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Strasbourg, 14 December 2009
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CDL-AD(2009)052
Or. Engl.
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Opinion no.
556/2009
ODIHR
Opinion-Nr:FOA-UKR/144/2009
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
JOINT OPINION
on THE Order of Organising
and Conducting
Peaceful Events
OF UKRAINE
by
the Venice Commission
and
OSCE/ODIHR
Adopted by the Venice Commission
at its 81th Plenary Session (Venice, 11-12 December
2009)
On the basis of comments by:
Ms Finola FLANAGAN (Member, Ireland)
Mr Christoph GRABENWARTER (Member, Austria)
Mr Hubert HAENEL (Substitute Member, France)
OSCE/ODIHR Expert Panel on Freedom of Assembly
TABLE OF CONTENTS
I. Executive
summary. 2
II. Introduction. 4
III. General
Observations. 4
IV. Analysis. 5
Title of the Draft Law.. 5
Article 1.2 – exclusion of certain assemblies from the
scope of application of the Draft Law.. 5
Article 2 – Definitions of Main Terms. 6
Article 3 – Applicable law.. 7
Article 4 - Organisers of Peaceful Event 7
Articles 5 and 6 – Rights and Obligations of Organisers
and Participants. 8
Articles 7 and 8 – Notification. 10
Article 9 – Place and Time. 11
Article 11 – Support for assembly. 12
Articles 12, 13 and 14 – Responsibilities of Executive,
Local authorities and law-enforcement bodies 13
Article 15 and 16 – Termination of assembly. 14
Article 18 – Compensation. 15
Article 22 – Limitation of rights of assembly. 16
1. The current
Draft Law is considered not only in light of the standards numerated above, but
against the Joint Opinion on Peaceful Assemblies in Ukraine,CDL-AD(2006)033,
issued in 2006 (hereinafter: the 2006 Joint Opinion). An opportunity to meet
with representatives of the Cabinet of Ministers as well as the key figures in
the Verkhovna Rada of Ukraine would be welcomed so that a fuller understanding
could be gained of how the administrative and other systems provided for in
this Draft Law are intended to operate.
2. The current
law is already clearly endeavouring to establish a legal framework for the
exercise of freedom of peaceful assembly which is compatible with international
standards and may be considered liberal in its approach. The draft Law is a further
step towards ensuring that freedom of peaceful assembly is properly protected
in Ukraine. However, it contains provisions that lack clear standards to guide
official decision-making. This creates a potential for abuse that needs to be
remedied. In addition, the provisions of the Draft Law also give rise to
concern as to how they would be implemented in practice.
3. While the
desire of the initiators of the Draft Law to set up a legal framework for the
exercise of the freedom of peaceful assembly is understandable, the right to
freedom of peaceful assembly is a fundamental right in a democratic society and
as such, it should be primarily governed by the Constitution.
4. It is of
paramount importance to test the provisions of the Draft Law against the
principles of legality and proportionality as well as their necessity in a
democratic society. All three elements (legality, proportionality and
necessity) ought to be met simultaneously in order to guarantee that freedom of
peaceful assembly is respected in line with international standards.
5. In
particular, the following recommendations for amendment are made:
a)
The title of the Draft Law should correspond to
the generally accepted term of “peaceful assemblies”;
b)
The legislation Draft Law should be based on
primary laws, explicitly excluding secondary legislation;
c)
The position of the current Draft Law in the
hierarchy of legal norms in Ukraine should be made clear in order to ensure
that its provisions prevail over any other regulations affecting assemblies
which may be more stringent than the extant Draft Law;
d)
The definitions provided in the Draft Law need
to be revised; the definition of a peaceful assembly should be amended to
clarify that it refers only to open-air public assemblies on public property;
e)
The Draft Law should allow for simultaneous
(including counter-demonstrations) and spontaneous assemblies;
f)
The right of non-nationals and stateless people
as well as of other categories of people, including minors to organise a
peaceful assembly should be explicitly stated in the Draft Law;
g)
The Draft Law should be amended to remove any
content-based restrictions on freedom of peaceful assembly at any stage, unless
violence, hatred or discrimination are advocated;
h)
The organisers of a public assembly should be
required to provide written notification of an assembly within a clearly
articulated timeframe to avoid any misunderstandings or misjudgements on the
part of the authorities;
i)
There should be an express opinion in the Draft
Law that organisers are entitled to fix flaws in notifications at any time up
to the commencement of the assembly;
j)
On the request of an assembly organiser, the
authorities must give immediate written confirmation of receipt of
notification; provisions of the Draft law should also provide that a failure by
the authorities to provide timely confirmation will be tantamount to acceptance
of the assembly;
k)
The Draft Law should eliminate prohibition of a
peaceful assembly on the grounds of failure to submit a notification;
l)
The Draft Law should clearly outline the
responsibility of the authorities to provide public security, free medical
services, and cleaning services during the assembly;
m)
The organisers should not be liable for damage
and violations inflicted by others;
n)
It is recommended that a provision in the Draft
Law be introduced which would provide a defence for participants charged with
taking part in an unlawful assembly in the case that such participants were
unaware of the unlawful nature of the event;
o)
The provisions related to the issues of funding
of assemblies must be clarified in the Draft Law: there is no reason to
prohibit otherwise peaceful assemblies because of the controversial nature of
their funding;
p)
The provision which states that organisers have
the right to hold gatherings at specially designated and arranged premises
should be removed;
q)
The ban on assemblies in the immediate vicinity
of hazardous facilities should be limited to areas which are closed to the
public;
r)
The Draft Law needs to be amended to state that
it is the positive obligation of the State to facilitate two or more assemblies
in one place and time;
s)
The Draft Law should provide better and clearer
division of obligations between organisers of an assembly, authorised
representatives of local authorise and law-enforcement bodies;
t)
Blanket provisions for the termination of a
peaceful assembly should be removed;
u)
The Draft Law should ensure that a peaceful
assembly can not be terminated whilst it remains peaceful in both form and content;
v)
It is recommended that the reasons for
termination of an assembly be narrowed down to a threat to public safety, or
clear and imminent danger of substantial disorder only. Measures should only be
taken against those persons who violate public order, commit or instigate commission
of unlawful actions that prevent a peaceful assembly from meeting its
objectives;
w)
The Draft Law should clearly state that law
enforcement officials can use force only as a last resort, in proportion to the
aim pursued, and in a way that minimizes damage and injury; the use of force
should be authorized and based on the clear provisions of the law, and the
relevant justification should be subjected to public scrutiny;
x)
The grounds for liability for unlawful or
excessive use of force by law enforcement bodies should be established by law;
y)
The list of grounds on which a peaceful assembly
can be prohibited should be revised so as to bring it in line with the
proportionality test;
z)
The Draft Law should explicitly provide that the
burden of proof for establishing the grounds upon which an assembly may be
banned lies with the regulatory authority and the police, both in
administrative proceedings and as part of the judicial proceedings;
aa) The Draft Law should ensure access to a court of law, in case an
application is filed to prohibit an assembly; any prohibition to conduct a
peaceful assembly may be appealed against to a court of higher instance; the
possibility must be given to obtain preliminary injunctions.
6. On 30 September 2009, both
the Venice Commission and the OSCE Office for Democratic Institutions and Human
Rights (hereinafter referred to as “OSCE/ODIHR”) received an official letter
from the Office of the Acting Minister for Foreign Affairs of Ukraine
requesting a review of a new Draft Law of Ukraine on Order of Organising and
Conducting of Peaceful Events (CDL(2009)165, hereinafter referred to as
“the Draft Law” or “the Draft”) that is currently under consideration in the
Verkhovna Rada.
7. The Draft Law under review was
initially prepared by the Ministry of Justice of Ukraine and, following its
approval by the Cabinet of Ministers, was submitted to the Verkhovna Rada (also
referred to as the “Rada” or “Parliament of Ukraine”) which adopted it in the
first reading on 3 June 2009.
8. This Opinion was prepared jointly
by the OSCE/ODHIR Expert Panel on Freedom of Assembly and the Venice Commission
on the basis of an unofficial English translation of the Draft Law presented by
the Ministry of Foreign Affairs of Ukraine. It was adopted by the Venice Commission at its 81th Plenary Session (Venice,11-12 December 2009).
9. The Draft
Law under examination is a development of a previous draft law entitled
"Draft Law on Peaceful Assemblies in Ukraine" (CDL(2006)063) on the
same subject and which was submitted to the Venice Commission in 2006. The
Venice Commission and the OSCE/ODIHR Panel adopted a Joint Opinion on this
draft law (CDL-AD(2006)033) which concluded at paragraphs 47 and 48:
"The draft law under consideration is clearly endeavouring to
establish a legal framework for the exercise of freedom of peaceful assembly
which is compatible with international standards. Moreover, it may be
considered liberal in its approach and generally complies with the European
standards on freedom of peaceful assembly.
The law is however excessively detailed. A certain number of
amendments are nonetheless considered necessary in order to achieve full
clarity and full compliance with the relevant standards."
10. The new
Draft Law contains certain improvements in respect of the draft law previously
examined by the Commission. The law however still presents several substantial
shortcomings and continues to be excessively detailed with excessive
differentiation between categories of event in a manner which is not properly
linked to permissible reasons for restrictions. Several recommendations of the
2006 Joint Opinion have not been addressed. It is recommended that close
attention be paid to the OSCE/ODIHR Guidelines on the Freedom of Assembly (the
Guidelines)
which cover comprehensively the law and practice on this matter.
11. The 2006
Joint Opinion set out in some detail the international standards governing the
right to freedom of assembly and which have been emphasised by the Venice
Commission and OSCE/ODIHR in many opinions. These are the standards against
which the law is assessed.
12. Article 39
of the Constitution of Ukraine sets forth “the right to assemble peacefully”,
therefore, as concerns the title of the Draft Law, it is recommended to use the
term “peaceful assemblies”, instead of “event”. The term “assemblies” is
already applied in other legislative acts of Ukraine such as the Code of
Administrative Court Proceedings and the Civil Code. Since the Draft Law also
acknowledges that a “peaceful event” is an “assembly”, there is no compelling
reason to use the term “peaceful event” which may be misleading. In addition,
as the Guidelines suggest, the draft law should apply to assemblies in open air
public spaces and not to events in premises as is suggested by the definition
“f. gatherings”.
13. This
article sets out a list of events to which the Draft Law does not apply. These
are:
"1) gatherings of all or part of residents of a village
(villages), a town or a city to solve local issues in accordance with the Law
of Ukraine “on Local Self-Government in Ukraine”;
2) gatherings of staff, meetings of statutory management body,
citizens’ associations, meetings of voters with candidates for members of
parliament and elected deputies, candidates for the post of the President of
Ukraine;
3) peaceful events with the purpose to rest, public entertainment
events, sport events, wedding processions, folk festivals, funerals;
4) religious rites and ceremonies in cases provided by the Law of
Ukraine “On liberty of conscience and religious organizations”.
