Principle of Proportionality and Legal Certainty in Governance

Prof. Dr. Oesten Baller President of the German-Ukrainian School of Governance e.V. oesten.baller@hwr-berlin.de Prof. Dr. Oesten Baller

It is widely accepted, that two courts have set the landmarks for the quality of law

The constitutionality of these powers depends on the limits arising from each the fundamental rights and the proportionality requirements be determined for each of the powers to the principle of proportionality these powers must always pursue a legitimate aim and must be suitable, necessary sense, proportionate to achieving this aim Furthermore, the challenged powers are to be measured against the principle of legal clarity and specificity, predictability of interferences, encroachment for citizens, constitute an effective limit to administrative powers and enable effective judicial review proportionality requirements which must for each of the powers. According principle of proportionality, the granting of suitable, necessary and, in the strict proportionate to achieving this aim. legitimate aim legal clarity and specificity, which aims to increase the

Not only must an interference with the right of property pursue, on the facts as well as in principle, a legitimate aim in the general interest , but there must also be a reasonable relationship of proportionality and the aim sought to be realised by any measures applied by the State. That requirement is expressed by the notion of a fair balance the general interest of the community and the requirements of the protection of the individual s fundamental rights. legitimate aim reasonable relationship of proportionality between the means employed fair balance that must be struck between the demands of In addition, in his 2018 judgement on the case of the Industrial Financial Consortium Investment Metallurgical Union v. Ukraine, the Court emphasises the principle of legal certainty different laws. legal certainty and the problem to regulate the same issue in

Summing up we have: Principle of Proportionality and it s four elements: legitimate aim, suitability, necessity and proportionality in a strict sense Balancing of interest and interference Principle of legal certainty Principle of legal specificity Principle of predictability

One specific law for an area of action There must be a common internal structure for the minimum content What facts, assumptions must exist? Which actions are allowed, if this is valid? Which procedural principles apply? The citizen must be enabled to regulate his conduct The security offers must clearly know, what they are allowed to do and what they are not allowed to do. common internal structure

If If..... then In a current threat to life, health and liberty of a person, the police may enter and search a home. Or: If If there is a current threat to life, health or liberty of a person, then to enter and search a home. Only the CPC mostly has such clear provisions, the other laws only partly or not. then.... is the right approach. then then police is allowed

Law on National Security Law on the National Police Law on the National Guard Law on the Secret Service Law on Operative Search Activity Criminal Procedural Code (Section III, Pre-trial investigation

Public Security (and order) is defined as the protection of vital interests of the society and the individual (Law on National Security) Mixture of political strategies and legal regulation Sectors of Security and Defence are combined Secret Service is not (only) an intelligence agency, but has operational powers The law on Operational Search Activities mixes powers of police and intelligence

Authority National Police Tasks x Functions Duties Competences Powers X x Actions x (x) National Guard x x X x Secret Service x X x Operative Search Activity X x

The principle One law, all relevant regulation is violated mostly by the Law On Operative Search Activities: It refers concerning Databases, Coercion and Use of Firearms to the Laws of the National Police, National Guard, and Border Police, and for hidden actions to the CPC. The National Guard law refers to the Law of the National Police concerning preventive actions and coercion; The law on the Secret Service refers for powers to the CPC and the Law of Operative Search Activity The redundancy of nearly all the laws is shown by the fact, that they all have many and long chapters on the structure, on the status, on social guaranties and so on.

Authority Clear ele- ments Differentia- ted elements Joint elements for powers All elements in the article of the powers Procedu- r-al rules Propor- tional No Mostly yes For Data use no For use of firearms yes No no (procedural rights), not everytime elements Art. 29 for physical coercion National Police No No No No little National Guard Secret Service Operative Searc Activity No No No No No No No, mixture Bad: Art. 8 Nr. 20 Mostly yes Little: Art. 8 Nr. 7, 7a-12 Art. 6 no Partly partly Mostly yes Art. 223 mostly Yes mostly CPC

The Ukrainian security laws in some cases very differently implement the European standards for legislation. In general, post-Soviet traces are still clearly present. The Ukrainian legislator has drafted every law for itself without taking into account other security laws and the entire legal system of Ukraine. Some good approaches can be found in individual regulations on police coercion and in general in the legal structure of the preliminary proceedings in the Code of Criminal Procedure

To repeal the Law on Operative-Search Activities. To transform the Secret Service of Ukraine into a real and only intelligence agency To revise all security laws

To built up a strong consortium with the Ministries of Justice and of the Interior and the leading law schools in Ukraine And The German-Ukrainian School of Governance and its partners in Berlin, Estonia, Finland and Poland And