FIFTH SECTION
Application no. 20372/11
Oleksiy Oleksandrovych VYERENTSOV
against Ukraine
lodged on 21 March 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Oleksiy Oleksandrovych Vyerentsov, is a Ukrainian national who was born in 1973 and lives in Lviv. He was represented before the Court by Mr V.M. Yavorskyy, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 August 2010 the applicant notified the Lviv City Mayor of behalf of a local human rights NGO “Vartovi zakonu” of their intention to hold a picket every Tuesday from 10.30 a.m. to 1 p.m. near the building of the Lviv Regional Prosecutor’s Office from 17 August 2010 to 1 January 2011. The aim of the picket was to draw attention to the issue of corruption in the prosecution service. The number of possible participants was declared as up to fifty persons.
From 5 October 2010 the Executive Committee of the Lviv City Council sought through the courts to ban the above picket.
On 12 October 2010 the applicant organised, as he had announced on 17 August 2010, a peaceful assembly near the Lviv Regional Prosecutor’s Office between 11.30 a.m. and 12.40 a.m. About twenty-five persons took part in the picket. They were standing on the pavement in front of the building of the Prosecutor’s Office when the police told them that they should keep a distance of five metres away from the building. That would have forced the picketers to stand on the road and impede the flow of traffic. After some discussion with the police, the picketers crossed the road and stood on a lawn on the opposite side of it. The police, however, told the picketers that they could not stand on the lawn and they should move away, which meant standing on the road again and impeding the flow of traffic, causing temporary traffic blockages.
Immediately afterwards, the applicant was called aside by two police officers. They grabbed his arms and took him in the direction of the nearby police station. Some of the picketers requested the officers to show them their identification and started filming the incident; the officers then let the applicant go.
On 13 October 2010 the Lviv Regional Administrative Court granted a request by the Executive Committee of the Lviv City Council to prohibit the holding of the pre-announced pickets by the applicant’s NGO as from 19 October 2010. The decision was appealed against.
On the same day the applicant was invited to the police station under the pretext that he had failed to appear at a court hearing to which he had been summoned. Upon arrival at the Galytskyy District Police Station at about 5 p.m., the police accused the applicant of having committed an administrative offence on 12 October during the picket.
Between 10 p.m. and 11 p.m. the police drew up a report on the administrative offence. The applicant telephoned his lawyer, but the latter was not allowed onto the premises of the police station.
At 11 p.m. the applicant was placed in a cell, where he remained without food until the 3 p.m. on the next day, 14 October 2010.
On 14 October 2010, before taking him to the court, the police drew up a new report on the administrative offence.
At 3 p.m. the applicant was taken to the Galytskyy District Court. During the hearing the applicant had no opportunity to study the case-file materials, to obtain the representation of a lawyer or to summon or question any witnesses. The court noted that the picket had been held without permission and found the applicant guilty of committing the administrative offences of malicious disobedience of a lawful order by the police, and violation of the procedure for organising and holding an assembly. It sentenced the applicant to three days of administrative detention from 6 p.m. on 14 October 2010.
At around 6 p.m. on 17 October 2010 the applicant was released.
On 18 October 2010 the applicant appealed against the court’s decision of 14 October 2010.
On 27 October 2010 the Lviv Regional Court of Appeal rejected the applicant’s appeal.
B. Relevant domestic law and practice
1. Constitution of Ukraine
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 in the adoption of new laws or in the amendment of laws that are in force.”
Article 39
“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, after prior notification of the executive and local government bodies.
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 adopted prior to this Constitution entering into force apply in so far as they do not contradict the Constitution of Ukraine.”
2. Code of Administrative Offences
Article 185
Malicious disobedience of a lawful order or demand by a police officer, a member of a public body for the protection of public order or the State border, or a military officer
“Malicious disobedience of a lawful order or demand by a police officer who is carrying out his official duties ... shall be punishable by a fine of from eight to fifteen times the minimum monthly income, or by correctional labour of from one to two months with a deduction of 20% of earnings; or, in the event that in the particular circumstances of the case and with regard to the offender’s character these measures are found to be insufficient, by administrative detention of up to fifteen days.”
