Joint Interim Opinion on the Law of Ukraine on the condemnation of the communist and national socialist (Nazi) regimes and prohibition of propaganda of their symbols (CDL-AD(2015)041-e)
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III. Executive Summary
9. From the outset, the Venice Commission and OSCE/ODIHR recognise the right of Ukraine to ban or even criminalise the use of certain symbols of and propaganda for totalitarian regimes. Such legislation is not uncommon throughout the Council of Europe and OSCE regions. However, since the regulation affects human rights, in particular the rights to freedom of expression, association, assembly and elections, the legislation needs to comply with requirements set out by the European Convention on Human Rights (ECHR) and other regional or international human rights instruments. While Law no. 317-VIII may be considered as pursuing legitimate aims, its provisions are not precise enough to enable individuals to regulate their conduct according to the law and to prevent arbitrary interference by public authorities. As such, it does not adhere to the three-fold test of legality, legitimacy and necessity in a democratic society. Furthermore, the Law is too broad in scope and introduces sanctions that are disproportionate to the legitimate aim pursued. Any association that does not comply with Law no. 317-VIII may be banned, which is problematic with regard to every individual’s freedom of association. This is particularly the case when it comes to political parties, which play a crucial role in ensuring pluralism and the proper functioning of democracy. The banning of political parties from participation in elections or their dissolution should be a measure of last resort in exceptional cases. The Venice Commission and OSCE/ODIHR would encourage the Ukrainian authorities to follow a “multiperspective” approach to Ukraine’s history, that allows a shared vision of its past in order to promote social cohesion, peace and democracy.
10. In light of the above, the Venice Commission and OSCE/ODIHR make the following key recommendations for the improvement of Law no. 317-VIII:
a) Symbols: for the purpose of clarity, the Law should contain a less extensive and exhaustive list of the prohibited symbols;
b) Propaganda: this notion must be clearly defined, especially when it is used for the purpose of criminalising conduct;
c) Denial of crimes: respective provisions must relate to specific crimes and not to the mere “criminal nature” of a regime as a whole, which is too vague;
d) Sanctions: only those acts that constitute an actual danger to society should entail criminal responsibility, which should be proportionate to the seriousness of the offence committed. A mere display of a symbol or use of a name should not result in imprisonment; and
e) Banning of associations (notably political parties): the Law should clarify that banning any association is a measure of last resort in exceptional cases, proportionate to the offence. This is particularly the case for political parties in the light of their important function in a democratic society.
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Quelle: Venice Commission Opinion no. 823/2015, ODIHR Opinion no. FOE-UKR/280/2015, Strasbourg, Warsaw, 21 December 2015, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282015%29041-e>
