B Explanatory
memorandum by Mrs Reps and Mrs Wohlwend, co-rapporteurs
1 Introduction
1. Since the Orange Revolution, Ukraine’s political
climate has been characterised by a systemic political crisis which
has undermined the democratic development of the country and hindered
the implementation of the reforms needed for the country to fulfil
its remaining accession commitments to the Council of Europe. This systemic
political crisis, which has been the subject of the Parliamentary
Assembly’s attention in several resolutions,
Note is rooted in the incomplete and
controversial constitutional amendments that were adopted to resolve
the political stand-off during the presidential elections in 2004,
as well as the continuous rivalry and infighting between the main
political forces and their leadership.
2. A shift of power took place following the presidential elections
in 2010, when Victor Yanukovich was elected president to replace
the Orange Revolution leader, Victor Yushchenko. The newly elected
president launched an ambitious set of reforms, with the declared
aim of honouring the remaining accession commitments of Ukraine
to the Council of Europe – and thus moving into a post-monitoring
dialogue with the Assembly – before Ukraine takes over the Chair
of the Committee of Ministers of the Council of Europe in May 2011.
3. We visited Ukraine following the presidential elections, in
the framework of the monitoring procedure of the Assembly, from
1 to 4 June 2010, in order to familiarise ourselves with the reform
agenda as well as the political climate in the country. After our
visit, we welcomed and strongly supported the priority given by
the new government to fulfilling Ukraine’s accession commitments
and to implementing the ambitious and far-reaching reform package
that is necessary to achieve that aim. However, we also noted that,
in their eagerness to meet sometimes overly optimistic deadlines,
the authorities were implementing these reforms without sufficient respect
for democratic procedures and deliberation and at the cost of dialogue
and the wide political consensus that the successful implementation
of these reforms demand. As a regrettable side effect, a number
of the reforms have become the subject of political controversy.
4. In addition, during our visit, we noted numerous and persistent
allegations that respect for democratic freedoms, such as the respect
for freedom of expression and freedom of assembly, had come under
pressure in Ukraine since the 2010 presidential elections.
5. For these reasons, and in support of the current reform process,
the Monitoring Committee, at its meeting in Strasbourg on 22 June
2010, decided to request that a debate on the functioning of democratic institutions
in Ukraine be held during the Assembly’s October 2010 part-session.
The intention was to enable the Assembly to formulate its views
and recommendations at an early stage of the reform process initiated
by the president, as well as to address concerns raised in recent
months in this context.
2 Recent
political developments
6. The last report on the functioning of democratic
institutions in Ukraine
Note was debated in the Assembly on 19
April 2007. Regrettably, most of the period since that debate has
continued to be characterised by the systemic constitutional crisis
in the country, rooted in the unclear separation of powers, and
the resulting tug of war between the president, the prime minister
and the Verkhovna Rada (Parliament of Ukraine).
7. On 30 September 2007, early parliamentary elections were held
in Ukraine that were triggered by a political crisis that ensued
after President Yushchenko’s decision to dissolve parliament on
2 April 2007. His decision, the constitutionality of which was challenged
by the opposition,
Note came
after a number of defections of the pro-presidential opposition
to the then ruling coalition of the Party of Regions, Communist
Party and Socialist Party. His decision was reportedly guided by
his concern that further defections would have given the ruling
majority the two-thirds majority necessary to override any presidential
veto and to introduce amendments to the constitution without the
support of the opposition parties. The political crisis calmed down
when the main political forces reached a political agreement for
early parliamentary elections.
8. The early elections led to a new governing coalition, led
by Yulia Timoshenko, which had a small, two-vote majority in the
Verkhovna Rada. While the early elections ended the political crisis
at that time, they did not resolve the underlying systemic constitutional
crisis and ongoing tug of war between the different branches of
power.
9. Indeed, a new crisis broke out in September 2008, when President
Yushchenko’s Our Ukraine and People’s Self-Defence Bloc (OU-PSD)
withdrew from the governing coalition after a law was passed, with
the support of Yulia Timoshenko’s political bloc (BYuT), to limit
the powers of the president. Following a period of time in which
the country was without a working coalition or speaker of the parliament,
President Yushchenko again called for pre-term elections. However,
after a period of tense political stand-off, the elections were postponed
to an unspecified date in order to address the effects of the global
financial crisis which was hitting Ukraine harder than most other
European countries.
10. Finally, after attempts to form a governing coalition between
the Party of Regions and the BYuT failed, a coalition was formed
between Our Ukraine, BYuT and Bloc Volodymyr Lytvyn that ended the
spectre of early parliamentary elections. Mr Lytvyn was elected
speaker of the parliament, a position he still holds.
11. However, the period of relative political stability and renewed
legislative activity was short-lived and ended when the Verkhovna
Rada passed a resolution, on 1 April 2009, calling for regular presidential
elections on 25 October 2009. President Yushchenko appealed against
this decision to the Constitutional Court, which ruled, on 13 May
2009, that the Verkhovna Rada resolution was unconstitutional and
therefore invalidated it. The presidential elections were then set,
in line with constitutional requirements, for 17 January 2010.
12. All in all, the systemic crisis and political instability
have seriously hampered the governance of the country and prevented
the adoption of many necessary policies and reforms with, on a number
of occasions, the different branches of powers each proposing competing,
and often incompatible, drafts for legal reform packages, including
for the reform of the constitution.
13. The first round of the presidential election took place on
17 January 2010 and the second round on 7 February 2010. International
observers, including those deployed by the Parliamentary Assembly,
concluded that both rounds were generally democratic and conducted
in line with international standards. However, the observers also
concluded that this had been the case despite a generally inadequate
legal framework and last-minute changes, or attempts at last-minute
changes, by all the parties involved in these elections.
Note Previously, we
have had occasion to express our concern about the habit of Ukrainian
political forces to play with the rules instead of by the rules.
We regret that this was again the case in the context of these elections.
