Statement on events in Verkhovna Rada of Ukraine on 16 January 2014

Members of two parliamentary factions in power voted on 16 January 2014 for the draft law №3 879 “On changes to the Law of Ukraine “On judiciary and status of judges” and procedural laws on additional security measures for public safety” and nine other draft laws.

All these laws were adopted in violation of principles of the rule of law, with grave procedural breaches and are aimed at limiting the substance and scope of constitutional rights and freedoms of citizens of Ukraine.

The members of the parliament who voted for these laws have violated the Constitution of Ukraine and the Law of Ukraine “On the rules of the Verkhovna Rada of Ukraine”, particularly in such ways:

• members of the parliament and other subjects of legislative initiative were deprived of their right to legislative initiative provided in Art. 93 of the Constitution of Ukraine, because they did not have an opportunity to submit suggestions and amendments to these draft laws;
• committees of the Verkhovna Rada of Ukraine were prevented from exercise of their constitutional powers to work on draft laws, prepare them for hearings and hold preliminary hearings (Art. 89 of the Constitution of Ukraine), since most committees received the said draft laws only on the next day after their adoption and could not examine them;
• the applied form of voting did not allow to determine the number of members of parliament that voted for the draft laws, which violates Art. 84 and Art. 91 of the Constitution of Ukraine, prescribing personal voting of members of the parliament and adoption of laws with the majority of the entire membership;
• there was a violation of Art. 82 of the Constitution of Ukraine, which provides that all activity of the Verkhovna Rada of Ukraine should be in compliance with the Constitution and the Law of Ukraine “On the rules of proceedings of the Verkhovna Rada of Ukraine”, as well as Art. 19 of the Constitution, according to which public authorities and their officials have to act only based on their powers and in the manner prescribed in the Constitution and Laws of Ukraine; 
• the draft laws were unlawfully included on the agenda of the plenary session of the Verkhovna Rada of Ukraine;
• the draft laws were not distributed to the members of the parliament for review; the draft laws were not subject to discussions according to the Rules of the Verkhovna Rada before their adoption and were adopted in the first and last reading simultaneously.

The adopted “laws” deprive citizens of Ukraine of the right to fair trial. The adopted changes to the Code of Criminal Procedure introduce trials in absentia in violation of the right to fair trial laid down by the European Convention on Human Rights and Fundamental Freedoms, particularly of the guarantee to everyone charged with a criminal offence 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 expressly waived exercise of one’s right to appear and to defend oneself, but not in case of repeated absence at the hearings, as it is stated in the adopted “law”.

The Code of Administrative Offences and procedural laws were supplemented with new provisions, stating that disrespect to court draws a fine up to UAH 5,100 or an administrative arrest for 15 days. The resolution of the court is final and may not be appealed. The penalty for disrespect to the court is imposed by the same court that deems itself a victim of disrespect. This contravenes the fundamental principle of fair justice that nobody may be a judge in a case of one’s own.

In violation of Art. 121 and Art. 129 of the Constitution of Ukraine, powers of the prosecution office in proceedings before the court. Prosecutors received exceptional powers in procedures before the court that are unavailable to other parties of the case, in violation of the fundamental principle of equality of parties before the law and before the court.

Amendments to the Code on Administrative Offences violate the constitutional right to private property. The guarantees of security of private property are violated by the introduced administrative penalty for movement in the column of five cars – expropriation of the car with a partial compensation of its value.

The adopted draft law No 3879 grants the state new instruments to limit a right to access to information that are unacceptable in a democratic state. A new requirement to obtain licenses was introduced for Internet providers. Internet providers will be required to limit their clients’ access to the Internet based on the decision of a state authority. Also, oversight functions of the State Security Service of Ukraine over telecommunication and information systems and their users were unreasonably extended.

The definition of “extremist activity” in the draft law No 3879 is too broad and ambiguous and may be grounds to prohibit civil society organizations in violation of Art. 37 of the Constitution of Ukraine, which provides an exhaustive list of such grounds.

Also, the definition of extremism in the Criminal Code of Ukraine allows its application to persons that have committed no offences, but are dissatisfied with the government or situation in the country.

The draft law No 3879 restricts freedom of association provided in Art. 36 of the Constitution of Ukraine which prescribes equality of all civil society associations, introducing the new term “foreign agent” thus allowing to limit activity and to dissolve any civil society organization.

Criminalization of libel is grounds for limitation of the right to freedom of speech secured by Art. 34 of the Constitution of Ukraine on a massive scale. Criminal responsibility for libel contravenes the European Convention on Human Rights and Fundamental Freedoms and is a mechanism for media censorship.

The adopted amendments to a number of laws completely negate the right to peaceful assembly. In particular, breach of the procedure for organization and conducting peaceful assemblies and facilitation such assemblies draw administrative arrest or an increased by ten times fine of UAH 10,200 (Arts. 185-1 and 185-2 of the Code on Administrative Offences). Such rules of organization of peaceful assemblies are laid down by acts that contravene Arts. 39 and 92 of the Constitution of Ukraine: a soviet resolution and local governments’ acts. As it was stated by the European Court of Human Rights in the case “Verentsov vs. Ukraine”, application of sanctions for breach of the aforementioned illegitimate acts is a violation of the right to peaceful assembly, secured by Art. 11 of the European Convention on Human Rights and Fundamental Freedoms.

Use of tents, objects and constructions used as stages, aerophones are all elements of exercise of right to peaceful assembly. However, in violation of Art. 39 of the Constitution of Ukraine which provides the notification system for exercise of this right, the new laws require persons to obtain permit to use them from police.

The newly adopted “laws” are repressive and provide for unsubstantiated introduction of responsibility for exercise of fundamental human rights and disproportionate increase in severity of penalties for exercise of right for peaceful assembly. Administrative penalties and criminal punishments were doubled. Meanwhile, sanctions for some administrative offences are significantly heavier than criminal punishments for crimes.

Having signed the abovementioned draft laws, Victor Yanukovych destroyed the remains of democracy and rule of law that are secured by the Constitution of Ukraine.

National University of Kyiv-Mohyla Academy

Centre for Political and Legal Reforms