Position of OPORA on draft laws #9081, #9081-1, #9081-2

In our opinion, the requirements of the proportionality test (“three-part test”) and judicial control are mutually causal. For example, with a casual approach, the imposition of restrictions for the exercise of human rights requires an assessment of its legality by a court, with the possible application of the sanction. Instead, restrictions that have the nature of preconditions for the exercise of passive suffrage (or qualification requirements for members of the Cabinet of Ministers of Ukraine and civil servants) can be defined in the Constitution and Laws, and applied by authorities other than the court, such as the CEC. The draft laws propose the second approach — when restrictions are provided directly in the Law, without mandatory judicial control. At the same time, the proposed criteria (election from a banned party or membership in the related faction) are not the established democratic qualifications in terms of international standards. 

On March, 6, 2023, the Draft Law on Amendments to Certain Laws of Ukraine (on restricting the participation in public administration of persons associated with the banned political parties) was registered in the Parliament under No. 9081 (hereinafter referred to as the Draft Law 9081). On March, 7, 2023, an alternative draft law was submitted, under No. 9081-1, on amending certain legislative acts of Ukraine to restrict the participation in government of persons associated with political parties which activities had been banned under the law (further referred to as draft law 9081-1). Given that these bills relate to the scope of activity and expertise of our organization, we consider it necessary to scrutinize some of their provisions.

The purpose of both bills, according to explanatory notes, is “to ensure national security by temporarily restricting the participation of persons in the governance of the state.” The goal can be quite legitimate, such as in order to ban political parties, which, given Russia's aggression, corresponds to Part 2 of Art. 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as Part 1 of Art. 37 of the Constitution of Ukraine, At the same time, in order to restrict passive suffrage and the right to participate in the administration of state affairs, the declared goal and ways to achieve it can be debatable. 

There are two approaches to limiting the exercise of rights, including participation in the administration of public affairs:

• with mandatory judicial control (such restriction shall be applied by the court);
• without mandatory judicial control (the law does not require a court judgement to apply the restriction).

The practice of the European Court of Human Rights (further referred to as the ECHR) mostly has it that restrictions on the exercise of human rights shall be carried out with judicial control, which better guarantees the legality of their application. For that purpose, they use the approach which is also called the “three-part test.” Thus, the ECHR, when applying restrictions in the exercise of human rights, checks the following:

• whether such restriction is provided by law;
• whether it has a legitimate purpose; 
• whether it is necessary in a democratic society (also, whether it is proportional). 

That is why the Venice Commission recommends that the restriction on the exercise of voting rights be proportional and proclaimed in a court decision. 

The Constitutional Court of Ukraine also considers that restrictions on the exercise of constitutional rights and freedoms cannot be arbitrary or unfair. They should be established exclusively by the Constitution and laws of Ukraine, have a legitimate goal, be conditioned by the public need to achieve this goal, be proportionate and reasonable.  In the event of a restriction of a constitutional right or freedom, the legislator shall introduce such legal regulation that will make it possible to optimally achieve a legitimate goal with minimal interference with the exercise of this right or freedom, and not violate the essence of such a right (para. 3 subcl. 2.1 cl. 2 of the Ruling of the Constitutional Court of Ukraine dated 01.06.2016 No. 2-rp/2016). 

In our opinion, the requirements of the proportionality test (“three-part test”) and judicial control are mutually causal. For example, with a casual approach, the restriction for the exercise of human rights requires an assessment of its legality by a court, with the possible application of the sanction. Instead, restrictions that have the nature of preconditions for the exercise of passive suffrage (or qualification requirements for members of the Cabinet of Ministers of Ukraine and civil servants) can be defined in the Constitution and Laws, and applied by authorities other than the court, such as the CEC.

The draft laws propose the second approach — when restrictions are provided directly in the Law, without mandatory judicial control. At the same time, the proposed criteria (election from a banned party or membership in the related faction) are not the established democratic qualifications in terms of international standards. 

Therefore, the reasonableness in the application of such restrictions should be established in court on a case-by-case basis. For example, the court can identify whether the exercise of passive suffrage or the right to participate in the administration of public affairs by a particular person would pose a real threat to national security and whether there is a way to limit the exercise of the right proportionate to the achievement of a legitimate goal. 

On the other hand, restricting passive suffrage, in combination with banning a political party, can be a tool of “militant democracy.” The doctrine implies the need for democracy to defend itself, including by banning political parties or restricting the exercise of political rights. Such prohibitions and restrictions are mainly related to the adherence to ideology or belonging to a totalitarian (authoritarian) regime incompatible with democracy (such as the Nazi, fascist, or communist). We have no doubt that the ideology of present-day Russia deserves to be ranked among the mentioned hateful ideologies. Moreover, the parliament recently registered Resolution No. 9101 of March, 13, 2023, which proposed to define the existing political regime in the Russian Federation as racism, and condemn its ideological foundations and social practices as totalitarian and hateful. In addition, the Law of Ukraine “On Political Parties in Ukraine” (paragraph 11 of Part 1 of Art. 5) includes definitions of the terms "glorification", "armed formation," "paramilitary group," "gang," "self-proclaimed body that usurped the power in the temporarily occupied territory of Ukraine," and "mercenary" related to Russia's armed aggression against Ukraine. This means that the hateful ideology professed by modern Russia is now outlined in the legal field.

On the other hand, if the authors of the bill propose to restrict passive suffrage and the right to participate in the administration of public affairs without mandatory judicial control, directly as provided by the law, then, from the point of view of the of “militant democracy” doctrine, the criterion is adherence (affiliation) to the ideology (activity) of the banned political party. 

