EU Project 'Pravo-Justice' and Donbas RJRC Discuss Transition Draft Law
On October 12, there was a discussion held in Kharkiv about the draft law 'On the principles of the state policy during the transition period' registered in the Verkhovna Rada. The discussion was initiated by Donbas Regional Justice Reform Council (RJRC). The event was attended by the drafters of the bill from the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine, national and international experts of EU Pravo-Justice Project, the legal community of Luhansk and Donetsk regions, as well as members of the public.
"Given the seven years of aggression by the Russian Federation, Ukraine needs a certain political framework document that will also contain a number of specific instruments," said Oleksii Reznikov, Vice Prime Minister of Ukraine, Minister for the Temporarily Occupied Territories of Ukraine. In his welcome remarks, he emphasized the importance of due drafting a quality document without haste, taking into account additional amendments.
Following the conclusion of the Venice Commission on the draft law, the latter will be considered at a meeting of the Verkhovna Rada Committee together with two alternative draft laws.
"In fact, this bill is being drafted for the post-conflict period. And we understand that we need to prepare the legal framework now, not after the conflict is over. […] With this law, we are doing everything to speed it up," said Dmytro Lubinets, Member of Parliament of Ukraine, Chair of the Verkhovna Rada Committee on Human Rights, Deoccupation and Reintegration of the Temporarily Occupied Territories in Donetsk, Luhansk regions and the Autonomous Republic Crimea, the cities of Sevastopol, national minorities and interethnic relations.
Oksana Tsymbrivska, Key National Expert of EU Pravo-Justice Project thanked the representatives of the Government and the Verkhovna Rada for their willingness to hear out the voice of the regions: "Almost 3,5 years back EU Pravo-Justice Project initiated creating Regional Justice Reform Councils to improve communication between the regions and the center in the policy-making process. And today it is extremely pleasant to state that we have this cooperation with key stakeholders and that the central authorities are open to dialogue and are looking forward to responses from the regions."
"This draft law is the first attempt of the state to at least outline the framework and find a solution to a large number of sensitive issues that cannot be postponed. And Donbas RJRC is to become the voice of the region which is also important to hear. These discussions and explanations of the bill are important for proper perception of the provisions of the bill and avoiding speculations on certain issues in question in the future," said Olena Fonova, Ph.D., Judge of the Commercial Court of Luhansk region, coordinator of Donbass RJRC.
During the first section of the discussion, the drafters of the bill presented its purpose and main provisions.
According to Stepan Zolotar, Director of the Peacebuilding Directorate of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine and Mykhailo Kamenev, State Expert of the Expert Group for Reintegration Policy Implementation of the Directorate of Reintegration and Humanitarian Demining of the Ministry of Reintegration of Temporarily Occupied Territories of Ukraine, the bill unifies approaches in terms of Crimea, Donetsk and Luhansk regions and concerns the state's interaction with citizens during and after the temporary occupation.
"The purpose of the bill is to show the state's intentions that we have an approximate action plan after the de-occupation of territories so that we can effectively ensure the protection of the rights and freedoms of the civilian population," said Stepan Zolotar.
During the second session, civil society representatives, private sector lawyers, judges from Luhansk and Donetsk regions had the opportunity to share their views on the bill, its strengths and weaknesses.
Oleksandr Pavlichenko, Executive Director of the Ukrainian Helsinki Human Rights Union stressed the need to define in the bill the status of all entities, in particular, who the victims are and what the status of these individuals is.
According to Alyona Lunyova, Advocacy Manager at the ZMINA Human Rights Center, a number of messages contained in the bill may be perceived ambiguously and need to be finalized in Parliament: "Thoroughly drawn up legislation on the transitional period is one of the steps towards de-occupation. People should not be afraid of Ukraine regaining control over these territories. If they are afraid because they do not understand the consequences, regaining control will become even more difficult than it is now."
Olena Skovorodina, Chair of the Commercial Court of Donetsk Region, Member of the Donbas RJRC noted that it is necessary to draft more clearly the purpose of the bill in the preamble and to put therein messages which would be clear and directed to the citizens staying in the occupied territory: "We do not approve of the actions of the so-called government, but we can recognize the actions of people who are forced to do something […] We must right now act and promote Ukraine as a state that understands what people do at the legislative, judicial and other levels."
Anna Mykytenko, project manager of international law firm 'Global Rights Compliance' commented on the bill through the prism of international criminal and humanitarian law and offered the following recommendations for its improvement:
- the need to recognize Ukraine's responsibility to its own population;
- criminal prosecution of international crimes and gross human rights violations;
- more substantiated provisions on institutional reforms;
- greater attention to amnesty;
- special attention to children, victims and witnesses of armed conflict and other vulnerable groups, etc.
The third session of the discussion concerned the pain points of the bill.
Olena Fonova, Donbas RJRC coordinator, proposed to define in the bill the principles of convalidation (recognition) of transactions done in the temporarily occupied territories so that people understand that under certain conditions they can legalize acquired property in the territory of Ukraine and provide a simplified out-of-court convalidation mechanism in drafting further legal acts.
The participants also discussed recognizing documents on secondary and higher education, a prerequisite for labor integration of the population of the temporarily occupied territories. Olha Shapovalova, Doctor Habilitatus, Professor, Head of the Department of Economic Law, V. Dahl East Ukrainian National University, Ministry of Education and Science of Ukraine, Donbas RJRC member proposed to recognize the by the draft law documents on secondary education, as well as to govern higher education documents: “Children are the most vulnerable category during occupation. They are subject to the will of their parents and cannot choose the territory for education until they are 17 years old."
For her part, Anna Adamska-Gallant, International Expert of EU Project Pravo-Justice shared international experience in preparing for an effective criminal investigation: "The most important thing is training prosecutors and investigating judges. They need to understand the structure of international criminal law, how to investigate and gather evidence. A specific category of witnesses - so-called context witnesses and internal witnesses - is also important in order to link high-ranking officials to specific crimes."
Mykola Hovorukha, Deputy Head of the Department for Supervision of Criminal Proceedings in Armed Conflict, Office of the Prosecutor General, spoke about the work of the department established in 2020, such as: procedural guidance as to war crimes, coordination of law enforcement agencies in this field, cooperation with the International Criminal Court and assistance to the Ministry of Justice and the Ministry of Foreign Affairs in international court cases against the Russian Federation.
At the end of the discussion, the participants expressed their willingness to join the finalization of the draft law in the Parliament in order to receive a quality document conforming with the principles of international criminal and humanitarian law and containing the right messages for both citizens of the uncontrolled territory and the international community.
In December 2021 Donbas Regional Justice Reform Council submitted the second set of proposals to the draft law "On the State Policy of the Transition Period" drafted by the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine.
Regional Justice Reform Councils (RJRCs) have been established with support of EU Project "Pravo-Justice" and function in Chernivtsi, Dnipro, Kharkiv, Lviv, Odesa regions and Donbas. To date, Councils members have been actively participating in drafting a bill on mediation, amendments to the Bankruptcy Code, proposals to improve legislation on enforcement proceedings, introducing e-court and discussing the concept of transitional justice.
RJRCs act as permanent working groups to promote bottom-up reforms: bringing region-specific challenges and potential solutions thereof to the level of central government.