In early May, the Verkhovna Rada adopted draft law No. 6504, which was supposed to settle the status of local self-government body officers regulatorily.

This is a new and important phase for both decentralisation and civil service reform as a whole. It was very much anticipated on the ground. However, to date, the draft law has been waiting for signature in the Presidential Office beyond the 15-day period established by the Constitution. And even if Volodymyr Zelenskyi had signed the voted draft law on time, the new rules of service in local self-government bodies would come into effect only after the end of martial law — this is provided for in the draft law. We suggest you figure out what they want to change this time and how it will work.

A local self-government officer performs functions related to the work of local self-government bodies and the development of the community, receives a salary from the local budget and is selected for the position through a competition. These functions are established by job duties and deal with the drawing-up of local self-government bodies’ documents, provision of administrative services, management of the community’s property, human resources, etc. In fact, this is a person who is responsible for a certain sector in local self-government bodies (for example, works in the social policy department of a city council).

As of today, the issue of the status of local self-government body officers is regulated by the Law On Service in Local Self-Government Bodies of 2001 and other by-laws related to competitions for filling positions in local self-government bodies, attestation of officials, etc.

Yet this legal framework is not sufficient. At the regulatory level, there are no clear criteria to define the concepts that deal with service in local self-government bodies — among other things, there is no definition of local self-government officer, the concept of position in a local self-government body and the legal status of local self-government officers, etc. are not sufficiently substantiated.

Procedures for payroll and competitive selection are prescribed in a vague manner, too. Because of this, attestations of officials were carried out in a pro forma way and ‘for a tick’. The awarding of bonuses, additional payments, competitive selection took place non-transparently, accommodating the manager’s ‘personal affection’ for individual employees rather than their professional competencies.

No clear and transparent rules of service in local self-government bodies generated chaos and nepotism on the ground, irresponsibility of officials and staff shortages. This sounds especially threatening given the role of local self-government in confronting the enemy now and also in the processes of communities’ recovery in the future. To prevent the situation from worsening, lawmakers proposed a new legal framework.

Draft law No. 6504 On Service in Local Self-Government Bodies was registered in the Verkhovna Rada in early 2022, but due to the full-scale invasion, its consideration got slightly protracted.

International partners positively assessed the initiative to implement just standards for service in local self-government bodies, as this is important for the promotion of the decentralisation reform and professionalisation of local self-government bodies, as well as corresponds to the norms of the European Charter of Local Self-Government (Article 6).

The approval of draft law No. 6504 improves the following procedures: terms and conditions of service and the legal status of officers, particularities of service of elected officials of local self-government, payroll terms and conditions for the executive service staff in local self-government.

When and if the changes become effective, we should receive:

1. A clear statutory definition of the status of a local self-government body officer.

This norm is positive from the perspective of perception of the role of a person who works in local self-government bodies. After all, the average community resident often has a question: who is this officer? On the other hand, lawmakers’ itemisation of the category sends a message to the officers of local self-government bodies regarding their important role in the development of a community. Service in local self-government bodies, like the civil service, is an element of public service, which is governed by uniform principles.

2. Depoliticization of the management system.

Among other things, officers will have no right to demonstrate their political views or take any actions that may prove their involvement in, or special attitude to, a political party. In addition, a person who works in support offices of the council or its executive body will be prohibited from being a member of that council.

Depoliticization of service in local self-government bodies will enhance their authority. The executive bodies of councils will act as bodies that tackle the issues of local importance and of the community, not of a political party.

3. Additional legal protection for officers.

An officer may not be transferred to lower or higher positions without justification and their consent, nor may the essential terms and conditions of service be changed (this applies to job duties, working arrangements, belonging to a certain category, etc.).

These changes will serve as an additional motivation for officers since the terms and conditions of their work will not be determined by individual senior officials in favour of those who are closer to them. In addition, any benefits or promotions will be based on officers’ professional competencies. And in fact, it is officers that will be responsible for their professional growth in local self-government bodies.

4. Optimisation of payroll processes.

Councils in question will set officers’ pay, factoring in local conditions and local budgets possibilities. Reasoned decisions on establishing bonuses and additional payments due to increased workload will be published on the council’s official website.

This will be an additional incentive for local self-government bodies to streamline the service framework and train their employees. Further, the transparency of bonus awarding processes will terminate the so-called individual bonus awarding, where senior officials award bonuses in unreasonably high amounts. Community residents will actually be able to see what community funds are spent on. The minimum pay has been set out for officers. Still, there is no established maximum amount, which could be grounds for abuse by local self-government bodies, but at least this risk will be lower. There is another important nuance here: at the start of the public service reform, one of its main objectives was to maximise salary and minimise top-ups and bonuses within the pay breakdown. However, this was failed at the state level, just as in the case of local self-government bodies, unfortunately.

5. Regulatory settlement of the issue of officers’ professional training and professional development.

Professional training of local self-government officers will be carried on throughout their service and professional development — at least once every three years. An officer individual professional development program is introduced. It will be compiled by the very officer him/herself together with the HR management office.

These norms will minimize formalism that was predominant in observations during attestations and employee professional development.

6. The new position comes into being, i.e., the chief of staff at local self-government bodies, to organise competitive HR selections and generally ensure the creation of proper service conditions.

This position will serve as a safeguarding tool for officers, as in case of violation of their rights or obstruction of work, the officer will notify the chief of staff thereabout, and the latter will respond accordingly. This will also be minimising chaos in service at the level of local self-government bodies, as all processes will be planned from start to finish (competitive HR selection, work planning, training, performance monitoring, etc.).

7. Regulatory settlement of the specifics of the service of elected officials, i.e., those elected in local voting or by council.

The draft law provisions clearly delineate the positions of local self-government officers and elected officials.

For example, after the implementation of the law, community heads as elected officials won’t be in a position to set bonuses for themselves at their liberty because the draft law clearly defines ceilings and also given that the council will make a decision on bonuses with information about it being published on a website.

8. New features of the executive support service.

Previously, Ukrainian legislation did not detail the executive support service. From now on, this will be an additional safeguard for the officers of local self-government bodies because an adviser, consultant, assistant and manager at executive support service will be prohibited from giving instructions to the officers of local self-government.

The adoption of draft law No. 6504 is a long-awaited and important step. Yet, for now, this is only a framework of rules, a concept to be implemented in the non-ideal Ukrainian set-up.

From now on, the future of the civil service reform, as well as that of decentralisation, will also depend on communities — on their desire to overcome internal chaos and sort out processes, keep on reforms and shrug off old habits. Last but not least, the human factor will be important — who will stay on the ground to implement necessary changes once martial law is over, and will the state and local authorities be able to ensure the effective operation of such an essential link of the public service?

The text was prepared within the framework of the project “Civil Society for Ukraine’s Post-war Recovery and EU-Readiness”, which is implemented with the financial support of the European Union.

The current law On the Protection of Consumer Rights was adopted back in 1991.

It is poorly geared to modern realities — online stores became a reality not so long ago, and high-tech products were not so widely used before.

So even now, things that have long been commonplace for us are sort of in the ‘grey zone’ of legislation. Warranty obligations, online trade, manipulation in advertising and lots of other things — they either do not exist for the current law or are prescribed too primitively for the protection of consumer rights.

At the same time, the commitments made by Ukraine to the EU include reforming this area.

Therefore, in order to address these specific tasks and modernise the legislation, draft Law No. 6134, On the Protection of Consumer Rights, was registered two years ago. What does it actually offer to consumers?

One aspect of the current law’s being out of date is that it does not extend to the Internet, where increasingly more people order goods and services. In this regard, among other things, the concepts of marketplace (e-commerce platform) and price aggregator (electronic product comparison service) are introduced.

The goal is to expand consumers’ rights to online stores as well.

Extension of consumer rights to product information. Even in the past, manufacturers had to indicate the company’s location and contact details on the goods, as well as details about the product itself — and the new draft law proposes to extend this rule to online commerce as well.

