On January 16, 2014 the Constitution of Ukraine and the Law of Ukraine on Rules of Procedure of the Verkhovna Rada of Ukraine were violated in result of adoption of 12 normative acts. The content of most regulations[1] and method of voting for them cast doubt on the legitimacy of the legislative branch. Besides that, the laws were [2] urgently signed by the President of Ukraine on January 17, as an official who, according to the Article 102 of the Constitution of Ukraine, shall guarantee the observance of Fundamental Law, and protect rights and freedoms of people and citizens. Such decision is contrary to the principle of the rule of law and, therefore, cannot be loyally accepted by the citizens and experts. According to the analysis of the voting procedure on January 16, and the most hazardous decisions, which will influence not only socially active citizens, but also average people, OPORA has prepared a review.
IGNORANCE OF DEMOCRATIC PARLIAMENTARY PROCEDURES
Two factions (Party of Regions and the Communist Party of Ukraine), with some non-faction MPs, have purposefully chosen illegitimate method of "voting" on January 16, 2014 which throw doubts on independence of the legislative branch, reinforces the loss of public trust in Verkhovna Rada and ensures deepening of political crisis in Ukraine, and provoke people to make more radical steps.
Only Draft Law on the State budget of Ukraine for 2014 was included into the agenda of plenary session. A number of MPs have "legitimized" through an imitation of voting 12 [3] draft legislative acts, and demonstratively discredited democratic parliamentary procedures.
The Vice-Speaker Ihor Kalietnik, who presided over the sitting, insisted that the consideration of Draft State Budget for 2014 wasn't discussed. In result, the most important financial document in the country was considered for less than 6 minutes, what is unprecedented case for the whole parliamentary history of the state. Thus, the Vice-Speaker has consciously violated the direct requirement of the Law on the Rules of Procedure of the Verkhovna Rada of Ukraine (Article 154(3)), which provides the only way the draft law on the State Budget for the next year shall be considered: only according to the procedure of thorough discussion. In fact, such procedure includes reports of the Minister of Finance, co-reporter from the main committee, speeches of representatives of the committees, deputy factions, and non-faction MPs.
All the other draft legislative acts, which were considered on January 16, were "legitimized" by hand-voting and without any discussion. None of the documents were discussed in accordance with the procedure of full or brief discussion, required for legitimate adoption of any decisions by the Parliament (Article 31, 32 of the Law on Rules of Procedure of the Verkhovna Rada of Ukraine). Not only Head of the sitting have refused to follow the full discussion procedure, but he also failed to initiate adoption of the procedural decision on consideration of draft laws according to the procedure of brief discussion. Thus, MPs were considering these draft laws in a way, which is not provided by any existing legislative act. It's extremely significant that the voting for full adoption of the Draft Law #3879 (On the Judicial System, the Status of Judges, and Procedural Laws on Additional Measures for Citizen Protection) as a basis took place only 39 seconds after it was included into the agenda. Moreover, Ihor Kalietnik has directly violated regulations of the Law, when he initiated the final adoption of the bill #3879 right after the first reading. According to the Article 102 (4) of the Rules of Procedure of the Verkhovna Rad, any bill consisting of more than 100 articles and paragraphs, shall not be adopted finally after the first reading (the bill submitted by Oliinyk and Kolesnichenko consists of 107 articles and paragraphs.
Consideration of four draft laws in the Verkhovna Rada was absolutely illegitimate, as long as leaders of the Parliament didn't have any legal grounds for their inclusion into the agenda. In particular, three of these documents were registered two days before the plenary sitting on January 16 (Law on the Judicial System, the Status of Judges, and Procedural Laws on Additional Measures for Citizen Protection; Law on Amendments to the Rules of Procedure of the Verkhovna Rada of Ukraine; Law on Amendments to Article 197 of the Tax Code of Ukraine re VAT exemption of importing natural gas into the customs territory of Ukraine), and one document registered one day before the sitting (On Amendments to the Law of Ukraine on Elimination of Negative Consequences, Preventing Prosecution and Punishment of People in Connection With Events Taking Place During Peaceful Assemblies). These bills were not considered by committees of the Verkhovna Rada, didn't undergo the mandatory expertise, and didn't get any opinions (particularly of the Central Scientific Expert Office) contrary to the Article 103 (2) of the Rules of Procedure of the Verkhovna Rada. Thus, Chairman and Deputy Chairman of the Parliament have consciously violated the Article 112 of the Rules of Procedure, which requires that Members of Parliament must receive an opinion, prepared by the main committee to the first reading of the bill, conclusions of the other committees, and other accompanying documents, not later than seven days before the consideration of the draft law on plenary sitting.
