Information Note on the Court’s case-law 230
June 2019
Chernega and Others v. Ukraine - 74768/10
Judgment 18.6.2019 [Section IV]
Article 11
Article 11-1
Freedom of peaceful assembly
Courts’ failure to take into account confusion engendered by involvement of private security agents when convicting protesters of disobeying police orders: violation
State’s failure to ensure peaceful nature of protests through lack of clear rules on division of responsibility between police and private security guards: violation
Article 3
Degrading treatment
Inhuman treatment
Injuries sustained by protesters as a result of action to remove them from construction site without use of riot-control equipment: no violation
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Lack of procedure in administrative offence cases for detainees to request to be brought to hearings: violation
Facts – The applicants had participated in obstructive protest activities against the construction of a road in an urban park. Protesters had attempted to physically stop the tree-felling and other construction works from proceeding. In the course of those events the protesters had clashed with security guards, who had tried to push them away from the construction site. Several of the protesters, including the applicants, were arrested. Some of them were convicted of an administrative offence of disobeying police orders and given custodial sentences.
Law
(a) Admissibility – The main contractor had signed an agreement for the provision of security guard services with the local authority-owned company. The coercive authority of the security guards had been based on a licence of the type available to any commercial company providing security guard services. In that respect, such a licence was indistinguishable from that of private security guards. Even though the company was wholly owned by the municipality, it was distinct from municipal institutions in that, unlike the latter, it conducted for-profit activities largely subject to private-law rules. That was further illustrated by the fact that the company and its staff had been engaged to guard the construction site by a private entity under a private-law contract. Those considerations, however, did not suffice to absolve the State from responsibility under the Convention for the actions of the security guards.
Police officers had been present at a number of key events involving the security staff and appeared to have remained passive in the face of most of their actions aimed at counteracting the protest. That factor alone could, in some contexts, be sufficient for attribution of responsibility to the respondent State. Having considered its case-law on that subject, the Court found that the actions of the security guards could be considered attributable to the respondent State.
(b) Merits
Article 3 (substantive aspect): There was plentiful video and photographic material from the scene of the events available. However, no specific evidence had emerged linking any particular person to the injuries inflicted on the applicants. There was no evidence that the police or other individuals whose actions could be attributed to the State had ever deployed tear gas, truncheons or other heavy riot-control equipment which, coupled with the nature of the applicants’ injuries, would have allowed for the conclusion to be drawn that they had been inflicted by such equipment. The applicants’ own evidence showed that, on the days when they had been injured, the protesters had actively tried to interfere with operating construction equipment and the counter-protest action had consisted mainly in efforts to move them out of the works area, which in itself could not qualify as ill-treatment. The Court was unable to establish, to the required standard of proof, that the applicants had suffered ill treatment reaching the threshold of Article 3 and requiring the authorities to protect them from it.
Conclusion: no violation as regards the seventh and ninth applicants (six votes to one).
Article 3 (procedural aspect): The authorities had consistently withheld information about all their decisions, or at least considerably delayed the provision of such information to the applicants, contrary to the explicit requirement of the domestic law. In such circumstances, the decision not to institute criminal proceedings had never been reviewed by the domestic courts.
Conclusion: violation as regards the seventh and ninth applicants (unanimously).
Article 6 § 1: The Court of Appeal had engaged in a review of both facts and law and had considered the sentencing of two of the applicants. It was essential for the fairness of the proceedings that the applicants be present at the appeal hearings, unless they had validly waived that right. The mere fact that the applicants’ lawyer had not requested that their presence be ensured was not decisive in that respect. On the contrary, it was relevant that, firstly, the applicants had not been informed about the hearing before the court of appeal, as required by domestic law; and, secondly, domestic law did not appear to provide any procedure in administrative offence cases for the applicants, who were detained, to ask to be brought to the hearings of the Court of Appeal. In such circumstances, it could not be established in an unequivocal manner that the applicants had waived their right to be present nor could it be said that requisite safeguards had been in place to ensure any waiver was effective.
Conclusion: violation as regards the first and second applicants (unanimously).
Article 11: The interference had a basis in domestic law, namely Article 185 of the Code of Administrative Offences, which penalised failure to obey a lawful order of a police officer, and that interference had pursued the legitimate aim of protecting the safety and health of protesters and workers.
Regarding the lawfulness of the interference, the Court dismissed the applicants’ argument that any action aimed at counteracting their protest was unlawful because Article 39 of the Constitution required the authorities to obtain a court order authorising such dispersal.
