Letter to the President of Venice Commission

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Interfactional Parliamentary Association
«For the Protection of Violated Rights of
For the Protection of Violated Rights of
«Forbidden to Forbid»

Mr. Gianni Buquicchio,
President of the European Commission for Democracy through Law

 

Dear Mr. Buquicchio,

On behalf of the Interfactional Parliamentary Association “For the Protection of Violated Rights of Citizens and Against Political Repression “Forbidden to Forbid” I present my compliments.

I would like to express my gratitude for your firm and unambiguous position with respect to the human rights situation in Ukraine, as well as an objective evaluation of certain Ukrainian laws, namely, on e-declaration, lustration that openly contradict the decisions of some state authorities, courts, ECHR and European practice in general.

Using all lawful methods, the Association contributes to restoring of violated constitutional rights of Ukrainian citizens. In particular, we have been closely following and monitoring the cases of human rights violations in Ukraine”.

About e-declaration

Mr. Buquicchio, I would like to emphasize on the inconsistency of the activities of Ukrainian authorities with the European Union (EU) bodies. The current Ukrainian authorities were commitments that are contrary to the Constitution of Ukraine as an act of direct action and European standards on human rights. In addition, the Ukrainian authorities in the various aspects of European integration is trying to accomplish greater share of the burden than was promised by Ukraine under international instruments signed with the EU. The current Ukrainian authorities undertook the commitments that are contrary to the Constitution of Ukraine, as a directly applicable act, as well as to European human rights standards. In addition, the Ukrainian government in the various aspects of European integration is trying to accomplish greater amount of obligations than was promised by Ukraine under international legal instruments signed with the EU.

Obtaining by Ukraine visa-free regime with the EU is associated with the fulfillment of certain criteria list, entitled – “Action plan for liberalization of EU visa regime for Ukraine” (2010). This document was adopted during the meetings of the EU-Ukraine subcommittee “Justice, Freedom and Security”. This body was not authorized to adopt mandatory acts for the parties of “Partnership and Cooperation Agreement between the European Communities and Their Member States and Ukraine” (1994). Meanwhile, given the persistent desire of Ukraine to receive visa-free regime for a short-term stay in the EU, Ukraine undertook a voluntary commitment to meet the requirements of the document. Later, in the framework of the EU-Ukraine Association Agreement(2014), the possibility for Ukraine to obtain a visa-free regime was clearly linked to the Action Plan (2010) and is defined as the legal obligation of the parties: “The parties shall take gradual steps  towards a visa-free regime in due course, provided that conditions for well- managed  and  secure  mobility,  set  out  in  the  two-phase  Action  Plan  on  Visa  Liberalization  presented  at  the  EU-Ukraine Summit  of  22  November  2010,  are  in  place (Art.19).

The Law of Ukraine “On Prevention of Corruption” is positioned as the adopted act to eliminate corruption in the country and as the required by the UE – for obtaining by Ukraine a visa-free regime.

At the same time, this law with a number of its provisions contradicts the Constitution of Ukraine, current legislation and international obligations of Ukraine in the field of human rights. These provisions are stipulated by Art. 1.1.14, p. 3.1.3, p. 12.1.2, p. 46.1.2-11, p. 46.3, p. 47.1.3, p. 50.1-3, p. 52.2 of the law. These provisions require mandatory e-declaration of income and assets included to the “Unified State Register of Declarations of Persons Authorized to Perform the Functions of the State or Local Self-government” with its open round-the-clock access at the official website of the National Agency with “the ability to view, copy and print the information, as well as a set of data (electronic record), organized in a format that allows its automatic processing by electronic means (machine readable) for further reuse” received from a broad group of subjects – citizens of Ukraine, united in the legal category of “Persons Authorized to Perform the Functions of the State or Local Self-government” (hereinafter – PAPSLG) and their families (Art. 47.1 of the Law of Ukraine “On Prevention of Corruption”)”.

