CHALLENGES OF ADOPTING SPECIAL LAW ON PEACEFUL ASSEMBLIES
The law draft №3587 «On guarantees of freedom of peaceful assemblies» was submitted on 07.12.2015 by MP`s Grigoriy Nemirya, Irina Lutsenko, Mustafa Djemilyov, Irina Suslova, Olexander Chernenko, Leonid Yemets`, Georgiy Logvinskiy, Yuriy Miroshnichenko, Maria Ionova, Olexander Feldman, Igor Popov.
The link on law draft №3587 – http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=57310
The law draft №3587 imposes strict obligations on citizens who wants to perform any peaceful assembly.
1) According to the p.1 art.7 of the law draft №3587 the organizators of the peaceful assembly have a deadline to inform local authorities on its performing – 48 hours. For this time any of rally can be forbidden by court. Taking into account Ukrainian judicial system we may predict it will lead to unfair injunctions. Furthermore the law draft has very unclear grounds for injunctions.
In Ukraine there is 2001 Constitutional court decision which says that citizens should inform authorities in “reasonable” term. On practice even 2 hours before rally was acknowleged as “reasonable”.
The link on 2001 Constitutional court decision – http://zakon2.rada.gov.ua/laws/show/v004p710-01
2) According to art.18 of the law draft №3587 The Police and National guards can evaluate “if the assembly lost its peaceful nature” – there is no certain criterias for such evaluations. Than they have a right to disperse the rally. So one provocateur is enough to stop the rally and arrest anybody who will argue.
3) According to the art.1 of the law draft №3587 the spontaneous peaceful assembly (without informing state authorities) should match 2 criterias – it is an «immediate reaction on some event or information» and «there was no possibility to inform authorities on its performance». But on practice Police in place will evaluate on their own opinion whether or not organizators had an «opportunity to inform authorities». Definetely it`s a space for abuses from Police – because if the asseblby will be considered as non-spontaneous participants of the rally may be arrested because of «Disobedience of legal police demands» (art.185 of Code of administrative infractions).
At the moment there is no any responsibility for the persons who make a peaceful assembly even without sending a notice to the authorities. According to 2013 European Court of Human Rights decision “Verentsov vs.Ukraine” was decided that there can`t be responsibility according to art.185-1 Code of administrative infractions (the article named “Violations of the established order of performing peaceful assemblies”) because in Ukraine we have no such “established order”. So there is no responsibility even if protesters didn`t inform local authorities on helding rally – “spontaneous” rally is fully legal in Ukraine.
The link on “Verentsov vs.Ukraine” ECHR decision – http://zakon2.rada.gov.ua/laws/show/974_945
4) According to the art.39 of the Constitution of Ukraine the peaceful assembly can be forbidden by court because of conserns of national security and public order. The law draft specifies the grounds for it and in fact makes it wider. For example the assembly can be forbidden by court if «assembly aims to violation of fundamental human rights and freedoms» – this is very uncertain reason and has no specific criterias to evaluate the fact of existed intentions of assembly organizators.
5) According to current art.182 Code of administrative proceedings of Ukraine if the lawsuit from state authorities about imposing restrictions on performing peaceful assemblies should not be considered by court if court received it in the day of performing rally. According the p.2 of Transitional Provisions of the law draft the court receives the right to issue injunction in any time during or after performing of peaceful assemblies.
So the law draft №3587 narrows the existing in Ukraine freedom of assembly. For example – if such law have acted in 2013 Maydan will be dispersed on fully “legal grounds” from the very beginning.