SHMUSHKOVYCH v. UKRAINE - 3276/10 - Chamber Judgment [2013] ECHR 1138 (14 November 2013)

In the case of Shmushkovych v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Helena Jäderblom,
Aleš Pejchal, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 3276/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mykhaylo Volodymyrovych Shmushkovych (“the applicant”), on 11 January 2010.

The applicant, who had been granted legal aid, was represented by Mr V.M. Yavorskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from the Ministry of Justice.

The applicant alleged that the restriction on the peaceful assembly he had organised was unlawful and disproportionate, and that the judicial decision in the case against him was not pronounced publicly.

On 8 December 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1979 and lives in Odessa.

The applicant is a vice-president of Zelyonka (Зелёнка), a non-governmental youth organisation, and a member of the Odessa City Council.

On 17 March 2009 the applicant, acting on behalf of Zelyonka, notified the Odessa City Mayor and the Head of the Prymorsky District Police Department of Odessa of the organisation’s intention to hold a peaceful assembly (picket) in front of the Odessa City Council building on 19 March 2009 from 11 a.m. to 1 p.m. The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by the Council’s Department of Construction.

In reply, by a letter of the same date, the Odessa City Council informed the applicant that holding a picket within such short notice was liable to be considered unlawful. The letter indicated that, pursuant to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree - see paragraph 18 below), notification had to be given no later than ten days prior to the meeting in question. It further indicated that the Constitutional Court, in its decision of 19 April 2001 (see paragraph 20 below), had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting. It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in Ukraine and that the 1988 Decree was still in force. The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph 2 of the 1988 Decree and the person responsible held administratively liable under Article 185-1 of the Code of Administrative Offences (the CAO).

The picket took place as planned between 11 a.m. and 1 p.m. on 19 March 2009. According to the applicant, it was peaceful and only a few people took part in it. The police report of the same day noted that about 250 persons had taken part in the picket and that there had been no violation of public order.

On 4 April 2009 a police officer of the Prymorsky District Police Department of Odessa drew up an administrative offence report, in the applicant’s presence, indicating that on 19 March 2009 the applicant had organised and held a picket in violation of Article 185-1 of the CAO and the decision of the Constitutional Court of 19 April 2001. The applicant signed the report, adding a note to the effect that he considered his actions lawful. The report was referred to a court.

On 15 May 2009 the Prymorsky District Court of Odessa (“the District Court”) examined the applicant’s case. According to the record of the hearing, provided by the Government, the questioning took place between 1.24 and 1.34 p.m. After that the judge retired to the deliberations chamber. At 2.27 p.m. the judge publicly pronounced judgment and the hearing closed at 2.32 p.m. According to the Government, the full text of the judgment was pronounced publicly and three hours later the court clerk handed a hard copy of the judgment to the applicant’s representative. According to the applicant, the judgment was not pronounced in public but given to his representative in writing three hours after the end of the hearing.

In that judgment the District Court found that the applicant had violated public order by failing to give the Odessa City Council sufficient advance notification of the picket he had organised. The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him 170 Ukrainian hryvnias (UAH) (17 euros (EUR)). The court held, in particular, that the applicant was in breach of Article 185-1 of the CAO because he had not complied with the ten-day notification requirement. The court based its findings on the 1988 Decree, which provided that an application to hold an assembly had to be lodged with the relevant authority at least ten days in advance. The court further referred to the decision of the Constitutional Court and noted that the exact time-limits for notification were to be regulated by law. It further indicated that the 1988 Decree was valid in Ukraine under the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union (see paragraph 19 below). The court also pointed to the fact that the applicant had been informed by the Council that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability.

On 25 May 2009 the applicant appealed. He argued that the 1988 Decree, on which the first-instance court had based in its decision, was invalid and contrary to the Constitution. In particular, he noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only that the authorities had to be notified of an intention to hold such an assembly. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, whereas the 1988 Decree was not a law of Ukraine. He further noted that at the time of the picket there had been no judicial decision restricting the above-mentioned picket as required by Article 39 of the Constitution. The applicant also contended that his punishment violated Article 11 of the Convention and was not necessary as the picket had been peaceful and had not violated public order. Lastly, he complained that the decision in question had not been pronounced publicly which was contrary to Article 285 of the Code of Administrative Offences (see paragraph 17 below) and to Article 6 § 1 of the Convention.