14. Paragraph
4) covering religious ceremonies is a new category which did not appear in the
2006 Draft Law.
15. The right
of assembly covers all types of gathering provided they are peaceful and
therefore the types of assembly listed in Article 1.2 are protected by the
international conventions and domestic law alike. One assumes that the purpose
of excluding these categories is to remove from organisers and participants the
obligations contained in the rest of the Draft Law and, in particular, the
obligation of notification. It may be that categories 1) and 4), those
involving local self-government and religious rites and ceremonies
respectively, are governed by other specific laws. These exceptions do not
appear problematic unless their aim is to target these categories of public
assemblies by providing them with less favourable treatment . For this reason,
it is recommended that a provision be added, stating that, in case the cited
legislation imposes more stringent restrictions on these categories of
assemblies, including religious assemblies, then the current Draft Law should
be applicable.
16. However, it
is not clear what the basis is for the different treatment of each of these
categories of assembly. One can understand that there might be a desire not to
regulate recreational and funeral gatherings to the same degree as political
ones. However, one presumes that meetings of "citizens associations"
could be for political purposes or for social agitation and meetings of
"voters with candidates" for certain elections would certainly be for
political purposes and could involve large numbers of participants gathering on
the public thoroughfare. The Venice Commission and the OSCE/ODIHR would welcome
clear explanation of the policy behind these provisions. Measuring it against
the international standards would assist in bringing clarity to the legislative
text so as to ensure that the Draft Law, on its face, complies with those
international standards.
17. The Venice
Commission and OSCE/ODIHR note that category 2), insofar as it excludes from
the application of the Draft Law certain "meetings of voters with
candidates", has not been extended to apply to "all election-related
meetings" as was recommended by the 2006 Joint Opinion. It is not clear
why these assemblies are excluded, while the law fails to provide references to
regulation under other laws. A general law on assemblies should cover
assemblies associated with election campaigns, an integral part of which is the
organisation of public events. Therefore, the provision is recommended to be
amended, to ensure that gatherings of staff, meetings of statutory management
body, citizens’ associations, meetings of voters with candidates for members of
parliament and elected deputies, candidates for the post of the President of
Ukraine, are protected under the Draft Law, or any other primary act that the
Draft Law may wish to specify, ensuring that its provisions prevail over any
other regulations affecting assemblies which may be more stringent than the
extant Draft Law.
18. Article 2
provides for the definitions of six different types of assemblies
(demonstration, gathering, peaceful event, meeting, picketing, march) and of
the “notification”. This article was the subject of criticism in the 2006 Joint
Opinion as "being of little value", and has nonetheless been
maintained in the present Draft Law. As concerns the term “gathering”, see
para. 12 above, in fine).
19. The
Guidelines define an assembly as “the intentional and temporary presence of a
number of individuals in a public place that is not a building or structure for
a common expressive purpose.” (Guidelines, para. 13) The Draft Law introduces
the following definition of a public assembly: “peaceful event is a free public
peaceful expression of civil or political position of a person that allow
expression of thoughts, adopting a resolution, other addresses on various
issues of public life at an assembly open for everyone that is held in the form
of gathering, meeting, march, demonstration, or picketing or any various
combination of these forms on initiative of an individual or legal person.”
20. Since the
Draft Law does not provide for any legal consequences for different forms of
assemblies, there appears to be no reason to define them. Additionally, the
factual difference between “demonstration” and “march”, or between “gathering”
and “meeting” is also not clear. Any definitions of assemblies or attempts to
categorize them over and above a peaceful assembly risk a violation of the ECHR
and ICCPR as forms of assemblies may be inadvertently or even intentionally
left out and become subject to prohibition. Ascribing a specific purpose to
each type of assembly defined is inappropriate. As was said in relation to the
Law on Freedom of Assembly in Azerbaijan : "The purpose of the assembly
should be irrelevant in these definitions. Where an assembly, of whatever kind
for whatever purpose is peaceful its restriction can only be justified for the
reasons listed in Article 11(2) ECHR… The definitions in this provision of the
Law are likely to result in arbitrary decision-making in relation to what
assemblies are permitted and in unjustifiable restrictions in relation to the
holding of peaceful assemblies… [The] distinction [between the various types of
assembly defined] is not easy to apply in practice and could result in unjustified
restrictions on the freedom of assembly."
21. It is
recommended that these definitions be deleted and that the definition of
peaceful assembly be amended to clarify that it includes gatherings, meetings,
marches, demonstrations and picketing which are public assemblies, and applies
only to open-air public assemblies.
22.
Additionally, it is recommended for the Draft Law to provide a definition of
simultaneous assemblies. While Article 9 (6) refers to simultaneous assemblies
by reading that “[i]n case of submission a notification on holding a peaceful
event, which states the date and time of the event that coincide with the one
specified in a notification submitted earlier, organisers (organiser) may amend
their notification at the suggestion of the executive authority or institution
of local governing, or submit a new notification with changed place or time of
the peaceful event(…)”, the Draft Law does not contain a specific definition
thereof. The definition of “simultaneous assemblies” should also include
“counter-demonstrations” that is, when persons exercise their right to assemble
to express their disagreement with the views expressed in another assembly .
23. It is
further recommended to add in the draft Law a definition of “spontaneous
assemblies”. The Guidelines stress that the ability to respond peacefully and
immediately that is, spontaneously and without providing formal notification,
to some events, news, incidents or other assembly is an essential element of
freedom of assembly. The authorities should protect and facilitate any
spontaneous assembly as long as it is peaceful in nature .
24. It is
therefore recommended to include definitions of these types of assemblies in
Article 2 of this Draft Law, as well as to introduce relevant articles
dedicated to these types of assemblies in the text of the Draft Law.
25. Article 3
states that the law on Order of Organising and Conducting Peaceful Events “is
based on the Constitution of Ukraine, the generally recognized principles and
norms of international law and consists of this Law and other acts of
legislation that ensure the right to conduct peaceful events” .
