Communicated on 29 October 2015

FIFTH SECTION

Application no. 44529/09 Sergiy Viktorovych CHUMAK against Ukraine lodged on 30 July 2009

STATEMENT OF FACTS

The applicant, Mr Sergiy Viktorovych Chumak , is a Ukrainian national, who was born in 1968 and lives in Vinnytsia . He is represented before the Court by Mr V. M. Ivashchenko , a lawyer practising in Vinnytsya .

A. The circumstances of the case

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

On 12 September 2006 the applicant, being the Chairman of the Chumatskyy Shlyakh Vinnytsia youth civic association (“the Association”), informed the Vinnytsia mayor that the Association intended to picket the Vinnytsia Regional State Administration (“the Administration”) building for an indefinite period of time starting from 2 p.m. on 14 September 2006 with a view to expressing its dissatisfaction with the Administration ’ s social and economic policies.

Having received no objections, the Association started the picketing as intended. According to the applicant, several other local groups joined the picketing and two small (2x2 meters) tourist tents were mounted on a fifteen-meter wide street for storing handout materials and displaying the picketers ’ opinions.

On 15 September 2006 the executive committee of the Vinnytsia City Council instituted administrative proceedings seeking “to prohibit the [Association] from organising and carrying out the picketing of the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully mounted small architectural edifices ( малі архітектурні форми ). ” The plaintiff alleged that the picketers had been breaching public peace and order by offending the passers-by, acting arrogantly towards them, obstructing road traffic and pedestrian passage and endangering life and health of the city inhabitants. The statement of claim was supplemented with applications by Messrs Ch. and S., two passers-by, addressed to the police, in which they complained that the picketers had “acted arrogantly”, had offended their feelings and had mounted tents, which obstructed pedestrian passage and spoiled the street aesthetics.

On the same date the Leninskiy District Court in Vinnytsia (“the District Court”) examined this claim and decided that the case-file contained sufficient evidence that the picketers had breached public peace. Referring to the defendant ’ s intention to hold the picketing for an indefinite period of time and absence of any indication concerning the expected number of the picketers, the court further observed that it was “not possible to exclude that the persons, who would take part in the action, may repeatedly breach public order” and “potentially encroach upon the rights and freedoms of other town inhabitants”. The court, accordingly, ruled as follows:

“to prohibit [the Association] and other persons, who take part in the action, from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia , to mount small architectural edifices in Vinnytsia ; to oblige them to dismount the small architectural edifices installed in the square in front of the [Administration] building .... To allow immediate enforcement of the court ruling . ..”

At 9 p.m. on 15 September 2006 the picketers were dispersed by the police.

On 29 September 2006 the local address bureau informed the applicant that Messrs Ch. and S. were not registered at the addresses indicated by them as their home addresses in their complaints lodged with the police.

On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006. He submitted that according to Article 182 of the Code of Administrative Justice, the plaintiff ’ s action had not been lodged in good time (before the beginning of the picket) and could therefore not be examined. He further submitted that the court ’ s factual conclusions had been devoid of evidentiary basis. In particular, there was no evidence whatsoever that the picketers had breached the law, apart from the complaints by unidentified Messrs Ch. and S., who had indicated false home addresses in their complaints. Insofar as the applicant had requested to locate and summon these individuals, as well as the police officers present on the site of the picket for questioning concerning the alleged breaches of the law, this request had been denied. His requests to order production of the relevant police reports documenting the purported breaches of the law (if any) and to carry out an inspection of the picketing site with a view to determining whether the tents mounted by the activists could count as the “architectural edifices” and whether there had been any obstruction of road traffic or pedestrian passage, his requests had also been denied. The applicant also complained that the sanction imposed by the District Court (a total and permanent ban for the Association to carry out peaceful assemblies in Vinnytsia ) had been unjustified and disproportionate.

On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant ’ s appeal and decided that, regard being had to the circumstances of the case (i.e., short notice of the intention to hold a picket and an indefinite period, during which the picketers intended to carry out their action) the administrative action lodged by the executive committee could be accepted for examination. It further agreed with the District Court ’ s findings of fact and noted, in particular, that by installing the tents, the picketers had breached Section 16 of the Populated Localities Development Act and Section 18 of the Automobile Roads Act . However, it found that the sanction imposed on the picketers had been disproportionate. In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage such form of assemblies as “picketing of administrative buildings with installation on the streets of small architectural edifices . ” Accordingly, the court found that the term “peaceful assemblies” in the operative part of the District Court ’ s judgment had to be substituted with the term “picketing”. The court then rejected the applicant ’ s remaining arguments as unsubstantiated.