14. In a number of previous reports to the Assembly, we have expressed
our concerns about the inadequate legal framework for elections
in Ukraine. We deeply regret that no steps were taken by the Verkhovna
Rada to bring the electoral framework into line with European standards,
despite ample warning and ample time to do so. That said, we would
like to highlight that the presidential elections were the fourth
elections in a row since 2004 that were considered by international
observers to be generally democratic and conducted in line with European
standards. This demonstrates that the principle of democratic elections
as the mechanism for a change of power is consolidating and is increasingly
robust in Ukraine. In our opinion, this is an important legacy of
the Orange Revolution.
15. The political landscape in Ukraine changed dramatically in
Ukraine following these elections. The incumbent President Yushchenko
was replaced by his erstwhile rival of 2004, Viktor Yanukovich,
who won the second round with 48.95% of the vote against 45.47%
for the former prime minister, Yulia Timoshenko.
16. Following his election, the new president and his administration
moved swiftly to consolidate their power. After the defection of
a number of members of parliament from the former ruling coalition
to the Party of Regions, a new governing coalition was formed around
Mr Yanukovich’s Party of Regions, replacing the government coalition
led by Ms Timoshenko. The formation of the new governing coalition
to replace Ms Timoshenko proved to be controversial and led to questions
about the new administration’s commitment to democratic procedures
and principles. The original Law on the Rules of Procedure of the
Verkhovna Rada
Note specified that a parliamentary
majority was established on the basis of the numerical strength
of the factions, not on the number of individual supporting members
of parliament. However, when support for the former government coalition
started to crumble in the parliament following the elections, the
Law on the Rules of Procedure of the Verkhovna Rada was changed
with respect to the provisions for the formation of a ruling coalition.
The new provisions now stipulate that a parliamentary majority is
established on the basis of the number of individual members of
parliament that support such a coalition. These changes to the rules
of procedure allowed a new governing coalition, centred around the
Party of Regions, to be established. These changes in the rules
of procedure were decried by the opposition – as well as by some
independent observers – as being in contradiction with the constitution
of the country. However, in a ruling on this issue, the Constitutional
Court found that the new provisions were in line with constitutional
requirements. This ruling seems to mark new case law compared with
previous rulings of the court on similar questions. At the same time,
the notion that a parliamentary majority can only be formed by the
factions (and by extension their leadership), over the wishes of
the majority of individual members of the parliament, seems to be
closely related to the concept of an imperative mandate of the members
of parliament, which runs counter to accepted European democratic
standards. We hope that this is an indication that the Verkhovna
Rada intends to abolish the imperative mandate in the very near
future.
17. Questions by the opposition about the democratic credentials
of the new administration and government were further fuelled by
the manner in which the Black Sea agreement between Russia and Ukraine
was signed and ratified. On 21 April 2010, President Yanukovich
signed an agreement with President Medvedev of Russia extending
the Russian lease of the navy facilities in Sebastopol for twenty-five
years with an option for an additional five years, in return for
cheaper gas prices for Ukraine. This agreement, which is controversial
in Ukraine, was ratified within a few days with little debate or
consultation and in chaotic circumstances which were broadcast live
on television. Opposition representatives claimed that the vote
on the ratification was botched, with votes being cast by persons
who were not physically present in Kyiv at that time. It is clear
that such an important, and at the same time controversial, issue
should have been the subject of proper deliberation and debate.
18. These two issues, as well as a number of decisions by the
new administration that gave rise to controversy, such as the appointment
of the head of the state security services (FSU) – who is a close
ally of Mr Yanukovich – as a member of the High Council of Justice,
Note have given
rise to questions about the democratic credentials of the new administration
and have unfortunately contributed to a continuation of the polarised
political atmosphere in the country. This has been underscored by
a number of allegations that the new administration is tempted to
reduce democratic freedoms and liberties. While these allegations
should be seen in the context of the polarised political environment,
their number and persistent nature are of concern. In our view,
overcoming the polarised political climate is one of the main challenges
for the authorities, as well as for all other political forces in
Ukraine.
19. Consolidation of power by a ruling majority is understandable
and, in the context of the years of political infighting between
the different branches of power in Ukraine, possibly even desirable.
However, it will be of concern if such consolidation of power turns
into a concentration, or even a monopolisation, of power in the hands
of one political group, as that too could undermine the democratic
development of the country.
3 Reform process
20. During his address to the Parliamentary Assembly
on 27 April 2010, President Yanukovich announced that his administration,
as a matter of priority, would honour the remaining accession commitments
of Ukraine to the Council of Europe, with the aim of moving into
a post-monitoring dialogue by the time his country took over the
Chair of the Committee of Ministers of the Council of Europe in
May 2011.
21. Upon his return to Kyiv, President Yanukovich circulated a
set of instructions
Note to the
members of his government to develop the reforms and legislative
packages necessary to honour the remaining accession commitments.
The instruction of the president sets very ambitious deadlines for
the completion of these reforms, which vary from June to December
2010. The unofficial translation of his instructions is reproduced
in the appendix to this report.
22. The priority given, and political will displayed, by the new
administration to honouring Ukraine’s remaining accession commitments
is both timely and pertinent, and should be welcomed. The fulfilment
of these remaining commitments entails the implementation of a series
of far-reaching and complex reforms which will have a deep impact
on Ukrainian society. The successful implementation of such reforms
is therefore only possible if they are based on a wide political
consensus and a democratic process consisting of genuine deliberation
and consultation. However, due to the apparent haste to implement
these reforms before the country takes over the Chair of the Committee
of Ministers, the authorities seem at times to be sidestepping proper
democratic procedures and consultation. This haste is also affecting
the consultation with external actors such as the Council of Europe.
Although the authorities have underscored, in public as well as
in private, that all reforms will be implemented fully in line with
European standards and in close consultation with the relevant Council
of Europe bodies – most importantly the European Commission for
Democracy through Law (Venice Commission) –, a number of laws have
been adopted without the Venice Commission having been asked to
give an opinion on the final version of the draft law before its
adoption in a final reading. As a result, some of the legislative
packages adopted are not fully in line with European standards and
now need to be amended in order to ensure that accession commitments
are met.
