Rights and Fundamental Freedoms stipulates that “[n]othing…[prevents] the introduction of…limitations on the political activity of foreigners.” However, representatives of human rights organizations consider this interpretation a violation of the rights of foreigners and stateless persons. Article 52 of the Charter of Fundamental Rights of the European Union provides a broad scope for human rights: “[a]ny limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be imposed only if necessary and if they genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.” In order to prevent violations of the rights of foreign individuals, the Draft Laws should clearly state that foreigners are free to participate in public assemblies regardless of their legal status, as the case law of the ECtHR suggests.
Notification requirement
In accordance with Article 39 of the Constitution, Article 7, paragraph 1 of No. 3587 provides that competent authorities must be notified in advance of a public assembly. The notification rule should not be interpreted as an obstacle but as a means to protect participants and to assist in its holding. However, No. 3587 directly excludes from its scope of application specific categories of meetings and assemblies. While excluded meetings and assemblies are exempt from the notification requirement, they hinder the authorities’ ability to provide protections afforded by law. The major exception to the notification requirement relates to spontaneous assemblies, which by definition, as noted above, take place without notice. In the case Eva Molnar v. Hungary, the ECtHR ruled that the right to hold a spontaneous assembly prevails, as a matter of priority, over the obligation of organizers to inform authorities.
Article 7, paragraphs 4 and 5 of No. 3587 includes a detailed list of authorities which must be notified in advance, depending on the location and size of the assembly. These provisions reflect the complexity of the multi-layers of governmental administration in Ukraine. With a view to overcoming possible errors, it should be the duty of the authority that improperly receives a notice to immediately send the notice to the competent authority. Article 6 of No. 3587-1 does not list the authorities that are competent to receive notifications. Furthermore, paragraph 1 of the same article contradicts the wording of Article 8, paragraph 1(2)(3), which suggests that notice should be sent to law enforcement authorities. This provision obligates the National Police, National Guards of Ukraine and other law enforcement bodies to organize their work “in such a way as to ensure immediate and round-the-clock registration of notices of assembly,” as well requiring that the police issues a written confirmation to the notifying party, and further adds that they “shall inform the executive authority or local self-government bodies, immediately after receiving notice of assembly.” This internal inconsistency is likely to cause considerable legal uncertainty.
Pursuant to Article 6, paragraph 5 of No. 3587-1, the authorities, upon receiving notification of an assembly, are obliged to confirm and register its receipt and time of receipt. In the interest of legal certainty, the authorities should be required to provide a confirmation of receipt and registration in writing to the filing party, as required in Article 13, paragraph 1(2) of No. 3587.
The notification period is a sensitive issue: a long notification period can lead to a loss of relevance of the event, whereas a too short of one may not enable the authorities to prepare for the event and ensure safety and order. Article 7, paragraph 1 of No. 3587 states that the organizer of a peaceful assembly shall notify (in writing) the competent authorities of its intention to hold a peaceful assembly no later than 48 hours prior to the assembly. A period of at least 3 days, or more, depending on the size of the assembly is more appropriate to allow sufficient time for the authorities to negotiate with the organizer the specific modalities for the type of peaceful assembly being contemplated.
Article 6 of No. 3587-1 does not provide any time limit for submitting the notice of holding an assembly. The lack of a fixed period for notice is problematic. First, the purpose of prior notification is to allow the authorities to make necessary arrangements to facilitate the exercise of the freedom of assembly and to protect public order and safety. Secondly, only a legally stated notification period can ensure certainty of law and avoid the risk of arbitrary decisions, which would occur if the authorities had the discretion to determine the required period of prior notice. The constitutionality of Article 6 is questionable based on the Constitutional Court’s decision of 19 April 2001, which maintained that prior notification should depend on the peculiarities of each assembly, such as the number of participants, the place, and the time of the event. A better approach would use a sliding scale to determine the required notice period, such as 10 days prior to an event with 10,000 participants and more; 8 days before an event with 7,000 to 10,000 participants; 5 days before an event with 5,000 to 7,000 participants, and so forth.
