Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The European Court of Human Rights found that Ukraine was responsible for the violation of Articles 2, 3, 5 and 11 of the European Convention on Human Rights following the abduction, ill-treatment and torture of two protestors (one of whom was murdered) by non-state agencies. The two protestors were abused (and one killed) following the Maidan protests, as a result of escalating violence and excessive force that was approved by state authorities. The Court held that the Ukrainian Government had failed to protect these protestor’s rights to life, peaceful assembly and freedom of association, and to safeguard them from torture and inhumane or degrading treatment. Moreover, the fact no independent and effective criminal investigation had taken place further violated their rights to a fair trial. Whilst the Court noted that some measures would be appropriate to contain the protests if they became disruptive, the Ukrainian authorities had instead taken active steps to punish or intimidate protestors, prevent their participation in future events and end the protests more broadly.
Following the Government’s decision to suspend signing an association agreement with the European Union, a series of mass protests took place in Ukraine between November 21, 2013 and February 23, 2014 (commonly known as the “Maidan protests” or “Euromaidan”). Lutsenko, a well-known journalist (the first Applicant), took active part in the protests, including taking care of wounded protestors. Verbytskyy (the second Applicant’s brother), a seismologist in neighbouring Lviv, travelled to Kyiv in January 2014 to participate in the protests.
On January 21, 2014, Verbytskyy injured his eye during a protest, and Lutsenko accompanied him to hospital. They were then abducted from the hospital by several plain-clothed people, taken by car to a remote area, and severely beaten and ill-treated by their abductors. They were then driven to a garage and questioned by Russian-speaking individuals about their roles in the Maidan protests, who continued to beat the pair and threaten them with death. Although Lutsenko was later abandoned by the group and managed to find help, Verbytskyy was allegedly murdered in the course of those events. His body was found the next day, and although forensic medical reports noted that he had been repeatedly hit with blunt objects and suffered multiple serious injuries, the report confirmed hypothermia as the cause of death.
Following a complaint by his wife, on 22 January, 2014 the police commenced a criminal investigation into Verbytskyy’s murder and both the men’s abductions. The second Applicant joined these proceedings as a victim. During police questioning, Lutsenko revealed that Verbytskyy was the subject of more severe beatings and hatred after the suspects discovered he was from Lviv. They had considered him to be “a representative of the most radical part of Western Ukraine, rallying against the ruling party and senior government officials” [para. 20]. Thirteen suspects were identified, but throughout the investigation process it became clear that many of the suspects – including those with a criminal history – been hired by unidentified State officials to attack, abduct, torture and intimidate the Maidan protesters. Only one suspect (one of the alleged abductors) began trial before Kyiv’s Pecherskyy District Court in June 2015. The whereabouts of the other 12 suspects are unknown (and are on a wanted list), and hence proceedings have suspended – although there are conflicting reports about the status of some of those suspects’ cases.
During those investigations, it was discovered that Lutsenko’s phone conversations had been regularly intercepted before and after the protests, that the suspects who organised the attacks had “permanent contact” with State leadership, and that unidentified police officers had shared information obtained during police surveillance about Lutsenko’s conversations and whereabouts with those suspects [para. 23]. This sparked another police investigation – into the possible involvement of police officers in the crimes against the applicants – which began on 20 August, 2014. On 25 November, 2016, two police officers were charged with the unlawful interception of Lutsenko’s phone conversation and falsification of official documents. The case was referred to the Shevchenkivskyy District Court for trial, but the trial had not concluded at the time of this case’s judgment.
The applicants lodged their cases with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 February and 8 April, 2014. The second Applicant joined the proceedings as a victim. They relied on multiple Articles of the Convention, including that the abduction and ill-treatment amounted to torture contrary to Article 3 and a violation of their right to peaceful assembly per Article 11, that Verbytskyy had been murdered contrary to Article 2, and that Verbytskyy had been tortured and murdered due to his Ukranian language and Lviv heritage, contrary to Article 14.
President O’ Leary ruled in a unanimous judgment in favour of the applicants. The main issue before the court was whether there had been a violation of Articles 2, 3, 5 and 11 of the Convention following the abduction, ill treatment and torture of the first Applicant and Verbytskyy on 21 January 2014 in Kyiv resulting in the eventual death of Verbytskyy.
For the purposes of this analysis, this note focuses on the Court’s findings regarding a violation of Article 11.
The Government argued that the Applicants’ complaints were inadmissible, as they had failed to exhaust their domestic remedies. They particularly emphasised that the suspects’ trials were still ongoing, and that those investigations were prompt, effective and no issues had been raised by either Applicant at a domestic level as to their effectiveness. The Applicants denied the above arguments. They argued that the authorities had failed to conduct the proceedings in a successful manner as they had yet to establish the identity of the remaining suspects and the police officers linked with the “Titushky” group in the abduction and torture of the Maidan protestors.
The Court held that the Applicants did not have to wait for the allegedly ineffective investigations to be completed before they were able to bring their complaints before the Court under Article 3. In its decision, the Court drew heavily from its previous decision of Shmorgunov v. Ukraine ECtHR  9078/14, 15367/14, 16280/14 et al, which had also considered the Maidan protests and police brutality, ill-treatment and defective criminal investigations conducted by state authorities. Referencing Shmorgunov, it noted the significant amount of evidence in that case pointing to various deficiencies in these investigations. Thus, the applicants’ complaints were not ill-founded.