If Chairman of the Verkhovna Rada of Ukraine was acting in accordance with the law, he would have returned the bill #3879 to the authors, without inclusion into the agenda and consideration on the plenary meeting.
"Legitimization" of all the considered draft laws, besides the Draft State Budget, was made by spontaneous rising of hands by a number of MPs from the CPU and the Party of Regions. According to the Law (Article 37 (2) of the Rules of Parliamentary Procedure), hand vote is possible only when it's technically impossible to use the electronic voting system. However, there were no technical restrictions for the use of electronic voting system – the system was properly functioning. In particular, the voting for Law of Ukraine on State budget of Ukraine for 2014 was conducted with the help of electronic voting system. Therefore, the decision to vote by show of hands was absolutely unreasonable, with no legal grounds.
Besides that, the counting commission of the Verkhovna Rada de facto didn't manage to fulfill its duties. At least 12 of 21 members of the counting commission didn't participate in the vote counting process. Simultaneously, O. Yefremov (PRU), P. Symonenko (CPU), and I. Yefremov (non-faction), who are not members of the counting commission, participated in the counting process on the initiative of the Chairman. Position of MPs, who voted "against" or "abstained", were ignored by both counting commission and the Chairman. In such conditions, objective determination of voting results is impossible.
The "voting" that took place on January 16, one more time illustrated neglectful attitude of ruling MPs to parliamentary democratic procedures, who refused to openly negotiate with opponents and draw up compromising political decisions.
CONTENT OF THE LAWS
Most of legislative acts, adopted by the Verkhovna Rada on January 16, 2014 are contrary to the Article 22 of the Constitution of Ukraine, which provides that constitutional rights and freedoms are guaranteed by the Fundamental Law, and cannot be canceled. According to it, the matter and breadth of existing rights and freedoms shall not be narrowed during adoption of new laws or making amendments to existing ones. Instead, Article 64 of the Constitution of Ukraine provides that constitutional rights and freedoms of an individual and a citizen cannot be limited, except in cases provided by the Constitution of Ukraine. A newly-adopted Law of Ukraine on Making Amendments to the Law of Ukraine on the Judicial System, the Status of Judges, and Procedural Laws on Additional Measures for Citizen Protection is a flagrant limitation of constitutional rights and freedoms. In particular, it limits the freedom of thought and expression, the right to free expression of opinions and beliefs, the right to freely collect, store, use and disseminate information, the right to freedom of association, to form political parties and public organizations, to engage in public affairs, the right to peaceful assembly, and the right to freedom of movement.
Limitation of a right for peaceful assembly
In amendments to the Code of Administrative Offenses, the liability for violation of the procedure for organizing and holding meetings, rallies, marches and demonstrations is increased tenfold, and strict limitations are introduced.
In particular, new regulations of the Code define the responsibility for:
- participation in meetings, rallies, street marches, demonstrations, or other mass events in masks, helmets, or with the use of other means or methods of masking with the aim to prevent identification of a person;
- installation of a tent, stage or any small construction used as a stage, as well as sound amplifiers, without permission of the ministry of internal affairs, for holding meetings, rallies, street marches, or demonstrations;
Limitation of a right for fair justice
The Code of Administrative Offenses is supplemented with a separate article on responsibility for failure to obey legitimate demands of officers of the Security Service of Ukraine; the procedure of drawing up a protocol on administrative violations is simplified. The previous redaction of the Code provided serving the protocol to a person, brought to administrative responsibility, with mandatory hand receipt. According to the current wording, if a person refuses to sign the receipt, the fact that the protocol was served can be proved by witness, or a video of the corresponding actions. Such regulation creates wide possibilities for falsifications. Nevertheless, even worse problem emerges after amendment of Article 277-2 of the Code, which regulates serving summons to consideration of cases on administrative violations in court. Now, the proper evidence of served notification about the time and place of consideration of the case may be hand receipt, including postal notification, video of the person being served, or any other data that prove the service of summons or that the person has received information about its content. In result of inexhaustible list of ways to prove the notification of a person, citizens may suffer from purposeful non-informing about consideration of their cases in courts.
