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Legal opinion of the Centre for Political and Legal Reforms on the “laws” of 16 January 2014

Constitutional order /
Human rights

On January 16, 2014, members of the parliament from the Party of Regions and the Communist Party, as well as individual MPs not associated with a political party, after the adoption of the law, “On the State Budget of Ukraine for 2014” incorporated unscheduled amendments into the agenda and "adopted" a number of other "laws", including

On January 16, 2014, members of the parliament from the Party of Regions and the Communist Party, as well as individual MPs not associated with a political party, after the adoption of the law, “On the State Budget of Ukraine for 2014” incorporated unscheduled amendments into the agenda and “adopted” a number of other “laws”, including:

  • On Amending the Law of Ukraine, “On the Judicial System and Status of Judges” and procedural laws for additional measures to protect the security of citizens”(draft law № 3879 from January 14, 2014);
  • “On Amendments to the Code of Criminal Procedure of Ukraine (concerning criminal proceedings in absentia)” (draft law № 3587 from August 11, 2013);
  • “On Amendments to Certain Legislative Acts of Ukraine (regarding responsibility for administrative offences during football matches)” (draft law № 3837 from December 27, 2013);
  • “On Amendments to Certain Legislative Acts of Ukraine regarding administrative responsibility for offenses in the field of road safety, which are recorded automatically” (draft law № 3855 from September 1, 2014);
  • “On Amendments to the Rules of Procedure of the Verkhovna Rada of Ukraine” (draft law № 3883 from January 14, 2014);
  • ‘On Amending Article 297 of the Criminal Code of Ukraine (regarding responsibility for the desecration or destruction of monuments erected in memory of those who fought against the Nazis during the Second World War – including Soviet soldiers-liberators, members of guerrilla movements, the underground movement, victims of Nazi persecution and international soldiers and peacekeepers)”(draft law № 2178a from May 30, 2013);
  • “On Amendments to the Criminal Code of Ukraine regarding liability for denial or justification of the crimes of fascism” (draft law № 2179a from May 30, 2013);
  • “On Amending the Law of Ukraine “On Legal Aid” (on postponing the entry into force of the provisions of paragraph 6 of Chapter VI “Transitional Provisions”) “(draft law № 3792 from December 19, 2013);
  • ‘On Amending Article 197 of the Tax Code of Ukraine regarding an exemption from value added tax on transactions for the import of natural gas into the customs territory of Ukraine”(Draft Law № 3853-1 from January 14, 2014);
  • ‘On Amending the Law of Ukraine “On the elimination of negative impacts for and the prevention of prosecution and punishment of persons for events that took place during peaceful gatherings” (draft law № 3893 from January 16, 2014);

This opinion is primarily focused on the procedure and content of the decisions made regarding:”the law”, “Amendments to the Law of Ukraine “On the Judicial System and Status of Judges”, and procedural Laws for Additional Measures to Protect the Security of Citizens” (bill number 3879 from January 14, 2014.) However, most of the comments on the procedure for the adoption of this “law” also apply to other decisions of January 16, 2014.

Members of the Parliament, in passing the “laws” of January 16, 2014, violated the provisions of the Constitution of Ukraine and the Law “On the Verkhovna Rada of Ukraine”, including:

  • All of these bills (except the Law on the State Budget for 2014) were unlawfully placed on the agenda of the plenary session of the Verkhovna Rada of Ukraine. As a general rule (under Para. 2 of Article 96 of the Rules of Procedure), inclusion of a bill to the agenda of the Parliament is considered within 30 days after the opinion of the main committee, but no earlier than two days after the MPs submits the opinion of the main committee <…> and opinions of other committees. This situation does not fall under a special procedure granted under Para. 4 of Article 96 of the Rules of the Procedure, which allow for a procedural decision from the Verkhovna Rada for immediate consideration of a bill for inclusion into the agenda of the plenary session (without additional inclusion into the agenda of the session), if it was prepared for immediate review pursuant to the relevant order of the Verkhovna Rada. However, such orders from the Verkhovna Rada were not given;
  • Bills № 3879, № 3883, № 3893 were not distributed to the members of Parliament for review as they (including the majority of those who voted “for” these bills) did not know the content of these projects. The Bills did not pass through the procedures established in the Rules of the Procedure for discussions on a decision, and were immediately taken on their basis and as a whole. Additionally, the procedures of the Rules of the Procedure require full discussion of all proposed legislation at the plenary session of the Parliament. Neither this procedure nor the simplified procedure were complied with (Article 30, Regulation 31). It was also a violation of Para. 4 of Article 102 of the Rules of the Procedure, according to which a decision of the Verhkovna Rada for final adoption of a bill is allowed (except for draft laws and codes that contain more than 100 articles or paragraphs) immediately after the first or second reading of the bill if it is found to not require revision, and if comments on its content are not received from MPs or other subjects of legislative initiative < …>. None of the bills of January 16 were discussed at the plenary session. Members of the Parliament were not even aware of the content of the bills (e.g., № 3879). In so doing, the constitutional right of legislative initiative of MPs and other subjects as provided under Art. 93 of the Constitution was impaired. The holding of an unscheduled plenary session, and the adoption of these laws generally deprived MPs of the opportunity to propose amendments to these laws;
  • There has been a limitation of the powers of parliamentary committees to carry out the work of bill preparation and to provide a preliminary review of matters that are within the authority of the Verkhovna Rada (Para 2 of Art . 89 of the Constitution). Bills № 3879, № 3883, and № 3893 were not considered by parliamentary committees. This also violated the requirements of Para 1 of Art. 93 of the Rules of the Procedure, according to which “every bill <…> sent <…>  to a certain committee, which, based on that committee’s jurisdiction is determined to be primarily responsible for the preparation and preliminary consideration of the bill <…>, and should also be sent to the budget committee, as well as to the anti-corruption committee for the preparation of an expert opinion as to its compliance with anti-corruption legislation, and to the committee that deals with assessing the law’s conformity with the international legal obligations of Ukraine in the field of European integration for a professional expert opinion.” This procedural requirement has been completely ignored. Specifically, bill No 3879 was received by the majority of these committees on January 17 (i.e., after the “adoption” of the “law”);
  • The voting form used makes it impossible to establish the number of MPs who voted for these bills, meaning that Para 3 of Art. 84 (” Voting <…> by the Members of the Parliament of Ukraine in person “) and Art. 91 of the Constitution of Ukraine (“The Verkhovna Rada of Ukraine adopts laws by a majority of the constitutional composition of the <… “) were likely violated. Voting by the raising of hands for automatic enrollment to vote “for” by all the deputies of the two factions was unconstitutional. Instead of being counted by a counting commission, the calculation was carried out by one person, the head of this commission (who was also, incidentally, one of the authors of the most odious bill, No 3879). Additionally, Part 2 of Art. 17 of the Rules of this Committee is based on the principle of proportional representation of factions (parliamentary groups). However, in this case, three of the five factions did not participate in the vote or in counting the results;
  • There was a violation in the procedure of signing the “laws”. Under Para 2 of Art. 130 of the Rules of the Procedure, The Speaker may sign a submitted law no earlier than two <…> days after its submission, except for under certain circumstances provided for in this Regulation. In this way it was also a violation of Part 3. 130 of the Rules of the Procedure, which states the guaranteed right of Members of the Parliament to appeal to Parliament with a reasonable proposal on making adjustments to an adopted law, including in cases of violations of the legislative procedure laid down in this Rules of the Procedure, which may result in cancellation of the vote.

Therefore, all these decisions from January 16, 2014, including bill No 3879, were adopted in gross violation of the Constitution and the Law “On the Rules of the Procedure of Verkhovna Rada of Ukraine.” These decisions also violated Para. 5 of the Art. 82 of the Constitution, which determines the procedure of the Verkhovna Rada of Ukraine as stated in the Constitution of Ukraine, and the Law on the Rules of the Procedure of the Verkhovna Rada of Ukraine, and the requirements of Part 2 of Art. 19 of the Constitution, according to which public authorities, <… > and their officials are obliged to act only on the basis and within the limits and in the manner envisaged by the Constitution and laws of Ukraine.

