ECHR judgment of June 18, 2019 in the case of Chernega and Others v. Ukraine (application N 74768/10).
In 2010, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, the application was successfully examined regarding the courts' failure to take into account the charges against the police for resisting the legal uncertainty caused by the intervention of the private security company and the state's inability to ensure the peaceful nature of the protests. The case contained a violation of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicants took an active part in the actions against the construction of the road through the city park. The protesters tried by force to stop the cutting of trees, as well as the construction work carried out in the park. During these events, the protesters clashed with private security guards who tried to remove the protesters from the construction site. Several protesters, including the applicants, were detained. Some of them were found guilty of an administrative offense in the form of resistance to the employees of internal affairs bodies and sentenced to them with sentences of imprisonment.
QUESTIONS OF LAW
(a) Admissibility. The main customer of the construction has signed an agreement on the provision of security services with a local state company. The powers of security officers were based on a license that any commercial legal entity providing security services could obtain. In this regard, this license was similar to the license of private security companies. Even though the company in question was wholly owned by the municipal authorities, it was different from the municipal government agencies, as it carried out commercial activities, which were mostly regulated by private law. This difference is further emphasized by the fact that the company and its employees were hired by a private company to protect the construction site under a contract. However, such circumstances are not sufficient to relieve the authorities of Ukraine from conventional liability for the actions of the guards of this company.
The police officers were present at a number of key events raised in the complaint, in which security officers took part, and the police seemed to be passive in relation to all actions directed against those who prevented the construction. In a certain context, this fact alone would be enough to blame the Ukrainian authorities. Taking into account its case-law on this issue, the European Court of Justice has ruled that the actions of the security company employees can be regarded as the actions of state representatives.
(b) Merits. Regarding compliance with Article 3 of the Convention (substantive aspect). A lot of photos and videos were taken from the scene. However, no evidence was found that would link any particular person to the injuries sustained by the applicants. There was no evidence that police officers or other persons for whose actions the state was responsible would use tear gas, rubber truncheons or other means to disperse mass gatherings, which, together with the nature of the injuries sustained by the applicants, would lead to the conclusion that bodily the damage was caused to the applicants by such means. In their testimonies, the applicants claimed that in the days when they were injured, the protesters actively tried to interfere with the work of the construction equipment, and the actions of the security company mainly consisted in trying to oust the protesters from the construction site, which in itself cannot be qualified as cruel appeal. The Court was unable to establish, in the light of an acceptable standard of proof, that the applicants were subjected to treatment that reached the level of cruelty required by Article 3 of the Convention and obliged the authorities to protect the applicants.
There was no violation of Article 3 of the Convention in respect of the seventh and ninth applicants (accepted unanimously).
Regarding compliance with Article 3 of the Convention (procedural aspect). The Ukrainian authorities constantly kept information about all their decisions, or at least significantly delayed the provision of such information to the applicants, contrary to the direct requirements of Ukrainian legislation. In this regard, the decision to refuse to institute criminal proceedings was never considered by the courts of Ukraine.
There was a violation of Article 3 of the Convention in its procedural and legal aspect in respect of the seventh and ninth applicants.
Concerning compliance with article 6, paragraph 1, of the Convention. The Kharkiv Regional Court of Appeal examined the complaints against the sentences imposed on the two applicants in the case, both on facts and law. As regards the fairness of the proceedings, it was important that the applicants should have been present at the appeal court, unless they expressly waived this right. The mere fact that the applicants' lawyer did not require their presence at the hearing was not decisive in this regard. On the contrary, the following factors were significant: firstly, the applicants were not notified of the hearings in the court of appeal, as required by Ukrainian law, and secondly, the current legislation did not seem to provide for any procedure in cases of administrative offenses so that the applicants who were in custody could apply for their presence at the court of appeal. In such circumstances, it could not be unambiguously established that the applicants had waived their right to attend the hearing of the appeal court, nor could it be said that the required guarantees of effectiveness existed in the event of such a refusal.
There was a violation of the requirements of Article 6 § 1 of the Convention in respect of the first and second applicants (accepted unanimously).
Regarding compliance with article 11 of the Convention. The interference was based on the legislation of Ukraine, namely, Article 185 of the Code of Ukraine on Administrative Offenses, which established a punishment for disobeying the lawful requirement of a police officer, and this interference pursued the legitimate aim of protecting the health and safety of protesters and persons performing work.