Freedom of speech and thought
Amendments to the Criminal Code of Ukraine increase responsibility for public calls to overthrowing or forcibly changing the constitutional order from three to five years of restraint of liberty or deprivation of liberty for the same period. Besides that, the Criminal Code was supplemented with a new article, which determines responsibility for the production, storage and distribution of extremist materials (penalization ranging from two hundred to eight hundred untaxed minimums of citizen income with confiscation of extremist materials). Repeated offense will be punished with a fine from one to three thousand untaxed minimums of citizen income, restraint of liberty for up to three years, or deprivation of liberty for the same period with confiscation of extremist materials. At the same time, the concept "extremist materials" is extremely wide, and may be used to counteract free flow of information and legitimate political activity.
In new wording of the Criminal Code of Ukraine, initiators of legislative amendments tried to react to mass protests in late 2013 – early 2014. In particular, criminal responsibility is introduced for blocking access to a home or other property of a person. Such actions, if committed by a group of individuals, will be punished by deprivation of liberty from two to six years. However, contrary to the illegal entry into a home or other property of a person, determination of blocking access to a home is not precise. Any rallying near dwelling of an official may be interpreted by law-enforcement bodies and courts as blocking access to it. Responsibility for blocking transport communications, organization of group violations of public order, mass rioting, public calls to seizure or blocking of dwellings, premises, institutions, or organizations, resistance to representatives of law enforcement agencies, has also considerably strengthened.
The law forbids gathering any information about employees of law enforcement agencies and judges. According to it, intrusion into activities of law-enforcement bodies is: gathering, keeping, using, destroying, dissemination of confidential information about a judge or employee of law enforcement agency, his close relatives or family members; dissemination of materials or information, which is obviously offensive and demonstrate blatant contempt to a judge or justice, or aim to put pressure, to intimidate, or intrude in activities of the judge in any other form in order to revenge. In fact, any negative information about activities of law-enforcement bodies or judges can be interpreted as illegitimate interference or contempt. Amendments to the Law of Ukraine on State Protection of Judges, Employees of the Court Apparatus, and of Law-Enforcement Bodies provide widened list of close relatives and family members of judges, who need to be protected, including persons, who live together but are not married.
Criminal liability for defamation and a background of the issue
The law jeopardizes the freedom of speech in Ukraine a lot. Criminal Code of Ukraine now contains a new article implying liability for defamation and intentional dissemination of misleading and false information, discrediting the honor and dignity of another person. The punishment for defamation will be a fine of fifty minimum incomes, or community service for up to two hundred hours, or corrective labor for up to one year. Moreover, defamation in an essay publicly demonstrated in the media or on the Internet leads to a fine from fifty to three hundred tax-free minimum incomes, or community service for one hundred and fifty to two hundred forty hours, or corrective labor for up to one year. Much more serious liability is imposed once defamation is combined with charges of committing a grave crime or especially grave crime – it can be now punished by correctional work from one to two years, or imprisonment for up to two years. Therefore, criminalization of defamation with no clear definition of the term itself and criteria for imposing liability will be an effective mechanism for introducing censorship as well as for persecution of independent journalists and activists.
During the times of Ukraine’s independence a plan to introduce criminal liability for defamation succeeded only on the seventh try. One of the latest unsuccessful attempts were amendments proposed to the Criminal and Criminal Procedural Codes of Ukraine with regard to toughening of punishments for the infringement of the honor, dignity and business reputation of a person registered by Vitaliy Zhuravskyi on July 19, 2012. However, the Central Scientific Experts Office of the Verkhovna Rada of Ukraine criticized[4] Zhuravskyi’s draft law and proposed to decline it as soon as in the first reading.
At the same time, the experts mentioned that “criminalization, i.e. introduction of criminal liability for certain actions, cannot be done based on somebody’s subjective proposals, demands or wishes. The circumstances needed for criminalization might be, in particular: a significant public harassment caused by some actions; their coverage; lack of effective methods for counteractions by applying other (non-criminal punishment) types of legal responsibility. Parliamentary experts also stressed that adoption of the proposed amendments would have led to a breach of international obligations relating to the standards of freedom of speech undertaken by Ukraine and put down in the Resolution of the Parliamentary Assembly of the Council of Europe no. 1239 (2001) “On freedom of expression and the functioning of parliamentary democracy in Ukraine” and Parliamentary Assembly Recommendation 1513 (2001) “On Honoring of obligations and commitments by Ukraine”. The draft law with amendments was adopted as a basis on September 18. Before that, there was also an unsuccessful attempt to vote for the draft law under a shortened procedure; however the paper’s initiators fell 11 votes short. Imprisonment up to three years, according to the document, should have been a maximum punishment. Forced by journalists and civic activists Vitaliy Zhuravskyi withdrew his draft law.
