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Case of Chumak v/s Ukraine

    Application No. 44529 of 09

    Decided On, 06 March 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT VINCENT A. DE GAETANO
    By, THE HONOURABLE MR. JUSTICE GANNA YUDKIVSKA
    By, THE HONOURABLE MR. JUSTICE PAULO PINTO DE ALBUQUERQUE
    By, THE HONOURABLE MR. JUSTICE IULIA MOTOC
    By, THE HONOURABLE MR. JUSTICE GEORGES RAVARANI
    By, THE HONOURABLE MR. JUSTICE MARKO BO?NJAK & THE HONOURABLE MR. JUSTICE P√ČTER PACZOLAY

    For the Appearing Parties: ------------------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 44529/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Ukrainian national, Mr Sergiy Viktorovych Chumak ("the applicant"), on 30 July 2009.

2. The applicant was represented by Mr V. Ivashchenko, a lawyer practising in Vinnytsya. The Ukrainian Government ("the Government") were represented by their Agents, most recently, Mr I. Lischyna.

3. The applicant alleged, in particular, that a court decision ordering dispersal of a "picket" (пікет) he had organised and prohibiting further pickets being held by the Association of which he was the chairman had been unlawful and unfair and that no effective remedies had been available for this complaint.

4. On 29 October 2015 the applicant's complaints under Articles 11 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Stryzhavka.

6. On 12 September 2006 the applicant submitted a written notice to the mayor of Vinnytsia informing him that the Chumatskyy Shlyakh civic youth association ("the Association") registered in Vinnytsia, of which he was chairman, intended to hold a picket (пікет) outside the Vinnytsia Regional Authority ("the regional authority") building. The notice read as follows:

"We inform you that, starting from 14 September 2006 our organisation will hold a picket [in front] of the [regional authority] for an indefinite term in view of the unhealthy, in our view, social and economic state of affairs in the region.

Beginning of the picket: 14 September 2005 at 14:00.

Place: square in front of the [regional authority] building;

Responsible person according to the decision of the Association's management: Chumak S.V. [the applicant].

Chairman of the [Association] Chumak, Sergiy Viktorovych."

7. According to the Government, the Association's officially registered chairman at the material time was a certain Igor Viktorovyh Chumak. The applicant was neither the chairman, nor could he even be a member of the Association because according to the Association's charter, membership was open to persons under the age of twenty-eight. At the time of the relevant events the applicant was older.

8. On 13 September 2006 the mayor's office forwarded the applicant's notice to the police, requesting that they maintain public order during the demonstration.

9. On 14 September 2006 the Association started the picket as intended. According to the applicant, several other local groups joined the action and two small camping tents (measuring 2 by 2 metres) were erected by the walls of the regional authority building on a 15-metre wide street for storing handout materials and displaying the protesters' slogans.

10. On 15 September 2006 the executive committee of Vinnytsia City Council instituted administrative proceedings seeking "to enjoin the [Association] not to organise and carry out pickets on the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully erected 'small architectural structures' (малі архітектурні форми)." The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers-by, acting arrogantly towards them, obstructing the traffic and pedestrians and endangering the lives and health of local residents. Referring to Article 182 of the Code of Administrative Justice ("the CAJ", see paragraph 20 below), which provided for the lodging of an action before the start of a picket, the plaintiff asked the court to admit its action for consideration out-of-time on the grounds that only after the picket had started had it become apparent that the prot

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esters intended to engage in inappropriate conduct. The statement of claim was supplemented with applications by V.Ch. and Y.S., two passers-by, addressed to the police, in which they complained that the protesters had "acted arrogantly", had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics.

11. On the same date the Leninskiy District Court in Vinnytsia ("the District Court") held a hearing at which the applicant, representing the Association, denied the allegations that the picketers had engaged in any inappropriate conduct. According to him, during the hearing he had unsuccessfully made several requests for the production of evidence. Notably, he had requested that V.Ch., Y.S. and the police officers present at the site of the picket be summoned for questioning; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented; and that the site be inspected in order to determine whether, in fact, the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians.

12. Later on the same date, the District Court allowed the claim, having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately. The relevant part of the judgment read as follows:

"... [the] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event, which fact resulted in missing the time-limit for lodging a court action as required by paragraph 1 of Article 182 of the Code of Administrative Justice of Ukraine; the court therefore resets the procedural time-limit ...

The court, when deciding the case, takes into account that the participants in the event installed small architectural edifices on the pavement. In addition, during the event, they acted arrogantly, thus offending other citizens, obstructed the passage of pedestrians along Soborna street, and endangered road users, a fact confirmed by the complaints from Y.S. and V.Ch.

