Resolution 1466 (2005)1
Honouring of obligations and commitments
by Ukraine
1. Ukraine joined the Council
of Europe on 9 November 1995. Upon accession, it committed itself to respect
its general obligations under the Statute of the Council of Europe, namely
pluralist democracy, the rule of law and respect for human rights and fundamental
freedoms of all persons under its jurisdiction. At that moment, Ukraine
also agreed to comply, within set deadlines, with a number of specific
commitments listed in Assembly Opinion
No. 190 (1995).
2. In 2004 Ukraine went through
critical presidential elections: two fraudulent rounds of voting in October
and November 2004 provoked non-violent, massive popular protests and led
to a repeat second round on 26 December that in general complied with Council
of Europe standards of free and fair elections. Ukrainian people thus demonstrated
their commitment to democratic values and aspirations for a better leadership
that would reinforce the rule of law and human rights in the country and
fight corruption.
3. To live up to the high expectations
generated by the Orange Revolution, the new leadership has pledged sweeping
political, legal, social and economic reforms. In the first nine post-revolution
months, it has nonetheless encountered numerous difficulties originating
in particular from the rule of the previous regime as well as from internal
conflicts within the new administration. The
Assembly urges the Ukrainian authorities to carry on with the reform process
and not to let political competition jeopardise the country’s development.
4. The Assembly welcomes the
positive evolution in Ukraine and the first achievements of the new authorities.
It hopes that the new leaders will manage to preserve their steadfast resolve
and to succeed in the crucial reforms, which Ukraine badly needs. In this
regard, the preparation and conduct of the 2006 parliamentary and local
elections in line with Council of Europe standards will be a major test
for the new authorities. The 2006 elections will show whether Ukraine has
passed the point of no return on its road to becoming a truly democratic
European state governed by the rule of law. In this respect, the Assembly
declares its readiness to send a pre-electoral mission to Ukraine to follow
the preparations for the elections and subsequently to deploy a large-scale
observer mission to follow their conduct.
5. In its Resolution
1346 (2003) on the honouring of obligations and commitments
by Ukraine, the Assembly concluded that, although notable progress
had been made by Ukraine in the field of legislation since the adoption
of the Assembly’s Resolution
1262 (2001), the country had not yet honoured all obligations
and commitments it entered into on becoming a member state of the Council
of Europe, and that the rule of law in many areas had not yet been
fully established.
6. The Assembly is pleased
to note that Ukraine has since made further significant progress:
6.1. a new Code of Civil Procedure
entered into force on 1 September 2005;
6.2. a Code of Administrative
Justice was adopted in July 2005 and put into effect on 1 September 2005,
enabling the operation of administrative courts;
6.3. all pre-trial detention
centres have been transferred to the State Department for the Execution
of Punishments;
6.4. a new code on the execution
of sentences has been enacted and the number of persons in custody has
significantly decreased;
6.5. publication of the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) report has been authorised;
6.6. a law on public financing
of political parties came into effect on 1 January 2005;
6.7. a law that reinforced
legislation on prosecution of acts of torture and the protection of the
rights of detainees and persons placed under arrest was adopted in January
2005;
6.8. the reservation to Article
5, paragraph 3, of the European Convention on Human Rights (ETS No. 5)
has been withdrawn;
6.9. a law strengthening the
state service for enforcement of non-criminal judicial decisions was adopted
in June 2005;
6.10. the draft law on the
establishment of the system of public television and radio in Ukraine was
adopted in the first reading as well as a new version of the Law on Television
and Radio Broadcasting; a new law on the national council on broadcasting
was enacted;
6.11. Protocol No. 14 to the
European Convention on Human Rights (CETS No. 194) and the recent Convention
on the Prevention of Terrorism (CETS No. 196) were signed respectively
in November 2004 and May 2005;
6.12. the
ratification procedure with regard to the European Charter for Regional
or Minority Languages (ETS No. 148) was finally concluded in September
2005;
6.13. the
European Agreement relating to Persons Participating in Proceedings of
the European Court of Human Rights (ETS No. 161), the Civil Law Convention
on Corruption (ETS No. 174) and the Convention on Cybercrime (ETS No.
185) were ratified in November 2004, March 2005 and September 2005 respectively.
7. The Assembly also commends
the new authorities for eliminating the previously widespread censorship
practices with regard to mass media and ensuring freedom of expression
and freedom of assembly throughout the country. Furthermore, the
new leadership has committed itself to fighting corruption and trafficking
in human beings and tackling the problem of torture and ill-treatment.
8. Whilst welcoming the zeal
of the new authorities with regard to the prosecution of previous election
frauds, the Assembly underlines that it is of utmost importance to bring
to justice not only those who executed illegal orders but most of all the
masterminds behind the massive election fraud, those who instigated violence
or bribed voters, in order to prevent future infringements and to instil
the principles of the rule of law.