That is, detailed information about the manufacturer needs to be indicated on the marketplaces. A legal entity’s or private entrepreneur’s place of registration and name must be published in order for the State Service of Ukraine on Food Safety and Consumer Protection to handle complaints in an effective way. Penalties for non-compliance are severe.

The State Service of Ukraine on Food Safety and Consumer Protection gets the right to “request an Internet service provider to restrict access to the website”, in other words, to block the pages of entrepreneurs lacking integrity.

The draft law does not give an unequivocal answer as to whether social media can be marketplaces. It is on those platforms that large volumes of products and services are distributed. Taking into account all of the above, the State Service of Ukraine on Food Safety and Consumer Protection should significantly beef up its staff and funding in order to control all online stores. After all, controlling such large data sets is not a piece of cake.

One of the most significant changes is the introduction of mandatory warranty periods for goods. Mandatory are: two years for new goods, including digital ones, one year for used goods and 10 years for real estate.

Conditions of warranty have also changed: now, upon presentation of a receipt, the product must either be repaired within 14 days or a similar one must be provided.

At that, the warranty also starts to apply to the new spare part, and also for two years. So, after a similar breakdown, the part may be replaced again, it will be necessary to just adhere to the period of two years from the previous repair.

These terms are the minimum, but the seller may provide an additional commercial guarantee, which must also be observed under law. And an interesting detail is that if the advertisement offers more favourable warranty terms than the contract, the warranty must be fulfilled in line with the very conditions specified in the advertisement.

The consumer is deprived of the right to terminate the contract of sale in case the identified shortcoming “is minor” and “can be easily eliminated”.

The devil is in the details: there are no separate standards for a “minor” shortcoming, which makes the law too subjective in its essence. Yes, the minor nature of the shortcoming is allegedly supposed to be proven by the seller…

But what does that mean? Even the National Agency for the Prevention of Corruption (NAPC) stated in its opinion on the draft law: “The application of judgemental concepts in conjunction with a non-identified proof mechanism (…) deprives the consumer of the right to demand termination of the contract and creates additional corruption risks.”

Manipulations with the terms “discount” and “sale” is now illegal.

In order to use these terms and those similar in their essence, certain conditions need to be met, such as: the discount can only last for a limited amount of time (the item cannot be “discounted” permanently), and the price must be less than the lowest price in the last 30 days.

Similar rules apply to “sales”, with the only difference being that the sale itself must take place — by selling all products or their separate group.

So, Black Friday will no longer be an opportunity for sellers to stick a “discount” sticker on all items with no real price change, and “sales” that last forever will die out.

Currently, every seller has to maintain an “exchange pool” of goods. Not at will — during a warranty repair, the seller is obliged by law to provide a similar product at the buyer’s request.

This rule is not very robust because maintaining that pool and the premises for it is burdensome for the entrepreneur, and a large portion of the buyers are not aware of this norm — so the money for the pool is wasted. Currently, the norm on the exchange pool is in effect, so at the next warranty repair, do request a similar product.

In contrast, the new draft law provides for the abolition of the mandatory exchange pool by cancelling the non-robust norm.

The consumers’ right is enshrined to freely choose a payment method, including a bank card. So now, at the request of the buyer, entrepreneurs must accept a bank card for goods and services payments with no right to demand an increased fee for the use of this form of payment.

All these changes were proposed before the first reading and are still relevant now. However, further down the road, the story with the draft law becomes more complicated.

Prior to the second reading, the parliamentary committee adopted a large number of amendments, which received a lot of criticism from all sides: from the business community, public organisations, partners and government bodies.

The NAPC, the European Business Association, the American Chamber of Commerce in Ukraine and other organisations categorically opposed the new version of the document. Moreover, it was the new amendments that caused such sharp criticism.

There were several main changes: the introduction of the Union of Public Associations and the Committee for Out-of-Court Dispute Resolution, the appointment of a person responsible for the protection of consumer rights in every office and commercial building, and the implementation of the state register “E-buyer”. As of writing this article, the story is evolving — on 2 May, a new version of the document was submitted for the second reading, and almost all of the above-mentioned amendments were cancelled in it. Yet the next day, the draft law was completely dropped from the parliament’s agenda.

Civil society’s pressure and constructive criticism forced lawmakers to revise the draft law and improve it. But there is one “but”. One of the high-profile amendments was still kept in the current wording, namely the amendment on the state register “E-buyer”. If the draft law is adopted, this novelty will primarily affect entrepreneurs.

“E-buyer” must contain information on sellers that sell goods and services via the Internet. Within 10 days after the start of their activity, entrepreneurs are obliged to feed the register with extensive information about it (location of a legal entity or residence of a private entrepreneur, contact phone number, web address, e-mail, etc.).

Upon registration, the entrepreneur will receive the status of “verified seller”, which is indicated in the online store. The register “E-buyer” will contain companies’ rankings and also become a place to submit and handle complaints on violations of consumer rights.

In general, draft law No. 6134 proposes introducing a register of all companies providing goods and services via the Internet. Where the entrepreneur fails to feed the data, the State Service of Ukraine on Food Safety and Consumer Protection can block both sellers’ pages and entire marketplaces hosting them.

According to the amendment on the register “E-buyer”, the marketplaces must control sellers’ registration in “E-buyer”. What’s more: the very marketplaces must monitor the reliability of the information provided, and it is they that must block sellers who use the “verified seller” lacking integrity.

And if social media are also to be considered marketplaces — well, the State Service of Ukraine on Food Safety and Consumer Protection will get far more responsibilities and opportunities to control a large part of the Internet.

However, we note that any amendments can still be cancelled and changed after a dialogue between society and the authorities, so the current version of the draft law should not be considered final.

The new law offers many novelties: Internet trade is removed from the ‘grey zone’, mandatory warranty obligations are introduced, manipulations in advertising will become less common and, in general, consumer rights are significantly expanded compared to the current outdated law.

Here, controversial amendments have been repealed, and the dialogue between society and lawmakers will hopefully continue and will create the best version of the law.

Draft law No. 6134 is an important step towards approximating Ukrainian laws to EU legislation, so it must be approached responsibly by both society and MPs.

The text was prepared within the framework of the project “Civil Society for Ukraine’s Post-war Recovery and EU-Readiness”, which is implemented with the financial support of the European Union.

Does Ukraine monitor compliance with competition policy? And does it promote fair competition?

The Antimonopoly Committee of Ukraine (AMCU) operates in this field, but its work is often criticized, and thus approaches need to be changed.

Among the AMCU’s major challenges indicated by international experts are insufficient powers, a lack of ample funding, and political dependence — and all of those are in place despite the extraordinary importance of this body for the entire Ukrainian economy.

The Antimonopoly Committee was urged to be reformed since Viktor Yushchenko’s presidency, but it is now that this case has prospects to come to a conclusion. Today, this reform is gaining special relevance, as it is one of the key demands of the IMF to the Ukrainian authorities.

And at the same time, the reform is also necessary for the process of approximation of Ukrainian legislation to EU law.

For years, statements about the importance of in-depth reforms have seemingly been heard everywhere.

Among other things, this issue was highlighted by the EU Association Agreement and, subsequently, the European Union candidacy agenda. In 2008 and 2016, the Organization for Economic Cooperation and Development (OECD) published reports with recommendations on the development of antimonopoly law in Ukraine, and until recently, there had been no significant changes in the offing. The current phase of the reform began in 2020 after an IMF Memorandum had been made. To comply with the obligations thereunder, draft law No. 2730 was registered. It was never voted on but paved the way for future changes.

A year later, at the subsequent update of the IMF Memorandum, Ukraine once again undertook to reform the Antimonopoly Committee. For this purpose, an updated draft law No. 5431 was developed, and we propose it for review.

Draft law No. 5431 received mixed comments from the expert community.

Among others, the National Agency for the Prevention of Corruption (NACP) stated that “the draft law contains corruption-inducing factors and needs to be refined, accommodating the recommendations provided”. However, as early as three months after its registration, in July 2021, draft law No. 5431 was passed in principle by the votes of the parliamentary factions of Servant of the People, Trust and For the Future.