The constitutional provision on which that argument was based appeared to provide for a regulatory scheme under which the procedure of judicial restrictions of assemblies was linked with a procedure for their advance notification, which allowed the authorities to apply to a court with a request to impose certain restrictions on the planned assembly. The Code of Administrative Justice required the court to reject an action for a judicial order restricting an assembly if it had been lodged belatedly, that was, on the planned date of the event or thereafter. That latter provision had been subject to the Court’s examination in Chumak v Ukraine, where the Court, for precisely that reason, had expressed doubt as to whether the judicial procedure in question could properly be used to disband an ongoing assembly. The Court was not convinced that a purely obstructive protest action which, by its very nature, would normally be unlawful as infringing on the rights and legitimate interests of third parties, could, in principle and as a practical matter, be subjected to prior notification requirements. Such a requirement would deprive many such actions of much effect and would amount to a requirement to declare the intention to break the law. In the circumstances of the applicants’ case that meant that, as there had been no notification, no judicial procedure for banning the protest could be launched.
Regarding the proportionality of the interference, the order from the police appeared to have been issued at ordinary voice volume without the use of amplifying equipment, despite the noisy environment. Moreover, the preceding initial request to disperse had been issued by a person without police insignia, apparently a civilian, and failure to comply with it had resulted in the protesters’ containment by security guards. There were reasons to doubt that the order, when repeated by the police, had been immediately audible and clear to all protesters. In any event, that repetition came only when the protesters had already been restricted in their movement. It could not be said that the authorities had been overwhelmed or that operational circumstances had prevented them from having greater clarity in communication: after all, by the time the police had issued its order, the protesters had been fully contained in a small area by security guards.
Under such circumstances the Court could not rule out that there was some degree of confusion on the part of the protesters, including the applicants, with regard to the authority which had issued the order to leave the area and the practical ways of complying with it. That confusion appeared to have stemmed in part from the lack of clarity in the distribution of authority between the security guards and the police. That aspect of the case was of particular importance in the light of the concern expressed internationally about the appropriateness of the use of private security agents to disperse individuals exercising the right to freedom of peaceful assembly and the need to resort to police, rather than private security guard, intervention in case of doubt.
Nevertheless, the above considerations were not sufficient, in and of themselves, for the Court to find that the domestic courts, which had had the benefit of direct observation of all the evidence in the case, including examination of eyewitnesses, had erred in their factual finding that the applicants had indeed disobeyed the police order to leave. After all, the situation on the day had to be seen not in isolation but in the broader context of the events: by that date, it was public knowledge that a construction project was unfolding in the area where the applicants were present and the applicants, who by their own admission had participated in previous protests, could not but have been aware that the police were likely to be deployed to stop them from interfering in the tree-felling and construction work.
Given the importance of the right to freedom of peaceful assembly in a democratic society, it was incumbent on the domestic courts to take into account in their reasoning the above-mentioned possible confusion on the part of the applicants as to the source of that order and precisely how to comply with it. The courts, however, had failed to do so. They had also failed to explain the severity of the sentence imposed on the first and second applicants, especially in comparison with the sentences imposed on the other protesters and any particularity in their conduct which would have justified such treatment. Despite the fact that their sentences had been mitigated on appeal, the first and second applicants still served nine-day prison sentences. The Court’s findings of procedural unfairness in the proceedings against the first and second applicants served to compound the lack of proportionality.
Conclusion: violation as regards the first and second applicants (unanimously).
As far as the third to fifth applicants were concerned, the case-file material demonstrated that they had acted in a deliberately obstructive way in an area of danger. Moreover, the authorities had remained, for a time, tolerant of even such dangerous protest activity, and the applicants had been arrested and convicted not for their protest action as such but for their failure to obey the order to leave. A certain degree of reaction could be considered appropriate to address such conduct. Their removal from the construction site and conviction for the administrative offence was, in the light of the nature of the sanctions imposed, proportionate to the legitimate aim pursued.
Conclusion: no violation as regards the third, fourth and fifth applicants (six votes to one).