23. While increased reform activity is welcome and indeed necessary,
especially after years of inactivity as a result of the political
crisis and infighting, the speed of reform should not come at the
cost of respect for democratic principles and the quality of the
reforms themselves. This would only undermine the goals the administration
has set for itself and will not bring the country closer to meeting
its accession commitments. We therefore call upon the authorities
to fully respect democratic principles and procedures and to seek
as wide a consensus as possible for its reform package. In addition,
Council of Europe recommendations and concerns should be taken into
account and addressed before legislative packages are adopted in
a final reading by the Verkhovna Rada. In order to assist this process,
we would like to outline, in summary fashion, our recommendations
with regard to the main reforms that are currently being considered.
3.1 Constitutional
reform
24. The ambiguities and deficiencies contained in the
constitutional provisions that regulate the division of powers,
as well as the system of checks and balances between them, have
been at the root of the systemic political crisis in Ukraine. In
order to resolve the political crisis that ensued after the flawed
second round of the presidential election in 2004, a series of constitutional
amendments were adopted that, inter alia, introduced
a mixed parliamentary presidential system in Ukraine. In its opinion
on these amendments, the Venice Commission already underscored the
potential for conflict and political deadlock as a result of the
ambiguous and inconsistent provisions that govern the relations
between the president, the government and the Verkhovna Rada, such
as the mutual right of legislative initiative of both government
and president, the dual accountability of the government to both
president and Verkhovna Rada, as well as the overlapping competencies
between president and government.
25. In its last resolution on the functioning of democratic institutions
in Ukraine,
Note adopted on 19 April 2007, the
Assembly called upon Ukraine to relaunch its constitutional reform
project, in close co-operation with the Venice Commission, with
a view to improving the constitution and to bring it into line with
European standards. This call was made not only to resolve the underlying
causes of the systemic political crisis that is plaguing the country,
but also to address other long-standing shortcomings that are of
concern to the Assembly – such as the imperative mandate and a number
of constitutional provisions that regulate the judiciary and the
Prokuratura – and which need to
be resolved in order for Ukraine to fulfil its accession commitments.
26. All political forces pledged their support for the constitutional
reform project, but regrettably little progress has been made on
this front since 2007. In February 2009, the then President Yushchenko
issued a decree establishing a National Constitutional Council.
This council, composed of members of the presidential administration
and government, as well as representatives of the different political
factions in the Verkhovna Rada, judges, civil society and academic
experts, was tasked with drafting a new constitution in line with European
standards. However, the Constitutional Council was de facto boycotted
by the then opposition. On 31 March 2009, a draft constitution,
based on the work of the National Constitutional Council was sent
to the Verkhovna Rada by President Yushchenko. In its opinion on
this draft constitution,
Note the Venice Commission welcomed
the many improvements contained in the draft in comparison to the
current constitution, but also noted that the draft did not attempt
to resolve the underlying problems of the constitutional crisis
and maintained the mixed presidential-parliamentary system with
the double executive, and hence the potential for conflict between
the different branches of power.
27. In parallel, the Party of Regions prepared, jointly with the
Bloc Yulia Timoshenko, a competing draft constitution which was
introduced in parliament. The Venice Commission, which was also
seized for opinion on this draft, found this proposed draft constitution
to be problematic and at variance with European standards. As no
consensus could be reached on the changes to the constitution, the
Verkhovna Rada decided, in 22 October 2009, to remove all proposals
for changes to the constitution from its agenda.
28. To our regret, we were informed by the head of the presidential
administration during our visit to Kyiv in June 2010, that constitutional
reform is currently not a priority for the administration, despite
it being mentioned in the president’s instructions. We firmly believe
that constitutional reform should be at the heart of the overall reform
processes in Ukraine. The political system provided for in the current
constitution can only be stable if the parliament and president
share the same political vision, as is currently the case. However,
such stability is not based on constitutional checks and balances
and is not robust. Conflict and political stalemate could easily
re-emerge if the political priorities of the parliament and president
begin to diverge, which would be detrimental to the development
of the country. The authorities should therefore avail themselves
of their current strength and political stability to change the
constitution in this respect. In addition, as we will outline in
more detail in the sections below, a number of legislative reforms
require changes to the constitution for them to be in line with
European standards. In our opinion, it will therefore not be possible
for Ukraine to meet its commitments to the Council of Europe, and
therefore to move to a post-monitoring dialogue, without first satisfactorily
implementing the constitutional reforms recommended by the Assembly.
29. A main question with regard to the constitutional reform project
has been whether the current constitution should be amended, or
whether a completely new constitution should be drawn up. We would
like to reiterate our doubts about adopting a completely new constitution,
especially in the light of the unclear legal procedure for adopting
a totally new constitution (see below) and taking into account that
the current constitution, in the opinion of the Venice Commission,
is comprehensive in its protection of fundamental rights and freedoms
and “shows willingness to protect the full scope of rights guaranteed
by the European Convention on Human Rights”.
Note In
addition, amending the current constitution would also have the
advantage of being able to prioritise the most urgent issues, which
could facilitate their adoption.
30. As regards the adoption of a new constitution, there are concerns
about the manner in which a totally new constitution should be adopted
and the possibility that the legitimate role of the parliament in
amending the constitution could be circumvented by attempting to
adopt a new constitution through a people’s initiative. While the
process for adopting amendments to the constitution is clear – including
adoption of the amendments by a two-thirds majority of the members
of the Verkhovna Rada – the process for adopting a completely new constitution
is not clearly defined.
In
the view of the Venice Commission, the adoption of an entirely new constitution
would have to be in full compliance with the provisions in the current
constitution
Note for
amending the constitution, including the approval by two thirds
of the members of the Verkhovna Rada. On 18 April 2008, the Constitutional
Court of Ukraine, while confirming the right of the people of Ukraine
to change their constitution by way of an all-Ukrainian referendum,
held that the adoption of a new constitution should fully respect
the amendment procedure of the existing constitution.
3.2 Electoral reform
31. Recent elections in Ukraine have been generally conducted
in conformity with international standards, which underscores the
progress made by the country in this area. However, successive elections
have highlighted the inadequate nature of the current electoral
legislation, as well as the habit of the political forces in Ukraine
to attempt to change the legal framework just before the elections
to suit their own narrow party interests. Electoral reform is therefore
a priority for the country.