Within the framework of the EU documents, the right to private life is enshrined in the Charter of Fundamental Rights of the European Union (2000): “Everyone has the right to respect for his or her private and family life, home and communications” (Art. 7). Regarding public officials, its implementation is reflected in the Model code of conduct for public officials, prepared by the Committee of Ministers of the Council of Europe 2000 (10). It shows the relation between their right to a private life and declaring them information about themselves and their incomes: “all necessary steps should be taken to ensure that the public official’s privacy is appropriately respected; accordingly, declarations provided for in this Code are to be kept confidential unless otherwise provided for by law” (Art.17). In the framework of authentic interpretation of the Article, it becomes evident that the right to respect for a private life of public official is not absolute. Nevertheless, its limitations, including the confidentiality of statements can only be applicable under a criminal investigation or disciplinary action (p. 82). At the same time, this is not about its limitations within a preventive measure without committing a crime – the disclosure of public official’s declaration through the website with open access.

It should be noted that the most important European international act in combating corruption is Resolution of the Committee of Ministers of the Council of Europe 97 (24) “On the twenty guiding principles for the fight against corruption” (1997). It obliges states to implement the effective audit procedures preventing and detecting corruption (Principle 12) and ensure freedom to receive and impart information on corruption matters (Principle 16). Meanwhile, the freedom is subject only to “limitations or restrictions which are necessary in a democratic society”, i.e. preserving the right to a private life of public persons, even in light of the fight against corruption. In turn, the EU document “Ten principles for improving the fight against corruption in acceding, candidate and other third countries” (2003) requires public officials to disclose their income (Principle 4), but again does not envisage the publication of the information in open access, having something in common with the right to personal privacy.

Within the jurisprudence of the European Court of Human Rights (ECHR), it is stated that the conceptual scope of the right of personal privacy also includes all problematic cases relating to collection, storage, use and disclosure of personal information about people’s lives. Moreover, it concerns the situation when information relates to professional life. According to the Court, there is no reason for excluding professional relationship from the scope of private life (Rotaru case…, p. 43; Turek case …, p. 100-117; professional sphere is in the area of privacy – for example, in the context of the legislative restriction of job placement in the private sector for certain categories of persons: Sidabras and Dziautas v. Lithuania dd 27.07.2004, Applications No. 55480/00 and 59330/00, p. 33-63, Rainys i Gasparavicius v. Lithuania dd 07.04.2005, Applications No. 70665/01 and 74345/01, p. 31-38 on discrimination appeal (Art. 14 in connection with Art. 8 of the ECHR) against the former employees of State Security Committee). Additionally, information that is public, can be included in the scope of private life when it is systematically collected and stored by the authorities, especially when it concerns the events from the distant past (Rotaru case, p. 43, Segerstedt-Wiberg case…, p. 77). The right to protect the good name and reputation violated by collecting and publishing personal data by the authorities is also related to the issue, for example, in the context of lustration procedures (Turek case…, p. 110).

Respect for private life requires from the authorities to ensure that personal data will not be available for any third party unless there is a reasonable necessity (Z v. Finland dd 25.02.1997, Application No. 22009/93, p. 95). Thus, a situation in which confidential information is disclosed, could be regarded as an interference with the right to private life. It could be acceptable only in case of meeting all criteria of limiting clauses, where balance between the public interest and the right to respect for private life will be of great importance again (M.S. v. Sweden, 1998 p.36-44).

Another category of applications will constitute complaints in which the applicants claimed that their right to privacy, guaranteed by Art. 8 of the ECHR, was violated by the states parties that failed to take adequate actions to ensure effective protection against the distribution of applicants’ information on private life or their image without prior consent from the applicants. Namely, these applications concern appropriate balance between the right to respect for private life and freedom of expression. The European Court decided that public opinion has the right to information but in certain special situations, especially regarding politicians, it may even reach the limits of the right of public persons’ privacy, as has been the with Éditions Plon case; however, such restrictions are not justified if the information does not apply to political or public debate and serves only to satisfy someone’s curiosity (Éditions Plon v. France dd 18.05.2004, Application No. 58148/00, p. 53). Though, one should not explain the open access to declarations of hundreds of thousands Ukrainian citizens that fall under the category of “persons authorized to perform the functions of the state or local self-government and members of their families” as efficient control and processing this volume of information is impossible to carry out properly.

