The Parliament has a number of legislative initiatives registered, which were negatively assessed by the expert environment as restricting human rights in the certain regulations.
Thus, author of a registered draft law #3294 suggests to withhold the time limits for consideration of public appeals, requests for information and lawyer inquiries until the quarantine ends. OPORA believes the restrictions suggested in the initiative are excessive.
Draft Law #3295 was submitted to the Parliament on 30 March 2020 by MP Serhii Demchenko from the Servant of the People faction. The Draft Law supplements an earlier adopted Law of Ukraine on Amendment of Some Legislative Acts of Ukraine, Aimed to Prevent the Spread of COVID-19 (hereinafter - Law #530-IX). In particular, it updates the wording of Article II (2.3) "Final Provisions" of the Law #530-IX: "2. For the period of quarantine or restricting measures aimed to prevent the spread of COVID -19: ... 3) starting with the day the quarantine was announced, time limits shall be withheld for: applications for administrative and other services, public appeals, information requests (submitted in line with Ukrainian laws "On Public Appeals" and "On Access to Public Information"), lawyer inquiries, except for appeals (inquiries) that concern the protection of life or freedom of a citizen, environmental issues, the quality of food and consumer goods, accidents, disasters, natural hazards and other emergencies that have occurred or may occur and threaten the safety of citizens. Once the quarantine ends, the time limits shall be restored including the time spent before the withhold.
In explanatory note to the bill, the author explained its topicality by the fact that the number of appeals during quarantine has increased, and most of employers at state authorities and local self-government bodies work remotely, what complicates the consideration of such appeals on time.
OPORA emphasizes that such innovations, if introduced, will be excessive. Human and civil rights and freedoms may be restricted only provided that such restrictions are commensurate (proportional) and socially necessary. Restrictions on access to information, including tools for requesting information, lawyer inquiries, and receiving response to citizen appeals, suggested by the draft law, are not justified. Moreover, current legislation empowers public administration bodies and officials, who receive such requests and appeals, to extend the time limits for processing requests and appeals, and defines the grounds for delaying the response to an information request. That is, it provides effective mechanisms to simplify the response procedure in quarantine.
Thus, Article 22 (6) of the Law of Ukraine on access to public information says that the response to information request may be provided with a delay if the requested information can not be provided for consideration within time constraints established by this Law in event of force majeure. The requestor shall be informed about this delay in a written form, with explanation of how to challenge such decision. We would like to remind that the abovementioned Law #530-IX has amended current legislation and classified the quarantine introduced by the Cabinet of Ministers as force majeure.
Besides that, Article 20(4) of the Law of Ukraine on Access to Public Information allows a public information manager to extend processing deadline for up to 20 working days with justification for such extension (if it is requested to provide a large amount of information or search through a big amount of data).
According to Article 24(1,2) of the Law of Ukraine on Advocacy and Advocacy Activities, the consideration of lawyer inquiries can be extended from five to twenty working days if it requires a large amount of information or search through a big amount of data, provided that the lawyer is informed about the extension in a written form within five working days since the lawyer inquiry has been received.
Article 20(1) of the Law of Ukraine on Citizen Appeals establishes that appeals must be processed and responded within one month after delivery and those not requiring additional study - immediately, but not later than fifteen days after delivery. If it is impossible to address all the issues in appeal within one month, the head or deputy head of competent body, enterprise, institution, organization must establish the tile limit, required to address it, and inform the applicant. At the same time, the time limit for consideration of issues raised in the appeal must not exceed forty-five days.
Civil Network OPORA emphasizes the need to ensure openness and publicity of all political processes and is concerned about a possible restriction of citizen right to access public information via written inquiry, while the access to the means of receiving information orally via individual visits or public discussions and events, organised by public information bodies, is restricted as the CMU Resolution #211 of 11 March 2020 on the Prevention of COVID-19 Spread in Ukraine introduced the quarantine in Ukraine.
Thus, Article 34 of the Constitution of Ukraine says everyone has the right to freely collect, store, use and disseminate information, either verbally, in writing or in any other way, at his own discretion. At the same time, the exercise of this right may be restricted by law in the interests of national security, territorial integrity or public order to prevent riots or crime, to protect public health, the reputation or rights of other people, to prevent the disclosure of confidential information or to maintain the authority and impartiality of justice.
This provision of the Constitution meets the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 10 of the Convention, any restriction of on freedom of expression (which includes freedom to receive information) must meet three criteria: to be established by law, to be necessary in a democratic society and to have a legitimate aim (such as: national security interests, territorial integrity or public order, to prevent riots or crime, to protect public health, the reputation or rights of other people, to prevent the disclosure of confidential information or to maintain the authority and impartiality of justice).
Restriction of human rights is admissible only if the corresponding amendments to the legislation are necessary in a democratic society, and have a legitimate aim.
