The struggle for freedom of assembly was won in Strasbourg

The digest is composed of 20 cases that can be considered strategic. According to Tetiana Pechonchyk, the Head of Human Rights Information Centre, all the cases raise the systemic problems of human rights violations caused by legislation gaps and drawbacks of administrative jurisprudence. "This publication aims to disseminate information about strategic litigation as one of the efficient tools of legal protection", she adds.

It is highlighted by Vyerentsov v. Ukraine, won last year in the European Court of Human Rights (ECHR). The applicant – a resident of Lviv – has challenged the ban for peaceful assembly. He tried to draw public attention to corruption in the prosecutor authorities. With this view, he decided to carry out the rallies close to the prosecutor's office. They had to start in August 2010 and last for six months, and they were supposed to never gather more than 50 participants. He informed Lviv mayor about everything.

The law enforcement agencies lost patience on 12 October, when Mr. Vyerentsov and 20 other activists organized another protest action. The police told that the protesters could not get closer than five meters to the prosecutor's office. Therefore, the activists had to stay at another side of the street. The police replied that it was still illegal, and tried to talk Oleksii Vyerentsov out of organizing the rally. But he decided to continue picketing. On the next day, Lviv district administrative court prohibited Mr. Vyerentsov to carry out rallies upon the claim of local council. He was convicted in committing administrative offence (namely, malicious contumacy to instructions of law enforcement officers and violation of the procedure of carrying out rallies). The activist was detained before the trial and brought to Halytskyi district court of Lviv that found him guilty of committing administrative offences. The court sentenced him to three days of arrest.

After release, Mr. Vyerentsov challenged this judgment, but Lviv oblast court of appeal dismissed the complaint. Therefore, the activists applied to the ECHR that made a judgment in favour of him. In particular, the European Court judged that the interference into the right to peaceful assembly was not justified by the legislation and was not necessary in democratic society. It also drew attention to the fact Vyerentsov v. Ukraine helped to "identify the gap in Ukrainian legislation on the freedom of peaceful assembly that exists for two last decades". Hence, our state has to amend the respective legislation and provide for requirements to organization of peaceful assembly and possible grounds for limitation of the respective freedoms.

Basing on the ECHR judgment, the Supreme Court of Ukraine denounced the judgments of Lviv courts and has finally terminated the administrative proceedings against Oleksii Vyerentsov. "This case became a decisive factor when discussing the need of amending the law on peaceful protests", Volodymyr Yavorsky, Member at Ukrainian Helsinki Human Rights Union Board says. "It is important that since this judgment is taken and until the law on the freedom of peaceful assembly is adopted, any limitation of the right to peaceful assembly shall be against the law", he adds.

Anti-discrimination decisions

The total number of cases won in the ECHR by Ukrainians is quite substantial. Kharkiv Human Rights Group alone has 50 of them. Much more cases are won by human rights activists and attorneys in national courts. These cases not just restore justice, but change Ukrainian jurisprudence on crucial matters. This is strongly exemplified in the case of Dnipropetrovsk attorney Dmytro Zharyi who was not able to get a pharmacy in his home city on a wheelchair.

During long time, he was requesting that the head of pharmacy equips it with a comfortable rampant. But it was never done. Therefore, after the correspondence with officials of State Inspection for Control of Medicines Quality of Dnipropetrovsk oblast and Main Architectural and Planning Department proved ineffective, he brought a case to Dnipropetrovsk district administrative code. In doing so, Dmytro Zharyi intended to have a larger impact on ensuring free access of disabled persons on wheelchairs to pharmacies all over Ukraine.

Notwithstanding, it was only the court of appeal that satisfied his particulars of claim. It judged that the failure of State Inspection for Control of Medicines Quality of Dnipropetrovsk oblast to verify the pharmacy's observance of license requirements was against the law. In addition, it requested to consider the withdrawal of a license to retail sale of medicines from the pharmacy that was a respondent in this case. After that, the Prime-Minister M.Azarov instructed the Ministry of Health and the Ministry of Regional Development to develop amendments to the Conditions of issuing licenses to pharmacies and health care facilities that would provide disabled people with free access to these facilities. In this way, the efforts of one person to protect his own rights made impact on the situation in the country at large.

