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Legal Analytics of Euromaidan: the right to peaceful assembly
Tuesday, 03 December 2013 22:31

meeting The right to peaceful assembly and its legal regulation

Freedom of peaceful assembly is protected by Article 11 of the European Convention on Human Rights and Fundamental Freedoms: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

According to Article 39 of the Constitution of Ukraine, “citizens shall have the right to assemble peacefully without arms and to hold rallies, meetings, processions, and demonstrations upon notifying executive or local self-government bodies in advance. Restrictions on the exercise of this right may be established by a court in accordance with law and only in the interests of national security and public order, for the purpose of prevention of disturbances or crimes, protection of the health of the population, or protection of the rights and freedoms of other persons”.

 This provision of the legislation of Ukraine is in fact the only legal norm in the sphere of realization of the right to peaceful assembly, although there were several attempts of adoption the law on peaceful assembly. The European Court of Human Rights has repeatedly stressed the need to adopt appropriate legislation in Ukraine - but it seems that Ukraine “feels fine” without it ... So today the law does not regulate the rules for all participants of peaceful assembly, including for law enforcement authorities, does not provided clear rules and an exhaustive list of grounds for interference into enjoyment of the right to peaceful assembly, there are no strict rules regulating the use of special equipment during assemblies and more.

Today, the lack of legal regulation of peaceful assemblies led to numerous abuses, violations of the rights of citizens, who exercise their right to peaceful assembly, and groundless interference by the authorities into the right to carry public meetings.

Notice of peaceful assembly

Ukraine's Constitutional Court in a judgment of 19 April 2001 determined that the citizens have to notify authorities about the planned activities in advance. These terms of notice should not limit the right to peaceful assembly under article 39 of the Constitution, and serve to guarantee it. At the same time the Court said that notice makes it possible for relevant executive authority or local authorities to take measures for conducting of meetings, public order, and provision of the rights and freedoms of others. Determination of specific timing of notification is the subject to legal regulation.

Legal liability during peaceful assemblies

Article 185-1 of the Code "On Administrative Offences" establishes administrative liability for violation of the order by organizers and participants of the meetings. Article 185-2 of the Code "On Administrative Offences" implies liability to officials for creation of conditions for the organization of assembly, meetings, street campaigns or demonstrations.

Criminal responsibility is established by article 294 of the Criminal Code of Ukraine for organizing riots accompanied with violence against any person, riotous damage, arson, destruction of property, taking control of buildings or construction, forceful eviction of citizens, resistance to authorities with the use of weapons or any other things used as weapons, and also active participation in riots. Article 295 of the criminal Code establishes responsibility for public calls to riotous damage, arson, destruction of property, taking control of buildings or constructions, forceful eviction of citizens, where these actions pose a threat to the public order, and also distributing, making or storing any material of such content.

Persons found guilty for blocking of transportation routes by obstructing the traffic, or cutting off electricity, or any other method, where it disrupted normal operations of traffic, or exposed human lives to dander, or caused the risk of any other grave consequences; and capturing a railway station, airfield, port, station or any other transportation enterprise, institution or organization, shall bear criminal responsibility under article 279 of the Criminal Code.

Thus, analyzing the nature of the offenses during peaceful demonstrations, we can conclude that the existing laws are not intended to guarantee the right to peaceful assembly, as they prescribe only prosecution of protest participating in peaceful assemblies. This can be an instrument of persecution of the participants and organizers of peaceful meetings. And, for example, responsibility for creating unlawful obstacle in carrying peaceful assemblies by the government is not established. The law regulating the issue of freedom of assembly should also regulate the issue of the use of power that, and the current legislation does not guarantee that the police have to use force proportionately to the actions of protesters, and only in extreme cases. Of course some of these provisions can be found in the law on the police, but in practice, they are not sufficient to ensure the proper implementation of the rights of protesters.

The need to improve the law on peaceful assembly

Legislative attempts to adopt the law on peaceful assemblies have been often used to set limits on the rights of peaceful assembly, without regulating the issue of legislative guarantees of this right. Necessary guarantees of the right to peaceful assembly should include the following: a comprehensive list of places where the gathering is not allowed should be established to prevent unlawful prohibitions or territorial restrictions of peaceful assemblies; clear functions of public authorities to maximize the realization of the right to peaceful assembly should be prescribed; ensuring the free possibility of spontaneous/urgent meetings, which don’t have to be previously reported to avoid bureaucratic procedures for advance notice; setting limits of the right to freedom of peaceful assembly to prevent abuse of power in this area from both sides; establishing procedures for complaints against violations of the rights to peaceful assembly by protesters; establishing of responsibility for illegal actions of provocateurs that lead to mass disturbances during peaceful demonstrations, and personal responsibility of organizers of such provocations; personal responsibility for the prohibition of participation in peaceful assemblies and more.

Legally unregulated right to peaceful assembly in Ukraine leads to chaos and arbitrariness of the authorities, which often occurs during peaceful protests in Ukraine.