Every one of us has a right to go out and loudly express his discontent, or even to write it on a poster. This right to exercise the freedom of peaceful assembly is provided by the Constitution of Ukraine. According to the Interior Ministry data, last year Ukrainians exercised this freedom more than 172 thousand times. So, why did MPs take out from cold storage the law #2450 "On order of organization and holding peaceful assembly" of 2008? Why did this law cause such disturbance among public organizations and split them? What is this law in reality: a wolf in sheep's clothing or democratization of Ukrainian legislation by Europe's request? These and other debatable questions have made ForUm wonder.
Where this is coming from
Similar laws exist in all European countries and define how democratic this or that legislation is. In Ukraine, this law has popped up because of Europe. Western neighbors repeatedly declare that the forthcoming elections in Ukraine will be some kind of a test for maturity and readiness to democratize the legislation, inherited from the totalitarian state. Thus, according to experts, the will of the authorities to meet European norms results into necessity to copy down homework. Moreover, the implementation of similar law in Ukraine is a voluntarily taken obligation to the Council of Europe and one of the EU requirements regarding the liberalization of visa regime.
In the EU countries, the laws on assembly guarantee every citizen a right to protest peacefully, not infringing on rights of others. According to public organizations, Ukrainians must have the same right. This right is indeed stipulated by the Constitution de jure, but de facto is not fully observed. Thus, in 2011 the number of court bans on holding peaceful assembly was two times more than in 2010. In 2011, regional administrative courts approved 227 orders to ban meetings, and the lack of relevant law is one of the reasons.
Nevertheless, the draft bill developed by the Commission on democracy and supremacy of law under the President of Ukraine has become a stumbling rock for public organizations. The opinions of activists divided: some demanded to adopt the law to set clear rules of the game, others asked not even to start considering it, fearing the persecution.
Pros...
The process of working out the draft bill was accompanied by conflicts, project manager of the Ukrainian independent center for political research Maxim Latsyba says. "The draft bill was written in debates. The working process was intense. There were constant conflicts between representatives of the authorities and public organizations within the working group. Every norm required minimum half an hour of discussions. Moreover, not all representatives of public organizations were set for constructive work. Some activists set such idealistic requirements, which were hardly applicable amid Ukrainian reality. However, we managed to reduce the requirements of the Interior Ministry. Thus, the Ministry demanded to be informed about an assembly ten days before its holding. In the law #2450, we set only two days. There were many other positions we managed to win back," he says.
According to him, many human right activists back the document. "Among the supporters there are Evhen Zakharov (co-chairman of the Kharkiv human rights activist organization), Arkadiy Bushchenko (human rights activist, associate professor of criminal procedure depatment of Kharkiv law academy), Roman Romanov (International Renaissance Foundation), Volodymyr Yavorsky (Ukrainian Helsinki Human Rights Union). They all expressed in favor of the law," Latsyba said.
In his opinion, one of the pros of this draft bill is that it stipulates the procedure of realization of the right to exercise the freedom of peaceful assembly. It also says that courts cannot ban any place for holding an assembly, but only those stipulated by the law. The matter concerns high-risk locations, major pipelines, natural reserves, military sites, landing strips, power engineering facilities, nuclear facilities. The Constitution does not specify these places, thus courts could ban places in their discretion. "Moreover, the draft bill #2450 forbids the local authorities to set local restrictions on assembly. For example, the city council of Brovary once determined that assemblies can be held on the stadium only," the expert explained.
Besides, the law defines clear grounds and reasons to ban an assembly. For now, article 39 of the Constitution provides very vague definition, and courts often take advantage of this. "For example the meeting in Poltava in front of the regional administration was banned because there was a football match on the stadium nearby and football fans might not like it. There are research results by the Center of political and legal reforms, which show there were 250 court orders to ban peaceful assembly last year, and the majority of these bans were far-fetched. Those bans were not backed by the Constitutional norms. Clear definitions, stipulated by the new draft bill, allow avoiding such legal misunderstandings," he said. The law also introduces the procedure of moderation, meaning that after receiving a request the authorities must meet with activists to discuss the problem and may be solve it without protest actions. Such meetings and discussions require time.