32. Ukraine does not have a unified election code. Different elections
are each governed by a different set of laws, such as the Law on
Election of the President of Ukraine, Law on Election of People’s
Deputies, Law on Election of Local Councils, Law on the All-Ukrainian
and Local Referenda, as well as the Law on the State Register of
Voters and relevant provisions in the constitution and other legal
acts. Moreover, as a result of their frequent changes, these laws
are excessively complex, lack coherence and clarity and are at times
in contradiction with each other. On multiple occasions, the Assembly
has called for the adoption of a single, unified – and simplified
– election code to govern all electoral processes in the country.
33. The Verkhovna Rada has established a working group, composed
of members of different political factions as well as outside experts,
with the task of drafting such a unified election code that would
meet the highest international standards. Despite the wide range
of political forces participating in the work of this group, its
potential was somewhat undermined by the refusal of the Party of
Regions to participate in its work, which we regret. Notwithstanding
the existence of the working group to draft a new unified election
code, several groups of individual members of parliament from different
parties have prepared their own amendments to the Law on Election
of People’s Deputies. By January 2009, eight different draft laws
to amend this law had been prepared by different political groupings.
In February 2009, the Venice Commission participated in a round table
with the proposers of the different drafts with the aim of finding
common ground between these proposals, which could then be introduced
in the work of the working group preparing the unified election
code.
34. The working group tabled the draft unified election code on
28 April 2010. However, no further action has been taken by the
Verkhovna Rada to discuss and adopt this law. This is a point of
concern, especially in the light of claims that the leadership of
the main political factions in the Verkhovna Rada are lacking the political
will to seriously consider changing the legal framework governing
elections and adopt the unified election code.
35. It is important to underscore that the aim of electoral reform
should not only be to change the inadequate electoral legislation
but also to change the inadequate – for Ukraine – electoral system
itself. The current electoral system for the Verkhovna Rada is a
proportional system based on closed party lists in a single national
constituency. In the Ukrainian political context, this system is
hindering the consolidation of democracy as it de facto concentrates
the political power in the country in the hands of a few individuals.
This, in turn, undermines party democracy and democratic transparency.
This democratic deficiency is further compounded by the 2004 constitutional
provisions that introduced an imperative mandate in the country
as well as by the absence of requirements for full transparency
of political party and campaign financing.
36. Given the shortcomings of the current political system in
Ukraine, we would like to reiterate the recommendation made by the
Assembly that an electoral system be adopted that consists of a
proportional system based on open lists in multiple regional constituencies.
The introduction of open lists and multiple regional constituencies
would, inter alia, increase
party democracy and voter transparency while ensuring regional representation.
This model has also been supported by other international organisations
and bodies and we are pleased to note that most of the above-mentioned
drafts for changes to the Law on Election of People’s Deputies proposed
some form of regional component and open lists.
37. The 2004 amendments to the constitution introduced de facto
the principle of an imperative mandate in Ukraine by allowing a
mandate of a deputy to be terminated
Note if the deputy
did not join or left the parliamentary faction on whose list he
or she had been elected. As mentioned in the Venice Commission opinion
on the 2004 amendments to the constitution, this runs counter to
the notion of a free and independent mandate of a deputy and therefore
to European democratic standards.
38. The lack of proper legislation governing party financing and
effectively ensuring its transparency is of concern in Ukraine,
where political and financial interests are strongly intertwined
and their distinction is often blurred. Therefore, we would like
to reiterate the recommendation of the Assembly that the authorities
adopt a proper law on political party financing that is in line
with European standards and consider the possibility of state funding
for political parties to make them less dependent on financial interests.
39. We strongly urge the authorities, and indeed all political
forces, to demonstrate the commensurate political will to adopt
the unified election code and electoral system, in line with the
recommendations of the Assembly, well before the next parliamentary
elections take place. Given the repeated promises by all political forces
that they support electoral reform and a more democratic electoral
system, it would be unacceptable if the next parliamentary elections
were to be organised under the current system and legal framework.
40. On 1 July 2010, the Verkhovna Rada called for local elections
to be held on 31 October 2010. On 10 July, the Verkhovna Rada adopted
a set of changes to the Law of Ukraine on Elections of Members of
the Autonomous Region of Crimea Supreme Council, Local Councils
and City, Town and Village Heads, which, inter
alia, introduced a new electoral system for the city
councils. This law was not sent to the Venice Commission for opinion
but reportedly reduces the possibility for new entrants in the election
process by, inter alia, limiting
election registration to regional and local party branches that
have existed for more than one year, thereby limiting the choice
of voters and, as a result, the democratic nature of the elections.
In addition, we question the wisdom of changing the election system
so close to elections which have already been called, which runs
counter to accepted democratic standards.
3.3 Reform of the Prokuratura
41. Upon accession to the Council of Europe, Ukraine
made the following commitment: “the role and functions of the Prosecutor’s
Office will change (particularly with regard to the exercise of
a general control of legality), transforming this institution into
a body which is in accordance with Council of Europe standards”.
Note This commitment still remains
to be implemented.
42. A crucial shortcoming in the current system of the
Prokuratura is the general oversight
function of the prosecutor general, which is a remnant of the Soviet
concept of the
Prokuratura and
is contrary to European standards and values.
Note In the words of the Venice Commission,
the current law on the prosecutor’s office establishes “a very powerful
institution whose functions considerably exceed the scope of functions
by a prosecutor in a democratic, law abiding state”.
Note In
addition, there are concerns about the extensive powers conferred
on the prosecutor’s office, and the prosecutor general in particular,
which are not controlled or supervised by the court system and which
far exceed European norms. Moreover, some of these powers may be
at variance with the principle of separation of powers.
Note
43. Despite these serious concerns with regard to the general
oversight function of the Prokuratura,
this function was added to Article 121 of the constitution – which
describes the functions of the Prokuratura –
with the 2004 constitutional amendments. We would like to stress
that the Prokuratura can only
be genuinely reformed according to European standards, and therefore
this accession commitment can only be considered to be honoured
if constitutional amendments that remove the general oversight function
from the Prokuratura are adopted.
44. The Prosecutor General has argued that the oversight function
of his office is needed to ensure that all Ukrainians, independent
of their financial status, have full access to the justice system.
However, in our opinion, this can be better ensured by strengthening
the role of the ombudsperson and by adopting a system of free legal
aid for those in need, which we recommend that the authorities implement.
