45. Draft Article 5(10) stipulates that “any property and assets of the occupying forces and occupation administrations of the Russian Federation, including of the Black Sea Fleet of the Russian Federation, located in the de-occupied territories (including any property and assets created during the temporary occupation) shall become the property of Ukraine.” This provision risks to cause significant practical problems as the restitution of property issue in Albania32 and in Georgia33 demonstrate.
Hier der komplette Fließtext: click, Originalquelle: click
Ist das Provokation? Neiiiin! Die Venice Commission der EU über die Gesetzesvorlage die Selenskyj per Präsidentialdekret vom 24. März 2021 bis zum 25. Jänner 2022 zu gültigem Recht in der Ukraine werden hat lassen, und praktischer Weise zur Umsetzung gleich dem Defense Council seines Landes überantwortet hat. Dh, die über fast ein Jahr in Kraft war und vom ukrainischen Militär umgesetzt werden sollte.
Also, als Fortsetzung von dem hier:
33. While it is to be commended that the drafters of the law thus try to contribute to its clarity and to the efficiency in its application, it is problematic that the definitions are not always congruent with the respective terms used in public international law. This is especially true for the central terms of “transitional period” and “transitional justice”.
34. Transitional period is defined as “the period of time during which the State implements its policy to counter the armed aggression of the Russian Federation against Ukraine, restore territorial integrity of Ukraine within its internationally recognised borders, and ensure the State sovereignty of Ukraine, restore the operations of central and local government authorities in the temporarily occupied territories as well as eliminate the consequences of the Russian aggression against Ukraine, reintegrate the temporarily occupied (de-occupied) territories and their residents, build sustainable peace, and prevent further occupation” (Article 1(1)(1)). The transitional period has two phases – the conflict period, where “measures are taken to reintegrate the temporarily occupied territories and their residents, counter the armed aggression of the Russian Federation against Ukraine, restore territorial integrity of Ukraine, and ensure Ukraine’s State sovereignty in the temporarily occupied territories, build sustainable peace, and prevent further occupation” (Article 1(1)(2)) and the post-conflict period, where measures are taken to eliminate the consequences of these events (Article 1(1)(3)).
35. Transitional justice is defined as “measures specified in this Law and other laws to eliminate the consequences of violations of law, human and civil rights and freedoms caused by the armed aggression of the Russian Federation against Ukraine, including measures to restore the rights and freedoms, compensate for damages, ensure justice and reconciliation, and prevent further occupation” (Article 1(1)(4)).
36. As has been commented by several of the national and international stakeholders during the consultation of the first version of the draft law, these definitions are rather narrowly conceived, and they take a one-sided approach to the transitional period. First, they reduce the thrust of the conflict in Ukraine to its inter-state dimension, i.e., to the involvement of the Russian Federation. Secondly, the measures of transitional justice are designed to overcome the consequences of human rights violations “caused by the armed aggression of the Russian Federation against Ukraine” (Article 1(1)(4)). There is a risk that this provision be interpreted as referring solely to human rights violations committed by certain actors involved in the armed conflict.
Offene Provokation die einen russischen Truppenaufmarsch nach sich gezogen hat?!
I wo.… garnicht. Hören sie doch einfach dem Korrespondenten der Zeit zu!
Wie kann man die Öffenlichkeit eigentlich noch verarschen?
Das hier eine Provokation?
44. Several provisions of Article 5 deal with the validity of legal acts carried out during the conflict period by authorities not recognised by Ukraine, such as the adoption of normative instruments, the acquisition of citizenship, the issuance of identity documents, the confiscation of property, etc. The draft law declares all these legal acts null and void. Article 13 foresees that certain exceptions to this rule may be prescribed by law with respect to registration of civil status acts and for educational documents, but there is no similar exception foreseen for other legal acts and no procedure prescribed for individuals to be able, for instance, to obtain new identity documents replacing those issued by authorities not recognised by Ukraine (Article 5(5)). In the view of the Venice Commission, the proposed legislation is very far-reaching, especially taking into account that the relevant territories have already been outside the control of the Ukrainian authorities since 2014 so that a “clean slate” – as if nothing had happened over the years – is illusory. For the sake of safeguarding the human rights of those living in those territories, a more differentiated approach is recommended.31
I wo… Überhaupt nicht, wo denn?
Das hier eine Provokation? Oder gar Nationalismus?
47. Article 7(1) refers to “individuals and citizens”. It is not quite clear from the text whether all citizens of Ukraine and other individuals shall be treated equally. Most of the rights mentioned in this context (especially life, health, dignity, safe living conditions) do not allow to privilege citizens. It should be made clear that the approach is understood to be inclusive meaning all individuals living in the temporarily occupied territories and not only Ukrainian citizens, as was confirmed by the authors of the draft law. At the same time, there might be frictions with the rights of the internally displaced persons who might want to come back to the region. It would be recommendable to find a formula of how to solve foreseeable conflicts.
I wo, überhaupt nicht, die Ukraine wollte da doch nur gutes Augenmaß walten lassen.
Das hier provokativ?!
48. In this context, attention is also drawn to Article 31(2)(6), whereby within six months after deoccupation it shall be verified whether “nationals of the aggressor State and other foreigners and stateless persons” are staying legally and “follow-up decisions” shall be made pursuant to the Law on the Legal Status of Foreigners and Stateless Persons. This provision appears problematic with regard to Article 8 of the ECHR (right to respect for private life) and the corresponding case-law of the European Court of Human Rights34 and should be reconsidered. Moreover, care needs to be taken to ensure respect of Article 4 of Protocol No. 4 to the ECHR (prohibition of collective expulsions of aliens). The authors of the draft law indicated that no such collective expulsion or repressive actions were intended.