In November of the same year, a tranche was received from the IMF, and this law draft was temporarily forgotten. As of February 2022, the draft law received 1,621 amendments, but on 24 February 2022, the agenda changed dramatically.

The next time the draft law was back in the spotlight was in November 2022. Due to the large number of amendments, it had to be considered with many hours of discussion of these amendments, or by consensus (when the majority of parliamentary factions and groups agree to the adoption of the draft law), or through a special procedure (when the consideration of amendments is significantly reduced).

The Verkhovna Rada of Ukraine tries to avoid a long discussion of amendments under martial law, especially in the midst of missile terror. Yet, despite this, there was no unanimity among MPs. The opposition argued that the Antimonopoly Committee would be given new powers and would be “abusing companies and harassing businesses”.

Therefore, the Parliament can expect heated debates to address the AMCU and its future.

Yet the members of the parliamentary minority were not the only ones to dislike the draft law.

The Ukrainian Bar Association noted that “the draft law needs substantial refinement and cannot be adopted in this version.”

On 24 March 2023, the President and the Prime Minister signed and sent the Letter of Intent and the Memorandum of Economic and Financial Policies to the IMF, in which they again promised to reform the AMCU. This time, the obligations were already more specific, with deadlines having been established for reforms.

In September of the running year, the Ukrainian party undertook to adopt changes and strengthen the AMCU’s legal framework so that it could effectively unleash its capabilities. And it was promised that as early as the end of December, the Parliament would have received a new draft law which should ensure the AMCU’s institutional independence and improve the procedures for appointing key officials.

Given the fact that Ukraine critically needs funds, including those of the IMF (which is an informal benchmark for other Western donors to the Ukrainian budget), the AMCU reform process has a real chance to take off. Draft law No. 5431 may (or may not) play an important role in that.

So, the question comes: how will law draft No. 5431 help the AMCU “effectively implement its capabilities to promote market competition and combat monopolistic practices”?

The draft law introduces new tools for joint and subsidiary liability.

At present, it is impossible to collect a fine when the company has been brought to bankruptcy or in case of insufficient assets. That is, a group of companies, which includes the offender, may avoid the fine by bankrupting that company.

Under the new draft law, however, if the offending company is part of a group of companies, the shortfall will be charged to the group.

Another novelty is that if several companies have committed the offence from the same group, or if they can benefit from therefrom, then the fine becomes joint and several and all the aforementioned companies must pay it.

The procedure for release from liability, or the so-called Leniency, gets improved.

Its essence is that a participant in anti-competitive concerted actions can voluntarily approach the AMCU and cooperate with the body, providing it with important evidence and information in the case. In return, the participant receives a complete exemption from liability, although s/he must compensate the victims for the damage caused.

According to the current legislation, only the first applicant receives an exemption. As a result, there is a very high risk for others in applying to the body — they do not gain anything by applying, and enough disadvantages are rising therefrom.

Law draft No. 5431 proposes to extend the procedure to subsequent applicants, with a gradual reduction of the fine for each subsequent one of them.

The authors of the draft law deem this novelty to be among the most important ones. It is thanks to this tool that positive results can be achieved, such as a reduction in the burden on the AMCU and its greater efficiency in investigating cases. The tool of exemption from liability is widespread across many countries, including the USA and EU member states. Therefore, if the AMCU law is approved, the investigation won’t require a long and challenging time to gather evidence, as it is highly probable that the body itself will get everything it needs.

Also, the procedure for settlement in cases, or Settlement, is introduced.

The essence is quite simple: a 15% reduction in the fine in exchange for a guilty plea. The accused person must submit a relevant statement before announcing preliminary findings in the case.

The right may not be exercised when the person has already been held liable for the same offence within the last five years.

The accused and the AMCU enter into an agreement, which must incorporate several terms and conditions (admission of guilt, provision of evidence, cessation of violations and reduction of the fine), but the parties can also agree on additional T&Cs. If no agreement has been reached during negotiations, the explanations already provided by the accused party may not be considered an admission of guilt and be evidence of the commission of an offence.

Therefore, it always makes sense for the accused to try and make avail of such a right. This novelty and the possibility of exemption from liability would reduce the burden on the AMCU and enable more detailed and efficient operations in other areas.

One of the critical aspects of strengthening AMCU’s independence is the improvement of working arrangements.

Thanks to the changes, the AMCU could attract the best anti-trust specialists, and increasing the official salary would eliminate a large part of the corruption risks.

These very changes have been carried out in recent years: from 2020 to 2022, the average salary of an AMCU employee increased by more than 50% (from 15,000 to 23,000 hryvnias). Indeed, the situation would be changed by draft law No. 5431, according to which the salary of a specialist would advance up to 64,416 hryvnias.

In general, recent years have seen a very positive evolution for the entire AMCU. The contrast is especially clear compared to previous years: as noted in the OECD report of 2016, “AMCU is one of the most poorly funded public institutions in Ukraine. On average, employees earn less than $200 a month. The number of staff is insufficient to fulfil the AMCU’s tasks, the volume of which is constantly increasing.”

Notably, the Ministry of Finance did not endorse the draft law in the first reading, as it was submitted in violation of the requirements for the calculated impact of a draft law on the state budget.

Moreover, by the second reading, the draft law had changed, albeit unexpectedly: official salaries doubled for almost all positions, and for the chairman and state commissioners, as a matter of fact, they tripled. The source of such expenses was not provided, so it is unclear how they can be covered.

Therefore, implementing all these provisions will be possible no earlier than next year when the new budget is drawn up.

One of the OECD’s recommendations was to enhance the powers of the Antimonopoly Committee.

Draft law No. 5431 offers exactly this — AMCU gets more opportunities in the area of conducting inspections and obtaining confidential information.

The authors of the draft law consider this a positive thing because it gives more opportunities to combat offences, but minority MPs criticize these very provisions as excessive.

The NAPC, together with the Main Legal Department at the Parliament, also draw attention to the impropriety of such powers: a court decision is necessary to violate the right to the inviolability of one’s home or the right to privacy of correspondence and telephone conversations, but the want is to grant this right to the AMCU and ignore that.

Further, the new draft law allows the AMCU to independently choose cases for proceedings and set priorities for its own activities. International partners repeatedly recommended such a change.

At the same time, the NAPC believes that the arrangements proposed by the draft law do not hold clear and transparent rules, which can be a source of corruption risks.

According to the current law On the Antimonopoly Committee of Ukraine, there is a norm for compensating double damages caused to victims.

That is, the perpetrator must return twice the amount earned using dishonest means. This system is a global norm, and some countries (for example, the USA) practice triple damages.

Law draft No. 5431 introduces single damages, and this change may indirectly have a negative impact on the effectiveness of the entire legislation.

The injured party, even if winning in court, will only get back its losses, and taking into account the costs of representation and court proceedings, filing a lawsuit would make hardly any sense.

It looks like monopolists and criminals are being given a free hand because the victims would have increasingly less reason to fight for justice. Yes, single damages are practised in the EU, but its system is more complex, allowing for damages to the victim for the costs of legal representation and a failure penalty.

The AMCU’s independence remains in question.

Currently, the fate of the AMCU is almost entirely in the hands of the President, and draft law No. 5431 does not change this situation at all.

At that, the OECD and the IMF drew attention to the need to ensure institutional independence. According to the Memorandum, Ukraine commits to introduce the second part of the reform to the Verkhovna Rada by the end of the year, which should ensure the AMCU’s independence. However, this law draft may still fail or get stuck in the Parliament’s chambers for years.

Another challenge is that the current procedure for the appointment of the AMCU chairperson does not comply with the Constitution. Under the Basic Law, the AMCU’s chairperson is appointed by the Parliament at the request of the Prime Minister. However, according to the current law On the Antimonopoly Committee of Ukraine, the chairperson is appointed and dismissed by the President, and this law is followed in practice.

