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Brief legal analysis of the “law of dictatorship”

The following brief legal analysis of the so-called “law of dictatorship” № 3879 was prepared by lawyers and handed to the initiative Єvromaidan SOS.

1.  Procedural Violations

The procedures for the consideration of draft laws (bills) and adoption of laws were violated by the Verkovna Rada (Ukrainian Parliament) at the Plenary Meeting on 16 January 2014. The procedures established by law[1] provides for special expert examination of any new legislative. Relevant Parliament committees are responsible for the expert examination. When and if relevant committee issues positive conclusion, on the new draft law and communicate such opinion to all the deputies at least two days prior to the voting to include the draft law into the agenda[2]. Ukrainian Parliament overlooked the above expert conclusion requirement, thus, making the new law non-constitutional.

Also, the rules of procedure[3] of the Verknovna Rada provide that the laws are generally considered according to the procedure consisting of three readings (passes):

(1)   first reading meant to discuss general principles of the draft law and adopt it as the basis,

(2)   second reading intended to discuss the draft law article by article, and

(3)   third reading intended to adopt the draft law in general.

At the plenary meeting on 16 January 2014 the draft laws were voted “in general” without any discussion of the general principles or particular articles of the draft laws that were voted. This deprived the interested deputies of the right to provide their objections or proposals to the respective draft laws.

The voting “by hands” procedure was used during the adoption of the laws. The publicly available video materials covering the voting for the laws at the Plenary Meeting on 16 January 2014 also show that there were actually no calculation of votes, as well as no discussion of the documents at all.

2.  Violations of International Treaties and National Legislation

2.1.        Severe violation of right to peaceful assembly

The right to peaceful assembly is significantly restricted by the document adopted on January 16, 2014 (namely by the draft law No. 3879).

The right to peaceful assembly has been previously established by the following provisions, which are binding for Ukraine:

  • Article 20 of the Universal Declaration of Human Rights;
  • Article 21 of the International Covenant on Civil and Political Rights;
  • Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”);

Article 39 of the Constitution of Ukraine (the “Constitution”).

The following guarantees of the aforementioned freedom realization by the people of Ukraine provided by Section 2 of Article 11 of the Convention and Paragraph 2 of Article 39 of the Constitution, were ignored:

  • Only those restrictions may be applied that are necessary in a democratic society;
  • Any restrictions of the aforementioned freedom realization may only be imposed by a competent court.

The aforementioned amendments have legalized severe administrative and criminal liability for organizers, supporters, facilitators and participants of peaceful protests.

The proposed amendments to Article 185-1 of the Code of Ukraine on Administrative Offences provides for more strict administrative liability for:

  • Both organizers and participants of peaceful assemblies for, among others, organizing of peaceful protests which not in compliance with requirements of the established procedure.  However, no such established procedure that is applicable to the peaceful assembly currently exists. Liability allows for up to 15 days of arrest. This lays grounds for potential mass arrests of the participants of peaceful protests based on subjective and unclear grounds.
  • Participants of peaceful assemblies may be arrested for 15 days for wearing a mask or helmet that prevents identification of the person, or for wearing clothing “which resembles uniform of law enforcement agencies”. The arrest may take place without the person having any harmful intentions or participating in such actions. This new restriction prevents peaceful protesters from anonymous participation in peaceful assemblies.
  • Participants of peaceful assemblies may be arrested for up to 15 days for installation of a tent, stage, any small construction or audio equipment for holding a rally, without having previously obtained permission of the internal affairs authorities. The requirement to obtain permission of internal affairs authorities may prevent democratic society from efficient peaceful protests against these authorities, as well as against the Government or President, which have the power to instruct these authorities. Furthermore, this implies an additional restriction of the freedom of assembly that is specifically designed to be imposed by the police, not courts.

The proposed amendments to Article 185-2 of the Code of Ukraine on Administrative Offences outlines strict liability (up to 10 days of arrest) for business and organizational leaders for supporting and facilitation of peaceful assemblies, which are deemed non-compliant with the established procedure. The risk of sanction in form of arrest may prevent potential supporters and sponsors from supporting and facilitating peaceful protests.

More strict criminal liability is proposed for:

  • Blocking administrative buildings and premises (up to 5 years restriction of liberty, or up to 5 years of imprisonment);
  • Seizure of buildings (up to 6 years of imprisonment);
  • Blocking of roads and transport (up to 2 years of imprisonment);
  • Violation of public order as member of a group, mass disorder which leads to, among others, to interference with function of transportation (up to 2 years of imprisonment);
  • Resisting law enforcement officers, etc.).

Such strict criminal liability may lead to justified criminal repressions towards organizers and participants of peaceful protests based on very subjective and biased criteria, such as assessment of negative effect from the protesters actions.

