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Addendum to the report | Doc. 12357 Add | 04 October 2010
The functioning of democratic institutions in Ukraine
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
1. Introduction
1. Following the adoption by the committee, on 9 September
2010, of our report on the functioning of democratic institutions
in Ukraine we decided to carry out a fact-finding mission to Ukraine
to have an exchange of views with the authorities and the different
political forces in Ukraine, as well civil society, on the findings presented
in the report, as well as to update ourselves on the latest developments
in the country before the debate in the Parliamentary Assembly on
the report.
2. The visit took place from 28 to 30 September 2010. Due to
other important commitments in her national parliament, Mrs Renate
Wohlwend had to cancel her participation in this visit. During the
visit, Ms Reps met the president, the prime minister, the speaker
of the parliament, the Chairman of the Legal Affairs Committee of
the Verkhovna Rada, the chairperson and members of the Ukrainian
delegation to the Assembly, members of the opposition, including
former Prime Minister Yulia Timoshenko, the Chairperson of the Investigative Committee
of the Verkhovna Rada for the issuing of broadcasting licences,
representatives of the media and civil society in Ukraine, as well
as members of the diplomatic community in Kyiv. We wish to express
our gratitude to the Verkhovna Rada and Representative of the Secretary
General of the Council of Europe in Kyiv, and his staff, for the
programme and hospitality.
3. As mentioned in our report, the political atmosphere in Ukraine
remains tense and polarised. This polarisation has not decreased
since our last visit and has possibly increased. It is important
that the monitoring procedure, and our findings and recommendations,
are not used as an instrument in the current stand-off between the
ruling coalition and opposition parties, and Ms Reps therefore stressed
in all meetings with our interlocutors the neutrality and the impartiality
of both our approach and the findings in the report. To our great satisfaction,
most interlocutors, from both the opposition and ruling coalition
– including President Yanukovich and other high representatives
of the authorities – acknowledged that the report was balanced,
impartial and constructive, even if they disagreed with some of
the findings or recommendations.
4. President Yanukovich, as well as members of the government,
repeatedly stressed the importance they attached to co-operation
with the Council of Europe, as well as their commitment to honouring
the obligations and remaining accession commitments of Ukraine to
our Organisation. In this respect, they underscored that if, as
a result of the need for urgent implementation of reforms, laws
were adopted before receiving opinions of the Council of Europe,
and most notably those of the European Commission for Democracy
through Law (Venice Commission), this would not preclude the adoption
of new amendments later on to address the recommendations in such
opinions. These clearly expressed commitments should be welcomed.
5. Regrettably, the concerns we noted in our report, especially
with regard to democratic rights and freedoms, not only remain but
actually seem to have augmented since the previous visit. We referred
to isolated incidents, which we could not at that moment discern
as a systemic trend. Now clearer patterns seem to emerge. These
patterns could be worrisome if not immediately addressed and reversed.
A number of findings and observations fall outside the scope of
the report or need to be analysed in more detail. Their analysis
will be part of our full report on the “honouring of obligations
and commitments by Ukraine” that we intend to finalise during the
coming year. In this addendum, we will limit ourselves to outlining
briefly the main issues that are of direct relevance to our current
report and proposing amendments to our draft resolution in line
with our findings. In addition, we will propose a small number of
amendments to clarify and strengthen our original text or to adjust
some facts.
2. Developments since the adoption of the draft report
2.1. Constitutional reform
6. On 1 October 2010, the Constitutional Court of Ukraine,
following an appeal by 252 parliamentarians from the ruling coalition,
ruled that the procedures for the adoption of the 2004 constitutional
amendments had violated the constitution and therefore declared
these amendments unconstitutional and ordered the parliament to
bring the current legislation back into line with the previous Constitution
of 1996. At the moment of writing, a few hours after the Constitutional
Court decision, it is impossible to gauge all the legal implications of
this decision, which has considerably strengthened the power of
President Yanukovich. While this decision will possibly remove some
of the constitutional constraints surrounding reforms that are mentioned
in the report, others remain and new ones may have been introduced.
We will analyse the impact of the new constitutional environment
in our next report. However, at this moment it is important to underscore
that this decision must not be used as a pretext to avoid the constitutional
reform called for by, inter alia, the
Assembly. Instead, this decision should be used in order to initiate
a genuine constitutional reform process in the Verkhovna Rada with
the aim of bringing Ukraine’s Constitution fully into line with
European norms and standards.
7. Recently, in a rare event, four judges of the Constitutional
Court resigned simultaneously and were replaced by judges generally
considered as being sympathetic to Mr Yanukovich. One of the judges
that resigned cited that he was put under pressure to do so. The
fact that these four newly appointed judges reportedly tipped the
decision in favour of Mr Yanukovich will only add to the controversy
surrounding this decision and allegations that the current authorities
intend at all cost to monopolise the power in the country.
8. During the visit, the president, as well as other members
of the government, agreed with our observation that, for a number
of announced reforms, constitutional changes are necessary to ensure
that these reforms are fully in line with European standards and
norms. Therefore, we welcome that the president announced that, irrespective
of the decision of the Constitutional Court, he would initiate a
number of constitutional reforms that would address some of the
concerns we mention in the report.