This issue is the basis of the true independence of the Antimonopoly Committee.

Draft law No. 5431 proposes only strengthening the dependent body, which may lead to the selective application of norms (rewarding friends and punishing enemies). These are the challenges outlined by expert bodies and what minority MPs feared.

The reform of the Antimonopoly Committee is long overdue. The first recommendations were made 15 years ago, and only now do they have a chance to be translated into reality.

The imperfection of crime-fighting tools, insufficient powers and insufficient funding — all of this is rectified by No. 5431.

The draft law provides the AMCU with new tools for more effective opposition to monopolies: joint liability, Leniency, and Settlement should help impose fair penalties and spend fewer resources. Higher salaries should increase AMCU’s institutional capacity.

On the other hand, not everything is so simple with enhanced powers — they can be used both to fight monopolies and for less-worthy purposes. Single damages also have two perspectives they are looked at.

But perhaps the most important thing is what is missing in the draft law — ensuring the political independence of the AMCU. And without it, even the best tools may be used in a sub-optimal way.

Currently, it was the IMF that raised the need to adopt draft law No. 5431.

Yet the reform of antimonopoly legislation is important not only in conjunction with receiving a new tranche — the Ukrainian economy needs an effective fight against monopolies to create a healthy market environment and economic growth.

The text was prepared with the financial support of Sweden.

For a long time, the agenda of firearms legalisation in Ukraine could not move off dead centre. A pile of discussions and zero actual actions — this is how the situation that existed in the Parliament for 20+ years can be characterised.

Another wave of heated discussions broke out in 2021 before the looming threat of a full-scale invasion of the Russian Federation. The draft law on the right to civilian firearms was adopted in principle on 23 February 2022. But the matter is still not moving forward.

Ukraine is still almost the only country in Europe that does not have a dedicated arms law. How the right to own firearms is regulated in other countries — we wrote in our piece.

What is happening in the Ukrainian legislative framework now, and to what extent are the Ukrainian authorities ready to establish a clear legal regulation for the civilian firearms agenda? We will tell you further.

Before the full-scale invasion, most Ukrainians did not support free gun ownership. This is evidenced by polls conducted at different points in time. For example, according to a survey by the Ilko Kucheriv Democratic Initiatives Foundation, in 2015, about 70% of citizens did not support the liberalisation of arms circulation, and only 11% did. This trend has been practically unchanged for a long time: as a 2021 survey by the Research & Branding Group also proved, 73% of Ukrainians did not believe that arms would help improve their personal security.

However, the full-scale invasion changed Ukrainians’ attitude to arms. In May 2022, the Sociological Group “Rating” published survey findings showing that during the war, the number of citizens who support giving civilians the right to own firearms doubled. The initiative to legalise arms is supported by 58% of survey participants, 39% do not support it. Thus, for the first time in the history of research on this agenda, the number of supporters of the idea exceeded that of opponents (in 2018-2021, about a quarter supported this idea, and more than 70% did not).

The survey conducted in the Diia mobile app in May 2022 regarding the version of gun ownership considered by Ukrainians most appropriate is not representative. Yet, for now, it may become the main incentive for the Ministry of Internal Affairs in communicating and advocating for a future regulatory settlement. The survey findings proved that more than half of the respondents (58.75%) chose the chance of owning and carrying arms for personal protection, and 22% spoke against holding them.

At the same time, it should be emphasised that the polls conducted during the war may have a number of limitations, and after the end of its active phase, it can be cautiously forecasted that a part of the respondents will return to the opinion recorded years earlier.

Although there is no clear legal regulation of arms in Ukraine, Ukrainians do possess them.

The Ministry of Internal Affairs’ data indicates that the total number of registered arms in Ukraine before the full-scale invasion of Russia in 2022 was 1.2 million units. At the same time, according to the most modest estimates, there are more than a million units of unregistered arms.

The authors of the study on illegal arms flow in Ukraine, tailored for the Small Arms Survey in 2017, came up with the figure of 2-3 million units of illegal arms. In 2018, the report referred to a total of 4.4 million units of arms, 3.6 million of which are unregistered.

Ukraine holds top positions among European countries in the ratio of illegal arms to legally registered ones. Small Arms Survey analysts indicate a figure of 9.9 civilian firearms per 100 people for 2018. The scale of the problem has grown significantly, should the evolution be considered: in 2007, this indicator stood at 6.6 arms per 100 people.

In addition, given the beginning of a full-scale war with Russia, the number of arms in the hands of Ukrainians only increased. Several factors contributed to that:

1. Shortly before the war and in the first days of the Russian invasion, the demand for the purchase of firearms increased significantly;
2. Only the publicly reported issue of arms by the Ministry of Internal Affairs and the Ministry of Defence for Territorial Defence amounted to 25 thousand units;
3. Under such conditions, controlling the flow of arms has become more complex, and therefore the entry of arms into the black markets should not be ruled out.

Although such a significant number of firearms are in civilian circulation, no law still regulates this field in Ukraine. And this directly contradicts the requirements set forth by the Constitution. In particular, Article 92 of the Basic Law clearly establishes that the legal regime of ownership must be regulated exclusively by the laws of Ukraine. Non-compliance with this norm can be justified only in a transitional period when the Parliament is working on developing a dedicated law. However, the process took a long time for Ukraine because, in fact, this provision of the Constitution has not been enforced for more than 25 years. Thus, adopting the core law should become one of the priority areas for reforming the arms legislation.

Currently, the right to own arms in Ukraine is regulated only at the level of by-laws. Order of the Ministry of Internal Affairs of Ukraine No. 622 of 21 August 1998 remains the main act determining conditions for the acquisition, storage, registration, protection, carrying, transportation and use of arms.

At the same time, the need to improve legal regulation and make the legislation aligned with modern challenges has been in place since the first years of independence, when this dealt with effective control over the significant amount of arms that remained following the collapse of the Soviet Union. Importantly, key stakeholders agree that the existing legislation is piecemeal, contains inaccuracies and does not correspond to European best practices.

The inability to reach a compromise was the main obstacle explaining the absence of a dedicated law. So, only in the period from 1998 to 2020 20 draft laws on arms were submitted to the Parliament. Different approaches and differences in interpretation trigger the debate that has been actively ongoing in Ukraine over recent years.

Only draft law No. 5708, On the Right to Civilian Firearms, dated 25 June 2021, was adopted in principle on the eve of a full-scale invasion. According to the explanatory note’s text, the draft law’s objective is to “strengthen compliance with the regime of legality in determining the legal regime of gun ownership”. So, this draft seeks to regulate the following:

• determination of conditions and procedures for obtaining documents on ownership of civilian firearms;
• classification of civilian firearms;
• development of a procedure for creating and maintaining the Unified State Register of Civilian Firearms;
• regulation of the procedure for obtaining the right to civilian firearms and ammunition, taking into account statutory limitations;
• definition of the rights and obligations of owners of civilian firearms;
• prohibition of the civilian population to use certain types of firearms, etc.

The draft law stipulates that the Ministry of Internal Affairs of Ukraine, which already maintains those records, will be designated as the Unified State Register of Civilian Arms holder. Although the alternative version (draft law No. 5708-1) suggested that this register should be under the jurisdiction of the Ministry of Justice, this body refused to be its holder and proposed to leave the register under the jurisdiction of the Ministry of Internal Affairs of Ukraine. However, this provision of the draft law and the stance of the Ministry of Justice contribute to the “monopolisation” of influence tools in the hands of the Ministry of Internal Affairs. So, to avoid risks, it is worth dividing the powers in regulating arms circulation between different state bodies.

