Weekly analytics for 10 – 18 March 2020

Without Introducing a State of Emergency, Restrictive Measures Regarding the Human Rights and Freedoms to Prevent the Spread of the COVID-19 Coronavirus in Ukraine are Unconstitutional

On 16 March 2020, Cabinet of Ministers of Ukraine issued Order No 290-р «On Amending the Order of Cabinet of Ministers of Ukraine of 14 March 2020 No 287» and Resolution No 215 «On Amending the Resolution of the Cabinet of Ministers of Ukraine of 11 March 2020 р. No 211». According to these documents, the Government, in addition to the restrictions already in force, introduced the additional quarantine measures to prevent the spread of acute respiratory disease COVID-19 caused by the SARS-CoV-2 coronavirus.

On 17 March 2020, the Verkhovna Rada of Ukraine at an extraordinary plenary session adopted Law of Ukraine «On Amendments to Some Legislative Acts of Ukraine Aimed at Preventing and Spread of Coronavirus Disease (COVID-19)» of 16.03.2020, which, in particular, amends the Code of Administrative Offenses of Ukraine and the Criminal Code of Ukraine regarding the liability for violations in this field.

The CPLR has previously pointed out that restrictive measures introduced by the Government and the President of Ukraine in March 2020 to prevent the spread of coronavirus disease (COVID-19) are unconstitutional from the legal standpoint of view because they restrict the constitutional rights and freedoms beyond the timeframe of martial law or of a state of emergency.

The CPRL reminds that in the events of a pandemic outbreak, there are legal mechanism for proper reaction. According to the Constitution of Ukraine and Law of Ukraine “On Legal Regime of a State of Emergency” of 16 March 2000, there is a possibility of the temporary introduction of a state of emergency in Ukraine on a national or local level in the event of natural disasters that have caused or can cause human and material losses, endanger life and/or the health of people.

Introducing of a state of emergency shall vest the relevant bodies of public administration, military command and the bodies of local self-government with the authority needed to avert the threat and ensure the security and health of individuals, the proper operation of the national economy, public administration and the bodies of local self-government, as well as the protection of the constitutional system. It also enables the temporary restriction of rights and freedoms of individuals, as well as and the rights and legal interest of legal persons.

According to Article 83 (3), Article 85 (1) (31), Article 106 (1) (21) of the Constitution of Ukraine and Article 5 of the Law on Emergency, above-mentioned, a state of emergency in Ukraine on national or local level shall be introduced by a Decree of the President of Ukraine, approved by the Verkhovna Rada of Ukraine within a two-day term. The Cabinet of Ministers of Ukraine shall submit the proposals for the introduction of a state of emergency on the grounds of pandemic or other natural emergencies. The Decree of the President of Ukraine introducing a state of emergency shall indicate:

•  the justification of the need for a state of emergency;
•  area with boundaries, where a state of emergency has been introduced;
•  the time of the commencement of the state of emergency, and the period, for which the state of emergency has been introduced;
•  both the list and the limits of emergency measures, the exhaustive list of constitutional rights and freedoms of individual and of rights and legitimate interests of legal persons restricted on a temporary basis due to the institution of the state of emergency, with the specification of the period of validity of such restrictions;
•  bodies of public administration, military command and the bodies of local self-government, which are entrusted to take the emergency measures, and limits of their additional powers;
•  other miscellanies issues arising from the implementation of the Law on Emergency.

Because of this, we encourage President of Ukraine as the guarantor of the observance of the Constitution of Ukraine and human rights and freedoms, as well as the Cabinet of Ministers of Ukraine as the highest body in the system of bodies of executive power, to observe and to act within the limits of the Constitution of Ukraine, and do not introduce additional restrictive measures that contravene the legal mechanisms stipulated by the Constitution and laws of Ukraine. According to Article 64 of Constitution of Ukraine, human rights and freedoms shall be restricted only in the cases clearly envisaged by the Constitution of Ukraine.

Constitutional Court almost completely abolished Zelensky's judicial reform. What's next?

Event

On March 11, the Constitutional Court adopted a decision on the Supreme Court’s submission on the Law No.193-IX (the so-called “President Volodymyr Zelensky’s judicial reform”).