Further, the domestic proceedings had continued for more than six years without any resolution, and any complaints made by the applicants domestically regarding these investigations were unlikely to have led to any improvement or breakthroughs in the proceedings. As such, the Courts rejected the Government’s arguments and confirmed that the applicants’ claims were admissible.
The violation of Article 11
The applicants alleged that their rights under Articles 10, 11 and 14 of the Convention had been violated, because Lutsenko and Verbytskyy were abducted, ill-treated and Verbytskyy murdered for exercising their protected right to freedom of peaceful assembly and expression. However, the Court decided to examine their complaints under Article 11 of the Convention (the right to freedom of assembly and association), in accordance with Ezelin v. France ECtHR  11800/85.
The Court first repeated its findings that the applicants were ill-treated, tortured and one was murdered, at the hands of the Ukrainian authorities following their participation in the Maidan protests – participation which was protected under the Convention.
The fact that violence was occurring between some of the protestors and police during the protests meant the authorities “clearly” needed to take “appropriate measures” to “ensure the peaceful conduct of the rallies and the safety of all citizens” [para. 111]. Citing Kudrevičius v. Lithuania [GC] ECtHR  37553/05, the Court reasoned that protestors who cause “intentional serious disruption … to ordinary life and to the activities lawfully carried out by others” above and beyond the “normal exercise of the right of peaceful assembly in a public place” could be seen as a “reprehensible act” under law and may justify penalties (even criminal in nature). Nevertheless, the Court found that there was no evidence to suggest that any appropriate measures had been taken by the authorities to “restore peace or weed out the violent strand of protestors” [para. 112]. Instead, the Government’s enactment of “anti-protest laws” on 16 January 2014, which introduced severe penalties on freedom of expression and assembly, “essentially frustrated the original obstructive, but peaceful goal of the Maidan protests” [para. 112] ( Shmorgunov). Moreover, the Court drew attention to the fact that the Government’s attempts to break up the protests using force could be said to have only escalated violence at the scene.
The intention of the applicants
However, the Court reasoned that the sheer presence of violence at a protest cannot reasonably indicate that the organisers of that event had violent intentions (Karpyuk v. Ukraine ECtHR  30582/04 and 32152/04). The Court found no evidence to suggest that the applicants intended to commit or engage in acts of violence during the protest, nor that they did not remain peaceful. As such, they were protected under Article 11 of the Convention.
The Court found that the Ukrainian authorities had indeed interfered with the rights of the applicants to freedom of peaceful assembly. It noted there are “cogent and substantial elements demonstrating that those abuses were aimed at punishing or intimidating” the applicants given their participation in the protests, “and preventing their further participation therein” [para. 115]. Those findings were enough for the Court to reasonably conclude that there had been an arbitrary interference with the applicants’ right to freedom of peaceful assembly. Further, there was nothing to suggest that the abuse the applicants suffered pursued a legitimate aim, was necessary in a democratic society, nor was it prescribed by law.
Following their abuse, torture and persecution of the first Applicant and the second Applicant’s brother during the Maidan protests, the Court found that the Government had violated Articles 2, 3, 5 and 11 of the Convention. Even though much of the escalating violence and excessive force was conducted by non-state actors, this behaviour had been approved – even acquiesced – by Government authorities as a way to end an initially peaceful series of protests. The fact no independent or thorough investigation had been conducted after the fact only further exacerbated these abuses. The Court awarded Lutsenko EUR 3,000 in pecuniary damages for his medical bills, and in terms of non-pecuniary damages, awarded Lutsenko and Verbytskyy EUR 16,000 and 25,000 respectively.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While not expressly dealing with Article 10, this judgment nevertheless expands the right to freedom of expression under the Convention. The Court noted that the right to freedom of peaceful assembly joins the right to freedom of expression as a fundamental right and foundation of a democratic society. As such, that right should not be interpreted restrictively (Djavit An v. Turkey ECtHR  20652/92 56; Kudrevičius). The Court notes in its own guidance that “the protection of opinions and the freedom to express them is one of the objectives of freedoms of assembly and association enshrined in Article 11”. Indeed, the right to freedom of assembly has deep links to the right to freedom of expressing personal opinion (Ezelin), and the need to have a safe forum of public debate and opportunities for protest. This is particularly poignant when, as in this case, state authorities interfere with the right to assembly when they disapprove of views expressed by protestors. (Primov and Others v. Russia, ECtHR  17391/06).
This judgment also follows the landmark ruling of the Court in Shmorgunov, a major breakthrough under Article 11 where the Court had recognised the atrocities inflicted during the series of mass peaceful protests in Euromaidan. The enactment of the “anti-protest” laws providing for harsh penalties against free speech and freedom of assembly was recognised by the Court as obstructing the peaceful goal of the Maidan protests. Certainly, the Court’s findings that Ukranian authorities had not only failed to fairly prosecute and investigate these crimes, but also played a key role in ordering and encouraging non-state actors to escalate the violence against protestors – ultimately protected a handful of the Applicants’ rights under the Convention in the pursuance of protecting the importance of peaceful protest.
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