On October 6, 2015, the European Court of Human Rights (ECtHR) released its judgment in Karpyuk and Others v. Ukraine, concerning the criminal prosecution of seven applicants who were involved in mass protests in Kiev in March 2001. See ECtHR, Karpyuk and Others v. Ukraine, nos. 30582/04 and 32152/04, Judgment of 6 October 2015. The Court held that two applicants’ rights under Article 6 (fair trial) of the European Convention on Human Rights (Convention) were violated when witnesses did not attend their trial. The Court also found that Ukraine violated Article 11 (freedom of assembly and association) of the Convention when it imposed disproportionate sentences on three of the applicants with respect to their involvement in the protests. However, the Court found that the applicants’ fair trial rights were not contravened in other respects, even though one applicant’s legal aid lawyer failed to appear for some of the hearings, another was removed from the courtroom twice for improper behavior, and all were held in cages in the courtroom during the proceedings. [ECtHR Press Release]
Facts and Domestic Procedure
The applicants were seven Ukrainian nationals who took part in mass protests in Kiev in March 2001, and who were leaders, members, or supporters of a nationalist party known as the Ukrainian National Assembly (UNA). Specifically, they participated in a political rally commemorating the 187th birthday of Taras Shevchenko, a famous Ukrainian poet. The organizers of the protest did not provide advanced notice to Ukrainian authorities, as required by the Ukrainian constitution. The rally sought to prevent Leonid Kuchma, the president of Ukraine at the time, from placing flowers at the poet’s monument. Prior to the rally, the police had cordoned off the area near the poet’s monument, but protesters tried to break through and attacked the police. Several protesters were arrested. See Karpyuk and Others v. Ukraine, Judgment of 6 October 2015, at paras. 1-11.
Later the same day, protesters, including the applicants, marched to the Ministry of the Interior building demanding the release of those who had been arrested earlier. After leaving the Ministry of Interior building, the protesters continued marching to the city center, where they attacked police officers who had blocked access to the President’s Administration building. During the week following the protests, the seven applicants were arrested and charged with organizing and participating in mass disorder. See id. at paras. 11-17.
During the district court proceedings and the proceedings before the Kyiv Court of Appeal, six of the applicants were placed in a metal cage. In December 2002, the District Court found the applicants guilty of either organizing or actively participating in mass disorder or both. All of the applicants appealed the district court’s judgment on several grounds, including that the verdict was not substantiated by the evidence, and that they were denied the ability to confront some witnesses. See id. at paras. 18-19, 44, 62-63.
Following an unsuccessful appeal, the Supreme Court also rejected the applicants’ arguments and declined to review their convictions, but did reduce one applicant’s sentence. See id. at paras. 67-69.
The seven applicants lodged complaints with the European Court of Human Rights (ECtHR) in August 2004, alleging violations of the following articles of the European Convention on Human Rights (Convention): Article 3 (prohibition against torture), Article 6 (right to a fair trial), Article 10 (freedom of expression), and Article 11 (freedom of assembly and association). [ECtHR Press Release]
Article 3: Prohibition against Torture
The Court found the applicants’ complaints alleging violations of Article 3 (prohibition against torture) of the European Convention on Human Rights (Convention) inadmissible, noting that none of the applications alleging these violations were filed within the required six-month time limit. Six applicants alleged that their rights under Article 3 had been violated when they had been confined in a metal cage during the proceedings before the District Court and the Kyiv Court of Appeal. Another applicant alleged that his rights under Article 3 had been violated while he had been subjected to ill-treatment in police custody, and also by the conditions he faced while in detention, as well as the lack of adequate medical treatment for tuberculosis. See id. at paras. 92-100.
