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October 10, 2023The Venice Commission has criticized the Ukrainian draft law aimed at restricting the political participation of individuals who were members of political parties banned after the start of Russia’s invasion.
According to reports, the Venice Commission worked on its assessment jointly with the Bureau of Democratic Institutions and Human Rights, as the issue pertains to elections as well.
Draft Law No. 9081 proposes a restriction of up to 10 years after the end of the state of emergency on the participation in state governance by members of political parties whose activities were prohibited in Ukraine shortly after the beginning of the war. The Venice Commission and the Bureau of Democratic Institutions and Human Rights acknowledge that certain restrictions immediately after the state of emergency can be justified but believe that such timeframes are excessively long.
“Taking into account the exceptional historical situation in which Ukraine currently finds itself, the Venice Commission and the Bureau of Democratic Institutions and Human Rights consider that the draft law is legitimately aimed at protecting, among other things, state independence, the democratic system, and national security. However, it is applied automatically based on party membership and the holding of an elective office, without making distinctions between members of parties actively involved in unlawful actions attributed to the political party and therefore posing a threat to the democratic system and national security and those who held neutral functions,” the conclusion states.
The Venice Commission and the Bureau of Democratic Institutions and Human Rights note that these restrictions apply to a large group of individuals, imposing collective responsibility for the unlawful actions of the party to which they belonged, without considering each case individually, which “contradicts the principle of proportionality and can lead to arbitrary decisions.”
The authors of the conclusion recommend that Ukraine:
- Introduce “appropriate criteria and an effective individual assessment” based on which restrictions on the right to stand for election will apply only to representatives of parties whose actions and statements have posed a threat to national security and democracy and actively contributed to the unlawful goals of banned parties, and therefore represent a threat in the case of re-election.
- After the cancellation of the state of emergency, reduce the duration of restrictions to the “minimum period” and ensure that longer restrictions are applied only to individuals who pose the most serious threat to national security and the democratic system, based on court decisions regarding their personal responsibility.
- Provide individuals subject to restrictions with access to procedural safeguards during the assessment process and the opportunity to appeal restrictions on their rights and request a judicial review of decisions to deprive them of the right to stand for election.
“Implementing these recommendations is important to avoid a negative balance between the legitimate goal of protecting the democratic system and national security of the state and the need to ensure equal conditions for political competition, without disproportionate influence on the vital role played by all participants in political life in ensuring pluralism and without threatening the representative nature of the legislative authority,” the conclusion states.