9. The Assembly notes that
the new wording of the Law on the Election of People’s Deputies, adopted
in July 2005, has significantly enhanced the election procedures and taken
account of the recommendations of international observers issued after
the last presidential elections. However, the new law introduces the possibility
to suspend the activities of media outlets, including without a prior court
decision, which is highly likely to lead to abuse. The Assembly, therefore,
urges the Ukrainian authorities to amend this provision as soon as possible,
and to enact legislation on the state registry of voters. Legal liability
for election violations listed in the new law should be established as
well.
10. Five
years after the disappearance and murder of the journalist Gongadze,
the Assembly is dissatisfied that after the indictment in March 2005
of the alleged direct perpetrators of the murder, the investigation of
the case has been stalled, in particular as regards the prosecution of
those who ordered and organised this crime. It regrets that the case
against those who allegedly carried out the murder has been separated
from the main case file, and that the offence has been qualified as a
murder committed by a group of persons following their prior collusion,
which is seen as a step towards excluding from the prosecution the masterminds
and organisers. In addition, Mrs Gongadze’s lawyer has been suspended;
no inquiry into the previous, ineffective investigation of the case has
been conducted; and the law-enforcement bodies failed to prevent the
death of the former Minister of the Interior, who committed suicide in
suspicious circumstances, and to apprehend General Pukach, who is suspected
of being the link to the masterminds, etc. The Ukrainian authorities
have also failed, so far, to implement the provisions of the Assembly’s
resolutions requesting a new investigation into the Yeliashkevych case
and a credible examination of the Melnychenko recordings.
11. Whilst welcoming the broad
reform agenda of the new authorities, the Assembly considers that the following
specific measures need to be taken in order to accelerate the reforms that
will transform Ukraine into a stable and prosperous European democracy.
12. With respect to the improvement
of the conditions for the functioning of pluralist democracy in the country,
the Assembly calls on the Ukrainian authorities to:
12.1. adopt the laws on the
functioning of the branches of power, as required by the constitution,
in particular to enact as soon as possible the laws on the President of
Ukraine and on the Cabinet of Ministers of Ukraine;
12.2. strengthen the oversight
function of the parliament, in particular to adopt the law on the
Verkhovna Rada’s temporary special and investigatory commissions; establish
legislative guarantees and conditions for the functioning of parliamentary
opposition; streamline the parliament’s internal activity by
adopting a law on the new Rules of Procedure;
12.3. continue the reform of
local self-government in order to implement the provisions of the European
Charter of Local Self-Government (ETS No. 122);
12.4. transform the state broadcasters
into public service broadcasting channels in line with relevant Council
of Europe standards; start privatisation
of the printed media founded by public authorities; guarantee the
transparency of media ownership; create equal conditions for the functioning
of all media by revising the 1997 Law on Governmental Support for the Media
and Social Protection of Journalists; ratify the European Convention on
Transfrontier Television (ETS No. 132); ensure
that the new version of the Law on Television and Radio Broadcasting is
in line with Council of Europe standards and with the recommendations of
its experts.
13. With regard to the respect
for the rule of law and protection of human rights, the Assembly calls
on the Ukrainian authorities:
13.1. to continue the reform
of the judiciary in order to ensure its independence and effectiveness.
To this end, in particular, it is necessary to subordinate the State Judicial
Administration to the judiciary; to transfer to the latter the authority
to appoint presidents of courts; to allocate all necessary resources to
it, notably for the functioning of administrative courts vested with the
adjudication of election disputes; and to guarantee by law the level of
remuneration of judges;
13.2. to ensure that the composition
of the Constitutional Court of Ukraine is renewed without undue delay after
the expiration of the term of office of its justices;
13.3. to establish a professional
Bar association, by adopting a new law on the Bar without further delay,
as required by Assembly Opinion No. 190 (paragraph 11.ix) and in compliance
with the principles of the Council of Europe and the case law of the European
Court of Human Rights;
13.4. regretting the step back
in the reform of the Prokuratura marked by the December 2004 constitutional
amendments, to modify the role and functions of this institution as required
by Assembly Opinion No. 190 (paragraph 11.vi) and paragraph 9 of the transitory
provisions of the 1996 Constitution of Ukraine and in line with Assembly Recommendation
1604 (2003) on the role of the public prosecutor’s
office in a democratic society governed by the rule of law;
13.5. to reform the Security
Service of Ukraine in line with Council of Europe standards, in particular
Assembly Recommendations 1402
(1999) and 1713 (2005);
13.6. to finalise the new version
of the draft code of criminal procedure and adopt it without further delay
to comply with the commitment for which the initial deadline expired in
November 1996. The final version of the draft code should be debated in
the parliament only after the opinion of Council of Europe experts on the
final text is obtained and taken into account;
13.7. to further improve conditions
of detention and medical treatment in the penitentiary establishments and
detention facilities in line with CPT standards and recommendations;
finalise the transfer of the State Department for the Execution of Punishments
to the Ministry of Justice as required by Opinion No. 190 (paragraph 11.vii); establish
an independent body at national level to monitor places of detention and continue