Article 6: Right to a Fair Trial
The Court found the applicants’ Article 6 (right to a fair trial) complaints inadmissible with respect to how being placed in metal cage during proceedings before the District Court and Kyiv Court of Appeal restricted access to their lawyers. The Court noted that the applicants did not provide specific details regarding how their confinement hindered their ability to communicate with their attorneys or use notes and documents. For example, the applicants did not describe the position of the cage with respect to where their attorneys were situated or whether they were restricted from communicating with their attorneys through the metal bars of the cage. The Court’s judgment does not discuss whether any of the applicants alleged that being placed in a metal cage could have prejudiced the tribunal against them, thereby possibly violating their right to a fair trial. See id. at paras. 157-173.
Article 10: Freedom of Expression and Article 11: Freedom of Assembly and Association
The Court admitted the applicants’ complaints alleging violations of their rights under Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). The applicants alleged that their rights had been violated as a result of being denied access to the poet’s monument, and by their arrest and conviction following the rally and protests on March 9, 2001. The Court concluded that the issues of fact and law raised by these incidents required an examination of the merits and that the complaints satisfied all of the admissibility requirements. See id. at paras. 177-185.
Article 11: Freedom of Assembly and Association
The Court only examined the applicants’ claims under Article 11 (freedom of assembly and association), noting that an examination under Article 10 (freedom of expression) was not necessary in this case because the complaints relied heavily on the fact that the applicants were convicted of participating in a political rally with other protesters. See id. at paras. 191-193.
The Court’s jurisprudence dictates that an interference with the right to freedom of peaceful assembly constitutes a breach of Article 11 unless the interference is “prescribed by law,” “pursues one or more legitimate aims,” and is “necessary in a democratic society.” See id. at para. 212.
With respect to three of the applicants, the Court found that their rights under Article 11 had been violated when the domestic courts imposed sentences on these applicants that were disproportionate to the legitimate aim of maintaining public safety. Two of the applicants had been convicted of organizing mass disorder and inciting violence, including by chanting slogans such as “On the attack!” and “Impale the traitors!” and participating in clashes with the police; they received prison sentences of two years and six months and three years. The third applicant, who was only convicted of organizing mass disorder, initially received the longest sentence of the three applicants: five years in prison (eventually reduced to three years). See id. at paras. 222-23, 232, 238.
In reaching its conclusion, the Court considered that the domestic courts did not evaluate the weight of each of the applicant’s actions on his conviction and sentence, but instead convicted the applicants for their actions cumulatively. The Court reasoned that the violence that ensued at the protests was “substantially less serious” than in other cases, which involved the use of deadlier weapons, such as automatic firearms, and resulted in shorter sentences for the convicted parties. Also, the Court noted that the applicants in this case did not call for violence against specific individuals. Additionally, the Court noted that the applicant who had only been convicted of organizing mass disorder received the longest sentence. Moreover, the Court reasoned that the lengthy sentences had to have a chilling effect with respect to the applicants and other people seeking to organize public protests. See id. at paras. 222-238.
Other ECtHR Judgments Involving Similar Facts
The Court has found violations of Article 6 in both civil and criminal cases, including in instances where the courtroom set-up infringed on defendants’ communication with their attorneys. See ECtHR, Guide on Article 6: Right to a Fair Trial (civil limb); ECtHR, Guide on Article 6: Right to a Fair Trial (criminal limb). For example, in Khodorkovskiy and Lebedev v. Russia, the Court found the applicants’ right to a fair trial was violated when the attorneys had to maintain a 50-centimeter distance from their clients (who were in a metal cage) while speaking with them and their conversations took place with escort officers nearby, thereby risking a breach of confidentiality. See ECtHR, Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, Judgment of 25 July 2013, paras. 646-648.
In Schwabe and M.G. v. Germany, the Court found that the applicants’ right to freedom of assembly and association had been violated when they were detained for participating in demonstrations against the G8 summit in Rostock in 2007, including by displaying slogans on banners criticizing the security measures taken by the police. The police arrested and detained the applicants for more than five days to prevent them from further participating in the demonstrations. In reaching its conclusion, the Court noted that less intrusive measures could have been used to protect public safety, and that the prolonged detention had a chilling effect on freedom of expression and restricted public debate. See ECtHR, Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, Judgment of 1 December 2011, paras. 117-118.