Chumak v Ukraine, Application No. 44529/09
Court: European Court of Human Rights, Fourth Section
Date of judgment: 6 March 2018
On 6 March 2018, the European Court of Human Rights (the ECtHR) upheld an applicant’s claim that his right to freedom of assembly under article 11 of the European Convention on Human Rights (European Convention) had been violated by the Vinnytsia City Council, Ukraine.
In September 2006, the applicant had submitted a written notice to the relevant authority indicating that a youth association, of which he was the chairman, intended to hold a picket outside the Vinnytsia Regional Authority building. The notice was forwarded to the police, who were requested to maintain public order during the demonstration. On the indicated day, the picket started as intended, with several other local groups joining. Two small camping tents (measuring 2×2 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.
The following day, the executive committee of the Vinnytsia City Council instituted administrative proceedings seeking to enjoin the youth association not to organise and carry out pickets on the streets of Vinnytsia, and to oblige it to uninstall the “small architectural structures”. It was 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. This was denied by the applicant, representing the youth association.
The District Court allowed the claim, finding that there was sufficient evidence that the protesters had behaved inappropriately, and further that the picket “may potentially encroach upon the rights and freedoms of other local residents”. The picket was therefore dispersed by the police.
Before the ECtHR, the applicant argued that the domestic judicial authorities had imposed an arbitrary and disproportionate restriction on his right to freedom of assembly, as guaranteed in article 11 of the European Convention.
In considering the merits, the ECtHR began by reiterating that “the right to freedom of assembly enshrined in Article 11 of the [European] Convention is a fundamental right in a democratic society and, like the right to freedom of expression, one of the foundations of such a society. Thus, it should not be interpreted restrictively. As such this right covers both private meetings and meetings in public places, whether static or in the form of a procession; in addition, it can be exercised by individual participants and by the persons organising the gathering”.
The ECtHR noted that the allegations concerning obstructive and inappropriate conduct of the picketers were taken at face value, without any effort having been taken to verify the underlying facts. In contrast, the applicant had contended that the protesters only occupied a small portion of the 15-metre wide street, far away from the road. Moreover, the ECtHR noted that an allegation that the protesters might “repeatedly breach public order” in future was purely speculative.
The ECtHR went on to state as follows:
[T]he Court is struck by the overarching nature of the measures adopted by the authorities vis-à-vis the protesters. While, as noted above, there is no factual evidence that the picket at issue in the present case caused any real nuisance to the general public, the Court would like to emphasise that peaceful assemblies require the public authorities to show a certain degree of tolerance, even if they cause some inconvenience for everyday life … This requirement binds the authorities to consider measures to minimise the disruption, while at the same time accommodating the organisers’ legitimate interests in assembling within sight and sound of their target audience …
It stated further that: “[T]he Court underlines that public events related to political life should be given particular deference … and that those expressing opinions which are critical of important public figures should be shown greater tolerance”. The ECtHR therefore concluded that there was no justification for the overarching restriction, and upheld the applicant’s claim that there had been a violation of the right to freedom of assembly under article 11 of the European Convention. The applicant was awarded EUR 4,500 in non-pecuniary damages.
The full judgment is accessible here.
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