Article 8, paragraph 1(1) of No. 3587 requires particularized notice that includes information regarding the date, time and place (or route) of the assembly; the purpose of the assembly; the anticipated number of participants; the personal data of the organizers, as well as their physical addresses, e-mail addresses, and telephone number; the name and address for any sponsoring association, as well its identification code; whether the organizer intends to erect temporary installations or sound amplifiers; and whether it will seek special permission for a temporary restriction of road traffic. The need to indicate in the notification the duration of the peaceful assembly raises concerns since the length of public gatherings is not always predictable. In view of this, the information requirements should be made relative by using the adjective “anticipated” before the term “duration.”
“Special permission” for the purposes of restricting road traffic is undefined, as well as the legal basis is for denying such permissions. In adherence to the presumption in favor allowing public assemblies, and with a view to avoiding undue bureaucratic regulation, it would be better to remove the need for special permission and to simply treat road traffic restrictions as a possible consequence of peaceful assemblies. Competent authorities may recommend changes to the place of assembly or its route if there are legitimate grounds to do so.
Modalities of peaceful assemblies
Article 9 of No. 3587 addresses the modalities of a peaceful assembly, such as time, place and other circumstances. Assemblies usually take place in public spaces, including streets, squares, and parks. Paragraph 1 of Article 9 states that peaceful assemblies may be held “in any public place.” Paragraph 2 requires authorities to immediately inform the organizer whether access to the intended location or any place along its route is restricted by law. While holding a peaceful assembly is allowed at any time (paragraph 4), restrictions as to noise levels during certain times of the day are appropriate in areas near educational institutions for children, in-patient health institutions, facilities for the elderly, and residential areas. It would be better if such areas were simply recognized as “no-protest zones” that could be made a public record. Article 15, paragraph 5 of No. 3587-1 provides that the freedom of assembly may be restricted by limiting the use of sound amplifiers or other noise devices.
Large assemblies normally impede access to roads or buildings for a certain time and “cause a certain level of disruption to ordinary life and encounter hostility.” The case law of the ECtHR presumes that the creation of obstacles to the movement of people or vehicles is not a sufficient reason to restrict the freedom of peaceful assembly. However, the ECtHR has held that “the intentional serious disruption, by demonstrators, to ordinary life and to the activities lawfully carried out by others, to a more significant extent than that caused by the normal exercise of the right of peaceful assembly in a public place is a ‘reprehensible act’.” Such behavior justifies the “imposition of penalties, including those of a criminal nature.” A delicate balance, therefore, must be struck between the right to lawful assembly and the time, place and manner in which this right is exercised. This balancing includes protecting the interests of participants and non-participants on the basis of the proportionality principle.
According to Article 9, paragraph 3 of No. 3587, “[i]t shall be prohibited, during a peaceful assembly, to fully block access to establishments, enterprises, institutions, organisations, state [and local] authorities in the vicinity of the place where the assembly is held.” Such a blanket prohibition may affect the right to assembly and instead should provide that blocking full access to buildings, whether private or public, should be avoided as far as practicable during a peaceful assembly. However, obstructed access to buildings may be unavoidable in mass gatherings. The sensitivity of this issue is due to the fact that during the Euromaidan events the government hastily amended Article 295 of the Criminal Code of Ukraine, banning the “blocking of access to residences, buildings, structures or other property of persons, enterprises, entities or organizations,” punishable by up to 5 years in prison. Article 16 No. 3587/1 provides that “temporary blocking of streets and roads or limiting movement of other persons or vehicles” is not grounds for stopping a peaceful assembly, but it may be necessary in certain circumstances to restrict the freedom of assembly in order to protect the rights and freedoms of others.