Individual responsibility of vehicle owners’Draft law No. 3855 violates the fundamental principle of individual responsibility set forth by Article 61 the Constitution. In particular, according to Article 61 of the Constitution each person shall be individually liable by law. On the contrary, Article 1(1) of draft law No. 3855 sets forth the responsibility of the vehicle owners’ for any breach of traffic rules in the event that another person operates the vehicle. Draft law No. 3855 makes it the vehicle owners’ responsibility to prove that he or she did not drive the vehicle in question.

We believe that the above Article 1(1) of draft law No. 3855 also contradicts the fundamental principle of assumption of innocence provided by Article 62 of the Constitution, as well as by Article 11(1) of the Universal Declaration of Human Rights. Therefore, we believe that application of Article 1(1) of draft law No. 3855 by Ukrainian authorities constitutes a violation of the basic human rights of Ukrainians.

Tyrannical sanctions for driving in procession. The new laws introduce tyrannical sanctions to the drivers or vehicle owners. In particular, according to Article 1(1) of draft law No. 3879, traffic police may fine a driver of a vehicle in a procession consisting of more than five vehicles, without having previously obtained a police permit, and if the procession has interfered with the traffic. Please note that Article 1(1) of draft law No. 3879 is silent on how serious must be the interference to the traffic. As an example, the above Article means that now the traffic police is allowed to fine each driver of a funeral procession for unintentionally and briefly blocking a part of an intersection.

Per Article 1(1) of draft law No. 3879 the traffic police is permitted to revoke the involved drivers’ licenses and/or confiscate the vehicles. Such confiscations is an unprecedented sanction for breaching traffic rules.

This regulation is very obviously aimed at preventing vehicle processions from taking part in peaceful protests.

2.2.        Severe violation of freedom of expression and freedom of information

Freedom of expression is protected nationally and internationally by the following acts:

  • Article 19 of the Universal Declaration of Human Rights
  • Article 19 of the International Covenant on Civil and Political Rights
  • Article 10 of the European Convention on Human Rights
  • Article 34 of the Constitution of Ukraine

Slander is re-introduced in the Criminal code of Ukraine following almost 13 years of decriminalization e.g. since 2001 when then new Criminal Code did not include defamation as a crime and Ukraine started applying civil remedies in the defamation cases.

The newly adopted law No 3879 introduces criminal liability for the defamation and we can therefore reasonably expect that as a result of this, “insulted” public officials, local governor, businessmen, and MPs will prefer to initiate criminal prosecution against media instead of the civil law procedure.

Article on extremist activity assumes liability for production, possession for sale or distribution, and sale or distribution of extremist materials. Such actions committed via mass media or Internet will be sanctioned by a fine or a 3-year imprisonment term in case of the repeated offence. Extremist materials are defined in a considerably vague and extensive manner and moreover, the activity stipulated by the new article on extremism is de facto already covered by the existing Criminal Code articles such as hate speech, for example, so there was no need in introducing “additional protection” against extremism. There is obviously a high risk that any critical material against the incumbent government will be classified as extremism and criminally punished.

Both articles are expected to have a chilling effect on the professional activity of media.

Introduced requirement for the registration of all online media as information agencies and fines established if such media function without state registration does not correspond to the international principle of the necessity in the democratic society in the interests of national security, territorial integrity or public safety.

Independence of the national broadcasting regulator, the National Council of Ukraine on TV and Radio Broadcasting, is severely hindered. The Law entitles Parliament and President to dismiss any member of the Council at any time. Such provision clearly contradicts to the recommendations of the Council of Europe which say in particular that the rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests. The new provisions introduced will lead to an extreme vulnerability of the member of the National Council and will induce bias and corruption among them.

Innovations of the newly adopted law 3879 aimed at establishing total control over the media field in Ukraine as well as total control over the licensing of Ukrainian broadcasters represent a harsh and cynical attack against freedom of expression in the country. Restrictions for the implementation of freedom of expression established by this law do not meet the requirement of being necessary in a democratic society and as such violate the national and international legal instruments protecting freedom of expression.

New Article 361-3 of the Criminal Code of Ukraine (threat to freedom of expression). Law No. 3879 introduces three new articles into the Criminal Code of Ukraine, formally designed to protect the integrity and operability of state-owned websites and networks. However, among the three new articles one article (361-3) raises the most concerns. Article 361-3 establishes criminal liability for “unauthorized interference with the operation of state electronic information resources, objects of nationally-critical information and telecommunication infrastructure, which lead to the leakage, loss, forgery or blockage of information, distortion of the processing or routing of the information “. The established sanctions are 2 to 5 years of imprisonment with a ban on occupying certain positions for up to 3 years. Further, the Criminal Code expands the term “objects of nationally-critical information and telecommunication infrastructure” to include basically any information or telecommunication system, the disruption of which affects any aspect of the operation of the government or its bodies, including any informational efforts. In view of the ongoing civil unrest in the country, these provisions are obviously aimed at dealing with the online civil protest in the form of Ddos attacks on government websites. On its face it may seem like a legitimate aim generally to protect government-owned Internet resources. However, given the harsh penalties and objectively weak processing capacities of the servers hosting the nationally-critical IT infrastructure (downtime of government websites has always been a major issue) in practice this could mean random or targeted criminal prosecutions of persons who unknowingly contribute to the failure of the elements of this infrastructure by attempting to access or use it legitimately.