On 16 July 2009 the Odessa Regional Court of Appeal, ruling in the presence of the applicant and his representative, upheld the decision of the first-instance court. Its ruling contained a summary of the facts of the case, outlined the applicant’s arguments and included an analysis of the pertinent legislation in line with that of the first-instance court. As to the applicant’s argument that it was unnecessary to punish him, the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it. The court did not however address the applicant’s complaint that the first-instance court’s judgment had not been pronounced publicly.

The applicant has not paid the fine.

II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE

A. Constitution of Ukraine

The relevant provisions of the Constitution read, in so far as relevant, as follows:

Article 22

“Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.

Constitutional rights and freedoms are guaranteed and shall not be abolished.

The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.”

Article 39

“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand.

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.

Article 92

“The following are determined exclusively by the laws of Ukraine:

(1) human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...”

Chapter XV

Transitional Provisions

“1. Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...”

B. Code of Administrative Offences (the CAO)

The relevant provisions of the Code read, in so far as relevant, as follows:

Article 185-1

Breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations

“A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage.

The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.”

Article 285

Pronouncement and service of decision regarding an administrative offence

“A decision shall be pronounced immediately after the examination of the case. Within three days a copy of the decision shall be given or sent to the person concerned ...”

C. The Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree)

The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia:

“The Constitution of the USSR, according to the interests of the people and for strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom of meetings, rallies, street marches and demonstrations. The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings, streets, squares and other places...

1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies...

2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question...

3. The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application...

6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.”

D. The Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 on temporary application of certain legislative acts of the Soviet Union

The resolution provides in particular:

“ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.”

E. Domestic case-law

1. Decision of the Constitutional Court of Ukraine of 19 April 2001 in a case regarding timely notification of a peaceful assembly

In its decision the Constitutional Court held inter alia:

“1. ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations.

In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions...

... the Constitutional Court holds as follows:

1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive 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.

Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...”

2. Information note of April 2012 by the Higher Administrative Court of Ukraine on a study and summary of the jurisprudence of administrative courts applying the relevant legislation and deciding cases concerning the exercise of the right to peaceful assembly (meetings, rallies, marches, demonstrations, etc.) in 2010 and 2011.

. On 21 May 2012 the Plenary of the Higher Administrative Court of Ukraine by its Decree No. 6 decided to send this note for information to the judges of lower administrative courts. The note mentioned, inter alia, as follows:

“...The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect.

Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments 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 ...”

3. Decisions of administrative courts

In a judgment of the Babushkinsky District Court of Dnipropetrovs’k of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovs’k City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens.

In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree. The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 20 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others. It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention.

In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed a judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects. The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine.

F. Other relevant international and domestic law and practice

Other relevant domestic law and practice and the relevant international documents can be found in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 26, 32, 33 and 38 to 43, 11 April 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

The applicant complained under Article 11 of the Convention that the State had unlawfully interfered with his right to freedom of peaceful assembly by fining him for the purportedly late notification of the picket he had organised. That interference, he argued, had not been necessary in a democratic society.

“1. Everyone has the right to freedom of peaceful assembly ...

2. 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...”

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The applicant maintained that the Ukrainian legislation did not have clear and foreseeable legislation in the sphere of freedom of assembly. The judicial practice was inconsistent: some courts applied the 1988 Decree, while others did not, considering that decree invalid and contrary to the Constitution. He referred to examples of the domestic courts’ decisions (see paragraphs 22 and 23 above) in which the courts held that the national legislation did not regulate the procedure for organising and holding peaceful assemblies. He noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only for advance notification to the authorities of an intention to hold such an assembly. Therefore it could not be said that the Decree complemented the constitutional provisions on freedom of assembly, since it clearly conflicted with them. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, yet the 1988 Decree was not a law of Ukraine. In the applicant’s opinion, in its decision of 19 April 2001 the Constitutional Court had not accepted the validity of the 1988 Decree concerning the requirement of at least ten days’ advance notification.