That's why, according to the expert, the draft bill #2450 sets the term, during which public organizations must inform local authorities about the assembly - two days. Those who criticize the law demand to reduce the term to 12 hours. Now, the Constitution stipulates "to inform in advance", which gives the courts another loophole for banning. "For Europe, two days is the shortest term. The average term of notice in the EU is 4-5 days. Venice Commission stated that four days is sufficient. Moreover, the law introduces such notion as 'spontaneous assemble.' For example, you've learn about certain decision or resolution and you disagree. In this case, you can hold an assembly immediately, without notification in advance. All you need is to call or fax a police department and ask to provide public order during the meeting. The law obliges the police to provide public order. As for the term of notice, I would specify 48 hours, not two days in order to avoid free interpretation of calculation of these days," he says.
"Moreover, article 16 of the law #2450 stipulates that lack of notice or tardy notice cannot serve as a reason to ban the assembly," Latsyba explained and noted that, unfortunately, this progressive enough draft bill "is trapped within the political fight."
...and cons
At the same time, the draft bill has many enemies. Among its weak points the experts name Article 7 part 1, which sets common term of notice (no less than two working days); Article 9 section 4 part 2, which sets endless list of places, unavailable for holding assembly; Article 14 part 1, which obliges protesters to "inform immediately about the date, time, place and goal of assembly, as well as measures to be taken for holding spontaneous peaceful assembly" - such requirement conflicts with the very point of spontaneous assembly.
According to Oleksandr Paliy, a political scientist and former coordinator of the Public council on freedom of speech and information (2002-2005), the given draft bill will limit the rights of Ukrainians for open expression of their citizenship. "This draft bill complicates the process of organization of assemblies, creating difficulties for organizers. Local authorities can ban the assembly, and organizers will have no time to appeal the decision. Moreover, in case of violations offenders can now be arrested. Instead of making the organization of peaceful assembly automatic, the law bureaucratizes and creates additional complications for citizen activism. If there is no citizen activism, there will be no political or economic activism as well. If activism of citizens gets smothered in political sphere, the same may happen in economy. It's not good upon the society and middle class. Moreover, it hits the competitive ability of the society," he believes.
Besides, enemies of the law on peaceful assembly link the consideration of the document to the recent purchases by Interior Ministry, namely special equipment and machinery costing 60.90 million hryvnias. Among the 'new outfit' there are six water cannon vehicles, prison trucks, protective barriers and shields. 53 million hryvnias were spent for purchase of vehicles for special purposes, which must be delivered to the Interior Ministry departments by the end of October, when Ukraine will have parliamentary elections.
Plus one
However, this law must be adopted together with another draft bill - #10569 "On amendments to certain legislative acts of Ukraine regarding freedoms of peaceful assembly", director of the Research Center for civil society problems Vitaly Kulik believes. "In order to democratize our legislation we must introduce amendments to the Administrative Legal Proceedings Code regarding mitigation of responsibility for holding peaceful assembly. Without such amendments the implementation of the law #2450 can result into application of strong sanctions against organizers and participants of assemblies. That's why the committee decided to bring to force the draft bill #10560, developed on the basis of experts' suggestions," the political scientist told ForUm. He also noted that OSCE welcomed both draft bills and named them as models for all countries of Eastern Europe.
Final clauses of the draft bill #2450 on peaceful assembly stipulate that the law must come into force together with the law #10569 "On amendments to certain legislative acts of Ukraine regarding freedoms of peaceful assembly". The MPs failed to pass the law on amendments in its first reading, giving only 201votes in favor with 226 votes necessary.
Opposition had rooted objections to all draft bills submitted by the majority, and the majority itself did not have agreed position on this draft bill. As a result, the draft bill #10569, initiated by President's representative in the parliament Yuri Myroshnychenko, did not get necessary number of votes. At the same time, after the failure, representatives of the majority discussed the possibility of repeated voting on the draft bill.
This draft bill commutes punishment for violations of the rules of peaceful assembly, makes Ukrainian legislation more loyal to the protesters and expands their rights, limiting the rights of local authorities and courts at the same time. Its further fate will probably be determined after the consideration of the draft bill #2450, which may happen already after the elections, as Rada plans to hold only one plenary meeting before October 28.