Also collective expulsion of aliens?!
I wo… gleich garnicht, wieso? Weil der ECHR das nicht mag? Na aber die Ukraine, what gives.
Jetzt kommen wir zum lustigen Teil:
B. Section II Certain Aspects of Transitional Justice
50. Section II focuses on several tools of transitional justice. More specifically, it foresees the use of criminal prosecution, lustration, gender justice, the right to truth, in/convalidation of transactions and documents, and State policy for sustainable peacebuilding. When compared with the UN definition of transitional justice, mentioned above, the range of tools seems relatively limited.
51. It is especially surprising that the victims’ right to remedy and reparation is not elaborated upon in any detail either in Section II or in Sections IV-VI. While the introduction of some general provisions in Articles 3 and 7 is already a step ahead as compared to previous versions of the draft law, and while precise regulations on that matter may be developed in separate legislation, at least some basic principles should be included in the draft law itself. In line with the requirements set by the UN standards referred to above,35 it should be made clear that victims of violations of international human rights law and international humanitarian law are guaranteed equal and effective access to justice, adequate, effective, and prompt reparation for any harm suffered and CDL-AD(2021)038 access to relevant information concerning violations and reparation. Reparation should be ensured for any harm occurred in connection with the conflict (not only that caused by the Russian Federation), and the draft law should provide for more details on the extent of the compensation and the way in which it will be determined.
Ey komm, also Ukrainische Kriegsverbrechen braucht man doch nicht zu kompensieren wo kommen wir da hin. Komm Verteidigungsrat der Ukraine - UMSETZEN!
Provokativ? Geh, kein Stück.
Aber das war doch nur ein versehen. Naja, dann im nächsten Artikel:
54. Article 9 gives rise to concern. First, in the absence of the implementing legal act foreseen in Article 9(4), it is difficult to assess the compatibility of the whole system of prosecution with international legal standards. Secondly, it remains unclear why criminal offences committed outside the temporarily occupied territories shall not be subject to prosecution and whether this rule shall apply to all criminal offences, including common crimes, or not. It also remains unclear why the impossibility to discharge certain persons from criminal liability or to amnesty them for crimes listed in Article 9(2) is limited to certain categories of persons. The Venice Commission recalls that in case of crimes under international law or treaty crimes (i.e., crimes whose perpetrators Ukraine has committed to prosecute under international treaties), there is an obligation to prosecute under international law that cannot be suspended unilaterally by a national legal act (such as amnesty law). Thirdly, the differentiated treatment of various categories of perpetrators of crimes is not fully comprehensible, is problematic with respect to the principles of equality before the law and nondiscrimination and will not be conducive to peacebuilding and reconciliation. Such a differentiation is not foreseen in the Minsk agreements either.37 Fourthly, several paragraphs of Article 9 refer to criminal offences committed “in connection with the temporary occupation”. This concept is not defined and lacks legal clarity. Finally, the relationship between Article 9 and the provisions of the Amnesty Law and the Criminal Code is unclear. It is recommended to revise Article 9 to address the aforementioned concerns.
Provokation? I wo - die kennen sich nur nicht aus…
Gut, als nächstes gleich mal ein “Recht auf Wahrheit” umsetzen lassen, nicht?
Halt eins das nur bezüglich einer Konfliktpartei gilt…
63. Article 12 on ensuring the right to truth stipulates that “the State shall promptly inform the public, providing reliable, accurate, and complete information about the causes, evolvement, and consequences of the armed aggression of the Russian Federation against Ukraine, except as otherwise established by the Law of Ukraine ‘On Access to Public Information’.”
64. Although the right to truth is not explicitly enshrined in any human rights instrument, it is now generally recognised as part of customary international law or, alternatively, as a general principle of law.42 According to a comprehensive study produced by the Office of the UN High Commission for Human Rights in 2006, the right applies to “all gross human rights violations and serious breaches of international humanitarian law”.43 The use of the term “all” makes it clear that when implementing the right to truth, attention has to be paid to establishing truth about all violations and not only those committed by certain specific actors, as is however the case with Article 12 of the draft law which is limited to the “armed aggression of the Russian Federation against Ukraine”.
65. The right to truth is victim-oriented, so the primary focus should lie on providing victims with information about “the causes leading to the person’s victimisation; the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law; the progress and results of the investigation; the circumstances and reasons for the perpetration of crimes under international law and gross human rights violations; the circumstances in which violations took place; in the event of death, missing or enforced disappearance, the fate and whereabouts of the victims; and the identity of perpetrators”.44 Here, Article 12 falls short of these standards as it only focusses on the armed aggression of the Russian Federation against Ukraine and not on individual victims.
66. The right to truth also has a societal dimension. “Society has the right to know the truth about past events concerning the perpetration of heinous crimes, as well as the circumstances and the reasons for which aberrant crimes came to be committed, so that such events do not reoccur in the future”.45 The right to truth shall not entail establishing one single narrative about the conflict period. Article 12 is problematic in this respect as it introduces an official narrative. In the view of the Venice Commission, it is crucial that Article 12 be revised in light of the preceding paragraphs.
Und dass man damit kein singuläres Narrative kreieren soll, wurde leider auch nicht im Gesetz festgelegt. Na so ein Pech aber auch.
Provokation.
Geh wo - Provokation?! Welche? Ja wo denn?!
Ich mach dann morgen weiter.
Diese Gesellschaft ist das absolut grotesk und abartigst Allerletzte.