Article 185-1
Violation of the procedure for the organisation and holding of assemblies, rallies, street processions and demonstrations
“A violation of the procedure for the organisation and holding of assemblies, rallies, street processions and demonstrations shall be punishable by a reprimand or by a fine of from ten to twenty-five times the minimum monthly income.
The same actions committed within a year of the application of administrative penalties or by the organiser of the assembly, rally, street procession or demonstration shall be punishable by a fine of from twenty to one hundred times the minimum monthly income, or by correctional labour of from one to two months with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.”
Article 185-2
Creating conditions for the organisation and holding of assemblies, rallies, street processions and demonstrations in violation of the established procedure
“Provision by officials of premises, transport, or technical means, or the creating of other conditions for the organisation and holding of assemblies, rallies, street processions and demonstrations in violation of the established procedure shall be punishable by a fine of from twenty to one hundred times the minimum monthly income.”
Paragraph 1 of Article 268 of the Code provides for, inter alia, the following rights in respect of a person who is charged with administrative liability:
“A person charged with administrative liability shall be entitled to study the case materials, to give explanations, to present evidence, to make requests, and to have the assistance of a lawyer ... during the examination of the case ...”
The right to a lawyer in administrative-offence proceedings is further guaranteed by Article 271 of the Code.
3. The Act “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigative authorities, prosecutors or courts” of 1 December 1994 (with amendments)
Section 1
“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:
(1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) or other procedural actions that interfere with citizens’ rights;
(2) unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, unlawful imposition of a fine;
(3) the unlawful conduct of search and seizure activities provided for by the Laws of Ukraine “on Search and Seizure Activities”, “on the Organisational Legal Basis for Combating Organised Crime”, and other legal acts.
In the cases indicated in part 1 of this section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, pre-trial investigative authorities, prosecutors or courts.”
Section 2
“The right to compensation for damage in the amount, and in accordance with the procedure, established by this Law shall arise in cases of:
(1) acquittal by a court;
(1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, the unlawful conduct of a search or seizure of property during the investigation and trial, unlawful removal from work (office), other procedural actions that interfere with citizens’ rights, or the unlawful conduct of search and seizure activities;
(2) termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;
(3) refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section;
(4) termination of proceedings in respect of an administrative offence.
The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.”
4. The Decision of the Constitutional Court of Ukraine of 19 April 2001 in a case regarding timely notification of peaceful assemblies
“1. ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine with a request for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding the timely notification of the authorities or local authorities of proposed meetings, rallies, marches and demonstrations.
In this interpretation of constitutional law 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, and demonstrations upon prior notification of the executive authorities or local government bodies. However, it is stressed that the current legislation of Ukraine does not give a specific deadline for informing the executive authorities or local governments of such proposed assemblies. ...
... the Constitutional Court decides:
1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification of the executive authorities or local authorities of proposed meetings, rallies, marches and demonstrations shall be understood, according to the above-mentioned interpretation, to mean that the organisers of such peaceful assemblies should inform the above-mentioned authorities about the holding of these assemblies in advance, that is, with reasonable notice prior to the date they are to be held. These provisions should not limit the rights of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of those rights while providing the opportunity to the relevant executive or local authorities to take measures to ensure public order and to protect the rights and freedoms of others in order that their citizens may freely hold meetings, rallies, marches and demonstrations.
Definitions of specific terms concerning timely notification, depending on the particular forms of peaceful assembly, the number of participants, their venue and time, are covered by legislative regulation ...”
5. The Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the organisation and holding of meetings, rallies, street marches and demonstrations in the USSR
The Decree lays down the procedure for seeking and granting permission for the organisation and holding of meetings, rallies, street marches and demonstrations. It has not been amended since its adoption and is applicable by virtue of the Transitional Provisions of the Constitution quoted above.
6. Information letter of the Ministry of Justice of Ukraine of 26 November 2009
Upon the request of a Ukrainian MP, the Ministry of Justice sent an information letter to an NGO in Kyiv. Its text can be found as a source of information on the official website of the Ukrainian Parliament.
