FIFTH SECTION

DECISION

Application no. 57257/11 THE ORGANISATION FOR ENVIRONMENTAL PROTECTION AND SOCIAL ASSISTANCE IN STARA ZHUCHKA DISTRICT against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 17 March 2022 as a Committee composed of:

Stéphanie Mourou-Vikström, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 22 August 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The case mainly concerns complaints under Article 11 of the Convention concerning judicial decisions ordering the applicant organisation to change the location of pickets it had organised.

2. The applicant organisation was a Ukrainian non-governmental organisation based in Chernivtsi. After lodging the present application it changed its name to the Organisation for Environmental Protection and People’s Social Assistance. The applicant organisation was represented before the Court by Mr B.V. Fokiy, a lawyer practising in Chernivtsi.

3 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lischyna, of the Ministry of Justice.

The circumstances of the case

4 . On 25 September 2008 the applicant organisation submitted two written notices to the Chernivtsi City Council (hereinafter “the City Council”), informing it of its intention to hold two separate “pickets” (stationary demonstrations) in front of the Chernivtsi Regional Council (located at 1 Grushevskogo Street in Chernivtsi) and the City Council (located at 1 Central Square in Chernivtsi) from 4 to 7 October 2008 from 10 a.m. to 6 p.m. The aim of the pickets was “to bring breaches of constitutional human rights and citizens’ rights [committed] by the Chernivtsi City Council to the attention of the international community”. In the notices, the applicant organisation stated that it assumed that up to 300 persons would attend each of the pickets. The City Council and the Chernivtsi Regional Council are located in the centre of Chernivtsi, about 350 metres away from each other.

5. On 1 October 2008 the Executive Committee of the City Council (hereinafter “the Executive Committee”) initiated administrative proceedings under Article 182 of the Code of Administrative Justice before the Shevchenkivskyy District Court of Chernivtsi (hereinafter “the Shevchenkivskyy Court”), asking it to order the applicant organisation to change the location of the pickets and hold them in a small park at 16-A Nadrichna Street, located some 6 kilometres away from the city centre. Referring to Decree no. 9306-Xi of 28 July 1988 of the Presidium of the Verkhovna Rada (Parliament) of the Ukrainian Socialist Republic, the Executive Committee stated that the applicant organisation had been obliged to inform it about the pickets no later than ten days before their planned date. As the applicant organisation had not done so, the Executive Committee did not have enough time to take the measures necessary to ensure the protection of public order and citizens’ rights during the pickets. The Executive Committee also stated that from 4 to 8 October 2008 a celebration of the 600 th anniversary of Chernivtsi (hereinafter “the celebration”) was due to take place at Central Square. The celebration was likely to attract a lot of people, and high-ranking officials were expected to attend it, which required the Executive Committee to take additional measures to ensure safety and public order at Central Square during this period. If the applicant organisation’s events were to lead to conflict and tensions, the City Council would not be able to ensure the safety of the high-ranking officials, owing to a lack of resources. In view of these circumstances, according to the Executive Committee, the events planned by the applicant organisation could “provoke tensions and conflict and create a real threat of crimes and disorder, [and] a threat to public health and the rights and freedoms of third parties”. The Executive Committee also noted that by decision no. 265/10 of 17 April 1996 the City Council had approved a list of areas where non-governmental public events could be held, and Central Square was not included on the list.

6. On 3 October 2008 the Shevchenkivskyy Court ordered the applicant organisation to change the location of its events and hold them in the small park at 16-A Nadrichna Street. The court rejected the Executive Committee’s argument that the applicant organisation had had to send the notices concerning the pickets ten days before their planned date, on the grounds that it was not based on law. However, the court found that, given that the celebration on Central Square would indeed attract a lot of people, holding the applicant organisation’s pickets in the same place and at the same time might lead to “tensions and conflict and create a real threat of disorder and crimes, [and] a threat to public order and the safety of citizens”. The court also noted that Central Square was not included on the list approved by decree no. 265/10.

7. The applicant organisation cancelled the events it planned to carry out and unsuccessfully sought to institute criminal proceedings against the judge who issued the decision of 3 October 2008, alleging that he had committed a crime by examining the case over which the Shevchenkivskyy Court had no jurisdiction.

8. The applicant organisation appealed to the Lviv Administrative Court of Appeal, stating that there was no evidence that its events could give rise to any of the risks mentioned in the judgment of 3 October 2008. Relying on Articles 1, 2 and 12 of the Code of Commercial Procedure, the applicant organisation also stated that the Shevchenkivskyy Court had no jurisdiction over the case, which had to be examined by a commercial court because it stemmed from public-law relations and concerned two legal persons.