As regards the legality of the interference, the Court rejected the applicants' argument that any actions aimed at curbing their protest were unlawful, since Article 39 of the Constitution of Ukraine required the authorities to obtain a court order to disperse the meeting of protesters.
This provision of the Constitution of Ukraine, apparently, provided for a regulatory provision according to which the procedure for judicial restrictions of citizens ’meetings was connected with the preliminary notification procedure, which allowed the authorities to apply to the court with a request to apply certain restrictions to the planned meeting. The Code of Administrative Offenses required the court to reject the request for a court order if it was submitted late, that is, on the day of the scheduled meeting or after it. The latter provision was examined in the Chumak v. Ukraine judgment of 6 March 2018, complaint No. 44529/09, in which the European Court, for this reason, expressed doubt as to whether the judicial procedure in question could have been properly used to disperse an already held meeting. The Court was not convinced that exclusively preventive actions, which by their nature would normally be considered unlawful as violating the rights and legitimate interests of third parties, could, in principle and in practice, depend on the requirements of prior notification. Such a requirement would deprive the actions in question of most of their effect and would be a requirement to voice the intention to violate the law. In the circumstances of the applicants ’case, this meant that since there was no notification, a trial could not be initiated with regard to the prohibition of the protest rally.
As regards the proportionality of the interference, it appears that the police gave orders in the usual way, without using a loudspeaker, despite the noisy situation at the construction site. Moreover, the previous requirement to disperse was voiced by a person who did not have the distinctive signs of a police officer, obviously a civilian, and failure to fulfill this requirement led to the fact that the protesters were detained by employees of a private security company. There was reason to doubt that the order repeated by the police would be immediately clear to all the protesters. In any case, the second order was announced only when the movement of protesters was already forcibly restricted. This is not to say that the authorities were overloaded with work or that operational circumstances prevented them from achieving greater clarity in transmitting information: in general, by the time the police officers announced their order, the protesters were already localized by construction site security officers in a small area.
In such circumstances, the Court could not rule out that the protesters, including the applicants, were confused about the authorities who ordered them to leave the construction site and about the practical ways to carry out this order. This misunderstanding was partly due to a lack of clarity in the distribution of powers between members of a private security company and police officers. This aspect of the case is of particular importance in the light of the internationally expressed concern about the appropriateness of using private security firms to curb the actions of individuals exercising their right to freedom of peaceful assembly, and regarding the need to resort to the intervention of police officers rather than private security firms in case of doubt.
Nonetheless, these arguments alone are not sufficient for the Court to admit that the Ukrainian courts, which had the advantage of directly examining evidence, including questioning witnesses, erred in the factual findings that the applicants did not obey the lawful order of the police to leave construction site. In addition, the events in question should not be considered in isolation, but in a wider context: by that date it was well known that construction was taking place in the area where the applicants were located, and the applicants, who, in their own words, participated in previous protests, so they could not help but know that in order to stop their interference in the process of felling trees and in construction, police officers are likely to be involved.
Given the importance of the right to freedom of peaceful assembly in a democratic society, the Ukrainian courts were obliged to take into account the indicated possible confusing situation in which the applicants found themselves and which concerned the source of the order and the method of its implementation. However, the courts did not. They also did not explain the severity of the punishment imposed on the first and second applicants, especially in comparison with the punishments imposed on the other protesters, and did not note any particularities in the actions of the first and second applicants that would justify a special treatment. Despite the fact that the sentences of the first and second applicants were commuted after appeal, they were still deprived of their liberty for nine days. The Court's findings of procedural violations during the proceedings against the first and second applicants exacerbated the conclusion that the use of force was disproportionate.
There was a violation of Article 11 of the Convention in respect of the first and second applicants (accepted unanimously).
As regards the third to fifth applicants, the case file indicated that they deliberately resisted in the danger zone. Moreover, for some time the authorities were tolerant even of such dangerous protest actions, and the applicants were detained and convicted not for their protest activity as such, but for failure to comply with the requirement to leave the construction site. A certain degree of reaction to such behavior may be considered appropriate. The expulsion of the applicants from the construction site and their conviction for an administrative offense, taking into account the nature of the punishment applied to them, were proportional to their legitimate aim.
There was no violation of the requirements of Article 11 of the Convention in respect of the third to fifth applicants (adopted by six votes in favor and one against).
