The letter to the leaders of the EU and Council of Europe

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

Donald Tusk,
The President of the European Council

Jean-Claude Juncker,
The President of the European Commission

Martin Schulz,
The President of the European Parliament

Thorbjørn Jagland,
Secretary General of the Council of Europe

Daniel Mitov,
Chairman of the Committee of Ministers and Minister of Foreign Affairs of Bulgaria

Anne Brasseur,
The President of the Parliamentary Assembly

Jean-Claude Frécon,
The President of the Congress of Local and Regional Authorities of the Council of Europe

Guido Raimondi,
The President of the European Court of Human Rights

Nils Muižnieks,
Commissioner for Human Rights

Mr. Vladimir Ristovski,
Representative of the Secretary General of the Council of Europe in charge of the Co-ordination of the Co-operation Programmes in Ukraine, Ambassador Council of Europe Office in Ukraine

 

We appeal to you with highly relevant and urgent information on the matter of interpretation of Ukraine’s obligations to the European Union, as well as the EU’s requirements for Ukraine with respect to adopting the legislation aimed at fight against corruption.

By the end of 2015, the conditions had been created in Ukraine for legitimizing the restriction of the constitutional rights of Ukrainian citizens. This was done in direct violation of regulatory and other acts employed by the European Union to assess the interpretation and practice of applying the human rights legislation. This became possible due to the withdrawn attitude demonstrated by the diplomats of the Delegation of the European Union in Ukraine, which they adopted with regard to the observance of human rights in Ukraine, the rights of the opposition, the conformity of laws passed by the Verkhovna Rada of Ukraine with the European practice and the European understanding of human rights and freedoms, as laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms. This was also facilitated by the lack of public standing of the representatives of the European Union in Ukraine in response to the open letters of the opposition concerning the evidence of extrajudicial discrimination, including the restriction of the constitutional rights of Members of Parliament of Ukraine who are not the members of the ruling coalition (Attachment 1).

Drafting, lobbying and adoption of several bills (“On Amendments to the Criminal Procedural Code of Ukraine on Specific Matters on the Imposition of Property Seizure to Eliminate Corruption Risks in its Application”, “On Amendments to the Criminal and Civil Codes of Ukraine on the Improvement of the Institute of Special Confiscation to Eliminate Corruption Risks in its Application”, On amendments to the Criminal Procedure Code of Ukraine on the implementation of recommendations of the European Union on Ukraine’s completion of Action Plan for Visa Liberalization by the European Union for Ukraine concerning the specification on the jurisdiction of bodies of pretrial investigation, On the National Agency of Ukraine for Investigation, Detection and Management of Assets Derived from Corruption and Other Crimes”, On amendments to the Budget Code of Ukraine concerning the implementation of recommendation given within the framework of completion of Action Plan for Visa Liberalization by the European Union for Ukraine on assuring the continuous operation of the National Agency of Ukraine for Investigation, Detection and Management of Assets Derived from Corruption and Other Crimes”) were followed by the public declarations by the Ministry of Justice claiming that this process is a non-negotiable requirement of the EU for visa liberalization. Moreover, the bills had to be adopted in specific quantity and content without the right of amendment by the MPs.

All aforementioned acts, in accordance with the conclusion made by the members of Research Expert and Legal Departments of the Verkhovna Rada, pose a threat to human rights safeguarded by the law and the Constitution of Ukraine (Attachments 4–16).

On October 16, 2015, Parliament Speaker Vladimir Groysman held a meeting of the Heads of the Committees and Factions of the Verkhovna Rada in the presence of Yan Tombinsky, the Head of the EU Delegation to Ukraine. At the meeting the majority of the representatives of factions voiced their concern as to the content of the bills in question. Regretfully, these concerns remained unattended and unanswered to by the EU Delegation to Ukraine (Attachment 18).

A portion of the aforementioned bills was adopted by the Verkhovna Rada with little to no amendments, once again referring to “the requirements of the European Union”, with the silent acquiescence of the EU Delegation to Ukraine. On December 30, 2015, 48 Members of Parliament forwarded to the Constitutional Court a constitutional submission on the constitutionality and compliance of specific provisions of the Prevention of Corruption Act and the Criminal Code of Ukraine with the Constitution of Ukraine (Attachment 2).

On December 24, 2015, during the adoption of the State Budget of Ukraine for 2016, the introduction of electronic declaration of income was postponed by the transitional provisions until 2017. According to the MPs, the content of and procedure for public access to the declaration of income, expenses and property, designed to include private data, as provided in the aforementioned act, was incompatible with human rights and the Constitution.

Based on the analysis of the Prevention of Corruption Act (Attachment 3), the very content of the electronic declaration of income contradicts the European principles of accumulation of private data. The declaration includes the data on the property of the person declaring and the members of his or her family, which is not directly relevant to its purpose – fight against corruption. As specified in Recommendation #R (87) 15 of the Committee of Ministers of the Council of Europe for the State Members on regulating the usage of private data in the police work (1987), necessary conditions include the introduction of system of data classification during its accumulation, as well as using the data exclusively for the purposes declared in the process of accumulation. Naturally, the data from police files can be transferred to other agencies and departments. But only an authorization procedure, which includes the deliberation by a competent authority on the matter of expediency and legality of such transfer, can ensure the legitimacy of data transfer. Unfortunately, such procedure is currently lacking in Ukraine, whereas an open access to the data accumulated makes it entirely void of purpose.

Therefore,

  • without practical guarantees of protection for the constitutional rights of the citizens of Ukraine, including people disagreeing with the incumbent government;
  • without guaranteed freedom of thought and ideology;
  • without rights and guarantees for parties, factions, parliamentary groups outside of the ruling coalition;
  • without the law on opposition;
  • in the presence of pro-government paramilitary groups, which are being used in political struggle and are controlled by the police and special services for the purpose of exerting pressure on political opponents,

the range of legislative initiatives (the draft bills #2540a, #2541a, #2542a, #3040, #3041), as well as the Prevention of Corruption Act #1700-VI, specifically constitute a real threat to genuine democracy in Ukraine, as opposed to the declarative one that the so-called “euro-activists” are hiding behind and using to fight a display struggle with corruption.

We would like to reiterate that the implementation of the European principles of democracy and human rights in actual everyday lives of the citizens of Ukraine is extremely important. Most of the population of Ukraine share the European Christian values and strive for active cooperation with the countries of the European Union. However, to our deep regret, the above-mentioned guided democracy, with occasional grants driven legislation adopted with the silent approval of the diplomats that represent the EU in Ukraine, harms the relationship between the European Union and Ukraine dramatically, and more significantly – it practically abuses human rights in Ukraine, which are safeguarded by the Constitution and international laws.

The input of the EU Delegation to Ukraine into the partial settlement of the armed conflict in the Eastern Ukraine deserves the highest regard. At the same time, we would like to draw attention to the fact that the public acts of the Verkhovna Rada, of the Government of Ukraine and of the National Bank of Ukraine concerning the infringement of rights of displaced persons, of the citizens of Ukraine residing in the area of the Anti-Terrorist Operation, and of the citizens of Ukraine residing in the annexed Crimea Peninsula, remain unattended and lack any efficient, public and constructive reaction by the Diplomatic Delegation of the EU to Ukraine.

Once again we draw your attention to Article 46 of the current law “On Corruption Prevention” (Attachment 19) that stipulates for the type of data a government employee must submit and that shall be accessible online without any restrictions whatsoever. This approach to collecting and handling information hardly correlates with European vision on civil freedoms and human rights.

We are hoping to continue constructive and meaningful cooperation with the agencies of unified Europe towards effective approximation of legislation and regulatory acts on protection of human and citizen rights. We have faith in the future of democratic Europe, which will have a place for Ukraine as an equal economic and political partner.