The Constitutional Court declared unconstitutional the provisions which:

•  reduced the composition of the Supreme Court;
•  reduced the salaries of the Supreme Court judges;
•  introduced a new approach to the formation of the High Qualifications Commission of Judges;
•  introduced the Commission on Integrity and Ethics which is authorized to initiate the dismissal of members of the High Qualifications Commission of Judges, the High Council of Justice and the Supreme Court;
•  reduced the terms of giving explanations by the judge in the disciplinary proceedings, the terms of notification of the judge and the complainant about the meeting in their disciplinary case, introduced the possibility of considering the disciplinary case in the absence of a duly notified judge, as well as introduced the right to independently initiate disciplinary proceedings by members of the High Council of Justice and disciplinary chambers.

The Constitutional Court also recommended that the Verkhovna Rada immediately bring the provisions of Ukrainian legislation in compliance with this Decision.

Earlier, the Centre of Policy and Legal Reform provided the Constitutional Court with an opinion on this case, stating that only the provisions on the Supreme Court’s reduction were unconstitutional.

CPLR comment

Most of “Zelensky’s judicial reform” provisions have been recognized unconstitutional. In fact, only the provisions on the termination of the powers of the previous composition of the High Qualifications Commission of Judges and on the selection board for the formation of its new composition remained without negative assessment.

Information on the Constitutional Court’s decision and its possible consequences was commented by Roman Kuybida, Deputy Head of the Board of the Centre of Policy and Legal Reform:

“The Constitutional Court’s conclusion on the unconstitutionality of reducing the composition of the Supreme Court in the manner proposed by the law was quite expected and lawful. Now this idea needs to be rejected.

On the other hand, in my opinion, the Constitutional Court left the possibility for the President as the initiator of the reform, as well as the Parliament:

•  to establish motivated fair rates of judges’ remuneration so that they are not so different from those of judges of different level courts and socially fair, while maintaining sufficient guarantees of financial independence;
•  to accelerate the formation of the High Qualifications Commission of Judges under the new competitive selection rules, completely removing the High Council of Justice from the selection process;
•  to establish a Commission on Integrity and Ethics as an independent body, including from the High Council of Justice, by adjusting its functions to the Constitutional Court’s decision;
•  to review the rules of the disciplinary procedure in order to improve the fairness and effectiveness of the disciplinary procedure.”

For a complete legal analysis of the text of the decision, see the link.

Governmental decree to restrict mass events due to coronavirus does not automatically ban peaceful assembly

Event

On March 11, the Cabinet of Ministers of Ukraine approved a list of measures related to the threat of the spread of the coronavirus epidemic. In particular, the Government has decided to introduce restrictions on holding mass events for the period from March 12 to April 3, in which 200 or more people are scheduled to participate. Sports competitions in the territory of Ukraine can be conducted only with the permission of international organizations and without the participation of spectators. The restrictions introduced do not relate to measures necessary to ensure the functioning of public authorities and local self-government.

Restrictions are imposed on the basis of Article 29 of the Law of Ukraine “On the Protection of People against Infectious Diseases”. According to the Law, the Government has the right to establish a quarantine, specifying the circumstances that led to it, to the limits of the quarantine territory, to establish temporary restrictions on the rights of individuals and legal entities and the additional duties assigned to them. Quarantine is set for the period necessary to eliminate an epidemic or outbreak of a particularly dangerous infectious disease. During this period, the operating modes of enterprises, institutions, organizations may change, and other necessary changes may be made regarding the conditions of their production activities and other activities.

CPLR assessment

There is no definition of “mass events” in Ukrainian law. From the standpoint of conventional interpretation of terms in the Ukrainian language and the principles of formal logic, “mass events” is a concept that covers the widest possible range of activities that involve the conscious gathering of large numbers of people. It is about cultural, educational, entertaining or sport events, as well as a peaceful assembly.

One can assume that attempts may be made to interpret the restrictions imposed as being applicable to peaceful assembly.

At the same time, according to Maksym Sereda, an expert of the Centre of Policy and Legal Reform, the resolution of the Cabinet of Ministers of Ukraine cannot be interpreted as imposing an automatic ban on peaceful assemblies of more than 200 people. The expert explains that the Constitution makes no exception to the general quarantine procedure. Instead, the Constitution provides that restrictions on the freedom of peaceful assembly may only be imposed by a court in accordance with law. Thus, the Governmental Resolution merely gives additional grounds to the executive or local self-government bodies to address the court for restriction of peaceful assemblies in order to prevent the spread of dangerous infectious diseases. The final decision in each case must be made by the court on the basis of an assessment of all the circumstances of the case and in accordance with the principle of proportionality.

However, automatic restriction of the freedom of peaceful assembly without a court decision is still possible, since freedom of peaceful assembly does not belong to the list of freedoms that cannot be restricted during a state of emergency or martial law (Article 64 of the Constitution of Ukraine).

