Task Group under the Chairman of the State Duma
of the Federal Assembly of the Russian Federation
on legal analysis of legislative procedures
and legal acts, adopted in Ukraine
REPORT NO. 1
Records of the meeting, dated September 24, 2014
Moscow
2014
2
Contents
1. Questions of constitutionality and legitimacy of legislative
acts, adopted by the Verkhovna Rada of Ukraine,
strengthening the powers of the Public Prosecutor’s Office,
changing the role of courts ............................................................... 5
2. Analysis of bills, adopted by the Verkhovna Rada of Ukraine
on legal regulation of resolution of the inner Ukrainian
conflict in the Donetsk and Luhansk regions ................................. 13
Analysis of violations of the procedure for adoption of bills ........ 14
Analysis of the Law of Ukraine ‘On the special procedure of
local government in certain areas of the Donetsk and
Luhansk regions’ (adopted by the Verkhovna Rada of
Ukraine on September 16, 2014) ................................................... 16
Analysis of the Law of Ukraine ‘On prevention of criminal
prosecution and punishment of individuals — participants of
the events in the Donetsk and Luhansk regions’ (adopted by
the Verkhovna Rada of Ukraine on September 16, 2014) ............. 19
Summary conclusions .................................................................... 21
Preliminary analysis of the draft Law of Ukraine ‘On
cleaning of the power’ (adopted by the Verkhovna Rada of
Ukraine on September 16, 2014) ................................................... 21
Elections ......................................................................................... 24
On the constitutional and legal form of the state ........................... 26
Venice Commission ....................................................................... 26
3
Another meeting of the Task Group under the Chairman of the
State Duma of the Federal Assembly of the Russian Federation on legal
analysis of legislative procedures and legal acts, adopted in Ukraine,
took place on September 24, 2014.
Members of the meeting discussed topical issues of legislative
regulation to resolve the inner Ukrainian standoff, the prospects for its
resolving, based on respect for fundamental principles of international
law. Special attention was paid to the analysis of legitimacy of the laws,
recently adopted by the Verkhovna Rada of Ukraine, particularly ‘On
the special procedure of local government in the Donetsk and Luhansk
regions’, ‘On prevention of criminal prosecution and punishment of
individuals — participants of the events in the Donetsk and Luhansk
regions’ and ‘On cleaning of the power’.
It has been decided to issue the report with materials, based on
consideration of these issues at the meetings of the Task Group.
4
1. Questions of constitutionality and legitimacy of
legislative acts, adopted by the Verkhovna Rada of
Ukraine, strengthening the powers of the Public
Prosecutor’s Office, changing the role of courts
1. The powers of the Verkhovna Rada of Ukraine were terminated
early by the Presidential Decree No. 690/2014, dated August 27, 2014,
‘On early termination of powers of the Verkhovna Rada of Ukraine and
appointment of snap elections’.
According to the text of the Decree, the President of Ukraine, in
accordance with Part 2 of Article 77, Parts 6 and 7 of Article 83,
Paragraph 1 of Part 2 of Article 90 of the Constitution of Ukraine and in
accordance with Paragraphs 7 and 8 of Part 1 of Article 106 of the
Constitution of Ukraine, terminated powers of the Verkhovna Rada of
Ukraine of the seventh convocation early (Par. 1). Paragraph 2 of the
Decree established the date of snap elections to the Verkhovna Rada of
Ukraine on October 26, 2014. The Decree came into force from the date
of its publication, however, the Verkhovna Rada of Ukraine
continues its work.
In accordance with Part 1 of Article 90 of the Constitution of
Ukraine in force, ‘powers of the Verkhovna Rada of Ukraine shall be
terminated on the opening day of the first meeting of the new
convocation of the Verkhovna Rada of Ukraine’.
However, according to the constitutional and legal meaning of
the articles of the Constitution, referred to in Paragraph 1 of the Decree
of the President of Ukraine, the procedure for early termination of
powers of the Verkhovna Rada of Ukraine and appointment of snap
elections to the Verkhovna Rada has other legal grounds.
5
Part 2 of Article 77 of the Constitution provides that snap
elections to the Verkhovna Rada of Ukraine are appointed by the
President of Ukraine and are held within sixty days from the date of
publication of the decision on early termination of powers of the
Verkhovna Rada of Ukraine.