As for the other right (right to protection of personal data) – in Europe it is protected under a number of conventions (“Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data” (1981), documents (“Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data” by the OECD (1980), “Guidelines for the Regulation of Computerized Personal Data Files” adopted by UN General Assembly (1990) and other EU acts. Within the framework of EU documents, this right is enshrined in the Treaty on the Functioning of the EU (1957) Art. 16, the Treaty on the European Union (1992) Art. 39 and is disclosed in the EU Charter of Fundamental Rights (2000): “Everyone has the right to the protection of personal data concerning him or her”.

Convention No. 108 of the Council of Europe “For the Protection of Individuals with regard to Automatic Processing of Personal Data” (1981) defined the purpose of its determination – “to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (Art.1). Accordingly, the Convention clearly and not ambiguously determine personal data as part of the right to personal privacy, providing their adequate protection. Similarly, there is the approach of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data – “member states shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data”.

In the framework of EU Council Convention No. 108, among the data protection principles, it is determined that the database of personal data shall be “stored for specified and legitimate purposes and not used in a manner incompatible with those purposes” (Art. 5b). At the same time, the purpose of the Law of Ukraine “On Prevention of Corruption” is essentially immoral,  a priori placing under suspicion all people united by the definition of “persons authorized to perform state functions or local self-government”, and restricting their right to a private life and personal data. Basically, one more of the key rights of the European Convention on Human Rights is violated, i.e. the right of an accused in a criminal offense to innocence (Art. 6.2), since a person is limited in rights judging on functions he or she performs in the society.

Furthermore, the Law of Ukraine “On Prevention of Corruption” provides for the disclosure of data related by the Convention No. 108 to the category of “special data” that cannot be processed automatically – data on sexual activity (Art. 6). The Law of Ukraine refers “other persons who live together, connected by common life, mutual rights and obligations (except those mutual rights and obligations which do not have the nature of family), including persons who live together but are not married” to “family members” and requires them to provide information about themselves that will be included in a declaration, which in its turn, will be published with open access at the official website of the National agency. Such actions can be clearly regarded as disclosure of the information regarding sexual activity, which is directly forbidden for automatic data processing by the Convention No.108, as well as automatic data processing of “personal data relating to convicted people under criminal law”.

In the case of Fisher, the Court of Justice confirmed that the principles of treatment of personal data, fixed in Directive 95/46, as a result of their implementation into national law of the EU Member States, are regarded as general principles of Community law (case C-369/98 the Queen v. Minister of Agriculture, Fisheries and Food, on the side of Trevor Robert Fisher and Penny Fisher, the Decision as of 14 September 2000). In another case the Court of Justice also decided that the provisions of the EU Directive 95/46 have direct effect, thus, an individual can make reference to them in the national courts in order to eliminate the application of domestic law provisions incompatible with those ones (case C-465/00, C-138/01, C-139/01 auditors and others v. the Austrian broadcasting company, the Decision as of 20 May 2003).

