On 15 May 2017, President of Ukraine Petro Poroshenko adopted the Decree # 133/2017 on implementation of the National Security and Defense Council of Ukraine (NSDC) Decision “On the Application of Personal Special Economic and Other Restrictive Measures (Sanctions).” Pursuant to this Decision, the Internet service providers (ISPs) were obliged to restrict access to a number of websites, in particular, to Russian social networks Odnoklassniki and VKontakte for three years – that is, until 15 May 2020. According to Presidential Decrees # 126/2018 and # 82/2019, the list of blocked sites was expanded to include about 300 web resources.
On 10 April 2020, the Security Service of Ukraine announced a proposal to the NSDC the extend sanctions against Russian social networks Odnoklassniki and VKontakte for another 3 years, justifying this by the need to protect Ukrainian citizens from the fakes and manipulations.
While the NGOs support the intent to protect the national information space of Ukraine from the destructive influences of the aggressor state, they emphasize the need to bring the existing mechanism to block access to information resources (websites and social networks) in accordance with international standards in the field of human rights and the Constitution of Ukraine.
Since the adoption of Presidential Decree # 133/2017 and subsequent sanction-related decrees in 2018 and 2019, the Coalition experts and human rights activists have repeatedly emphasized [1] the violation of the principle of legality and validity of sanctions, in particular:
- Such sanction as “the prohibition for the ISPs to provide access to resources/services to Internet users, incl. subdomains” is a way of restricting human rights and freedoms which fails to meet the constitutional requirements and is a manifestation of unlimited discretion of the state authority: this sanction is not included in the list of restrictive measures defined by the Law of Ukraine “On Sanctions,” while other legal framework does not establish the mechanisms to prohibit Internet service providers to offer their services through the NSDC Decision (these decisions can only be binding for executive authorities);
- Lack of statutory procedures, grounds and mechanisms for creating the lists of websites for ban, application of a provision of the Law of Ukraine “On Sanctions” such as “other sanctions that comply with the principles of their application, established by this Law” violates the principle of legal certainty: no person can foresee which actions or decisions can cause putting him/her on the sanction list, and thus s/he is deprived of the opportunity to anticipate the consequences of his/her actions. The incomprehensible nature and reasons for the formation of the ban lists gives the authorities’ actions the signs of arbitrariness;
- Application of restrictive measures to citizens of Ukraine and resident legal entities that are not under the control of a foreign legal entity or a non-resident individual directly contravenes the provisions of part two of Article 1 of the Law of Ukraine “On Sanctions,” according to which such measures can be applied exclusively to foreigners, non-residents, stateless persons or persons undertaking terrorist activities. The latter should be established in court, as it involves the commission of a crime which requires the investigation and prosecution of the perpetrators;
- In accordance with international standards, in particular the case-law of the European Court of Human Rights, complete blocking of information resources should be an exceptional measure and should be applied only if sufficient legal framework is in place to ensure both strict controls on prohibitions and effective judicial review to prevent any abuse of power. Both elements are absent from the applicable sanctions procedure.
- Article 3 of the Law of Ukraine “On Sanctions” provides that their application must be based on the principles of legality, transparency, objectivity, relevance and effectiveness. However, neither transparent criteria for determining the grounds for blocking specific information resources, nor information on the official evaluation of the results/effectiveness of the restrictions have yet been made public.
Today, there is also no reason to argue that the imposed sanctions have eliminated the threat of Russian propaganda or significantly contributed to a more secure national information environment. It is becoming increasingly clear that the threat of misinformation comes not only from Russia-controlled web resources that were banned.
FreeNet Coalition and the NGOs emphasize that the mechanism currently in place to restrict access to information resources enforced by the NSDC Decision poses serious threat to the abuse and violation of human rights to receive and disseminate information, which is guaranteed by Article 34 of the Constitution of Ukraine. Lack of proper judicial review, broad discretionary powers of government bodies, non-transparent mechanism for establishing a list of banned websites, and lack of unbiased analysis of the proportionality and effectiveness of the sanctions contradict Ukraine’s international commitments in the field of human rights and the democratic development of our state.
In view of the above, we call upon:
The President of Ukraine and the National Security and Defence Council of Ukraine – to review the decisions on the application of sanctions in the form of restricting users’ access to information resources and to bring them into conformity with the Constitution and international obligations of Ukraine, in particular:
- Initiate legal changes to ensure the legality, validity and proportionality of sanctions against information resources and ensure independent judicial review against abuse;
- Conduct effective dialogue with experts and human rights activists to ensure respect for human rights in the initiatives to counter Russian aggression;
- Mandate the NSDC to conduct regular (quarterly) evaluation of the effectiveness of sanctions and make the findings of such evaluation available to public.
FreeNet Coalition members:
NGO Human Rights Platform
NGO Digital Security Lab
NGO Human Rights Center ZMINA
NGO Crimean Human Rights Group
NGO Center for Civil Liberties
Freedom House in Ukraine
Mykola Kostynian, co-founder of FreeNet Coalition
Signatory NGOs:
NGO European Media Platform, Director Oksana Prykhodko
The Influencer Platform
NGO Regional Press Development Institute
UMDPL Association
Zaborona Media
NGO Fulcrum UA
No Borders Project
Ukrainian Foundation for Security Studies
Nadia Babynska, open data expert
NGO Ukrainian Media and Communication Institute
NGO Docudays
[1] For more information on the assessment of the validity of the decrees regarding the restriction of access to information resources, see:
Legal analysis of Presidential Decree # 126/2018 by FreeNet Coalition
Analytical review “Should Ukraine Lift Sanctions against Russian Online Platforms?” by Freedom House
Results of a study by the Digital Security Lab on Internet service providers compliance with site ban requirements.