The International Human Rights Framework on the Right of Peaceful Assembly
Ukraine is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Ukraine is also a party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Ukraine is a State Party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 39 of the 1996 Constitution of Ukraine provides that citizens have a right to assemble peacefully, without a weapon, and to hold meetings and demonstrations, where the organs of executive power or of local self-government are notified in advance.
In its decision of 19 April 2001 the Constitutional Court provided an official interpretation of Article 39 of the Constitution. The interpretation was provided in response of the application for abstract interpretation lodged by the Ministry of the Interior. The court stated that:
Deadlines for advance notification of meetings, rallies, marches and demonstrations must be reasonable ... During this [advance notification] period the authorities have to take preparatory actions, in particular to ensure that there are no obstacles to the meeting, rally, march or demonstration, maintenance of public order, rights and freedoms of others ...
The period of advance notification must also be sufficient for executive or local government authorities to determine whether holding such events complies with the law and, if necessary, to apply to a court under paragraph 2 of Article 39 of the Constitution to resolve any matters in dispute.
There is no national law in force specifically governing assemblies. In its comments on a 2016 draft law, the OSCE ODIHR recommended that:
- Article 7(1) should clearly set out a list of assemblies that do not require notification, including assemblies below a certain size threshold and spontaneous assemblies;
- The authority that should be notified prior to holding an assembly should be specified. A single gateway approach is preferable to a multitude of notification authorities indicated in
- The requirement that the notification should contain information on the “aim of the assembly” should be deleted. A wrong estimation, in the notification, as to the number of participants to and duration of an assembly should not have negative consequences on the right to freedom of peaceful assembly;
- The reference, under Article 8(1)8, to the need for a “special permission” in case of temporary restriction of road traffic should be deleted.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The 2015 Law of Ukraine on the National Police governs the use of force, stipulating that a "selected police measure shall be legitimate, necessary, proportionate and efficient".
Under Article 45 of the Law, police batons and chemical irritants may be used to stop "massive or group public disorders".
Amendments to the 2015 Law provide for detail on which weapons may be used and in what manner. According to Article 42(4), among others the following weapons may be employed in an anti-personnel manner: rubber and plastic batons; electroshock weapons; handcuffs; chemical irritants; flash-bang grenades; non-lethal projectiles; and water cannon. Paragraph 5 of the article stipulates that a police officer may not, under any circumstances, use weapons not specified in the Law. Paragraph 6 provides that the use by a police officer of personal protective equipment (helmets, bulletproof vests and other special equipment) us not to be considered an unlawful use of force. According to Paragraph 7, a police officer must immediately stop the use of force once the expected result has been achieved. Paragraph 8 of the article provides that the rules governing firearms must be established by the Minister of Internal Affairs.
According to Article 44(4), a police officer is prohibited from: striking with batons on the head, neck, clavicle, genitals, lower back (coccyx) and abdomen; targeting tear gas at people or firing tear-gas grenades into the crowd; firing less-lethal cartridges closer than permitted or shooting at certain parts of the head and body; using water cannons at air temperatures below + 10°C; using handcuffs for more than 2 hours of continuous use or without relieving their pressure.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
A police officer may use firearms in "exceptional cases":
1) to repulse an attack on a police officer or his family in case it threatens their life and health
2) to protect people from an attack threatening their life and health
3) to release hostages or people illegally deprived of their freedom
4) to repulse an attack on protected facilities, convoys, residential and non-residential premises, and to release the above in case of seizure
5) to detain a person caught when committing a grave or an especially grave crime and attempting to escape
6) to detain a person who is making armed resistance, attempting to escape from custody, or an armed person who is threatening to use weapons and other items that threaten life and health of people and/or police
7) to stop a vehicle through damage to such vehicle, if the driver’s action threaten life and health of people and/or police.
This is more permissive than international law allows.
State Compliance with its Legal Obligations
International Criminal Court
Although Ukraine is not a state party to the ICC, in 2014 it deposited a declaration giving the Court jurisdiction over alleged crimes against humanity committed in the context of the "Maidan" protests which took place in Kyiv and other regions of Ukraine between 21 November 2013 and 22 February 2014, including murder and torture. The jurisdiction was subsequently expanded to cover both the situation in Crimea and eastern Ukraine. A recent Report on Preliminary Examination Activities, published in December 2020, noted that the Office of the Prosecutor's preliminary analysis of subject matter jurisdiction concluded that a number of crimes covered by the Rome Statute may have been committed in the context of the situations in both Crimea and Eastern Ukraine.