26. Тhe
term “other acts of legislation“ used in Article 3 of the Draft Law, is rather
vague and may also be understood as including secondary legislation. According Article
92(1) of the Constitution of Ukraine, “human and citizens' rights and freedoms”
as well as the guarantees of these rights and freedoms shall be determined
exclusively by laws. Therefore, it is recommended that the Draft Law should
make reference only to primary law.
27. The Draft
Law now includes, as recommended in the 2006 Joint Opinion, "legal
persons" within the definition of "organiser".
28. However, it
is not satisfactory that there has been introduced a complete prohibition on
the following persons from being organisers:
"1) a person aged under eighteen;
2) persons recognized by court legally incapable or a dependent
adult, as well as a person subjected to administrative detention, is in
custody, or is in prison by a judgment of court".
29. Whilst
certain restrictions may be placed on the exercise of the right of assembly by
these categories of person in view of the serious responsibilities of
organisers, neither the Convention on the Rights of the Child nor the ICCPR nor
ECHR case law permit complete prohibition. Children have legitimate claims and
interests. Under Article 15 of the UN Convention on the Rights of the Child, they should have the
possibility of expressing their views and of contributing to society through
freedom of peaceful assembly. They should therefore be permitted to organise
assemblies with the consent of parents or guardians. Legally incapable people
should never be denied this right altogether, since in many cases the issue
that they would wish to raise is not likely to be raised by any other group and
they should be appropriately facilitated.
30.
Furthermore, Article 4 excludes persons in administrative detention, persons in
custody or in prison by a judgment of court, from organising a peaceful
assembly under this Law. This provision has to be qualified as a blanket ban.
The law does not distinguish between persons that are subject to administrative
detention, persons in custody, or persons in prison by a judgment of court. It
is recognized that a conviction might be combined with the deprivation of
several civil rights in some legal systems, but such a deprivation of rights
has to be proportionate. It cannot be qualified as proportionate at all to
exclude prisoners, persons in detention or in custody from organising any event
irrespective of the negative impact of a criminal offence. These persons do
also have legitimate claims and interests and should also have the possibility
to express their views. For sure, peaceful events organized by arrested persons
might sometimes offer higher risks concerning the public order, than peaceful
events organized by persons who are not arrested. However, the imprisonment
itself cannot be seen as a reason to ban these persons from organising peaceful
events in general. A peaceful event can be organized by several persons. It
cannot be considered problematic if one of these organisers is arrested and
cannot make use of his rights and duties to the full extent, because the other
organisers might replace him in this regard. Therefore, it is recommended to
withdraw this provision and instead of deciding upon a restriction of
assemblies organized by prisoners on a case by case basis.
31. The Draft
Law should contain a presumption in favour of holding an assembly in these
instances as well; any ban of such an assembly should only be possible in
justifiable circumstances, such as reasons of national security or public
order.
32. Article 4
(2)(3) also gives rise to concern. This provision states that “association of
citizens that in accordance with the established procedure is subjected to a
decision on temporary prohibition to conduct peaceful events, or its activities
are subjected to a temporary ban or suspension in accordance with the
established procedure”. It is recommended that this provision be removed as,
regardless of the reasons why an association, as any legal entity, has been
banned or its activities have been suspended, it can not be prohibited to
organise and conduct an assembly, unless it is not peaceful or incites hatred or
racism.
33. Much of
Article 5 and all of article 6 are the same as the provisions in the 2006 Draft
Law (Articles 4 and 5 respectively) and the important criticisms made in the
2006 Joint Opinion apply equally to the current Draft Law. It is disappointing
that the authorities have not been able to address these criticisms.
34. Article
5(1) states that organisers have the right to hold “gatherings” at specially
designated and arranged premises. This provision contradicts Article 9 (1) that
provides, in line with the recommendations of the Venice Commission and the
OSCE/ODIHR, that a peaceful event may be held in any suitable place: it should
therefore be deleted.
35. Article 5(1)
includes preparatory agitation via mass media, through dissemination of
leaflets, posters, banners, slogans and in other forms not prohibited by law;
as the 2006 Joint Opinion already previously stressed, this phrase might lead
to the assumption that these activities were unlawful if not carried out under
this Law. Therefore, it is recommended to withdraw this phrase. Article 10
stipulates these rights of preliminary agitation of the organiser again and
should therefore be withdrawn too.
36. The most
significant of the deficiencies in the provisions under consideration is that
"…the article appears to impose law enforcement responsibilities on
organisers of public assemblies…", which also appears to be inconsistent
with Article 20 (3), and which the participants are required to obey: this is
inappropriate where the requirement goes beyond mere stewarding by organisers.
Organisers bear a certain responsibility to prevent disorder, however, this
responsibility should only extend as far as exercising due care to prevent
interference with public order by the assembly participants. The Venice
Commission previously commented in relation to another law that it imposed
"excessive responsibilities on the organiser. An organiser cannot be held
responsible for everything that occurs at a gathering governed by the draft
law. An organiser might not be in a position to terminate a public event which
had got out of his or her control. Nor would the organiser necessarily be able
to cause violations of the law to cease or ensure that property was not damaged
or ensure access to private property."
The 2006 Joint Opinion recommended at paragraph 28 that "[a] better
approach to Article [5] would eliminate mention of formal duties of organisers
beyond compliance with the notice requirement and compliance with reasonable
time, place, and manner restrictions equally applicable to all participating in
the assembly." This recommendation is repeated in relation to this Draft
Law.
