As of 30th of March 2017 Ukraine has legislation that is discriminatory towards some citizens of Ukraine merely for being involved into activities related to corruption counteraction. This not only limits the capacity of civil society, puts pressure on anticorruption activists and creates conditions for prosecution of certain category of citizens, but also goes against the Constitution of Ukraine and international treaties Ukraine is a party to.
Legislative changes regarding e-declarations for anticorruption civil activists should be abolished in full, because they are in violation with the requirements of the 8th, 22nd, 24th, 36th, 43rd, 64th articles of the Constitution of Ukraine. They also contradict the European Convention for the Protection of Human Rights and Fundamental Freedoms; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; PACE Resolutions and Resolutions of the United Nations Human Rights Council regarding the protection of human rights advocates.
Refer to Annex 1 for legal reasoning and the full list.
It’s worth reminding that President Petro Poroshenko has signed the mentioned legislation despite the authority to veto it and disregarding the criticism expressed by international community. Appeals to review new legislation were made immediately after adoption in Parliament by the Embassies of the USA, Great Britain and Canada, while Commissioner for European Neighborhood Policy & Enlargement Negotiation Johannes Hahn and European Council called them «a serious step back». The adopted legislation was immediately condemned by international organizations, for instance José Ugaz, chair of Transparency International, said Ukraine’s lawmakers are «trying to intimidate civil society and in particular anti-corruption activists», whereas Human Rights Watch stated that it «could be used to deter or punish investigative journalists and partners of anti-corruption nongovernmental groups for doing their job». More recently 20 Members of the European Parliament called upon the Ukrainian government to immediately cancel e-declaration for anti-corruption activists. «We are convinced that these innovations, which are now vested in the representatives of non-governmental organizations dealing with combating corruption, with the requirement to publish declarations of their income is unnecessary, unprecedented and discriminatory move» it is «a manifestation of pressure on public activists who tirelessly carry out extremely valuable work in exposing and reporting acts of corruption in Ukraine», – says their letter to President of Ukraine Petro Poroshenko, Prime-minister Volodymyr Groysman and Speaker of the Parliament Andriy Parubiy.
Some Members of the Ukrainian Parliament have already introduced allegedly resolution legislative initiatives – for instance Draft Law #6271. However, mentioned draft law suggests to solve the issue only in part, while all of the provisions related to civil activists need to be abolished because they are unconstitutional. Same goes for the working group initiated by Petro Poroshenko – what do we need it for when the only thing that needs to be done – is to cancel the adopted changes?
We urge the President to immediately submit to the Parliament a draft law that would fully abolish the newly adopted norms of the Law that target anticorruption civil activists.
Articles of the Constitution violated by the adopted Law of Ukraine «On amendments to some Acts of Ukraine regarding specificities of the financial control of different categories of the officials» from 23rd of March 2017 #1975-VIII, in particular new provisions of paragraph 5 part 1 article 3, articles 45, 52, 60 of the Law of Ukraine «On Prevention of corruption»:
· Article 24, that guaranties citizens’ equal constitutional rights and freedoms, equality before the law, no privileges or restrictions based on any characteristics. Newly adopted norms are discriminatory since requirements of the Law are only applicable to those working in the anti-corruption field;
· Article 8, that recognizes the rule of law. New provisions of the legislation are unclear not only in terms of reasoning for introduction of prohibitions, restrictions and accountability on the anti-corruption activists, but also even regarding the circle of persons subject to the law that causes legal uncertainty;
· Article 22, that guarantees that content and scope of the existing rights and freedoms shall not be diminished with the adoption of new laws or by introducing amendments to the existing legislation. Adopted new provisions of the Law are restricting the nature and extent of the existing freedom and rights, because restrictions and additional obligations are bestowed upon specific persons on the basis of type of their activity;
· Article 36, that recognizes associations of citizens as equal before the law. Contrary to this article the new legislation applies to members, leadership, employees and counterparties of only specific circle of civil organizations that work in the field of corruption prevention and counteraction. Members, leadership, employees and counterparties of any other public associations are not obliged to fulfill the requirements of the Articles 45, 52, 60 of the Law;
· Article 43, that guaranties everyone a right to work, including a possibility to earn a living by labour that he freely chooses or to which he freely agrees. New provisions of the Law are restricting the right to work, part of which is equal opportunities in the right to choose type of labor activity;
· Article 64, that establishes that Constitutional human and civil rights and freedoms shall not be restricted, unless a restriction is stipulated by the Constitution of Ukraine. Newly adopted norms of the Law equate certain categories of citizens to government officials and local authorities through imposing respective responsibilities on them, provided by the Law when anything like this would require changes to the Constitution.
International treaties Ukraine is party to that newly adopted legislation is in contradiction with:
• Article 1 of the Protocol #12 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides for a general prohibition of discrimination;
• Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms , prohibits general discrimination with respect to rights and freedoms under the Convention;
• Paragraph 7 of the PACE Resolution 2096 (2016) which calls on member States to refrain from adopting any new laws which would result in inappropriate restrictions on NGOs; ensure that NGOs are effectively involved in the consultation process concerning new legislation which concerns them and other issues of particular importance to society; ensure an enabling environment for NGOs, in particular by refraining from any harassment (judicial, administrative or tax) and smear campaigns;
• Paragraph 7 of the PACE Resolution 2095 (2016) which calls on member States to refrain from adopting laws that impose disproportionate restrictions on human rights defenders’ activities and that limit their access to funding, including foreign funding, or repeal such legislation;
• Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.pdf stipulates that no restrictions shall be placed on the exercise the rights granted by the Convention other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others;
• Article 22 of the Covenant on Civil and Political Rights stipulates that everyone shall have the right to freedom of association with others and that no restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others;
• Article 17 of the Covenant on Civil and Political Rights stipulates that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. The content of this article are explained in the Paragraph 65 of the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association from 12th of May 2012, that determines that authorities must respect the right of associations to privacy. This means among other that authorities should not be entitled to condition any decisions and activities of the association; reverse the election of board members. The Special Rapporteur recognizes the right of independent bodies to examine the associations’ records as a mechanism to ensure transparency and accountability, but such a procedure should not be arbitrary and must respect the principle of non-discrimination and the right to privacy as it would otherwise put the independence of associations and the safety of their members at risk;
• Paragraph 17 of the UN Human Rights Council Resolution regarding Protecting human rights defenders 31/32 dated March 21st, 2016 which calls on member countries to encourage public involvement and create appropriate conditions for this, to also encourage transparent and effective management to ensure prevention of corruption among officials, business representatives and others non-State entities;
• Paragraph 12.3 of the PACE Resolution 1660 (2009) which calls on member States to immediately abolish requirements for registration of non-governmental organizations (NGOs) or other bureaucratic barriers that may impair the effective enjoyment of the right to form, join and participate in NGOs, associations or groups working to defend human rights or that may otherwise obstruct their work;
• Paragraph 76 of the Recommendations CМ/Rec (2007) 14 of the Committee of Ministers of the member countries of the Council of Europe**, witch states that governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions;
• Paragraphs 24 and 76 of the Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe** stipulates that persons belonging to an NGO should not be subject to any sanction because of their membership and that governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions.