On November 5, 2020, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada of Ukraine a draft law «On Amendments to Certain Laws of Ukraine Concerning the Regulation of Issues Related to Prisoners of War and Internees During a Special Period.»
Charitable Fund Right to Protection draws the attention of the subject of the legislative initiative and legislators to the fact that the provisions of this bill apply not only to prisoners of war, but also to foreign civilians who are on the territory of Ukraine, and therefore considers it necessary to provide analysis of the bill in this aspect.
The essence of the bill
The draft law was developed by the Ministry of Defense of Ukraine to ensure the implementation of Ukraine’s international obligations regarding the detention of prisoners of war and internees during a special period.
It implements changes and additions to the following laws of Ukraine: «On the Security Service of Ukraine»; «On local self-government in Ukraine»; «On local state administrations»; «On the Armed Forces of Ukraine»; «On the Defense of Ukraine»; «On the Military Law Enforcement Service in the Armed Forces of Ukraine»; «On the legal status of foreigners and stateless persons»; «On the National Guard of Ukraine»; «On the National Police».
According to the text of the draft, internees are persons who have been interned (forcibly settled in certain places by citizens of a state that threatens to attack or carry out aggression against Ukraine, who are on the territory of Ukraine, if it is absolutely necessary to ensure national security of Ukraine).
«After the draft law №4327 was registered, our beneficiaries began to ask for explanations as to whether certain provisions of the bill violate their rights. In the process of analysis, we found that their fears are not unfounded, because the draft does not contain a clear internment procedure and possibility to appeal if such a decision wa made, »– said Svitlana Butenko, senior lawyer for strategic litigation at Right to Protection CF.
Risks for refugees, persons in need of additional protection, asylum seekers
1. The Ministry of Defense states in the Explanatory Note to the draft law that the draft law does not contain provisions that could lead to violation of the rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the European Convention), affect equal rights and opportunities for women and men, contain risks of committing corruption offenses and offenses related to corruption or create grounds for discrimination.
However, the Right to Protection CF considers it necessary to point out that certain provisions of this draft law that may violate the rights and freedoms guaranteed by the Constitution of Ukraine and the Convention for the Protection of Human Rights and Fundamental Freedoms.
In particular, it violates the right to liberty and security of person, guaranteed by The Constitution of Ukraine and Article 5 of the European Convention; the right to privacy provided for in Article 32 of the Constitution of Ukraine and Article 8 of the European Convention; the right to freedom of movement provided for in Article 33 of the Constitution of Ukraine and Article 2 of Protocol № 4 to the European Convention, and also violates the guarantees established in Articles 35, 43 and 44 of the IV Geneva Convention.
In addition, the provisions of the draft do not comply with the principle of legal certainty, i.e. are not clear, accessible and predictable for law enforcers, which contradicts the European Convention on Human Rights in its interpretation by the European Court of Human Rights.
2. The draft significantly expands the powers of the Security Service of Ukraine, the National Police of Ukraine and the Armed Forces of Ukraine to identify citizens who pose a threat to Ukraine’s national security or threaten to attack or carry out aggression against Ukraine, as well as to make decisions on their internment.
The unlimitedness of these powers in time, space, and the application of a sufficiently broad wording to the range of persons to whom it may be applied poses a threat of arbitrariness. This position is shared by UNHCR, as stated in the Thematic Legislative Update for November 2020, prepared on the basis of a legal analysis of laws and public policies concerning refugees, asylum seekers, stateless persons, internally displaced persons and victims of conflict in Ukraine.
The draft does not define a clear procedure for deciding on the internment of a person. In particular, it does not stipulate that such a decision is made for each person individually. This is contrary to Article 75 of the Additional Protocol to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, which prohibits collective punishment of persons under the authority of a party.
3. The draft does not provide a definition of persons who “pose a threat to the national security of Ukraine” and does not guarantee that a person is informed of the reasons for his or her internment, as expressly provided in Article 75 of Protocol I. This significantly limits ability to appeal for such a person.
Failure to comply with the principle of legal certainty in the project may lead to the fact that the above exclusive powers of public authorities may be applied to an unlimited number of citizens of the Russian Federation who are in Ukraine, including refugees, persons in need of additional protection, asylum seekers.
The draft law does not contain any safeguards against the internment of civilians who are refugees or persons in need of additional protection or seekers of protection, which is directly contrary to the provisions of Article 44 of the Convention for the Protection of Civilian Persons in Time of War of 12 August 1949 (IV Geneva Convention).
Persons who may be interned under the requirements of this draft law, contrary to the safeguards and guarantees provided for in Article 35 and Article 43 of the IV Geneva Convention, are not protected by the right to leave the country at the beginning and during the armed conflict or by immediate judicial review (and subsequent review at least twice a year).
At the same time, the draft proposes to supplement the grounds for banning the departure of foreigners or stateless persons from Ukraine, provided for in part two of Article 22 of the Law of Ukraine «On Legal Status of Foreigners and Stateless Persons» with the paragraph “on internment decision – until revocation of internment decision”.
4. The draft law provides for amendments to Article 11 of the Law of Ukraine “On Defense of Ukraine”, according to which an internee has the right to appeal the decision on his / her internment in the manner prescribed by law.
Given that internment is a special procedure, the appeal of the decision should also have certain features, such as a reduced period of consideration of such cases and their appellate review, compared to other categories of cases.
Therefore, the bill should contain relevant provisions on the procedure for appealing such a decision. However, those provisions are absent in the text of the draft law. Given this, such an approach may contradict the provisions of Articles 55 and 124 of the Constitution of Ukraine, which guarantees the right to appeal in court against decisions, actions or omissions of the authorities, as well as to extend the jurisdiction of the courts to any legal dispute.
Despite the general rules on the right to appeal contained in the text of the bill, the law in this case should provide for an appropriate appeal procedure with its features if necessary, which in turn will guarantee the realization of the internee’s right to a fair trial.
However, the final and transitional provisions of the bill also do not contain relevant proposals for legislative changes. Therefore, even if the internee has the right to appeal, he or she will not be able to use it in the absence of the necessary simplified procedure.
The absence of relevant provisions in the text of the bill does not allow for judicial control over the decisions of public authorities – the General Staff of the Armed Forces of Ukraine and the Security Service of Ukraine, even if decisions are made in a special period. This contradicts Article 64 of the Constitution of Ukraine, the constitutional right of a person and a citizen to appeal provided for in Article 55 of the Constitution of Ukraine may not be restricted in a state of war or emergency.
Given the risks outlined above, the purpose of the project is to implement the Geneva Convention on the Protection of Civilian Persons in Time of War, which seeks to protect a certain group of persons and begins when, in the event of a conflict or occupation, a person finds himself under the authority of a party to the conflict or of an occupying State of which he or she is not a national. This purpose is not reached in this draft law.
In this regard, we empasize that the draft must be brought in line with Ukraine’s international obligations under the Geneva Convention concerning to the Protection of Civilian Persons in Time of War. Based on this, the Right to Protection CF provides the following recommendations for finalizing the draft law № 4327:
1. Refugees, persons in need of additional or temporary protection, asylum seekers should be excluded from the scope of regulation of this draft law.
2. The draft law should be supplemented by the guarantee to be able to freely leave the territory of Ukraine by the persons who are subject to internment at the beginning and during the armed conflict as an alternative to internment.
3. The draft law should be accompanied by a clear definition of «a person who poses a threat to the national security of Ukraine» and guarantee the individuality of the decision to intern persons and properly inform such a person about the reasons for his or her internment.
4. The draft law should be supplemented by the procedure of urgent judicial control on the legality of the application of internment of persons (to be performed at least once every six months) with the possibility of appeal.