These “acts” were passed in an unconstitutional manner and were aimed at limiting constitutional rights and freedoms, and whose content comply with neither the Constitution of Ukraine nor international standards of human rights and freedoms . In particular:

Limited freedom of peaceful assembly

In particular, a tenfold increase in fines (up to UAH 10,200) and the introduction of administrative arrests for violations of the established procedure for organizing or conducting peaceful assemblies or the facilitation of a peaceful assembly. This procedure is now defined by a Soviet decree and local acts that are contrary to Arts. 39 and 92 of the Constitution. In the case “Vyerentsov vs. Ukraine”,The European Court of Human Rights pointed out that the imposition of sanctions for a violation of said illegitimate acts is in violation of the freedom of assembly guaranteed by Art. 11 of the European Convention on Human Rights.

The use of tents, objects and constructions used as stages or for sound amplification are all elements of the exercise of the right to peaceful assembly. However, in violation of Art. 39 of the Constitution of Ukraine which provides for the notification system for the exercising of this right, the new laws require persons to obtain a permit for these items from the police.

Additionally, these laws introduce strict administrative penalties (up to 15 days under administrative arrest) for the use of masks, helmets or other means of preventing identification during peaceful demonstrations and other events, which is contrary to the OSCE’s standards for the freedom of peaceful assembly.

From the perspective of European Standards, an automatic ban on the wearing of an item that impedes identification is an inappropriate limitation of meetings of peaceful assemblies. Such actions should not be prohibited as long as the individual wearing the mask or costume is not only using it to prevent identification, but is also exhibiting behavior which gives sufficient reasons for his arrest, as long as the mask does not provide an explicit and immediate threat of imminent unlawful conduct (see paragraph 98 Explanatory Report on the OSCE guidelines on the Freedom of Peaceful Assembly).

According to the changes in the laws, the organizers of peaceful assemblies can now be deprived of a fair trial in cases involving restrictions on the freedom of assembly, as provided for by a 24 -hour period of consideration, which not only makes it impossible to properly prepare for the case, it may also even make it impossible for the accused individual to come to the court if it is located far away. The court also received the right not to enact the ruling immediately after the decision, but the decision itself must be executed immediately.

Amendments to the Law “On Enforcement Proceedings” provide an opportunity for the enforcement of restrictions on the freedom of peaceful assembly with respect to individual persons who intend to exercise this right, as well as the groups who organized these people. Criminal penalties of up to imprisonment for four yearshave been established for failure to comply with a court order in this matter. These provisions legitimize the practice of automatic bans on peaceful gatherings for any particular individual in a particular area over a certain amount of time. This practice is contrary to the standards of the OSCE and is a disproportionate restriction on the freedom of peaceful assembly.

Amendments were made to the Code of Administrative Offences regarding restrictions on the freedom of peaceful assembly and the freedom of expression. Driving in a column of cars containing at least five vehicles can result in the car being seized by the government with some remuneration provided for the removal of the vehicle. However, the mechanism for implementation of this action (only a partial refund of the seized property) is contrary to the guaranty of the protection of private property under Part 5 of Article. 41 of the Constitution.

The right to a fair trial

The adopted changes to the Code of Criminal Procedure introduce trials in absentia, which is in violation of the right to a fair trial as stated by the European Convention on Human Rights and Fundamental Freedoms, and in particular this violates the guarantee that everyone charged with a criminal offence has the right to defend oneself in person. According to the jurisprudence of the European Court of Human Rights (case “Colozza vs. Italy”), one may be tried in absentia only if one has expressly waived the exercise of one’s right to appear and to defend oneself, but not in case of repeated absence at the hearings, as is stated in the adopted “law” from January 16th.

The Code on administrative offences and procedural laws support the position that, for contempt of court, the latter (the court), may immediately impose fines of up to $5100 or impose an administrative detention of up to 15 days. This ruling, according to the “law” shall be final and cannot be appealed. Remarkably, the imposition of penalties for contempt will take place in the same court that considers itself to be the victim of disrespect. This is contrary to the fundamental principle that a judge cannot decide his own case. Moreover, the European Court of Human Rights has established in a number of cases that for severe sanctions, individuals should have sufficient time to prepare their defense, and that they have right to appeal (“Gurepka vs. Ukraine”, “Gurepka vs. Ukraine (№ 2 )”, “Luchaninovav. Ukraine,” ” Kornyev and Karpenko v. Ukraine”).

