FIFTH SECTION

Application no . 5684/04 KYIVSKA MISKA ORGANIZATSIYA VSEUKRAYINSKOGO OBYEDNANNYA BATKIVSHCHYNA against Ukraine lodged on 13 December 2003

STATEMENT OF FACTS

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 entity (see the Statute of the party Batkivshchyna , § 4.3.1).

It is represented by Ms Yulia Shvets , a lawyer practicing in Kyiv.

A. The circumstances of the case

The facts of the case , as submitted by the applicant, 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 or g anise 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 buildin g s 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 buildin g s of the Kyiv railway stations , the city hall , the Central Electoral Committee , the re g ional Administration and military divisions , and three brid g es 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 th e demonstrations planned for 16 September 2002.

On 11 September 2002 the Kyiv Administration amended its ori g inal application of 10 September 2002 , seekin g to prohibit assemblies in Kyiv for an undefined period be g innin g on 16 September 2002. It referred , inter alia , to the official Rules of Procedure with re g ard to Public Events adopted by the Kyiv City Council in 1999.

The Kyiv Administration g ave the followin g reasons for seeking a prohibition of the assembly:

- the expected number of participants (150 , 000 people) exceeded the number of people that the city centre could safely accommodate;

- as the assembly was to be held on a workin g day in the centre of the city , the city authorities feared that the event mi g ht ne g atively affect the operation of public transport and also obstruct the movement of special rescue vehicles (such as fire service vehicles , ambulances , and the vehicles of other emer g ency services);

- another location for the meetin g had been proposed , that is , alternative venues for the demonstrations (such as the local airport “ Chayka ” , situated outside the city , and the Exhibition Centre Area in one of the suburbs);

- the event was not of national importance and thus was not required to be held in a city centre ;

- it had received information that the participants in the protest were plannin g to pitch tents next to the buildin g s of the Cabinet of Ministers , the President ’ s Administration , Parliament , and the Kyiv Administration , which was ille g al as it could pose a threat to public order and safety.

On 12 September 2002 the Shevchenkivskyy District Court of Kyiv (“the Shevchenkivskyy Court”) declared a prohibition on the holdin g of demonstrations in Kyiv city centre , on the basis of the ar g uments put forward by the Kyiv Administration. The court established that the demonstrations could pose a dan g er to public order and the life and health of others , and could create conditions for committin g offences. It held in particular that:

- the defendants should be prohibited from demonstratin g in Kyiv city centre from 16 September 2002 onwards;

- the participants of the movement “Arise , Ukraine!” could hold a protest at the “ Chayka ” re g ional airport , out of town.

On 13 September 2002 the Kyiv branch lod g ed an appeal with the Kyiv City Court of Appeal a g ainst 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 buildin g .

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 jud g ment 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 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 i n 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 jud g ment of the Shevchenkivskyy Court and remitted the case to the same court for fresh examination. The Supreme Court noted that the decisions of the lower courts were based on bare presumptions that the rally might interfere with the normal work of municipal services; the lower courts should have examined the relevant evidence and assessed if it was possible to hold the rally without interference with public transportation etc.

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

B. Relevant domestic law

1. Decision No. 317/418 of the Kyiv City Council of 24 June 1999 “on the Or g anisation and Conduct of Public Political , Cultural , Sports and Entertainment Events”

The relevant extracts from decision no. 317/418 read as follows:

“...

5) an event can be banned:

5.2. if the event creates obstacles for the normal functionin g of companies ... , poses a dan g er to the life , health or security of others , disturbs public order or violates sanitary norms.

5.3. if the expected number of participants exceeds the capacity of the venue;

...

9) to protect public order , prevent riots , guarantee the security and proper functionin g of the State authorities , areas adjacent to the Parliament buildin g s , the Administration of the President , and the Cabinet of Ministers ...”

2. Decision of the Kyiv City Council No. 225/946 of 29 June 2000 “on the Particularities of the Or g anisation and Conduct of Public Events and National Holidays in the Central Part of Kyiv”

The relevant extracts from decision no. 228/946 read as follows:

“...

1) Only cultural and public events of “national importance” (“ загальнодержавного значення ”) are permitted in the central part of Kyiv (European Square and Independence Square). Such events are only allowed on National Holidays: New Year , Christmas , Easter , the First of May , Victory Day , Kyiv Day , Constitution Day , and Independence Day. The celebration of these events shall end by 10.30 p.m.

...

6) As an exception , in order to comply with the decrees of the President and of the Cabinet of Ministers , the mayor of Kyiv is allowed to g ive special permission for the holding of public events in the central part of Kyiv. ...”

C. Relevant Council of Europe documents

Venice Commission Guidelines on Freedom of Peaceful Assembly adopted on 4 June 2010 (second edition)

The relevant extracts from the Guidelines read as follows:

“...

2. Guiding Principles

Presumption in favour of holding assemblies

As a fundamental right, freedom of peaceful assembly should, insofar as possible, be enjoyed without regulation. Anything not expressly forbidden in law should be presumed to be permissible and those wishing to assemble should not be required to obtain permission to do so. A presumption in favour of the freedom should be clearly and explicitly established in law.

2.2 The State ’ s positive obligation to facilitate and protect peaceful assembly

It is the primary responsibility of the State to put in place adequate mechanisms and procedures to ensure that the freedom is practically enjoyed and not subject to undue bureaucratic regulation. In particular, the State should always seek to facilitate and protect public assemblies at the organiser ’ s preferred location, and should also ensure that efforts to disseminate information to publicize forthcoming assemblies are not impeded.