37. Indeed,
Article 5(2) seeks to impose additional obligations on the organisers which
were not specified in the 2006 Draft Law. One such additional obligation is to
"stop or interrupt the peaceful event if its participants act unlawfully
or violate the procedures…" Apart from the fact that it is undesirable
that a policing obligation beyond stewarding may be imposed on the organisers
it is disproportionate that they are required to "stop or interrupt"
the event for all violations of procedures, it would appear, whatever their
nature. Minor deviations from what has been detailed in the notification should
be accommodated without penalty.
38. Article
5(3) provides that "[organisers]…of a peaceful event have no right to
conduct the peaceful event if notification on holding it was not submitted in
order established by this Law." In the absence of a specific provision
permitting spontaneous assemblies this means that no spontaneous assemblies are
permitted and they are undoubtedly protected by the Convention. This requires
to be remedied as was recommended in the 2006 Joint Opinion. It should be made
clear that spontaneous assemblies do not require an organiser. "The law
should explicitly provide for an exception from the requirement of advance
notice where giving advance notice is impracticable. Even if no reasonable grounds
for the failure to give advance notice are provided, the authorities should
still protect and facilitate any spontaneous assembly so long as it is peaceful
in nature. Organisers who ignore or refuse to comply with valid advance-notice
requirements may be subsequently prosecuted."
39. Article
6(1) explicitly states that participants of a peaceful assembly may be citizens
of Ukraine, foreigners or stateless persons. This is in conformity with a
previous recommendation of the Venice Commission and OSCE/ODIHR in this
respect, and it is to be welcomed.
40. The Draft
Law, however, does not stipulate that foreigners (that is, non-nationals) or
stateless people can also organize a peaceful assembly. The freedom to organize
and participate in public assemblies must be guaranteed to both nationals and
non-nationals as well as stateless persons, refugees, foreign nationals, asylum
seekers, migrants, and tourists (Guidelines para. 14). It is therefore recommended
to use the language of the ICCPR and the ECHR and refer to “everyone” in this
regard.
41. Article
7(1) of the Draft Law states that an organiser of a peaceful event shall
provide a written notification to the executive authorities and local
self-government bodies “taking into the consideration the time that is required
for these bodies and law-enforcement bodies to be prepared to ensure public
order and security of people during the peaceful event”. The positive aspect of
this provision is that it explicitly refers to “informing about” and not
“asking permission for” holding a peaceful event. Written notification will
facilitate the administration of the assembly as well as all necessary arrangements
to be made by the relevant state bodies to ensure proper policing. Notification
also ensures that the details of the proposed event are clearly established in
order to avoid any potential misunderstanding at a later stage.
42. The Draft
Law has removed the requirement that notification must be submitted five days
prior to the event. The 2006 Joint Opinion considered this "unusually
long". While this amendment is in itself welcome, it must be underlined
that once there is a requirement to have a written notification, organisers
should know how long in advance it is required to be submitted. Having no
stipulated time means that organisers could be caught unaware and be refused
because the authorities considered that too little time was allowed. This
allows for arbitrary decision-making by authorities on what is a reasonable
time. The positive duty on states to permit and facilitate the exercise of the
freedom means that the least feasible time be required for notification. It is often
important to participants that assemblies take place at a time proximate to a
particular event and any lapse of time due to administrative undue procedures
may make the assembly less relevant and have less impact.
43. It is therefore
recommended that the Draft Law provide an explicit timeframe (for example 48
hours) for organisers to provide notification of a planned assembly.
44. It is
further recommended that the Draft Law require the authorities to issue a
written acknowledgement of receipt, confirming that the organiser of the
assembly has fulfilled the applicable notice requirements (Guidelines, no 94) to
the organisers immediately upon its receipt and that any failure to provide
confirmation by the authorities is tantamount to a confirmation being issued.
45. At the same
time, the Draft Law should explicitly provide that a lack of notification does
not lead to an automatic prohibition of an assembly. Even in cases where no
notification has been provided, the presumption should be in favour of holding
the assembly and it should thus be facilitated by the police as long as it
remains peaceful and does not impose unreasonable regulatory or law enforcement
problems.
This, however, would not prevent authorities from imposing reasonable
regulations on assemblies, for which no advance notice has been given to
authorities. Furthermore, sanctions may still be applicable to participants of
planned assemblies, for which no notice has been given after the assembly is
over, providing such a notice is required.
46. There
should be an express provision in the Draft Law that organisers are entitled to
fix flaws in notifications at any time up to the commencement of the assembly.
This is so particularly since Article 5.3 removes the right from organisers to
conduct assemblies if notification is not submitted according to the
requirements of the Draft Law.
47. The draft
law should allow for spontaneous assemblies, when these are designed to respond
immediately (that is, spontaneously) to some occurrence, incident, other
assembly or speech (Guidelines, para. 97).
48. It is not
clear what is required by Article 8.1 where it requires that the notification
contain "form and methods of guaranteed providing by the organisers
(organiser) of public order, medical care during the event". If this means
that the organisers have to guarantee "public order" and also that
they are responsible for the provision of all first aid and medical care, this
should not be. It is recommended that this provision be removed. As has been
stated above and in the 2006 Joint Opinion, organisers cannot be required to
take on policing or other state functions.
49. Article
8(3) contains a positive provision that prohibits executive or local
authorities to refuse accepting notification of an assembly, submitted in
compliance with the requirements of this Draft Law. As was said above (para.
43), it is recommended to add a provision that includes the instruction to the
competent authority to issue an acknowledgement of receipt of due notification.
50. Article 9.1
positively provides for the general possibility of holding a peaceful events
“in any place suitable for this purpose” and at any time of the day. The same
provision prohibits holding events near "high risk objects, defined as
such according to the laws…" It is not clear what is intended: while it is
considered justifiable to prohibit public assemblies near hazardous facilities
that pose a threat to life or safety and which are closed to the public, and
presumably fenced in, if the area near a hazardous facility is open to the
public, there appears to be no reason to exclude an orderly public assembly in
the same area. In addition, it is unclear what laws are referred to. This
should be clarified.