Although draft law No. 5708 currently has the best chance of being adopted as a whole, there are other shortcomings therein. For instance, the Main Scientific and Expert Department at the Parliament and the Parliamentary Committee on Law Enforcement expressed several comments regarding individual provisions of the draft:

• The Main Scientific and Expert Department notes that the draft law does not fully align with the prescriptions of international law, namely, with the provisions of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, which supplements the United Nations Convention of 31 May 2001, accessed by Ukraine in 2013. Therefore, the terminology of the draft law and the regulations on the procedure for marking firearms and international cooperation need to be refined.
• The Parliamentary Committee also proposes to harmonise the draft law provisions on the principles of civilian firearms use with those of Directive (EU) 2021/555 of the European Parliament and of the Council of 24 March 2021 on control of the acquisition and possession of weapons.
• The Main Scientific and Expert Department and the Parliamentary Committee jointly emphasise that the draft law provisions on the classification of arms and permits to arms, establishing requirements for civilian firearms owners, as well as substantiating reasons for the ban on civilian circulation of smooth-bore short-barrelled firearms, require coordination.

However, in general, the adoption of draft law No. 5708 is supported by stakeholders given the urgent need to settle the special legal regime of civilian firearms and ammunition circulation “to guarantee the safety of society, the rights and freedoms of citizens”.

Further, with the armed aggression being already underway, the Ministry of Internal Affairs developed and approved the Procedure for Issuing Arms to Civilians who Participate in Repelling the Russian Aggression. This procedure applies exclusively to the temporary issue of arms (for the period of martial law) and their use with a clearly defined purpose, which is resistance to the aggressor.

Thus, after long public discussions, the adoption of the law on the circulation of firearms in Ukraine is an urgent requirement of today. The Ukrainian legal framework is still not ready for the full implementation of this provision, as most norms of the current legislation are outdated. Therefore, the adoption of the arms law, on the one hand, will ensure the liberalisation of the circulation of civilian firearms in Ukraine, and on the other, it will strengthen public safety by establishing responsibility for their illegal use. At the same time, further arms regulation in Ukraine should be a meticulously planned process where clear policy goals are in place, specific instruments are chosen, and activities are coordinated with other security programs.

The full-scale invasion of the Russian Federation has greatly invigorated the debate about granting civilians the right to own firearms freely. Such trends are quite understandable given the need for self-defence, which became especially acute during the war. At the same time, the issue of arms legalisation is an “eternal” topic for Ukrainian society and has been discussed since the Declaration of Independence. However, until now, the problem remains unsolved. Despite the chosen pro-European vector of development, currently, Ukraine remains almost the only country in Europe that still does not have a dedicated arms law. At the same time, avoiding legal regulation creates potential threats of a higher number of illegal arms in the population. How firearms are regulated in other countries and whether there is only one right approach – let’s find it out.

World practice shows that regulating the circulation and ownership of firearms among the civilian population in different states depends on historical conditions, cultural traditions and the legal system. So, countries policies on arms are sometimes drastically different.

In general, two key trends in establishing control over the use of weapons by the civilian population coexist in international practice.

The first of them gravitate towards enhanced legislative regulation of arms possession and use conditions. This national policy is a continuation of the UN position expressed at the Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects in 2001 when member states of the organisation signed a binding plan to combat small arms. The position of the UN is as follows: the illegal manufacturing and circulation of arms, their excessive accumulation and uncontrolled distribution undermines human security and development. Therefore, the UN has called on states to effectively regulate “civilian” ownership and use of firearms, as this will help curb their illegal trafficking.

At the national level, this trend is associated with the following factors:

• Many governments see a link between gun violence and the uncontrolled or poorly controlled trade in and possession of small arms;
• Firearms in the possession of civilians are often subject to illegal trade and misuse through theft, careless storage or illegal sale.

Within this approach, responsibility for all violations committed by private individuals using firearms rests with the state since it is the national government that is believed to have failed to establish reasonable regulation of private ownership of civilian firearms and also to be unable to protect the population from domestic violence and organised crime.

The second trend is manifested in the attempt to find a reasonable balance between introducing restrictions on the possession of arms and the right to their legal use by civilians. The main goal of governments is to prevent the misuse of arms and improve public safety. However, within this approach, there are also differing positions regarding what restrictions should be applied. For instance, some countries tend to impose strict controls on firearms use, while others use more liberal legislation. Yet no state in the world allows unlimited possession and use of weapons by civilians.

So, to find out the specifics of approaches to regulating the use and circulation of firearms in the civilian population, let’s turn to the practice of individual countries.

Proponents of gun legalisation often appeal to the legal tradition of the United States of America, where as early as in 1791, the Second Amendment to the Constitution was adopted and legalised citizens’ right to keep and bear firearms freely. Still, at the time of the introduction of these constitutional changes, a certain culture of handling small arms already existed in the country. Additionally, the nationwide right of Americans to keep arms at home for self-defence purposes was enshrined in the US Supreme Court rulings of 2008 and 2010. The last high-profile decision of the Supreme Court, handed down in the summer of 2022, also extended the right to carry arms outside one’s home.

However, the right to arms is not absolute in the US — the law prohibits some populations from carrying them (examples are the mentally ill, persons guilty of domestic violence using weapons, etc.). In addition, the country has introduced a number of restrictions on the types of small arms that can be used by the public, as well as bans on carrying guns in certain places, such as government buildings or schools.

However, gun ownership in the United States is still controversial, as the US leads both in the number of suicides and that of gun crimes. Further, this trend has a direct correlation with easy access to firearms for many Americans.

Between the mid-1990s and the early 2000s, the state faced a significant problem with firearms smuggling due to military conflicts in the region. However, since 2013, when Croatia became a full member of the European Union, the national policy has been regeared to reduce the circulation of illegal arms significantly. Particularly, in 2007, the Croatian government permanently confiscated arms. The trend was also carried on with the 2018 Law on Arms.

The country has successfully implemented an “amnesty program” aimed at combating the high rates of illegal possession of firearms in the civilian population. The primary purpose of this program is to persuade citizens to drop off any illegally held firearms, and reporting them to the police. The experience of implementing similar programs is also possessed by Estonia and Finland.

For a long time, a large number of illegal arms, which remained from the time of the Second World War, could be found within the country. However, according to the latest estimates, the total number of illegal firearms in Estonia is small. Among other things, this is due to the adoption of arms laws in 1991 and 2001. Estonia’s legislation was almost the first in the post-Soviet space to allow civilians to have short-barrelled firearms for self-defence purposes. Unlike most European countries, Estonians can also own semi-automatic arms. But fully automatic ones are reserved exclusively for Kaitseliit, the Estonian Defence League, which is in fact the equivalent of the Ukrainian Territorial Defence.

Nevertheless, the state provides for preventive measures that guarantee the safety of the civilian population when handling arms — requirements for their storage were established, strict skills tests were introduced, and a mandatory weapons register is in place.

At the same time, after joining the European Union in 2004, Estonia enhanced some of the rules for the handling of arms, following EU directives. In particular, this concerns the provisions of the Firearms Directive, which has also been revised several times by the European Commission in order to beef up the fight against the illegal circulation of firearms. This policy was based on the need to apply a more coordinated and coherent approach after the terrorist attacks of 2015. In general, Estonian legislation can be characterised as quite liberal regarding the rules of private gun ownership. This approach contrasts with most other post-Soviet countries, which remain quite restrictive in arms regulation.

The right to own weapons in this state was restored after the collapse of the USSR. In addition, in the summer of 2021, the Czech Parliament adopted a revolutionary decision, thereby approving an amendment to the Constitution allowing self-defence using weapons. This constitutional provision supplemented the Charter of Fundamental Rights and Freedoms of the Czech Republic with the provision that “the right to defend one’s life or the life of another person, even with the help of a weapon, is guaranteed under the conditions established by law.”

The current arms legislation of the Czech Republic is quite liberal. In particular, this country allows buying arms for self-defence purposes, and a loaded weapon may be carried concealed. To that end, it is necessary to obtain a special permit, which is granted after passing an appropriate inspection. This permit is only valid for ten years, and the owner of the weapon is required to undergo a health check every five years to confirm the legality of the reasons for ownership. In addition, unlike many European countries, it is legally allowable to keep a loaded weapon at home if the owner has the appropriate licence.