The sixth applicant had been convicted for refusal to obey an order from the police to leave the site and for resisting the efforts of the police to remove him. There was no indication that the order had been unreasonable, unclear or that anything had prevented the applicant from complying. Had the applicant complied with the order, nothing would have prevented him from continuing his protest outside of the construction area. Furthermore, the applicant had clearly expressed his intention to return to the site and continue his obstructive activity. Notably, after clearly indicating his intention to reoffend to the police, he failed to renounce those statements at the trial and to present any assurances in that respect. In such circumstances the sanction imposed on the applicant in the form of a ten-day custodial sentence could not be described as grossly disproportionate. The domestic courts could not be said to have overstepped their margin of appreciation.
Conclusion: no violation as regards the sixth applicant (six votes to one).
The seventh and ninth applicants alleged that they had been injured in different protests by persons who had attempted to counteract their protest. It did not appear that domestic rules had authorised private security guards to undertake crowd control or dispersal functions in public areas. It appeared, moreover, that even in well-defined guarded areas their coercive functions had been to be in principle limited to denial of unauthorised access to them and any coercion beyond that could be resorted to only in exigent circumstances, where urgency so required. Implicit in that appears to have been the requirement that in any non-urgent situations security staff had to call on the help of the police, which appeared to be in line with internationally endorsed best practices for the private security industry.
The reality was different, however. The evidence showed that even though the site had been marked off with tape, the protesters de facto had been present there prior to the marking-off and continued to be present in it. The access to the area was not physically barred to any great extent, beyond the warning tape. In such circumstances, the security staff’s involvement had consisted in attempts to remove the protesters from the path of the construction machinery and from the construction site rather than deny them entry to it. That situation was fraught with tension and bound to create greater friction than a simple denial of access to a well defined and guarded area. In other words, the security guards had acted on the basis of a framework focused on operations within limited and well defined perimeters with restricted access, which appeared to have been inapplicable or, at least, impractical in the context of the events as they actually unfolded.
It was true that the domestic framework appeared also to have allowed the security guards to take, more broadly, any appropriate action to prevent offences or control the damage in cases of emergency. However, in the present case there was no indication that any such urgency existed. In fact, the situation was far from unexpected since by the time of the events in question the stand-off had been ongoing for seven and eleven days respectively and, in fact, the main contractor, which had appointed the security personnel, had informed the police of the likelihood of clashes with the protesters ahead of time. The police had been deployed in full force, as envisaged by the law-enforcement plan, on the days the clashes in which the applicants had been injured had taken place, but had not made any intervention worth of note and capable to prevent or control effectively the clashes.
While in certain circumstances a degree of restraint on the part of the police in policing assemblies could be appropriate and even required by the Convention, no specific operational reasons had been given for the policy of, effectively, non-intervention in this. Moreover, as shown above, that policy had left the security guards to deal with the protesters in circumstances that were bound to generate increased tension and, in the absence of clear legal powers, to engage in coercive actions on their own.
The above-mentioned lack of clarity in the security personnel’s status and powers was compounded by the credible allegation that certain unidentified individuals had been present on the site and had been wearing security guard insignia without being security guards and having appropriate authorisation to do so. Such a situation was not in line with best practices endorsed by the security industry and raised an issue under domestic rules as well. However, there appeared to have been no concerted effort to investigate that worrying aspect of the situation. The authorities’ failure to take any demonstrable steps to investigate that alleged infiltration of the scene of protests by such unidentified and unauthorised persons formed part of the respondent State’s failure to take reasonable steps to ensure the peaceful nature of the protests.
The Court concluded that by failing (i) to regulate in an adequate fashion the use of force by security personnel, (ii) to properly organise the division of responsibility in maintaining order between the private security personnel and the police, which would also have allowed for the identification of the security personnel deployed, (iii) to enforce the rules concerning adequate identification of persons authorised to use force, and (iv) to explain the decision of the police not to intervene in any meaningful fashion capable of preventing or controlling effectively the clashes, the respondent State had failed to comply with its obligation to ensure the peaceful nature of the protests.
Conclusion: violation as regards the seventh and ninth applicants (unanimously).
Article 41: EUR 6,000 to the first, second, seventh and ninth applicants each in respect of non-pecuniary damage.
(See also Koval and Others v. Ukraine, 22429/05, 15 November 2012; Basenko v. Ukraine, 24213/08, 26 November 2015; Vyerentsov v. Ukraine, 20372/11, 11 April 2013, Information Note 162; Shmushkovych v. Ukraine, 3276/10, 14 November 2013; and Chumak v. Ukraine, 44529/09, 6 March 2018)
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This summary by the Registry does not bind the Court.
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