51. It is positive
that the Draft Law stipulates that prohibitions are limited to those that will
be disruptive of activities that regularly occur at the site, which is in line
with the 2006 Joint Opinion, thus, respecting another key principle, according
to which an assembly should be able to take place within “sight and sound” of
its target subject.
However, mere inconvenience to the institutions mentioned in the Draft Law
(schools, hospitals, prisons, courts) should not be a reason for prohibition.
Using "devices that are sources of noise etc." should not necessarily
be ground for prohibition. The assembly must genuinely interfere with the
activities at such sites. In order to make one's point, some noise will almost
inevitably be essential and temporary disturbance should not result in prohibition.
This applies equally to state buildings and diplomatic missions as to other
buildings.
52. Article 9.6
does not provide for a sufficient and satisfactory guarantee for simultaneous
demonstrations (see paras. 21-22 above). "Where notification is given for
two or more assemblies at the same place and time, they should be facilitated
as much as possible. Emphasis should be placed on the state’s duty to prevent
disruption of the main event where counter-demonstrations are organized".
This means that appropriate policing is required to permit both events unless
this should present an unmanageable threat to public order.
53. Article
9(6) appears to regulate counter-demonstrations and simultaneous assemblies,
and to do so unsatisfactorily to the extent that it provides only for the
possibility of changing the time or the place of one of the assemblies. It is
necessary for the authorities to take account of the fact that the only
restrictions permitted are for the reasons set out in Article 11(2) of the
European Convention on Human Rights and inconvenience is not sufficient. A
blanket prohibition on two assemblies taking place close to each other is not
permissible. The Guidelines explicitly provide that where notification is given
for two or more assemblies at the same place and time, they should all be
permitted and facilitated as much as possible, notwithstanding who submitted
the notification first and how close to each other they plan to gather. This
owes also to the fact that all persons and groups have an equal right to be
present in public places to express their views. Thus, persons have a right to
assemble as counter-demonstrators to express their disagreement with the views
expressed by another public assembly. Indeed, in such a case, there is a
possibility of disruption of an assembly by a counter-demonstration, and it is
the state’s positive obligation to prevent disruption of the event, against
which counter-demonstrations are organized. Where possible, the authorities
should take measures to ensure all assemblies can take place, rather than use
the notification of simultaneous events as a justification of imposing automatic
restrictions and prohibitions.
Furthermore, the state has a positive obligation to provide adequate policing
to facilitate counter-demonstrations within sight and sound of one another.
54. It is
therefore recommended that Article 9 (6) be amended to bring it into line with
international standards by removing the requirement for one of two or many
assemblies to change the place and/or time; this provision should rather state
the positive obligation of the state to facilitate two or more assemblies in
one place and time.
Article 10 –
Preliminary agitation
55. The Draft
Law contains an indirect restriction on peaceful assembly in Article 10, which
provides that preliminary agitation may not be conducted in the form of a
peaceful event. It is recommended to delete Article 10(3), which goes much
further than the wording of Article 11(2) of the ECHR and can impede the right
to freedom of expression. The contents of leaflets and other materials about an
assembly or circulated at an assembly should not be governed by this Draft Law.
The phrase “insults and humiliates the honour and dignity of man and citizen”
is rather broad and should also be limited to language that appears in the
ECHR.
56. Article 11
(2) prohibits financing of an assembly by state enterprises, institutions and
organizations, as well as foreign states, their citizens and legal entities.
This provision raises concerns. Foreign citizens residing in Ukraine should be permitted to contribute to such events. Indeed, Article 6.1 permits foreigners and
stateless persons to participate in peaceful assemblies. Additionally, banning
state-owned enterprises, institutions and organizations from funding public
assemblies means that their capacity to organise public assemblies may be
seriously undermined.
57.
Furthermore, it is not clear what kind of repercussions will ensue in case such
financing takes place. It is recommended that the Draft Law clarify to which
entities it specifically applies and provide officials with sufficient guidance
so that the Draft Law does not, as a result, prohibit sponsorship of speech
activities by institutions, unless such support is secret.
58. Article 11
(3) requires "[p]owers of a peaceful event participants, who provide
material and technical support of its holding, are to be verified in written
form by the organisers (organiser) of the event." It is unclear exactly
what this means since such persons may have no "powers" in relation
to the holding of the event; it is not clear what kind of powers need to be
verified and when they need to be verified. On the contrary, this provision can
be considered onerous and disproportionate: if its purpose is to require the organisers
to identify financial supporters and persons who provide free services or
supplies, it should be deleted, since it is not relevant to the issue of
reasonable time, place, and manner of the assembly. This should be clarified or
removed.
59. The role of
an authorized representative of an executive authority or local self-government
body needs clarification. Article 13(1) states that the representative has a
right to “adopt decision on termination of a peaceful event on the basis and on
the grounds provided by this Law”. The requirement to ensure public order and
safety of people as well as observance of law during the conduct of event also
seems to be redundant as this is manifestly the obligation of the
law-enforcement bodies and not the local authorities.
60. Article
13(2), according to which an executive authority or local self-government body
shall inform the relevant authorities about the demands and / or appeals of the
participants of an assembly, is positive. It is welcomed that there will be a
focal point within the local authority with which assembly organisers may
directly communicate.
61. The same
Article also outlines the rights and responsibilities of an authorized
representative of law-enforcement body, who is appointed upon receipt of a
notice about an assembly from local authorities. It is not clear what the
demand to “follow procedure and conditions for holding such event” refers to.