45. After a long period of inactivity on this subject, on 14 March
2009, the Verkhovna Rada passed, in a first reading, a draft law
(draft No. 2491) on the public prosecutor. On 18 May 2009, the then
minister of justice asked the Venice Commission for an opinion on
this draft law. In its opinion,
Note the
Venice Commission concluded that this draft did not address the
main criticisms and shortcomings that were outlined in earlier opinions
on the law on the public prosecutor and in essence did not intend
to reform the
Prokuratura as
in place today, but rather to consolidate, and even strengthen,
its already rather far-reaching powers. The Venice Commission therefore
recommended that this draft be withdrawn.
46. In his instructions, President Yanukovich made the reform
of the Prokuratura a priority,
in line with Venice Commission and Assembly recommendations. This
welcome intention was echoed during our recent visit to Kyiv, from
1 to 4 June 2010, during which both the minister of justice and
the head of the presidential administration, indicated that they
agreed that “general oversight” should be completely removed from
the functions of the prosecutor general’s office and that the powers
of the Prokuratura should
be reduced to meet European standards and values. We therefore strongly
recommend that draft law No. 2491 be withdrawn from the agenda of
the Verkhovna Rada and that a new draft on the Prokuratura, as well as corresponding constitutional
amendments, be submitted in the very near future.
3.4 Reform of the justice
system
47. The reform of the judiciary and justice system is
essential for the consolidation of a state of rule of law in Ukraine.
In general, the court system is paralysed by the high volume of
cases, leading to unreasonable delays in the examination of cases
and the delivery of judgments. In addition, judgments are often
not enforced. Public trust in the justice system is very low and
the judiciary is generally considered corrupt and underfunded.
Note The independence
of the judiciary remains a point of concern and the justice system
is heavily politicised. In October 2008, the Chairperson of the
Supreme Court of Ukraine, Mr Onopenko, stated that there was “unlawful
interference in the work of the judiciary, disregard for the legal
foundations of the work of the justice system and the courts [were]
being dragged into the political struggle”.
48. Regrettably, only limited progress has been made in the reform
of the justice system since the last report to the Assembly in April
2007. While many concept papers have been published and policy reforms
initiated, few have been implemented and a number of legal packages
are still pending in the Verkhovna Rada. This overall lack of progress
is a point of serious concern.
49. The current administration, like the previous one, has stated
that it considers the reform of the judiciary and the justice system
to be a priority. Central to the reform of the judiciary, and especially
necessary to ensure the independence of the judiciary, is the draft
law on the judicial system and the status of judges of Ukraine. This
draft law, which was originally adopted by the Committee on the
Judiciary of the Verkhovna Rada in June 2008, is the consolidation
of two previous draft laws which were combined upon the recommendation
of the Venice Commission in order, inter
alia, to improve their clarity and internal coherence.
After a series of consultations, this draft law was sent to the
Venice Commission for opinion in June 2009 by the then Minister of
Justice of Ukraine.
50. The joint opinion of the Venice Commission and the Directorate
of Co-operation within the Directorate General of Human Rights and
Legal Affairs of the Council of Europe,
Note which
was adopted in March 2010, welcomed the many positive features and
improvements made in comparison to the previous draft laws but noted
that a series of serious shortcomings and hiatus remain that could
undermine the independence of the judiciary and the principle of
separation of powers, and which, in their current form, are at variance
with European standards and values.
51. With regard to the organisation of the court system, Article
6 of the European Convention on Human Rights provides that courts
must be established by law. However, according to the draft law,
“courts of general jurisdiction shall be created and abolished by
the President of Ukraine on the basis of a motion by the Head of the
State Judicial Administration of Ukraine”. This wide discretion
for the president to establish courts is therefore not compatible
with the provisions of the Convention. In addition, the court system
consists of four levels of jurisdiction and is excessively complex
and heavy. This complexity could undermine the obligation under
Article 6 of the Convention to hear cases in a reasonable time.
However, these provisions can only be changed through constitutional
amendments as the establishment and organisation of the courts are
set out in the constitution.
52. With regard to the independence of the judiciary, the Venice
Commission opinion expresses concern about the role of the Verkhovna
Rada in the appointment of, and in the disciplinary and dismissal
proceedings with regard to judges This infringes on the independence
of judges and also politicises the appointment or removal process.
In addition, the presence of members representing the president,
the Verkhovna Rada, as well as the minister of justice, on the High
Qualification Commission, casts doubts on the independence of the latter
from political influence. Again, the role of the Verkhovna Rada
in the appointment and dismissal of judges is provided for in the
constitution; this would need to be changed for these processes
to be in line with European standards.
53. As regards judicial self-administration, which is an essential
element to ensure the independence of the judiciary, the opinion
notes that the proposed system is too complex and confusing to be
truly effective. This could become an obstacle to genuine self-administration
of the judiciary. A more simple structure, possibly based on a reformed
High Council of Justice, in which judges elected by their peers
would have a majority, should be put in place. Again, constitutional
changes would be necessary to achieve this as the composition of
the High Council of Justice is enshrined in the constitution.
54. It is clear that the subject matter of this draft law is constrained
by existing constitutional provisions; its scope for genuine reform
of the justice system, as required by Ukraine’s accession commitments,
is therefore extremely limited in the absence of amendments to the
constitution. The Venice Commission therefore “recommends to confine
judicial reform not to the legislative level but to undertake a
profound constitutional reform, aiming to lay down a solid foundation
for a modern and efficient judiciary in full compliance with European
standards”.
Note We fully support
this recommendation.
55. The Committee on the Judiciary tabled rather suddenly, on
14 May 2010, a revised version of the draft law which was adopted
in a first reading by the Verkhovna Rada on 2 June 2010, reportedly
without much deliberation. The speed with which this draft law was
introduced and processed raises some questions and doubts, especially
as no Venice Commission opinion on the revised version was requested
before its adoption in a first reading, even though the draft law
contains a number of potentially politically charged provisions.
This is an example of the haste with which key pieces of legislation
are being prepared and adopted, bypassing proper deliberation and
democratic procedures and giving rise to questions regarding the
political intentions of the new administration, especially given
the fact that the judiciary has been part of the political battlefield
in recent years.
56. The Monitoring Committee, at its meeting on 22 June 2010,
asked for an opinion of the Venice Commission on the draft law on
the judicial system and the status of judges as adopted in a first
reading on 2 June 2010. In parallel, a similar request for an opinion
was made by the Minister of Justice of Ukraine. At the moment of
writing this report, the Venice Commission had not yet finalised
its opinion. However, from the preliminary comments of the members
of the Venice Commission who were asked to prepare the draft opinion,
Note it
can be concluded that the revised draft as adopted in a first reading
has failed to address the main concerns expressed in the original
opinion of the Venice Commission and needs to be thoroughly revised before
it can be considered to be in compliance with European standards.
Again, the preliminary comments note that, without constitutional
amendments, it will not be possible to fully reform the judiciary
in line with European standards and values.
57. The revised version of the draft law contains new provisions
that substantially reduce the size and mandate of the Supreme Court.
The latter loses its jurisdiction in civil and penal matters in
favour of new specialised high courts. As mentioned above, these
new provisions are controversial and have led to allegations that
they were inspired by political power games and revenge, as the
chairperson of the Supreme Court is widely considered to be close
to former Prime Minister Yulia Timoshenko. This could potentially undermine
public trust in these very important reforms. It is worth noting
that the preliminary comments of members of the Venice Commission
on the revised draft law consider that the shift of jurisdiction,
combined with the transfer of current supreme court judges to the
specialised high courts, is a point of concern.
58. In our meetings with the Chairperson of the Verkhovna Rada
Committee on the Judiciary, the latter contended that the concerns
regarding the High Council of Justice could be resolved without
constitutional amendments. In that respect, he informed us that
the revised draft now demanded that the representatives of the President
and Verkhovna Rada on this body be judges, which would ensure that
a majority of the members of the Council would consist of judges.
However, we would like to emphasise that, in order to ensure genuine self-administration
and independence, the majority of the members should not only be
judges, but the members should also be elected by their peers. This
would require constitutional amendments.
59. On 13 May 2010, the Verkhovna Rada adopted Law No. 2181-VI
on Amendments to Legislative Acts concerning Prevention of Abuse
of the Right to Appeal. This law was signed into force by President
Yanukovich the next day. Again, the contents of this law, as well
as the haste with which it was adopted and signed into law, gave
rise to controversy.
60. This law makes changes to the Administrative Violations Code
of Ukraine, the Administrative Adjunction Code of Ukraine and the
Law on the High Council of Justice of Ukraine. These amendments
give the High Council of Justice the right to demand copies of case
files from any court, except those that take place in camera. In
addition, it creates administrative liability for not complying
with these requests for information. Taking into account that the
High Council of Justice is also responsible for disciplinary cases,
this could have the effect of intimidating judges. Moreover, the
amendments give the High Administrative Court the sole jurisdiction
over complaints against actions or inactions of the Verkhovna Rada,
of the president or of the High Council of Justice, without a right
of appeal, which is questionable. In a positive development, they
removed the right of the Verkhovna Rada to initiate the dismissal
of judges. However, this positive element is mitigated by the fact
that the Verkhovna Rada, like the president, remain represented
in the High Council of Justice and High Qualification Commission,
as well as the fact that judges elected/appointed by their peers
remain a minority on the High Council of Justice, despite its enlarged
powers.
61. On 7 July 2010, the Law on the Judicial System and the Status
of Judges of Ukraine was adopted in a final reading. It was signed
by the speaker of the parliament on 23 July 2010 and sent to President
Yanukovich, who signed it into force on 27 July 2010. We deeply
regret, and find it incomprehensible, that this law was adopted
and enacted without waiting for, and taking into account, the opinion
of the Venice Commission on it, despite the Monitoring Committee’s
call to do so. This raises serious doubts about the willingness
of the Verkhovna Rada and the administration to co-operate with
the Council of Europe in establishing a genuinely independent justice
system that is fully in line with the highest European standards.
62. We call upon the authorities to swiftly address any concerns
and implement any recommendations that may be contained in the opinions
of the Venice Commission on the Law on the Judicial System and the
Status of Judges and the Law on Amendments to Legislative Acts concerning
Prevention of Abuse of the Right to Appeal. However, we need to
underline that only commensurate constitutional amendments will
allow the country to meet its accession commitments and obligations
in this respect.
63. The reform of the Bar and the establishment of a professional
bar association is one of the original commitments that Ukraine
agreed to when acceding to the Council of Europe and it still remains
to be implemented. Various draft laws have been introduced but none
of them has been adopted. We regret that no co-operation from the
Council of Europe has been sought in the preparation of these drafts.
We therefore hope that the minister of justice and the Verkhovna
Rada will now prepare and adopt a new draft law on the Bar, in close
consultation with the relevant Council of Europe departments, in
order to satisfy this long-standing commitment.In addition, we would liketo highlight the importance of
an effective system of free legal aid to ensure the right to a fair
trial for all citizens. Although former President Yushchenko adopted
a concept paper on a free legal aid system in Ukraine, to date no
concrete progress has been made with regard to honouring this commitment.
64. In the field of the reform of the criminal justice system,
some limited progress has been made since the last report in 2007.
On 8 April 2008, President Yushchenko adopted the Concept Paper
on the Reform of the Criminal Justice System of Ukraine and, in
August 2008, the government approved the action plan to implement
this concept paper. On 15 April 2008, the parliament adopted a Law
on Amendments to the Criminal Code and Code of Criminal Procedure.
However, the adoption of a new code of criminal procedure, as well
as further amendments to the Criminal Code, are still necessary.
65. The adoption of a new criminal procedure code is one of the
outstanding commitments. A draft code was prepared by the previous
government, which was positively assessed by Council of Europe experts.
However, it was not tabled in the Verkhovna Rada and its current
status is unknown. In addition, another draft for a new criminal
procedure code, which was negatively assessed by the Venice Commission
in 2004, is still formally on the agenda of the Verkhovna Rada.
