CONSULTATIONS

Permit for uranium extraction

2016-03-20T07:21:32Z

Legal Analytics of "Euromaidan": "other" forms of direct democracy

2013-12-13T19:57:13Z

Article 69 of the Constitution of Ukraine envisages that the people have right to elections, referendums and other forms of direct democracy. Thus, this article does not establish an exhaustive list of forms of direct democracy, and indicates that in addition to elections and referendum, there are “other forms of direct democracy”. Although these "other forms of direct democracy" in this article are not listed, but the legislation of Ukraine provides the following forms of direct democracy: peaceful meetings, marches and demonstrations, referendum initiative, appeals, national discussion, etc.

As people are the only source of power in Ukraine, they have right to any form of direct democracy, not prohibited by the Constitution and laws. In general, in addition to elections and referendums, there are many other forms of direct democracy, including, studying of public opinion, plebiscites, public discussions, people's initiatives, petitions, meetings, marches, demonstrations. History has also seen such exceptional forms of direct democracy aspeaceful revolutions, national liberation movements and political strikes, protests, acts of civil disobedience, hunger strikes, picketing, etc. Implementation of these forms of direct democracy is allowed if they are not prohibited by law, and do not lead to prohibited consequences. But the problem is that the evaluation of certain actions during realizing of the forms of direct democracy is made by the authorities, who are not always interested in the people’s right on direct democracy, and can interpret certain actions as a public disorder.When there is provocation of illegal actions during peaceful assemblies by interested side, the situation even worsens. Thus, citizens can be brought to responsibility for certain disobedience during public meeting for example, authorities may even declare a state of emergency which allows significant restriction of citizens' rights, including the prohibition of peaceful assembly and so on.

Ukrainian history knows an example of successful realizing of the right to direct democracy during so-called "Orange Revolution" of 2004, which was peaceful and led to fair elections of the President of Ukraine. Usually revolution as a form of direct democracy is not fixed in the Constitution and laws, but their results are recognized as legitimate when they are not followed by violations of the laws. And the Orange Revolution in Ukraine was such an example.

So, if referendum decisions are obligatory according the law and, their approval are not required, the laws say nothing about the mandatory requirements of peaceful assembly, people only have a right to them, and on practice they have more consultative/advisory/declarative character. While on the other hand, if democracy means decisions taken by majority, if a decision represents the will of the majority (and there is evidence for that), and is expressed while exercising any of the form of direct democracy, not prohibited by law, there is no reason not to consider this decision as legitimate.

So while realizing the right to "other forms of direct democracy," it is important to comply with existing legislation, to maintain peaceful character of these forms, in order to prevent the authorities from non-compliance with the people's will.

Of course, the absence of legal regulation of the issue on "other forms of direct democracy", absence of a law on peaceful assembly in Ukraine leads to the impossibility of realization (or significantly complicates realization) by people of the right to "other forms of direct democracy ", as referred to in Article 69 of the Constitution of Ukraine.

Legal Analytics of “Euromaidan”: referendum as a form of direct democracy

2013-12-07T17:43:58Z

Read more in Ukrainian...

Legal Analytics of “Euromaidan”: interference into State's internal affairs and the international responsibility of States

2013-12-07T04:05:22Z

Legal Analytics of “Euromaidan”: legal grounds for «Berkut» functioning in Ukraine

2013-12-05T18:29:05Z

Read more in Ukrainian...

Legal Analytics of “Euromaidan”: legal grounds for resignation of Government

2013-12-04T18:44:27Z

The Constitution of Ukraine:

The Cabinet of Ministers of Ukraine shall be responsible to the President of Ukraine and under control of and accountable to the Verkhovna Rada of Ukraine, within the limits stipulated in Articles 85, 87 of the Constitution of Ukraine.

Law of Ukraine "On the Cabinet of Ministers of Ukraine":

The dismissal of the Cabinet of Ministers of Ukraine:

1) the Verkhovna Rada of Ukraine (Parliament) adopts Resolution on distrust to the Cabinet of Ministers of Ukraine;

2) the President of Ukraine adopts decision on the resignation of the Cabinet of Ministers of Ukraine;

3) the resignation of the Prime Minister of Ukraine;

4) the death of the Prime Minister of Ukraine.