Parts 6 and 7 of Article 83 of the Constitution state that in the
Verkhovna Rada of Ukraine, according to results of the elections and
on the basis of agreed political positions, a coalition of
parliamentary factions shall be formed, which includes the majority
of people’s deputies of Ukraine from the constitutional composition of
the Verkhovna Rada of Ukraine. A coalition of parliamentary factions
in the Verkhovna Rada of Ukraine shall be created within one month
from the date of opening of the first session of the Verkhovna Rada of
Ukraine, held after regular or snap elections to the Verkhovna Rada of
Ukraine, or for a period of one month from the date of termination of
activities of a coalition of parliamentary factions in the Verkhovna
Rada of Ukraine.
Paragraph 1 of Part 2 of Article 90 of the Constitution states that
the President shall be authorized to early terminate powers of the
Verkhovna Rada of Ukraine, if no coalition of parliamentary factions
is formed in the Verkhovna Rada of Ukraine within one month in
accordance with Article 83 of the Constitution of Ukraine.
Paragraphs 7 and 8 of Part 1 of Article 106 of the Constitution of
Ukraine stipulate that the President shall appoint snap elections to the
Verkhovna Rada of Ukraine within the period, established by the
Constitution of Ukraine, as well as terminate powers of the Verkhovna
Rada of Ukraine in the cases, provided for in the Constitution.
6
Analyzing the legal grounds, set forth in the Decree of the
President of Ukraine ‘On early termination of powers of the Verkhovna
Rada of Ukraine and appointment of snap elections’, it is necessary to
indicate that early termination of powers of the Verkhovna Rada of
Ukraine of the seventh convocation is in direct contradiction to
requirements of the Law of Ukraine, dated February 21, 2014, No.
742-VII ‘On renewal of certain provisions of the Constitution of
Ukraine’. Thus, Article 3 of this Law provides that the Verkhovna Rada
of Ukraine of the seventh convocation, elected at the regular elections
in October of 2012, shall exercises the powers under the provisions of
the Constitution of Ukraine, adopted at the fifth session of the
Verkhovna Rada of Ukraine on June 28, 1996, as amended and
supplemented by the Laws of Ukraine of December 8, 2004, No. 2222IV; of February 1, 2011 No. 2952-VI; of September 19, 2013, No. 586VII, until the transfer of such powers by the Verkhovna Rada of
Ukraine, elected at the regular elections on the last Sunday of
October in 2017.
Accordingly, the Law of Ukraine ‘On renewal of certain provisions
of the Constitution of Ukraine’, which has actually changed the
Constitution, establishes the time frame for exercising of powers of
the seventh convocation of the Verkhovna Rada of Ukraine.
In view of the fact that the powers of the President of Ukraine,
which he has at the moment, have been defined by this Law, violation
of requirements of the specified Law establishes a precedent,
violating the revision of the Constitution, specified in the Law.
Moreover, the issue, related to the fact that the Law of Ukraine ‘On
renewal of certain provisions of the Constitution of Ukraine’ has
actually restored the revision of amendments to the Constitution of
7
Ukraine of 2004 in the unconstitutional way, has been discussed on
several occasions that, in turn, reflects the absence of clearly defined
powers of the President of Ukraine, including early termination of
powers of the Verkhovna Rada of Ukraine.
2. The Verkhovna Rada of Ukraine of the seventh convocation, the
powers of which have been early terminated in accordance with the
Decree of the President of Ukraine, continues to exercise its legislative
powers till the date of the snap elections. However, due to early
termination of powers of the state legislature authority, the
corresponding powers to consider and adopt legislative acts by this
authority shall be terminated as well. However, the Verkhovna Rada
of Ukraine, in spite of the early termination of its powers, continues
to work, as evidenced by the adoption of several crucial legislative
acts.
It should be noted that the analysis of legal grounds for
continuation of the work of the Verkhovna Rada of Ukraine after the
adoption by the President of Ukraine of the Decree ‘On early
termination of powers of the Verkhovna Rada of Ukraine and
appointment of snap elections’ directly demonstrates illegality of
adopting any regulatory legal acts by the supreme legislative body of
Ukraine.