In summer 2012, the President recalling this situation, stated[5] that “one cannot take such prompt decisions, we have a very close look at the preparation of all the laws, especially those relating to obligations undertaken by Ukraine when joining the Council of Europe. Such laws should be reviewed by European experts. And if we say that we create all the conditions for journalists to work and our steps contradict this – no one will understand us”.
A draft law implying amendments no. 3879 from January 14, 2014 that was “adopted” on January 16 defines two years' imprisonment as a maximum penalty.
Media and communication
Amendments to the Law of Ukraine “On Telecommunications” creates all the possibilities for a massive blocking of access to web sites of the worldwide network for their users. A decision to block access to the Internet now may be taken by a National Commission, which carries out a state regulation in communications and information area, once the state expert issues an opinion on illegitimacy of the information. Court decision is not even needed to restrict the users’ access, and the users can only appeal against the order once it is already issued. Moreover, the status of an expert who will be solely responsible for defining whether the information placed online is illegal or not, is also unclear. Therefore, the procedures for users’ restricted access to the network of Internet pave the way for injustice and unlimited role of the state in this sphere. Using the same procedure, web-pages of information agencies may be blocked since they work without a state registration foreseen by the new law. Thus, all the web-pages that operate as information agencies now should pass a process of state registration.
Moreover, all users are obliged to sign an agreement with telecommunication operators providing them with a possibility to get to know their personal identification, trace personal talks and contacts. Taking into account that there was no opinion heard from the state bodies regarding a negative practice of using pre-paid communication cards, this legislative innovation is aimed at fulfilling political tasks.
Narrowing freedom of association
The new law introduces unconstitutional requirements for NGOs which creates ample opportunities for discrimination and persecution of their activists. Amendments to the Law of Ukraine on Public Associations and to the Tax Code violate the right to associate in civic organizations and the right to participate in managing state affairs as guaranteed by Articles 36 and 38 of the Constitution of Ukraine. These discriminatory requirements negate the constitutional norm under which all civic associations are equal before the Law.
New legislative provisions are aimed to turn civic associations into internal enemies, which will find themselves under powerful state pressure and will become an object of demonstrative humiliation. The Law is a direct replication of the Federal Law of the Russian Federation on Non-commercial Organizations, containing all the main regulations except for the currency.[6]. The Law of Ukraine is replete with translations of phrases and wording, typical for the Russian Federation legal terminology, but not for Ukrainian legislation.
In the Law of Ukraine on Public Associations, a new term is introduced – “civic association which carries out functions of a foreign agent.” Such a civic association will be considered a foreign agent if it receives funds or property for its activities from foreign states, their state bodies, NGOs of other states, international NGOs, foreigners, stateless persons or their authorized representatives, who receive funds or other property from the aforementioned sources, and participate in political activities on the territory of Ukraine, including activities in the interests of foreign sources.
As long as the state itself is the main recipient of international technical aid, branding civic associations with the label "foreign agent" looks inequitably. According to the Ministry of Economy of Ukraine, only in 2013, 15 new agreements were anticipated to be signed with other countries for receiving free resources and service on non-repayable basis.[7]. The state have already received billions of US dollars within international grants. According to the logic of the initiators of these amendments, government officials, who are in charge for non-repayable international assistance and have access to state secrets, have all the chances to conduct policy in interests of foreign states.
Participation of civic associations in political activities means organizing and conducting political activities, aimed to influence decision-making in state bodies, change the chosen state policy, and formulate public opinion in the certain directions. This determination is speculative, and allows to consider any criticism of state policy, dissemination of analytical materials, education, and civic activism as interference of civic associations in political process. Taking into account citizen constitutional right to participate in state affairs, restriction of the influence their associations may have on changes in the state policy seems to be absurd. In fact, the law prevents citizens and civic association from defending their constitutional rights and freedoms, to satisfy social and other interests.
