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Strasbourg, 15 July 2002
Opinion
No. 183 / 2002
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CDL-AD (2002) 17
Or. Eng.
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EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION ON
THE
UKRAINIAN LEGISLATION
ON
POLITICAL PARTIES
adopted by the Venice Commission
at its 51st Plenary Session
(Venice, 5-6 July 2002)
on
the basis of comments by:
Mr
Kaarlo TUORI (Member, Finland),
Mr
Hans-Heinrich VOGEL (Substitute member, Sweden)
Mr
Valeriu STOICA (Romania)
Introduction
1. On 7
November 2001 the Venice Commission was asked by the Parliamentary Assembly of
the Council of Europe to issue an opinion on the Ukrainian legislation on
political parties and in particular on the Law on Political Parties .
2.
During its 50th Plenary session in Venice 8-9 March 2002, the
Commission examined the comments submitted by Messrs Vogel and Stoica (seeCDL(2002)37 and (2002) 42) on the Law on Political Parties of Ukraine. The
Rapporteurs pointed out a number of problems in the examined legislation, which
were at risk of running contrary to the principles of modern pluralistic
democracies.
3. After
an exchange of views with Mr Mark Orzikh, Professor of Law at the Odessa
National Academy, representing the Ukrainian authorities, the Commission
decided to postpone the adoption of the opinion and to send a fact-finding
mission in order to collect more information on the matter.
4. On 10
– 12 June 2002 a delegation of the Venice Commission consisting of Messrs H.
Vogel, K. Tuori and two representatives of the Secretariat travelled to
Ukraine. During this visit, the Rapporteurs held an exchange of views with Mr
O. Lavrinovitch, Minister of Justice of Ukraine, Mr V. Zinchenko, Vice President
of the Verkhovna Rada and Mr. L. Podpalov, Deputy Head of Administration of the
President of Ukraine. They also had an exchange of views with a number of
parliamentarians and a group of experts of the Ministry of Justice. The
following opinion, which takes into account the views expressed by the
representatives of the Ukrainian authorities on these occasions, was adopted by
the Venice Commission at its 51st Plenary Session (Venice, 5-6 July
2002).
A.
General Remarks
5. This paper contains comments on three
documents (seeCDL(2002)36):
– the Law of Ukraine “On Political Parties in Ukraine” (hereinafter
“the Law on Political Parties”), as signed by President Kuchma on
5 April 2001;
– the draft Bill of Ukraine “On incorporation of amendments into
certain legislative acts of Ukraine following the passing of the Act of Ukraine
entitled On political parties in
Ukraine” of 20 September
2001 (hereinafter “the Draft Law”) and
– the “Information on the draft Bill of Ukraine On incorporation of amendments into certain
legislative acts of Ukraine following the passing of the Act of Ukraine
entitled On political parties in Ukraine” (hereinafter “the
Information”);
It also takes into account the relevant
provisions of the Law of Ukraine “On associations” of 16 June 1992, last amended on 11 July 2001
(hereinafter “the Law on Associations”).
6. The Commission had recourse to the English
translations of the said documents. However, the terminology used in the
translations which were available to the Commission was not entirely
consistent, and, in particular, the meaning of the translations of the Draft
and the Information had to be clarified for the purpose of this
opinion. Some of the ambiguities were further clarified during the fact-finding
mission in Ukraine.
1.
Activity
requirements for political parties
7. The requirements to found a political party
and the requirements concerning its activities, once it is duly founded and
registered as outlined in the Law on Political Parties, are very
elaborate; the threshold for founding new parties
appears rather high and so are both the demands on their future activities
and the risks of possible sanctions,
if full compliance is not achieved.
8. The difficulties of the founding process and
the demands on future activities risks being an impediment to any challenge to
the existing party system arising out of new political ideas. However, to raise
such obstacles is no good reaction to challenges of this kind. Such challenges
should be met in political debate, not by administrative requirements or
administrative procedure.
9. It is particularly difficult to share the
assumption in the Law on Political Parties that all
political parties should be active nationwide – not only in a region of
the country or locally, a requirement that constitutes a legal impediment to
forming parties which concentrate on matters concerning regional issues
(for example, the Autonomous Republic of the Crimea).
10. The Commission recalls in this respect that
democracies of Europe offer many examples of well established political parties
with an agenda focused on and with support concentrated to some part of the
country only; and there are even more examples of political parties, which are
exclusively active on the local level and within the geographical borders of a
local community or a province and which play an important role for democratic
life there.
11. During their visit to Ukraine, the members
of the Commission’s delegation learned that, in practice, many of the 124
parties active in Ukraine are regional or local in character. Ukrainian
authorities justified the requirement in question with reference to the need to
prevent regional fragmentation of the country. Most Ukrainian officials were
convinced that the political rights of individuals were not threatened since
the freedom of political activity on the local level was sufficiently
guaranteed under the Law on Associations of 1992.
12. However, the Commission does not share
this opinion. From the scope of the changes proposed by the Draft Law,
it is evident that the Law on Political Parties will regulate the
functioning of political parties. Moreover, Article 10 Section 3 of the Law
on Political Parties provides that “[…] Unregistered political parties
shall not be allowed to operate”. All articles of the Law on
Associations are modified with a view of excluding regulations on parties
(exclusion of Article 2, changes in Articles 4 Section 2, Article 11 Section 1,
Article 12 Section 1, Article 14 Section 3, etc). Thus a clear distinction is
established between political parties and other types of associations.
13. Parties enjoy certain rights, enumerated in
Art. 12 of the Law on Political Parties, comprising the right to
participate in elections, including local elections. Only one article of the Law
on Associations - Article 20 (Rights of registered associations) in its
Section 4 gives associations the right “to participate in political activities,
to hold public activities (meetings, gatherings, demonstrations, etc)”,
but it is questionable whether this provision can be regarded as sufficient in
the light of interpretation of freedom of association in most Council of
Europe’s Member States.
14. Because of the specific rights of political
parties, the legal form of an association cannot be regarded as a substitute
for the status of political party. In addition, the above-mentioned Art. 10(3)
may be interpreted as an obstacle to the exercise of political activities by
associations registered under the general Law on Associations.
15. Accordingly, the requirement of a national
coverage for political parties might represent a serious restriction to the
political activity on regional and local level. Taking into the consideration
the status of the right to form political parties as a fundamental right
and the legally privileged position of parties in political activities, the
Commission considers that the requirement of a national character should be at
least loosened in the text of the law.
2. Restrictions
for membership in political parties
16. According to Article 6 Section 1 of the Law
on Political Parties only citizens with a right to vote under the
Constitution of Ukraine shall be eligible as members of political parties, and
according to Article 70 of the Constitution of Ukraine only citizens of Ukraine
have the right to vote at elections and referendums. Thus, foreign citizens and
stateless persons do not have voting rights under the Constitution, and therefore
they cannot be party members either. Consequently, the right to freedom of
association in political parties according to Article 36 of the Constitution is
vested in citizens of Ukraine only.
17. Restrictions on political activities of
foreign citizens and stateless persons are possible under international law.
The reason usually given for this rule is the wish to avoid foreign policy
conflicts. But this can hardly justify the general exclusion of foreign
citizens and stateless persons from membership in political parties. The
mentioned provisions make it difficult, if not impossible, for all
foreign citizens and stateless persons to participate in the organized
political life in Ukraine in general. This includes organized political
activities on both the national and the local level, and no exception is made
for those foreign citizens and stateless persons who have their permanent and
legal residence in the country.
18. Provisions regarding political activities of
foreign citizens and stateless persons, however, should take into account that
even these individuals are included in guarantees for basic rights according to
the human rights documents which are applicable in Europe. In 1992 the
Convention on the Participation of Foreigners in Public Life at Local Level
(ETS no. 144) was opened for signature by the member States of the Council of
Europe, and it entered into force in 1997. In light of the latter Convention,
an absolute ban on non-citizens’ membership in political parties can be
considered unjustified.