“Another category of persons to whom the Law “On Prevention of Corruption” shall be legally applied to is “close persons” and “family members”, the determination of which is stipulated by Art.1.1. In particular, information regarding the declaration in accordance with Art. 46.1.1 should be given not only concerning the persons referred to in Art. 3.1 and Art. 3.2a, but concerning “members of their families” as well. According to Art.1.1of the Law “family members” are “persons who are married and their children, including adult ones, parents, persons under guardianship and trusteeship, other persons who live together, bound by common everyday life, have mutual rights and obligations (other than persons whose mutual rights and obligations are not of a family nature), including persons who live together but are not married”. Regarding this category of people should be reported the following information: “last name, first name and patronymic, registration number of the taxpayer registration card” (Art. 46.1.1), information on “real estate owned….. on the right of private ownership,

including joint ownership, or rented by them or used by them based on other right of use, irrespective of the form of the transaction, by which such a right was acquired” (Art. 46.1.2), data on “construction in progress, items not accepted in the operation or ownership are not registered in accordance with the law … located on [their] land areas …. completely or partially constructed from [their] material or in [their] means” (Art. 46.1.51)); data on “intangible assets … including intellectual property” (Art. 46.1.6)).

As one can see, the required information about family members is considerable nevertheless they are not directly engaged in administrative-state activities, but the information about them is subject to disclosure and in open access. At the same time, under the European Convention on Human Rights (ECHR) (1950): “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. there shall be no interference by a public authority with the exercise of this right” (Art. 8). It should be noted that neither Convention against Corruption, which affects officials of the European Communities or officials of States Parties (1997), nor the Council of Europe Convention against Corruption or in other documents of the EU or the Council of Europe, members of the family are not mentioned and connected with the activities of public persons and public officials. It should be noted that such a connection of independent individuals endowed with an individual capacity under Ukrainian law can be regarded as a violation of important regulations of the International Covenant on Civil and Political Rights (1966), the legal recognition of every person regardless of his location (Art. 16) .

International law allows individuals, to which also belong the abovementioned members of families, to protect privacy. Thus, in accordance with Directive № 95/46 / EC of the European Parliament and the Council “On the Protection of Individuals with regard to Automatic Processing of Personal Data and the free movement of these data”(1995), the detailed requirements to protect the rights of data’s subjects are introduced, provided for mechanisms to ensure effective implementation of the principles of privacy by the supervisory authority and the prohibition of transferring data to third countries which do not guarantee adequate protection of privacy. All this The open access mode in accordance with Ukrainian law does not guarantee all these rights.

Furthermore, according to Council of Europe Convention No. 108 “On the Protection of Individuals with regard to Automatic Processing of Personal Data” (1981), states (including Ukraine as a party) committed “to protect personal data stored in files automated data shall take the appropriate security measures designed to prevent accidental or unauthorized destruction or accidental loss and to prevent unauthorized access, change or distribution”(Art. 7). In its turn, under this Convention the definition “personal data” “means any information relating to a specified person or person who may be specifically defined” (Art. 1).

Children are also mentioned among family members, the property of which is subject to declaration and publishing at the National Agency website. At the same time, children under 18 are under special protection of international law, guaranteed by the Convention on the Rights of the Child (1989).  In particular, it stipulates that “1. in all actions concerning children, whether undertaken by public or private social welfare institutions…. the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures”(Art. 3).

At the same time these principles are violated by arrogant desire of the state to put in the first place the interests of their preventive fight against corruption over the interests of children. It is evident in the light of neglecting children’s right to privacy by publishing information about their property in parents’ declarations who are “persons authorized to perform state functions or local self-government”. The right to privacy of children is formulated as follows: “1. No child shall be subjected to arbitrary or unlawful interference with her right to privacy, family life, home, correspondence, or to unlawful attacks on his honor and reputation. 2. The child has the right to the protection of the law against such interference or attacks” (Art. 16 of the Convention on the Rights of the Child (1989). Moreover, the lawmaker does not care about individual legal personality of the child, which has been repeatedly pointed out in the ECHR jurisprudence and in Hokkanen case, the Court also emphasized the need to take into account the opinion of the child if he or she is mature enough (Hokkanen case … , p. 61-62)”.

In addition, the provisions of Art. 51 of the Law of Ukraine “On Prevention of Corruption” concerning the broad rights to monitor by the National Agency the lifestyle of persons subject to declaration conflicts with ECHR and ECtHR practice. The creation of special body to fight corruption, even in the form of a special court, is determined, if not contrary to the Convention (ECHR) (Fruni v. Slovakia 2007, p. 140).

