CONCURRING OPINION OF STANISLAV SHEVCHUK, AD HOC JUDGE

I voted with the other members of the Court for the finding that there had been a violation of Article 11 of the European Convention on Human Rights in the present case. Much to my regret, I do not share all the points in the majority ’ s opinion and therefore consider myself bound to append the present concurring opinion to the Court ’ s judgment.

The bulk of my concerns relates to the reasoning of the majority expressed in paragraph 40 of the judgment, where the Court cites §§ 54-55 of the judgment in the case of Vyerentsov v. Ukraine ( no. 20372/11 , 11 April 2013). In my view, the Court should have stopped at the point where it found that the interference with the applicant ’ s right to freedom of peaceful assembly was not prescribed by law and not made a policy choice for the national legislature regarding the necessity of a special law on peaceful assembly, which is not the proper exercise of the Court ’ s judicial function.

To start with, I think it appropriate to provide some general remarks on relevant domestic law and judicial practice. The right to peaceful assembly is enshrined in Article 39 of the Constitution of Ukraine which envisages a notification procedure and provides, in its second paragraph, that “restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons”. The legislation of Ukraine does not currently have a special law on freedom of assembly. The legislative framework comprises provisions contained in several laws regulating restrictions on that freedom and, in particular, section 38(1)(b)(3) of the Ukrainian Local Self-Government Act, which provides that executive bodies of local councils have delegated powers to resolve, in accordance with the law, issues related to holding meetings, rallies, demonstrations, sports events and so on. [1]

Thus far the Constitution of Ukraine does not require that the right of peaceful assembly be dependent upon the enactment of any enabling law. To affirm the opposite implies the acceptance of an old positivistic idea that the provisions of the Constitution on human rights and fundamental freedoms do not have direct effect and require the enactment of “enabling” legislation. But in my opinion Article 39, taken in conjunction with Article 8, of the Constitution establishing direct effect of the constitutional provisions is subject to direct application by the courts and everyone may apply to the court directly for the protection of constitutional rights and freedoms on the basis of the Constitution of Ukraine (Article 8 § 3). As concerns the notorious 1988 Decree, as of entry into force of the 1996 Constitution the Decree ceased to be valid law in Ukraine because it directly conflicted with and obviously contravened Article 39: the Decree prescribed a permission procedure while Article 39 of the Constitution refers to advance notification. This view can also be inferred from the Constitutional Court ’ s decision of 19 April 2001, which did not even mention the 1988 Decree among the applicable legal acts [2] as it did not consider the Decree to be part of valid law in Ukraine.

Judicial practice in Ukraine up to a couple of years ago rightly followed the concept of direct effect of Article 39 of the Constitution. The higher courts in Ukraine routinely quashed those few lower courts ’ decisions that invoked the 1988 Decree. However, the inexplicable re-emergence of the Decree in recent judicial practice prompted the High Administrative Court of Ukraine to articulate a clear position on the matter. In 2012 in a Plenary Decision of the High Administrative Court of Ukraine on the practical application of legislation by administrative courts when considering and deciding cases concerning the exercise of the right to peaceful assembly of 21 May 2012, № 6, the High Court rightly stated:

“Since the norms of this Decree establish a procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-government to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...”

I assume that there is genuine agreement between the European Court of Human Rights and the national high courts that the 1988 Decree does not constitute valid law either under Ukrainian legislation or for the purposes of Article 11 of the Convention. This means that the core problem with peaceful assemblies in Ukraine is not the lack of an enabling law but the strange twisted judicial practice of some lower courts of applying a piece of Soviet legislation instead of the relevant provisions of the Constitution of Ukraine. That would have been a legitimate point at which to stop in the judgment and leave the issue of legal policy to be considered by the national legislature and judiciary. However, the Court ventured to continue its reasoning in paragraph 40 of this judgment, reproducing §§ 54-55 of the judgment in Vyerentsov v. Ukraine (cited above).

The position of the High Administrative Court as expressed in the 2012 Plenary Decision and inferred from the 2001 Constitutional Court decision makes it clear that there is a general consensus among the higher courts of Ukraine that the 1988 Decree is inapplicable. Inconsistencies in the domestic practice of the lower courts are a problem that should be cured by the higher courts; this is their natural function in a democratic society. But such inconsistencies are insufficient to conclude that the 1988 Decree is a valid law in Ukraine .