The applicant further considered that Article 185-1 of the CAO did not meet the requirement of quality of law, as it provided for liability for violation of a procedure which had not been defined by the domestic law.

He also complained that his punishment had not been necessary because the picket in question had not caused any disturbance of public order and the domestic authorities had not assessed the circumstances of the case but limited themselves to establishing a formal failure to give ten days’ advance notification of the picket.

The Government agreed that the domestic court’s finding that the applicant had incurred administrative liability constituted an interference with his right to freedom of peaceful assembly. They maintained, however, that the interference had been justified.

The Government submitted that the interference had been “prescribed by law”. They argued that under the Court’s case-law the “law” did not necessarily mean an Act of the national parliament, but could include enactments of lower rank than statutes and unwritten law. In a sphere covered by the written law, the “law” was the enactment in force as the competent courts had interpreted it in the light, if necessary, of any new practical developments (Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A). They noted that under Article 39 of the Constitution the freedom of assembly could be restricted by the courts and, according to the Constitutional Court decision of 19 April 2001, the executive authorities could coordinate with the organisers of the assemblies details such as time, venue, length and so on, and notification of a planned assembly should be given within a time-limit that would be sufficient for the authorities to decide whether the assembly was legal and, if necessary, whether an application should be made to a court to settle any dispute that had arisen.

The Government agreed that formally there was no law regulating relations concerning the freedom of assembly, but maintained that the 1988 Decree was valid and that the Constitutional Court had not declared it invalid. They considered that the rules set forth in the 1988 Decree were sufficiently foreseeable and precise and that the national courts of all levels had accepted the applicability of that decree in the applicant’s case.

They also maintained that the restriction on the applicant’s right to freedom of assembly had pursued the legitimate aim of protecting the rights and freedoms of others and had been necessary, given that the picket had taken place in an area through which many people passed every day with the consequence that an assembly of people was deemed to endanger the life and health of others, including tourists and representatives of different religions, politics and so on. Furthermore, the place was not equipped with the necessary sanitary facilities. They noted, lastly, that during another event organised by the applicant’s organisation there had been a violation of public order and that this had demonstrated the importance of timely notification so that the authorities could make the necessary arrangements to ensure safety and public order.

2. The Court’s assessment

a) Whether there was an interference

The Court considers, as undisputed by the parties, that the applicant’s punishment for organising and holding a peaceful assembly constituted an interference with his right to freedom of peaceful assembly.

b) Whether the interference was justified

An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims.

The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I).

The Court notes that the fine was imposed on the applicant under Article 185-1 of the CAO, which prescribed a penalty for violations of the procedure for organising and holding demonstrations. Therefore, the interference had a basis in domestic law. It has not been disputed that the Code was accessible and the Court does not have reason to doubt that. It remains, therefore, to be determined whether this provision was foreseeable.

The Court notes that it is in dispute between the parties whether there was any legal act in Ukraine providing for the “procedure” referred to in Article 185-1 of the CAO. The Government alleged that the “procedure” was envisaged by the 1988 Decree, while the applicant contended that this legal act of the former USSR was no longer valid and applicable in Ukraine as it was contrary to the Constitution.