Later on, other people started to follow the Dnipropetrovsk activist in combating discrimination of disabled people. In particular, a young Donetsk resident Tetiana Hrechyshnykova who had to use the wheelchair after traffic accident won a case against the nightclub. Its employees did not let her enter the club with her friends and stole thunder and positive mood from her by their aggressive behaviour. The visually disabled Lviv attorney Andrii Stehnitskyi has also won his case against State company "Ukrainian Railways", in which he requested the company – transport monopolist in Ukraine – to adjust their web-site to the needs of visually disabled people. These cases are also in the list of cases that change Ukraine.

Reminiscence of totalitarian regime

The case that the parents of minor children won against Chernihiv Oblast Council is the first in the digest. It concerns an appeal against the decision of officials to introduce the night-time curfew: children under 14 were not allowed to stay at the streets and public places without their parents after 10 p.m. Children under 16 were not allowed to do so after 11 p.m.

According to human rights activist Volodymyr Yavorsky, such decision is in violation of the liberty of movement. "Such practice of establishing night-time curfews still exist in totalitarian countries – Russia and Belarus – that taken it from Soviet times", he explains. "In 2009, some Ukrainian authorities decided to introduce this non-democratic initiative as well. Therefore, after Chernihiv Oblast Council, the night-time curfews were adopted in 2/3 regions of Ukraine. These decisions are illegal, whereas they are in contradiction to basic constitutional principles. Basing on these acts, the social service units together with law enforcement officers started to bring large number of parents to administrative liability for failure to perform parental responsibilities. Nevertheless, the majority of charges were unjustified. Sometimes children were returning home after 10 p.m. after sport activities. Therefore, the parents and human rights activists decided to appeal the decision of oblast council to establish the night-time curfew in court. The court judgment was positive.

We hope that the activism of Ukrainian citizens will not step back in future, whereas Ukrainians have to understand that when winning a case not only they can change the jurisprudence but also promote systemic changes in the national machinery.

 

Comment by Arkadiy Bushchenko, Executive Director of UHHRU

- There is a belief that the person cannot change the history alone. He/she has to join political parties, trade unions, NGOs, he/she has to get political influence – and it is the only way to change something to better. In some cases it is true, but in most cases it is not.

Judicial dispute – a great invention of humankind – empowers people to resist to infringement made not only by more powerful agents, but also by the whole systems. And it can help not only to resist the system, but to change it. To change the courts in order to make other people to better protect their rights. There were a lot of situations when it was the court that a person used to protect his/her rights and change the situation at large. A lot of situations when the case won became a trigger for substantial reforms in the national machinery and policy.

The case of Ernesto Miranda – he was never big man – in the U.S. Supreme Court made Americans to reform their criminal justice and allocate billions of dollars to establishment and operation of free legal aid: if it had not been done, the prosecutor could have lost the case.

In response to the case between the Foundation for Protection of Environment and Customers against Delhi city administration, the court noticed that the right to free education could not be secured until the government does not provide for basic infrastructure in schools. It made Indian authorities to allocate money to sanitary equipment of the schools.

There are a lot of other examples of how the applicants – who were not famous before – succeeded in making drastic impact on establishment of change of the whole systems. Some of these cases are not very popular and cited in numerous documents. Some are known only in certain city or region. In any way, they all made an undeniable contribution to the legal culture.

The cases that not only helped to protect private interest of a particular person but made influence on the development of legal system are called strategic cases, and the entire phenomenon – the strategic litigation. One way or another, they made an impact on human rights observance. Some of them caused the amendment of the law; others helped to prevent the violation of the law or international treaties. Some of them resulted in certain reforms; others still wait to make it happen. In any situation, these cases ensure that such notions as 'justice', 'right' and 'law' are not turned into a mere name.

Aleksandra Tymoshchuk, journalist