Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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1. CPLR expert opinion
Introduction of “measures for ensuring national security and defense, repression and deterrence of armed aggression of the Russian Federation in the Donetsk and Luhansk oblasts” on April 30, 2018 by a number of acts of the President of Ukraine with limited access, caused legal uncertainty as to the effect of many provisions of the legislation (on judicial system, criminal responsibility, taxes, social security, etc.) that are applied during the anti-terrorist operation (ATO). It is not clear whether the ATO has been officially terminated and whether these provisions can still be applied.
In particular, during the ATO, the courts informed litigation participants residing in the ATO area of the court hearings and court decisions through announcements on the official judicial web portal. They are still doing this. However, if the ATO is terminated, then there may be disputes as to the appropriateness of informing the litigation participants of its results, the adopted court decisions may be canceled.
The CPLR is of the opinion that the by-laws, the publication of which is related to the effectiveness of laws, should be made public.
2. Respective authorities counter-point/argument
On April 30, 2018, the President of Ukraine issued a Decree “On Approval of the Decision of the National Security and Defense Council “On a Large-scale Anti-terrorist Operation on the Territory of Donetsk and Luhansk Oblasts”. This decision of the National Security and Defense Council has not been made public as a document for official use. According to the notification on the site of the President of Ukraine, it is about changing the format of a large-scale anti-terrorist operation, which commenced in 2014. It is indicated that the President also signed the Order of the Supreme Commander-in-Chief of the Armed Forces of Ukraine “On the Commencement of the Operation of the Joint Forces for the National Security and Defense, Repression and Deterrence of Armed Aggression of the Russian Federation in the Territory of Donetsk and Luhansk Oblasts”, according to which starting from 14.00 April 30, 2018, an operation was launched to ensure national security and defense, repression and deterrence of Russian armed aggression in Donetsk and Luhansk oblasts. And although the President of Ukraine stated that the ATO was over, no legal document that would be made public confirmed this statement.
Experts of the CPLR sent a number of requests for obtaining access to public information asking to provide texts of the relevant acts on the termination of the ATO, but received a number of different replies without real answers (reply of the Presidential Administration 1, Annex and 2, reply of the National Security and Defense Council, reply of the Ministry of Defense, replies of the Security Service 1 and 2).
Only the response of the Security Service can lead to the conclusion that on the basis of the Presidential Decree “On Approval of the Decision of the National Security and Defense Council “On a Large-scale Anti-terrorist Operation in the Territory of Donetsk and Luhansk Oblasts”, by the decision of the First Deputy Head of the Anti-Terrorist Center under the Security Service of April 30, 2018, No. 33-1/4129 the ATO was terminated. The text itself was not provided.
At the same time, the responses of the Presidential Administration and the Ministry of Defense are focused on the fact that the ATO can be conducted simultaneously with the operation of the Joint Forces.
3. CPLR assessment of the authorities counter-point
Refusal to publish by-laws on the termination of the ATO, the content of which is related to the effectiveness of laws, will lead to controversial situations, increase the burden on the judicial system, lead to delays in the consideration of cases due to the possible cancellation of court decisions.
4. Related legislation/instructions which require the authorities act in a certain manner
According to Article 57 of the Constitution of Ukraine, everyone is guaranteed the right to know his/her rights and obligations; laws and other normative legal acts defining the rights and obligations of citizens must be brought to the knowledge of the population in accordance with the procedure established by law. Laws and other normative legal acts defining the rights and obligations of citizens that are not brought to the knowledge of the population in accordance with the procedure established by law, are deemed to be ineffective.
The Law of Ukraine “On Temporary Measures for the Period of Anti-Terrorist Operation” dated September 2, 2014 defines the period of the anti-terrorist operation as the time between the date of entry into force of the Decree of the President of Ukraine “On the Decision of the National Security and Defense Council of Ukraine of April 13, 2014 “On Urgent Measures concerning Overcoming the Terrorist Threat and Maintaining the Territorial Integrity of Ukraine” dated April 14, 2014, No. № 405/2014, and the date of entry into force of the Presidential Decree on the completion of the anti-terrorist operation or military actions on the territory of Ukraine.
According to the Security Service's response, the Decree of the President of Ukraine on the completion of the anti-terrorist operation is the Decree of the President “On Approval of the Decision of the National Security and Defense Council "On a Large-Scale Anti-terrorist Operation in the Territory of Donetsk and Luhansk Oblasts” of April 30, 2018. However, this is not evident from the published part of the text of the Decree.
In the course of the ATO period, numerous provisions were introduced into the legislation to be applied during the ATO. In particular, many provisions of procedural laws, Tax and Customs Codes, social security laws, etc. relate to the conduct of the ATO. The formal replacement of the ATO with the Joint Forces operation would have to terminate these provisions, while the need to preserve their validity may remain.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The following actions are needed to solve this problem:
- publication of acts relating to the continuation or termination of the ATO in connection with the commencement of operations for the maintenance of national security and defense, repression and deterrence of armed aggression of the Russian Federation in the territory of Donetsk and Lugansk oblasts;
- in case of termination of the ATO, through amendments to the laws, prolongation of the validity of the provisions, the application of which is also relevant in the event of the replacement of the ATO with the operation of the Joint Forces.