At the same time, the very fact of the right to have a weapon for self-defence purposes is not identical to the unlimited possibility of its use. A number of restrictions are in effect in the state, so the use of weapons is allowed only in case of extreme necessity.

Swiss legislation has allowed citizens to carry weapons as early as 1997. This country is considered one of the most armed states in Europe and globally. At the same time, Switzerland has a fairly high level of gun culture, as the ownership and use of firearms are closely related to the traditions of state-building and the protection of democracy. Hence any person may openly carry a weapon if there is an appropriate permit for this. The permit is valid for five years. Still, if the Swiss wish to obtain a permit for concealed carry, they should additionally undergo a background check and an arms inspection by the police and also substantiate the reasons for that need.

In response to the European Union’s adoption of firearms directives, the Swiss authorities had to enhance national legislation slightly. The state’s population also endorsed this initiative to introduce stricter arms bans in the 2019 referendum. However, in general, the Swiss arms policy remains fairly liberal.

Thus, international experience proves that there is no uniform approach to the development of arms policy worldwide. At the same time, the trends irrevocably point to one thing — proper legal regulation is a must-have for the effective implementation of a state firearms legalisation strategy. So, the adoption of the relevant law in Ukraine would provide for a significantly lower number of cases of illegal handling of arms and a higher overall level of public safety. Yet the development of a dedicated law must be approached in a balanced manner to ensure the maximum quality of legal regulation and avoid potential risks.

This paper was prepared as part of the project “Parliament and Accountability of the Security Sector in Ukraine” (PASS Ukraine), which the Agency implements jointly with the Parliamentary Centre (Canada), in cooperation with the Verkhovna Rada of Ukraine, and with the support of Global Affairs Canada within the framework of the Peace and Stabilization Operations Program (PSOPs). This was a collaborative effort involving members of the Agency for Legislative Initiatives and the Parliamentary Centre’s teams.A special acknowledgment goes to Rick Stewart, Legislative Impact Assessment Expert, for his continuous support and cooperation on this Handbook.

The purpose behind creating the handbook is to share the experience and knowledge acquired by the staff of these Committees more broadly, so that staff of other Rada committees and the structural units that examine draft laws may also gain a better understanding and ability to prepare good quality analysis of legislative proposals.

The Handbook is structured into four main parts, accompanied by a contextual prologue and epilogue, as well as related appendices.

PROLOGUE – provides a brief overview of the OECD’s best-practice Principles that should guide the tools, practices and institutional arrangements that help support a robust law-making system.

PART 1 – “Nature and Value of Legislative Impact Analysis” – describes the concept of impact assessment in legislative and regulatory processes, the importance of impact assessment of draft laws for the legislative process, and international experience of using impact assessment in legislative and regulatory processes.

PART 2 – “Legislative Approval Process, Role of Impact Assessments” – provides a brief overview of the norms of the legislative process in Canada and Ukraine, respectively, the essence and role of accompanying documents, and expert-analytical support of draft laws by the structural divisions of the Verkhovna Rada of Ukraine.

PART 3 – “Legislative Impact Assessment Methodology” – describes Canadian and Ukrainian practices in developing legislative impact assessment methodology, detailing the assessment stages and structural elements for its implementation. Taking into account the experience with preparing and using legislative impact assessments, brief considerations on ensuring efficiency in the assessment process are also presented.

PART 4 – “Gender-Based Analysis – GBA+” – allows readers to familiarize themselves with the essence and role of gender analysis as an analytical process that assesses the impact of draft laws on different groups of men and women, boys and girls.

EPILOGUE – provides a few observations about challenges in the current legislative system of Ukraine that hinder the ability for effective impact assessment, in order to help raise awareness of the consequences they have for effective decision-making.

APPENDICES – this section provides more detailed information ion the methodology of legislative impact assessment (tailored to both the Canadian and Ukrainian contexts), a list of valuable references to sources regarding impact assessment in legislative and regulatory processes, and examples of legislative impact assessment carried out by staff supporting two Verkhovna Rada of Ukraine committees: the Committee on Law Enforcement and the Committee on Ukraine’s Integration into the European Union.

It is useful to note that the analysis conducted by the Committee on Law Enforcement to the Law “On the Right to Civilian Firearms” was prepared earlier than the legislative impact assessment prepared by the Committee on Integration of Ukraine into the EU to the Law “On Amendments to the Criminal Procedure Code of Ukraine to Improve Activities of “joint investigative groups”. Accordingly, the evaluation methodology used by the respective committees is somewhat different in structure because over the course of the training and development project, Committee staff adapted and changed the way the methodology is applied to better reflect the Ukrainian context and provide more effective support to Ukrainian decision-makers.

Director of the Analytical Department of the Agency for Legislative Initiatives Oleksandr Zaslavskyy joined the working group on the draft law “On Local Referendum”.

“The Constitution of Ukraine requires the adoption of a law on local referendum. For 9 years now, the citizens of Ukraine have not been able to exercise their constitutional right to express their opinion through local referendums, as since 2012, local referendums have not been regulated by law. Society and local governments have a demand for this instrument of public participation because the solution to some issues requires local referendums”, – Oleksander Zaslavskyy says about the importance of passing the draft law.

According to the director of the Analytical Department of ALI, it is essential to ensure a balance that would, on the one hand, guarantee citizens the realization of their legal rights, and on the other – minimize the risks faced by Ukraine in the struggle for territorial integrity.

Public discussions of the bill are currently underway. Oleksander Zaslavskyy emphasizes that this approach is correct. This important draft law for Ukrainian society should be developed in close cooperation between government officials and the public.

What are the purpose and main tasks of the draft law “On the peculiarities of reforming the enterprises of the military-industrial complex of the state form of ownership” (№3822)?

As stated in the preamble, the main purpose is to determine the features of legal, economic, and organizational regulation of the transformation of the State Concern “Ukroboronprom” into a joint-stock company, state unitary enterprises, including state-owned enterprises that are part of “Ukroboronprom” – into companies, as well as the introduction of a corporate model of management of state-owned objects in the military-industrial complex (hereinafter – MIC).

In other words, draft law №3822 introduces the idea of ​​expanding the powers of Ukroboronprom as a managing economic structure in the defense industry together with expanding the powers of its Supervisory Board.

The project regulates how the Concern and its members should be reformed in three stages:

• the first stage of reform involves preparing the members of the Concern for reorganization.
• the second stage of reform envisages the formation of companies in two alternative ways: the transformation of a member of the Concern into a company in the organizational and legal form of a joint-stock company or limited liability company; or joining the members of the Concern to another participant and simultaneously transforming such participant into a business company according to a special procedure.
• the third stage of reform envisages the transformation of the Concern into a joint-stock company, which will include the following actions:
  • The Cabinet of Ministers of Ukraine must decide on the reorganization of the Concern through its transformation into a joint-stock company and approval of the charter;
  • On the basis of the decision of the Cabinet of Ministers of Ukraine – introduction into the authorized capital of the joint-stock company of blocks of shares (shares) of the companies formed at the second stage;
  • With the Cabinet of Ministers’ consent based on the joint-stock company’s decision, the shares of companies formed in the second stage may be contributed to the authorized capital of another company formed as a result of the transformation of a Concern.

CSEO believes that the draft law №3822 needs to be refined from terminology to conceptual provisions that could lead to negative consequences. The conclusion consists of 12 points, which indicate the creation of special conditions for Ukroboronprom and the provision of unjustified benefits to enterprises or officials of Ukroboronprom, which are not in accordance with applicable law.

“Such a disposition of state property creates opportunities for the actual privatization of state-owned defense enterprises and companies formed on their basis outside the Law of Ukraine “On Privatization of State and Municipal Property” – it is stated in conclusion.

Besides, CSEO recommends that the parliament obtain an expert opinion from the Cabinet.

