CASE OF SVERDLOVA AND SHEVCHENKO v. UKRAINE

FIFTH SECTION

CASE OF SVERDLOVA AND SHEVCHENKO v. UKRAINE

(Application no. 73596/13)

JUDGMENT
 

STRASBOURG

23 January 2025

This judgment is final but it may be subject to editorial revision.

In the case of Sverdlova and Shevchenko v. Ukraine,

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

 Armen Harutyunyan, President,
 Andreas Zünd,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 73596/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 November 2013 by two Ukrainian nationals, Ms Oleksandra Igorivna Sverdlova (“the first applicant”) and Ms Olena Olegivna Shevchenko (“the second applicant” – together “the applicants”), who were born in 1989 and 1982 respectively, live in Kyiv and were represented by Ms Y. Zakrevska, lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by Ms Olga Davydchuk, the Acting Agent before the European Court of Human Rights at the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 19 December 2024,

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

SUBJECT MATTER OF THE CASE

1.  Further to a court decision the applicants had to change a venue of their planned event in support of LGBTI rights. They complained that this decision amounted to a violation their rights under Articles 10, 11, 13 and 14 of the Convention.

2.  On 25 March 2013 the Kyiv City State Administration (“the Administration”) adopted an agenda for the celebration of Kyiv Day, which was planned for 25 May 2013. Kyiv Day is an annual event which takes place in the city centre on the last Sunday of May. As part of the 2013 celebrations, various events had been planned in the central part of the city, namely on Maidan Nezalezhnosti, Khreshchatyk Street and Besarabska Square.

3.  On 10 April 2013 the second applicant informed the Administration that she intended to organise an “Equality March”, a public event promoting LGBTI rights, on 25 May 2013. The event was planned to take place at the intersection of Khreshchatyk Street and Bohdana Khmelnytskoho Street. The second applicant estimated that around 500 people would participate. On 17 April 2013 the Administration asked the second applicant to change the itinerary of the march.

4.  On 19 April 2013 the organisational committee of Kyiv Pride 2013 informed the Administration that it intended to organise an “Equality March” on 25 May 2013 on Velyka Vasylkivska Street, from Arena Mall to Leo Tolstoy Square.

5.  On 22 May 2013 the first applicant informed the Administration that she intended to organise an “Equality March” on 25 May 2013 from 11 a.m. to 2 p.m. in the central part of the city (from Arena Mall (Besarabska Square) to Leo Tolstoy Square), with an estimated number of 500 participants.

6.  Between 17 April and 18 May 2013 several other organisations informed the Administration that they intended to organise demonstrations on 25 May 2013 in the central part of the city.

7.  On 20 May 2013 the Administration asked the second applicant and the organisational committee of Kyiv Pride to change the locations of their planned events. They refused to do so. The Administration then informed the second applicant that it had applied to the court, requesting an order prohibiting all public events on 25 May 2013 in the “central part of the city”, including Velyka Vasylkivska Street, Bohdana Khmelnytskoho Street, and Leo Tolstoy Square.

8.  On 22 May 2013 the first applicant informed the Administration that on 25 May 2013 she was planning to hold the “Equality March” from 11 a.m. to 2 p.m. from Arena Mall to Leo Tolstoy metro station.

9.  On 23 May 2013 the Kyiv Administrative Court granted the Administration’s request and prohibited all public events in the central part of the city of Kyiv, “including Velyka Vasylkivska Street, Bohdana Khmelnytskoho Street, and Leo Tolstoy Square”. The court relied on Article 39 of the Constitution and Article 182 of the Code of Administrative Justice. The court noted that on 25 May 2013 the Administration had planned to hold several public events in the city centre as part of the celebrations dedicated to Kyiv Day. Several other organisations and individuals had informed the Administration that they intended to carry out demonstrations in the city centre on 25 May 2013, including Catholic and Orthodox religious organisations, a non-governmental organisation (NGO) of young communists, the organisational committee of Kyiv Pride 2013, and the all‑Ukrainian civil movement “Love against Homosexualism”. The court found that in such circumstances the Administration would be unable to ensure public order in the city centre on 25 May 2013, and as a result conflicts and clashes could occur between the participants in the different events. According to the applicants, the only organisation whose planned route overlapped with their own was the Association of Believers of the Ukrainian Orthodox Greek Catholic Church.

10.  On an unspecified date after 10 April 2013, two webpages posted instructions on how opponents of the marches could prevent them from taking place. Several organisations, including the NGO for which the first applicant worked, lodged a criminal complaint seeking the institution of an investigation into the information contained on the webpages in question. The outcome of that complaint remains unknown.