The resignation of the Cabinet of Ministers of Ukraine as a result of the Verkhovna Rada of Ukraine vote on distrust:

The Verkhovna Rada of Ukraine on the proposal of at least one third of deputies of the Parliament of Ukraine can consider on the responsibility of the Cabinet of Ministers of Ukraine and adopt decision on distrust to the Cabinet of Ministers of Ukraine.

The issue on the responsibility of the Cabinet of Ministers of Ukraine not later than ten days after the submission of proposals must be considered at the plenary session of the Verkhovna Rada of Ukraine, which is open to all members of the Cabinet of Ministers of Ukraine.

Distrust resolution of the Parliament is approved if it is supported by the majority of the constitutional composition of the Verkhovna Rada of Ukraine.

The issue of the responsibility of the Cabinet of Ministers of Ukraine may not be considered by the Verkhovna Rada of Ukraine more than once during the regular session, and within one year after approval of the Program of the Cabinet of Ministers of Ukraine.

Dismissal of the member of the Cabinet of Ministers of Ukraine:

Member of the Cabinet of Ministers of Ukraine (except the Prime Minister of Ukraine) may be resigned by the President of Ukraine by adopting decision on resignation.

Outcomes

Analyzing the current legislation of Ukraine in this area we can conclude about the lack of proper regulation of the issues of resignation of the Government of Ukraine in case of illegal actions or inaction of the government in general and its members, that lead to violations of human rights. The responsibility of the Cabinet of Ministers of Ukraine, envisaged by law, is more declarative, because in fact the law only recognizes the fact that the members of the Cabinet of Ministers are brought to responsibility according the laws. There are no legally envisaged specified grounds for a decision on resignation of government, so the question of its resignation is purely political in nature, and there is a solid legal gap in the issue of bringing the government to responsibility for non-compliance with the laws, since the law only specifies WHO can take a decision to resign it and does not specify what can be the REASON/CAUSE for dismissal. So, no matter what the government does, when President, who supports it, decides not to resign it, and parliament does not have oppositional majority, such a government practically cannot be dismissed. Therefore, the "checks and balances" mechanisms that should be specific characteristic feature of the separation of powers principle, very often cannot be implemented in Ukraine.

Legal Analytics of Euromaidan: the right to peaceful assembly

2013-12-03T19:31:51Z

The right to peaceful assembly and its legal regulation

Freedom of peaceful assembly is protected by Article 11 of the European Convention on Human Rights and Fundamental Freedoms: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

According to Article 39 of the Constitution of Ukraine, “citizens shall have the right to assemble peacefully without arms and to hold rallies, meetings, processions, and demonstrations upon notifying executive or local self-government bodies in advance. Restrictions on the exercise of this right may be established by a court in accordance with law and only in the interests of national security and public order, for the purpose of prevention of disturbances or crimes, protection of the health of the population, or protection of the rights and freedoms of other persons”.

This provision of the legislation of Ukraine is in fact the only legal norm in the sphere of realization of the right to peaceful assembly, although there were several attempts of adoption the law on peaceful assembly. The European Court of Human Rights has repeatedly stressed the need to adopt appropriate legislation in Ukraine - but it seems that Ukraine “feels fine” without it ... So today the law does not regulate the rules for all participants of peaceful assembly, including for law enforcement authorities, does not provided clear rules and an exhaustive list of grounds for interference into enjoyment of the right to peaceful assembly, there are no strict rules regulating the use of special equipment during assemblies and more.

Today, the lack of legal regulation of peaceful assemblies led to numerous abuses, violations of the rights of citizens, who exercise their right to peaceful assembly, and groundless interference by the authorities into the right to carry public meetings.

