MLI Legal Opinion On the Draft Law “On Combating Extremism”

December 4, 2013

On 02 December 2013, MP Vadym Kolesnichenko from the pro-governmentalParty of Regionshasregistered in the Parliament the draft law No3718 «On Combating Extremism».

The authors of the draft law propose to define thetypes and forms of the extremist activities and to introduce criminalresponsibility for such activities through amending the Criminal Code ofUkraine with the special article where the maximum sanction for extremism wouldbe 8 years of imprisonment.

As it is stated in the explanatory note to the draftlaw, it is developed with the aim to combat extremism in Ukraine as wellas to prevent, identify and liquidate extremist activities and their consequences.  However, the mere definition of the extremistactivities and the overall content of the draft law raise serious concernsvis-à-vis their negative influence on the implementation of human rights and morespecifically freedom of expression in Ukraine. The draft law containsvague definitions, which allow for a broad interpretation and application ofits provisions, as well as for an unlimited scope of discretion of the stateauthorities in charge of combating the so-called “extremism”. According to thedraft law, it will be possible to ban any peaceful assembly, to close downlegal entities, to supress media and to block websites.

We are deeply concerned about the fact that theprovisions of the draft law expand the area of application of the criminal lawwithout any reasonable grounds, since legal responsibility for most of theoffences covered by the draft law is already provided for in the legislation inforce on combating terrorism and prevention of hate speech. In its turn, theaforesaid draft law proposes vague definitions which can be broadly interpretedand applied arbitrary. For instance, extremism is among else defined as “violationof rights, freedoms and legitimate interests”. Such broad definition will allowfor claiming almost any type of activity as “extremism”. 

Media Law Institute would like to stress that theprovisions of the draft law on combating extremism impose ungroundedlimitations on freedom of expression and freedom of assembly. Entitling prosecutorsto the right of suspending activities of a legal entity or civil association,even before a court decision on liquidation or ban of the activities of a legalentity or civil association, constitutes significant threat to theimplementation of the rule of law in Ukraine. Certain proceduresprovided for in the draft law cover specifically liability of media and Internetoutlets, which will undoubtedly hinder impartiality of media coverage of anymatter of public interest. According to the draft law, any media can be rapidly closed down following charges of disseminationof information favouring extremism.

It is worth noting that the laws of this kind havebeen adopted only in the semi-authoritarian states. In particular, legislationof the Russian Federationincludes the Law “On combating extremist activity” No 114-ФЗ as of 25 July 2002. This Russian law has served as a basis for theUkrainian draft law. Provisions of the Russian law were negatively assessed bythe European Commission for Democracy through Law (Venice Commission) for the reason of disproportionate restrictions of fundamentalrights and freedoms as stated in the Articles 6, 9,10 and 11 of the European Convention on Human Rights and because this law violatesthe principle of necessity in a democratic society:

The aforementioned opinion of the Venice Commission isof direct relevance to the Ukrainian draft law since most of the provisions of thedraft No 3718 copy the wording of the Russian Federation extremism law. The application practice of this lawin the Russian Federationis widely known: compilation of the lists of the blocked websites or ungroundedand arbitrary persecution for the extremist activity.

We are convinced that the provisions of the Ukrainiandraft law “On Combating Extremism” do not comply with the international standardsof freedom of expression and freedom of assembly, and that the adoption of thelaw would hinder democratic processes and civil society development, and would abusethe rule of law in Ukraine. The only purpose of this draft law seems to assist theauthoritarian government in retaining its power and in protecting itself fromUkrainian citizens.