11.  The Equality March took place on 25 May 2013, following a different itinerary from the one which had originally been planned. The route had been changed by the organisers on 24 May 2013 to ensure the safety of the participants: the march moved from the city centre along Prospect Peremohy in the direction of Dovzhenko Film Studios. Only the participants who had registered on a dedicated website had been informed of the change of itinerary and were able to attend the march. Those who had not been registered on the website were not informed of the change and did not attend. About sixty people participated in the march, rather than the 600 originally planned. The applicants did not participate in the march. The first applicant had not been informed of the change of itinerary and the second applicant was worried for her safety during the march.

12.  The second applicant did not appeal against the decision of 23 May 2013. An appeal by the first applicant was dismissed by the Kyiv Administrative Court of Appeal on 24 July 2013. On 26 March 2014 the Higher Administrative Court allowed a cassation appeal by the first applicant and quashed the decisions of the lower courts, stating that they had failed to establish that various public events in the city centre could indeed have led to a threat to public safety and order. In 2020 the applicants informed the Court about the decision of 26 March 2014.

13.  The applicants asserted, providing copies of material taken from public sources, that both before and after 25 May 2013, a number of members of parliament had publicly called for a ban on the Equality March and that no action had been taken in respect of the calls for violence against the participants in the march.

THE COURT’S ASSESSMENT

14.  The Government submitted that the applicants had not informed the Court of the decision of the Higher Administrative Court and, as such, they had abused their right of application to the Court.

15.  The applicants submitted that in 2020 they had informed the Court of the decision of the Higher Administrative Court. They further stated that the decision of that court had been given ten months after the date of their event, and for that reason it could not be considered an effective remedy and, as such, it had not been information which was essential for the examination of their application by the Court.

16.  The Court observes that the applicants informed the Court of the decision of the Higher Administrative Court in 2020 and dismisses the Government’s objections in this respect.

17.  The applicants complained, invoking Articles 10 and 11 of the Convention, that the event which they intended to organise could not take place as planned. The Court, which is the master of the characterisation to be given in law to the facts of the case, considers that the complaint in respect of which the applicants relied on Articles 10 and 11 falls to be examined solely under Article 11 of the Convention. In particular, in the Court’s opinion, in the circumstances of the present case, Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015). The Court will thus examine this complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-65, 7 February 2017).

18.   The Government submitted that as the second applicant had not appealed against the decision of 23 May 2013, her complaints were inadmissible for non-exhaustion of domestic remedies.

19.  The applicants argued that the second applicant had not appealed because she had known that her appeal would not be examined before 25 May 2013.

20.  The Court notes that the court of appeal examined the first applicant’s appeal against the decision of 23 May 2013 only after 25 May 2013, namely in July 2013 (see paragraph 12 above). There is no reason to believe that had the second applicant appealed against the decision of 23 May 2013 the courts would have examined her appeal before 25 May 2013. In particular, there is no evidence that the domestic legislation required the courts to examine appeals against a decision prohibiting public events before those events were planned to take place. The Government’s objection must therefore be dismissed.

21.  The Government further submitted that the applicants had still been able to carry out their event, albeit in a different location. The applicants’ assertion that fewer people had been able to attend the event as a result of the change of itinerary was not supported by any evidence. Both applicants had notified the Administration that they planned to hold the Equality March, which meant that they were organisers of the event and as such, the first applicant’s allegation that she did not know about the change of the venue was not convincing. As regards the second applicant, she had not adduced any evidence that her concerns for her safety were well founded. Against that background, the applicants’ complaints under Articles 10 and 11 were manifestly ill-founded.

22.  The applicants argued that the decisions of the first-instance court and of the court of appeal had not been sufficiently reasoned. In particular, they noted that the itinerary of other organisations which had planned their events in the city centre on 25 May 2013 did not overlap with the itinerary of the applicants’ march. The only organisation whose route had overlapped was the Association of Believers of the Ukrainian Orthodox Greek Catholic Church. They stated that the first applicant was not an organiser of the march and could not have known that the location had been changed.

23.  The Court considers that the Government’s objections are closely linked to the merits of the case. It therefore joins them to the merits.

24.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

25.  The Government did not submit any observations as to the merits. The applicants maintained their complaints.

26.  The Court reiterates that the right to freedom of assembly is not absolute; it can be subject to restrictions in accordance with paragraph 2 of Article 11. An interference with the exercise of that right does not need to amount to an outright ban, legal or de facto, but can consist of various other measures taken by the authorities (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 100, ECHR 2015).

27.  In the present case, the first-instance court banned the applicants’ event and all public events in general at the intended location (see paragraph 9 above). The rally nevertheless took place, although without the applicants being present and in a different location.

