CEDH · CASELAW;CLIN;ENG — 11 avril 2013

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Ukraine - 20372/11 Judgment 11.4.2013 [Section V] Article 11 Article 11-1 Freedom of peaceful assembly Administrative arrest for breach of procedure for holding demonstration, imposed in absence of domestic legislation establishing such procedure: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required to implement reforms in its legislation and administrative practice regarding procedure for holding peaceful demonstrations   Facts – On behalf of a human rights NGO, the applicant notified the Lviv City Mayor that he would hold a series of demonstrations over several months to raise awareness about corruption in the prosecution service. On 12   October 2010 he organised a peaceful demonstration during which he was called aside by police officers who eventually let him go. The following day, following a complaint by the local council, the administrative court prohibited the holding of pre-announced further demonstrations with effect from 19   October 2010. The applicant was invited to the district police station, where he was accused in particular of having breached the procedure for organising and holding a demonstration. The next day he was brought before the district court, which found him guilty of the offences charged and sentenced him to three days of administrative detention. Once he had served his sentence, the applicant unsuccessfully appealed to the regional court of appeal. Law Article 11: The legal basis for the applicant’s arrest had been the Code on Administrative Offences, which established liability for breaches of the procedure for holding demonstration and was deemed sufficiently accessible. However, there had been no clear and foreseeable procedure for holding peaceful demonstrations in Ukraine since the end of the Soviet Union. Indeed, the general rules laid down in the Ukrainian Constitution as regards the possible restrictions on freedom of assembly still required further elaboration in the domestic law. In particular, in a decision of 2001 the Constitutional Court held that the procedure regarding the notification of peaceful assembly to the Ukrainian authorities was a matter for legislative regulation. Moreover, the only existing document establishing such a procedure was a decree, which had been adopted in 1988 by a country that no longer existed – the USSR – and was not generally accepted by the domestic courts as still applicable. Therefore, it could not be concluded that the “procedure” referred to in the Code on Administrative Offences was formulated with sufficient precision to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions. Nor, for the same reason, did 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. Even though the Court acknowledged that it could take some time for a country to establish its legislative framework during a transitional period like the one Ukraine was currently going through, it could not agree that a delay of more than twenty years was justifiable, especially when such a fundamental right as freedom of peaceful demonstration was at stake. The interference with the applicant’s right to freedom of peaceful assembly had therefore not been prescribed by law. Conclusion : violation (unanimously). Article 7: Although the offence of a breach of the procedure for holding demonstrations was provided for by the Code on Administrative Offences, the procedure was not established in the domestic law with sufficient precision. In the absence of clear and foreseeable legislation laying down the rules for the holding of peaceful demonstrations, the applicant’s punishment for breaching an inexistent procedure had been incompatible with Article   7. Conclusion : violation (unanimously). Article 6 §§ 1 and 3: Only a few hours had elapsed between the drawing up of the administrative-offence report by the police and the examination of the case by the first-instance court. As a result, the applicant had not been able to assess the charge against him and to prepare his defence accordingly. Further, although he had requested legal representation as provided for under the Code on Administrative Offences, the first-instance court had refused because of his legal background as a human-rights defender; a refusal on those grounds was both unlawful and arbitrary. Third, the main basis for the findings of the first-instance court had been police reports, without any witnesses being questioned, despite the applicant’s request to that end. Moreover, the appeal court had failed to remedy the violations since, by the time it had examined the case, the applicant had already served his administrative detention. Finally, despite their relevance, his arguments had been totally ignored by the domestic courts, which had displayed a total lack of adequate reasoning in their decisions. Conclusion : violations (unanimously). Article 46: The violations of Articles   11 and 7 which had been found in the instant case stemmed from a legislative lacuna concerning freedom of assembly which had remained in the Ukrainian legal system for more than two decades. Having regard to the structural nature of the problem, specific reforms in Ukraine’s legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the Court’s conclusions in the instant judgment and to ensure their compliance with the requirements of Articles   7 and 11. Article 41: EUR 6,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes