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Resolution 1862 (2012) Final version
The functioning of democratic institutions in Ukraine
1. The Parliamentary Assembly welcomes
the continuing co-operation with the Ukrainian authorities in the framework
of the monitoring procedure of the Assembly. It notes with satisfaction
that a number of important steps have been taken by the authorities
in order to honour outstanding accession commitments, including
with regard to the fight against corruption. It welcomes the close
co-operation developed between the Council of Europe and the Ukrainian
authorities in implementing the necessary reforms. However, the
Assembly regrets that the prosecution of former government leaders
in Ukraine is negatively affecting the country’s closer European
integration.
2. The Assembly expresses its concern with regard to the criminal
proceedings initiated under Articles 364 (abuse of office) and 365
(exceeding official powers) of the Criminal Code of Ukraine against
a number of former government officials, including the former Minister
of the Interior, Mr Juriy Lutsenko, the former acting Minister of
Defence, Mr Valeriy Ivashchenko, and the former first Deputy Minister
of Justice, Mr Yevhen Korniychuk, as well as the former Prime Minister,
Ms Yulia Tymoshenko.
3. The Assembly considers that Articles 364 and 365 of the Criminal
Code are overly broad in application and effectively allow for ex post facto criminalisation of
normal political decision making. This runs counter to the principle
of the rule of law and is unacceptable. The Assembly therefore urges
the authorities to promptly amend these two articles of the Criminal
Code in line with Council of Europe standards and to drop the charges against
former government officials which are based on these provisions.
The Assembly wishes to emphasise that the assessment of political
decisions and their effects is the prerogative of parliaments and,
ultimately, of the electorate, and not of the courts. In this respect,
the Assembly asks the President of Ukraine to consider all legal
means available to him to release these members of the former government
and to allow them to stand for the upcoming parliamentary elections.
It considers that strict international standards delimiting political
and criminal responsibility need to be developed.
4. The Assembly regrets the numerous shortcomings noted in the
trials against former government officials and considers that they
may have undermined the possibility for the defendants to obtain
a fair trial within the meaning of Article 6 of the European Convention
on Human Rights (“the Convention”, ETS No. 5). In this respect,
the Assembly takes note of the fact that the European Court of Human
Rights decided to fast-track an application of Ms Tymoshenko concerning
her detention in which she alleges violations of Articles 3, 5 and
18 of the Convention.
5. In the view of the Assembly, these shortcomings are the result
of structural deficiencies in the justice system in Ukraine. These
deficiencies are not new and have been long-standing concerns of
the Assembly, relating, inter alia,
to the lack of independence of the judiciary; the excessive recourse
to, and length of, detention on remand; the lack of equality of
arms between the prosecution and defence, as well as the inadequate
legal reasoning by the prosecution and courts in official documents
and decisions.
6. With regard to the independence of the judiciary, the Assembly:
6.1. reaffirms its deep concern about
the lack of independence of the judiciary and considers that this is
the principal challenge for the justice system in Ukraine;
6.2. considers that the current judicial appointment procedure
undermines the independence of the judiciary. It invites the authorities
to abolish, or at least considerably shorten, the five-year probationary period
for judges and to remove the Verkhovna Rada from the appointment
process;
6.3. considers that judges in their probation period should
not preside over politically sensitive or complex cases;
6.4. considers that the composition of the High Council of
Justice runs counter to the principle of separation of powers and
also undermines the independence of the judiciary. The Assembly
therefore asks for amendments to be adopted to the relevant laws
that effectively remove the representatives of the Verkhovna Rada,
the President of Ukraine and the Prokuratura from membership in
the High Council of Justice. Pending the adoption of these amendments,
these three institutions should appoint non-political members to
the High Council of Justice;
6.5. invites the Verkhovna Rada to promptly adopt the necessary
constitutional amendments that would remove the provisions which
impede the implementation of the Assembly’s recommendations mentioned
in paragraphs 6.2 and 6.4;
6.6. expresses its concern about the many credible reports
that disciplinary actions have been initiated, and judges removed
from office by the High Council of Justice, on the basis of complaints
from the prosecutor’s office because the judges in question had
decided against the prosecution in a given court case. Such practices
are incompatible with the principle of the rule of law and should
be stopped at once.