The law as it is cannot be good or bad. The matter concerns whether its norms correspond or do not correspond with the world practice. As for its implementation, we will learn about it as soon as MPs decide to consider it again.
Tetyana Hryhorieva
Where this is coming from
Similar laws exist in all European countries and define how democratic this or that legislation is. In Ukraine, this law has popped up because of Europe. Western neighbors repeatedly declare that the forthcoming elections in Ukraine will be some kind of a test for maturity and readiness to democratize the legislation, inherited from the totalitarian state. Thus, according to experts, the will of the authorities to meet European norms results into necessity to copy down homework. Moreover, the implementation of similar law in Ukraine is a voluntarily taken obligation to the Council of Europe and one of the EU requirements regarding the liberalization of visa regime.
In the EU countries, the laws on assembly guarantee every citizen a right to protest peacefully, not infringing on rights of others. According to public organizations, Ukrainians must have the same right. This right is indeed stipulated by the Constitution de jure, but de facto is not fully observed. Thus, in 2011 the number of court bans on holding peaceful assembly was two times more than in 2010. In 2011, regional administrative courts approved 227 orders to ban meetings, and the lack of relevant law is one of the reasons.
Nevertheless, the draft bill developed by the Commission on democracy and supremacy of law under the President of Ukraine has become a stumbling rock for public organizations. The opinions of activists divided: some demanded to adopt the law to set clear rules of the game, others asked not even to start considering it, fearing the persecution.
Pros...
The process of working out the draft bill was accompanied by conflicts, project manager of the Ukrainian independent center for political research Maxim Latsyba says. "The draft bill was written in debates. The working process was intense. There were constant conflicts between representatives of the authorities and public organizations within the working group. Every norm required minimum half an hour of discussions. Moreover, not all representatives of public organizations were set for constructive work. Some activists set such idealistic requirements, which were hardly applicable amid Ukrainian reality. However, we managed to reduce the requirements of the Interior Ministry. Thus, the Ministry demanded to be informed about an assembly ten days before its holding. In the law #2450, we set only two days. There were many other positions we managed to win back," he says.
According to him, many human right activists back the document. "Among the supporters there are Evhen Zakharov (co-chairman of the Kharkiv human rights activist organization), Arkadiy Bushchenko (human rights activist, associate professor of criminal procedure depatment of Kharkiv law academy), Roman Romanov (International Renaissance Foundation), Volodymyr Yavorsky (Ukrainian Helsinki Human Rights Union). They all expressed in favor of the law," Latsyba said.
In his opinion, one of the pros of this draft bill is that it stipulates the procedure of realization of the right to exercise the freedom of peaceful assembly. It also says that courts cannot ban any place for holding an assembly, but only those stipulated by the law. The matter concerns high-risk locations, major pipelines, natural reserves, military sites, landing strips, power engineering facilities, nuclear facilities. The Constitution does not specify these places, thus courts could ban places in their discretion. "Moreover, the draft bill #2450 forbids the local authorities to set local restrictions on assembly. For example, the city council of Brovary once determined that assemblies can be held on the stadium only," the expert explained.
Besides, the law defines clear grounds and reasons to ban an assembly. For now, article 39 of the Constitution provides very vague definition, and courts often take advantage of this. "For example the meeting in Poltava in front of the regional administration was banned because there was a football match on the stadium nearby and football fans might not like it. There are research results by the Center of political and legal reforms, which show there were 250 court orders to ban peaceful assembly last year, and the majority of these bans were far-fetched. Those bans were not backed by the Constitutional norms. Clear definitions, stipulated by the new draft bill, allow avoiding such legal misunderstandings," he said. The law also introduces the procedure of moderation, meaning that after receiving a request the authorities must meet with activists to discuss the problem and may be solve it without protest actions. Such meetings and discussions require time.