In addition, the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely. Also the number of protesters is not defined ... and it may gradually increase. Accordingly, at any time during the picket of indeterminate length, it cannot be excluded that those taking part might repeatedly breach public order."

13. The court also noted that the picket "may potentially encroach upon the rights and freedoms of other local residents" and held as follows:

"[the court holds] to prohibit [the Association] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia, [and] from installing small architectural edifices in Vinnytsia; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [Administration's] building ...

To allow immediate enforcement of the court ruling ..."

14. At 9 p.m. on 15 September 2006 the protesters were dispersed by the police.

15. On 29 September 2006 the local registry office informed the applicant that V.Ch. and Y.S. were not registered as residents at the addresses indicated by them in their complaints lodged with the police.

16. On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006, which he signed as the Association's chairman. He submitted that under Article 182 of the CAJ, a plaintiff's action could not be examined when it had been lodged out of time. He further submitted that the court's factual conclusions had been devoid of an evidentiary basis. In particular, there was no evidence whatsoever that the protesters had breached the law, apart from the complaints by V.Ch. and Y.S., who had given false home addresses and thus could not be identified. The applicant further complained that the court had rejected his request that those individuals be located and summoned, and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters. He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law (if any) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as "architectural structures" and whether there had been any obstruction of traffic or pedestrians. Lastly, the applicant complained that the sanction imposed by the District Court (a total and permanent ban on the Association organising peaceful assemblies in Vinnytsia) had been arbitrary and disproportionate.

17. On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant's appeal and decided that, in view of the circumstances of the case (namely, the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration) the administrative action lodged by the executive committee could be accepted for examination. It agreed with the District Court's findings of fact and noted, in particular, that by installing the tents, the protesters had breached section 16 of the Populated Localities Development Act and section 18 of the Automobile Roads Act. At the same time, the Court of Appeal found that the sanction imposed on the protesters had been disproportionate. In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage a form of assembly such as the "picketing" of administrative buildings "with the installation on the streets of small architectural structures". Accordingly, the court found that the term "peaceful assemblies" in the operative part of the District Court's judgment had to be substituted with the term "pickets". The court then rejected the applicant's remaining arguments as unsubstantiated.

18. On 1 April 2009 the Higher Administrative Court of Ukraine dismissed an appeal on points of law lodged by the applicant.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine of 1996

19. Article 39 of the Constitution of Ukraine reads as follows:

"Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.

Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons."

B. Code of Administrative Justice of 6 July 2005

20. The relevant provisions of the Code, as worded at the material time, read as follows:

Article 8. Rule of Law

"1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.

2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights.

3. The right to appeal to an administrative court for the protection of human rights and freedoms based directly on a reference to the Constitution of Ukraine shall be possible.

4. A court may not refuse to examine and resolve an administrative case on the grounds that the legislation applicable to the dispute is incomplete, unclear, incoherent, or lacking."

Article 11. Adversarial nature of the proceedings, discretionary powers of the parties and official establishment of all circumstances of the case

"1. The consideration and resolution of cases in the administrative courts shall take place on the basis of adversarial proceedings, the evidence submitted by the parties and their ability to prove its cogency before the court.

2. The court shall consider administrative cases exclusively following the lodging of an action in accordance with the present Code and may not exceed the scope of the complaints. The court may exceed the scope of the complaints only in the event that this is necessary for the comprehensive protection of the rights, freedoms and interests of the parties or third persons whose protection is sought by them.

3. Each person who seeks judicial protection may dispose of his/her claim at his/her discretion, except in the circumstances determined in this Code ...

4. The court shall use the measures provided for in law which are necessary for the establishment of all the circumstances of the case, including by determining and ordering the production of evidence on its own initiative.

5. The court shall, on its own initiative, invite the parties to the proceedings to submit evidence or order the production of evidence which, in its view, is lacking."

Article 182. Features of the proceedings relating to the administrative claims lodged by the authorities with a view to restricting the exercise of the right to freedom of peaceful assembly

"1. Immediately upon receipt of a notification concerning the organisation of meetings, rallies, processions, demonstrations, etc., the executive authorities [and] bodies of local self-government shall have the right to apply to the District Administrative Court of the respective locality with an action seeking to prohibit these events or otherwise restrict the right to freedom of peaceful assembly (concerning the place or time of their organisation, etc.).

2. An action received on the date on which the aforementioned ... events take place or thereafter shall be left without examination.

...

5. The court shall allow the plaintiff's claims in the interests of national security and public order, where it establishes that carrying out the meetings, rallies, processions, demonstrations or other assemblies may create an imminent risk of disturbances or crimes, or endanger the health of the population or the rights and freedoms of other people. In its ruling, the court shall indicate the manner in which the exercise of the right to