In the light of its negative assessment, we trust that this daft
will now be formally withdrawn. We welcome the fact that the adoption
of a new criminal procedure code is one of the priorities in the
instructions of President Yanukovich, and urge that the draft of
this code be sent to the Venice Commission for opinion, and that
any possible concerns will be addressed, and recommendations taken
into account, before the law is adopted in a final reading, unlike
what happened with the Law on the Judiciary and Status of Judges.
66. The subordination of the State Department for Execution of
Criminal Punishments to the Ministry of Justice is one of Ukraine’s
commitments to the Council of Europe. While the department was included
in the Ministry of Justice in 2006, its status should also be updated
in the Law on the Penitentiary Services, which therefore has to
be amended.
67. During our visits over the last two years, the lack of sufficient
funding for the justice system has been a constantly recurrent theme.
In many cases, courts and judges depend on space and material resources donated
by the private sector in order to function; this is a situation
in which corruption can easily flourish. The provision of sufficient
funding for the justice system should be one of the main priorities
for the Ukrainian authorities.
3.5 Fight against corruption
68. Corruption continues to be of concern in Ukraine
and public trust in the efforts of the authorities to curb corruption
remains low. In its 2009 compliance report, the Group of States
against Corruption (GRECO) concluded that Ukraine has only satisfactorily
complied with one third of the recommendations contained in the joint
first and second round evaluation report. It also notes that a successful
implementation of its recommendations requires extensive legislative,
as well as constitutional changes. GRECO especially considers the
establishment of a body to co-ordinate the development and oversee
the implementation of national anti-corruption strategies and action
plans as a main priority. In this respect, the GRECO compliance report
underlines that an effective fight against corruption in Ukraine
requires “a strong political commitment that goes far beyond the
elaboration of draft legislation”.
Note
69. A legislative package consisting of three anti-corruption
laws that were elaborated with the assistance of the Council of
Europe were adopted by the Verkhovna Rada in 2009. However, the
entry into force of this package, initially foreseen for 1 January
2010, was deferred in December 2009 by the Verkhovna Rada. The original
deferral of four months was prolonged by the Verkhovna Rada at the
beginning of 2010 until January 2011. In addition, the then President
Yushchenko vetoed, in December 2009, the anti-money laundering law that
was drafted with the assistance of the Council of Europe. Reportedly,
the Verkhovna Rada intends to adopt a series of new amendments to
the legislative package of anti-corruption laws in order to establish
the majority of votes needed to allow these laws to come into force.
70. The deferral of the anti-corruption package and the vetoing
of the anti-money-laundering law undermine the country’s efforts
to combat corruption and raise questions about the existence of
the necessary political will to fight corruption effectively. We
therefore urge the authorities to ensure that these laws are enacted
without any further delay.
71. President Yanukovich has made the fight against corruption
one of the priorities of his administration. For this purpose, he
established an anti-corruption committee in his administration,
which he chairs. However, in an act that seems to contradict the
stated goals of the new administration, one of the first decisions
of this committee was to postpone the appointment of the government
agent for the co-ordination of anti-corruption policies.
4 Recent human rights
issues
72. For the Assembly, the establishment of, respect for
and protection of democratic freedoms and liberties has been one
of Ukraine’s main achievements in recent years and is one of the
welcome legacies of the Orange Revolution. It should be noted that,
in the view of many election observers, it was precisely the entrenchment
of the respect for such fundamental freedoms that ensured the democratic
nature of the last presidential election, despite the severely flawed
legal framework.
73. The increasing number of recent allegations that the authorities
are curtailing these freedoms and that democracy is regressing in
the country are therefore of considerable concern. These allegations
have mostly centred on the freedom of the media, freedom of assembly
and increased pressure by the law enforcement agencies for political
purposes.
74. The media are generally considered free at the national level,
and government censorship does not exist.
Note However, an increasing
number of journalists and media representatives complain about increased interference
of owners on the editorial lines of their news programmes and therefore
a rise in self-censorship among journalists. The intertwinement
of financial and political interests in Ukraine negatively affects
media freedom and pluralism in this respect.
75. In May 2010, a number of journalists published a statement
alleging that taboo subjects and censorship had returned to two
national television stations, STB and 1+1. In addition, on 23 April
2010, the organisation Reporters Without Borders sent an open letter
to the president, expressing their concern about the erosion of the
right to information in Ukraine. On 21 May 2010, a number of journalists
and civic organisations announced the launch of a new movement “Stop
Censorship”, in reaction to the deteriorating media environment
in Ukraine.
76. The role of the state security services, and especially its
head, Mr Khoroshkovsky, who is a close ally of Mr Yanukovich, is
a point of controversy in Ukraine, where any possible influence
of the security services in political life is seen as highly suspicious
as a result of its recent history. Mr Khoroshkovsky is also owner
of TV Inter and is alleged to have ordered investigations by the
secret services into a disputed licensing decision, in which his
channel is a party. In addition, managers from TV Inter have reportedly
been appointed to key managing positions in the main state-owned
television channel, which is widely interpreted by the public as
an attempt by the new administration to bring the editorial line
of that broadcaster under its control.
77. Following an appeal filed by the media holding belonging to
the head of the security services, the Kyiv Circuit Court, on 8
June 2010, annulled the January 2010 decision of the National Broadcasting
Council to allocate broadcasting frequencies to two independent
television channels, TVi and 5 Kanal. Several media watchdogs, including
the Organization for Security and Co-operation in Europe (OSCE)
representative for the freedom of the media, expressed their concerns
about the effects of this decision on the pluralism of the media in
Ukraine.
78. In a worrisome development, attacks on journalists have been
on the rise in recent months, culminating in the disappearance,
on 11 August 2010, of Ukrainian journalist Vasyl Klymentyev, who
had been reporting on corruption cases in Kharkiv. On 19 August
2010, Interior Minister Anatoly Mogylyov admitted that Klymentyev’s
disappearance could be related to his reporting.
79. At the same time, the authorities have underlined, on several
occasions, their attachment to freedom of expression and freedom
of media. Following the open letters by the journalists, President
Yanukovich has publicly pledged to protect the freedom and pluralism
of the media in Ukraine and warned that any infringement by members
of his government or state officials would have serious consequences
for the perpetrators.
