FIFTH SECTION      CASE OF SHMUSHKOVYCH v. UKRAINE (Application no. 3276/10)     JUDGMENT   STRASBOURG 14 November 2013  FINAL 14/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shmushkovych v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Helena Jäderblom, Aleš Pejchal, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 15 October 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 3276/10) 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 Mykhaylo Volodymyrovych Shmushkovych (“the applicant”), on 11 January 2010.2. The applicant, who had been granted legal aid, was represented by Mr V.M. Yavorskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from the Ministry of Justice.3. The applicant alleged that the restriction on the peaceful assembly he had organised was unlawful and disproportionate, and that the judicial decision in the case against him was not pronounced publicly.4. On 8 December 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1979 and lives in Odessa.6. The applicant is a vice-president of Zelyonka (Зелёнка), a non-governmental youth organisation, and a member of the Odessa City Council.7. On 17 March 2009 the applicant, acting on behalf of Zelyonka, notified the Odessa City Mayor and the Head of the Prymorsky District Police Department of Odessa of the organisation’s intention to hold a peaceful assembly (picket) in front of the Odessa City Council building on 19 March 2009 from 11 a.m. to 1 p.m. The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by the Council’s Department of Construction.8. In reply, by a letter of the same date, the Odessa City Council informed the applicant that holding a picket within such short notice was liable to be considered unlawful. The letter indicated that, pursuant to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree – see paragraph 18 below), notification had to be given no later than ten days prior to the meeting in question. It further indicated that the Constitutional Court, in its decision of 19 April 2001 (see paragraph 20 below), had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting. It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in Ukraine and that the 1988 Decree was still in force. The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph 2 of the 1988 Decree and the person responsible held administratively liable under Article 185-1 of the Code of Administrative Offences (the CAO).9. The picket took place as planned between 11 a.m. and 1 p.m. on 19 March 2009. According to the applicant, it was peaceful and only a few people took part in it. The police report of the same day noted that about 250 persons had taken part in the picket and that there had been no violation of public order.10. On 4 April 2009 a police officer of the Prymorsky District Police Department of Odessa drew up an administrative offence report, in the applicant’s presence, indicating that on 19 March 2009 the applicant had organised and held a picket in violation of Article 185-1 of the CAO and the decision of the Constitutional Court of 19 April 2001. The applicant signed the report, adding a note to the effect that he considered his actions lawful. The report was referred to a court.11. On 15 May 2009 the Prymorsky District Court of Odessa (“the District Court”) examined the applicant’s case. According to the record of the hearing, provided by the Government, the questioning took place between 1.24 and 1.34 p.m. After that the judge retired to the deliberations chamber. At 2.27 p.m. the judge publicly pronounced judgment and the hearing closed at 2.32 p.m. According to the Government, the full text of the judgment was pronounced publicly and three hours later the court clerk handed a hard copy of the judgment to the applicant’s representative. According to the applicant, the judgment was not pronounced in public but given to his representative in writing three hours after the end of the hearing.12. In that judgment the District Court found that the applicant had violated public order by failing to give the Odessa City Council sufficient advance notification of the picket he had organised. The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him 170 Ukrainian hryvnias (UAH) (17 euros (EUR)). The court held, in particular, that the applicant was in breach of Article 185-1 of the CAO because he had not complied with the ten-day notification requirement. The court based its findings on the 1988 Decree, which provided that an application to hold an assembly had to be lodged with the relevant authority at least ten days in advance. The court further referred to the decision of the Constitutional Court and noted that the exact time-limits for notification were to be regulated by law. It further indicated that the 1988 Decree was valid in Ukraine under the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union (see paragraph 19 below). The court also pointed to the fact that the applicant had been informed by the Council that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability.13. On 25 May 2009 the applicant appealed. He argued that the 1988 Decree, on which the first-instance court had based in its decision, was invalid and contrary to the Constitution. In particular, he noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only that the authorities had to be notified of an intention to hold such an assembly. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, whereas the 1988 Decree was not a law of Ukraine. He further noted that at the time of the picket there had been no judicial decision restricting the above-mentioned picket as required by Article 39 of the Constitution. The applicant also contended that his punishment violated Article 11 of the Convention and was not necessary as the picket had been peaceful and had not violated public order. Lastly, he complained that the decision in question had not been pronounced publicly which was contrary to Article 285 of the Code of Administrative Offences (see paragraph 17 below) and to Article 6 § 1 of the Convention.14. On 16 July 2009 the Odessa Regional Court of Appeal, ruling in the presence of the applicant and his representative, upheld the decision of the first-instance court. Its ruling contained a summary of the facts of the case, outlined the applicant’s arguments and included an analysis of the pertinent legislation in line with that of the first-instance court. As to the applicant’s argument that it was unnecessary to punish him, the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it. The court did not however address the applicant’s complaint that the first-instance court’s judgment had not been pronounced publicly.15. The applicant has not paid the fine.II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICEA. Constitution of Ukraine16. The relevant provisions of the Constitution read, in so far as relevant, as follows:Article 22“Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.Constitutional rights and freedoms are guaranteed and shall not be abolished.The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.”Article 39“Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand.Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.Article 92“The following are determined exclusively by the laws of Ukraine:(1)  human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...”Chapter XVTransitional Provisions“1. Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...”B. Code of Administrative Offences (the CAO)17. The relevant provisions of the Code read, in so far as relevant, as follows:Article 185-1Breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations“A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage.The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.”Article 285Pronouncement and service of decision regarding an administrative offence“A decision shall be pronounced immediately after the examination of the case. Within three days a copy of the decision shall be given or sent to the person concerned ...”C. The Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree)18. The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia:“The Constitution of the USSR, according to the interests of the people and for strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom of meetings, rallies, street marches and demonstrations. The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings, streets, squares and other places...1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies...2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question...3. The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application...6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.”D. The Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 on temporary application of certain legislative acts of the Soviet Union19. The resolution provides in particular:“ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.”E. Domestic case-law1. Decision of the Constitutional Court of Ukraine of 19 April 2001 in a case regarding timely notification of a peaceful assembly20. In its decision the Constitutional Court held inter alia:“1.  ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations.In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions...... the Constitutional Court holds as follows:1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others.Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...”2. Information note of April 2012 by the Higher Administrative Court of Ukraine on a study and summary of the jurisprudence of administrative courts applying the relevant legislation and deciding cases concerning the exercise of the right to peaceful assembly (meetings, rallies, marches, demonstrations, etc.) in 2010 and 2011.21. On 21 May 2012 the Plenary of the Higher Administrative Court of Ukraine by its Decree No. 6 decided to send this note for information to the judges of lower administrative courts. The note mentioned, inter alia, as follows:“...The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect.Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...”3. Decisions of administrative courts22. In a judgment of the Babushkinsky District Court of Dnipropetrovs’k of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovs’k City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens.23. In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree. The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 20 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others. It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention.24. In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed a judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects. The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine.F. Other relevant international and domestic law and practice25. Other relevant domestic law and practice and the relevant international documents can be found in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 26, 32, 33 and 38 to 43, 11 April 2013).THE LAWI. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION26. The applicant complained under Article 11 of the Convention that the State had unlawfully interfered with his right to freedom of peaceful assembly by fining him for the purportedly late notification of the picket he had organised. That interference, he argued, had not been necessary in a democratic society. “1. Everyone has the right to freedom of peaceful assembly ... 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...”A. Admissibility27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions28. The applicant maintained that the Ukrainian legislation did not have clear and foreseeable legislation in the sphere of freedom of assembly. The judicial practice was inconsistent: some courts applied the 1988 Decree, while others did not, considering that decree invalid and contrary to the Constitution. He referred to examples of the domestic courts’ decisions (see paragraphs 22 and 23 above) in which the courts held that the national legislation did not regulate the procedure for organising and holding peaceful assemblies. He noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only for advance notification to the authorities of an intention to hold such an assembly. Therefore it could not be said that the Decree complemented the constitutional provisions on freedom of assembly, since it clearly conflicted with them. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, yet the 1988 Decree was not a law of Ukraine. In the applicant’s opinion, in its decision of 19 April 2001 the Constitutional Court had not accepted the validity of the 1988 Decree concerning the requirement of at least ten days’ advance notification.29. The applicant further considered that Article 185-1 of the CAO did not meet the requirement of quality of law, as it provided for liability for violation of a procedure which had not been defined by the domestic law.30. He also complained that his punishment had not been necessary because the picket in question had not caused any disturbance of public order and the domestic authorities had not assessed the circumstances of the case but limited themselves to establishing a formal failure to give ten days’ advance notification of the picket.31. The Government agreed that the domestic court’s finding that the applicant had incurred administrative liability constituted an interference with his right to freedom of peaceful assembly. They maintained, however, that the interference had been justified.32. The Government submitted that the interference had been “prescribed by law”. They argued that under the Court’s case-law the “law” did not necessarily mean an Act of the national parliament, but could include enactments of lower rank than statutes and unwritten law. In a sphere covered by the written law, the “law” was the enactment in force as the competent courts had interpreted it in the light, if necessary, of any new practical developments (Kruslin v. France, 24 April 1990, § 29, Series A no. 176‑A). They noted that under Article 