Also, contrary to Art. 121 of the Constitution, the powers of the Prosecutor were greatly expanded with regard to appealing to the court. Now these powers can be applied not only in the interests of the State or individuals as defined by the Constitution. Specifically, the prosecutor will now be able to sue in order to eliminate obstacles to the use of state and communal property, and even property associations. When a prosecutor applies for the enforcement of judgments in such cases, the stage of voluntary compliance has been removed. Thus, contrary to the principle of the equality of parties before the law and the courts (Para 3 of the Art. 129 of the Constitution), the prosecutor has received exclusive powers during the judicial process that are not available to other parties.

Regarding Extremist Activities

The Criminal Code has been supplemented by Article 110-1, “extremist activities”. The said article comprises at least two dangers.

First, the provisions of this article are not written clearly, which could result in cases where it is applied to people who have not committed any socially dangerous acts. For example, it is possible that the “spread of materials that contain elements that “incite social discord” through the Internet or social media”, may include people who are simply dissatisfied for reasons of social inequality (for example, representatives of the “Tax Maidan”), and people who are disenfranchised because of their minority status or who experience a lack in language rights in spite of being a title nation may be characterized as having made “public statements of an extremist nature” if they call for peaceful mass actions.

In non-compliance with the principle of legal certainty,the position of the “Law” is that experts on what are and what are not “extremist materials” and “statements and appeals of an extremist nature” are to be the investigators, prosecutors and courts. Therefore, this article can be a tool for criminal responsibility against members of the political opposition, civil society activists, and any other persons who are dissatisfied with government policies in various fields.

Secondly, the responsibility for the majority of acts introduced by Article 110-1 are provided for by other articles of the Criminal Code (refer, in particular, to: Part 1 and 2 of Art. 109, Part 1, Art. 110 , etc.). This will contribute to corruption and other abuses as the same act may be classified differently according the individual who committed it,and those found guiltymay be held accountable either to Article. 110-1 of the Criminal Code, or a section that contains the “signs of a more serious crime.”

In addition, Art. 4 of the Law “On Public Organisations” introduces an additional basis for banning a civil society organization – extremist activity. The definition of extremist activity is very broad and vague, which makes it possible to apply it selectively and arbitrarily. This restriction is contrary to Part 1 of Art. 37 of the Constitution, which contains an exhaustive list of grounds for prohibiting the formation and operation of NGOs.

Restrictions on the right of citizens to access information and the criminalization of defamation

Bill No 3879 introduces restrictions to the access of information by individualsthat are unacceptable for a democratic state, as well as restrictions to the right to the freedom of opinion and expression and the freedom of expression and belief. A new requirement is established for businesses to obtain a license for accessing services on the Internet. Internet providers may be obliged by a decision of a public authority to restrict their customer’s access to certain Internet resources. The State, solely on the basis of an expert opinion, may determine that the spread of certain information is against the law, and they may restrict anyone’s access to such “illegal” resources on the Internet without a court hearing. In addition, the “Law” unreasonably expanded the oversight role of the SBU for telecommunications and information systems and their users.

The return of criminal liability for defamation is cause for the total restriction of the rights guaranteed by Article 34 of the Constitution regarding the right to freedom of opinion and expression and the freedom of expression and belief. The criminalization of defamation is a mechanism for censorship in the media. It is significant that the wording of the offense does not contain any indication of the consequences of this “crime” – so to be punished for defamation, it is sufficient to prove only that the person distributed the relevant information (which has knowingly been declared unreliable, such as defaming the honor and dignity of another person).

The criminalization of defamation in terms of the legal system of Ukraine is unacceptable and is a politically motivated phenomenon that violates the rule of law and the principle of proportionality (Article 8 ), the rights to freedom of opinion and speech, as well as the freedom of expression and belief (Article 34 of the Constitution).

The availability of criminal penalties for defamation is a significant deterrent to the development of an independent media, and a return to the exercise of punishment for such an offenseiscontrary to Article 10 of the European Convention on Human Rights.

According to Art. 10 of the Convention, everyone has the right to freedom of expression – in particular, to receive and impart information and ideas without interference by a public authority. The exercise of this right may be subject only to such restrictions or penalties as are necessary in a democratic society. In the case of “Lingens vs.  Austria”, the European Court of Human Rights stated that “the freedom of expression that is guaranteed by paragraph 1 of Art. 10 is one of the essential foundations of a democratic society and is one of the basic conditions for its progress and a basic requirement for the self-realization of each individual.” Subject to the principle of proportionality and to certain restrictions of this right (but not to other fundamental rights such as the right to liberty), as are necessary and acceptable in a democracy, the freedom of expression applies to information or ideas “that offend, shock or cause anxiety. Such are the demands of pluralism, tolerance and broadmindedness without which a “democratic society” may not exist.”

