The Parliament registered a draft law No.9081 restricting the right to be elected to councils of all levels, for deputies from the banned pro-Russian parties. The bill, and two other alternative bills, No.9081-1 and No. 9081-2, concern people associated with the Party of Regions, the Opposition Bloc, the Opposition Platform — For Life, the Shariy Party, and other banned political entities. However, the mechanism proposed by parliamentarians opens the room for discussion.
According to OPORA experts, the general scope of such restrictions should be provided by the law. However, it is also appropriate to add a court decision for each case, as a mandatory procedure. After all, in the first place, it is necessary to use the mechanisms of individual responsibility with the subsequent restriction of the exercise of passive suffrage and the right to participate in the public administration. This will help introduce the restricting procedure necessary for Ukrainian legislation in compliance with international practices, and to protect the state of Ukraine as a defendant from potential lost cases on claims in international courts.
In a democratic country, such as Ukraine, any restrictions should be carried out correctly, with a non-discriminatory approach, and with account for international legal standards. They should be based on the facts of committing a crime against the state by each individual, and be established by a court decision.
The draft laws use the approach when restrictions are provided directly in the legislation for a group of people, without mandatory judicial control. At the same time, the proposed criteria for limiting passive suffrage (election from a banned party or membership in its faction) are not established in democratic countries.
For example, the practice of the European Court of Human Rights is more about the fact that, in addition to a general legislative prohibition, it is necessary to use court decisions in each case. In fact, this judicial control of the statutory provision is in line with the “three-phase test”. In other words, in order to apply the restriction of human rights, the following approach should be upheld: whether the necessary restriction is provided for in national legislation, whether the goal is legitimate, or whether the restriction is necessary in a democratic society. Similarly, the Venice Commission recommends that the restriction on the exercise of voting rights be proportional and proclaimed in a court decision.
The Constitutional Court of Ukraine also considers that restrictions on the exercise of constitutional rights and freedoms cannot be arbitrary or unfair. They should be established exclusively by the Constitution and laws of Ukraine, have a legitimate goal, be conditioned by the public need to achieve this goal, be proportionate and reasonable.
On the other hand, if the restriction of electoral rights and the ban of the party are considered as a tool of “militant democracy”, when there is a need to protect themselves from a totalitarian regime, then the authors of the bill should write out the proposed criteria more clearly. For example, now the draft laws indicate that the election of a person to a representative body from a banned party or membership in one faction is a sufficient criterion for limiting the rights of this person, but nominating a candidate in an election (even in case of losing), when they are simultaneously members in the banned party, is not a sufficient condition.
Therefore, the proposed bills require either a more precise definition of the criteria for limiting the right to be elected, or the application of mandatory court decisions, individually in each case. Otherwise, the proposed approach can be recognized as discriminatory, inconsistent with the Constitution and undermining confidence in the democracy of the Ukrainian state, in comparison with the aggressor state.
The full text of legal analysis of OPORA's experts on the registered draft laws is available at: https://www.oporaua.org/statement/parliament/24632-pozitsiia-opora-shchodo-zakonoproiektiv-za-9081-ta-9081-1