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DECISION

OF THE CONSTITUTIONAL COURT OF UKRAINE

On the constitutional submission of the Ministry of Interior of Ukraine regarding the official interpretation of the part 1 of the Article 39 of Constitution that requires an advance notification of the executive authorities and bodies of local self-government about the assemblies, meetings, rallies and demonstrations

(the case on advance notice on  peaceful assemblies)

Kiev

19 April 2001

N 4-рп/2001 

Case N 1-30/2001 

The Constitutional Count of Ukraine considered at its plenary session a case regarding official interpretation of the part 1 of Article 39 of the Constitution that requires advance notice on the conduct of assemblies, meetings, rallies and demonstrations to be submitted to the executive authorities or bodies of local self-government.

Pursuant to the Articles 39 and 41 of the Law of Ukraine "On Constitutional Court of Ukraine" the consideration of the case is based on the constitutional submission of the Ministry of Interior of Ukraine.

Pursuant to the Article 93 of the Law of Ukraine "On Constitutional Court of Ukraine" the grounds for consideration of the case are based on the effective need for official interpretation of the provisions of the part 1 of Article 39 of the Constitution relating to the advance notice on the conduct of assemblies, meetings, rallies and demonstrations to the executive authorities or bodies of local self-government.

Having heard the presentation of the judge-rapporteur I.A. Timchenko and having examined the case, the Constitutional Court of Ukraine

Held:

1. The actor for the purpose of constitutional submission – Ministry of Interior of Ukraine – addressed the Constitutional Court of Ukraine with request to provide an official interpretation of the part 1 of Article 39 of the Constitution relating to the advance notice on the conduct of assemblies, meetings, rallies and demonstrations to the executive authorities or bodies of local self-government.

In its constitutional submission the Ministry noted that in accordance with the Article 39 of the Constitution of Ukraine citizens have the right to assemble peacefully without arms and to hold assemblies, meetings, rallies and demonstrations upon notifying in advance the executive authorities or bodies of local self-government. It also noted that the existing legislation does not specify the exact timeframe within which the executive authorities or bodies of local self-government shall be notified of the conduct of such events. The constitutional submission goes on to say that some of the organisers of public events interpret "in advance" literally, meaning that the corresponding bodies shall receive “notification" on the conduct of assemblies, meetings, rallies and demonstrations "prior” to the event. There was a number of cases when information about the event was sent to the executive authorities or bodies of local self-government a day before the start of the event and in some cases just a few hours in advance.

In the opinion of the Ministry of Interior, since the second part of the Article 39 of the Constitution provides for the a possibility of judicial restriction of the right of citizens to conduct of peaceful assemblies, meetings, rallies and demonstrations (in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crime and to protect health of the population, or rights and freedoms of others), it takes time to arrive to a decision relating to conduct of a peaceful assembly. The constitutional submission particularly notes that this time is needed to understand the terms of conduct of the event, to determine whether it complies with the existing legislation and whether it will require presence of police force and other means to ensure public order and etc. This is why there is a need to determine "a time-limit for organisers to submit a notice on the planned event".

2. The opinion of the Constitutional Court of Ukraine on the issue of official interpretation of the part 1 Article 39 of the Constitution relating to the advance notice on the conduct of assemblies, meetings, rallies and demonstrations to the executive authorities or bodies of local self-government,  is based on the following considerations:

According to paragraph 3 of Article 8 of the Constitution, provisions of the Ukrainian Constitution have direct action. They apply directly, independently of whether any laws or other legal acts have been enacted to develop these provisions.

The right of citizens to assemble peacefully, without arms, and to hold assemblies, meetings, rallies and demonstrations prescribed by the Article 39 of the Constitution  is an inalienable and inviolable right, guaranteed by the Fundamental Law of Ukraine.

This right relates to the constitutional safeguards of the civil rights to freedom of opinion,  religious belief, thought, and speech, and the freedom to use and impart information through speech or in written form or by any other means of choice, the right to freedom of one’s own development and other rights. Exercise of this right shall not lead to infringement on the rights, freedoms, honour and dignity of others. The Constitution of Ukraine (in Article 68) imposes an obligation to observe the Constitution and the laws of Ukraine. Citizens may hold assemblies, meetings, rallies and demonstrations subject to meeting an obligation to notify the executive authorities and bodies of local self-government in advance of the planned meeting. Citizens shall submit such notice through the organisers of the public events. The advance notification of respective bodies on the conduct of public event means existence of a timeframe with the duration from the date of notification until the day of holding of event.

The timeframe for submitting a notice shall be reasonable and it shall not restrict the right of citizens to hold assemblies, meetings, rallies and demonstrations prescribed by the Article 39 of the Constitution.  The authorised bodies shall use the period within the timeframe to take preparatory action, including measures to provide for unobstructed conduct of assemblies, meetings, rallies and demonstrations and to ensure public order and protection of rights and freedoms of others. Where needed, executive authorities or bodies of local self-government may negotiate and agree with the organisers on the date, time, place, itinerary, terms, duration and other conditions for holding the event.

The timeframe for advance notification shall be sufficient to allow executive authorities and bodies of local self-government to decide whether conduct of the event complies with the legal provisions and, if necessary, it should allow to take the disputed issues to court pursuant to the part 2 of the Article 39 of the Constitution.

Paragraph 1 of the Article 92 of the Constitution states that human rights and freedoms  and safeguards thereof can be defined exclusively by the law. Taking this provision into account and considering that civil right to hold public assembly can be restricted only by judicial decision (part 2 Article 39), the Constitutional Court of Ukraine concludes that the timeframe for advance notification of executive authorities and bodies of local self-government with consideration given to the terms of conduct, manner, number of participants, place and time of peaceful assembly is subject to regulation by the separate legislation.  

Based on the reasons stated above and pursuant to Articles 147, 150 of the Constitution of Ukraine, and Articles 51, 63, 65, 69, 70, 95 of the Law of Ukraine "On the Constitutional Court of Ukraine", the Constitutional Court of Ukraine has ruled:

1. In the context of issues raised in the constitutional submission, the provisions of the part 1 of Article 39 of the Constitution, relating to the advance notice on the conduct of assemblies, meetings, rallies and demonstrations to the executive authorities or bodies of local self-government,  shall mean that the organisers of these events are obliged to notify these authorities in advance in the sense of doing it within the acceptable timeframe before the event. Requirement to observe a time-limit shall not restrict the right granted by the Article 39 of the Constitution, but shall both safeguard this right and allow executive authorities or bodies of local self-government to take measures to provide for unobstructed conduct of assemblies, meetings, rallies and demonstrations and to ensure public order and protection of rights and freedoms of others.

Specific timeframe for advance notification with consideration given to the terms of conduct, manner, and number of participants, place and time of peaceful assembly is subject to regulation by the separate legislation.   

2. The decision of the Constitutional Court of Ukraine is binding on the territory of Ukraine, is final and cannot be appealed.