Access to public information during the quarantine is an extremely important tool for obtaining socially important information. Access to information about the effectiveness of government institutions in quarantine is especially important at this difficult time, when the government has imposed a number of restrictions and prohibitions on citizens. Thus, in the case of Fressoz and Roire v. France, the European Court of Human Rights protected the right of journalists to receive and disseminate information of public importance while the topic covered by these journalists was actively discussed in public.
The law-maker suggests to leave cases that must not be subject to amendments, particularly: appeals (inquiries) that concern the protection of life or freedom of a citizen, environmental issues, the quality of food and consumer goods, accidents, disasters, natural hazards and other emergencies that have occurred or may occur and threaten the safety of citizens.
But in fact the law-maker suggests a "shortened" and exhaustive list of information, which must be provided upon a request without any delay during the quarantine. Such wording will in fact be arbitrarily interpreted by a public information manager, and citizens will have to justify and provide evidence that the inquired information belongs to the topics specified in the law. At the same time, introduction of any other terms for collection, maintenance, use and dissemination of information besides Article 34 of the Constitution, should be considered unconstitutional.
For example, how to deal with requests for information about state expenses against the spread of dangerous diseases. In fact, information manager will decide at his/her own discretion whether the request is subject to a top-priority response or will be postponed until the end of quarantine.
Sending information requests and receiving answers to them in most cases do not require individual contacts and, therefore, do not hazard the health of both requestor and information administrator.
It should be mentioned that special legislation on the prevention of the spread of inflectional diseases establishes high requirements for the provision of information to citizens:
citizens and their associations have the right to receive reliable information on the epidemic situation in Ukraine. Officials at state bodies and institutions, mentioned in part two of this article, shall be brought to responsibility for a refusal to provide information, its intentional distortion or concealing of objective data on infectious diseases of the population, under Article 17 of the Law of Ukraine on Protection of the Population Against Infectious Diseases;
the basic principles of civil protection include: publicity, transparency, free access to and dissemination of public information about civil protection, except for restrictions established by the law (Article 7 of the Code of Civil Protection of Ukraine);
citizens have the right to receive information about emergencies or dangerous events that have occurred or may occur, including in a form accessible to persons with visual and hearing impairments (Article 21(1) of the Code of Civil Protection of Ukraine);
citizens have the right to receive reliable and timely information about their health, health of the population, as well as any existing or potential hazards for their health and their degree (Article 4 of the Law of Ukraine on Ensuring Sanitary and Epidemic Welfare of the Population).
OPORA fully supports the position of the VRU Commissioner for Human Rights concerning rejection of the draft law on postponement of replies to inquiries and applications for the quarantine period, as the suggested regulations significantly restrict the citizen right on access to information and appeals guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It should be mentioned that besides violation of a generally recognised right on information, the draft law regulations restrict the right of layers to practice law by obtaining information upon a lawyer inquiry. Restriction of a lawyer's right to file a lawyer inquiry will have a negative impact on the exercise of the right for legal aid and the right for defense (Art. 59 of the Constitution of Ukraine). At the same time, the courts continue to consider cases and all efforts of the law-makers are now aimed at ensuring a smooth operation of the judiciary in quarantine (Laws of Ukraine on Making Amendments to Some Legislative Acts of Ukraine Aimed to Provide Additional Social and Economic Guarantees in Relation to the Spread of Coronavirus Disease (COVID-19) and on Amendments to Section XI "Transitional Provisions" of the Criminal Procedural Code of Ukraine on Judicial Control Over the Observance of the Rights, Freedoms and Interests of Individuals in Criminal Proceedings and Consideration of Certain Issues in Proceedings During the Quarantine Established by the Cabinet of Ministers of Ukraine to Prevent the Spread of Coronavirus Disease (COVID-19)). If a lawyer can not promptly receive information, necessary to collect evidences to protect a defendant or present interests of a client in a court, it restricts citizen right on professional legal aid and efficient judicial protection.
We emphasize that according to Article 15 of the Convention, in time of war or other public danger threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention only to the extent required by the severity of the situation, and provided that such measures are in line with its other obligations under the international law. If exercising this right derogate from its obligations, any High Contracting Party shall inform the Secretary General of the Council of Europe fully informed about the measures taken and the reasons thereof.
Ukraine has not yet submitted the corresponding application for derogation (intent to derogate from the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms). As a result of the COVID-19 pandemic, 10 of the 47 member states of the Council of Europe have informed about derogation: Latvia, Romania, Moldova, Armenia, Estonia, Georgia, Albania, Northern Macedonia, Serbia and San Marino.
However, Ukraine has not yet initiated such a derogation procedure. Thus, restriction of rights on the legislative level is contrary to the Convention and its application practices, what may result in significant economic losses due to complaints of Ukrainian citizens on violation of their rights during a special period.