Moreover, the wave of criminal prosecutions could also sweep, randomly or targeted, Internet users whose hardware (personal computers, mobile devices) had been unknowingly to them infected by trojans and other viruses, which resulted in their hardware becoming a part of a bot-network used by third persons for carrying out Ddos-attacks on government-owned websites. Such an article in the Criminal Code will negatively affect the ability and even willingness of the population to use government IT infrastructure or the Internet generally, effectively causing massive self-censorship and undermining the government’s efforts to promote the populations’ access to the Internet and information in general. This poses, on a state-wide level, a direct threat to the population’s right to access, receive and disseminate information, which is an essential element of a person’s right to freedom of expression guaranteed by Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 34 of the Ukraine’s Constitution, which are all binding for the Ukrainian government.

Changes to the Law of Ukraine “On Telecommunications” (threat to freedom of expression). A massive blow to the Ukrainian population’s ability to access information (i.e. exercise the right to freedom of expression) is also made by introduction via Law No. 3879 of new norms into Articles 18 and 42 of the Law of Ukraine “On telecommunications”. In Article 18 a new provision grants the National committee on state regulation of communication and development of information systems the power to restrict access to any website containing “content, the dissemination of which is contrary to the law” based on a the decision of an “expert”. Neither a clear definition of “content, the dissemination of which is contrary to the law”, nor the procedure for appointment and requirements to the “expert” are given. Such provision will result in an extremely broad and arbitrary interpretation of what the mentioned content is and the granting of extraordinary powers to individual government agents to control the population’s access to the Internet and information in general. Also, changes in Article 42 introduce a mandatory state license for the provision of Internet access, which results in total government control over the activities of ISPs (Internet service providers) and thereby total control over the population’s use of the Internet. The Ukrainian legislation has never seen such a restrictive legislative regime for the population’s access to and dissemination of information. Coupled with the newly-formed oppressive regime, such models of national Internet governance is akin to that of the most authoritarian regimes in the modern world (e.g. China and Iran).

NGOs as foreign agents. The NGO receiving any material support internationally are now recognized as “the foreign agents”. In particular, draft law No. 3879 introduces a bunch of amendments to a number of Ukrainian laws. Regardless of the statutory documents of particular NGO, draft law No. 3879 sets forth:

  • special procedure of the registration of the NGOs as foreign agents if they intend receiving any material support or donations internationally (the “International NGOs”);
  • all the material support received by the International NGOs is subject to Ukrainian corporate tax;
  • the International NGOs will have to bear the wording of “the Foreign Agent” in their names and this wording may not be shortened; and
  • the International NGOs will have to publish the results of their activities in Ukraine on the Internet and one of governmental newspapers quarterly.

Therefore, the new regulations segregates the International NGOs. Such segregation is likely to be in breach of Article 22 of the Universal Declaration of Human Rights (UDHR), thus, restricting the rights of Ukrainians for international co-operation.

3.    Severe violation of the Right to a fair trial

Criminal proceeding in absentia is introduced.

As proposed by the draft law No. 3587, the prejudicial inquiry and criminal court proceedings may be conducted without the person suspected and accused of the crime.

The decision on criminal proceeding in absentia is made by the criminal investigator (adhere to the prosecutor’s position) or the prosecutor or the court.

To arrive at such decision it is enough for the person to face the double failure to respond the notice to appear without reasonable excuse. The legislation does not contain the list of reasonable excuses, thus reasonability of the excuse is established by the person, who makes a decision on criminal proceeding in absentia application.

Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6) guarantees everyone the right to a fair trial, including the rights:

  • to a fair and public hearing by an independent and impartial tribunal;
  • to be informed of the accusal;
  • to have the time and opportunities to prepare the defense;
  • to defend oneself in person or through legal assistance.

The Constitution of Ukraine (Article 62) guarantees the suspect, accused or defendant the right of defense.

Subject to a lofty level of corrupt practice in Ukraine (especially – in investigating bodies, public prosecution and courts), introduction of criminal proceeding in absentia creates substantial and real menace to massive breach of human rights stated above, and in the first place – concerning protesters. Considering the high level of corrupt practice, it is expected the decisions on criminal punishment (including imprisonment) may be pronounced in short terms without informing about the availability of the criminal proceeding.

 


[1] The Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

[2] Clause 2 of Article 96 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

[3] Article 102 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

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