The possibility of continuing the work of the Verkhovna Rada of
Ukraine with reference to Part 1 of Article 90 of the Constitution,
which provides that powers of the Verkhovna Rada of Ukraine shall be
terminated upon opening of the first meeting of the new convocation of
the Verkhovna Rada of Ukraine, is untenable
8
in this case, as the
reason, specified for termination of powers of the Verkhovna Rada of
Ukraine, provides for regular elections of people’s deputies.
In this case, powers of the Verkhovna Rada of Ukraine have
already been terminated by the Presidential Decree ‘On early
termination of powers of the Verkhovna Rada of Ukraine and
appointment of snap elections’ on the basis of Part 2 of Article 90 of the
Constitution of Ukraine.
If the Verkhovna Rada of Ukraine continues to work on the basis
of Part 1 of Article 90 of the Constitution of Ukraine, the questions
arise: what legal action will happen on the first day of the new
convocation of the Verkhovna Rada of Ukraine and whether there
should be re-termination of powers?
In addition, early termination of powers of the Verkhovna Rada of
Ukraine of the seventh convocation directly contradicts the
requirements of the Law of Ukraine ‘On renewal of certain provisions
of the Constitution of Ukraine’.
Thus, the Decree of the President of Ukraine ‘On early termination
of powers of the Verkhovna Rada of Ukraine and appointment of snap
elections’ violates the Law of Ukraine ‘On renewal of certain provisions
of the Constitution of Ukraine’, which was adopted in violation of the
Constitution of Ukraine.
Conclusions:
1) The revision of the Constitution of Ukraine has been
modified without constitutional justification, new powers of the
President of Ukraine have been provided, legal grounds for
early termination of powers of the Verkhovna Rada of
Ukraine have been amended, as well as the procedure and
9
terms of regular and snap elections to the Verkhovna Rada of
Ukraine.
2) These unconstitutional changes have been imposed on the
Ukrainian society, which has been forced to live and work
within the framework of these changes.
3) The constitutional process has been interrupted, it does not
produce the proper regulatory impact on subjects of public
relations.
4) Illegal amending of the Constitution of Ukraine and further
adopting of legal and regulatory acts by the President of Ukraine
and the Verkhovna Rada of Ukraine, performed in conflict with
the Constitution of Ukraine, testify about questionable
legitimacy of the Verkhovna Rada of Ukraine and legislative
acts, adopted by it, as well as legitimacy of actions of the
President of Ukraine as the guarantor of the Constitution of
Ukraine.
3. A number of legislative initiatives, that have been adopted by
the Verkhovna Rada of Ukraine, allow rising the issue of violation of
individual provisions of the Convention for the Protection of Human
Rights and Fundamental Freedoms:
1) ‘On amendments to the Criminal Procedure Code of
Ukraine regarding the special procedure of pre-trial investigation in
the context of war, state of emergency, or in the area of conduction
of an anti-terrorist operation’ (Law dated August 12, 2014 No. 1631VII).
Key points: The Criminal Procedural Code of Ukraine has been
supplemented with the new article, according to which the Prosecutor is
10
empowered to consider requests to conduct investigative activities, that
infringe upon the rights and freedoms of individuals, including a
preventive measure in the form of detention for up to 30 days of
individuals, suspected of having committed a number of crimes.
Transfer of the right to consider requests for preventive measures
in the form of detention to the Prosecutor is in direct contradiction to
Paragraphs 3 and 4 of Article 5 of the Convention for the Protection
of Human Rights and Fundamental Freedoms, as well as Articles 29
and 124 of the Constitution of Ukraine;
2) ‘On amending of the Law of Ukraine ‘On combating
terrorism’ regarding preventive detention in the area of an antiterrorist operation of individuals, involved in terrorist activities, for
more than 72 hours’ (Law dated August 12, 2014, No. 1630-VII).
Key points: The Law amended the Law of Ukraine ‘On combating
terrorism’, allowing the head of the Main Department (Office) of the
Security Service of Ukraine or the Head of the Main Department
(Office) of the Ministry of Internal Affairs of Ukraine in the
Autonomous Republic of Crimea, in the relevant area, the cities of Kiev
and Sevastopol with the consent of a prosecutor and without an
order of an investigating judge or court to carry out preventive
detention of persons, involved in terrorist activities, for the period of up
to 30 days.