Relevant information concerning the analysis of various aspects of observance of human and citizen rights in Ukraine is provided on the official platform of the Interfactional Parliamentary Association “For the Protection of Violated Rights of Citizens and Against Political Repression “Forbidden to Forbid” at http://ftf.org.ua

All aforementioned documents are also attached to the letter:

  1. A copy of a letter to High Representative of the European Union for Foreign Affairs and Security Policy Federica Mogherini from two fractions of Ukrainian Parliament.
  2. Constitutional Submission on the constitutionality and compliance of specific provisions of the Prevention of Corruption Act and the Criminal Code of Ukraine with the Constitution of Ukraine.
  3. Analysis of International and Ukrainian Law on the corruption prevention and connection between electronic declarations of persons, authorized to exercise government functions, and Ukraine fulfilling the requirements to obtain a visa free regime with European Union.
  4. Conclusion of the Committee on Legislative Support of Law Enforcement of the Verkhovna Rada of Ukraine on the draft law of Ukraine “On Amendments to the Criminal and Civil Codes of Ukraine on the Improvement of the Institute of Special Confiscation to Eliminate Corruption Risks in its Application” (Reg. № 2541а).
  5. Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the draft law of Ukraine “On Amendments to the Criminal Procedural Code of Ukraine on Specific Matters on the Imposition of Property Seizure to Eliminate Corruption Risks in its Application” (Reg. №2540а).
  6. Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the draft law of Ukraine “On Amendments to the Criminal and Civil Codes of Ukraine on the Improvement of the Institute of Special Confiscation to Eliminate Corruption Risks in its Application” (Reg. №2541а).
  7. Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the law draft “On amendments to the Budget Code of Ukraine to Implement the Recommendations Provided in the Framework of the Action Plan to Liberalize the EU Visa Regime for Ukraine Concerning the Functioning of the National Agency of Ukraine for Identifying, Tracing and Management of Assets Derived from Corruption and Other Crimes” (Reg. № 3041).
  8. Comment of the Main Legal Department of the Verkhovna Rada of Ukraine on the draft Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine on Specific Matters on Imposition of Property Seizure to Eliminate Corruption Risks in its Application” (Reg. №2540а).
  9. Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the draft law “On Prevention of Corruption” (Reg. № 5113).
  10. Comments of Main Legal Department of Verkhovna Rada of Ukraine to the draft Law of Ukraine “On Amendments to the Criminal Code of Ukraine concerning improvement of the special confiscation institute to eliminate corruption risks” (Reg. 2541-a).
  11. Conclusion of the Verkhovna Rada of Ukraine Committee on Legislative Support of Law Enforcement on the draft Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine concerning specific matters of property seizure to eliminate corruption risks in its application” (Reg. № 2540a).
  12. Conclusion of the Main Research and Expert Department of the Verkhovna Rada of Ukraine on the draft law “On amendments to the Budget Code of Ukraine to implement the recommendations provided within the framework of completion of Action Plan for Visa Liberalization by the European Union for Ukraine on assuring the continuous operation of the National Agency of Ukraine for Investigation, Detection and Management of Assets Derived from Corruption and Other Crimes (Reg. № 3041).
  13. Conclusion of the Main Research and Expert Department of the Administration of Verkhovna Rada of Ukraine on the draft Law of Ukraine “On amendments to the Criminal Procedure Code of Ukraine on the implementation of recommendations of the European Union on Ukraine’s completion of Action Plan for Visa Liberalization by the European Union for Ukraine concerning the specification on the jurisdiction of bodies of pretrial investigation” (Reg. № 2542a).
  14. Conclusion of the Main Research and Expert Department of the Administration of Verkhovna Rada of Ukraine on the draft Law of Ukraine “On the National Agency of Ukraine for Investigation, Detection and Management of Assets Derived from Corruption and Other Crimes” (Reg. № 3040).
  15. Comments of the Main Legal Department of the Administration of the Verkhovna Rada of Ukraine on the Draft Law of Ukraine “On the National Agency of Ukraine for Investigation, Detection and Management of Assets Derived from Corruption and Other Crimes” (Reg. № 3040).
  16. Comments of the Main Legal Department of the Administration of the Verkhovna Rada of Ukraine on the draft law “On Prevention of Corruption” (Reg. № 5113).
  17. A copy of letter to the Head of Delegation, Ambassador of the European Union to Ukraine Mr. Jan Tombiński.
  18. Excerpt from the Moments of the Meeting on drafting the laws to fulfil the Action Plan for Visa Liberalization by the European Union for Ukraine on October 16, 2015 at 12:45.
  19. Article 46 “Information included into Declaration” from the Law of Ukraine “On Corruption Prevention”.

 

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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