19. One reasonable way to comply with these
European standards could be to let foreign citizens and stateless persons to
some extent participate in the political life of their country of residence. At
the very least, the country of residence should make membership in political
parties possible for foreign citizens and stateless persons; but it should also
be noted that foreign citizens and stateless persons in many European countries
can vote in local elections and can even be elected to local public office in
such elections.
20. Instead, if a political party in Ukraine
would wish to act according to these European standards, it would take the considerable
risk that such an initiative could be viewed as a transgression of the
Constitution of Ukraine and the Law on Political Parties and that this
view could lead to measures against the party.
3. Registration of political parties and
control over their activities
21. As it has been already mentioned above,
according to Article 10 Section 3 of the Law on Political Parties, “a
political party shall start operating only after being (officially) registered”
and “unregistered political parties shall not be allowed to operate”.
22. Article 11 provides for a detailed procedure
of registration of a political party, including the obligation for the party to
present yearly to the Ministry of Justice information regarding their
territorial subdivisions. In the Commission’s view, this requirement is
excessive, especially considering the strict registration rules that apply.
23. According to Article 18, Section 1 of the Law
on Political Parties, the Ministry of Justice exercises control over the
parties with regard to the observance of the Constitution and other laws, and
also with regard to the party’s statute or charter. These powers of the
Ministry of Justice are not clearly defined and delimited, which, in the
Commission’s view, might constitute a potential threat to the autonomy of
parties. Accordingly, it is advisable that the Ministry’s powers, including the
power to obtain documents and other information from the parties, should be set
out in a detailed and accurate manner.
24. The Commission considers in particular that
control over the statute or charter of a party should be primarily internal,
i.e. should be exercised by the members of the party. As regards external
control, the members of a party should have access to a court in case they
consider that a decision of a party organ violates the statute. In general,
judicial control over the parties should be preferred over executive control.
4.
Measures
against a political party
25. Under Article 19 of the Law on Political
Parties, if transgressing the Constitution of Ukraine or other laws of
Ukraine, a political party can be warned or banned. A warning can be issued by
the administrative authority controlling the party (Article 20), while a ban
may be decided by ruling of a court of law (Article 21 section 1). A ban
entails termination of the banned party’s activities and its dissolution
(Article 21 section 2).
26. A prerequisite for either warning or ban is
a transgression of the Constitution or a law, and the wording of Article 19 of
the Law on Political Parties is sweeping in this respect: no distinction
is made between minor and major infractions, and there is no taking into
account of the character of the infraction, whether political or not, whether
breaching criminal law or disregarding accounting provisions, etc. Each and
every transgression may under Article 19 lead to warning or ban; the wording of
Article 19 puts virtually no limits on the discretion of the controlling
authority which issues a warning, or the court of law which rules on an
application to ban a political party.
27. In the Commission’s opinion, so wide a discretion
is not easily compatible with generally accepted democratic standards.
C.
The Draft Law
- The purpose of the Draft Law
29. According to Section 3 of the Information,
the purpose of the Draft Law is to change the relevant provisions of the
Code of Civil Procedure and of the “Law on Associations”, and the aim of
these changes appears to be twofold.
30. Mainly and in the first place, the changes
are said to be proposed in order to make the Civil Code and the Law on
Associations compatible with the Law on Political Parties and thus
to avoid dual legislation on regulation of the organization and activities of a
political party. In this aspect the proposals mainly deal with provisions
concerning the procedure to be followed when requests are made “for prohibition
of the activities of a political party” or for cancelling the registration
certificate of a political party.
31. Apart from that and secondly, the changes
are also said to have a far broader aim, i.e. they should “ensure reliable
implementation of the constitutional rights and freedoms of citizens to unite
to form political parties and adherence to the democratic principles for the
foundation and activities of political parties, and should create additional
guarantees of control over state executive offices, thus reducing the incidence
of violation of constitutional rights and freedoms of citizens.”
- Proposals to add a new Chapter in the Code
of Civil Procedure (Chapter 31-Д containing Articles 248-27, 248-28
and 248-29)