9. On 26 March 2009 the Lviv Administrative Court of Appeal rejected the appeal. It did not specifically address the point concerning the lack of jurisdiction but noted that the judgment of 3 October 2008 had been adopted in accordance with the requirements of material and procedural law. The court of appeal also noted that the notices concerning the pickets had been sent to the Executive Committee too late, and as a result that body had not had sufficient time to prepare the measures necessary to ensure the smooth conduct of the applicant organisation’s pickets.

10. The applicant organisation appealed to the Higher Administrative Court which upheld the lower courts’ judgments on 17 February 2011, noting that holding several crowded events with different purposes at the same time at Central Square might have resulted in a real threat to public order and the safety of citizens. It also noted that the applicant organisation had sent its notices concerning the pickets “near to the City and Regional Councils” to the authorities “on time” and in accordance with the legislation. The Higher Administrative Court also briefly referred to decree no. 265/10.

11. None of the decisions delivered by the courts explicitly mentions that the applicant organisation was planning to hold a picket at 1 Grushevskogo Street.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12 . Articles 1 and 2 of the Code of Commercial Procedure, as in force at the material time, envisaged that legal entities had a right to apply to commercial courts to protect their rights. Individuals and other bodies could apply to these courts if this was provided for by the legislation.

13 . According to Article 12 of the Code of Commercial Procedure, as in force at the material time, commercial courts had jurisdiction over cases concerning disputes which stemmed from the conclusion, termination and enforcement of commercial contracts, except disputes which stem from public-law relations and fall under the jurisdiction of the Constitutional Court and administrative courts.

14 . The relevant provisions of the Code of Administrative Procedure, as in force at the material time, read as follows:

Article 182. Special features of the adjudication of cases stemming from proceedings instituted by State authorities [and] concerning restrictions on the right to freedom of peaceful assembly

“1. Immediately after receiving a notice concerning the holding of gathering[s], rallies, marches, and so on, organs of the executive [and] organs of local self-government have a right to institute proceedings before a district administrative court located in their area, asking the court to prohibit such an event or otherwise restrict the right to peaceful assembly (as regards the time and place of the [event]).

...

5. The court [may] allow the claimant’s application in the interests of national security and public order, in the event that it finds that the organisation of gatherings, rallies, marches, demonstrations or other meetings could create a real threat of disorder or crimes, [or] a threat to public health or the rights and freedoms of other people. In its decision ( postanova ), the court will indicate the way in which the right to freedom of peaceful assembly will be restricted.”

Final and transitional provisions

“5. Before district and appellate administrative courts start operating, the cases which fall under their jurisdiction [shall be] examined by local and appellate courts of general jurisdiction, in accordance with the provisions of the Code of Administrative Justice of Ukraine.

...After district and appellate administrative courts have started operating, applications lodged with the relevant local and appellate courts of general jurisdiction, [and] proceedings which have not yet been opened, [shall be] transferred to the [relevant] district administrative court.

After appellate administrative courts have started operating, applications lodged with the relevant appellate courts of general jurisdiction, [and] proceedings which have not yet been opened, [shall be] transferred to the [relevant] appellate administrative court.

Proceedings concerning administrative disputes which have been opened before local and appellate courts of general jurisdiction before the relevant administrative court has started operating should be considered by the respective local and appellate courts of general jurisdiction.

6. Before local and appellate administrative courts start operating, cases which fall under the jurisdiction of commercial courts in accordance with the Commercial Procedural Code of Ukraine of 1991 [shall be] examined by the relevant local and appellate commercial courts at first instance and on appeal, in accordance with the provisions of the Code of Administrative Justice.”

15 . The applicant organisation submitted information about a case concerning the same town and courts in which the issue of jurisdiction of the commercial or administrative courts was decided differently. In that case, in which the same Executive Committee sought to move a rally to be organised by another non-governmental organisation on the same dates (4 ‑ 8 October 2008) to the same park at 16-A Nadrichna Street in Chernivtsi, the Shevchenkivskyy Court decided on the same date as in the applicant organisation case, on 3 October 2008, to order the requested change of location. However, on 25 June 2009 the Lviv Administrative Court of Appeal allowed the appeal, quashed the first-instance decision and remitted the case to the first-instance court, ordering it to transfer the case to the relevant court.