7. With regard to detention on remand, the Assembly:
7.1. expresses its concern regarding
the excessive recourse to detention on remand, often without justification
or valid reasons, in the Ukrainian justice system;
7.2. notes in this regard that unlawful and excessive detention
on remand is one of the major issues in judgments handed down against
Ukraine by the European Court of Human Rights;
7.3. reaffirms that, in line with the principle of presumption
of innocence, detention on remand should only be used as a measure
of last resort when there is a clear risk of absconding or subversion
of justice;
7.4. calls on the authorities to ensure that the Criminal Procedure
Code provides a clear procedure for the review of the lawfulness
and duration of detention on remand. In addition, guidelines should
be given to ensure that detention on remand is only applied as a
measure of last resort and only on the basis of a well-grounded
decision by a court.
8. With regard to equality of arms between the prosecution and
defence, the Assembly:
8.1. notes
with concern the bias in favour of the prosecution which is endemic
in the Ukrainian justice system;
8.2. calls on the authorities to ensure that, in the Criminal
Procedure Code, equality of arms between the prosecution and defence
is guaranteed both in law and in practice;
8.3. invites the authorities to ensure in particular that the
Criminal Procedure Code explicitly provides for the defence to be
given a copy of the case file of the prosecution and a reasonable
amount of time to familiarise itself with the file, under the control
of a judge;
8.4. welcomes the fact that the President of Ukraine has submitted
a new draft criminal procedure code for consideration by the Verkhovna
Rada and calls on the Verkhovna Rada to promptly adopt this law,
which fully takes into consideration the recommendations made by
the Council of Europe during its analysis of the draft law.
9. With regard to the structural deficiencies in the legal system,
the Assembly regrets that the reform to bring the prosecutor’s office
in line with Council of Europe standards, which is one of Ukraine’s
accession commitments, has yet to be carried out. As a result, the
Prokuratura remains an excessively centralised institution with
excessive powers.
10. The Assembly notes with concern reports that the health of
the former Minister of the Interior, Mr Juriy Lutsenko, and of the
former acting Minister of Defence, Mr Valeriy Ivashchenko, who are
in detention on remand, is rapidly deteriorating and that both of
them need medical treatment outside the prison system. The Assembly
asks that both men be released at once for humanitarian reasons
pending the outcome of their trial, and in view of its concerns
regarding recourse to detention on remand in Ukraine. The Assembly
also expresses its concern about the deteriorating health of Ms
Tymoshenko and calls on the authorities to allow, without preconditions,
medical examinations and, if necessary, treatment by independent
doctors outside the prison service.
11. The Assembly welcomes the fact that a number of important
reforms were implemented, inter alia,
in the area of the integration of the Ukrainian economy into the
European economic space. This underscores the importance given by
the authorities to the greater European integration of the country.
12. The Assembly recognises the outcome of the 15th Ukraine–European
Union Summit, which took place on 19 December 2011 in Kiev, in relation
to the Association Agreement between Ukraine and the European Union.
It is particularly important that both sides recognised that the
association agreement would constitute a new stage in the development
of Ukraine–European Union contractual relations aiming at political
association and economic integration.
13. The Assembly reaffirms its position that it will not be possible
to implement the reforms necessary for Ukraine to meet its commitments
to the Council of Europe without first reforming the current constitution.
It therefore calls on the President and the Verkhovna Rada to promptly
initiate a comprehensive constitutional reform process and not to
delay this until after the next parliamentary elections have taken
place. The Assembly welcomes the positive opinion given by the European
Commission for Democracy through Law (Venice Commission) to the
concept paper for a constitutional assembly, which the Assembly
expects to be the basis of the constitutional reform process. In
addition, the Assembly urges the authorities to make full use of
the recommendations given in the Venice Commission’s opinions on
previous drafts for constitutional reform.
14. The Assembly welcomes the systematic requests by the authorities
for the opinion of the Venice Commission on the draft laws they
prepare. However, it notes that, on several occasions, the draft
laws on which opinions had been asked were subsequently withdrawn
and that the recommendations of the Venice Commission were not taken
into account in the laws ultimately adopted by the Verkhovna Rada.