In accordance with Article 4 of the Law on the Legal Regime of Emergency, a state of emergency may be imposed in the event of particularly severe natural or man-made emergencies (in particular, pandemics). The Presidential Decree on the imposition of a state of emergency shall specify the list and limits of emergency measures, a comprehensive list of constitutional rights and freedoms of a person and citizen, which are temporarily restricted in connection with the introduction of a state of emergency, and a list of temporary restrictions on the rights and legal interests of legal persons specifying the validity of these restrictions. The Presidential Decree on Emergency must be approved by Parliament.

“Thus, the Constitution allows limiting the right to peaceful assembly automatically (without a court decision),” sums up Maksym Sereda, “but such a restriction may be lawful only in the event of a martial law or a state of emergency in Ukraine.”

The Council of Judges of Ukraine approved recommendations on the special quarantine regime. Most of the recommendations are reasonable, but some of them are against the law, – the CPLR experts believe

Event

On March 17, the Council of Judges of Ukraine approved recommendations on the special quarantine regime for the courts. Earlier, this initiative was made by the Chairman of the Council of Judges of Ukraine B. Monich, who sent a letter to all courts with similar recommendations on March 16.

In accordance with the decision of the Council of Judges of Ukraine, for the period from March 16 to April 3, courts are recommended to introduce the following measures:

•  explain to citizens the possibility of postponing the consideration of cases in connection with quarantine measures and the possibility of hearing cases in videoconference mode;
•  suspend all activities, which are not related to the court’s procedural activities and ensuring the activities of the judiciary (roundtables, seminars, open days, etc.);
•  suspend the personal reception of citizens by the court management;
•  limit access of persons who are not parties of court proceedings to court sessions;
•  limit access to court sessions and court premises of persons with symptoms of respiratory diseases: pale face, redness of eyes, cough;
•  make the court case materials available to the participants of the proceedings remotely, if there is a technical possibility to do so, by sending scanned copies of the court case materials to the e-mail specified in the respective application, to receive the notifications of acquaintance through remote communication channels;
•  reduce the number of court sessions for consideration of cases that are scheduled during the working day;
•  where possible, to hear cases without participation of the parties, by written procedure;
•  judges and the court staff having at least the slightest signs of illness should take the self-isolation measures, inform the relevant health care institution and the court management by telephone, e-mail.

In addition, the Council of Judges of Ukraine recommends that citizens and other persons:

•  submit all necessary documents (claims, statements, complaints, withdrawals, explanations, petitions, etc.) electronically to the court’s e-mail address, via a personal account in the E-court system, by mail, fax or remote communication means;
•  participants of court sessions should submit to courts their applications to hear cases in their absence on the basis of available case materials;
•  refrain from visiting court premises, especially in the presence of illness (weakness, cough, shortness of breath, difficulty breathing, etc.).

CPLR Assessment

The CPLR considers the efforts of the Council of Judges of Ukraine aimed at protecting the population and court employees from spreading a dangerous infectious disease are timely.

According to the CPLR expert Maksym Sereda, the recommendations to suspend all activities, which are not directly related to the administration of justice, to acquaint the case participants with the case materials remotely (online), to refrain from attending court in case of signs of illness by both employees and consumers of court services are reasonable.

Proposals to reduce the number of court sessions that are scheduled during one day, to explain to citizens the possibility to request a postponement of court proceedings, to consider cases in written procedure if there are legal grounds for this, are also rational. At the same time, the CPLR experts consider that the most effective way would be to postpone consideration of civil, commercial and administrative cases for the period of quarantine (except for urgent cases). This is because of the fact that the parties will not be able to fully enjoy their procedural rights in case of a mass hearing of the cases by means of written procedure.

In addition, the Council of Judges of Ukraine should refrain from making recommendations that are directly contrary to the law. In particular, the proposal to limit the access of persons who are not parties of the proceedings to the court sessions is not in line with the law. Pursuant to part 3 of Article 11 of the Law of Ukraine “On Judicial System and Status of Judges”, the court proceedings are open, except in cases established by law. Any person may be present at an open court session. Therefore, as the expert observes, there is currently no legal basis for limiting the admission of citizens to open court sessions. They can only be recommended to refrain from attending court.

According to Maksym Sereda, the CPLR expert, it is also illegal to recommend that persons with respiratory symptoms (paleness, eyes’ redness, cough) should not be allowed to court premises. After all, any of these signs does not necessarily indicate the presence of the disease. Attempting to put such approaches into practice can lead to numerous abuses, since it is unclear, who and in what way will decide whether to allow a person to enter the court promise.

