FIFTH SECTION

DECISION

Application no. 51098/13 Volodymyr Ivanovych VYSOTSKYY and Nadiya Sergiyivna BARANSKA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 March 2023 as a Committee composed of:

Carlo Ranzoni , President , Mattias Guyomar, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 51098/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 August 2013 by two Ukrainian nationals, Mr Volodymyr Ivanovych Vysotskyy (“the first applicant”) and Ms Nadiya Sergiyivna Baranska (“the second applicant”), who were born in 1960 and 1958 respectively, have their domicile registered in Sevastopol [1] and Bohdashiv, and were represented, most recently, by Mr G. Avramenko, a lawyer practising in Chernihiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented, at the time, by their acting Agent, Ms O. Davydchuk;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns an alleged violation of the applicants’ right to freedom of peaceful assembly under Article 11 of the Convention.

2 . The events took place against the background of the conflict, which sparked among Ukrainian advocates following the entry into force on 15 August 2012 of the Law on the Bar and practice of law (Про адвокатуру та адвокатську діяльність) . It provided, in particular, for the establishment of the National Bar Association of Ukraine as a single self-governing association for the legal profession. Pursuant to that law, constituent conferences of advocates were to be held at the local level with a view to electing delegates to the Constituent Congress of Advocates of Ukraine, which was to take place within one hundred days from the entry into force of the law and which was tasked with adopting the charter of the National Bar Association and approving the regulations on the Bar Council of Ukraine, as well as electing the chairperson of those institutions [2] . In certain regions there were two constituent conferences of advocates instead of one, and both of them elected delegates to the Constituent Congress of Advocates.

3 . The Constituent Congress of Advocates was scheduled to take place on 17 November 2012 at the R. hotel in Kyiv. However, following a conflict concerning the lists of those eligible to take part therein, as well as concerning the admission modalities, the first applicant, who was then the chairman of the High Qualification and Disciplinary Commission of Advocates, initiated a parallel Constituent Congress of Advocates at a different location in Kyiv. In other words, two Constituent Congresses of Advocates were held instead of one, each of them claiming to be the only legitimate one.

4. The Congress of Advocates held in the R. hotel on 17 November 2012 elected Ms I. as the chairperson of the Bar Council of Ukraine and the newly created National Bar Association. The “alternative” Congress of Advocates elected the first applicant to those posts.

5 . On 19 November 2012 the National Bar Association established by the Constituent Congress of Advocates held in the R. hotel was registered as a legal entity. It applied to the administrative courts seeking a prohibition on registration of any other organisation with the same name [3] . The Kyiv Circuit Administrative Court allowed that claim on 26 December 2012.

6. On 28 November 2012 the “alternative” Bar Council of Ukraine, under the first applicant’s chairmanship, decided to hold an extraordinary Congress of Advocates in Odesa on 2 February 2013 (postponed to 9 February 2013 by a decision of 22 January 2013) and created a steering committee for that purpose. Both applicants were included in its composition.

7. On 5 February 2013 Mr L., an advocate practising in Kyiv, lodged an administrative claim with the Kyiv Circuit Administrative Court against the Kyiv Bar Council, the Bar Council of Ukraine under the chairmanship of Ms I. [4] , and the steering committee created on 28 November 2012. He complained that the Kyiv Bar Council had failed to nominate its delegates to the extraordinary Congress of Advocates scheduled for 9 February 2013. Mr L. also complained that the Bar Council of Ukraine had allowed insufficient time for the organisation of that congress. As a result, he risked not being represented there. As an injunction measure, Mr L. applied for a ban on the holding of the extraordinary Congress of Advocates.

8. On 6 February 2013 the Kyiv Circuit Administrative Court granted the injunction. It relied on Article 117 of the Code of Administrative Justice, which provided that a court could indicate interim measures with a view to securing a claim where there was an imminent danger of damage to the claimant’s rights, freedoms and interests, or where their protection would become impossible without such interim measures, or where their restoration would require considerable efforts and resources, as well as in cases where there were there obvious indications of unlawfulness in a decision, action or omission of a public authority. That ruling was subsequently upheld by the Kyiv Administrative Court of Appeal.

9 . On 9 February 2013 the extraordinary Congress of Advocates organised by the “alternative” Bar Council of Ukraine, under the first applicant’s chairmanship, took place in spite of the injunction of 6 February 2013. Its venue was, however, moved to Zatoka, a town in the Odesa region. It “annulled” all the decisions delivered by the Constituent Congress of Advocates held in the R. hotel in Kyiv on 17 November 2012 (see paragraph 3 above).

10. On 11 February 2013 Mr L. supplemented his claim with an application to have all the decisions delivered at the above-mentioned event in Zatoka declared illegal and set aside.

11. On 18 February 2013 Mr P., another advocate practising in Kyiv, also lodged an administrative claim, by which he challenged, in particular, the decisions of 28 November 2012 and 9 February 2013 as unlawful.