Delegation to the Heads of the Main Departments of the SSU or
the Interior Affairs Ministry of the authority to make decisions,
concerning detention of persons, suspected of involvement in terrorist
activities, lies in direct contradiction with Paragraphs 3 and 4 of
Article 5 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, as well as Articles 29 and 124 of the
11
Constitution of Ukraine. These changes effectively nullify all
constitutional rights of citizens to liberty and fair trial;
3) ‘On amendments to the Law of Ukraine ‘On militia’
regarding conditions for the use of force, special means and
firearms in the area of anti-terrorism operations’ (Law of August
12, 2014 No. 1633-VII).
Key points: The Law amends the Law of Ukraine ‘On militia’,
which provides for the right of use of a firearm in the conduction of the
anti-terrorist operation.
Before these changes, Article 15 of the Law of Ukraine ‘On
militia’ had a clearly defined list of cases, in which police officers have
the right to use firearms, regardless of a place of their use. The
amends actually allow the police to use firearms in the area of antiterrorist operations at their discretion without any restrictions;
4) ‘On administration of justice and criminal proceedings in
connection with the anti-terrorist operation’ (Law of August 12,
2014 No. 1632-VII).
Key points: In connection with inability to prosecute through
individual courts in the area of the anti-terrorist operation, the
territorial jurisdiction of court cases has been changed by this Law.
Determination of territorial jurisdiction has been transferred to heads of
the highest specialized courts in accordance with substantive jurisdiction
of cases.
In addition, the Law has changed investigative jurisdiction of
criminal offences, committed in the area of the anti-terrorist operation,
the definition of which has been transferred to the Prosecutor General of
Ukraine.
12
The bill provides for possibility to make necessary procedural
actions on documents and materials, submitted by participants for the
trial, in the event of failure of submitting the case materials in
accordance with established jurisdiction.
The inclusion of this norm in the bill is in complete ignorance of
legislation of civil, commercial, administrative and criminal cases in
the courts of Ukraine and procedural impossibility of recording such
materials, not to mention a possibility of considering them.
2. Analysis of bills, adopted by the Verkhovna Rada of
Ukraine on legal regulation of resolution of the inner
Ukrainian conflict in the Donetsk and Luhansk
regions
On September 16, 2014, the Verkhovna Rada of Ukraine approved
the draft laws, aimed at establishment of interim arrangements for
organization of local government in certain areas of the Donetsk and
Luhansk regions and exemption from criminal liability of individuals
,having committed offences in the territory of the anti-terrorist operation
(according to the terminology of these draft laws).
The analysis of the draft Law of Ukraine ‘On prevention of
criminal prosecution and punishment of individuals — participants of
the events in the Donetsk and Luhansk regions’ (hereinafter, the Law
‘On prevention of criminal prosecution and punishment of individuals
— participants of the events in the Donetsk and Luhansk regions’) and
the Law of Ukraine ‘On the special procedure of local government in
certain areas of the Donetsk and Lugansk regions’ (hereinafter, the Law
‘On the special procedure of local government in certain areas of the
Donetsk and Lugansk regions’) indicates a risk of impossibility of
13
performance of these laws and a high level of probability of recognition
of such laws unconstitutional by the decision of the Constitutional Court
of Ukraine.
The analysis of the texts of these draft laws has been performed for
the revisions, put on voting and approved by the Verkhovna Rada of
Ukraine, it has been taken into account, that the texts of the laws could
be changed after the vote, since such cases have been observed after the
February coup d’état.
Risks, associated with recognition of acceptance of such laws
unconstitutional or with impossibility of their execution, rely both on the
fact of violating of the procedure for their adoption and inconsistency of
the specified norms with the Constitution and laws of Ukraine.
Analysis of violations of the procedure for adoption of bills
In accordance with the requirements of Article 4 of the Law of
Ukraine ‘On the Regulation Procedure of the Verkhovna Rada of
Ukraine’ of February 10, 2010 No. 1861-VI (with amendments and
additions), a closed plenary session of the Verkhovna Rada of Ukraine is
held to review specific issues in regard of a decision of the Verkhovna
Rada of Ukraine, adopted after a reduced discussion by the majority of
votes of people’s deputies of the constitutional composition of the
Verkhovna Rada.
