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Venice Commission Presented an Opinion on Ukraine’s Draft Law No 3612 concerning Democracy through All-Ukraine Referendum

Constitutional order /

On 13 May 2020, the Speaker of the Verkhovna Rada of Ukraine requested legal expertise from Venice Commission on the Draft Law No 3612 concerning Democracy through All-Ukraine Referendum. This Draft Law was developed by the Workgroup on Democracy and submitted by the President of Ukraine on 9 June 2020. On 21 July 2020, the Venice Commission presented an urgent joint opinion (No 990/2020) with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on Ukraine’s Draft Law.

The opinion dealt with the conformity of the Draft law No 3612 with international standards, in particular with the Code of Good Practice on Referendums, drafted by the Venice Commission (CDL-AD(2007)008rev-cor), as well as with the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE/OSCE (1990 OSCE Copenhagen Document) and the Updating guidelines to ensure fair referendums in Council of Europe member States Parliamentary Assembly of the Council of Europe Resolution 2251 (2019). It was not intended at assessing its conformity with the Constitution of Ukraine, related national legislation on election and referendum, as well as relevant decisions of the Constitutional Court of Ukraine.

The Venice Commission and the ODIHR welcomed Ukraine’s efforts to amend its legal and institutional framework relating to national referendums, to bring it into compliance with relevant Venice Commission’s and ODIHR’s recommendations, OSCE commitments, Council of Europe and other international human rights documents and standards as well as good practices. The Draft law No 3612 represented a considerable step forward compared to the 2012 All-Ukraine Referendum Law. The transparent and inclusive character of the drafting process was also praised in the opinion.

However, the Venice Commission and the ODIHR provided Parliament with some practical recommendations and remarks for further consideration during the second reading of the Draft Law, namely:

  • to give Parliament more significant role within the popular initiative referendum;
  • to introduce the prohibition of organising the all-Ukraine referendum and regular local elections simultaneously; 
  • to extend the deadline for collecting the signatures for the popular initiative referendum;
  • to harmonise the provisions of the Draft Law with the election legislation to strengthen further the mechanisms of accessibility of referendums for persons with disabilities and to provide effective and meaningful exercise of suffrage rights of IDPs;
  • to synchronise the provisions of the Draft law on funding of referendum campaign with the legislation on financing of political parties;
  • to exclude the provisions on electronic voting from the Draft Law and to regulate this issue globally at a later date by way of a separate law;
  • to include specific articles for dissuasive and effective sanctions on media-related violations.

It should be noted that some of the remarks above have already been taken into consideration by the MPs’ amendments to the Draft Law for the second reading. 

The Centre of Policy and Legal Reform expresses the sincerest gratitude to the specialists of the Venice Commission and the ODIHR for the expert support and the positive attitude toward the Draft law No 3612. This act finally will be able to overcome the current legal vacuum on referendum issue in Ukraine, which seriously restricts the citizens’ right to participate in public affairs through a referendum provided for in Article 38 of the Constitution of Ukraine.

The CPLR’s experts hope that the MPs will (a) exclude the electronic voting from the referendum process, (b) extend the deadline for collecting the signatures for the popular initiative referendum, (c) prohibit organising the All-Ukraine referendum and regular local elections simultaneously, as well as (d) provide Parliament with a more significant role within the popular initiative referendum, first of all within law abrogation referendum.