16. On 1 September 2009 the Shevchenkivskyy Court delivered a decision in the case. In the obiter dicta of the decision it stated that in accordance with point 6 of the Final and Transitional Provisions of the Code of Administrative Justice, and because the parties to the case were both legal persons, the Executive Committee had to institute proceedings before a commercial court. In the operative part of the decision, the Shevchenkivskyy Court found that the case had to be transferred to the Chernivtsi District Administrative Court for examination, a court which had started operating on 2 March 2009.

COMPLAINTS

17. The applicant organisation complained that the courts’ decisions ordering it to change the location of its pickets had constituted an unjustified interference with its rights under Articles 10 and 11 of the Convention and Articles 1 and 3 of Protocol No. 1. In particular, there was no evidence that the pickets, if they had been held at the same time and place as the celebration, could have led to conflict, tensions, crime or violations of the rights and freedoms of other citizens. The applicant organisation submitted that it had been important to hold its pickets from 4 to 8 October 2008 in the city centre, where they could be seen by a large number of people, including the high ‑ ranking officials who had been expected to attend the celebration. The applicant organisation also complained that the courts referred only to the celebration taking place at the Central Square, but did not take into consideration that no celebration was planned on Grushevskogo Street.

18. The applicant organisation complained under Article 6 § 1 and Article 13 of the Convention that its right to have its case considered by a tribunal established by law had been violated, and that the decisions of the national courts had lacked reasoning.

THE LAW

19. The Court, which is the master of characterisation to be given in law to the facts of the case, considers that the complaint in respect of which the applicant organisation invokes Articles 10 and 11 falls to be examined solely under Article 11 of the Convention. In particular, in the Court’s opinion, in the circumstances of the present case, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis (see Ezelin v. France , 26 April 1991, § 35, Series A no. 202, and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015). The Court will thus examine this complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, §§ 363-65, 7 February 2017). Article 11 reads as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

20. The Government considered that the interference with the applicant organisation’s freedom of assembly had been prescribed by law, insignificant and duly justified. The celebration had been attended by high-ranking officials, including the President, the Prime Minister and about fifty foreign delegations, and it had been very difficult for the authorities to ensure the organisation of the applicant organisation’s events at the same time as the celebration. As regards the applicant organisation’s intention to hold a picket not only on Central Square (in front of the City Council), but also on Grushevskogo Street (in front of the Chernivtsi Regional Council), the Government noted that the two locations were only 350 metres from one another, which meant that the celebration on Central Square would certainly have resulted in the presence of crowds on Grushevskogo Street as well, and the courts’ reasoning as regards the picket planned for Central Square had also been valid for the picket on Grushevskogo Street. The Government noted that the parties to the proceedings had known that the locations were very close to each other, and for this reason there had been no need to explicitly mention both in the court decisions. The Government also noted that the applicant organisation had been able to exercise its freedom of assembly, because it could have held the pickets at 16-A Nadrichna Street. The applicant organisation could also have rescheduled the pickets in the city centre and carried them out when no other mass events had been planned there. However, it had failed to do so.

21. The applicant organisation maintained its complaint. It added that the interference had not been “prescribed by law” because the Court had previously established that the Parliament of Ukraine had failed to introduce any Act to regulate the procedure for holding peaceful demonstrations, although Article 39 of the Constitution clearly demanded that such a procedure be established by law (see Vyerentsov v. Ukraine , no. 20372/11, § 55, 11 April 2013).

22. The general principles relating to Article 11 of the Convention (freedom of assembly) are summarized in Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015, Taranenko v. Russia , no. 19554/05, § 65, 15 May 2014, Sáska v. Hungary , no. 58050/08, §§ 21-23, 27 November 2012 and Lashmankin and Others , cited above, § 405.

23. It was not in dispute between the parties that in the present case the courts’ decisions ordering the applicant organisation to change the location of its events had constituted an interference with its right to freedom of assembly.

Justification of the interference

(i) Whether the interference was prescribed by law and pursued a legitimate aim

24. As regards the “prescribed by law” requirement, the Court considers that the present case should be distinguished from Vyerentsov v. Ukraine , referred to by the applicant, because in the latter case the complaints related to the lack of a procedure to organise and hold a demonstration, while in the present case the applicant organisation’s complaints were focused on the procedure which had been established by Article 182 of the Code of Administrative Justice which provided for possible restrictions on the right to hold an assembly (see paragraph 13 above). In the framework of the examination of Vyerentsov v. Ukraine , the Court did not examine the procedure prescribed by Article 182 and made no conclusions as to its compliance with the requirements of Article 11 of the Convention.