Article 5 of No. 3587-1 and Article 6 of No. 3587 on the rights and obligations of the organizer to erect, without a special permission, tents, stages and other temporary constructions, provided that they do not impede road traffic, may be more restrictive. Rules governing road blockages are more restrictive than those related to the access to buildings. The question which arises is that of the legal status of temporary constructions that impede road traffic. A permissive interpretation would infer that blocking full passage of roads is prohibited unless the organizer obtains specific authorization; a more restrictive reading would be that temporary installations can never block main roads. In sum, the text of Articles 5 and 6 should be clearer on if and when the blockage of roads is permitted.
Weapons, agitation of masses, and financial support
Article 9 of No. 3587 prohibits the organizer and participants of a peaceful assembly from carrying weapons or any “devices” which pose a danger to life and health. This provision does not state anything regarding the use of masks. International best practice would allow the wearing of masks for expressive purposes, but they cannot be worn “for the purposes of preventing the identification of a person whose conduct creates probable cause for arrest.”
Article 10 of No. 3587 provides that the organizer of a peaceful assembly has the right to “agitate” in a manner which is not prohibited by law without further elaboration. Thus, there is a definitional problem as to the meaning of agitation. Second, there is no reason for a stand-alone provision on agitation. Under the ECHR and the Ukrainian Constitution, both organizers and participants have the right to agitate masses in the exercise of their freedom of speech. Finally, Article 11 of No. 3587 needs to be re-written to expressly state that financial and logistical support for the organization of a peaceful assembly shall be ensured by the organizer and participants of the assembly, without prejudice to charitable assistance and other sources of funding.
Treatment of mass media and observers
Under Article 12 of No. 3587, journalists and other mass media representatives have the right to freely carry out their professional activity, including filming, recording, and photographing, provided that they can be easily identified. This provision fails to state that willful attempts to confiscate, damage or break journalists’ equipment in an attempt to silence reporting are prohibited. Confiscation by law enforcement authorities of printed material, footage, sound clips or other reportage is an act of direct censorship and should be forbidden. The role of law enforcement is to protect public order, including the right to the free flow of information. Paragraph 2 of the same article provides that organizers and participants of peaceful assemblies, as well as representatives of the National Police, National Guards of Ukraine and other law enforcement bodies, shall contribute to the professional activity of journalists and media representatives during the holding of peaceful assemblies. Contribute is an unfortunate choice of word since it is broad and vague in nature. Strictly speaking, law enforcement bodies should be expected to “show a cooperative attitude and not obstruct the work of journalists and mass media representatives during public demonstrations.” Journalists have a right to be treated fairly by the police. Also, such treatment should be extended to independent observers.
Unlike No. 3587, No. 3587-1 addresses the issue of assembly monitoring and recognizes the important role of independent observers. According to international standards, representatives of civil society organizations and other observers have a right to be present at assemblies to observe compliance with human rights. The law enforcement authorities have a responsibility to facilitate their presence at such events. For this reason, Article 10 of No. 3587-1 stipulates that assembly monitoring “constitutes an instrument for supporting and protecting human rights, preventing conflict and improving social stability,” as well as observing the interaction between participants and law enforcement. Article 10 should be read in conjunction with Article 8, which requires law enforcement to facilitate the activities of journalists, mass media, and observers. Paragraph 7 of Article 10 recognizes that attacks by anyone on observers shall be regarded as an attack on law enforcement officers under the Criminal Code. This provision raises the protection of observers to a level of high importance or priority.
State obligations vis-à-vis facilitating and protecting peaceful assemblies
ECtHR decisions have repeatedly stated that, in addition to the obligation to respect the freedom of peaceful assembly, it is imperative for state authorities to take measures to protect against the violation of this right or interferences from third parties. No. 3587-1 includes a section on the positive obligations (Chapter III), distinguishing between positive obligations of state and local authorities (Article 7) and those of law enforcement (Article 8). Article 7 states that notification of an upcoming assembly obliges authorities to take all necessary measures for facilitating the assembly and protecting the participants. This provision fails to note that the same protection should be guaranteed to spontaneous assemblies.