12. Having joined the claims by Mr L. and Mr P., on 15 April 2013 the Kyiv Circuit Administrative Court allowed them in part. It held that it had been established that the only legitimate Constituent Congress of Advocates was the one which had taken place on 17 November 2012 in the R. hotel in Kyiv, and that only the organisations which had been created and the officials who had been elected at that congress enjoyed the requisite legitimacy. It therefore concluded that the decision of 28 November 2012, ostensibly of the Bar Council of Ukraine, was not a decision of that body within the meaning of Law on the Bar and practice of law. A similar finding was made in respect of the decisions ostensibly delivered by the extraordinary Congress of Advocates on 9 February 2013. The Kyiv Circuit Administrative Court also delivered a separate ruling, by which it directed the Bar Council of Ukraine and the High Qualification and Disciplinary Commission of the Bar to take measures with a view to putting an end to the violations of Law on the Bar and practice of law relating to the organisation of illegitimate events by unauthorised persons.

13 . The applicants did not allege that they had been penalised for having breached the ban on holding the extraordinary congress [5] .

14 . On 17 October 2013 the Kyiv Administrative Court of Appeal upheld those rulings. In so far as the applicants questioned the competence of administrative courts to adjudicate the case by arguing that it did not involve a public-law dispute, the appellate court noted that the advocates’ self-government organisations performed a whole range of public-law functions and therefore administrative courts were competent to deal with the case.

15 . On 18 November 2013 the Higher Administrative Court rejected an application by the first applicant for leave to appeal on points of law.

THE COURT’S ASSESSMENT

16. The applicants complained that the injunction of 6 February 2013 had infringed their right to peaceful assembly under Article 11 of the Convention.

17 . The Government submitted that the second applicant had not exhausted the domestic remedies, given that she had not lodged an appeal on points of law against the ruling of the Kyiv Administrative Court of Appeal of 17 October 2013 (see paragraphs 14 and 15 above). The Government further argued that the applicants had abused their right of individual application by disregarding the injunction and conducting activities discrediting and obstructing those of the legitimate self-government organisations of advocates, the applicants had abused their right of individual application.

18. Having regard to the well-established principle of its case-law – that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018) – the Court notes that the scope of the present case is limited to the alleged infringement of the applicants’ right to freedom of peaceful assembly on account of the injunction of 6 February 2013. In other words, the applicants’ unsuccessful attempts to create self-government organisations for advocates are not the subject matter of this case and will be taken into account only as part of the background to their complaint.

19. The Court notes that, in spite of the ban, the event referred to as “the extraordinary Congress of Advocates” did take place on 9 February 2013 as planned by the applicants, albeit at a different location (see paragraph 9 above). The applicants did not allege that the judicial ban had had any impact on the number of the participants at that event. In the case of Bączkowski and Others v. Poland (no. 1543/06, §§ 67-68, 3 May 2007), which concerned a situation where public assemblies banned by the authorities had eventually taken place, the Court noted that those assemblies had been held without a presumption of legality and that such a presumption constituted a vital aspect of the effective and unhindered exercise of freedom of assembly and freedom of expression. While in Bączkowski and Others (cited above) the public assemblies would have enjoyed the presumption of legality had there not been a ban on holding them, the same cannot be said in the present case. The relevant Ukrainian legislation provided for only one National Bar Association of Ukraine and specified its role and functions. That legal entity was registered on 19 November 2012 (see paragraphs 2 and 5 above). Under such circumstances, the legality of “the extraordinary Congress of Advocates”, which had been initiated by the “alternative” National Bar Association of Ukraine rather than by the legally registered one, was questionable regardless of the ban of 6 February 2013. The Court next notes that the applicants did not allege that they had been punished for having breached that ban (see paragraph 13 above). It has not therefore been shown that there has been an interference with their right to freedom of assembly in the present case.

20. Accordingly, regardless of the Government’s other arguments (see paragraph 17 above), this application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 May 2023.

Martina Keller Carlo Ranzoni Deputy Registrar President

[1] The Government provided an extract from the Gazette of the Moscow City Bar Association indicating that on 29 May 2018 the first applicant had been admitted to that association. The applicants did not comment on that. In various public sources on the Internet the first applicant is indicated as being a lawyer currently practising in Moscow.

[2] The chairperson of the Bar Council of Ukraine is the chairperson of the National Bar Association of Ukraine, by virtue of his or her position.

[3] Such attempts were apparently made following the “alternative” Constituent Congress of Advocates.

[4] Given that the claim concerned the decision of the Bar Council of Ukraine of 28 November 2012, that is, the one under the first applicant’s chairmanship, it is not clear why the Bar Council of Ukraine chaired by Ms I. was indicated among the defendants.

[5] While disciplinary proceedings against the first applicant were instituted, they related to events which had taken place prior to the ban examined in the present case. The Court has examined those proceedings in another case brought by the same applicant and declared his complaints under Articles 8 and 10 of the Convention inadmissible (see Vysotskyy v. Ukraine (dec.), no. 76594/13, 17 November 2022). In so far as the second applicant is concerned, she informed the Court, in the context of a different application which is still pending before it ( Avramenko and Others v. Ukraine , no. 71184/14), that disciplinary proceedings had been instituted against her but that ultimately the decisions to impose disciplinary sanctions had been quashed as unlawful.