The Court reiterates that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. The Court notes that it recently examined in detail the existing Ukrainian legal framework concerning procedure for holding peaceful demonstrations in the case of Vyerentsov (Vyerentsov v. Ukraine, cited above, §§ 51 to 57). The Court established in particular that:

“54. ...From the materials of the case and the applicant’s submissions it is clear that there is no single view on the applicability of the 1988 Decree and the existence of a clear and foreseeable procedure for organising and holding peaceful demonstrations. The practice of the domestic courts also reveals inconsistencies in this sphere [...]. It is true that the Constitution of Ukraine provides for some general rules as to the possible restrictions on the freedom of assembly, but those rules require further elaboration in the domestic law. The only existing document establishing such a procedure is the 1988 Decree, whose provisions are not generally accepted as the valid procedure for holding demonstrations and which provides, as is confirmed in the practice of the domestic courts [...], for a different procedure from the one outlined in the Constitution. Indeed, whilst the Ukrainian Constitution requires advance notification to the authorities of an intention to hold a demonstration and stipulates that any restriction thereon can be imposed only by a court, the 1988 Decree, drafted in accordance with the Constitution of the USSR of 1978, provides that persons wishing to hold a peaceful demonstration have to seek permission from the local administration which is also entitled to ban any such demonstration. From the preamble of the Decree it is clear that it had been intended for a very different purpose, namely for only certain categories of individuals to be provided by the administration with facilities to express their views in favour of a particular ideology, this in itself being incompatible with the very essence of the freedom of assembly guaranteed by the Ukrainian Constitution and the Convention. As found by a domestic court [...], demonstrations under the 1988 Decree were considered on the basis of their compatibility with “non-existent constitutions of non-existent subjects”. Therefore, it cannot be concluded that the “procedure” referred to in Article 185-1 of 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 (see, mutatis mutandis, Mkrtchyan, ibid.)...

55. The Court further observes that, admittedly, the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union refers to temporary application of Soviet legislation and no law has yet been enacted by the Ukrainian Parliament regulating the procedure for holding peaceful demonstrations, although Articles 39 and 92 of the Constitution clearly require that such a procedure be established by law, that is, by an Act of the Ukrainian Parliament. Whilst the Court accepts that it may take some time for a country to establish its legislative framework during a transitional period, it cannot agree that a delay of more than twenty years is justifiable, especially when such a fundamental right as freedom of peaceful assembly is at stake. The Court thus concludes that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law” (Vyerentsov v. Ukraine, cited above, §§ 54 and 55).

The Court sees no reasons to depart from those conclusions in the present case, which concerns the same legal framework and in which the parties had raised similar arguments to those advanced in the case of Vyerentsov cited above.

Having reached the conclusion that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in Article 11 § 2 have been complied with.

Accordingly, there has been a violation of Article 11 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

The applicant complained that the first-instance court’s judgment convicting him of a breach of the procedure for organising a peaceful assembly was not pronounced publicly. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

A. Admissibility

The parties agreed that Article 6 under its criminal head was applicable to the proceedings in question. The Court reiterates its case-law that proceedings concerning minor offences carrying a custodial sentence fall within the criminal limb of Article 6 regardless of whether the person concerned has actually been punished by imprisonment or not (compare Gurepka v. Ukraine, no. 61406/00, § 55, 6 September 2005 and Kornev and Karpenko v. Ukraine, no. 17444/04, § 61, 21 October 2010). In the present case the applicant was found guilty of an offence carrying a maximum penalty of fifteen days’ imprisonment. Accordingly, Article 6 applies to the proceedings against the applicant.

The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The applicant complained that the first-instance court had not pronounced its judgment publicly, but given a paper version of it to his lawyer three hours after the end of the hearing.

The Government noted that the proceedings before the first-instance court had been public. They contested the applicant’s complaint as unsubstantiated and maintained that the impugned judgment had been pronounced publicly. In support of their argument, they submitted the written and audio record of the hearing which included the examination of the case and the pronouncement of the judgment.

They further submitted that, unlike the other procedural codes, the Code of Administrative Offences did not specify that pronouncement of the decisions had to be public. The reason for this was the insignificance of proceedings concerning administrative offences - which were numerous and often repetitive - which would thus make the requirement of public pronouncement too burdensome.

They noted, lastly, that in any event the Court of Appeal had pronounced the final decision in the case publicly and in the presence of the applicant, his lawyer and representatives of the media. The content of its decision repeated the content of the first-instance court judgment. The Court of Appeal had referred to the same legal provisions and had reached the same conclusions. Therefore, even assuming that the judgment of the first-instance court had not been pronounced publicly, that shortcoming had been corrected by the Court of Appeal.