Moreover paragraph 55 of the Vyerentsov judgment contains two misunderstandings or misinterpretations by the Court of both the national legislation and the spirit of freedom of assembly as enshrined in Article 11 of the Convention:

Nowhere in Article 39 and in Article 92 of the Constitution of Ukraine does there exist any requirement for a special law to be enacted. Article 39 has direct effect and only restrictions in the interests of national security or public order need to be clearly provided for in an Act of the Ukrainian Parliament. At the same time neither Article 39 nor Article 92 prohibits Parliament from enacting such a special law on peaceful assemblies on condition that it does not restrict the right of individuals under Article 39 of the Constitution of Ukraine, but serves as a guarantee of that right and at the same time provides the relevant State authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others. But the decision to enact a special law or leave the matter for the judicial practice to develop is within the delicate sphere of national legal policy choices.

The power of the State in such a delicate realm as fundamental freedoms is strictly limited to what is necessary in democratic society, meaning that the State may enact strongly justified restrictions to be invoked under clearly prescribed circumstances. But it cannot legitimately regulate the very enjoyment of such freedoms. In my view, when confronted with the issue of personal freedoms the State should abstain from regulating these and limit itself to regulating such restrictions as are necessary in a democratic society. I see a genuine fallacy in relating the violation of Article 11 of the Convention in the present case to the lack of a legislative enactment regulating the freedom of assembly. We should bear in mind the intricate nexus between freedom of assembly and freedom of expression, and the internal logic of both freedoms does not require any enabling laws to be effective in a democratic society. In this connection I fully subscribe to the opinion of the commissaire du gouvernement in the French Conseil d ’ État case of Benjamin (1933): “la liberté est la règle, la restriction de police l ’ exception.” [3]

The Court should be cautious when making policy choices for the national authorities and should take into consideration the domestic context. For even good policy choices made by the Court outside the domestic context may produce intended or unintended results inflicting irreparable harm on a nascent democratic society. This raises a conceptual issue of a more general nature: the limits of the Court ’ s power to review domestic law and make policy choices in place of the competent national authorities.

The legitimacy of an international tribunal established by the mutual consent of the Contracting Parties depends on the logic and argumentation of each judgment and, consequently, it might fail if the Court intentionally or unintentionally fails to observe the limits of its judicial function. This is so even if such overstepping is motivated by sound reasons of legal policy and genuine endeavour to support a Contracting State in complying with the Convention. If the Court opts to take the place of the national authorities in making policy choices, this should be an act of last resort that is justified by strong compelling reasons.

This approach derives from the supplementary and subsidiary nature of the Court ’ s role in protecting the rights and freedoms guaranteed by the European Court of Human Rights. For it is the national legal system, through its political, administrative and judicial authorities, which bears the primary responsibility in this sphere. This subsidiarity and complementarity of the Court ’ s role emanate not only from the express provisions of the Convention relating to the exhaustion of all domestic and effective domestic remedies but also from the Court ’ s jurisprudence. These serve as safeguards against turning the Court into a fourth-instance supreme tribunal across Europe. As was aptly uttered by Professor Laurence R. Helfer in this regard [4] ,

“Normatively, subsidiarity helps to legitimize ECtHR review by providing a measure of deference to national actors in situations where such deference is appropriate – such as identifying the content of and values underlying national laws and practices or choosing among a range of Convention-compatible implementation measures.”

While a substantive review of domestic legislation and advice on measures required to remedy some persisting problems may be relevant and unavoidable in certain circumstances, such a review ought to be handled with the utmost care because recourse to it will affect many issues of national legal policy and democratic process and should therefore be properly justified by compelling reasons that include the nature of the Convention right in issue, its importance for the proper functioning of democratic institutions in the respondent State, the systemic character of problems that give rise to an influx of repetitive cases before the Court, the inability of national authorities to tackle the problems – this being evident from the case files, the seriousness of the infringement complained of and the clear danger to democratic society in that State. The proper application of an abstract review will thus depend on the importance attached to each of these factors.

