Abstract

In view of the military aggression by the Russian Federation and the conditions of the legal regime of martial law in Ukraine, on March 18, 2022, the National Security and Defense Council of Ukraine made a decision to suspend the activities of certain political parties.

The prohibition of activity concerns only the period of martial law, which duration is stipulated by the relevant decrees of the President of Ukraine (the current decree extends martial law until April 24, inclusive). Temporary restrictions apply to 11 political parties, whose actions, according to the initiators of the decision, fall under one or more of the following criteria:

  • anti-Ukrainian political and organizational activities;
  • propaganda for war;
  • public statements and calls for a change in the constitutional order through violent methods;
  • real threats of violating the sovereignty and territorial integrity of the state, of undermining its security;
  • actions aimed at illegal seizure of state power;
  • demonstration of signs of collaborationism and violence;
  • program and statutory goals include an anti-Ukrainian position;
  • dissemination of information that justifies, recognizes as lawful, and denies the armed aggression of the Russian Federation against Ukraine.

Facts with signs of committing some of these actions may be grounds for prohibiting a political party in court, under an administrative lawsuit of the Ministry of Justice of Ukraine. On the other hand, the suspension of parties, as well as the potential possibility of their further prohibition or liquidation (self-dissolution), does not automatically lead to the termination of powers of people’s deputies or local deputies elected on behalf of these parties in the recent elections. Also, in this situation, local deputies may not be revoked on the initiative of the people. Thus, MPs elected from parties whose activities have been suspended have no formal obstacles to staying in the same factions and continuing to exercise their powers in councils.

Civil Network OPORA draws attention to the fact that the legislation doesn’t clearly regulate the procedure for suspension of activities of political parties. However, under the legal regime of martial law, the National Security and Defense Council or another authorized public administration body has legal grounds to temporarily restrict the activities of political parties or to raise the issue of their prohibition. Such exceptionally temporary actions can be immediately applied in the presence of signs that the activities of the party are aimed at eliminating the independence of Ukraine, changing the constitutional order by force, violating the sovereignty and territorial integrity of the state, undermining its security, illegal seizure of state power, propaganda for war, violence, incitement to inter-ethnic, racial, religious enmity, encroachment on human rights and freedoms, and public health.

When deciding to suspend the activities of political parties, the NSDC left the Ministry of Justice of Ukraine with a statutory obligation to take measures to ban the relevant political parties. In martial law, the National Security and Defense Council of Ukraine is endowed with the function of monitoring the activities of the military command, executive authorities, and local self-government bodies.

Parties that have not recognized the decision of the National Security and Defense Council have not yet declared any clear intentions to appeal it in court. Instead, the number of reports from different regions of Ukraine about cases of voluntary termination of membership in factions of those parties whose activities have been banned (in particular, this applies to MPs from the OPFL) keeps growing. Responding to the decisions of the NSDC and assessing reputational losses for its members, some parties are considering changing the name or terminating the activities of the same-name factions in councils of different levels. In this situation, the possibility of similar decisions to suspend the activities of renamed parties should not be excluded.

It is important to understand that under the legal regime of martial law, all political parties are compulsorily limited in the implementation of some of their functions and legitimate interests (for example, holding mass or other public events). This imposes an additional responsibility on the authorities to clarify the requirements and the purpose of extending the regulations in order to ensure the principle of legal certainty as much as possible. All political parties and public associations in martial law should clearly understand and anticipate the political and legal consequences of their actions.

Legal grounds for suspension, prohibition of activities of political parties and cancellation of the registration certificate

On March 18, 2022, the National Security and Defense Council of Ukraine adopted a decision “On the suspension of the activities of certain political parties” approved by Presidential Decree №153. It suspended, for the period of martial law, any activity in Ukraine of the political parties “Opposition Platform — For Life,” “Shariy Party,” “Nashi,” “Opposition Bloc,” “Left Opposition,” “Union of Left Forces,” “Derzhava,” “Progressive Socialist Party of Ukraine,” “Socialist Party of Ukraine,” “Socialists,” and “Volodymyr Szaldo Bloc.”

The powers of the National Security and Defense Council of Ukraine to suspend the activities of political parties are not detailed in the Decree of the President of Ukraine “On the Introduction of Martial Law in Ukraine”. According to the Decree, under the martial law, temporary restrictions on the rights and legitimate interests of legal entities may be imposed to the extent necessary to ensure the possibility of introducing and implementing measures of the legal regime of martial law provided for in Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”.

Thus, in accordance with paragraph 9 of part 1 of Article 8 of the Law “On the Legal Regime of Martial Law”, in Ukraine, within the framework of temporary restrictions of constitutional rights and freedoms of a person and a citizen, as well as the rights and legitimate interests of legal entities provided for by the decree of the President of Ukraine on the introduction of martial law, the military command, together with military administrations, may independently or together with executive authorities and local self-government bodies, raise the issue of banning the activities of political parties and public associations, if they aim at eliminating the independence of Ukraine, changing the constitutional order by violent means, violating the sovereignty and territorial integrity of the state, undermining its security, illegal seizure of state power, propaganda for war, violence, incitement to interethnic, racial, religious enmity, encroachment on human rights and freedoms, and public health.

According to Article 37 of the Constitution of Ukraine and Article 5 of the Law of Ukraine “On Political Parties in Ukraine,” the formation and activities of political parties are prohibited if their program objectives or actions are aimed at: 1) liquidation of Ukraine’s independence; 2) change of the constitutional order by violent means; 3) violation of the sovereignty and territorial integrity of Ukraine; 4) undermining the security of the state; 5) illegal seizure of state power; 6) propaganda for war, violence, incitement of interethnic, racial or religious hatred; 7) encroachment on human rights and freedoms; 8) encroachment on public health; 9) propaganda of communist and/or national socialist (Nazi) totalitarian regimes and their symbols.