The applicant disagreed. He stated that neither he nor his lawyer had been present during the pronouncement, if indeed it had taken place, and questioned for whom the decision could have been pronounced in their absence. Moreover, the records submitted by the Government showed an interval of almost an hour between the end of the hearing and the alleged pronouncement, which suggested that the judge might have consulted someone before the pronouncement.

The applicant agreed with the Government’s submission that the proceedings before the Court of Appeal had been public, but criticised the Court of Appeal for its failure to address his complaint that the first-instance court had not pronounced the judgment publicly. Accordingly, he considered that the appeal proceedings did not compensate for the first-instance court’s failure to pronounce its judgment publicly.

2. The Court’s assessment

The Court reiterates that the public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see Pretto and Others v. Italy, judgment of 8 December 1983, Series A no. 71, p. 11, § 21, and Axen v. Germany, judgment of 8 December 1983, Series A no. 72, p. 12, § 25).

The Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of Article 6 (see Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33).

The Court has held in respect of the requirement of the public pronouncement of judgments that in each case the form of publicity given to the “judgment” under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question, having regard to their entirety, and by reference to the object and purpose of Article 6 § 1 (see Pretto and Others, cited above, § 26; Axen, cited above, § 31; and Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, p. 14, § 33).

The Court has found no violation where a first-instance court held a public hearing but did not deliver its judgment publicly but the appellate court delivered its decision, which contained a summary of the first-instance court’s judgment and made that judgment final, in public (see Lamanna v. Austria, no. 28923/95, §§ 33-34, 10 July 2001).

Turning to the circumstances of the present case, the Court cannot agree with the Government’s contention that, owing to the insignificance of administrative offences, the judicial authorities could be dispensed from the obligation to pronounce their judgments publicly. The Court observes that the proceedings in the applicant’s case concerned an offence which was serious enough to bring the impugned proceedings within the ambit of Article 6. The Government themselves had agreed that Article 6 was applicable to those proceedings. The Article 6 guarantees are therefore fully applicable to the proceedings, including the requirement that judgments be pronounced publicly.

Furthermore, the Court notes that the parties disagree as to whether the first-instance court had actually pronounced its judgment publicly. It is not in dispute, however, that even if pronouncement of the judgment did take place the applicant and his lawyer were not present at the time, and were not aware of anyone else having been present, but received a copy of the judgment soon after the hearing. In the circumstances of the present case the Court considers that, despite the above-mentioned disagreement between the parties as to the facts, it can decide on the applicant’s complaint even assuming that the first-instance court did fail to pronounce judgment publicly, given that the Court of Appeal pronounced its decision in public and repeated the findings and reasoning of the first-instance court. Although the Court of Appeal did not address the applicant’s complaint about the lack of pronouncement, it was not under an obligation to address all of the applicant’s complaints and the case file contained a record of the first-instance court hearings indicating that pronouncement had taken place. Accordingly, the Court of Appeal could arguably consider that there had been no case to answer. In any event, having regard to the proceedings as a whole, the Court finds that the purpose of Article 6 § 1, namely, subjecting court decisions to public scrutiny, thus enabling the public to study the manner in which the courts approach this type of cases, was achieved in the present case by the public delivery of the appellate court’s judgment.

There has accordingly been no violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 2,000 euros (EUR) in respect of non-pecuniary damage.

The Government contended that the claimed amount was exorbitant and unsubstantiated.

The Court, deciding in equity, awards the claimed amount in full.

B. Costs and expenses

The applicant made no claim under this head, so the Court makes no award.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 11 of the Convention;

3. Holds that there has been no violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Shevchuk is annexed to this judgment.

M.V.
C.W.

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 Oleksandr 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 Oleksandr 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 Oleksandr 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], nos. 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.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHMUSHKOVYCH v. UKRAINE - 3276/10 - Chamber Judgment [2013] ECHR 1138 (14 November 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1138.html Cite as: [2013] ECHR 1138