In accordance with the Court ’ s case-law on the interpretation and application of domestic law, while its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Ole k sandr Volkov v. Ukraine (2013), § 135; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190-91, ECHR 2006 ‑ V; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 86 , ECHR 2005 ‑ VI ). According to the Court ’ s settled case-law in the following cases, there were assumed to be strong reasons for the Court to review and assess national legislation in abstracto and indicate concrete types of individual and/or general measures that should be taken by the national authorities:

- the Court is required to verify whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court ’ s case-law (see Olek sandr Volkov , cited above, § 135);

- pilot judgments, where, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation that gave rise to the finding of a violation (see Broniowski v. Poland [GC], no. 31443/96, § 194 , ECHR 2004 ‑ V , and Stanev v. Bulgaria [GC], no. 36760/06, §§ 255-58, ECHR 2012);

- when the circumstances of the case taken in the context of the general development of democratic society in a respondent State give grounds for doubt as to whether there is any real choice as to the measures required to remedy the violations of the applicant ’ s Convention rights and there is an urgent need to put an end to the violations of the Convention (see Ole k sandr Volkov , cited above; Fatullayev v. Azerbaijan , no. 40984/07 , 22 April 2010; and Del Río Prada v. Spain (2013)). In such exceptional cases, upon a review of domestic law and political context, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate such measures (see Assanidze v. Georgia [GC], no. 71503/01, § 202-03 , ECHR 2004 ‑ II ; Aleksanyan v. Russia (208), §§ 239-40; and Fatullayev , cited above §§ 176-77), including those aimed to prevent further or continuing violations.

Overstepping the limits of its judicial function by imposing policy choices on the national authorities would set the Court on a slippery slope and gradually strip it of any immunity from charges of political involvement. Therefore there is a strong case for clearly calibrating the proper balance between the justified vigorous stance of the Court in protecting rights and freedoms guaranteed by the Convention that may require more involvement of the Court in national policy decision-making and deference to national authorities in making concrete policy choices.

I believe that the general approach of the Court should remain within the domain articulated by its case-law. In exercising its supervisory function, the Court ’ s task is not to take the place of the national legislature or courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 105; ECHR 2012; Petrenco v. Moldova , no. 20928/05, § 54, 30 March 2010; and Polanco Torres and Movilla Polanco v. Spain , no. 34147/06 , § 41, 21 September 2010). And where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its own view for that of those authorities (see Von Hannover , cited above, § 107; MGN Limited v. the United Kingdom, no. 39401/04 , § 150-55, 18 January 2011; and Palomo Sánchez and Others v. Spain [GC], no s . 28955/06, 28957/06, 28959/06 and 28964/06, § 57 , ECHR 2011 ).

The Court should not assume the role or take the place of the competent national authorities, especially when hard policy choices are at stake. In this judgment as well as in Vyerentsov v. Ukraine (cited above) the Court, in my opinion, made a clear policy choice: Ukraine should enact a special law on peaceful assemblies. This question has been the subject of heated debate during the last twenty years in Ukraine. Many voices have been raised against the introduction of such a law and a number of bills on the matter have been tabled before Parliament. The Vyerentsov judgment reignited the debate but the opponents of the regulation of the freedom of assembly by a special law seem to have been defeated by the Court ’ s inappropriate intervention. I am not in a position to assess the bills tabled before the Ukrainian Parliament, but I am mindful that this moment could be seized by some political forces within Ukraine to introduce such regulation of the freedom of assembly that might produce devastating results for civil society and the democratic process in Ukraine.

Against that background, I fully support the finding of a violation in this case but I respectfully dissent from the aforementioned paragraphs 54-55 of the Vyerentsov judgment reproduced in paragraph 40 of the present judgment.

[1] . In the present case the citation from Vyerentsov judgment omitted the final sentence of § 54: “Nor do the procedures introduced by the local authorities to regulate the organisation and holding of demonstrations in their particular regions appear to provide a sufficient legal basis, for the same reason – there was no general Act of Parliament on which such local documents could be based and the domestic courts moreover doubted the validity of such local decisions”. Indeed this passage does not reflect the current legislative framework: local government operates under powers delegated in accordance with section 38(1)(b)(3) of the Ukrainian Local Self-Government Act, which, jointly with Article 39 of the Constitution and other laws regulating specific restrictions on the freedom of assembly, serve as a valid and sufficient legal basis (see, mutatis mutandis, Cisse v. France , no. 51346, §§ 41-43, ECHR 2002-III).

[2] . See also the review of decisions of the administrative courts in §§ 35-36 of the judgment in Vyerentsov v. Ukraine ( cited above ) .

[3] . 19 May 1933 - Benjamin - Rec . Lebon p. 541

[4] . Laurence R. Helfer “ Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime ” , 19 The European Journal of International Law (2008) 125, at pp. 128-29 .