FIFTH SECTION

DECISION

Application no . 5684/04 KYIVSKA MISKA ORGANIZATSIYA VSEUKRAYINSKOGO OBYEDNANNYA BATKIVSHCHYNA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 September 2015 as a Committee composed of:

André Potocki, President, Ganna Yudkivska , Síofra O ’ Leary, judges,

and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 13 December 2003,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant is the Kyiv city branch of the all-Ukrainian political party Batkivshchyna ( Київська міська партійна організація всеукраїнського об ’ єднання « Батьківщина » ). In accordance with the Statute of the party the applicant is a separate legal person. The application on its behalf was lodged by Mr Mykhaylo Pavlovskyy , the Head of the Kyiv city branch of the party at the material time.

The applicant was represented, most recently, by Mr Dmytro Ilchenko , a lawyer practicing in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 September 2002 the Kyiv city branch of the Batkivshchyna Party (“the Kyiv Branch”) informed the mayor of Kyiv of its intention to organise a demonstration under the banner of the pan-Ukrainian protest movement “Arise, Ukraine!” (“ Повстань , Україно ! ”) on 16 September 2002. The demonstrators planned to walk down the central streets of Kyiv and also to picket the buildings of the Cabinet of Ministers, Parliament, the Security Service, the Ministry of the Interior, and the General Prosecutor ’ s Office.

On 10 September 2002 the Kyiv Branch informed the mayor of Kyiv of its further intention to picket, on 17 September 2002 (the day after the first demonstration), the buildings of the Kyiv railway stations, the city hall, the Central Electoral Committee, the regional Administration and military divisions, and three bridges that connect both parts of the city and are important municipal traffic intersections.

On 10 September 2002 the Kyiv City State Administration (“the Kyiv Administration”) lodged an application with the Kyiv District Court seeking the prohibition of the demonstrations planned for 16 September 2002.

On 11 September 2002 the Kyiv Administration amended its original application of 10 September 2002, seeking to prohibit assemblies in Kyiv for an undefined period beginning on 16 September 2002. It referred, inter alia , to the official Rules of Procedure with regard to Public Events adopted by the Kyiv City Council in 1999.

On 12 September 2002 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) declared a prohibition on the holding of demonstrations in Kyiv city centre, on the basis of the arguments put forward by the Kyiv Administration. The court established that the demonstrations could pose a danger to public order and the life and health of others, and could create conditions for committing offences.

On 13 September 2002 the Kyiv branch lodged an appeal with the Kyiv City Court of Appeal against the prohibition on demonstrations.

On 16 September 2002 participants in the protest movement (in spite of the prohibition) walked down the central streets of Kyiv and pitched some tents near the Presidential Administration building.

On 17 September 2002 the tents were dismantled by police, and several demonstrators were taken into detention.

On 30 January 2003 the Kyiv City Court of Appeal set aside the judgment of the Shevchenkivskyy Court and remitted the case to the first ‑ instance court for a rehearing. The appellate court held that the Shevchenkivskyy Court had unlawfully prohibited the demonstration as it had decided about rights and duties of those who were not present at the court hearing and also had violated the Constitution by prohibiting the rally for an indefinite period of time.

On 28 May 2003 the Shevchenkivskyy Court ruled again in favour of the prohibition of demonstrations in Kyiv City centre on 16 and 17 September 2002.

On 5 September 2003 the Court of Appeal upheld the decision of the Shevchenkivskyy Court.

On 2 June 2004 the Supreme Court set aside the judgment of the Shevchenkivskyy Court and remitted the case to the same court for fresh examination .

On 27 July 2004 the Shevchenkivskyy Court terminated the proceedings in the case as the Kyiv Administration had failed to appear before the court three times. This ruling became final as it was not challenged by the parties.

B. Proceedings before the Court

On 12 August 2013 the Court gave notice of the application to the Government of Ukraine and invited the Government to submit written observations on the admissibility and merits of the case.

On 6 December 2013 the Government submitted their written observations.

On 8 August 2014 the Court forwarded the observations of the Government to the applicant. The deadline for reply was set to 19 September 2014, however no reply followed.

On 22 October 2014 the Court re sent the Government ’ s observations to the applicant ’ s representative. The applicant ’ s attention was drawn to the fact that the period allowed for submission of the applicant ’ s observations in reply to the Government ’ s observations on the admissibility and merits of the application and of the applicant ’ s claims for just satisfaction had expired on 19 September 2014 and that no extension of time had been requested. The letter was sent by registered post warning the applicant that the failure to reply might lead the Court to strike the case out of its list.

On 14 November 2014 the letter returned to the Court undelivered with remark of the post office “ non réclamé ” .

On 20 November 2014 the Court again attempted to contact the applicant via regular post. The letter was sent by registered post. On 2 December 2014 the letter returned to the Court undelivered with remark of the post office “ non réclamé ” .

In addition, on 20 November 2014 the Court contacted the applicant ’ s representative per e-mail. The Government ’ s observations together with copies of the Court ’ s letters dated 8 August 2014 and 22 October 2014 were attached to the e-mail. No reply followed.

COMPLAINTS

The applicant complained under Article 11 of the Convention of a breach of its right to freedom of assembly. In particular, it claimed that the domestic courts had upheld the request of the Kyiv City Administration and prohibited a demonstration organised by the applicant in Kyiv.

It further referred to Article 14 of the Convention, in conjunction with Article 11 and alleged that the Ukrainian authorities discriminated against the applicant.

THE LAW

The Court notes that it attempted repeatedly to contact the applicant ’ s representatives at the address indicated by them, however to no avail.

In view of the above the Court concludes that the applicant no longer wishes to pursue its application, within the meaning of Article 37 § 1 (a) of the Convention.

Furthermore, in accordance with Article 37 § 1 in fine , there are no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 1 October 2015 .

Milan Blaško André Potocki Deputy Registrar President