Black Thursday’s Legislative Changes in Ukraine

Tornike Ustarashvili

On 21 November 2013, Ukraine officially declared its refusal to sign the Association Agreement with the European Union. As a result of this decision, mass protests of those supporting European integration have been going on for almost two months now in the Maidan in Kiev. On Thursday, 16 January 2014, against the backdrop of the Euromaidan protests, the Parliament of Ukraine adopted several legislative changes that grant the Ukrainian authorities the power to restrict the constitutionally guaranteed fundamental rights and freedoms of the protesters and representatives of the political opposition. It is a fact that after the failure of a number of police raids against the protesters, the Ukrainian government is now seeking to influence the ongoing processes through legislation and to prepare the legal ground for the planned persecution of the organizers and participants in the protests and other illegal actions. Furthermore, the government is pursuing its desire to accelerate integration with the Russian Federation and finally divert Ukraine from its Western course of reforms and development in the longer-term perspective.

Despite the chaos currently existing in the Parliament of Ukraine, President Viktor Yanukovych's Party of Regions, the Communist Party and several independent parliamentarians managed to put to vote a number of bills for imprisoning or imposing penalties on participants in unsanctioned gatherings, criminalizing defamation, simplifying the procedures for stripping members of parliament of their immunity, toughening state control on the Internet and social media, and obliging those non-governmental organizations that are not financed from Ukrainian sources to undergo a special registration process.

The legislative changes were severely criticized by European and American politicians. Catherine Ashton, the EU High Representative for Foreign Affairs, and Stefan Füle, the EU Enlargement Commissioner, assessed the amendments as a non-democratic step restricting the fundamental rights and freedoms of the Ukrainian people and running directly against the principles of parliamentarianism and democracy. As regards the United States, on the very day Viktor Yanukovych signed the bills into law, Senators John McCain of the Republican Party and Ben Cardin of the Democratic Party presented the US Senate with a bill envisaging the application of the Magnitsky Act to all countries. The Magnitsky Act, which entered into force at the end of 2012, is intended to impose visa and financial restrictions on those Russian officials who were thought to be responsible for the death of lawyer Sergei Magnitsky in 2009. If this new bill initiated by the senators is adopted, the Magnitsky Act will apply to human rights abusers worldwide.

Leaving aside the fact that the legislative amendments approved by the Ukrainian parliament are neither constitutional nor oriented towards protecting and ensuring a legitimate aim, they were also adopted in violation of established procedures. The members of parliament voted for them by a show of hands, a procedure that is supposed to be allowed only if the means of an electronic voting system are unavailable. Moreover, the majority of amendments were not discussed in the relevant parliamentary committees, which is in breach of those procedures established for the adoption of laws.

In a manner similar to the laws of the Russian Federation, the legislative changes criminalized "extremist activity" and set a punishment of a substantial fine for any such action committed for the first time and up to three years of imprisonment for repeat offenders. Similar anti-extremist legislation has been in force in Russia since December 2013 and, along with prohibiting separatist propaganda, it bans the spread of extremist ideas via websites, thereby allowing the state to block such sites.

This anti-extremist legislation, which the Russian government has been using for several months to repress its political opposition, now enables the Ukrainian government to speed up the process of approximation with the Kremlin. Given the ambiguity of the legal definition of this term, "extremist activity" implies the production, storage, spread (especially through the media, Internet, and social networks), application or display during gatherings, of any such material that is used to call for, or organize, activities aimed at getting hold of state authority by forceful methods or the illegal interference with, and impediment of, state activities, including those of the election commission. This prohibition prevents non-governmental and religious organizations from getting involved in civil demonstrations.

The act of defamation, which Ukraine had decriminalized in 2001 by adopting a new Criminal Code, has been criminalized once again. Since 2001, issues of defamation were regulated under civil law. With the recent amendment, however, defamation via mass media or the Internet has become punishable by up to one year of public service, whereas an especially grave act of defamation, including that undertaken in exchange for money, can be punishable by up to two years of imprisonment. There is no doubt that the aim of such prohibition is to restrict criticism directed towards President Yanukovych.

Tough sanctions have also been imposed on actions directly related to the ongoing Euromaidan protests; for example, blocking of an entrance to a person's house or an administrative building, the violation of public order, mass disorder, and offering resistance to representatives of law enforcement bodies.

Legislative amendments were also made to the Code of Administrative Offenses of Ukraine. Driving a car in a convoy of at least five cars without prior agreement from the traffic police is punishable by removing an individual's driving license for two years and the confiscation of the vehicle involved. Moreover, new types of administrative offenses were introduced, including a ban on wearing masks, helmets or such attire during public rallies that look like the special uniforms of law enforcement officers. Installing tents, stages, and other constructions for the purposes of holding a rally without prior consent from the Ukrainian Ministry of Internal Affairs is punishable by 15 days imprisonment.

A substantial part of the legislative changes regulate issues related to the use of the Internet and social networks. Internet media outlets are required to register as information agencies. If they are not registered, the operators of websites will be penalized for illegal activity and the National Communications Commission of Ukraine is authorized to instruct internet service providers to restrict access to such websites.

Much as is the case with Russian legislation, those organizations that are directly or indirectly financed from foreign sources are required to add the phrase "foreign agent" to their titles. Moreover, such organizations will also have to make information about their activities public and to pay special taxes.

The adopted legislative changes have simplified the procedures for suspending the immunities of members of parliament. In particular, a member of parliament may be stripped of his/her immunity at any moment, even during a plenary session, and be put on trial. This change may be viewed not only as means of politically persecuting opposition parliamentarians, but also as a lever of influencing and pressurizing the supporters of President Viktor Yanukovych.


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