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09.02.2012 | Oksana Nesterenko, KHPG legal specialist

Legal analysis of the Draft Law on Amendments to the Public Morality Act

   

 

A constitutional and legal analysis of the draft law on Amendments to the Law on the Protection of Public Morality enables us to conclude that provisions within it infringe such fundamental constitutional principles as:

freedom of expression;

freedom of literary, artistic, scientific activity;

academic freedom;

freedom of information;

the principle that the State should not intrude in the public’s activities.

Most importantly, however, both the current Public Morality Act and the draft law proposing amendments violate the principle of the rule of law proclaimed in Ukraine’s Constitution.

The Constitutional Court has stated that “one of the elements of the rule of law is the principle of legal clarity according to which restriction of fundamental human and civil rights and enforcement of such restrictions are permissible only on condition that the legal norms establishing such restrictions are foreseeable. Restriction of any right must be based on criteria which enable a person to differentiate between lawful and unlawful behaviour and foresee the legal consequences of their behaviour” (CCU Judgement No. 10/2011, on terms of administrative detention).

The provisions of the draft law in question do not do this.

For example, definition of such legal constructs as “products which harm public morality”; “disrespect for places and objects of special national and religious significance”; “public morality”; “monitoring in the sphere of public morality”; “the use of foul, offensive or obscene words” and similar do not make it possible to understand the criteria by which one or other utterance or artistic work can be considered to endanger public morality, show disrespect for places and objects of special national and religious significance, etc.  A person enjoying his or her right to freedom of speech; literary, artistic or scientific activity may be found to have violated the Public Morality Act with negative consequences but without even realizing it. This automatically means that the person will in future apply self-censorship and thus violates his or her right to freedom of thought and expression.

The provisions of the law also infringe Article 19 § 2 of the Constitution which states that “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”.  The aim of this provision, together with the principle of ideological diversity (Article 15) and the fundamental rights of the individual in Section 2 of the Constitution, consists of establishing clear boundaries (limits) for intrusion by State bodies in people’s private lives. The Public Morality Act gives public authorities powers enabling them to establish total State control by the State on the free exchange of information. This is incompatible with freedom of information and not appropriate for democratic countries.  This all means that the provisions of the draft law could, if passed, be a violation by the State of Ukraine’s Constitution, for example, freedom of expression of views, without fear of punishment for criticizing State policy.

Furthermore the draft law contains a norm which violates the fundamental principle of freedom of information as declared at the first session of the UN General Assembly in Resolution 59, and then in the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and others.

The concept of freedom of information entails freedom to look for, receive and disseminate information by any means and regardless of State borders. Norms infringing the principle of freedom of information and effectively negating this principle include legal constructions and norms of the draft law such as “where there is a court ruling, with a day to ensure through technical means removal of content which harms public morality, including child pornography, from the national segment of the Internet, and should it be posted outside Ukraine – secure blocking of access to it from the national segment of the Internet.  Others are: “The right to an information realm, free from material which poses a danger to the physical, intellectual, moral and psychological state of a person”, and similar.

One should also note that some of the legal procedures envisaged by the draft law are in breach of the Constitution and show the State trying to create an authoritarian regime, not a democratic country. These include the following: “carrying out monitoring on protection of public morality”; “creation of a Single specialized information – telecommunications data system regarding the state of public morality”; “carrying out an analysis of processes and tendencies in the sphere of protection of public morality.”

What is more the authors of the amendments directly speak of “measures .. of propaganda work regarding protection of public morality”, and this means that the authors are flouting the ban imposed in Article 15 of the Constitution on any ideology being declared the State one.

In addition to this, the law itself contains contradictions, for example, it claims to declare the principle of the rule of law and ban on censorship while some of the norms of the law are written in such a way that they run counter to these principles.

The author lists the large number of articles of the Constitution, as well as international documents, which the draft law is in breach of, and concludes that it should be withdrawn. 

The likely consequences of its adoption:

Infringement of the rights enshrined in Articles 34 and 54 of the Constitution;

The Constitutional Court finding the law do be unconstitutional;

Considerable public expenditure which seems especially unwarranted given the need to provide social protection for former Chornobyl clean-up workers; veterans of the War; the disabled; people with special needs, etc.

Were the law to be adopted and applied, one could expect a significant increase in the number of applications to the European Court of Human Rights within a year or two, claiming violation of Article 10 of the European Convention on Human Rights. Ukraine’s position in freedom of speech and press freedom ratings would also fall, adversely affecting the country’s international standing. 

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