According to the transcript of the plenary meeting of the
Verkhovna Rada of Ukraine on September 16, 2014, deputies refused to
consider legislative initiatives of the President of Ukraine at the plenary
meeting by voting against the proposal of the Head of the Verkhovna
Rada of Ukraine A. V. Turchinov, after which A.V. Turchynov
14
announced a break in the plenary meeting and invited leaders of the
factions of the Verkhovna Rada to join him in his cabinet. The Head of
the Verkhovna Rada of Ukraine A.V. Turchinov said that a break took
place in order to determine the position on necessity of the report of the
Head of the General Staff of the Ukrainian Army, which had been
planned to be presented closed to the public.
After the break, the Head of the Verkhovna Rada of Ukraine A.V.
Turchinov told deputies to hold a meeting of the Conciliation Board
with the participation of the President of Ukraine. A.V. Turchinov also
said that the discussion of problems of the anti-terrorist operation, issues
and prospects for a peaceful settlement of the conflict at the meeting of
the Conciliation Board was held in the ‘impulsive’ mode, then he again
put the issue of holding a plenary session behind closed doors on
discussion. During the second vote, deputies supported the proposal of
the Head of the Verkhovna Rada of Ukraine A.V. Turchinov to hold a
closed meeting.
In this case, the Head of the Verkhovna Rada of Ukraine A.V.
Turchinov ignored the requirements of Article 4 of the Law of Ukraine
‘On the Regulation Procedure of the Verkhovna Rada of Ukraine’ on
compulsory reduced discussion by deputies of a decision to hold a
closed plenary session of the Verkhovna Rada, which constitutes a
violation of the procedure for the adoption of corresponding decisions.
The pressure on deputies of the Verkhovna Rada of Ukraine in
adopting of such laws was also demonstrated by the attack on Deputy
Vitaly Zhuravsky, that occurred near the building of the Verkhovna
Rada of Ukraine on the voting day.
15
Analysis of the Law of Ukraine ‘On the special procedure of
local government in certain areas of the Donetsk
and Luhansk regions’
The Law of Ukraine ‘On the special procedure of local government
in certain areas of the Donetsk and Luhansk regions’ (hereinafter, the
Law) establishes special interim arrangements for organization of local
government in certain areas of the Donetsk and Luhansk regions, which
involve extending of powers of local authorities, as well as a possibility
of using the Russian language in education, in the mass media, in legal,
economic and social activities. The Law provides for creation of squads
of the people’s militia and enabling local governments to sign
agreements on near-border cooperation.
The analysis of the Law suggests that the rules, extending powers
of local governments in certain areas of the Donetsk and Luhansk
regions, have been intentionally spelled out in violation of the
Constitution of Ukraine.
Thus, in accordance with the requirements of Article 146 of the
Constitution of Ukraine, laws can define only those matters of
organization
of
local
governments,
formation,
activities
and
accountability of local governments, which are not defined by the
Constitution of Ukraine (this practice is confirmed by the decision of the
Constitutional Court of Ukraine in Case No. 12-RP/2002, dated June 18,
2002). In this case, the Law regulates organization of local government,
that is already defined by the Constitution of Ukraine, indicating a
possibility of challenging the Law in the Constitutional Court of
Ukraine.
The provisions of Articles 2 and 5 of the Law on activities within
certain areas of the Donetsk and Luhansk regions of Ukraine are
16
contradictory. Thus, Article 2 of the Law stipulates that the legislation of
Ukraine in certain areas of the Donetsk and Luhansk regions for the
duration of the special procedure of local government shall be applied,
taking into account specifications, determined by this Law. At the same
time, Article 5 of the Law provides that in certain areas of the Donetsk
and Luhansk regions local government shall be exercised in accordance
with the Constitution and laws of Ukraine by corresponding territorial
communities directly and through local authorities.
