Prepared by Dmytro Kotliar
On 16 January 2014 Ukrainian Parliament (Verkhovna Rada) adopted several laws which introduce a comprehensive set of measures that curtail fundamental human rights and freedoms, undermine activity of mass media, NGOs and religious organisations, restrict internet freedom, make it easier to persecute opposition and foster impunity for human rights violations committed by law enforcement officers. Adopted laws contradict Ukrainian Constitution and Ukraine’s international commitments and obligations as Council of Europe, OSCE and UN member, European Convention of Human Rights and other international treaties of Ukraine. Below is an overview of the adopted laws (see names of the laws in the Note at the end).
Procedure. When adopting the laws the Parliament violated a number of its own procedural rules. The laws were voted mostly by showing of hands (which in principle is allowed by the Rules of Procedure but only when there is not “technical possibility” to vote through electronic system) but without proper counting – hands were “counted” within few seconds, based on the number of MPs included in the parliamentary groups, while many MPs were in fact absent. Most of the laws were adopted without prior consideration in the parliament’s committees as required and with no time for examining the laws even by the MPs.
1. Criminal repression
A number of amendments establish criminal liability for new offences or raise sanctions, often by introducing an option of imprisonment:
- Broadly defined “extremist activity” is criminalized and sanctioned by a hefty fine for the first offence and up to 3-year imprisonment for repeat offence. Extremist activity is defined in broad and vague terms as: production, storing or dissemination, in particular via mass media, internet, social networks, use or demonstration at rallies, assemblies of any material that, among other things, justify, call for or substantiate organization, incitement, preparation and commission of acts aimed at capturing by force of state power, illegal interference or obstruction of activity of state authorities, elections commissions or civic associations, their officials.
- Defamation is re-criminalised. Ukraine decriminalized defamation in 2001 with adoption of the new Criminal Code; Ukrainian law provides civil law remedies for defamation claims which proved to be effective and balanced. Adopted amendments sanction defamation in the mass media or Internet with various punishments up to 1 year of correctional works and for defamation in the form of accusation in serious crimes (which includes corruption) – up to 2 years of restriction of liberty (a lighter form of imprisonment). Criminal liability for defamation will have significant chilling effect on the mass media and civil activism in Ukraine.
- Insult of policemen or judges is to be criminally punished. Illegal collection and dissemination of “confidential information” (under Ukrainian law – any personal data) about law enforcement officers or judges, as well as spreading of information which “patently offends” or “shows insolent disrespect” of a law enforcement employee or a judge, pressure, intimidation or influence in any other form on them are to be punished with up to 6 months of arrest or up to 3 years of imprisonment for aggravated offence.
- “Blocking of entrance” to person’s residence is criminalized with sanction up to 3 years of restriction of liberty.
- Blocking of administrative buildings and premises is criminalized with extremely harsh sanctions of up to 5 years of liberty restriction or up to 5 years of imprisonment.
- Criminal sanctions increased for actions often incriminated to protesters (blocking of thoroughfares, violation of public order as member of a group, mass disorder, resistance to law enforcement officers, etc.)
2. Harsh administrative sanctions aimed at protesters
Code of Administrative Offences is amended to introduce new offences or raise sanctions for existing offences related to protests, including by introducing possibility of administrative arrest, which in fact is a short-term imprisonment:
- Driving a vehicle which “moves in a column of more than 5 vehicles” without prior agreement with the road police when it caused “obstacles for road traffic”. This offence targets specific initiative called Automaidan and protesting drivers and is punished with disproportionate maximum sanction of 2-year deprivation of a driving licence with confiscation of the vehicle for compensation.
- Mere participation in a rally, protest, etc. when wearing a mask or a helmet or in clothes “which resemble uniform of law enforcement agencies” without any harmful intentions or other violations will be punished by 15 days of incarceration.
- Installing of a tent, stage or any small construction for holding a rally without permission of the ministry of internal affairs will lead to arrest for up to 15 days.
- Arrest as a sanction introduced for violation of “established procedure” for organizing and holding assemblies (even though no such procedure exists in Ukraine as was highlighted by the ECHR in landmark case of Vyerentsov v. Ukraine which makes any punishment under this article arbitrary) and for facilitating such assemblies (by providing premises, transport or any other help).
- This is accompanied with simplified procedures for serving summons and filing administrative protocols.
3. Restriction of Internet media and freedom of communications
- Registration of Internet media. The mass media which are not registered as print media or broadcasters but provide “information product” to the public must register with the state as “information agencies”. This concerns first of all Internet media. Conducting activity without such registration will result in a fine with confiscation of proceeds from such “illegal” activity. Furthermore, state agency may order Internet providers to ban access to such Internet media (see below).