2.3 Legality

Any restrictions imposed must have a formal basis in law and be in conformity with the European Convention on Human Rights and other international instruments on human rights. To this end, well-drafted legislation is vital in framing the discretion afforded to the authorities. The law itself must be compatible with international human rights standards, and be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and the likely consequences of any such breaches.

2.4 Proportionality

Any restrictions imposed on freedom of assembly must be proportional. The least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference. The principle of proportionality requires that authorities do not routinely impose restrictions which would fundamentally alter the character of an event, such as relocating assemblies to less central areas of a city. A blanket application of legal restrictions tends to be over-inclusive and will thus fail the proportionality test because no consideration has been given to the specific circumstances of the case.

...

3. Restrictions on Freedom of Assembly

Legitimate grounds for restriction

The legitimate grounds for restriction are prescribed in international and regional human rights instruments. These should not be supplemented by additional grounds in domestic legislation.

3.2 Public space

Assemblies are as much a legitimate use of public space as commercial activity and the movement of vehicular and pedestrian traffic. This must be acknowledged when considering the necessity of any restrictions.

3.3 Content -based restrictions

Assemblies are held for a common expressive purpose and thus aim to convey a message. Restrictions on the visual or audible content of any message should face a high threshold and should only be imposed if there is an imminent threat of violence.

3.4 “ Time, Place and Manner ” restrictions

A wide spectrum of possible restrictions, which do not interfere with the message communicated, is available to the regulatory authority. Reasonable alternatives should be offered if any restrictions are imposed on the time, place or manner of an assembly.

3.5 “ Sight and Sound ”

Public assemblies are held to convey a message to a particular target person, group or organisation . Therefore, as a general rule, assemblies should be facilitated within ‘ sight and sound ’ of their target audience.

4. Procedural Issues

4.1 Notification

It is not necessary under international human rights law for domestic legislation to require advance notification of an assembly. Indeed, in an open society, many types of assembly do not warrant any form of official regulation. Prior notification should only therefore be required where its purpose is to enable the State to put in place necessary arrangements to facilitate freedom of assembly and to protect public order, public safety and the rights and freedoms of others. Any such legal provision should require an assembly organiser to submit a notice of intent rather than a request for permission.

The notification process should not be onerous or bureaucratic. The period of notice should not be unnecessarily lengthy, but should still allow adequate time prior to the notified date of the assembly for the relevant State authorities to plan and prepare for the event in satisfaction of their positive obligations, and for the completion of an expeditious appeal to (and ruling by) a court should any restrictions be challenged.

If the authorities do not promptly present any objections to a notification, the organisers of a public assembly should be able proceed with their activities according to the terms notified and without restriction.

....

4.6 Review and Appeal

The right to an effective remedy entails a right to appeal the substance of any restrictions or prohibitions on an assembly. An initial option of administrative review can both reduce the burden on courts and help build a more constructive relationship between the authorities and the public. However, where such a review fails to satisfy the applicant, there should be an appeal mechanism to an independent court. Appeals should take place in a prompt and timely manner so that any revisions to the authorities ’ decision can be implemented without further detriment to the applicant ’ s rights. A final ruling, or at least relief through an injunction, should therefore be given prior to the notified date of the assembly ...”

COMPLAINTS

The applicant complains under Article 11 of the Convention of a breach of its ri g ht to freedom of assembly. In particular , it claims that the domestic courts upheld the request of the Kyiv Administration and prohibited a demonstration or g anised by the applicant in Kyiv.

It further refers to Article 14 of the Convention , in conjunction with Article 11 and alle g es that the Ukrainian authorities discriminated a g ainst the applicant in comparison with individuals potentially assemblin g in the city centre for State holidays or with the special permission of the mayor of Kyiv.

QUESTIONS TO THE PARTIES

1. Has the applicant party exhausted all effective domestic remedies , as required by Article 35 § 1 of the Convention?

In particular, were the appeal proceedings, after the ban imposed by the Shevchenkivskyy District Court of Kyiv on 12 September 2002, effective remedies in respect of the applicant ’ s complaints under Article 11, as interpreted in the Court ’ s case law (see Bączkowski and Others v. Poland , no. 1543/06, § 63, 3 May 2007) ?

2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

3. May the applicant still claim to be a victim of a violation of the Convention , within the meanin g of Article 34?

4. Has there been a violation of the applicant ’ s ri g ht to freedom of peaceful assembly , contrary to Article 11 of the Convention?

In particular:

( a) was the interference prescribed by law, within the meaning of Article 11 § 2 of the Convention?

( b) did the interference pursue a “legitimate aim” on the part of the authorities, and if so

( c) was it proportionate to that “legitimate aim”?

The Government are invited to provide information as to the le g al basis of the interference with the applicant ’ s ri g hts under Article 11 , and the domestic courts ’ case-law on the issue of the bannin g of peaceful rallies.

5. Did the applicant have at its disposal an effective domestic remedy for their complaint under Article 11 , as required by Article 13 of the Convention?

In particular , were the judicial proceedin g s in the present case , includin g the proceedin g s on appeal and appeal in cassation , conducted in a prompt and dili g ent manner (see Bączkowski and Others v. Poland , no. 1543/06 , § 81 , 3 May 2007 )?