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Political Points for 16 – 23 July 2018

23.07.2018

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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People’s deputies requested the Constitutional Court to abolish e-declaration for activists


1. CPLR expert opinion

On March 28, 2017, the Verkhovna Rada extended an e-declaration obligation, which was aimed at persons performing functions of the state in order to fight corruption, on anti-corruption activists.

New legislative provisions are discriminatory, contradictory to the Constitution, contain obvious legislative errors and are simply unclear (even to the specific state body – the National Agency for Corruption Prevention). Discriminatory provisions that set inappropriate reporting obligations for civic organizations and activists caused exceptionally negative statements and criticisms from both the expert community and the international community.

2. Respective authorities counter-point/argument

The President “insisted on the immediate abolition of e-declaration for activists”, the Speaker “was calming the internal tension” by invalidating these provisions while the two largest pro-government factions, the BPP and the People’s Front, promised to vote for the same abolition of e-declarations. However, in March and April, parliamentary attempts to abolish discriminatory provisions did not succeed. Thus, the discriminatory provisions are still in effect today.

On June 13, the Ombudsman of the Verkhovna Rada for Human Rights after receiving a request from the coalition of civil society organizations of the RPR, addressed  the Constitutional Court with her own petition regarding the recognition of provisions on the declaration of activists as unconstitutional.

3. CPLR assessment of the authorities counter-point

The Center of Policy and Legal Reforms considers such provisions unconstitutional and inadmissible in a democratic society. That is why the public (under legal supervision of the CPLR) prepared an open constitutional petition for the recognition as unconstitutional of e-declarations for activists and appealed to the President, people’s deputies and the Ombudsman for Human Rights (subjects of the right to a constitutional petition) with a request to submit it to the Constitutional Court. And on July 20, the Constitutional Court of Ukraine received a constitutional petition of 65 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) of the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” of October 14, 2014, No. 1700- VII and paragraph 2 of Section II “Final Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding the Peculiarities of Financial Control of Certain Categories of Officials” of March 23, 2017.

4. Related legislation/instructions which require the authorities act in a certain manner.

Setting for an indefinite range of individuals who receive funds within certain categories of programs, are engaged in a certain type of activity, participate in public organizations engaged in a certain type of activity, of anti-corruption prohibitions, restrictions and obligations intended for persons exercising state functions, contradicts the principle of the rule of law (part one of Article 8 of the Constitution of Ukraine) in terms of violation of legal certainty, as well as contrary to the constitutional right to freedom of association (Article 36 of the Constitution of Ukraine), to the principle of equality and the prohibition of restrictions on the basis of the type of activity, non-interference in private life (Articles 21, 24, 32 of the Constitution of Ukraine).

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.

The Constitutional Court of Ukraine should open proceedings upon the petition of 65 people’s deputies and declare unconstitutional the provisions of paragraph 5 of part one of Article 3, paragraph 3 of part three of Article 45 of the Law of Ukraine “On Prevention of Corruption” of October 14, 2014, No. 1700-VІІ and paragraph 2 of Section ІІ “Final Provisions “of the Law of Ukraine” On Amendments to Certain Legislative Acts of Ukraine regarding the Peculiarities of Financial Control of Certain Categories of Officials” of March 23, 2017.