On January 20, 2021, the Verkhovna Rada Committee on National Security, Defense and Intelligence considered the draft law and recommended that it be included in the agenda of the session and adopted as a basis. It is noted that, according to the draft law, a modern model of corporate governance is being introduced at the Concern’s enterprises, which will protect them from corruption risks, conflicts of interest, and direct political influence. In addition, Ukroboronprom’s enterprises will be rehabilitated at all levels: financial, social, and production-technological.

On the last day of the fourth session of the Verkhovna Rada, January 29, the parliament adopted the draft law in the first reading. Now the draft law awaits amendments from MPs.

Ukroboronprom itself believes that the draft law can be passed by April 30, 2021, after which, by the end of June 2021, the Concern will be liquidated. A new defense holding company in the form of a joint-stock company will be created on the basis of its 65 most promising enterprises. In addition, branch business units will be established in the form of joint-stock companies, united in the areas of aircraft repair, armored vehicles, radar systems, marine systems, high-precision weapons, ammunition, and special chemicals.

On January 26, the Verkhovna Rada adopted the draft law “On the All-Ukrainian Referendum” in the second reading and as a whole. The Agency for Legislative Initiatives has analyzed it and is ready to share the results.

The adopted draft law has more pros (or gains) than cons (or threats), in short. The draft law “On the All-Ukrainian Referendum” is, without any doubt, better than the previous unconstitutional and unconstitutionally adopted law on the national referendum. And the final version, adopted in the second reading, considers some of the comments and is, therefore, better than the first reading version. According to Article Thirty-eight of the Constitution, citizens of Ukraine are guaranteed to participate in the all-Ukrainian referendum. According to the Basic Law, without a referendum, it is impossible to change the territory of Ukraine and make changes to I, III, and XIII Chapters of the Constitution. That is, the need to adopt a law on a referendum is conditioned by constitutional norms. However, the adopted draft law should not be idealized: it has some shortcomings, and 27 pages of comments of the Main Legal Department can serve as confirmation of this.

The draft law has been developing and editing with the involvement of an expert community for more than a year. It partially considers the ODIHR / OSCE and the Venice Commission’s recommendations, expert comments on the draft of the first reading. Certainly, it has very detailed and well prescribed procedural mechanisms. Therefore, many specialist organizations respond positively to this approved version. And although the draft law “On the All-Ukrainian Referendum” has many positives, some shortcomings need to be addressed to understand the risks and limitations that we may face in the implementation of this law.

The draft law “On the All-Ukrainian Referendum” does contain several safeguards: for example, the issue of the death penalty for MPs and officials for corruption or the reduction of taxes for Ukrainians cannot be put to a referendum. But other populist issues can be raised, such as the abolition of benefits for MPs, providing free housing for all citizens, etc. These may be questions that usually split Ukraine, the classic set – whether Bandera/Shukhevych/Zhukov/some red commissar is a hero of Ukraine or whether it is worth giving the status of the state language to Russian, etc. These matters may be national importance issues, and the adopted draft law on the referendum does not protect against them. In some countries, there is a practice where the authorities can adjust or at least influence the wording of the question. The Venice Commission recommended this option. But Ukraine has taken a different path: by Article 30 of the adopted version of the law, the text of the question submitted to the referendum can not be changed after its approval by the initiative group.

Such a norm was probably added to prevent abuse of power, which could harm “good” and “people’s” initiatives. However, the referendum will instead be a tool for organized political groups, given the signature collection procedure’s peculiarities. These political groups will be able to use populist issues that the government will not be able to correct. The adopted draft law does not consider the Venice Commission’s recommendations on the unity of form, content, and hierarchy of the referendum issue.

The adopted version of the law creates several safeguards against manipulation and possible attempts to infringe on the democratic regime. However, it is worth remembering the context in which Ukraine finds itself: we have problems with the rule of law, we are in a state of actual war, economic crisis, and only seven years have passed since the potential dictator fled to Russia.

In these circumstances, a referendum, no matter how perfect the law is, can be used to increase instability and establish attempts to restrict citizens’ rights and freedoms and undermine democratic institutions.

The Venice Commission also mentions the danger of referendums in its recommendations in terms of confrontation between the executive power and the parliament.

A referendum is often called a voice of the people, and the possibility of repealing laws is called a “right to revolt”.

You need to go through many verification procedures and collect and submit many different types of documents.

The initiation of a national referendum is very resource-intensive: it is necessary to collect 3 million signatures in not less than 2/3 of regions and not less than 100 thousand signatures in each region. For about half of them 100,000 people is about 10% of the population – that is, it is necessary to collect the signatures of every tenth person living in the region. All this must be done in 90 days. According to paragraph 6 of Article 32 of the draft law, signatures can be compiled only by members of the initiative group and only in paper form, as the rules on applying for support of the referendum initiative in electronic form were excluded during the consideration of the draft law in the plenary hall, arguing that these norms are unconstitutional and this mechanism could be opaque. So, on average, you need to collect 33,000 signatures on paper per day.

Will volunteers be able to organize such a process? It isn’t very likely, even if we believe in the self-organizing ability of Ukrainians. It is rather possible for highly organized political groups with funding, human and time resources. Regardless of who manages the referendum – volunteers or political groups – the authorities can, if they wish, disrupt the process. The Central Election Commission (the CEC) may not register something, not accept any documents, or find any violations in the complicated procedure of initiating a referendum. It is still possible to impose a state of emergency in one of the regions (for example, if forests are burning in the Luhansk region or there are floods in Zakarpattia) and disrupt the referendum process. It means that if the [anti-people/dictatorial] government wants to prevent a referendum, it will do so.

Therefore, we should not think that a referendum can become a viral initiative or that the people can use a referendum to express dissatisfaction with the adoption of a law. If the referendum is organized, it will be initiated by capable political groups in the absence of categorical disagreement of the authorities (and given the previous experience of Ukraine, the initiation of a referendum will most likely be done by the President himself).

The adopted draft law establishes that electronic voting will be possible only after the entry into force of the law on innovative technologies for electronic (machine) voting. It is not clear from the adopted draft law on referendum what electronic voting will be like – whether it will be special polling machines for polling stations, or it will be voting at home from a personal computer through a created site, or the Ministry of Digital Technologies will present a separate application. If the voting is remote (from a computer via a website), then there are many problems with compliance with the voting principles set out in Articles 6-13 of the law.

The referendum must provide universal, equal, direct, free, voluntary, secret, personal, and one-time voting. And remotely, it will be difficult to trace who is voting, whether there are facts of pressure, bribery, how many times one person can vote, and so on.

In Europe, e-voting is used only in isolated cases. The Venice Commission also mentioned the danger of electronic voting in terms of technical reliability, transparency, security, and secrecy in its conclusion.

Such a ban is only for holding a referendum simultaneously with regular elections of various kinds. Therefore, although supporters of the adopted law “On the All-Ukrainian Referendum” deny the possibility of mass use of referendums, we should not rule out using this tool by unscrupulous initiators to obstruct other referendums and clog the media space.

According to the working group members for the development of this draft law, if holding one referendum costs 1-2 billion hryvnias, holding several referendums a year does not bring anything good to the Ukrainian budget.

The adopted draft law prohibits only the initiation of several referendums on one issue at a time. Dishonest initiators can also use this norm: if you are the first to register an initiative group in the CEC, a referendum on a particular issue can be blocked. It does not matter how many signatures such a fake initiative group will collect. Those who want to hold a referendum will have to wait at least 90 days to register their initiative.

In some European countries, the law’s repeal is possible shortly after its adoption, even before it has wholly entered the state’s legal field.

Repealing any law or its provisions can be pretty dangerous because it unbalances the legal system and leaves gaps in it.

There may be a legal vacuum (a situation where certain social relations are not regulated by law), which can not be filled. It happens for many reasons. On the one hand, MPs may not count on the success of the cancellation referendum and, accordingly, not prepare for its consequences (if we recall the attitude to the Brexit referendum and the corresponding level of readiness of MPs in the homeland of the parliamentary system, there are reasonable doubts about the predictive capabilities of Ukrainian MPs). On the other hand, it is essential to remember that passing law is usually a difficult compromise for many political groups and the more important the law is, the harder it is to reach such a compromise. And at the time of repealing the law, such a compromise may not exist, which will lead to a legal vacuum.

