New demands and new procedure
Back in 1993 new procedure was introduced for registering normative legal acts, this establishing how state executive bodies issued and registered such documents.
State registration was, first of all, mandatory for the normative legal acts of ministries and other executive bodies where they pertained to the socio-economic, political, personal and other rights, freedoms and legal interests of citizens, declared and guaranteed by the Constitution of Ukraine. State registration was regulated by Presidential Decree «On state registration of normative legal acts of ministries and other executive bodies» from 3 October 1992, the Resolution of the Cabinet of Ministers of Ukraine «On approving the provisions on state registration of normative legal acts of ministries and other executive bodies» from 28 December 1992 and normative legal acts of the Ministry of Justice. In particular, the procedure for submitting normative legal acts for registration was regulated by Order of the Ministry of Justice No. 34/5 from 12 April 2005 «The procedure for submitting normative legal acts for state registration to the Ministry of Justice of Ukraine and procedure for state registration».
State registration of normative legal acts included a legal assessment to check compliance with the Constitution and current laws of Ukraine, the adoption of a decision about state registration, assignment of a registration number to each normative legal act and its being entered into the State Register of normative legal acts.
Ukraines ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1997 initiated a new approach in the activities of legislative and law-applying bodies of power. Since, according to Article 9 of the Constitution of Ukraine, the Convention is a constituent part of Ukrainian legislation, and taking into account the fact that Ukraine acknowledged the jurisdiction of the European Court of Human Rights as binding for the state, the need arose to adapt Ukrainian legislation to the norms of European Law. It should be pointed out that recently the European court has frequently found violations by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms. Such violations are often connected with the fact that some domestic normative legal acts contradict the provisions of the Convention, so these documents are the source of systematic violations.
In implementation of the program for adjusting Ukrainian legislation to comply with the norms of European law, the Ministry of Justice passed a decision to make changes to the procedure for state registration of normative legal acts this envisaging an additional check of normative legal acts for conformity with the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Ministry of Justice of Ukraine issued Order No. 70/5 of 23 August 2006 «On introducing amendments to normative legal acts of the Ministry of Justice of Ukraine concerning state registration of normative-legal acts». From now on all draft laws, other normative legal acts and all documents liable for state registration will undergo expert analysis to ensure conformity with the Convention. The expert analysis will be conducted by the National bureau of the Ministry of Justice of Ukraine on observance of the Convention.
This expert assessment will be carried out in accordance with the Law of Ukraine «On enforcing the judgments and applying case law of the European Court of Human Rights», as well as Resolutions of the Cabinet of Ministers on measures for implementing this Law.
The expert assessments will involve two stages, the first being a check to determine whether the subject of regulation of the normative act in fact relates to the rights and freedoms guaranteed by the Convention. If the answer is affirmative, then the second stage will commence, this being the check on actual compliance. During this stage specialists will consider whether the normative act conforms to the provisions of the Convention and the case law of the European Court of Human Rights. The resulting conclusion regarding compliance with the Convention of any given normative legal act will then be included in the Opinion of the Ministry of Justice.
If the subject of legal regulation does not concern the rights and freedoms guaranteed by the Convention, then this is noted in the accompanying letter, with which the normative legal acts are submitted for state registration. For this test the Ministry of Justice recommends using the topic-based reference book on the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and protocols to it (appendix to the Methodical recommendations on carrying out expert assessments of normative legal acts (drafts) for conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms, approved on 15 August 2006 by the Ukrainian Government representative at the European Court of Human Rights.
If, during state registration, some doubts arise as to the correctness of the results of the check, then the normative legal act is returned without state registration, this providing another reason for turning down state registration