The President plans to further control the SSU contrary to the Constitution – a draft law

Event

Last week, the text of the draft Law on Amending the Law of Ukraine “On the Security Service of Ukraine” appeared on the website of the Verkhovna Rada related to improving the organizational and legal foundations of the activity of the Security Service of Ukraine (Reg. No. 3196 of 10.03.2020). The President defined it as urgent.

This draft law proposes new wording of the current Law on the Security Service. Amendments to a number of other laws, including the CPC of Ukraine, are also proposed. The stated purpose of the draft law is to provide legislative support to the reform of the Security Service of Ukraine, in accordance with the transitional provisions of the Law on National Security of Ukraine (2018).

CPLR assessment

The Presidential draft law is large in scope and needs detailed analysis. At the same time, two very serious conceptual disadvantages of the draft law can be ascertained.

First. The draft law proposes to consolidate the status of the Security Service as “a state special-purpose law enforcement agency that provides state security.” This construction almost literally repeats the current definition of the status of Ukrainian counterintelligence service: “a state special purpose body with law enforcement functions that ensures state security.”

The meaning of this status is that it is a prerequisite for subordination of the Security Service to the President.

However, the words “state [law enforcement] authority” and, accordingly, such status, is a completely artificial legal structure that aims to fulfill only one function – to remove the Security Service from the system of executive authorities. The rest of the provisions of the draft law and the current law, which confer on the President additional powers over the Security Service, are not autonomous and based solely on the outlined status.

Last year, the Constitutional Court stated the inadmissibility of this approach. In its decision of June 13, 2019 No. 5-r /2019, it emphasized that the formation of a permanent state body, which has the characteristics of a central executive body by its functionality, sphere of activity and powers, but is not subordinated to the Cabinet of Ministers and does not belong to the system of executive authorities, does not agree with the Constitution.

According to the Constitution, state security is ensured by relevant military formations and law enforcement agencies. In its text, the relevant functions of the state and the bodies [security, defense and law enforcement] are mostly mentioned through commas in each appropriate case. The Constitution also stipulates that the assurance of state sovereignty and the implementation of measures to ensure defense and national security is a responsibility of the Cabinet of Ministers.

Second. Currently, the Security Service is not only a counterintelligence body, but also a body that investigates criminal offenses, and the draft law changes nothing in this respect. It investigates criminal offenses being a body directly subordinated to the President.

However, the Constitutional Court in its Opinion No. 7-в/2019 of December 16, 2019 emphasized that the situation when the pre-trial investigation bodies fall even under the indirect authority of the President, threatens the independence of these bodies and leads to a concentration of executive power on the President. In turn, this violates the balance of constitutional powers between the President and the Cabinet of Ministers and in effect creates a parallel executive power subordinated to the President. As a result, such a concentration of power weakens the constitutional guarantees of rights and freedoms. At the same time, the separation of powers is a basic tool and a prerequisite for preventing the concentration of power, and therefore an instrument against abuse of power for the proper exercise of rights and freedoms.

This opinion of the Constitutional Court is based on the same approach as the above-mentioned decision of June 13, 2019 No. 5-p / 2019. The Constitutional Court insists that if the functional designation, sphere of activity and powers of a permanent state body are similar to those of a government, such a state body must be included in the system of executive bodies headed by the Cabinet of Ministers and has the status of a central executive body. According to the Constitution, the Cabinet of Ministers undertakes measures to combat crime.

Therefore, the Verkhovna Rada should return the draft law No. 3196 to the President as a subject of the legislative initiative for revision. This is because it does not reach its real objective – the reform of the Security Service, in particular it does not take into account PACE Recommendations No. 1402 (1999), 1466 (2005) and 1713 (2005) on reforming the national security and defense sector and contains unconstitutional provisions.

Iryna Venediktova was appointed as the new Prosecutor General

Event

On March 17, the Verkhovna Rada agreed to appoint Iryna Venediktova as Prosecutor General.

According to Art. 131-1 of the Constitution of Ukraine, the Prosecutor’s General Office of Ukraine is headed by the Prosecutor General, who`s appointment and dismissal are the powers of the President with the approval of the Verkhovna Rada. The Prosecutor General’s term of office is six years.

CPLR assessment

The appointment of Iryna Venediktova was made possible because on March 5, the Verkhovna Rada dismissed Prosecutor General Ruslan Ryaboshapka from his position. The previous Prosecutor General had been dismissed solely for political reasons, since the Resolution of distrust does not contain assessment of his professional performance (CPLR`s assessment here).