25. The Court accepts that the interference had a legal basis in the domestic law. The Court also accepts that the interference at issue pursued several aims listed in the second paragraph of Article 11 of the Convention, notably protection of public safety, prevention of disorder or crime, and protection of the rights and freedoms of others.

(ii) Whether the interference was necessary in a democratic society

26. The Court points out that originally the applicant organisation planned to hold one of its events on Central Square and its second event 350 metres from it, on 1 Grushevskogo Street. The Court accepts that the two pickets would have been held in virtually the same location where a celebration was planned to take place, and that, as pointed out by the Government, all the reasons relied on by the courts applied to both pickets, even though the address “1 Grushevskogo Street” was never mentioned in the court decisions.

27 . The Court further notes that in the present case the decisions of the national courts ordering the applicant organisation to change the location of the events were based on two arguments: the places where the applicant organisation initially planned to hold the events were not on the list included in decree no. 265/10, and holding the applicant organisation’s events at the same time and place as the celebration would create a threat to public order and the safety of citizens.

28. In so far as the second argument is concerned, the Court finds no reason to doubt the submissions of the domestic authorities before the national courts that they lacked resources to ensure smooth conduct of the applicant organisation’s events simultaneously with another large-scale public event held at the same place. The Court also notes that the exact message which the applicant organisation intended to transmit during the pickets has not been substantiated beyond some very general references to human rights and remains unclear (see paragraph 4 above). The Court is thus not convinced that this message could not be transmitted on a date different from that when the celebration was held in the city centre or by other means, not involving the gathering of several hundred persons there (compare and contrast with, for example, Öllinger v. Austria , no. 76900/01, § 43, ECHR 2006 ‑ IX, where the Court found that the time and venue of the event planned by the applicant was an essential part of the message he wanted to convey).

29. While it is understandable that the applicant organisation preferred to use the occasion of the celebration and the presence of high-ranking officials for imparting their views, it was for it to substantiated in more detail, before the domestic courts and in these proceedings, the link between those views and the chosen venue. The applicant organisation did not do so.

30. The Court thus concludes that the reasons adduced by the domestic courts were both relevant and sufficient. The Court thus considers that the present part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 of the Convention.

31. In these circumstances the Court does not consider it necessary to examine the second argument relied on by the courts (see paragraph 27 above).

32. The Court considers that this complaint falls to be examined solely under Article 6 § 1, which reads as follows, in so far as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by [a] ... tribunal ...”

33. The Government submitted that the Shevchenkivskyy District Court was a tribunal established by law, and the applicant organisation’s allegations to the contrary stemmed from its erroneous understanding of Article 12 of the Code of Administrative Justice.

34. The applicant organisation maintained its complaint. It argued that in another case (see paragraphs 14-15 above) the courts had found that the commercial courts had jurisdiction. The applicant organisation also noted that Article 12 of the Code of Commercial Procedure, if read in conjunction with Articles 1 and 2 of the same Code and paragraph 6 of the Final and Transitional Provisions of the Code of Administrative Justice, clearly established that the case had fallen under the jurisdiction of the commercial courts, because it had concerned public-law relations between two legal persons.

35. The Court has already examined the complaint under Article 11 on account of the reasoning in the domestic court decisions and does not find it necessary to examine the same issue from the standpoint of Article 6 § 1 of the Convention.

36. The Court observes that the applicant organisation relied on an isolated judicial decision suggesting competence of the commercial courts. It has not been shown that this was the established interpretation of domestic law at the relevant time and that therefore the courts which dealt with the case of the applicant organisation clearly lacked jurisdiction. Also, while it is not for the Court to decide on the correct interpretation of domestic law, it observes that from the wording of Articles 1 and 2 of the Code of Commercial Procedure (see paragraph 12 above) it does not follow that disputes between two legal persons should be examined exclusively by commercial courts. The Court also observes that, contrary to the applicant organisation’s assertions, Article 12 of the Code of Commercial Procedure clearly states that disputes stemming from public-law relations do not fall under the jurisdiction of commercial courts (see paragraph 13 above). Finally, the applicant organisation did not provide evidence that disputes concerning restrictions on freedom of assembly were, as a general rule, examined by commercial courts.

37. In view of the above, the court considers that the present complaint is manifestly ill-founded and must be declared inadmissible under Article 35 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2022.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President