- Blocking of web sites. National Commission on Communications (consisting of 7 members appointed and dismissed solely by the President of Ukraine) is authorized to issue Internet providers with orders on blocking access to web sites which disseminate “illegal information” or through which an unregistered “information agency” operates. Such blocking orders are issued based on “conclusions of experts” in out-of-court proceedings to be defined by the Government.
- Licensing of Internet providers. Amendments introduce mandatory licensing of providers of access to Internet.
- Use of pre-paid mobile cards without identification of the user is effectively prohibited which restricts privacy and freedom of communications.
- All telecommunications operators are obliged to buy and install equipment to intercept communications of their users upon request of law enforcement agencies. Obligation to install such equipment existed before, but was not enforced by many operators as the state had no funds to purchase and provide such equipment.
4. Assault on civil society
- “Foreign agents”. NGOs receiving foreign funding will be branded “foreign agents”, hit with an 18% income tax and cumbersome reporting obligations, for violation of which their registration may be revoked. Amendments in the Tax Code and the Law on Civic Associations target NGOs which receive – directly or indirectly – funding or assets from any foreign or international person/entity and carry out “political activity” which is defined very broadly – “participation in organization and holding of political actions, which aim to influence decision-making by the state authorities, change of state policy, as well as to form public opinion directed to these aims”. Within 3 months of enactment of the amendments all NGOs which receive foreign funding have to re-register in the ministry of justice and include “foreign agent” mentioning in their name. All information and other materials disseminated by such NGOs have to be marked with “foreign agent” label. Such NGOs should report to the ministry about funds received from abroad, on their plans and submit monthly activity reports. Failure to fulfil all these new duties may result in revocation of registration.
- Amendments allow filtering out existing NGOs – all NGOs which fall under “foreign agent” definition have to apply for new registration within 3 months after enactment of amendments. Failure to apply will result in dissolution.
- NGOs and religious organisations leading “extremist activity” are banned and will be closed. Extremist activity is not defined in the laws on NGOs or religious activity, but is determined in broad terms in the Criminal Code (see above).
5. Impunity for human rights violations by state agents
- Parliament revised the Law of 25 December 2013 which was supposed to release from criminal prosecution and punishment protesters who were persecuted after 30 November, 1 December and other events. The law was poorly drafted and enforced only in very few cases. Revised law, which was adopted on 16 January 2014, extended “amnesty” to crimes committed during 21 November – 26 December 2013 by any person, including such offences as infliction of bodily injuries, harassment of journalists, false report of bombing, exceeding of authority or service powers. As a result all law enforcement officers and public officials who masterminded, organised and executed beating and persecution of peaceful protesters will be exempted from criminal liability. This will foster impunity among the police and other law enforcers and may result in new serious violations of human rights.
6. Undermining immunity of MPs
- Amendments in the Rules of Procedure of the Verkhovna Rada significantly simplified procedure for lifting immunity of members of the parliament. Prior consideration in the parliament’s committee was removed and decision-making at the parliament’s plenary was expedited. While according to international standards procedures for lifting immunity should indeed be efficient, fair trial guarantees should be ensured in any case. In the Ukrainian context limiting immunity of MPs will result in repression of opposition MPs and making pro-government MPs even more compliant. The amendments will therefore significantly weaken Ukrainian Parliament.
7. Criminal proceedings in absentia
- Amendments in the Criminal Procedure Code allow pre-trial and trial proceedings to be conducted in absence of the defender is he/she avoids proceedings, including by refusing to appear in court without “justified reasons”. No explanation of what reasons are considered as justified is provided.
Note. On 16 January 2014 Verkhovna Rada of Ukraine adopted the following laws described above:
1) Law on Amendments in the Law of Ukraine on Elimination of Negative Consequences and Preventing Persecution and Punishment of Persons in Relation to Events which Took Place during Peaceful Assemblies (Draft Law no. 3893, submitted on 16 January 2014; revised the Law of 25 December 2013 which aimed to exempt from liability civilian participants of protests in November-December 2013)
2) Law on Amendments in the Verkhovna Rada’s Rules of Procedure (Draft Law no. 3883, submitted on 14 January 2014; simplified lifting of MPs’ immunity)
3) Law on Amendments in the Criminal Procedure Code concerning Criminal Proceedings In Absentia (Draft Law no. 3587, submitted on 8 November 2013)
4) Law on Amendments in the Law of Ukraine on Judiciary and Status of Judges and Procedural Laws with regards to Additional Measures to Protect Security of Citizens (Draft Law no. 3879, submitted on 14 January 2014; includes most of the restrictive measures described above).