In the case of“Salov v. Ukraine” the European Court of Human Rights found the application of criminal liability for defamation to be in violation of the principle of proportionality, and to be unnecessary in a democratic society. These changes to the Criminal Code can resume the practice criminality in Ukrainian courts, which is contrary to the European Convention on Human Rights.

Although the European Court of Human Rights found that there is not criminal liability for violations of the Convention regarding defamation, it repeatedly pointed to the disproportionate criminal penalties for damage to reputation, and stated that preference should be given to civil remedies to the reputation. According to the Court, prosecution in order to protect a reputation or other legitimate interests is possible only in certain serious cases – for example, in case of statements that encourage violence or incite hatred.

Therefore, the amended Criminal Code article on defamation is actually a return to the worst practices of Soviet authoritarianism for combatting dissent under the guise of the rule of law.

Restrictions on the freedom of association (the ” foreign agents “)

Amendments to the Tax Code and the Law “On Public Associations”, have introduced into the Ukrainian regulatory field the concept of a “public association, acting as a foreign agent.”

The term used here by the Members of the Parliament is both flawed and discriminatory. After all, the Ukrainian word for “agent” can be defined as a representative, a trustee organization, an institution, or anyone who performs certain tasks or assignments, or it could refer to an entity or individual that acts as someone’s protégé, serves someone’s interests, or is an employee of a secret intelligence agency or any state organization, aka, a spy.

Thus, those who voted for the “law” believe that obtaining support from foreign sources is sufficient grounds for declaring a public association to be guilty of betraying national interests, including the public interest. Meanwhile, “thanks” to the current Ukrainian tax legislation, public organizations find it extremely difficult to function today without international grants and the support of foreign non-governmental organizations. Rather than the imposition of repressive rules against active and caring members of their own society, democratic countries use criminal law to combat foreign agents (in the sense of spies or other enemies).

By the way, from the perspective of the content and ideology adopted by these restrictions, the most active ‘foreign agent’is currently the State itselfas it seeks to attract foreign and international aid, and directed loans.

The proposed innovations are of an administrative (responsibility for registration, monthly reporting to legal authorities, additional accounting), tax (taxation as a business entity) and moral character (obligatory indication of agent status in the name of the organization, a ban on shortening this name, an indication in the materials and instructions that are issued or distributed by the public association that they area foreign agent), and have an obvious discriminatory effect. In fact, civil society organizations are required to carry-out their own self defamation. Violation of any of these new duties could lead to a ban on civil unions, contrary to Part 1 of Art. 37 of the Constitution, which sets out an exhaustive list of reasons for banning the activities of NGOs. These repressive provisions are in contravention of the Constitution and other provisions, and introduce a narrow notion of political, economic and ideological diversity (Article 15), they establish a presumption of the anti-Ukrainian nature of the international community (Article 18), and they restrict the right to freedom of the individual (p. 23) and the equality of citizens and associations of citizens before the law (arts. 24 and 36).

The attempt by the authorities to link the issue of “foreign agents” to the experience of the United States is inaccurate. In particular, the law on the registration of foreign agents in America (The Foreign Agents Registration Act of 1938) provides for state registration of individuals and organizations (companies, associations, partnerships or any other form) that operate in the United States under the control of foreign principals, foreign governments, foreign political parties, or foreign individuals or legal entities. Individuals and organizations are considered to be agents of foreign principals, if they carry out the activities, specifically determined by the said law:

  • Political activity in the United States in the interests of a foreign principal;
  • Work as an advisor in the U.S. on public relations, as a press secretary , as an employee of an information service, or as a foreign policy advisor to the principal or its interest (this does not apply to news agencies in the U.S. that are not owned by foreign governments or individuals);
  • The soliciting, collection, disbursement and distribution of contributions, loans, money or other valuables in the United States for a foreign principal, or in his interest;
  • Representation of a foreign principal before the authorities in the United States.