As the CPLR expert Eugene Krapyvin noted: «The main reason for the dismissal of the Prosecutor General Ruslan Ryaboshapka was his lack of loyalty, control over him by the President. That is why he was replaced by Iryna Venediktova – a lawyer, specialized in civil law, who does not have experience of working in a position that requires independent activity.

Iryna Venediktova has managed to become a Member of Parliament for the last year, leading the Verkhovna Rada Committee on Legal Policy and Justice and became an acting director of the State Bureau of Investigation. This was all thanks to the President’s direct support. Given the lack of experience of working in the criminal justice system and be loyal to the President, it is unlikely that she will be independent in office. This, in turn, may result in politically motivated criminal proseedings and use of the prosecutor’s office for other political purposes».

Adequate qualification procedures for the selection of candidates for the post of Prosecutor General could eliminate the risk of politicization of the Prosecutor’s General position. In particular, this was repeatedly emphasized by Council of Europe bodies in their conclusions and recommendations for Ukraine.

Parliament of Ukraine established responsibility for breaking the quarantine rules

Event

On March 17, the Verkhovna Rada adopted, at an extraordinary plenary meeting, the draft law No. 3219 on the prevention of spreading the coronavirus disease (COVID-19), which had been initiated the day before. In particular, the responsibility for violation of quarantine rules was established – by the amendments to the Code of Administrative Offenses and to the Criminal Code of Ukraine:

1. The Code of Administrative Offenses is supplemented by Article 44-3 “Violation of the rules on quarantine of people”. The offense consists in violation of the rules on quarantine of people, sanitary-hygienic, sanitary-anti-epidemic rules and provisions stipulated by the Law of Ukraine “On protection of the population against infectious diseases”, other acts of legislation, as well as decisions of local self-government bodies on combating infections. Penalty: for individuals – a fine from 17 to 34 thousand UAH (from 568 to 1136 EUR); officials – from 34 to 170 thousand UAH (from 1136 to 5683 EUR).

2. The sanction of Article 325 of the Criminal Code “Violation of sanitary rules and norms on prevention of infectious diseases and mass poisoning” is increased, namely: the penalty in the form of a fine increases from 1700 UAH (56 EUR) to from 17 to 51 thousand UAH (from 568 to 1704 EUR), and the punishment of imprisonment is added to up to three years.

CPLR assessment

1) regarding the changes to the Code of Administrative Offenses:

The opinion of the Expert Directorate of the Verkhovna Rada contains a critical remark that was not eliminated during the voting: «establishment of administrative responsibility for violation of the rules on quarantine of people, sanitary-hygienic, sanitary-anti-epidemic rules and norms stipulated by “other acts of legislation, and local self-government bodies to combat infectious diseases ”is inadmissible. After all, the objective signs of an administrative offense should be clearly stated in the article (part of the article) of the Special part of the Code of Administrative Offenses and therefore understood by the law enforcement agencies». Indeed, according to Art. 92 of the Constitution of Ukraine, exclusively by the laws of Ukraine, defines acts that are administrative offenses and responsibility for them.

Also Art. 44-3 of the Code of Administrative Offenses does not determine what the rules and regulations are and what is considered a violation. The fine for violation (up to 170 thousand UAH (5683 EUR)) is inadequate and much higher than for the crime under Art. 325 of the Criminal Code, despite the fact that this article of the Criminal Code provides for the consequences of causing infectious diseases or mass poisoning or the possibility of causing them, and Art. 44-3 of the Code of Administrative Offenses punishes only the violation of unclear rules and provisions.

2) regarding changes to the Criminal Code:

According to unofficial information from the drafters of the bill, imprisonment is necessary in order to allow for the use of house arrest for those who violate quarantine security measures. However, what exactly are the rules and regulations in Art. 325 of the Criminal Code, and who may be the subject of their violation – exclusively by an official or by any person, is unclear. In addition, if the violation did not cause any harm, such a sanction is disproportionate, even in the context of combating a coronavirus pandemic.

3) a general question

In the end, the changes made to the Code of Administrative Offenses and the Criminal Code are incomprehensible and are not likely to have a positive effect on stopping the pandemic. The question of the introduction of a state of emergency, which is the only legitimate way of substantially restricting human rights and freedoms, remains relevant (see the CPLR position for more details). In recent days, the unofficial text of the draft amendments to the Law on the State of Emergency has been circulated in the media, which concerned simplification of grounds for search of the person, introduction of curfew and prohibition of peaceful gatherings. There is currently no formal legislative initiative, and no changes have been made to such provisions, what is important.