On 1 April 2009 the Higher Administrative Court of Ukraine rejected the applicant ’ s cassation appeal.

B. Relevant domestic law

1. Constitution of Ukraine of 1996

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, upon notifying in advance the bodies of executive power or bodies of local self-government.

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.”

2. Code of Administrative Justice of 6 July 2005

Relevant provisions of the Code, as formulated at the material time, read as follows:

Article 8. Rule of Law

“1. The court, in examining the case, shall be guided by the rule of law principle, according to which, in particular, the human being, his or her rights and freedoms are recognised as the highest value and determine the essence and orientation of the activity of the State .

2. The court shall apply the rule of law principle taking into account the jurisprudence of the European Court of Human Rights.

3. Appeal to the administrative court for the protection of the rights and freedoms of a human being and a citizen directly on the basis of the Constitution of Ukraine shall be guaranteed.

4. It shall be prohibited to refuse examining and resolving an administrative case on the grounds that the legislation applicable to the disputed relations is incomplete, unclear, incoherent or has not been enacted.”

Article 11. Adversarial nature of the proceedings, discretionary powers of the parties and official establishment of all circumstances of the case

“1. Examination and resolution of the cases in the administrative courts shall take place on the basis of adversarial proceedings and parties ’ discretion in submitting evidence and proving its cogency to the court.

2. T he court shall examine administrative cases exclusively upon submission of an action in accordance with the present Code and may not exceed the scope of the complaints. The court may exceed the scope of the complaints only in the event that this is necessary for the comprehensive protection of the rights, freedoms and interests of the parties or third persons, whose protection is sought by them.

3. Each person, who seeks judicial protection, shall dispose of his/her claims at his/her discretion, except in the circumstances determined in this Code...

4. The court shall use the measures envisaged in law, which are needful for the establishment of all the circumstances of the case, including by identifying and ordering production of evidence upon its own initiative.

5. The court should invite the persons, who take part in the proceedings, to submit evidence or order production of evidence which, in its view, is lacking, of its own instigation.”

Article 182. Special features of the proceedings relating to the administrative claims lodged by the authorities with a view to restricting the exercise of the right to peaceful assemblies

“1. Immediately upon receipt of a notification concerning organisation of meetings, rallies, processions, demonstrations, etc., the executive authorities [and] bodies of local self-government shall have the right to apply to the district administrative court of the respective locality with an action seeking to prohibit these events or otherwise restrict the right to peaceful assembly (concerning the place or time of their organisation, etc.).

2. An action, received on the date when the aforementioned ... events take place or afterwards shall be left without examination.

...

5. The court shall allow the plaintiff ’ s claims in the interests of national security and public order, where it establishes that carrying out the meetings, rallies, processions, demonstrations or other assemblies may create an imminent risk of disturbances or crimes, endanger health of the population or rights and freedoms of other people. In its ruling, the court shall indicate the manner of restriction of the exercise of the right to peaceful assembly.

6. Ruling of the court in respect of cases concerning restriction of the exercise of the right to peaceful assembly shall be enforced immediately. ...”

3. Other relevant provisions of the domestic law and jurisprudence

The Populated Localities Development Act of Ukraine ( Закон України “ Про благоустрій населених пунктів ” ) no. 2807-IV of 6 September 2005, Section 16 paragraph 5 prohibited installation on the public amenities of “objects of the external advertisement, commercial stalls, pavilions, kiosks, and etc. without authorisation . ”

The Automobile Roads Act of Ukraine ( Закон України « Про автомобільні дороги » ) no. 2862-IV of 8 September 2005, Section 18, prohibited “placement of any objects, constructions, erections or their parts ” within the boundaries of the so-called “ red lines of the street”, delimiting the width of the street.

COMPLAINTS

The applicant complains under Article 11 of the Convention that the judicial authorities imposed an arbitrary and disproportionate restriction on his right to picket the Regional Administration.

He also complains under Articles 6 and 13 of the Convention that the higher judicial authorities failed to consider properly the appeals lodged by the Association and to redress the arbitrariness of the first-instance court ’ s judgment.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of peaceful assembly, contrary to Article 11 of the Convention? In particular, was the prohibition on picketing in the present case in conformity with applicable law? If so, did it correspond to a pressing social need and was it proportionate?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 11 concerning prohibition of picketing as required by Article 13 of the Convention?