The Assembly therefore urges the authorities to take fully into
consideration the opinions of the Venice Commission when preparing
new laws, including opinions on previous draft laws on the same
subject matter. In this context, the Assembly expects the positive
opinions given on the draft laws – prepared by the Presidential
Commission for the Strengthening of Democracy – on the bar, on freedom
of assembly and the concept paper on the establishment of a constitutional
assembly, to be taken into consideration in the draft laws that
are sent to the Verkhovna Rada for adoption.
15. The Assembly takes note of the adoption, on 17 November 2011,
of the Law of Ukraine on the Election of People’s Deputies. While
welcoming that a number of its previous concerns were addressed,
the Assembly regrets that its main recommendations, namely the adoption
of a unified electoral code, and the adoption of a regional proportional
election system, were not implemented. With regard to the new electoral
legislation, the Assembly:
15.1. welcomes
the adoption, by a broad consensus and with the participation of
the opposition, of the parliamentary electoral law as a first step
on the way to unified electoral legislation;
15.2. emphasises that the adoption of this parliamentary electoral
law should not be used as a pretext for not adopting a unified electoral
code, which is still needed to ensure a coherent legal framework
for all elections in Ukraine which is fully in line with European
standards;
15.3. is concerned that the raising of the threshold for the
proportional elections to 5%, combined with the prohibition on parties
to form electoral blocs to run in the elections, might negatively
affect the opportunities for new or smaller parties to enter parliament.
The Assembly is concerned that these provisions could reduce pluralism
and further increase polarisation in the new parliament. It recommends
that the threshold be lowered and the prohibition on electoral blocs
be removed from the electoral legislation before the next parliamentary
elections. In order to increase pluralism and encourage participation
of national minorities in public life, the Assembly recommends that,
when delineating constituencies for the 2012 parliamentary elections,
the Central Electoral Commission ensures inclusion in a single constituency
national minority groups that live compactly in certain areas;
15.4. regrets the provisions included in this law that limit
the right to stand for election for anyone convicted of a crime,
regardless of the severity of the crime committed. Recognising that
these provisions are based on Article 76 of the Constitution of
Ukraine, the Assembly proposes to promptly remove them in the framework
of the constitutional reform process that was recommended by the Assembly;
15.5. calls on the authorities to fully implement the recommendations
of the Council of Europe Group of States against Corruption (GRECO)
with regard to political party financing.
16. The Assembly considers that the upcoming parliamentary elections
will be a litmus test for Ukraine’s commitment to democratic principles.
The Assembly is of the view that international observation of these elections
will substantially contribute to their democratic conduct. It considers
that it should contribute to the international election observation
with a large delegation.
17. The Assembly notes that several important accession commitments
have still not been fulfilled, despite the fact that Ukraine acceded
to the Council of Europe in 1995, nearly seventeen years ago. The
successive governments, as well as the Verkhovna Rada and its political
factions, share responsibility for this failure. In Resolution 1755
(2010) on the functioning of democratic institutions in Ukraine,
the Assembly welcomed the ambitious reform programme of the authorities
to honour the remaining accession commitments. Despite the initial
positive results in several areas, the Assembly is concerned about
signals that the drive and political will to implement these reforms
are diminishing. The Assembly therefore urges the authorities, as
well as all political forces in the country, to implement promptly
the reforms needed to honour Ukraine’s accession commitments and
to build a robust democracy in the country.
18. The Assembly considers that the implementation of its recommendations,
and especially those relating to the criminal prosecution of former
government officials, would signal the commitment of the authorities
to the norms and values of the Council of Europe. Conversely, failing
to do so within a reasonable time frame would raise serious questions
regarding the authorities’ commitment to the principles of democracy
and the rule of law, which should lead to an appropriate response
from the Assembly. The Assembly therefore invites the Monitoring
Committee to follow the situation closely and to propose any further
action to be taken by the Assembly as required by the situation,
including with regard to the possible consideration of sanctions
if the Assembly’s demands are not met.