A related issue is the authorities’ obligations involving “simultaneous” assemblies. This often happens in the case of counter demonstrations. Article 13 of No. 3587 in accordance with international standards, obligates the authorities to facilitate simultaneous assemblies and minimize the risk of conflict between the competing or parallel demonstrations. Another provision should be added to ensure that the respective organizers shall not surreptitiously change the place or time of the assemblies. Similarly, Article 7 of No. 3587-1 provides that in case of simultaneous assemblies, including counter-assemblies, authorities should provide “equal possibilities” for all parties, but this may not be possible in practice, such as when there is a lack of space for simultaneous assemblies.
According to Article 8 of No. 3587-1, the National Police, National Guard and other law enforcement bodies have a duty to investigate the possibility of a future assembly by conducting their own search for relevant information, including through the Internet. This provision relies on the fact that under Article 6 prior notice of an assembly is discretionary, despite Article 39 of the Constitution requiring such notification. This has been a common problem in the evolution of Ukrainian law. As reform laws are enacted they often contradict with provisions of the Constitution. This is not a healthy state of affairs. Prior notification to the authorities and the police, should be required, except for cases of spontaneous assemblies. It is unreasonable to expect law enforcement authorities to conduct intelligence work regarding impending assemblies. Paragraph 1 should therefore be removed from Article 8 of No. 3587-1.
Safeguard mechanisms
This section examines the role of the judiciary in restricting assemblies, role of negotiation between the authorities and organizers, need to amend laws related to court procedures, and limits on the use of force by police, as well the potential liability of police and the public authorities.
Judicial discretion to restrict the freedom of peaceful assembly
Both draft laws recognize prior judicial authorization of restrictions. Article 16 of No. 3587 and Article 15 of No. 3587-1 stipulate that the freedom of peaceful assembly maybe restricted by the courts under certain situations: (1) restriction complies with Article 39, paragraph 2 of the Constitution; (2) there exists a lawful ground for restrictions; and (3) the restriction is necessary in a democratic society and is compliant with the principle of proportionality. Article 16 of No. 3587 provides rather broad grounds for restricting freedom of assembly including: assembly is intended to support an act of aggression against the independence, sovereignty, territorial integrity or properties of Ukraine; issuance of a state of emergency decree by the President of Ukraine authorizing martial law; assembly aims to violate human rights and fundamental freedoms; assemblies that promote propaganda of war, violence, and ethnic, race or religious hatred; serious threat of force; or in violation of a quarantine protecting the population from the outbreak of dangerous infectious diseases.
Article 16 of No. 3587 and Article 15 of No. 3587-1 state that limitations may consist of full or partial restrictions regarding the assembly’s location or route, encroachment on an access to a place which is restricted by law; time or duration of the assembly; use of sound amplifiers or other noise sources; erection of temporary structures; and prohibition of holding a peaceful assembly. The prohibition of an assembly is only possible in cases where the purpose of the lawful restriction cannot be achieved in any other manner.
Overall, in the area of judicial intervention, the two bills are well designed and align with international standards. One important note is that state authorities and bodies other than courts (such as the police) may be required by law to take actions to protect public order, public safety and the rights and freedoms of others that could not have been anticipated at the time of notification, but result in restrictions on the freedom of peaceful assembly. However, it would not be feasible to expect the police, during the holding of an assembly, to apply to the court for authority to use necessary force or other lawful measure restricting the freedom of assembly. A reasonable interpretation of Article 39 of the Constitution would not require the police to wait until obtaining judicial approval under emergency circumstances. Such preventive scrutiny on the part of the court would “paralyze” police action in those cases where there is an objective and urgent need to intervene. Article 16 of No. 3587 states that the need for “preventing a real threat of use, by the organisers and participants, of force, weapons or other dangerous tools that can harm the life, health or property of other persons” is a lawful ground for judicial restrictions. However, the No. 3857 and 3857-1 fail to note, that bodies other than the courts may be required to take action to protect public order, safety, and the rights of third parties. This type of intervention, without judicial authorization, should be allowed when it is not feasible for the police to apply to the courts in advance. However, both draft laws fail to recognize situations when pre-authorization is not possible to prevent such threats to the public. Therefore, it should be amended to make it clear that restrictions, in emergency situations, can be imposed by another competent authority, such as the police.