In view of the fact that it is the Law of Ukraine ‘On the special
procedure of local government in certain areas of the Donetsk and
Luhansk regions’, which defines organization of local government and
local authorities in certain areas of the Donetsk and Luhansk regions,
Article 5 of the Law would be correct, if put as if in certain areas of the
Donetsk and Luhansk regions local government is exercised in
accordance with the Constitution and laws of Ukraine, taking into
account the characteristics, envisaged by this Law.
There is a very high risk of actual default of the provisions, set out
in Article 5 of the Law, providing that in certain areas of the Donetsk
and Luhansk regions the laws of Ukraine introduce a special procedure
for appointment of heads of public prosecutor’s offices and courts,
involving local authorities in addressing of these issues. Implementation
of the provisions on participation of local authorities in appointment of
heads of public prosecutor’s offices and courts requires creation of
respective draft laws by the Cabinet of Ministers of Ukraine, with
subsequent approval of the Verkhovna Rada of Ukraine. Given the
political standoff in Ukraine, this could take a considerable period of
time (presumably, a few years).
17
Under Article 6 of the Law, the procedure of agreements, relating
to economic, social and cultural development of certain areas of the
Donetsk and Luhansk regions, is entirely dependent on approval of the
Cabinet of Ministers of Ukraine and ministries, thus questioning its
effectiveness.
Article 8 of the Law provides for a possibility to conclude
agreements on near-border cooperation between territorial communities,
local authorities, local executive authorities of Ukraine and territorial
communities within the competence, established by the Law. These
rules seem meaningless, because, under the legislation of Ukraine, the
competence of local communities and local governments does not cover
conclusion of international agreements.
The proposed regulation of Article 9 of the Law on creation of
squads of the people’s militia in certain areas of the Donetsk and
Luhansk regions to protect and maintain public order in communities of
these regions can also be left unimplemented, because any activities,
related to protection and maintaining of public order, shall be impossible
without entrusting the body, implementing such activities, with powers,
provided for by the law.
Part 4 of Article 9 of the Law stipulates that squads of the people’s
militia during the defence of public order can implement the powers,
provided for in the laws of Ukraine. However, the laws of Ukraine
provide neither powers nor a body such as the people’s militia.
Therefore, for the purposes of the Law and establishment of a legitimate
and effective body for protection of public order, Article 9 of the Law
would better be amended to entrust the people’s militia with powers
under the Law of Ukraine ‘On militia’.
18
In addition, issues in regard of foundations of material and
financial support of activities of local government bodies, reconstruction
of residential and industrial infrastructure, destroyed during the reprisal
operation, have been neglected.
Analysis of the Law of Ukraine ‘On prevention of
criminal prosecution and punishment of individuals —
participants of the events in the Donetsk and Luhansk regions’
Reviewing the text of the specified Law, doubts are cast upon the
authors’ knowledge of principles and provisions of substantive and
procedural laws. In particular, Article 3 of the Criminal Code of Ukraine
provides that criminal acts and other criminal and legal implications
shall be defined only by this Code.
In accordance with Article 44 of the Criminal Code of Ukraine,
any person, who commits an offence, may be released from criminal
liability in the cases, stipulated by this Code. The Criminal Code of
Ukraine provides for a possibility of exemption from criminal liability in
the following cases: active repentance; reconciliation of the offender
with the victim; bailing out of a person; due to changes of
circumstances; upon expiration of the statute of limitations.
In addition, the Criminal Code of Ukraine provides for possible
release of convicts from punishment: pardon with probation; pardon
with probation of pregnant women and women with children under
seven years of age; pardon due to expiration of the statute of limitation
of conviction; on parole from serving the sentence; pardon of pregnant
women and women with children under three years of age; pardon due
to illness; pardon through the Amnesty Law of Ukraine or an act of
clemency.
19
In this case, the Law of Ukraine ‘On prevention of criminal
prosecution and punishment of individuals — participants of the events
in the Donetsk and Luhansk regions’ provides for a possibility of
exemption from criminal liability of an indeterminate number of people
on grounds, not covered by the Criminal Code of Ukraine. However,
Article 285 of the Criminal Procedural Code of Ukraine provides that an
individual shall be released from criminal liability in the cases, provided
for in the Law of Ukraine ‘On criminal responsibility’. The
circumstances demonstrate inability to actually execute the Law by
courts of Ukraine in part of exemption from criminal responsibility of
persons, who have taken part in the inner Ukrainian conflict.
