Ukraine

DRC Legal Alert Special: Draft law on the principles of state policy of the transition period: Issue 68, October 2021 [EN/UK]

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Cabinet Registers Draft Law On the Principles of State Policy of the Transition Period at the Parliament

On 4 August 2021, the Cabinet approved the Draft Law On the Principles of State Policy of the Transition Period, registered at the Parliament as Draft Law No. 5844 on 9 August 2021. The Draft is developed according to the requirements of the Cabinet Priority Action Plan for 2021 and the Decision of the National Security and Defence Council on Peaceful Settlement Process Revitalisation.

The Draft Law is to be reviewed by the focal Parliamentary Committee before it can be presented for the initial hearing at the parliamentary plenary session. Meanwhile, the Draft has been reviewed by the European Commission for Democracy Through Law (i.e., the Venice Commission), which published its opinion on the matter on 18 October 2021 (see Section 5).

AIM OF THE DRAFT LAW

  • Framework law: It is a framework law covering legal vacuum and consolidating existing laws on a wide range of issues created by the conflict. As a framework law, it lays down the general obligations and principles, leaving the principles to be elaborated by existing and new laws and by-laws.

  • Codification of TOT-related legislation: Currently, there is no unified law on matters related to the conflict in Ukraine, such as human rights protection, additional social guarantees, legitimate grounds for restricting civil liberties, and measures to ensure access to services. Some aspects of the conflict, however, have been regulated under separate laws and sometimes, awkwardly, through by-laws. The Draft Law brings all these laws under a common framework in a single instrument, except for a few major laws with the well-established role and enforcement practice.

  • Unified approach with regards to NGCA and Crimea matters: Starting from 2014, the Ukrainian government has been regulating matters related to NGCA and Crimea components of the conflict separately. In January 2018, the adoption of Law No. 2268-VIII ‘On Ensuring State Sovereignty Over Temporary Occupied Territories in Donetsk and Luhansk Regions’ marked a shift in the policy towards the unification of the regulative approaches. However, the shift was not articulated clearly, and even Law No. 2268-VIII left room for debate. The shift was further undermined by the existence of contradictory regulations and enforcement practices, making the regulatory approaches dualistic to a large extent.

  • Outlining two separate stages of State Policy on NGCA/Crimea with a particular list of activities: The Draft Law provides a list of activities to be undertaken by the Ukrainian government with the aim of ‘de-occupation and reintegration’. Some of these activities shall apply until the reestablishment of governmental control over a particular city/village (‘de-occupation stage’), some will come in force only after the ‘de-occupation’ (‘reintegration stage’), and some activities are to be implemented at both stages (see below);

  • Defining legal basis for peacebuilding, convalidation,2 and transitional justice: The Draft Law provides basic regulations on important legal novels such as peacebuilding, convalidation, and transitional justice, which are to be further elaborated under separate laws.