28.  In such circumstances, the rally cannot be considered to have been unlawfully organised and neither the applicants nor the other participants risked any sanctions for organising or attending it. However, as a result of the change of venue, the rally could not be provided with a police escort or from other forms of police protection against possible opponents.

29.  In that context, the Court notes the applicant’s assertions, corroborated by evidence, that various individuals and groups had been opposed to the rally and had called for violence against its participants (see paragraphs 10 and 13 above). The Court thus accepts that the ban on demonstrations in the city centre, resulting in the organisers changing the venue, constituted an interference with the applicants’ rights under Article 11 of the Convention.

30.  The Court notes that it examined in detail the legislative provisions to which the first instance court referred in its decision of 23 May 2013 (see Cheremskyy v. Ukraine, no. 20981/13, §§ 29-40, 7 December 2023) and found that they did not meet the Convention requirements of quality of the law. In particular, Article 39 of the Constitution and Article 182 of the Code of Administrative Justice, taken separately or cumulatively, do not constitute a sufficient legal ground for imposing restrictions on the right to freedom of assembly.

31.  The Court sees no reason to depart from its findings in the present case. Accordingly, there has been a violation of Article 11 of the Convention.

32.  The applicants complained under Article 14 in conjunction with Articles 10 and 11 of the Convention that their event had been de facto prohibited by the authorities because it concerned LGBTI rights. The applicants asserted, referring to various material from open sources, that between 5 June 2012 and 22 October 2013, twenty-one public events organised by various organisations and individuals had taken place, expressing views in opposition to those which the applicants intended to express during their rally, and that none of those twenty-one events had been prohibited by the authorities. The applicants also pointed out that many members of Parliament had publicly spoken out against the rally and LGBTI rights in general, which proved that the authorities had specifically targeted persons belonging to or supporting the LGBTI community, including the applicants.

33.  The Government submitted that as there had been no violation of Articles 10 and 11 of the Convention, Article 14 was inapplicable to the present case.

34.  The applicants maintained their complaints.

35.  The Court observes in the present case that the first instance court had prohibited all public events in the city centre on 25 May 2013 – those planned in support of the LGBTI community, and those against it. The interference with the applicants’ rights was thus ordered by a court and not by the municipal authorities (as, for example, in Bączkowski and Others v. Poland, no. 1543/06, § 100, 3 May 2007). The applicants did not submit any evidence that the court dealing with their case was prejudiced against the LGBTI community and the Court cannot speculate on the existence of motives other than those expressly articulated in the court decision. It therefore has no reason to believe that this decision was motivated by bias.

36.  The Court concludes that this part of the application is ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.

37.  The applicants complained under Article 13 that they had been unable to have their appeals against the decision of 23 May 2013 examined before the date on which their event had been scheduled.

38.  The Government submitted that there had been no violation of that Article given that the decision of 23 May 2013 had been delivered before the scheduled date of the events and one of the applicants appealed against it. The applicants maintained their complaints.

39.  The Court is of the view that it is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act. The notion of effective remedy meant that the applicants should have been able to have their appeals against the decision of 23 May 2013 examined by the courts before the date of the planned events (see Bączkowski and Others v. Poland, no. 1543/06, §§ 83-84, 3 May 2007). The Court find no reason to believe that the courts were obliged by any legally binding time frame to examine the applicants’ appeals before the planned date of the rally. It is therefore not persuaded that the remedies available to the applicants in the present case could have provided adequate redress in respect of the alleged violations of the Convention.

40.  Therefore, the Court finds that the applicants have been denied an effective domestic remedy in respect of their complaint concerning a breach of their freedom of assembly. Consequently, the Court dismisses the Government’s preliminary objection and concludes that there has been a violation of Article 13 in conjunction with Article 11 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

41.  The applicants claimed 20,000 euros (EUR) each in respect of non-pecuniary damage. The first applicant claimed EUR 4,800 and the second applicant claimed EUR 2,400 in respect of costs and expenses incurred before the Court.

42.  The Government contested those claims. They added that Ms Zakrevska had started representing the applicants in June 2021. Before that time, they had been represented by Ms Naumenko.

43.  The Court awards each applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

44.  The Court further observes that some of the letters concerning the applicants’ case were sent to the Court by Ms Naumenko. However, it was Ms Zakrevska who was referred to in the application form as the applicants’ representative. She signed the application form in that capacity, and she also signed the observations submitted on the applicants’ behalf. Therefore, she must be considered to be their representative before the Court.

45.  Having regard to the documents in its possession, the Court considers it reasonable to award each applicant EUR 2,400 in respect of costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 23 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Armen Harutyunyan
 Deputy Registrar President