On the basis of the analyzed Law, it can be concluded that
compliance
with
requirements
to
terminate
relevant
criminal
proceedings without violating the rules of the Criminal Code and
Criminal Procedural Code of Ukraine is impossible.
In addition, Article 5 of the Law provides a range of persons, not
covered by the Law. In accordance with the requirements of Paragraph 2
of Part 1 of Article 5 of the Law, exemption from criminal liability is
subject to a qualification of the actions of a person.
Accordingly, to apply the Law and exempt from criminal liability
those persons, referred to in Article 1 of the Law, it is necessary to
conduct pre-trial investigation and qualify actions of persons, falling
within its scope, that is very unlikely in the conditions of an armed
conflict and the absence of such pre-trial investigation bodies in the
territories of residence of such persons.
20
Summary conclusions
The analysis of the Law of Ukraine ‘On prevention of criminal
prosecution and punishment of individuals — participants of the events
in the Donetsk and Luhansk regions’ and the Law of Ukraine ‘On the
special procedure of local government in certain areas of the Donetsk
and Lugansk regions’ shows that their execution is difficult (in terms
of exemption from criminal liability — legally impossible).
Probability of recognition of individual provisions of these
Laws unconstitutional is very high. The adoption of such laws
demonstrates unwillingness of their actual performance.
Preliminary analysis of the draft Law of Ukraine
‘On cleaning of the power’
The analysis of provisions of the draft Law of Ukraine ‘On
cleaning of the power’ (hereinafter, the Law ‘On cleaning of the power’)
shows that the authors have used all negative experience of power
lustration, available in the world, to propose certain rules in the
conditions of a severe economic, political, territorial crisis, aimed at
eliminating political opponents and enforcing illegal retaliation on
their political enemies.
The Law includes criteria for determining who initially fail to pass
the lustration procedure, including officials, manning the posts in the
period from February 25, 2010 to February 22, 2014, officers of the
Interior Affairs Ministry, serving their professional duty from November
21, 2013 to February 22, 2014, individuals, who occupied senior
positions in the Communist Party of the USSR and the Union Republics,
the CC AULYCL, the CC Leninist Young Communist League of
21
Ukraine, individuals, who worked in the KGB and cooperated with
them, as well as those graduated from higher educational institutions of
the KGB.
In view of the political situation in Ukraine, establishment of the
above criteria would remove from the experienced and professional
staff of ministries, tax authorities, police, prosecution, courts from
their work and create an opportunity for taking up of governmental
posts for those, who would not stand corresponding competition
selection, not having the experience and skills to work at
appropriate levels, but participated in the ‘anti-terrorist operation’ in
the East of Ukraine, which ensured receiving of indulgence from the
authors of the Law.
It should be pointed out that the Law is replete with provisions to
prosecute any staff of the Internal Affairs Ministry and the Prosecutor’s
Office, regardless of their position. In turn, in view of the forthcoming
elections of people’s deputies to the Verkhovna Rada of Ukraine, this
opens up enormous opportunities for intimidation and abuse.
It should be noted that the provisions of the Law contradict both
the Constitution of Ukraine and the practice of the European Court of
Human Rights.
Thus, the decision ‘Turek vs. Slovakia’ (Turek vs. Slovakia,
Complaint No. 57986/00, the materials of the decision, dated February
14, 2006), the European Court of Human Rights pointed out that for the
case, involving lustration, legality of actions of public security bodies
would be the subject of reviewing.
In view of the fact that in the period from February 25, 2010 to
February 22, 2014 there were the legitimately elected President of
Ukraine and the Parliament with government bodies, formed on the
22
basis of the Constitution and laws of Ukraine, application of lustration
procedures without recognition of the corresponding bodies
unlawful would be contrary to the practice of the European Court
of Human Rights.
It should also be noted that the authors of the Law have ignored or
forgotten the following requirements of the Constitution of Ukraine:
the requirements of Article 22 of the Constitution of Ukraine
regarding the fact that, adopting new laws or amending existing laws,
narrowing of the content and scope of existing rights and freedoms shall
not be allowed;
the provisions of Article 24 of the Constitution of Ukraine
regarding all citizens, having equal constitutional rights and freedoms,
as well as inadmissibility of privileges and restrictions, based on
political or other beliefs;
the requirements of Article 38 of the Constitution of Ukraine
regarding citizens, enjoying equal rights of access to the civil service
and service in local government bodies.