Under the definition of an agent of a foreign principal, there are some activities that are considered exceptions. One should not be registered as an agent of foreign principal if one conducts certain activities in the interest of the foreign principal, e.g.:

  • Formal service activities of the officials of foreign states, diplomats, consuls and staff representatives of foreign states in the United States;
  • Lobbying (this is covered by the provision of the law governing the activities of lobbyists);
  • Legal support to judicial, administrative or other proceedings and procedures in accordance with the existing laws and regulations to be conducted on the record;
  • Bona fide representation of private and non-political business issues and other matters in which the main interest is not primarily foreign; soliciting and collecting charitable help for medical treatment; collecting food and clothing to relieve human suffering;
  • Bona fide religious, scientific, and artistic activities.

Such activities may be carried out under the terms of a service contract, an employment contract, or any other types of agreement between the agent and the foreign principal. Agents of foreign principals must register with the Department of Justice and provide detailed reports on the funding of the foreign principal, the identity of its principal, all of the business conducted in the best interest of the principal etc.

The “Laws” of January 16, 2014 are of an obviously repressive nature, and involve a disproportionate increase in penalties. Administrative penalties and criminal penalties have been increased by at least two times. At the same times, penalties for some new, less dangerous offenses, carry penalties that far exceed those for more dangerous crimes.

For example, making a death threat can lead to up to 2 years of imprisonment, while for theft the punishment may be up to 3 years, and for robbery 4 years. For rape or manslaughter, the punishment may be 5 years. However, after these changes,the willful destruction of the property of a police officer and his family may also lead to a sentence of up to 5 years imprisonment. Participation in group hooliganism can also be punished up to 5 years, and blocking access to housing to a group of people – up to 6 years (i.e., the destruction of housing carries a smaller punishment than blocking entry to it). The penalty for resisting law enforcement officers is up to 6 years imprisonment. This reverses the logic of the Constitution regarding the priority of protecting human life and health.

These changes violate the established public policy for the humanization of criminal legislation, which was implemented with the adoption of the Criminal Code in 2001, a systematic reduction of penalties in 2008, and, finally, the decriminalization of economic crimes in 2011.

Therefore, a preliminary analysis leads to the conclusion that the “laws” of January 16, 2014, were “adopted” in flagrant breach of the Constitution of Ukraine and the rule of law which it embodies, and are aimed at narrowing the content and scope of constitutional rights and freedoms for citizens of Ukraine, and include the following violations:

  • The requirements of Part 2 of Art. 8 of the Constitution, whereby the Constitution of Ukraine has the highest legal force. Laws and other legal acts are to be adopted on the basis of the Constitution of Ukraine, and shall conform to it;
  • Para 2 of Art. 19 of the Constitution , according to which governmental bodies and their officials are obliged to act only on the basis and within the limits and in the manner envisaged by the Constitution and laws of Ukraine;
  • Paras 2, 2 of Art. 22 of the Constitution, according to which constitutional rights and freedoms are guaranteed and cannot be canceled.The adoption of new laws or the amending of existing laws shall not diminish the content or scope of existing rights and freedoms;
  • Part 1 of Art. 34 of the Constitution, according to which everyone is guaranteed the right to freedom of opinion and speech, as well as freedom of expression and opinion;
  • Paras 1 and 4 of Art. 36 of the Constitution, according to which citizens of Ukraine have the right to freedom of association in public associations, and to exercise and protect their right to pursue their political, economic, social, cultural and other interests. All public associations are equal before the law;
  • Para 1 of Art. 39 of the Constitution, according to which citizens have the right to assemble peacefully without arms and to hold meetings, rallies, and demonstrations.

In addition, the rules of Arts. 3, 15, 18, 23, 24, Para 1 of Art. 37 , Para. 5 of Art. 82, Para 3 of the Art. 84, Para. 2 of Art. 89, Arts. 91, 92 and 93, 121, 129 of the Constitution were violated.

Considering the obvious illegality of the “laws” of January 16, 2014, both in their procedure of adoption and their content, these acts can be considered to be void, i.e. those that have no legal force.

All citizens of Ukraine, as well as all government bodies and their officials are obliged to abide by the Constitution of Ukraine, which carries the supremacy, and must act in accordance with its rules, which have direct effect.