The general name of civic organization, which the state “endows” with functions of foreign agent, should contain a phrase “civic association, which carries out functions of a foreign agent.” This civic association cannot have a shortened name, and is obliged to indicate that it “pertains” to the functions of the foreign agent when disseminating information about its activities. It should be mentioned that there are no such requirements even in the Law of the Russian Federation on the Non-commercial Organizations. This shows that the government has the intention to use civic associations and manipulate public opinion, create the image of an internal enemy and apply moral pressure on civic activists.
Amendments to the Law of Ukraine on Civic Associations introduce special procedures for activities of civic associations, which receive international assistance.
Firstly, civic associations which have the intention to receive funding or other property from foreign sources and participate in “political” activities, will be obliged to submit an application for inclusion in the Register of Civic Associations, containing information about performing the functions of a foreign agent, to the Ministry of Justice of Ukraine before starting any such activities.This information shall be included into the Register of Civic Associations no later than five days after the authorized body receives an application for registration.
Secondly, civic organizations with the status of a foreign agent should conduct a separate financial accounting of income (expenditures) which are received from foreign sources and income (expenditures) received from other sources. However, the initiators of the bill do not explain why a civic association which has diversified sources of financing should obtain the status of a foreign agent.
Thirdly, civic organizations with the status of a foreign agent are obliged to submit registration documents containing the information about personal composition of managing boards to the registration authority, and monthly provide information about the amount of funds or other property received from foreign sources, the planned purpose of their use and the actual use, the planned program of activities and the actual activities. Every three months, civic associations with foreign agent status should publish online or in the newspapers "Holos Ukrainy" or "Uriadoviy Kur’yer" a report on their activities which they provide to the registration authority.
According to the amendments to the Tax Code, civic associations that receive international aid lose their status of non-profit organizations. Consequently, NGOs will have to pay income tax. In the case a civic association does not meet the requirements concerning compliance of the status of the foreign agent, its activity may be prohibited by the court through a lawsuit by the registration authority. Establishment of different requirements for civic associations depending on the source of funding is a direct violation of Article 36 of the Constitution of Ukraine and Article 3 of the Law of Ukraine on public associations, which guarantee their equality before the Law.
Thus, with record-breaking speed (21 minutes in the session hall) members of Parliament have illegally adopted a number of legislative changes that suspended the democratic process in the country, narrowed the rights of citizens and established a number of unconstitutional restrictions. These decisions not only prevent the solution of political crisis, which acute phase has already lasted for two months, but also radicalize an active part of Ukrainian society. Suspension of democratic freedoms will negatively affect the functioning of Ukraine. Besides that, using the Parliament as a tool for adopting unconstitutional decisions undermines the credibility not only of the deputy corps, but also the institution of parliament as a whole.
[1]Law on State budget of Ukraine for 2014 (#3000); amendments to the Law of Ukraine on the Judicial System, the Status of Judges, and Procedural Laws on Additional Measures for Citizen Protection (#3879); Amendments to the Law of Ukraine on Elimination of Negative Consequences, Preventing Prosecution and Punishment of People in Connection With Events Taking Place During Peaceful Assemblies (#3893); Amendments to the Criminal Procedure Code of Ukraine (on criminal proceedings in absentia) (#3587); amendments to some legislative acts of Ukraine regarding responsibility for administrative offenses in road safety, automatically recorded (#3855); amendments to the Law of Ukraine on the Rules of Parliamentary Procedure (#3883); amendments to the Article 297 of the Criminal Code of Ukraine (regarding liability for desecration or demolition of monument for those fought against Nazism during the Second World War – Soviet Soldiers-Liberators, participants of the partisan movement, undergrounders, victims of Nazi persecution, as well as international soldiers and peacemakers) (#2178a); amendments to the Criminal Code of Ukraine concerning responsibility for denial or justification of Nazism crimes (#2179a).
[2] http://www.president.gov.ua/news/29961.html
[3] http://w1.c1.rada.gov.ua/pls/radan_gs09/ns_pd2?day_=16&month_=01&year=2014&nom_s=3
[4] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?id=&pf3511=44065
[5] http://tsn.ua/politika/yanukovich-takozh-vvazhaye-pomilkoyu-idiotskiy-zakon-pro-naklep.html
[6] http://www.rg.ru/2012/07/23/nko-dok.html
[7] http://www.me.gov.ua/control/uk/publish/article?art_id=198831&cat_id=178137