The authors of the Law have not paid attention to the provisions of
Articles 61 and 64 of the Constitution of Ukraine, which stipulate that
legal liability of a person shall be individual, while the constitutional
human and civil rights and freedoms may not be restricted, except in
cases, provided for by the Constitution of Ukraine.
In conclusion, it should be noted that the authors of the Law refer
to the lustration procedures, held by Poland and the Czech Republic,
bearing in mind the case law of the European Court of Human Rights
and the experience of Hungary, when the law Zeteni-Takács was
subsequently named the ‘Law of Retaliation’ and revised.
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Elections
In accordance with Paragraph 2 of the Decree of the President of
Ukraine No. 690/2014 of August 27, 2014 ‘On early termination of
powers of the Verkhovna Rada of Ukraine and appointment of snap
elections’, the snap elections to the Verkhovna Rada of Ukraine are
appointed on October 26, 2014.
According to international electoral standards, set forth in the basic
instruments of the United Nations, in particular in the International
Covenant on Civil Rights, dated December 16, 1966, resolutions and
reports of the United Nations General Assembly and recommended by
the OSCE Bureau for Democratic Institutions and Human Rights,
every citizen, without discrimination and without unreasonable
restrictions, shall have the right to vote and to be elected. Voters are
provided with conditions for free formation of their will and the freedom
to express it through voting.
Under Part 2 of Article 6 of the Law of Ukraine ‘On elections of
the President of Ukraine’ (in the edition of March 13, 2014), it is
stipulated that using violence, threats, deception, bribery or impeding
free formation and free expression of the will of elector in any other
manner shall be prohibited.
Under Part 2 of Article 11 of the Law of Ukraine, the electoral
process is administered on the basis of:
1) rule of law and prohibition of unlawful interference in this
process;
2) political pluralism and the multi-party system;
3) publicity and openness of the electoral process;
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4) equality of all candidates for the post of the President of
Ukraine;
5) equal rights of parties — subjects of the electoral process;
6) freedom of election propaganda, equal access of candidates for
the post of President of Ukraine to the mass media;
7) impartiality of executive authorities, local government bodies,
enterprises, institutions and organizations, their leaders, other officials
and officers to candidates for the post of President of Ukraine.
In accordance with recommendations of the OSCE Office for
Democratic Institutions and Human Rights, similar provisions shall
be included in all electoral acts of Ukraine, governing conduction of
elections and referendums.
At the moment, taking into account the armed conflict and
suppression of the will of the population in the South-East of Ukraine,
it is impossible to speak of any compliance with these standards.
According to available information, the specified conditions for
holding of democratic, free elections have not been provided in
Ukraine, there are no guaranteed freedom of speech and freedom of
election propaganda.
It is questionable that, in the conditions of the special operation in
the South-East of Ukraine, such elections will be recognized as
legitimate.
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On the constitutional and legal form of the state
Ukraine has not determined its legal and constitutional form of
the Government.
In accordance with the provisions of Part 2 of Article 2 of the
Constitution of Ukraine, the country is a unitary state. However, in view
of the Law of Ukraine ‘On the special procedure of local government in
certain areas of the Donetsk and Luhansk regions’ providing the
dynamics of development of the autonomy in these regions,
representatives of institutions of public authority cannot articulate their
constitutional status, as well as legal implications of independence of the
regions.
Venice Commission
Ukraine holds the leading position in terms of the number of
applications to the Venice Commission (67 conclusions have been
prepared for the Commission within the period of Ukraine’s
chairmanship in this entity). However, the Laws of Ukraine ’On the
special procedure of local government in certain areas of the Donetsk
and Luhansk regions’,
‘On prevention of criminal prosecution and
punishment of individuals — participants of the events in the Donetsk
and Luhansk regions’, ‘On cleaning of the power’ have not been sent for
reviewing to the Venice Commission, despite the fact that bringing the
country’s legislation into line with the European standards has been
stipulated by the Association Agreement with the European Union.
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