Halya Coynash, Kharkiv Human Rights Protection Group
One of the four controversial ‘decommunisation’ laws adopted in April 2015 has been scrutinized and seriously criticized by European constitutional law experts who say that it does not meet European standards.
Much as predicted the joint interim opinion from the Council of Europe’s Venice Commission and OSCE/ODIHR found that the Law on the Condemnation of the Communist and National Socialist (Nazi) Regimes and Prohibition of Propaganda of their Symbols [hereafter ‘the Law’] had serious failings which could infringe people’s right to freedom of expression and of association.
The constitutional experts were careful to stress that the Law has a legitimate aim, and that Ukraine has the right “to ban or even criminalise the use of certain symbols of and propaganda for totalitarian regimes”. However, the Law’s scope is much too broad and the sanctions, including long terms of imprisonment, envisaged too severe.
Four ‘Decommunisation laws’ were tabled in parliament on April 9 and adopted the same day. They were signed by President Petro Poroshenko on May 15, and all came into force on May 21. The report notes that the speed with which they were passed through parliament and the lack of public debate aroused criticism. So too did the laws themselves, and more detail of the concerns about one other law are discussed below.
The Venice Commission was, however, asked only for its opinion of the Law on condemning the communist and Nazi regimes and propaganda of their symbols which has by far the greatest scope and is the only one that envisages criminal prosecution.
The Law as it was passed bans what is called “propaganda of communist and / or National-Socialist (Nazi) totalitarian regimes” and the symbols of these, with the list of such symbols extremely broad. It prohibits the creation and orders the forced termination of any legal entity propagating communist and / or Nazi regimes, or that uses their symbols.
Propaganda is understood as referring to one of the following:
Public denial “of the criminal nature of the communist totalitarian regime of 1917-1991 in Ukraine” and the Nazi regime;
Circulation of information aimed at justifying the criminal nature; the activities of the Soviet security service, the establishment of Soviet power or the fight against participants in the struggle for Ukraine’s independence in the XX century;
Preparation and / or circulation, as well as the public use of products which contain communist or Nazi symbols.
The Law does not apply to academic works, textbooks, etc. but only on condition that the works do not lead to denial of the criminal nature of the entire Soviet regime in Ukraine and the Nazi regime.
Criminal liability is envisaged with punishments envisaged of up to 5 years, or even 10 years if the actions are committed by members of the authorities, or repeated, or with the use of the media.
The constitutional law experts have concluded that the Law is too broad in scope and introduces excessive sanctions, while its provisions “are not precise enough to enable individuals to regulate their conduct according to the law and to prevent arbitrary interference by public authorities.”
A number of key recommendations are made:
A less extensive and exhaustive list of symbols should be provided.
There should be clear definition of the term ‘propaganda’, especially when it is used for the purpose of criminalising conduct.
Denial of crimes must relate to specific crimes “and not to the mere “criminal nature” of a regime as a whole, which is too vague”.
“Only those acts that constitute an actual danger to society should entail criminal responsibility, which should be proportionate to the seriousness of the offence committed. A mere display of a symbol or use of a name should not result in imprisonment.
The Law should clarify that banning any association is a measure of last resort in exceptional cases, proportionate to the offence. This is particularly the case for political parties in the light of their important function in a democratic society.”
The experts warn that any prohibition of groups or parties jeopardizes freedom of association and stresses that political parties should only be banned from taking part in elections, or dissolved, as “a measure of last resort in exceptional cases”.
Under the law, journalists may face an undue threat of criminal prosecution, effectively allowing the state to censor the media and even shut them down should they engage in “propaganda”, according to the opinion.
The report notes that “outlawing an association on the basis of the Law seems likely to constitute a breach of Article 11 of the European Convention on Human Rights and Article 22 of the International Covenant on Civil and Political Rights.
In fact, three parties (the Communist Party of Ukraine and two similar parties) have already faced a ban on participating in the local elections with this imposed, without a court ruling, purely on the basis of the Law (see: Communist party ban will be slammed in Strasbourg, along with original decommunization law). The rejection of a law suit over the ban was last week upheld by the District Administrative Court of Appeal, and the next step is likely to be the European Court of Human Rights. As reported, another court on Dec 16, banned the Communist Party of Ukraine. It is unclear what evidence was provided for the very broad accusations against the party.
The Venice Commission report expresses particular concern at the fact that the prohibition of ill-defined ‘propaganda’ includes the phrase “in particular in the mass media”. “The Law specifically places journalists and others working in the media under the threat of criminal prosecution”. This could result in disproportionate restrictions on media freedom, the experts report.
Concerns about media and academic freedom have been expressed by academics, human rights activists and others in connection with one of the other three laws passed, namely, Law No. 314-VIII “On the Legal Status and Honouring of Fighters for Ukraine’s Independence in the Twentieth Century“. This states that:
Ukrainian nationals, foreigners and stateless persons who publicly express disrespect for those stipulated in Article 1 of this law … bear liability in accordance with current Ukrainian legislation. 2. Public denial of the legitimacy of the struggle for Ukraine’s independence in the XX century is deemed desecration of the memory of fighters for Ukraine’s independence in the XX century, denigration of the dignity of the Ukrainian people and is unlawful.
Who is to determine what constitutes “disrespect” or “denigration”? With regard to certain parts of Ukrainian history, in particular the role of the Ukrainian Insurgent Army [UPA], what to some is legitimate criticism would by others be viewed as falling under this law.
While the law does not itself envisage any specific sanctions, it does state that the expression of opinions is unlawful if some undefined individuals consider the people referred to as having been fighters for Ukraine’s independence, and the comments made about them to denigrate them and “the dignity of the Ukrainian people”.
The joint interim opinion contains many pages of references to case law of the European Court of Human Rights. At least one judgement against Ukraine based on the Justice Ministry’s July 24 Orderprohibiting the Communist Party from participating in the elections seems highly likely. Ukraine’s legislators should now finally take heed of the Venice Commission and adopt amendments to prevent many others following.