39 of the Constitution the freedom of assembly could be restricted by the courts and, according to the Constitutional Court decision of 19 April 2001, the executive authorities could coordinate with the organisers of the assemblies details such as time, venue, length and so on, and notification of a planned assembly should be given within a time-limit that would be sufficient for the authorities to decide whether the assembly was legal and, if necessary, whether an application should be made to a court to settle any dispute that had arisen.33. The Government agreed that formally there was no law regulating relations concerning the freedom of assembly, but maintained that the 1988 Decree was valid and that the Constitutional Court had not declared it invalid. They considered that the rules set forth in the 1988 Decree were sufficiently foreseeable and precise and that the national courts of all levels had accepted the applicability of that decree in the applicant’s case.34. They also maintained that the restriction on the applicant’s right to freedom of assembly had pursued the legitimate aim of protecting the rights and freedoms of others and had been necessary, given that the picket had taken place in an area through which many people passed every day with the consequence that an assembly of people was deemed to endanger the life and health of others, including tourists and representatives of different religions, politics and so on. Furthermore, the place was not equipped with the necessary sanitary facilities. They noted, lastly, that during another event organised by the applicant’s organisation there had been a violation of public order and that this had demonstrated the importance of timely notification so that the authorities could make the necessary arrangements to ensure safety and public order.2. The Court’s assessmenta)  Whether there was an interference35. The Court considers, as undisputed by the parties, that the applicant’s punishment for organising and holding a peaceful assembly constituted an interference with his right to freedom of peaceful assembly.b)  Whether the interference was justified36. An interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims.37. The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999‑III; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000‑V; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I).38. The Court notes that the fine was imposed on the applicant under Article 185-1 of the CAO, which prescribed a penalty for violations of the procedure for organising and holding demonstrations. Therefore, the interference had a basis in domestic law. It has not been disputed that the Code was accessible and the Court does not have reason to doubt that. It remains, therefore, to be determined whether this provision was foreseeable.39. The Court notes that it is in dispute between the parties whether there was any legal act in Ukraine providing for the “procedure” referred to in Article 185-1 of the CAO. The Government alleged that the “procedure” was envisaged by the 1988 Decree, while the applicant contended that this legal act of the former USSR was no longer valid and applicable in Ukraine as it was contrary to the Constitution.40. The Court reiterates that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. The Court notes that it recently examined in detail the existing Ukrainian legal framework concerning procedure for holding peaceful demonstrations in the case of Vyerentsov (Vyerentsov v. Ukraine, cited above, §§ 51 to 57). The Court established in particular that:“54.  ...From the materials of the case and the applicant’s submissions it is clear that there is no single view on the applicability of the 1988 Decree and the existence of a clear and foreseeable procedure for organising and holding peaceful demonstrations. The practice of the domestic courts also reveals inconsistencies in this sphere [...]. It is true that the Constitution of Ukraine provides for some general rules as to the possible restrictions on the freedom of assembly, but those rules require further elaboration in the domestic law. The only existing document establishing such a procedure is the 1988 Decree, whose provisions are not generally accepted as the valid procedure for holding demonstrations and which provides, as is confirmed in the practice of the domestic courts [...], for a different procedure from the one outlined in the Constitution. Indeed, whilst the Ukrainian Constitution requires advance notification to the authorities of an intention to hold a demonstration and stipulates that any restriction thereon can be imposed only by a court, the 1988 Decree, drafted in accordance with the Constitution of the USSR of 1978, provides that persons wishing to hold a peaceful demonstration have to seek permission from the local administration which is also entitled to ban any such demonstration. From the preamble of the Decree it is clear that it had been intended for a very different purpose, namely for only certain categories of individuals to be provided by the administration with facilities to express their views in favour of a particular ideology, this in itself being incompatible with the very essence of the freedom of assembly guaranteed by the Ukrainian Constitution and the Convention. As found by a domestic court [...], demonstrations under the 1988 Decree were considered on the basis of their compatibility with “non-existent constitutions of non-existent subjects”. Therefore, it cannot be concluded that the “procedure” referred to in Article 185-1 of the Code on Administrative Offences was formulated with sufficient precision to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions (see, mutatis mutandis, Mkrtchyan, ibid.)...55. The Court further observes that, admittedly, the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union refers to temporary application of Soviet legislation and no law has yet been enacted by the Ukrainian Parliament regulating the procedure for holding peaceful demonstrations, although Articles 39 and 92 of the Constitution clearly require that such a procedure be established by law, that is, by an Act of the Ukrainian Parliament. Whilst the Court accepts that it may take some time for a country to establish its legislative framework during a transitional period, it cannot agree that a delay of more than twenty years is justifiable, especially when such a fundamental right as freedom of peaceful assembly is at stake. The Court thus concludes that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law” (Vyerentsov v. Ukraine, cited above, §§ 54 and 55).The Court sees no reasons to depart from those conclusions in the present case, which concerns the same legal framework and in which the parties had raised similar arguments to those advanced in the case of Vyerentsov cited above.41. Having reached the conclusion that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in Article 11 § 2 have been complied with.42.

Outcome for Article 11: violation