Communicated on 10 July 2019

FIFTH SECTION

Application no. 57257/11 THE ORGANISATION FOR ENVIRONMENTAL PROTECTION AND SOCIAL ASSISTANCE IN ZHUCHKA DISTRICT against Ukraine lodged on 22 August 2011

STATEMENT OF FACTS

The applicant organisation, the Organisation for Environmental Protection and Social Assistance in Stara Zhuchka District, is a non ‑ governmental organisation which was registered as a legal person in 2006 in Chernivtsi. The aim of the applicant organisation is, among other things, to protect the social, economic, creative, cultural and other rights of its members, and to promote the revival of Ukrainian statehood. It is represented before the Court by Mr B.V. Fokiy , a lawyer practising in Chernivtsi.

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

On 25 September 2008 the applicant organisation submitted two written notices to the Chernivtsi City Council, informing the council of its intention to hold a demonstration in front of the Chernivtsi City and Regional Council buildings between 4 and 7 October 2008 from 10 a.m. to 6 p.m. The aim of the demonstration was to bring the international community ’ s attention to a breach of constitutional human rights and citizens ’ rights by the Chernivtsi City Council, notably by F., the mayor. It was declared that there might be up to three hundred possible participants.

On 1 October 2008 the Executive Committee of the Chernivtsi City Council initiated administrative proceedings before the Shevchenkivskyy District Court of Chernivtsi, seeking to restrict the applicant organisation ’ s right to peaceful assembly by designating a small park at 16a Nadrichna Street, which was located in a rural area of Chernivtsi, as the place for the demonstration. The Executive Committee referred to the planned 600 th anniversary celebration of Chernivtsi, and the celebratory events which were scheduled to take place in the City Council building and in the city ’ s central square, which was near the City Council building. The Executive Committee stated that the highest-ranking officials were expected to attend, and in general additional security measures would be required in order to preserve public order.

During the hearing before the Shevchenkivskyy District Court of Chernivtsi, the applicant organisation ’ s representatives requested that the single judge presiding over the case be removed, on the basis that the court had no jurisdiction to consider the case. Their application was unsuccessful.

On 3 October 2008 the Shevchenkivskyy District Court of Chernivtsi allowed the action to prohibit the demonstration at the Chernivsti City and Regional Council buildings between 4 and 7 October 2008, and designated the small park in Nadrichna Street as the place for the demonstration. The court referred to the various events scheduled to take place in the central square between 4 and 6 October 2008, which would attract a large number of people. On that basis, it found that holding a demonstration near the central square could result in conflict and tension, create a real risk of crimes and disorder, and threaten public order and the safety of citizens.

The applicant organisation appealed to the Lviv Administrative Court of Appeal, complaining that its right to freedom of peaceful assembly had been unlawfully restricted because the first-instance court had failed to consider the possibility of holding a demonstration near the Chernivtsi Regional Council building. It argued that designating a place for the demonstration on the outskirts of the city did not suit the purpose of its assembly, as the participants would not be heard or seen by the high-ranking officials. It also contested the jurisdiction of the Shevchenkivskyy District Court of Chernivtsi to consider an administrative case between two legal persons.

On 26 March 2009 the Lviv Administrative Court of Appeal upheld the decision and reasoning of the Shevchenkivskyy District Court of Chernivtsi. It did not comment on either the possibility of holding a demonstration at the Chernivtsi Regional Council building or the jurisdiction of the Shevchenkivskyy District Court of Chernivtsi.

The applicant organisation appealed on points of law, arguing that its right to freedom of peaceful assembly had been unlawfully restricted, that no celebratory events were scheduled to take place near the Chernivtsi Regional Council building, and that the appellate court had failed to respond to the arguments it had set out in the notice of appeal, including the argument that the Shevchenkivskyy District Court of Chernivtsi lacked jurisdiction to deal with the case.

On 17 February 2011 the Higher Administrative Court of Ukraine upheld the reasoning of the lower courts, agreeing that a demonstration involving a large number of participants near the central square, where celebratory events were scheduled to take place, would pose a real risk for public order and the security of citizens. The court concluded that the decision to designate an alternative place for the demonstration had been well-founded. It did not analyse whether it was possible to hold a demonstration near the Chernivtsi Regional Council building, nor did it comment on the jurisdiction of the Shevchenkivskyy District Court of Chernivtsi.

On 31 March 2011 the Chernivtsi City Council prematurely terminated F. ’ s term as mayor, on account of his breaching the Constitution and the laws of Ukraine and failing to fulfil his duties.

Article 39 of the Constitution of Ukraine reads as follows:

“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, after notifying the executive and local government bodies.

Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.”

The relevant provision of the Code of Administrative Justice of 2005 reads as follows:

Chapter VII. Final and transitional provisions

“6. Before the district administrative courts and administrative courts of appeal start to operate, cases falling within their jurisdiction shall be decided by the respective first-instance and appeal courts of commercial jurisdiction ..., pursuant to the rules of the Code of Administrative Justice of Ukraine ...”

On 25 June 2009, in case no. 22a-15442/08/9104 – The Executive Committee of Chernivtsi City Council v. Kalynka , a non-governmental organisation – the Lviv Administrative Court of Appeal, referring to section 6 of Chapter VII of the Code of Administrative Justice, quashed a decision of the Shevchenkivskyy District Court of Chernivtsi forbidding Kalynka , an NGO, from demonstrating outside the Chernivtsi City and Regional Council buildings between 4 and 8 October 2008. It quashed the decision on the basis that the lower court lacked the relevant jurisdiction. The appellate court clarified that it was for a commercial court to consider the administrative case, and that the Shevchenkivskyy District Court of Chernivtsi, as a court of general jurisdiction, lacked the authority to consider that case.

COMPLAINTS

The applicant organisation complains under Articles 10 and 11 of the Convention that the restrictions imposed by the judicial authorities as to the location of the demonstration it wanted to organise breached its right to freedom of expression and right to peaceful assembly.

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

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant organisation ’ s right to freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention?

2. Did the Shevchenkivskyy District Court of Chernivtsi and the Lviv Administrative Court of Appeal have jurisdiction to decide on the case? In other words, were they “tribunal[s] established by law”, within the meaning of Article 6 § 1 of the Convention?

3. Did the applicant organisation enjoy its right to a “fair trial” within the meaning of Article 6 § 1 of the Convention, in view of the reasoning of the domestic courts as to the arguments it raised before them?