the commendable practice of authorising the publication of CPT reports
with respect to Ukraine;
13.8. to continue efforts aimed
at fighting corruption and make sure that economic reforms do
not simply lead to the redistribution of power among oligarchs; take full
advantage
of Ukraine’s participation in GRECO and ratify the Criminal
Law Convention on Corruption (ETS No. 173);
13.9. to step up the activities
in the field of combating trafficking in human beings, allocate sufficient
resources for this purpose and ratify the Council of Europe Convention
on Action against Trafficking in Human Beings (CETS No. 197);
13.10. to ensure full and speedy
implementation of the decisions of the European Court of Human Rights, in particular in the cases of Sovtransavto and Melnychenko;
adopt the law on the execution of decisions of the European Court of Human
Rights and ratify Protocol No. 14 to the Convention;
13.11. to improve the democratic
control over the law-enforcement bodies, continue to apply a zero-tolerance
policy and to secure a prompt, impartial and full investigation into all
allegations of torture and other ill-treatment, including prosecution and
punishment of those responsible for these acts and
ensure reparation to victims or their families;
13.12. to guarantee the protection
against arbitrary or illegal detention; secure strict compliance by law-enforcement
bodies with the principles of due criminal procedure in accordance with international standards, including guaranteeing all
detainees prompt and regular access to lawyers and to a doctor of their
choice, and ensuring that all detainees have their relatives promptly informed
of their whereabouts, in particular whilst investigating election
and corruption related offences; abrogate provisions which
allow the prosecution to ban an attorney from the representation
of his/her clients if a criminal case was instituted against him/her, as
incompatible with the standards of the Council of Europe; ensure that state
officials making public statements respect the presumption of innocence;
13.13. to improve the conditions
of access to a court by establishing a system of free legal aid in line
with Council of Europe standards and the case law of the European Court
of Human Rights;
13.14. to establish effective
control over the interception of communications by law-enforcement bodies
and to this end adopt special legislation, which would comply with the
democratic standards on the protection of privacy and national security;
13.15. with regard to the Gongadze case
and following the promise of the new leadership to solve the case and the
indictment of the alleged perpetrators, to consider
the investigation as being complete only when the case, which includes
the indictments against all those who ordered, organised and carried out
the murder, is sent to court; to investigate and if necessary prosecute
the officials responsible for the shortcomings of the previous and current
investigations;
13.16. referring to Assembly
Resolutions 1239 (2001), 1262
(2001), and 1346 (2003),
to conduct a credible examination of the recordings allegedly made by Mykola
Melnychenko and obtain his testimony; launch a new investigation into the Yeliashkevych case
and other high-profile cases allegedly documented on the Melnychenko recordings;
to hold as soon as possible a parliamentary
hearing, open to the public, on the Gongadze case in the Verkhovna
Rada of Ukraine;
13.17. to enhance the legal
framework for access to information, strictly adhere to Article 34 of the
Ukrainian Constitution on freedom of information while classifying documents,
and to declassify all official documents which were closed to the public
contrary to the law;
13.18. to introduce clear rules
on the restitution of church property as required by Opinion No. 190 (1995)
(paragraph 11.xi);
13.19. to ratify Protocol No.
12 to the European Convention on Human Rights (ETS No. 177);
13.20. to implement in good
faith the Framework Convention for the Protection of National Minorities
(ETS No. 157), especially in the field of education, and revise the 1992
Law on National Minorities in Ukraine taking into account the recommendations
of the European Commission for Democracy through Law (Venice Commission)
and the Advisory Committee on National Minorities;
13.21. to ratify as soon as
possible the revised European Social Charter (ETS No. 163).
14. The
Assembly recalls its Resolutions 1346
(2003) and 1364
(2004), where it emphasised
that all provisions of the constitution in force should be thoroughly
respected and that the recommendations of the Venice Commission should
be fully taken into account within the process of amending the Constitution
of Ukraine. It deeply regrets that the constitutional amendments of 8
December 2004, adopted as part of a package deal to halt the political
turmoil, contained provisions which the Venice Commission has repeatedly
found incompatible with the principles of democracy and the rule of law,
in particular with regard to the imperative mandate of people’s
deputies and the powers of the Prokuratura. The Assembly is also
concerned that the new constitutional changes were adopted without prior
consultation with the Constitutional Court, as envisaged by Article 159
of the Ukrainian Constitution and interpreted in the Constitutional Court
of Ukraine’s decision of 1998. Therefore, the Assembly urges the
Ukrainian authorities to address these issues as soon as possible in
order to secure the legitimacy of the constitutional amendments and their
compliance with European standards.
15. In
light of the above, the Assembly resolves to pursue its monitoring of the
honouring of obligations and commitments by Ukraine and to return to the
assessment of Ukraine’s compliance with its obligations and commitments,
and to consider the possibility of moving over to a post-monitoring dialogue
with the Ukrainian authorities after the March 2006 parliamentary
and local elections.
1. Assembly
debate on 5 October 2005 (28th Sitting) (see Doc.
10676, report of the Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe (Monitoring Committee),
co-rapporteurs: Mrs Severinsen and Mrs Wohlwend).
Text adopted by the Assembly on 5 October 2005 (28th Sitting).
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