The protection of Ukraine’s sovereignty and territorial integrity is referred to in both bills as a legitimate ground for restricting freedom of assembly. Article 34 of the Constitution states that the right to freedom of thought, speech, and free expression may be restricted by law in the interest of “territorial integrity.” However, Article 39 of the Constitution does not include protection of territorial integrity among the lawful grounds for restricting freedom of assembly. It can be argued that the freedom of assembly includes the exercise of the freedom of thought and expression; therefore restrictions to protect territorial sovereignty also apply to the right to assembly. To eliminate uncertainty on this point, the Constitutional Court would have to determine whether Article 16 of No. 3587 and Article 15 of No. 3587-1 comply with the Constitution. A different matter is whether it is appropriate to impose restrictions that suppress assemblies intended to discuss the territorial integrity of Ukraine. Content-based restrictions of freedom of assembly should be clarified in any new law. Finally, the lawful grounds for restrictions allowed under Article 15, paragraph 3(2) and (3) of No. 3587-1 contradict the wording of Article 16, paragraph 2(7), which excludes restrictions on the grounds of “discussing, during an assembly, resignation of any officials, legal change of power, constitutional order, administrative system or territorial integrity.” In order to ensure internal coherency, the phrase “territorial integrity” should be removed.
Negotiation process
While No. 3587 is based on the concept of giving notice of an assembly rather than applying for permission, it foresees a “negotiation” process between the organizers and authorities regarding the modalities of a peaceful assembly. Article 5, paragraph 2(6) provides that the organizer has the right “to participate or to refuse to participate in negotiations…for the purpose of preventing [the application of] restrictions.” The negotiation process is regulated by Article 17, which stipulates that if the notice of a peaceful assembly, or other information, “suggest the existence of grounds for restricting the assembly under the law,” the authority shall initiate negotiations with the organizer to avoid restrictions by changing the modalities of the assembly. Unfortunately, this provision gives authorities a great deal of discretion, which may be used to ban a gathering without cause. Such actions would violate the presumption in favor of holding public assemblies. This perception is strengthened by the use of the word “negotiation,” which implies a confrontational, rather than a co-operative relationship between organizers and authorities. The text should be revised to state that in situations where there are lawful grounds for restrictions, the competent authority shall engage in a dialogue with the organizer for the purpose of agreeing on the modalities of the assembly. Likewise, the word “negotiation” should be replaced with the term dialogue throughout the draft law. Another question that arises is whether participants (rectius, their representatives) play any role in the negotiation process. Article 6, paragraph 2(1) of No. 3587 should be reformulated to provide that the participants in peaceful assemblies have the right to join in the dialogue established between the organizer and authorities.
Article 17 of No. 3587 is silent about the rules governing the negotiation process. In view of a need for timely decisions in the interest of the applicant, the authority should be required to inform the organizer of their requests and expectations within 24 hours of receiving the notice of assembly. A default provision should be added that in the event of a lack of response from the authorities within the set deadline, the organizer of a peaceful assembly may proceed without any restriction.
Paragraph 2 of Article 17 of No. 3587 further states that the authority “shall have the right to make recommendations to the organiser regarding the time, location, purpose, or other modalities of the assembly, as well as the erection of tents, stages or other temporary constructions, in order to overcome (any potential) grounds for restricting the freedom of peaceful assembly.” This provision seems to provide a legal basis for content-based regulation through the insertion of the word purpose. The right to assemble peacefully should not be denied or restricted simply because public authorities disagree with the purposes or aims of the event. As affirmed by the ECtHR, it is “unacceptable from the standpoint of Article 11 of the Convention that an interference with the right to freedom of assembly could be justified simply on the basis of the authorities’ own view of the merits of a particular protest.” For this reason, the word “purpose” should be removed from paragraph 2. In fact, paragraph 2 should be reduced to one sentence, stating that the authorities shall have the right to recommend changes in the time, location or other modalities of the assembly under the scenarios listed in Article 16 of No. 3587. A best practice would be to provide for mediation on issues involving public assembly including participation of representatives of protest movements, local political leadership, human rights bodies, civil society organizations and international entities in order to prevent undue restrictions.