Repeal of laws through referendums is also questionable in terms of violation of the constitutional competence of the Verkhovna Rada of Ukraine, as “the only legislative body in Ukraine is the parliament – the Verkhovna Rada of Ukraine”, and it is the powers of the Verkhovna Rada to adopt laws, including the abolition of other laws. The Venice Commission recommended giving parliament a role in the referendum process on repealing laws: for example, providing a text of a law that would replace the text of a repealed law if the referendum was successful. However, this was not done.

Violation of the Verkhovna Rada’s constitutional competence may be the reason for declaring the law on referendum unconstitutional.

The procedure of adopting the draft law “On the All-Ukrainian Referendum” was also problematic. During the preparation for consideration and consideration of the draft law in the second reading, the MPs deviated from some Verkhovna Rada Rules of Procedure norms without applying the ad hoc procedure provided for in Art. 50 of the Rules of Procedure.

It can be considered a violation of the Rules of Procedure and thus undermine the adopted draft law’s legitimacy.

The repeatedly identified problem of the Rules of Procedure of the Verkhovna Rada, which often leads to an imbalance in the text of draft laws in the session hall, has once again manifested itself. Ironically, the imbalance of the law’s internally agreed text due to the removal of some of its provisions occurred with the adopted version of the law on referendum. In particular, the wording of the draft law, which was adopted in the first reading, in paragraph 2 of Art. 4 contained the following somewhat contradictory provision:

“The decision made at the all-Ukrainian referendum can be changed only by the all-Ukrainian referendum not earlier than in three years from the date of its acceptance”.

Before the second reading, the committee changed this provision to another:

“A new all-Ukrainian referendum on issues previously supported in the all-Ukrainian referendum may be held not earlier than three years from the date of announcement of the results of the relevant all-Ukrainian referendum”.

“A new all-Ukrainian referendum on issues that were not previously supported in the all-Ukrainian referendum may be held not earlier than one year from the date of announcement of the results of the relevant all-Ukrainian referendum”.

However, at the very end of the review of the amendments, V. Vyatrovych confirmed these amendments. Voting to confirm the first amendment failed (9 votes were not enough), the second amendment still managed to get the required votes. Therefore, paragraph 2 of Art. 4 of the adopted law says:

“A decision made in an all-Ukrainian referendum may be changed only by an all-Ukrainian referendum not earlier than three years from the date of its adoption.

A new all-Ukrainian referendum on issues that were not previously supported in the all-Ukrainian referendum may be held not earlier than one year from the date of announcement of the relevant all-Ukrainian referendum results”.

It is quite possible that the draft law “On the All-Ukrainian Referendum” adopted later in the second reading and as a whole will be amended and corrected. Still, now, this has several ambiguous consequences. Firstly, the first item of paragraph 2 of Art. 4 contradicts the second item of paragraph 2 of Art. 4 and item 2 of Art. 122, because in one place, any decision cannot be changed for three years, and in another – that an unsupported decision can be put to a referendum in a year. Secondly, it turns out that the laws/some of their provisions, repealed by the referendum, will be repealed forever because of the referendum’s decision, following the first item of paragraph 2 of Art 4, can be changed only through a referendum.

A change in the decision to repeal the law is the adoption of a law. According to the law “On the All-Ukrainian Referendum”, laws in a referendum can only be repealed, not adopted. Third, the change in the decision not to repeal the law is to repeal the law.

Given that the decision of the referendum can be changed only in a referendum, then the law, which was not repealed once, receives additional “protection” – now it can be revoked only in a referendum.

And while whether the repeal of laws is an interference with the Verkhovna Rada’s constitutional competence can be a matter of debate, the repeal of laws forever and the special protection of laws look more clearly like such an interference.

The fact is that in the wording adopted in the first reading, NGOs could form these funds at their own expense. Unlike political parties, NGOs have no restrictions on the sources and amounts of contributions. It means that the entire structure of the control over the financing of the referendum (which provides for the restriction of funding sources and the size of the contribution from one source) – was destroyed. After all, some oligarch or a hostile state could contribute a large sum of money to the NGO’s account. This NGO could already transfer these funds to the account of its all-Ukrainian referendum fund. Many experts and even the Venice Commission have drawn attention to this problem. And in the second reading of paragraph 3 of Art. 72 the opportunity to finance NGOs’ funds at their own expense was removed, but paragraph 7 of Art. 72 is still about this possibility. How this rule will be applied in practice is not entirely clear, so the risk of non-transparent funding provided by large tranches from dubious sources through NGOs remains.

Summing up, a referendum is a tool that can be used with both good and bad intentions. It should not be assumed that with the current design, the referendum will be an instrument of the people’s will. Organized political groups or the President will definitely use it.

Despite the safeguards, the adopted draft law contains dangers – among them electronic voting (although in the final version, it became a dead norm) and a legal vacuum in place of repealed norms. The adopted law “On the All-Ukrainian Referendum” has some technical shortcomings, all of which were not mentioned in our analysis, but some of which look pretty threatening – unwavering referendum decisions and non-transparent funding through NGOs. These shortcomings can be corrected in the future, so it remains to hope for Ukrainian lawmakers’ prudence.

Summing up the parliamentary results of 2020, we could mention the high-profile and significant events that took place in the Verkhovna Rada of Ukraine: the adoption of the law on the land market or “banking law”, the coronavirus pandemic, and the vicissitudes of the CCU decision. However, all of the above events are common policies that have little effect on Verkhovna Rada’s functioning as an institution. As a result, we will try to focus on more fundamental things, namely the three changes concerning the rules of operation of the Ukrainian parliament, its format, and scope of influence.

The first months of 2020 in the Verkhovna Rada were spent in an aggressive confrontation. The battle for land first unfolded when 4,018 amendments were submitted to the draft law on agricultural land circulation. The usual procedure for considering these amendments took several plenary weeks. However, an absolute record was soon set for Ukraine – more than 16,000 amendments to the draft law 2571-d (the so-called “banking law”).

Of course, the MPs who submitted hundreds and thousands of amendments did not want to make changes to the draft laws. They just wanted to block their adoption using the permitted procedural mechanisms (called a parliamentary obstruction). And although the 16,000 Ukrainian amendments do not look so staggering compared to other countries’ records, the parliamentary majority has decided to limit legal regulatory resistance possibilities. The draft law adopted in the first reading in autumn 2019 was edited and adopted as a whole. Now the draft law, which has more than 500 amendments, can be considered under a special procedure, making it impossible to block its adoption for a long time. Thus, the most effective Ukrainian parliamentary obstruction weapon was removed from the MP’s “arsenal”. Accordingly, the parliamentary minority now has fewer ways to oppose the actions of the majority.

One of the slogans of the Sluga Narodu party was digitalization. However, they were not innovators in this. Huge stacks of paper with thousands of edits printed on them and the general inefficiency of communications have long been criticized. Therefore, the topic of transition to modern technology has been raised for a long time. An example is the recommendations of the European Parliament’s Evaluation Mission.

In 2020, the digitalization of the Verkhovna Rada increased. At the beginning of the year, amendments to the Regulations on the introduction of electronic document management were adopted. The coronavirus provided the next impetus for digitalization. Politicians are more likely to catch the coronavirus, so many parliaments have been quarantined with the onset of the epidemic. However, the parliament is too important, so Ukrainian lawmakers have tried to develop remote voting rules, although this has never been implemented. Another digitalization area driven by the coronavirus has been the online format of committee meetings and sometimes conciliation councils. Some aspects of digitalization are controversial, such as remote voting, but in general, there is a digitalization trend. The rules and formats “invented” during the coronavirus in the future can be used in the normal work of the Verkhovna Rada. On the one hand, this opens the way for new opportunities and, on the other hand, for new threats to parliamentary activity.