Political Points for 20–27 May 2019
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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62 people’s deputies addressed the Constitutional Court regarding the unconstitutionality of the dissolution of Parliament
1. CPLR expert opinion
On May 24, people’s deputies of Ukraine raised the issue of unconstitutionality of the Presidential Decree on early termination of powers of the Parliament and the appointment of early elections before the Constitutional Court. Experts of the Centre of Policy and Legal Reform support this decision and share the position on the unconstitutionality of the Decree.
2. Respective authorities counter-point/argument
The Constitutional Court received the submission and, at this stage, assigned it to the judge-speaker.
3. CPLR assessment of the authorities counter-point
The Constitutional Court should consider the submission of people’s deputies and adopt a Decision on the (un)constitutionality of early termination of parliamentary powers.
This is critical for the Constitutional Court to adopt it before the day of voting, because in the opposite case, subject to the establishment of unconstitutionality, the legality and, as a consequence, legitimacy, of the next convocation of Parliament will be in jeopardy. It is important to prevent such a development of events. Right now, the Constitutional Court, as the only body of constitutional jurisdiction, should take a proactive position and resolve the conflict between Parliament and the President. It is unacceptable to reach the point at which the political crisis will turn into a constitutional one.
To this end, the Constitutional Court should determine this constitutional proceedings as urgent, and, in accordance with the procedure stipulated by part three of Article 75 of the Law of Ukraine “On the Constitutional Court of Ukraine”, consider constitutional proceedings within one month.
4. Related legislation/instructions which require the authorities act in a certain manner
The Constitution of Ukraine, the Law of Ukraine “On the Constitutional Court of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.
We call on the Constitutional Court to determine constitutional proceedings as urgent and to consider it within one month.
Rivne precedent: return of repressive practices against participants in peaceful gatherings?
1. CPLR expert opinion
According to the media, in Rivne, two members of the peaceful gathering in support of the impeachment of the President of Ukraine V. Zelensky were detained by the police for “unauthorized” peaceful assembly. The police officers issued administrative protocols in relation to the participants of the action under Article 185-1 of the Code of Ukraine on Administrative Offenses (CUoAO) “Violation of the procedure for organization and holding of peaceful gatherings”. Bringing them to administrative liability is motivated by the fact that the participants of the peaceful assembly did not notify on its holding in accordance with the established procedure. In addition, since one of the “offenders” is a minor girl, an administrative protocol was drawn up against her mother for the failure of parents to perform their duties on the education of children under Art. 184 of the CUoAO.
Experts of the Centre of Policy and Legal Reform are of the opinion that the detention of the participants in the gathering and the drawing up of administrative protocols against them is a manifestation of arbitrary actions of the police. In accordance with the case law of the European Court of Human Rights, which is the source of law in Ukraine, breaking up the demonstration solely because of the lack of prior notification, in the absence of any unlawful actions by the demonstration participants, is not in line with the criterion of “the need for a democratic society”. Thus, in the case “Bucta agaings Hungary”, the European Court concluded: “In cases where an immediate response to a political event in the form of a demonstration is being considered, the decision to break up the demonstration solely because of a lack of prior notification, in the absence of any unlawful actions by the demonstrators, constitutes a disproportionate restriction of the freedom of peaceful assembly” (p. 36).
In addition, although the Constitution of Ukraine contains a general provision on the need to notify executive authorities and local self-government bodies on the holding of a peaceful assembly, there are no legislative norms in Ukraine that specify this provision. In particular, the laws do not have specific provisions as to which executive authorities or local governments should be notified, and the timing for making such a prior notification. In view of the existence of such legal gaps, the question arises whether citizens can, under existing legal regulation, foresee the consequences of their actions of not reporting about the peaceful assembly. The answer to this question was given by the European Court of Human Rights in the case of “Verentsov against Ukraine”. According to the Court’s opinion, “the Constitution of Ukraine provides certain general rules on possible restrictions on freedom of assembly, but these rules require further development in national legislation …. Having analyzed the national law on peaceful gatherings, the European Court of Human Rights resolved that “it is impossible to conclude that the “procedure” specified in Article 185-1 of the Code of Ukraine on Administrative Offenses is sufficiently clear in order to enable an applicant to foresee, to the extent that it was substantiated by circumstances, the consequences of his/her actions ” (paragraph 54).
2. Respective authorities counter-point/argument
The Spokesman of the National Police stated, that the police would conduct an official investigation of the police officers’ actions during the incident in Rivne, when administrative protocols were drawn up against the participants of the gathering for the impeachment of the President. According to him, from the legal point of view, police officers acted within the framework of their responsibilities, but they could apply milder methods of influence, for example, conduct a preventive and explanatory conversation and issue a verbal warning. The National Police Spokesman also informed that an explanatory discussion will be conducted with the staff member of the police department about one of the principles of police reform, namely – in which cases the methods of communication with citizens on the clarification of compliance with the requirements of the law should first be applied.
The President of Ukraine V. Zelensky also reacted to the situation on Facebook. “I explored the situation regarding the alleged arrest of a boy and girl who arranged a protest against me in Rivne. There was no detention, but police officers could act less severely. The police will conduct an official check. I urge the Ministry of Internal Affairs not to take actions against political protesters if people do not violate the public order. I’m not afraid of the criticism.”
3. CPLR assessment of the authorities counter-point
Experts of the Centre of Policy and Legal Reform do not agree with the assessment of the Spokesman of the National Police of Ukraine on the actions of the police officers as being carried out within the limits of their responsibilities. Commentary by the Spokesman of the National Police of Ukraine and actions of the police officers testify to the insufficient level of police awareness on Ukrainian legislation and international standards regarding the right to peaceful assembly. At the same time, we can welcome the decision of the National Police leadership on the appointment of an official investigation on this incident.
4. Related legislation/instructions which require the authorities act in a certain manner
According to Article 39 of the Constitution of Ukraine, citizens have the right to gather peacefully, without weapons and to hold meetings, rallies, campaigns and demonstrations, about which executive bodies and local self-governments are notified in advance.
Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order – in order to prevent disturbances or crimes, to protect public health or the rights and freedoms of others.
Article 92 of the Constitution of Ukraine provides that the rights and freedoms of a person and a citizen, guarantees of these rights and freedoms and main duties of a citizen may be determined only by the laws;
According to the judgment of the European Court of Human Rights in the case “Verentsov against Ukraine”, “the Constitution of Ukraine provides certain general rules on possible restrictions on freedom of assembly, but these rules require further development in national legislation …. Having analyzed the national law on peaceful gatherings, the European Court of Human Rights resolved that “it is impossible to conclude that the “procedure” specified in Article 185-1 of the Code of Ukraine on Administrative Offenses is sufficiently clear in order to enable an applicant to foresee, to the extent that it was substantiated by circumstances, the consequences of his/her actions ” (paragraph 54).
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
In the opinion of the CPLR experts, a law on the abolition of liability under Article 185-1 of the CUoAO should be adopted.