Court procedure
No. 3587 and No. 3587-1 contain a section entitled “Final and Transitional Provisions,” which provide a list of laws that need to be amended in order to ensure legal consistency between existing law and the proposed law on freedom of assembly. For example, Article 182 of the Code of Administrative Court Proceedings currently determines the procedures that authorities must follow to restrict the freedom of assembly. No. 3587 and No. 3587-1 would amend Paragraph 1 of Article 182, which stipulates that a government authority may petition a court to impose restrictions on the freedom of peaceful assembly. An amendment would fix a deadline for seeking judicial restrictions—currently, “twenty-four hours after registration of the notice” under No. 3587 or “one business day after receiving the notice” under No.3587-1. However, these time periods fail to recognize the potential need to petition a court may emerge at a later moment, such as during the assembly.
A severe time restriction is unrealistic since relevant authorities may need more time to file a claim, especially when negotiations with the organizers are ongoing. Article 183 paragraph 1 of No. 3587 requires holding negotiations with the organizer. Likewise, Article 183, paragraph 8 of No. 3587-1 obliges the authority to “prove that it has taken measures, which have failed, to negotiate with the organiser of the assembly in order to avoid restrictions on the assembly.” It would be preferable to allow an extension of the deadline for filing a petition in cases involving negotiations. It could be extended for to a period of time after the negotiations are concluded. Also, the authority may be required to inform the organizer of a prescribed time in which negotiations must be concluded in order to preserve the authority’s ability to submit a claim to the court.
Article 182 of the Code is amended by paragraph 2 of the Final and Transitional Provisions of No. 3587-1, which states that “the statement of claim, which concerns a list of unidentified defendants, shall be dismissed by court pursuant to Article 108, part 1 of this Code.” The requirement of identifying the defendant is crucial for ensuring that the organizers are informed of the commencement of the proceedings, including the date, time and place of the court session. The clarity of Article 182 may be improved by redrafting it as follows: “Pursuant to Article 108, paragraph 1 of this Code, the court shall dismiss claims that do not include the information of the defendant(s) provided in Article 106, paragraph 1(3).”
Paragraph 10 of Article 182, as amended by paragraph 2 of the Final and Transitional Provisions of No. 3587-1, provides that when imposing a restriction on the freedom of assembly the court must explain why such a restriction is necessary in a democratic society and whether it is proportional, “taking into account decisions of the European Court on Human Rights, Guidelines of the OSCE, and Council of Europe on Freedom of Assembly.” It should be noted that reference to the decisions of the ECtHR is already required under Article 17 of the law “On the Execution of Judgments and Application of the Practice of the European Court of Human Rights.”
Limits to the use of force by the police
Article 18 of No. 3587 regulates the actions of law enforcement authorities in cases where assemblies cease to be peaceful. It determines the circumstances when law enforcement officials may end an assembly, such as to prevent continued violence and arrest of persons committing violence. It also requires court decisions to detail any restrictions on the duration of the assembly and the time that peaceful participants are required to leave the place of assembly. Finally, prior to ending the assembly, the authorities must warn the participants to disband through loudspeakers at least three times, along with the consequences of failing to comply with the warning.
Surprisingly, Article 18 does not make any reference to the use of force by law enforcement officers in the course of assemblies. The police may need to disperse assembly crowds that have turned violent or arrest participants who commit acts of violence in the course of an otherwise peaceful assembly. Article 18 should make clear that the National Police, National Guard, and other law enforcement bodies may take preventive and coercive measures in the course of peaceful and non-peaceful assemblies as required by the Law on National Police. Furthermore, the police should be required to comply with the European Code of Police Ethics, which requires them to “bear in mind fundamental rights” and “use force only when strictly necessary and only to the extent required to obtain a legitimate objective.”