At the same time, the criteria of adherence (affiliation) chosen by the authors may appear debatable. In particular, the criteria include being elected from a party which activities had been banned, and/or membership in a deputy faction formed by a party which activities had been banned. At the same time, adherence to a political party can be manifested in other forms, such as the membership, financing of its activities, nomination of a person as a candidate for elections from this party, etc.

In this case, the authors of the draft laws should additionally justify the legitimate purpose of the selected criteria. In other words, they need to explain why, among other things, the nomination of a candidate for elections (even if a person was not elected) and the simultaneous membership in the party shall not be grounds for restricting the exercise of political rights, but the persons' election to a representative body or membership in one faction established by the banned party shall qualify as such grounds.

We fully support the need to counter Russian aggression and its enablers. However, for this purpose, the Criminal Code of Ukraine has long had the appropriate elements for criminal offense (e.g., Art. 111 “High Treason”), and the recent additional highlights (Art. 111-1 “Collaborative Activities” and Art. 111-2 “Complicity with the Aggressor State”). Therefore, it is paramount to use mechanisms of individual responsibility, with further restriction in the exercise of passive suffrage and in the right to participate in the administration of public affairs. The application of the restriction directly on the grounds of the law (or rather, as an electoral qualification) means the adherence (affiliation) of a person to a banned political party which activities pose a threat to national security and other democratic values (as mentioned in Art. 37 of the Constitution of Ukraine, Art. 5 of the Law of Ukraine "On Political Parties in Ukraine"). Therefore, it requires additional justification for the criteria for such adherence. Otherwise, the approach when restrictions in the exercise of passive suffrage and the right to participate in the administration of public affairs is applied to a certain group risks being recognized as discriminatory and incompliant with the Constitution. It is also worth recalling the experience of challenging the restrictions introduced by the Law of Ukraine “On Government Cleansing.” Thus, in the case “Polyakh and Others v. Ukraine”, the European Court of Human Rights found violations of the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. In addition, the Venice Commission, in its Interim Opinion No. 788/2014 , expressed criticism for this Law and stated that “lustration should be based on the principle of individual, rather than collective, responsibility”. The establishment of such violations of international human rights standards may pose an obstacle to Ukraine's integration into the European Union.

On March, 20, 2023, a People’s Deputy, A.V.Yatsenko, submitted to the Parliament another alternative draft law on entering changes to the Electoral Code of Ukraine and some other legislative acts of Ukraine to restrict the participation in public administration of persons affiliated with political parties which activity since the day of proclaiming the independence of Ukraine has led to full-scale invasion of the aggressor state into Ukraine’s territory (reg. No 9081-2). Generally, the remarks about this bill are the same as for the bills No. 9081 and No. 9081-1 expressed in OPORA’s position.

However, unlike the main draft law No. 9081 dated March, 6, 2023, and the alternative draft law No. 9081-1 dated March, 7, 2023, which purpose, according to explanatory notes, is “to ensure national security through temporary restriction of participation of individuals in public administration,” the draft law 9081-2 sets an objective “to withdraw from public administration the persons affiliated with all political parties without exceptions which activities since the moment of proclaiming the independence of Ukraine has led, one way or another, to the full-scale military invasion of the aggressor state into Ukraine’s territory.” 

Furthermore, the justification of the need to adopt this bill says that “since the day of proclaiming Ukraine’s independence, on 24.08.1991, all political forces, without exception, that exercised state power, one way or another are affiliated with the situation we experience today, such as the full-scale military invasion that Ukraine faced unprepared, either in military or economic terms, over more than thirty years of independence and with various political forces staying in power. That is why representatives of all political parties that have been in power in Ukraine, since the day of proclaiming its independence, shall bear solidary responsibility for the economic and political situation Ukraine had when overwhelmed by the full-scale military invasion of the rf.”

At the same time, the legal construct that the People’s Deputy chose to formulate the scope of restriction and the restricted subject may be interpreted contrary to the quoted justification. Thus, the author suggests applying the restriction for nationals in the exercise of their passive suffrage as regards the mandate of a people’s deputy of Ukraine, a deputy of a local council, of a village, settlement, or city mayor, under a set of the following conditions:

• at the moment of introducing the martial law in Ukraine,
• were the President of Ukraine, member of the cabinet of Ministers of Ukraine, a people’s deputy of Ukraine, a deputy of the local council, or a village, settlement, or city mayor, 
• elected from any political party that has had its activities on the territory of Ukraine from the moment of proclaiming Ukraine’s independence. 

The construct used, contrary to the position presented in the justification for the need to adopt the bill, may be interpreted as such that covers only those persons who have held the appropriate position, held a representative mandate at the time of introducing the martial law in Ukraine, rather than all representatives of political parties that have been in power in Ukraine since the day of proclaiming its independence. However, when we consider the fact that the national state-building practices saw the introduction of the martial law in 2018, the list of potential persons who could fall under those restrictions may be longer. On the other hand, under part 3 of Art. 105 of the Constitution of Ukraine, the title of the President of Ukraine is protected by the law, and shall be reserved for the President for life, unless the President of Ukraine has been removed from the office under the impeachment procedure. Therefore, a question arises: does the restriction also cover persons who, at the time of introducing the martial law in Ukraine, held the title of the President of Ukraine? Thus, this alternative bill is contradictory, both because of non-compliance of the restriction for the exercise of passive suffrage with the democratic standards, and also its violation of the principle of legal certainty.