Should the assembly follow exactly what was provided in the notification? This
might be relevant when it concerns the time, place and route. However, what if
it concerns dissemination of leaflets? Should the organisers be ordered to stop
dissemination because the notification did not mention it, otherwise the
assembly would be terminated? It is recommended that this provision be
reformulated in order to eliminate these uncertainties.
62. Article
14(2) gives the right to an authorized representative of a law-enforcement body
to "remove from a place of holding the event persons that do not follow
lawful requests of its organisers". It is not clear exactly who such an
"authorized representative" is. This power should be exercisable only
by the police. Whilst it may be appropriate for the police to use such a power
in certain circumstances, it should not be used for minor infractions which
have no significant consequences for law and order. The offending individual
could more appropriately be charged with the offence after the event and
perhaps fined if convicted. The authorities should not be permitted to use this
power disproportionately.
63. It is thus
recommended that the provision clearly state that the authorised representative
is permitted to take measures only against those persons who violate public
order or commit or instigate commission of unlawful actions that prevent
achievement of the peaceful assembly objectives The provision should further
state that a removal of individuals based on Article 14(2) point 2, shall not
be tantamount to a termination of the entire assembly.
64. Article
15(1) provides that in case of a violation of public order during a peaceful
assembly that does not present a threat to human life and health “an authorized
representative of executive authority or local self-government body has the
right to demand from the organisers (organiser) to eliminate such violation by
themselves”. In case of non-compliance with this demand, a peaceful assembly
can be suspended first, and then, if the violation has not been eliminated
“within the period established by authorized representative of executive
authority or local self-government body”, the peaceful assembly will be
terminated. This three-step procedure giving the organiser and the participants
the possibility to eliminate violating behaviour is highly appreciated.
65. However, the
blanket provision of terminating an assembly in cases when participants have
violated requirements of law does not appear to be in line with the principle
of proportionality as it does not to take into account the specific
circumstances of each particular case. This provision could lead to termination
of a peaceful assembly on the grounds of a minor breach, which is an
unacceptable result. For instance, if a small assembly is scheduled to take
place and, on the day of the event, it turns into a significantly larger
assembly because of an unexpectedly high turnout, the assembly should be
accommodated by law enforcement authorities and should be treated as being
lawful so long as it remains peaceful.
66. The
Guidelines also provide that as long as assemblies remain peaceful, they should
not be terminated since termination of assemblies is a measure of last resort.
They should be governed by prospective rules; expressed in domestic police guidelines.
Legislation should require that such guidelines be developed.
67. An assembly
can be subject to prohibition only if the prohibition pursues a legitimate aim,
is proportionate and necessary in a democratic society. This implies that an
assembly can be terminated in response to an imminent threat of violence and
disorder associated with a particular assembly. Thus, provisions in Articles
15(2) and 15(3) do not fully reflect the proportionality principle, as they are
unlikely to be considered as necessary in a democratic society. Termination
might be considered as a proportionate measure if a significant number of
participants engage in a substantial violation of public order and “there is no
reasonable likelihood that voluntary cessation of the substantial violation can
be accomplished by means of communication with violators or, if that fails,
arrest of the particular persons engaged in the violation of public order.” Therefore, it is
recommended that the Draft Law explicitly states the above cited instance of
when an assembly may be terminated.
68. Article 16
on the grounds for termination of a peaceful assembly is formulated in an
overly broad manner, with the exception of the provision stating that “actual
threat to human life and health, to property of individuals or legal entities”
can lead to termination of an assembly. Other grounds include: abuse of state
symbols (which should not be a ground for termination), public order violations
(without specifying how serious they should be in order to fall within the
ambit the Draft Law) and all grounds for prohibition of a peaceful assembly as
outlined in Article 22 (see below). Thus, while only a court can prohibit an
assembly, the decision regarding its termination is made by an authorized
representative of executive authority or local self-government body.
69. It is not
clear what criteria the executive authority should apply in order to decide
whether a peaceful assembly, for instance, violates sovereignty of the state.
Such decision belongs rather to the competence of a court of law. Furthermore,
the provision allowing termination of a peaceful assembly due to “abuse of
state symbols” by participants should be removed, for reasons of being too
broad. It is recommended to narrow down the reasons for termination of an
assembly to include only threats to public safety, or clear and imminent danger
of substantial disorder only.
70. As regards
the procedures for termination of an ongoing peaceful assembly, Article 17(1)
of the Draft Law provides for the requirement of written instructions of
termination that should be given by an authorized representative of executive
authority or local self-government body to the organisers, who are obliged to
carry out these instructions.
71. Further,
Article 17(1) states that [f]ailure to comply with the instruction to terminate
the peaceful event leads to necessary actions of the police officers aimed at
its termination in accordance with the law”. It is recommended that this clause
be supplemented with a provision reflecting the principle of proportionality.
Namely, international standards require that law enforcement officials should
use force only as a last resort, in proportion to the aim pursued, and in a way
that minimizes damage and injury.
While it is not indispensable for the provision, a reference to liability for
unlawful or excessive use of force by law enforcement bodies might be
beneficial,
though such liability is necessarily already contained in laws governing
conduct of officials.
72. This
provision is the same as that contained in the 2006 Draft Law, which was
criticised in the 2006 Joint Opinion.
73. Article 18
imposes excessive liability of an organiser who, according to the provision,
covers any material damage inflicted upon public or private property during a
peaceful assembly. This provision of the Draft Law should be modified. First, organisers
should not be held liable for spontaneous violence providing they did not
participate and made reasonable efforts to prevent it. Second, only the damage
that was caused wilfully by the organiser should be compensated. Third, an organiser,
or any other participant, should be liable only for the damage that s/he
personally and knowingly inflicted during the assembly and should not be liable
for the personal actions of individual participants. It should be kept in mind
that damages as well as violations of the established procedures of an assembly
can be breached by third parties and neither organisers nor participants of an
assembly should be held liable for their actions.