Article 9, paragraph 1(2) of No. 3587-1 prohibits law enforcement authorities from restricting freedom of assembly. However, such a broad ban on police interference is inconsistent with the police duty to protect public order, public safety and the rights and freedoms of others, even when this may restrict the freedom of peaceful assembly. This provision should be replaced with one that specifically enumerates the circumstances and the requirements under which law enforcement officers may use force, as seen in Article 18 of No. 3587.
Liability of authorities and police
Article 20, paragraph 1 of No. 3587 applies the principle of neminem laedere or the duty of care, whereas Article 19, paragraph 1 of No. 3587-1 goes further by holding authorities accountable for actions or non-actions taken. Participants may seek material and moral damages suffered during an assembly against the police and other authorities. Neither approach is satisfactory. Article 20 of No. 3587 is deficient on the types of damages recoverable, Article 19 would be better if it simply stated that authorities shall be liable for any harms unlawfully inflicted on the participants. In addition to a general obligation not to cause harm to others, the law should affirm the principle that the state authorities shall be liable for any harm unlawfully caused to participants by any action or inaction of the National Police, National Guards of Ukraine and other law enforcement bodies. This may be particularly important in the cases where the assembly turns violent. While there is a Ukrainian law “On the procedure for compensation of damage caused to citizen by unlawful actions of authorities carrying out operational investigative activity of bodies of preliminary investigation, prosecution and trial” (Law No. 266/94-bp), there is no existing law addressing the specific issue of compensation of persons who suffer damages owing to an action or omission of law enforcement officers. For this reason, after the Maidan Revolution, the government issued a Regulation, which aims to provide ad hoc compensation to the victims of ill-treatment by members of the former “militsia.” In order to avoid police abuses, it is crucial that this lacuna in the Ukrainian legal system is addressed as a matter of priority in the new government’s reform agenda. Article 20 affirms that law enforcement personnel who impede, suspend or disperse an assembly through the use of force or provide insufficient protection, are criminally liable. However, the language of Article 20 is too broadly worded since it fails to exclude uses of lawful and proportional force. It should also state that criminal liability attaches to both participants and law enforcement officials that commit excessive or illegal acts of violence.
Meanwhile, in some the EU Member States (Greece, Italy, Spain) numerous incidents occurred relating to government austerity measures imposed during the financial and debt crises beginning in 2008, “with a number of instances of excessive use of police force,” justifying that it was “necessary to ensure accountability and responsibility of the individuals overstepping the boundaries of their duty.” At the same time, the authorities have a duty to enable the exercise of the freedoms of expression and assembly, “ensuring safety of the participants and bystanders alike, without unnecessary and disproportionate use of force.” As a result, both Greece and Italy have introduced significant legislative amendments on freedom of assembly. The amendments were “meant to require the demonstrations to be conducted in a manner that is not disruptive, except to the extent absolutely necessary.”
These restrictions may be seen predominantly directed towards restricting spontaneous, grassroots manifestations, given that they do not apply to assemblies and demonstrations which are organized by the political parties, third-level trade unions, or for assemblies of historical or anniversary character, given that protests often begin spontaneously and in the absence of any organizational structure.
Such amendments can be seen as an overreaction by the political and government establishments to the sometime violent demonstrations against their policies. Violence is an antithesis to the notion of “peaceful” assembly and is prohibited under existing criminal law. Thus, these anti-peaceful spontaneous assembly laws should be repealed.