The sixth applicant was convicted of refusing to obey the order of the police to leave the construction site and for resisting them. There was no indication in the case that the order was unsubstantiated, unclear or that any other circumstances would have prevented the sixth applicant from executing it. If the sixth applicant complied with the order, nothing would have prevented him from continuing to protest outside the construction site. In addition, the sixth applicant had clearly expressed his intention to return to the construction site and to continue active measures to impede construction work. It should be noted that the sixth applicant directly expressed his intentions to the police to continue the unlawful actions, and he did not refute these words in the courtroom and did not provide any explanation in this regard. In such circumstances, the 10-day sentence imposed on the applicant could not be considered clearly disproportionate. It cannot be said that the courts of Ukraine exceeded the limits of discretion granted to them.
In the case, there was no violation of the requirements of Article 11 of the Convention in respect of the sixth applicant (adopted by six votes in favor and one against).
The seventh and ninth applicants alleged that they had been injured by people who tried to counter them during various protests. It seems that the Ukrainian legislation did not authorize private security guards to assume the functions of crowd control or dispersal of meetings in public places. Moreover, apparently, even in clearly defined protected areas, the powers of these persons should have been limited in principle by suppressing unauthorized access to the territory, and any coercion beyond this should have been applied only in exceptional circumstances in case of urgent need. This implied the requirement that in any urgent situations, employees of a private security company should call for help from the police, which was in line with international best practice in the field of private security.
However, in reality, everything was different. Evidence showed that even though the construction site was marked with ribbons, the de facto protesters were present there earlier and continued to be there. Access to the construction site was not to some extent restricted, except for the placement of restrictive tapes. In such circumstances, the participation of security officers was in attempts to oust the protesters from the path of construction equipment and from the construction site, and not to prevent these people from entering the construction site. Such a situation was fraught with increased tension and could lead to even greater conflict than a simple denial of access to a clearly defined and protected area. In other words, security guards acted on the basis of regulations on work within a fenced and clearly defined perimeter with limited access, which, apparently, was not applicable or at least inappropriate in the context of events that actually developed.
It should be recognized that the legislation of Ukraine, apparently, also allowed security guards to carry out, in a broader sense, any necessary actions to prevent the commission of offenses or to control non-damage in case of emergency. However, in the present case, nothing indicates that such an urgency did exist. The situation was not unexpected, because at the time of the events under consideration, the confrontation lasted for seven and 11 days, respectively, and the main contractor, who hired employees of a private security company, notified the police in advance of the likelihood of clashes with protesters. The police officers were fully prepared, as noted in the police action plan, on the days of the clashes, during which the applicants were injured but did not carry out any significant interference that could have prevented the clashes or effectively controlled them.
Although in some circumstances a certain degree of restraint on the part of police officers in maintaining public order at citizens ’meetings might be appropriate or even necessary under the Convention, no specific reasons were given for applying an effective non-intervention strategy. Moreover, as mentioned above, this strategy led to the fact that the employees of a private security company remained to deal with the protesters in circumstances that inevitably meant increased tension and, in the absence of clear legal powers, the guards themselves took actions to force the protesters.
The lack of clarity regarding the status and authority of employees of a private security company was complicated by the reliable assertion that unidentified persons who wore the guards' uniforms were not present at the construction site and were not entitled to do so. This situation does not correspond to the best practice in the field of private security activities and touches on issues of compliance with the provisions of the legislation of Ukraine. However, it appears that no concerted action has been taken to investigate these worrisome circumstances. The refusal of the Ukrainian authorities to take any measures to investigate the alleged penetration of these unidentified persons who did not have any authority into the construction site was a manifestation of the inability of the Ukrainian authorities to make reasonable efforts to ensure the peaceful nature of the protests.
The Court concluded that, (i) not properly regulating the use of force by members of a private security company, (ii) not properly organizing the separation of powers in maintaining order between private security guards and police officers, which would also allow for the identification of genuine private employees security company, (iii) not applying the rules on the proper identification of persons entitled to use force, and (iv) not explaining the decision of the police not to intervene in any significant way m in the prevention of clashes between citizens or in their effective control, the Ukrainian authorities have not fulfilled their obligation to ensure the peaceful nature of the protests.
There was a violation of Article 11 of the Convention in respect of the seventh and ninth applicants (accepted unanimously).
In application of Article 41 of the Convention. The Court awarded the first, second, seventh and ninth applicants EUR 6,000 each in respect of non-pecuniary damage.