80. The role of the state security services, and especially its
head, Mr Khoroshkovsky, is not only controversial in relation to
the media but is also of concern in other respects. Recently, a
complaint was filed by the Rector of the Catholic University in
Lvyv, stating that a member of the state security services had requested
him, in a manner reminiscent of the Soviet era, to provide information
about any political activities of his students. President Yanukovich
expressed his dismay about this incident and announced a fully-fledged investigation
into it. However, the public unease with what it sees as increased
involvement in public life of the security apparatus has increased
following President Yanukovich’s appointment of Mr Khoroshkovsky
to the High Council of Justice, despite potential conflicts of interest.
Indeed, the state security services are responsible for investigating
any allegations against judges in Ukraine. This is a matter of concern.
81. A number of NGOs have complained that protest actions have
been broken up and their activists harassed, by the police and other
state law enforcement agencies. An example that has created some controversy
were the events surrounding the felling of trees in a city park
in Kharkiv to make space for a highway and commercial construction
that started on 19 May 2010. The decision to allow the felling of
the trees was reportedly made without respecting the necessary administrative
procedures and without environmental impact studies. When environmental
organisations and citizens organised a protest against the felling
of the trees and tried to hinder further felling, private security
guards, with the help of the local police, broke up this protest,
despite the fact that it had been peaceful. Further scuffles between
private security personnel and protesters continued during the following
days, with the police reportedly standing by or assisting the private security
personnel. In addition, a number of protesters were detained and
charged for disturbing public order, despite the peaceful nature
of the protest, which has raised some concerns among human rights
organisations, including Amnesty International in Ukraine. While
the events in Kharkiv deserve further investigation by the competent
authorities and are hardly a showcase for democratic behaviour,
in our opinion it would not be correct to consider this as symptomatic
of the national state of democracy generally or make any generalisations.
82. Despite the fact that Ukraine has a vibrant civil society,
it operates within an outdated and inadequate legal framework which,
in the view of the European Court of Human Rights, does not correspond
to European standards. NGOs can only operate in regions and cities
in which they are registered and must be registered in all regions
of Ukraine in order to have a nationwide status. A proposal for
a new law on civic organisations was submitted to the Verkhovna
Rada in 2008, but got stalled in the responsible committee.
Note The
elaboration and adoption of a new law on civil society organisations
is not part of the reforms package initiated by the president, but
we nevertheless hope that such a law will be adopted, in close consultation
with the Venice Commission, in the very near future.
83. Reportedly, requests for protests and demonstrations in front
of the Verkhovna Rada and a number of other government buildings,
which used to be abundant, have recently been refused by the authorities
and spontaneous protests in these places have been broken up. In
this respect, we note that the current legislation with regard to
the organisation of peaceful events and manifestations leaves a
wide margin of discretion to the authorities, which creates potential
for abuse. In December 2009, the Venice Commission and the Office
for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR) adopted a joint
opinion on the new draft law on order of organising and conducting
of peaceful events, which was adopted in a first reading by the
Verkhovna Rada on 3 June 2009. In this opinion, a number of recommendations
are given to reduce the possibility for abuse and increase the protection
of democratic principles. However, no follow-up has been given to
this opinion and the status of the draft law is currently unknown.
We urge the authorities to revive this legislative project and to
adopt this law, in line with Venice Commission recommendations,
in the very near future.
5 Conclusions
84. The presidential elections in Ukraine heralded a
stability in the political environment that has been lacking in
the country for many years. However, this stability is fragile and
the authorities are urged to implement constitutional reforms that
would create a robust and stable political framework with a clear separation
between the different branches of power and an effective system
of checks and balances between them. This is especially essential
as the polarisation between political forces has not ceased in society
and could easily result in renewed instability and political infighting.
In this context, the consolidation of power by the ruling majority
is understandable and, in the context of the years of political
infighting between the different branches of power in Ukraine, possibly
even desirable. However, utmost care should be taken that such consolidation
of power does not turn into a concentration or, even worse, a monopolisation,
of power in the hands of one political group, as this would undermine
the democratic development of the country.
85. The ambitious reform programme initiated with a view to fulfilling
the remaining accession commitments, as well as ongoing membership
obligations, to the Council of Europe should be strongly welcomed
and supported. In that spirit, we have outlined our recommendations
and, where necessary, expressed our concerns, for the main components
of this reform. However, the haste in which these reforms are being implemented
comes at the cost of proper democratic procedures and a proper deliberation
and consultation process. This is a point of serious concern that
should be addressed by the authorities. We would like to underscore
that far-reaching reforms are needed to meet the remaining accession
commitments, which by their nature should be based on an as wide
a political consensus as possible and public support for them, in
order for them to be effective. This is only possible if respect
for parliamentary procedures and democratic principles is observed.
In addition, we call upon the authorities and leadership of the
Verkhovna Rada to ensure that the Council of Europe is consulted
on the different reforms and, most notably, that the Venice Commission
is asked for an opinion on the final versions of the laws before
they are adopted in a final reading.
86. It is clear that the scope for reforms in many areas is limited
under the current constitutional provisions. It will therefore not
be possible to implement the reforms necessary for Ukraine to meet
its commitments to the Council of Europe without satisfactorily
implementing the constitutional reforms recommended by the Assembly.
The main priority for the authorities should therefore be to implement
the constitutional reform project, after which more specific legislation
can be elaborated and enacted that is fully in line with European standards
and values. In this respect, it should be emphasised that the Assembly,
on several occasions, has recommended amending the current constitution,
instead of adopting an entirely new one.
87. A clear and unwavering respect for democratic rights and freedoms
has been one of the main achievements in Ukraine’s democratic development
in recent years. Any regression in the respect for, and protection
of, these rights would be unacceptable for the Assembly. The increasing
number of allegations that democratic freedoms, such as freedom
of assembly, freedom of expression and freedom of the media, have come
under pressure in recent months is therefore of concern. However,
while some incidents raise concern, and while we feel that any possible
violation of democratic norms and human rights are in principle unacceptable
and should be fully investigated and remedied, we feel that it is,
as yet, not possible to discern any systematic trend that would
suggest that the authorities are not committed to fully adhering
to the principles of human rights and democratic freedoms. However,
we would like to call upon the authorities to react more clearly
and more proactively to these allegations than has been the case
till now.
