Repressive laws adopted in “fight against terrorism”
Moscow’s undeclared, yet ever more aggressive war against Ukraine was launched because Ukrainians had upheld their right to European integration. Ukraine’s parliament must not sabotage that integration through appallingly repressive laws.
On Aug 12, the Verkhovna Rada passed two worrying draft bills linked with criminal proceedings and pertaining to the area where an anti-terrorist operation [ATO] is underway. One gives the Prosecutor power to authorize searches, wiretapping or even detention without a court order, and the second, also bypassing the courts, would allow ‘preventive detention’ for up to 30 days. Not surprisingly human rights organizations are calling on President Petro Poroshenko to veto both laws.
The draft law giving the Prosecutor sweeping powers in certain circumstances is especially galling given that Ukraine has yet to implement its commitment on joining the Council of Europe in 1995 to reform the Prosecutor’s Office. According to Volodymyr Yavorsky, there is no country in Europe that allows the prosecutor to detain or search a person without a court order. He notes that any evidence obtained under such circumstances could not legally form the basis of a later conviction. If a domestic court initially ignored such irregularities, then it would later almost certainly be found by the European Court of Human Rights to be in violation of the European Convention. This is a move back to Soviet times, and the role then of the prosecutor [more details here http://khpg.org.ua/en/index.php?id=1408134791].
The draft bill on preventive detention is of concern for roughly the same reasons since the court is once again bypassed. Amendments would be made to the Law on fighting terrorism.
Article 14 of this law would have a new paragraph which states that in order to protect citizens, the state and society from terrorist threats in the area where an ATO is underway, that exceptionally, preventive detention of persons involved in terrorist activities, can be for over 72 hours, but no more than 30 days.
The grounds for such detention are warranted suspicion that the person has committed terrorist acts. It would be carried out on the motivated decision of the head of the central division or a division of the SBU [Security Service] or Interior Ministry in the Crimea; the relevant oblast or Kyiv and Sevastopol. This would be with the agreement of the prosecutor but without a court order. A copy of the decision would be handed to the detainee, and immediately passed to the investigative judge, and court of the relevant jurisdiction together with an application for a preventive measure to be chosen. Preventive detention cannot continue after the investigative judge, court has considered the application.
The latter sounds good, but would be extremely unlikely to stop people being detained without the court’s OK for up to 30 days. The grounds may seem compelling, the circumstances at the moment are undoubtedly exceptional, yet the lack of a court order must be of concern.
At a press conference on Aug 15 representatives of human rights groups also stated that there were potential threats to the rights of Ukrainians in draft law No. 4310a which gives police officers in the ATO the right to use physical force, special means and weapons without warning.
They also cited concerns about the draft law No. 4453a on sanctions saying that they impose restrictions on media and other information sources. It is not clear why this was mentioned, as Prime Minister Arseny Yatsenyuk stated on Thursday, before the bill was adopted in full, that the media clauses had been removed. They were indeed of concern (more details here: http://khpg.org.ua/en/index.php?id=1407873239 )
The proposed media restrictions aroused outrage in Ukraine and beyond, and it was certainly understood that they had been withdrawn, seemingly because of that reaction. It is to be hoped that the President and his administration can respond appropriately with respect to all the draft bills which undoubtedly address real problems, but do so through methods which have no place in democratic Ukraine.