Notice of peaceful assembly

Ukraine's Constitutional Court in a judgment of 19 April 2001 determined that the citizens have to notify authorities about the planned activities in advance. These terms of notice should not limit the right to peaceful assembly under article 39 of the Constitution, and serve to guarantee it. At the same time the Court said that notice makes it possible for relevant executive authority or local authorities to take measures for conducting of meetings, public order, and provision of the rights and freedoms of others. Determination of specific timing of notification is the subject to legal regulation.

Legal liability during peaceful assemblies

Article 185-1 of the Code "On Administrative Offences" establishes administrative liability for violation of the order by organizers and participants of the meetings. Article 185-2 of the Code "On Administrative Offences" implies liability to officials for creation of conditions for the organization of assembly, meetings, street campaigns or demonstrations.

Criminal responsibility is established by article 294 of the Criminal Code of Ukraine for organizing riots accompanied with violence against any person, riotous damage, arson, destruction of property, taking control of buildings or construction, forceful eviction of citizens, resistance to authorities with the use of weapons or any other things used as weapons, and also active participation in riots. Article 295 of the criminal Code establishes responsibility for public calls to riotous damage, arson, destruction of property, taking control of buildings or constructions, forceful eviction of citizens, where these actions pose a threat to the public order, and also distributing, making or storing any material of such content.

Persons found guilty for blocking of transportation routes by obstructing the traffic, or cutting off electricity, or any other method, where it disrupted normal operations of traffic, or exposed human lives to dander, or caused the risk of any other grave consequences; and capturing a railway station, airfield, port, station or any other transportation enterprise, institution or organization, shall bear criminal responsibility under article 279 of the Criminal Code.

Thus, analyzing the nature of the offenses during peaceful demonstrations, we can conclude that the existing laws are not intended to guarantee the right to peaceful assembly, as they prescribe only prosecution of protest participating in peaceful assemblies. This can be an instrument of persecution of the participants and organizers of peaceful meetings. And, for example, responsibility for creating unlawful obstacle in carrying peaceful assemblies by the government is not established. The law regulating the issue of freedom of assembly should also regulate the issue of the use of power that, and the current legislation does not guarantee that the police have to use force proportionately to the actions of protesters, and only in extreme cases. Of course some of these provisions can be found in the law on the police, but in practice, they are not sufficient to ensure the proper implementation of the rights of protesters.

The need to improve the law on peaceful assembly

Legislative attempts to adopt the law on peaceful assemblies have been often used to set limits on the rights of peaceful assembly, without regulating the issue of legislative guarantees of this right. Necessary guarantees of the right to peaceful assembly should include the following: a comprehensive list of places where the gathering is not allowed should be established to prevent unlawful prohibitions or territorial restrictions of peaceful assemblies; clear functions of public authorities to maximize the realization of the right to peaceful assembly should be prescribed; ensuring the free possibility of spontaneous/urgent meetings, which don’t have to be previously reported to avoid bureaucratic procedures for advance notice; setting limits of the right to freedom of peaceful assembly to prevent abuse of power in this area from both sides; establishing procedures for complaints against violations of the rights to peaceful assembly by protesters; establishing of responsibility for illegal actions of provocateurs that lead to mass disturbances during peaceful demonstrations, and personal responsibility of organizers of such provocations; personal responsibility for the prohibition of participation in peaceful assemblies and more.

Legally unregulated right to peaceful assembly in Ukraine leads to chaos and arbitrariness of the authorities, which often occurs during peaceful protests in Ukraine.

Legal analytics of Euromaidan: state of emergency

2013-12-02T19:41:28Z

Read more in Ukrainian...

Legal analytics of Euromaidan: early termination of President’s functions

2013-12-02T19:10:41Z

Constitution of Ukraine

Article 102. The President of Ukraine shall be the Head of the State and shall act on behalf of the State.

The President of Ukraine shall be the guarantor of the state sovereignty and territorial integrity of Ukraine, the observance of the Constitution of Ukraine, human and citizen rights and freedoms.

Article 108. The President of Ukraine shall exercise his powers until the assumption of office by the newly elected President of Ukraine.