In this context, we should emphasize that the monitoring itself is based on the “order” established by the National Agency (Art. 51.3 of the Law of Ukraine “On Prevention of Corruption”). This provision is clearly contrary to the ECHR practice regarding the possibility of invasion of private life based on the law, Art. 8 ECHR), as determined by the European Court such a law should meet standards of clarity and transparency and not to be amorphous as in our case: “provision can not be regarded as a law unless it is formulated with sufficient accuracy that allows the citizen to regulate his behavior” (Sandy Times v. the UK 1979).

Thus, Mr. Buquicchio, the implementation of e-declaration system in Ukraine violates the Constitution of Ukraine, democratic principles and standards of international treaties and does not meet EU commitments undertaken by Ukraine.

About the rights of the opposition

Members of Parliament in all civilized countries enjoy particular respect and a number of extra rights since they are the direct representatives of the citizens with their powers delegated by the people. That’s why their special status is linked both to the importance of their work for the state and society and to the fact that any violation of their rights automatically turns into discrimination and humiliation of the citizens who voted for them at the appropriate election.

Unfortunately, recently in Ukraine disregard for the rights of parliamentarians has become a common practice. Most clearly this can be seen in respect to the opposition MPs.

The law on opposition

First, Ukrainian parliament has not passed a law on parliamentary opposition activity yet. Such law would become a statutory guarantee of the rights of the respective MPs, and thus properly represent the interests of voters. In particular, it is necessary to settle issues related to the work of the opposition in a number of supervisory committees with control functions and the Accounting Chamber; opposition representation in bodies where Parliament has quotas for the appointment of the persons concerned; opposition shaping the agenda and so on.

These rights of the opposition are common in the European practice; but in Ukraine they are ignored. That is why the vote on the respective bill failed in spring and the new one submitted by the opposition MPs has little chances of being adopted.

The most revealing in this situation is the fact that incumbent ruling party officials, representing opposition in previous years, have repeatedly stressed the need to draft and adopt a law on opposition. In particular, back in 2010 Arseniy Yatsenyuk called on Viktor Yanukovych to recognize drafting a law on the opposition as an urgent need. He noted that

«…blocking the parliament and any other action that would prevent the ruling majority from making decisions without taking due account of a minority position is the only way the opposition can work. So, surely, it is necessary to adopt a law on the opposition which would dermine the rights and duties of the parliamentary minority…»

According to the Coalition Agreement of 2014, representatives of the coalition pledged to build their relations with the parliamentary opposition based on the following principles:

  1. to ensure strict adherence to legal procedures to enable the opposition MPs to influence decision-making by the Parliament;
  2. to introduce the Opposition day once a plenary week for the opposition to establish the agenda;
  3. to ensure members of the opposition the right to participate in the work of parliamentary committees on the basis of proportional representation;
  4. to ensure the participation of representatives of the parliamentary opposition in inter-parliamentary delegations on the basis of proportional representation.

Today it is obvious that the abovementioned regulation of the Coalition Agreement is violated totally because the opposition has not received its own day during plenary session and has minimal influence on parliamentary decisionmaking.

Participation in control the Verkhovna Rada Committee

The opposition MPs were excluded from the presidency in parliamentary committees on discriminatory basis, although, as noted above, the common practice in democratic countries implies that committees having control functions are usually chaired by the representatives of the opposition.

Moreover, the process of this artificial removal was purely political and its participants didn’t even try to act within the law. In particular, this process began with Radical Party blocking the parliamentary rostrum after the Verkhovna Rada meeting where Oleg Lyashko demanded the resignation of the committee chairs who voted for the laws of January, 16.

Consequently, under pressure from a number of lawmakers on 11 December 2014 264 MPs supported the draft resolution No 1291 “On electing chairpersons, first deputy chairpersons, deputy chairpersons, secretaries, and members of committees of the Verkhovna Rada of Ukraine of the eighth convocation“. Thus, a number of MPs were forbidden to hold senior positions in the committees.

It should be noted that then the Radical Party circulated the following commentary of events:

«Despicable behavior of some parliamentarians of the seventh convocation led to the weakening of the Ukrainian state, foreign aggression, loss of territories and claimed thousands of lives . The perpetrators of this tragedy have no moral right to govern parliamentary committees, as well as to look into the eyes of their voters. The time will come, and their deeds will receive appropriate legal evaluation by law enforcement agencies».

In other words, the originators of the said resolution did not deny that the removal of a number of persons from committee presidency was not based on any legal assessment and was an issue of politics. On top of that, this commentary confirms that politiсally motivated judgments were used as a supporting argument, while the opinion of voters who supported respective politicians was simply ignored.

By a sad, but already regular tradition, the presumption of innocence was completely negated and the rights of individual MPs were limited due to political accusations, which are nothing but pressure on opponents who received a decent result in the election. The fact of political discrimination becomes even more obvious given that most of the laws of January, 16 were either adopted for a second time by the new government or used as a basis for new regulations. That seems that onlly selected MPs should bear political responsibility for voting for such laws that are overwhelmingly supported by the new coalition.

Violation of the electoral rights of the opposition

Nowadays there are numerous violations of the electoral rights of the opposition. For example, on September, 11 The Supreme Administrative Court of Kyiv refused the opposition bloc to settle the claim as to the actions of the Central Election Commission which unlawfully refused to include representatives of the opposition in the district election commissions during local elections in Kyiv.

Another example was the situation in Kharkiv, where the Opposition bloc had been unreasonably withold to be registered for the elections for quite a long time. Only on September, 30, – the last day to sumbit documents for participation in the local elections – the regional office of the Opposition bloc was registered in the Kharkiv region, which was a discrimination and violation of democratic principles.

An equally important problem is the persecution and harassment of opposition MPs and parliamentarians having dissenting views with the government. The vivid example of it is the situation with the arrest of Mosiychuk charged with cases that significantly exceed the facts mentioned during the session of the Verkhovna Rada. Besides, the arrest took place in violation of the Regulations.

Illustrative of this situation is the fact that the chosen procedure allegedly called by the Speaker an ad hoc procedure) is very similar to the provisions of one of the laws adopted on 16 January 2013, against which the incumbent governmental officials were fighting at that time (“The filing of consent for bringing to criminal responsibility, detention or arrest of the people’s deputies is included in the agenda of the Verkhovna Rada as a top priority without a vote, and is considered at the plenary session of the Verkhovna Rada without opinion from the parliamentary committees within the period specified by these Regulations“).

Another example is the attempt to serve opposition MPs with summons during the meeting of the Conciliation Board. It was not only a violation of procedure, but also a theatrical performance aimed at exerting political pressure: it turned out later that all opposition leaders were summoned as witnesses only. In addition, violations of the procedural rights of the detained members of the opposition were a common practise.

In particular, in November of 2015 Ukrainian government violated the law and human rights refusing to release from prison the former Minister of Justice Elena Lukash, who was already bailed out at that moment.

Thus, Mr. Buquicchio, today we are witnessing selective respect for the rights of parliamentarians based on their affiliation with either the coalition or the opposition. However, this introduces the selective respect for the citizens of Ukraine, depending on the kind of political force they support. Such practice runs contrary both to Ukrainian legislation and European principles.

If you are interested in the Association’s activities and status of respect for human rights in Ukraine, I would be glad to meet you at any time suitable for you. More information about our activity is available throughhttp://ftf.org.ua. We will be happy to answer your questions via *protected email*.

Yours sincerely,

Andrii Derkach
Member of Parliament of Ukraine,
Chairman of the Interfactional Parliamentary
Association “For the Protection of Violated Rights of
Citizens and Against Political Repression
“Forbidden to Forbid”

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