The relevant parts of the letter read as follows:
“... It should be noted that the current legislation on the organisation and holding of peaceful demonstrations is not perfect. For example, today the organisation and conduct of peaceful demonstrations is regulated by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 N 9306 on the organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (hereinafter – “the Decree”) which, in accordance with paragraph 1 of Chapter XV - Transitional Provisions of the Constitution of Ukraine − is effective in so far as it does not contradict the Constitution of Ukraine. The above Decree defined, in particular, which persons were authorised to contact the executive bodies of village, settlement and town councils to notify them of proposed peaceful demonstrations; requirements for the content of such notifications; requirements for the executive bodies of village, settlement and town councils in ensuring conditions for the holding of a peaceful demonstration; etc.
Thus, the requirements as to the organisation and holding of peaceful demonstrations, the length of the period of notice to be given to executive or local government bodies, the documents to be attached to the application for holding the event, etc. are currently not regulated by law ...
... Given the inadequacy of the current state of the legal regulation of the procedure for the organisation and conduct of peaceful demonstrations, which results in problems in the application of law, since the legal norms are not formulated with sufficient clarity and are subject to ambiguous interpretation by those wishing to have recourse to them (including bodies of local government), only legislative regulation of the procedure for organising and holding such demonstrations will eliminate the negative practices that have arisen.
Because of the need for legislative support for the practical application of the aforesaid right defined by Article 39 of the Constitution of Ukraine - to assemble peacefully without arms and to hold meetings, rallies, demonstrations, pickets and marches - the Ministry of Justice has drafted the Law of Ukraine on the organisation and conduct of peaceful demonstrations, which was submitted by the Government of Ukraine to the Verkhovna Rada of Ukraine (registration N 2450 from 6 May 2008) and was approved by the Parliament on its first reading on 3 June 2009 ...”
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that there were no grounds for his arrest on 13 October 2010. Furthermore, referring to Article 5 § 1 (c), he complains that his arrest was conducted in violation of the domestic law and that he was taken to the police station under a false pretext. Under Article 5 § 1 (a) he complains that the domestic courts did not take into account the time of his actual arrest and therefore he spent an extra 26 hours in detention. He further maintains that, contrary to Article 5 § 5, the domestic legislation does not provide for compensation for unlawful detention in cases like his.
Referring to Article 6 § 1, the applicant complains that the court decisions in his case were ill-founded and the courts failed to respond to his pertinent arguments. Furthermore, he had no time to prepare his defence, to examine witnesses or to obtain the assistance of a lawyer as guaranteed by Article 6 § 3 (b), (c) and (d) of the Convention.
Under Article 11 the applicant complains that the interference with his right to freedom of peaceful assembly was not prescribed by law and was not necessary in a democratic society.
Under Articles 7, 11 and 18 of the Convention, the applicant complains that he was found guilty of violating the procedure for the holding of demonstrations, despite the fact that such procedure was not clearly defined in the domestic law.
Finally, he complains that he had no effective domestic remedy for challenging the lawfulness of his arrest and detention after the three-day period of administrative arrest had expired. He refers to Article 13 taken in conjunction with Article 5 of the Convention in this connection.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was his arrest free from arbitrariness and based on law?
2. Did the applicant’s deprivation of liberty between 5 p.m. on 13 October and 6 p.m. on 14 October 2010 fall within paragraph (c) of that provision?
3. Did the applicant’s deprivation of liberty between 4 p.m. on 16 October and 6 p.m. on 17 October 2010 fall within paragraph (a) of that provision?
4. Did the applicant have at his disposal an effective domestic remedy for the above complaints under Article 5 § 1, as required by Article 13 of the Convention?
5. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
6. Was Article 6 § 1 of the Convention under its criminal head applicable to the administrative-offence proceedings against the applicant? If so, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
7. Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?
8. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?
9. Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf, as required by Article 6 § 3 (d) of the Convention?
10. Did the act of which the applicant was found guilty constitute an offence, as required by Article 7 of the Convention? In particular, were the offence of a violation of the procedure for the organisation and holding of assemblies, rallies, street processions and demonstrations and the afore-mentioned procedure itself clearly laid down in law?
11. Has there been an interference with the applicant’s right to freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention?
12. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?
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