That's why, according to the expert, the draft bill #2450 sets the term, during which public organizations must inform local authorities about the assembly - two days. Those who criticize the law demand to reduce the term to 12 hours. Now, the Constitution stipulates "to inform in advance", which gives the courts another loophole for banning. "For Europe, two days is the shortest term. The average term of notice in the EU is 4-5 days. Venice Commission stated that four days is sufficient. Moreover, the law introduces such notion as 'spontaneous assemble.' For example, you've learn about certain decision or resolution and you disagree. In this case, you can hold an assembly immediately, without notification in advance. All you need is to call or fax a police department and ask to provide public order during the meeting. The law obliges the police to provide public order. As for the term of notice, I would specify 48 hours, not two days in order to avoid free interpretation of calculation of these days," he says.
"Moreover, article 16 of the law #2450 stipulates that lack of notice or tardy notice cannot serve as a reason to ban the assembly," Latsyba explained and noted that, unfortunately, this progressive enough draft bill "is trapped within the political fight."
...and cons
At the same time, the draft bill has many enemies. Among its weak points the experts name Article 7 part 1, which sets common term of notice (no less than two working days); Article 9 section 4 part 2, which sets endless list of places, unavailable for holding assembly; Article 14 part 1, which obliges protesters to "inform immediately about the date, time, place and goal of assembly, as well as measures to be taken for holding spontaneous peaceful assembly" - such requirement conflicts with the very point of spontaneous assembly.
According to Oleksandr Paliy, a political scientist and former coordinator of the Public council on freedom of speech and information (2002-2005), the given draft bill will limit the rights of Ukrainians for open expression of their citizenship. "This draft bill complicates the process of organization of assemblies, creating difficulties for organizers. Local authorities can ban the assembly, and organizers will have no time to appeal the decision. Moreover, in case of violations offenders can now be arrested. Instead of making the organization of peaceful assembly automatic, the law bureaucratizes and creates additional complications for citizen activism. If there is no citizen activism, there will be no political or economic activism as well. If activism of citizens gets smothered in political sphere, the same may happen in economy. It's not good upon the society and middle class. Moreover, it hits the competitive ability of the society," he believes.
Besides, enemies of the law on peaceful assembly link the consideration of the document to the recent purchases by Interior Ministry, namely special equipment and machinery costing 60.90 million hryvnias. Among the 'new outfit' there are six water cannon vehicles, prison trucks, protective barriers and shields. 53 million hryvnias were spent for purchase of vehicles for special purposes, which must be delivered to the Interior Ministry departments by the end of October, when Ukraine will have parliamentary elections.
Plus one
However, this law must be adopted together with another draft bill - #10569 "On amendments to certain legislative acts of Ukraine regarding freedoms of peaceful assembly", director of the Research Center for civil society problems Vitaly Kulik believes. "In order to democratize our legislation we must introduce amendments to the Administrative Legal Proceedings Code regarding mitigation of responsibility for holding peaceful assembly. Without such amendments the implementation of the law #2450 can result into application of strong sanctions against organizers and participants of assemblies. That's why the committee decided to bring to force the draft bill #10560, developed on the basis of experts' suggestions," the political scientist told ForUm. He also noted that OSCE welcomed both draft bills and named them as models for all countries of Eastern Europe.
Final clauses of the draft bill #2450 on peaceful assembly stipulate that the law must come into force together with the law #10569 "On amendments to certain legislative acts of Ukraine regarding freedoms of peaceful assembly". The MPs failed to pass the law on amendments in its first reading, giving only 201votes in favor with 226 votes necessary.
Opposition had rooted objections to all draft bills submitted by the majority, and the majority itself did not have agreed position on this draft bill. As a result, the draft bill #10569, initiated by President's representative in the parliament Yuri Myroshnychenko, did not get necessary number of votes. At the same time, after the failure, representatives of the majority discussed the possibility of repeated voting on the draft bill.
This draft bill commutes punishment for violations of the rules of peaceful assembly, makes Ukrainian legislation more loyal to the protesters and expands their rights, limiting the rights of local authorities and courts at the same time. Its further fate will probably be determined after the consideration of the draft bill #2450, which may happen already after the elections, as Rada plans to hold only one plenary meeting before October 28.
The law as it is cannot be good or bad. The matter concerns whether its norms correspond or do not correspond with the world practice. As for its implementation, we will learn about it as soon as MPs decide to consider it again.
Tetyana Hryhorieva
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