Model right to freedom of assembly law
The main argument for introducing a legal framework for peaceful assemblies is the opportunity to provide adequate mechanisms and procedures to ensure that the freedom of peaceful assembly is effectively enjoyed, as well as specifying the grounds that justify a court ban in accordance with democratic and human rights principles. A drafting of a model comprehensive law on freedom of assembly should be benchmarked against international standards. First, a clear definition of “peaceful assembly” is needed and should refer to a public gathering peacefully held in a public place, without weapons. Further, the model law should include a definition of a spontaneous peaceful assembly as a gathering, which constitutes an immediate and unorganized response by civil society in such a manner that the notice of assembly requirement is precluded. It should also be made clear that assemblies associated with election campaigns are not exempted from the scope of the law.
While the Ukrainian Constitution guarantees the right to peaceful assembly, it does not set forth detailed rules governing the process of organizing such assemblies. The model law should recognize that a peaceful assembly may occur without an identifiable organizer. The model law should list the factors to be considered by the authorities, including law enforcement authorities, in objectively assessing whether an assembly poses a risk of endangering public safety. There should also be an express presumption in favor of recognizing peacefully assemblies and that authorities will be held accountable for the improper use of their discretion. At its core, a peaceful assembly law should facilitate and ensure protection of assemblies. An example would be the recognition of the right of others to join an assembly, those not invited or targeted by the organizer. Furthermore, the right to peaceful assembly should be guaranteed as a right of citizens and foreigners, as supported by the case law of the ECtHR.
Areas where assemblies are precluded, as “no-protest zones,” should be clearly demarcated, such as areas next to educational institutions for children, in-patient health institutions, facilities for the elderly, and residential areas. The law should also be clear if and when the blockage of roads is permitted, while executive authority or local self-government bodies should be required to allow temporary road traffic restrictions in the place of assembly or along its route.
The requirement of prior notification should make clear that it is not intended as an obstacle but as a means to protect participants and to assist organizers in holding peaceful assemblies. The period of prior notification should require a minimum of three or more days depending on the size of the assembly. The notification period should allow sufficient time for the authorities to negotiate with the organizer for the purpose of agreeing on the modalities of the assembly. In fact, the law should oblige authorities to take all necessary measures for facilitating the assembly and protecting the participants, as well as guarantee the same level of protection for spontaneous assemblies. This will also allow the government the ability to provide necessary security and medical services. The law should also require particularized or specific notice containing the “anticipated duration” of the assembly. The law should list the authorities that must be notified and make it a duty of the authority improperly notified to immediately send the notice to the competent authority. The law should expressly state that financial and logistical support for the organization of a peaceful assembly shall be ensured by the organizer and participants of the assembly, without prejudice to charitable assistance and other sources of funding.
The law should prescribe a right of journalists and other mass media representatives to freely carry out their professional activity in reporting from the assembly. It should criminalize willful attempts to confiscate or damage journalists’ equipment in an attempt to silence reporting. This protection should also be accorded to independent observers. Moreover, confiscation by law enforcement authorities of printed material, footage, sound clips or other reportage should be recognized as a crime. Also, in accordance with international standards, authorities should be obligated to facilitate simultaneous assemblies and minimize the risk of conflict between counter demonstrations. Finally, in the case of counter demonstrations, the respective organizers should be precluded from changing the place or time of the assemblies from that provided in the prior notice.
Conclusion
The new political environment that has arisen following the 2019 parliamentary elections is injecting new impetus to the ongoing reform process. The goal of reformers is to bring the Ukrainian legal system and practice in alignment with international and EU standards. Given the dramatic history in Ukraine of the use of peaceful assembly in overthrowing, at great human costs, the government in 2014, it is surprising that a law protecting peaceful assemblies has yet to be enacted. Despite numerous attempts, the Verkhovna Rada (Parliament) has not been able to strike a proper balance in producing a comprehensive law to adequately protect and regulate the right to freedom of peaceful assembly. Two existing bills are under consideration but have been languishing in the Parliament since 2015. However, both have shortcomings including a number of gaps and inconsistencies. This article reviews the proposed bills and offers commentary on the elements that a comprehensive law would incorporate. The idea of secondary legislation clarifying and securing the Constitutional freedom of peaceful assembly is a widely accepted idea. The time is right, with a new reformist government, to enact an “ideal” law.