The Margin of Discretion of the NSDC of Ukraine and the Criteria for the Legitimacy of Its Decisions

  • 18.07.2021

One of the directions of the Dnistrianskyi Centre’s work is legal analytical studies of the issues that are of concern for the society. We try not just to point to a problem, but to provide the mechanisms for solving it.

The first analytical study of the Centre is related to the NSDC and the margin of its discretion. The author of the report is Olena Boryslavska, doctor of law, associate professor, professor of the Department of Constitutional Law, Ivan Franko National University of Lviv.

Why have we chosen the topic of the NSDC for research?

On May 28, 2019 the first Decree of President V. Zelensky was issued in relation to the National Security and Defence Council of Ukraine (hereinafter referred to as the NSDC). Since then the activity of the head of the state in this field, the same as of the NSDC itself, has been constantly going upwards, reaching an unexpectedly significant scale already in the spring of 2021. Over two years (as of the late July 2021) President V. Zelensky had issued in total 109 decrees in the field of activity of the NSDC, most of which were related to enactment of the NSDC’s decisions. However, such activity is measured not only through quantitative, but also through so called “qualitative” (meaningful) indicators. Here decisions are meant that evoked some special resonance in the society and in the legal expert environment (in particular, the ones related to imposition of personal sanctions against individuals and legal entities) and put a rather serious problem related to the limits of competence of this body on the agenda.
Besides direct effect on the rights, freedoms, and interests of specific individuals, the NSDC’s decisions and its activity in general also affect the balance in the system of state power division, since, with the mediation of this body, the head of the state may both considerably strengthen his positions in this system and undertake some power which is beyond his constitutional mandate. Such a situation demands close attention and purposeful control over the NSDC’s activity from the civil society and its institutions. 

How can this report be of use for you?

This analytical report outlines the margin of discretion of the NSDC of Ukraine, with due account of the constitutional nature of the body and its legal status. It aims to provide civil society representatives with brief information that could be used, when analyzing the legitimacy of decisions of the NSDC of Ukraine as well as while exercising public control over the this body’s operation.  

Specific NSDC’s decisions passed during the so called fight against “the threats to economic security” testify to the fact that this body went beyond its margin of discretion; such activity does not meet NSDC’s functional designation; not only human rights and freedoms are violated under such conditions, but there also occurs a distorted shift in the state power division system: the position of the President gets considerably, unjustifiably strengthened, and the activity of pre-trial investigation bodies and judicial authorities are misrepresented.

Where can you read the analytical report?

You may read and download the analytical report by Olena Boryslavska “The Margin of Discretion of the NSDC of Ukraine and the Criteria for the Legitimacy of Its Decisions” at the link.