74. The Venice
Commission and the OSCE/ODIHR underline in this context that it is the
responsibility of the State, not the organiser to limit damage if an assembly
degenerates into serious public disorder. "In no circumstances should the
organiser of a lawful and peaceful assembly be held liable for disruption
caused to others."
Indeed, the responsibility of the State to maintain public order including
regulation of traffic and provision of medical assistance is specifically
provided for in Article 20(3). This reflects the primary responsibility of the
State for maintaining public order rather than delegating this to the
organisers of an assembly.
75. Furthermore,
the Draft Law does not include a defence for participants charged with taking
part in an unlawful but peaceful assembly, providing they were not aware that
the assembly was unlawful or that it pursued illegitimate. It is recommended
that the Draft Law be supplemented with a provision embedding an exemption from
liability in such cases.
76. The Draft
Law provides a list of circumstances, under which the right to hold a peaceful
assembly might be limited. Among the reasons directly connected to violence, hatred
instigation, threat to public health or life, etc, the list also includes
“violation of state sovereignty and territorial integrity”. This appears
ambiguous, unless the component of incitement to violence is added. Speeches
and demonstrations which call for territorial changes do not automatically
amount to a threat to the country’s territorial integrity and national
security. Freedom of assembly and the right to express one’s views through it
are among the paramount values of a democratic society. As the ECtHR stresses,
“[s]weeping measures of a preventive nature to suppress freedom of assembly and
expression other than in cases of incitement to violence or rejection of
democratic principles – however shocking and unacceptable certain views or
words used may appear to the authorities, and however illegitimate the demands
made may be – do a disservice to democracy and often even endanger it.” The Guidelines note
that “the making of unlawful statements by participants in an assembly (whether
verbal or written) does not of itself turn an otherwise peaceful assembly into
a non-peaceful assembly(…).”
77. The
provision of the Draft Law allowing prohibition of a peaceful assembly in case
it impedes implementation of an election right is ambiguous and needs to be
clarified. For instance, if the assembly participants advocate for not taking
part in elections or a referendum, would this suffice to prohibit a peaceful
assembly?
78. This
Article does not fit coherently with the powers given to the "authorised
representative of executive authority or local self Government body" to
stop an event temporarily or terminate it completely as provided for in Article
15. On the one hand Article 22 says that only the court can restrict an
assembly whereas Article 15, and other Articles, give powers of restriction to
other bodies. The precise parameters of the powers of the courts and authorised
representatives need to be delineated clearly.
79. It is
appreciated that the court is only allowed to impose limitations on a peaceful
event in case of several listed unlawful aims of a peaceful event. This is in
line with Article 11 of the Convention.
80. For maximum
transparency, it is recommended to add provisions that make a clear explanation
of the decision-making procedures publicly available (Guidelines, no 103). This
provision should not only apply to limitations by the court but also to
proposals of changes of date or time of a peaceful event by an executive
authority.
81. It is
necessary that there be an appeal to the courts in relation to administrative
decisions made concerning assemblies which impose restrictions upon them
including an outright prohibition. While Article 21 provides for a general
possibility of appealing in court “decisions, actions or inactivity which
violate the right to hold a peaceful event… in the order established by the
law”, the law should deal specifically with such an appeal ensuring, in so far
as possible, that court decisions are made prior to the date proposed for
holding the assembly or that the possibility is given to obtain preliminary
injunctions. Article 39 of the Constitution provides that restrictions on the
exercisable right of assembly "may be established by a court in accordance
with the law…" for reasons that reflect Article 11(2) ECHR. In order for
organisers and others to be in a position to take court proceedings it is
necessary that the administrative authorities give reasons for any restrictions
which they seek to impose. Organisers and others should be permitted to
challenge these decisions and the basis upon which they were made in the court.
82. At the same
time as having such access to the court in relation to restrictions sought to
be imposed, it is necessary that organisers and the police and the
administrative authorities cooperate in the practical management of events. The
police must be in a position to safeguard public order and security. Therefore
Article 22.1 which provides that limitations on assembly may only be determined
by the court does not fit with other provisions in the Draft Law or with the
decision making that is required from organisers, administrative authorities
and the police. This needs to be amended.
83. The Draft
Law allows the authorities to request the court to prohibit a peaceful assembly
in case it is “established that the aim of peaceful event contravenes the
Constitution”. This formulation is ambiguous as it provides room for possible
abuse or misinterpretation by the authorities. It is an essential element of
democracy that people are free to express political views that contradict those
of the authorities. A possibility should be provided for diverse political
proposals to be put forward and discussed, even the ones that call into
question the way a state is organized.
A peaceful assembly organized in support of changes to the constitution can not
be banned or terminated on the sole ground of its political demand. Political
ideas which challenge the existing order and whose realisation is advocated by
peaceful means should be afforded a proper opportunity of expression through
the right of assembly as well as through other lawful means. On the other hand,
an assembly, which incites people to use violence or instigate hatred can be
legitimately banned or terminated: though it might be peaceful by form, it can
not be considered as peaceful by substance and, consequently, falls short of
protection. Thus, the test for defining the legitimacy of an imposed
restriction must be the existence of an imminent threat of violence. It is
recommended to reflect this crucial distinction in the Draft Law.
84. The Draft
Law should also provide that the burden of proof for establishing the grounds
upon which an assembly may be banned lies with the applicant (that is, the body
which seeks for the assembly to be banned), both in the administrative
proceedings and as part of the judicial proceedings.