The authority of the President of Ukraine shall be subject to an early termination in cases of:

1) resignation;

2) inability to exercise presidential authority for health reasons;

3) removal from office by the procedure of impeachment;

4) his/her death.

Article 109. The resignation of the President of Ukraine shall enter into force from the moment when he personally announces the statement of resignation at a meeting of the Verkhovna Rada of Ukraine.

Article 111. The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.

The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.

The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.

The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.

On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.

The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.

Article 112. In the event of an early termination of the authority of the President of Ukraine in accordance with Articles 108, 109, 110 and 111 of this Constitution, the discharge of the duties of the President of Ukraine, for the period pending the elections and the assumption of the office by the next President of Ukraine, shall be vested on the Prime Minister of Ukraine. The Prime Minister of Ukraine, for the period of discharge of the duties of the President of Ukraine, may not exercise the powers stipulated by items 2, 6, 8, 10, 11, 12, 14, 15, 16, 22, 25, 27 of Article 106 of the Constitution of Ukraine.

According to the Decision of the Constitutional Court of Ukraine Constitutional procedure on investigating case on impeachment is initiated without initiating a criminal case.

Responsibility for violation legislation on information

2013-06-18T19:32:16Z

One of the guarantees of the right to information is establishing a responsibility for violation legislation on information.

According to the article 7 of the Law of Ukraine "On Information" person may demand elimination of any infringements of the right to information. According to the article 3 of the Law of Ukraine "On Access to Public Information" the right to access to public information, among others, is guaranteed by establishing responsibility for violation of the legislation on access to public information. According to the article 27 of the Law of Ukraine "On Information" infringements of the information legislation of Ukraine lead to disciplinary, civil, administrative and criminal liabilities according to the laws of Ukraine.

Legislator envisages a right to appeal decisions, actions or inaction of information owners (managers) to their supervision authority, a higher authority or a court (article 23 of the Law of Ukraine "On Access to Public Information").

A requestor has a right to appeal:

- rejection of information request;

- deferral of information request;

- failure to provide information;

- provision of false information or incomplete information;

- not due provision of information ;

- failure to publish information

- other decisions, actions or inaction of information owners (managers) that violated legal rights and interests.

Appeals of decisions, actions or inaction of information owners (managers) should be filed to a court in accordance with the Code of Administrative Proceeding of Ukraine.

According to the article 24 of the Law of Ukraine "On Access to Public Information" persons, committing following offenses are brought to responsibility for violation of legislation on access to public information :

1) failure to provide an answer to an request;

2) failure to provide requested information;

3) ungrounded refusal to satisfy a request;

4) failure to publish information;

5) provision or promulgation of false, inaccurate or incomplete information;

6) untimely provision of information;

7) ungrounded limitation of access to information;

8) failure to register documents;

9) deliberate withholding or destruction of information or documents.

The Code on Administrative Offences of Ukraine provides an administrative liability for violation of information legislation.

According to the article 212³ of the Code on Administrative Offences of Ukraine unreasonable refusal to provide information or failure to provide complete information in due time and manner, or provision of false or misleading information, provided such information is to be delivered upon request of individuals or corporate entities, as established by the Laws of Ukraine «On Information», «On Access to Public Information», «On Citizens’ Appeals», «On Access to Court Decisions» and «On Grounds of Corruption Prevention and Counteraction» or upon advocate’s request, request of Bar’s Commission of Qualification and Disciplinary, it’s Chamber or a member acсording to the Law of Ukraine «On the Bar and Legal Practice» shall entail imposing a penalty on officials.

According to the part 11 of the article 255 of the Code on Administrative Offences of Ukraine the prosecutor or his authorized representative from the staff of the Prosecutor office has a right to draw up protocols on such administrative offences.

Complaints on violation of legislation on information should be addressed to the Prosecutor office according to the Law of Ukraine “On Citizens’ Appeals”.

Prosecutor or his authorized representative from the staff of the Prosecutor office is authorized and obliged to inspect possible violations of legislation on information and legislation on Citizens’ Appeals and if there are sufficient grounds to decide on drawing up a protocol on administrative offence.