Views and Concluding Observations of United Nations Treaty Bodies
Ukraine has not come before the Human Rights Committee in recent years. In its national report for its 2017 Universal Periodic Review, Ukraine stated as follows:
In 2016, the Constitutional Court of Ukraine ruled unconstitutional legislative provisions, which required prior approval to be received for a peaceful assembly. The Court effectively confirmed that authorities will only have to be notified of a planned public assembly.
Two alternative draft laws regulating the right of peaceful assembly have been registered at Parliament (No. 3587 of 7 December 2015 and No. 3587-1 of 11 December 2015). On 8 October 2016, the Venice Commission, together with OSCE experts, issued a positive assessment (Opinion No. 854/2016 of 18 October 2016) of the draft laws as a whole and noted that most of the provisions were in line with international standards.
In its 2014 Concluding Observations on Ukraine, the Committee against Torture was concerned
at allegations of excessive use of force by government special and riot police and other personnel, in connection with the popular protests throughout Ukraine, and in particular in the dispersal of protesters in Kyiv on 30 November 2013, as well as events in December 2013 and the reported killings of protesters between 19 and 21 January 2014 and 18 and 20 February 2014. The incidents in February 2014 were accompanied by so-called sniper killings by unknown assailants and other injuries of protesters, as well as of police and law enforcement officers.
The Committee was also concerned
at other crimes reportedly committed by law enforcement officers during the Maidan protests, including alleged beatings of medical staff seeking to attend the wounded. Events in Odessa (2 May 2014) and Mariupol (9 May 2014) have also evoked concern over the loss of life and allegations of excessive use of force.
In his 2016 report on a mission to Ukraine, the Special Rapporteur on extrajudicial, summary or arbitrary executions similarly noted that, in December 2013 to February 2014, 123 people had lost their lives as a result of violence during the protests in Maidan Square in Kyiv, including 106 persons — most of them protesters — and 17 officers of the internal affairs/police. He raised concerns that at least 77 persons had been killed as a result of the firing of live ammunition, allegedly by special police force and other law enforcement officers.
In his report on a mission to Ukraine in 2018, the Special Rapporteur on Torture stated that the de facto authorities in Donetsk and Luhansk restricted access to three places of detention under their control. In addition,
Overall, despite noticeable improvements in the recent past, the information collected by the Special Rapporteur indicates that torture and ill-treatment continue to be practised with impunity throughout the country, including in territories outside the control of the Government.
Lutsenko and Verbytskyy v. Ukraine (2021)
The case concerned the so-called “Euromaidan” or “Maidan” protests in Ukraine between November 2013 and February 2014 in response to the suspension of the Ukraine-European Union Association Agreement. The protests led to the ousting of the President of Ukraine and a series of political and constitutional changes. Initially the protesters numbered up to 100,000 people, rising to up to 800,000 people. Special police forces were mobilised to disperse the protests which led to clashes. The authorities also used non-State agents aligned with the police (titushky -- private individuals, including those with a criminal background), who are alleged to have carried out numerous assaults, kidnappings and murders of protesters. Reportedly there were over 100 deaths (including 70 by gunfire) and thousands injured between both the protestors and the police.
The European Court found violations of the right to life, to freedom from inhumane treatment, and to peaceful assembly on account of the abductions, ill-treatment and persecution of the first applicant and the torture and death of the second applicant’s brother as a result of their implication in the Maidan protests. Both individuals had clearly been subjected to ill-treatment. That was done in order to obtain information relating to their involvement in the Maidan protests and/or to intimidate and/or punish them in that connection. Having been subjected to torture, Mr Y. Verbytskyy had been left in a remote location by the suspects who had been hired by law-enforcement officials, in weather conditions which had been particularly harsh, where he had been unlikely to survive for long if left unattended. The responsibility for his death therefore rested with the Ukrainian authorities.
Chernega and others v. Ukraine (2019)
This case concerned complaints of violations of the rights of people who had protested against the felling of trees in a public park to make way for a road. The European Court of Human Rights found a violation of the right to peaceful assembly in respect of the several applicants. In its judgment, a chamber of the Court stated that:
States must not only refrain from applying unreasonable indirect restrictions upon the right to assemble peacefully but also safeguard that right. Although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights.... The authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens. However, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved.
Views of Civil Society
According to Freedom House's 2021 report on Ukraine:
The constitution guarantees the right to peaceful assembly but requires organizers to give the authorities advance notice of demonstrations. Ukraine lacks a law governing the conduct of demonstrations and specifically providing for freedom of assembly.
Threats and violence by nonstate actors regularly prevent certain groups from holding events, particularly those advocating equal rights for women and LGBT+ people. In August 2020, police arrested 16 people after fights broke out during a march for LGBT+ rights in Odessa.