The current wording of Part 2 of Article 5 of the Law of Ukraine “On Political Parties” provides for the prohibition of the activities of a political party only by a court decision. Thus, according to part 1 of Article 21 of this Law, the activity of a political party may be prohibited in court by an administrative claim of the central executive body which implements the state policy in the field of state registration (legalization) of citizens’ associations and other public formations (Ministry of Justice of Ukraine).

Thus, the legislation does not expressly provide for the existence of an institution of suspension of the activities of political parties.

The Presidential Decree imposes on the Ministry of Justice of Ukraine the obligation to immediately take comprehensive measures to prohibit the activities of the relevant political parties in accordance with the established procedure. The Ministry of Justice, based on the results of the decision made by the National Security and Defense Council, should appeal to the court regarding the prohibition of political parties that show signs of undermining the security of the state, illegal seizure of state power, or propaganda for war and violence.

Analyzing the list of grounds for banning political parties, enshrined in the Constitution of Ukraine and the Law of Ukraine “On Political Parties in Ukraine,” we can conclude that the constitutional standards of Ukraine are consonant with international standards in that such radical interference as the dissolution of a party can be applied only in exceptional cases, while in other situations less severe sanctions can and should be applied.

Thus, the evidence of a particular political party committing actions aimed at propaganda of the war, its public statements and calls for a change in the constitutional order by force, the threat of violation of the sovereignty and territorial integrity of the state, undermining its security, and actions aimed at illegal seizure of state power, demonstration of collaboration, violence, dissemination of information about justification, recognition as lawful, or denial of armed aggression of the Russian Federation against Ukraine will be assessed by the District Administrative Court of Kyiv that will be considering the claim of the Ministry of Justice of Ukraine. Their establishment in court shall be the basis for banning a political party. At the same time, Civil Network OPORA supports the position expressed by experts on the expediency of amending the legislation on changing the jurisdiction of this category of cases to the Supreme Court of Ukraine as a court of the first instance.

The legislation also distinguishes the prohibition of a political party and the annulment of its registration, and establishes a separate list of grounds for the annulment. According to Article 24 of the Law of Ukraine “On Political Parties,” the grounds are:

  • failure of a political party to comply with the requirement to form and register oblast organizations in most oblasts of Ukraine, cities of Kyiv, Sevastopol, and the Autonomous Republic of Crimea within six months from the date of registration of the party;
  • detection of false information in the documents submitted for registration within three years from the date of registration of a political party;
  • a political party has failed to nominate its candidates for the election of the President of Ukraine and the election of people’s deputies of Ukraine for ten years.

Thus, in this situation, the decision of the National Security and Defense Council may lead to the implementation of the judicial procedure for the prohibition of these political parties, but not the cancellation of their registration.

Activities of people’s deputies and deputies of local councils elected according to the lists of political parties covered by the decision to suspend their activities and/or prohibit the activities of a political party and the corresponding parliamentary factions

The legislation does not directly regulate the functioning of a faction of a parliamentary party in case of prohibition of the activities of such a party in court. Part 3 of Article 58 of the Rules of Procedure of the Verkhovna Rada of Ukraine establishes the principle that the functioning of a parliamentary faction should be democratic and not contradict the requirements of the Constitution of Ukraine, the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” and the Rules of Procedure. Despite the fact that the parliamentary faction is formed of deputies elected according to the lists of the relevant political party, it is an independent entity.

The grounds for termination of activities of the Verkhovna Rada faction include no prohibition of a political party. Therefore, the activities of such faction may be terminated only if MPs have voluntarily withdrawn from its membership. Thus, in accordance with Article 60 (6) of the Rules of Procedure, a deputy faction (deputy group), the membership of which has become smaller than the minimum number of people’s deputies in the smallest faction formed during the first session, shall be declared dissolved by the Chairman of the Verkhovna Rada of Ukraine 15 days after the date of such fact.

The procedure for the functioning of parliamentary factions in local councils is regulated in a similar fashion. Deputies have the right to freely unite and leave a faction but the specific procedure is established by the Rules of procedure of local councils and determined by the factions (parties) themselves. According to Article 27 of the Law on the Status of Deputies of Local Councils, deputy factions of local councils (except for village and township councils) shall be formed on a partisan basis. Instead, members of village and township councils may be members of parliamentary factions not only on the basis of similar views or party membership, but also as non-partisan deputies who support the political track of the factions.

Suspension of a party’s activity shall not be the grounds for early termination of powers of deputies of the local council who are members of the same-name factions. The powers of a deputy of a local council are terminated early in the presence of a number of formal grounds (termination of their citizenship of Ukraine, compatibility of positions, entry into force of a court verdict, recognition of an individual as incapable by a court, etc.), as well as in the event of their withdrawal on the popular initiative, in accordance with the procedure established by law.

The grounds for initiating the procedure of recall of a deputy of a local council include two cases that can be considered in the context of the situation with the suspension of activity or liquidation of a political party (Article 37 of the Law “On the Status of Deputies of Local Councils”):

  • violation by the deputy of the local council of the provisions of the Constitution of Ukraine and the laws of Ukraine, which has been established by a court decision that has entered into force
  • non-entry of an MP elected in a multi-mandate constituency to a faction of a local party organization, according to which electoral list s/he was elected, or termination of membership of a local council deputy in a faction.

Both procedures may not be applied automatically in the event of termination of a party’s activity, as well as in the absence of a court-ordered violation of the law by a deputy or a voluntary decision of a deputy of a local council to terminate membership in a faction.