2.2. Reform of the judiciary
9. With regard to the reform of the judiciary, all sides
acknowledged that the reform of the judiciary is essential and that
many aspects of the recently adopted Law on the Judiciary and Status
of Judges are to be welcomed. As mentioned above, the authorities
assert that, as a result of the need to implement these reforms quickly,
the Law on the Judiciary and Status of Judges was adopted and enacted
without waiting for the final opinion of the Venice Commission on
this law. However, they stressed that previous opinions of the Venice Commission
on earlier versions of the draft law were fully taken into account
when adopting this law. In addition, the authorities expressed their
willingness to further amend the law should the opinion of the Venice Commission
so require.
10. The opposition and several other interlocutors expressed their
concern about the enlarged powers of the High Council of Justice.
They emphasised this especially as, under current constitutional
constraints, it is not a genuine body of judicial self-administration
in which judges – elected by their peers – have the majority. This concern
about the functioning of the High Council of Justice is confirmed
in the preliminary comments by the Venice Commission on the Law
on Amending Certain Legislative Acts of Ukraine in Relation to the
Prevention of Abuse of the Right to Appeal, which acknowledges that
there “exists an evident danger of politically motivated nominations
to the High Council of Justice which can lead even to the domination
of members of the High Council of Justice guided by political considerations”. 
The
Venice Commission expects to adopt its opinion on this law during
its next session, but we would like to highlight that, according
to the preliminary comments, the law gives rise to serious reservations.
As already stated in the draft resolution, these concerns must be
addressed. As suggested by the committee, we have drafted an amendment
with the aim of highlighting the need for the training of judges
to be in line with Venice Commission recommendations.
The
Venice Commission expects to adopt its opinion on this law during
its next session, but we would like to highlight that, according
to the preliminary comments, the law gives rise to serious reservations.
As already stated in the draft resolution, these concerns must be
addressed. As suggested by the committee, we have drafted an amendment
with the aim of highlighting the need for the training of judges
to be in line with Venice Commission recommendations.2.3. Freedom of the media
11. The developments with regard to the freedom of the
media give rise to serious concern. There is an increasing number
of allegations and, in a number of cases, credible reports of pressure
on journalists or of interference of state organs, especially law
enforcement agencies, with the work of journalists and media organisations.
A special investigative committee set up by the Verkhovna Rada to
investigate violations of the freedom of the media – which is composed
of members of both the opposition and the ruling coalition – has established
unanimously in a number of cases, that acts of censorship and or
interference had taken place. This deterioration in the situation
of media freedoms is of serious concern and needs to be reversed immediately,
especially taking into account the upcoming local elections on 31
October 2010.
12. A case having given rise to political controversy is the recent
revoking by the Court of Appeal of a decision by the National Council
responsible for the attribution of broadcasting frequencies. The
decision in question attributed a number of additional broadcasting
frequencies to two broadcasting stations, TVi and Channel 5. Many
media experts informed us that procedural violations had indeed
occurred when the council awarded these frequencies. It should be
noted that the decision of the court did not revoke the general broadcasting
licences for these stations, or take them off the air, as erroneously
reported in some media. However, the same experts also noted that,
in most previous decisions, the broadcasting authority seems to have
violated procedural requirements. However, in the past this has
never led to the withdrawal of broadcasting frequencies. Therefore,
unless all other decisions of that council are reviewed, selective
justice may have been applied in the case of TVi and Channel 5.
The possibility of selective justice being applied is also suggested
by the fact that, at the same meeting where the frequencies to TVi
and Channel 5 were granted, 20 other decisions to grant frequencies
were reportedly taken with the same procedural violations. However, in
none of these cases has the decision been revoked. This case is
all the more controversial due to the involvement of the Head of
the Security Services of Ukraine, as outlined in our report.
2.4. Role of the security services
13. The role of the Security Services of Ukraine and
its apparent involvement in the domestic political environment has
become increasingly problematic and a matter of concern. We have
received numerous, often substantiated and credible, reports of
pressure by the Security Services of Ukraine on journalists, politicians and
civil society activists, or on people or businesses close to them.
This is not acceptable in a democratic society and the Law on Security
Services, and especially the provisions that give them the authority
to conduct normal criminal investigations, should be thoroughly
reviewed with the aim of bringing them fully into line with European
standards. This alleged activity of the Security Services of Ukraine
is all the more controversial in view of the potential conflict
of interest of its head, Mr Khoroshkovsky, who is at the same time
a member of the High Council of Justice and a leading and influential
businessman in Ukraine, whose financial holdings have a considerable
impact on the public sphere.
2.5. Local elections
14. Local elections will take place in Ukraine on 31
October 2010. The holding of democratic elections that are overall
conducted in line with international standards is one of the main
achievements since 2004. We are therefore concerned by the fact
that allegations that the forthcoming elections will be fraudulent
have surfaced in recent weeks. These allegations may be in part
due to political strategy, but they also indicate a lack of trust in
the fairness of the election administration resulting from shortcomings
in the electoral framework and the long-standing tradition of political
forces manipulating the legal election framework with a view to
short-term party gains.
15. A primordial objective of election legislation and the election
administration is that it should instil trust in the electoral process
of all stakeholders, parties and voters alike. Judging from the
statistics of the Central Election Commission, it would seem that
there is a considerable imbalance between members representing the
ruling coalition (5 906) and those representing opposition parties
(3 088) on the territorial elections commissions. Given the fact
that the territorial elections commissions appoint the precinct
election commission, this imbalance is most likely to be replicated
on the level of the individual polling stations. This imbalance
is even more evident in terms of the distribution of the leadership
posts (chairpersons, deputy chairperson and committee secretary).
The ruling party received 1 028 such positions against 476 for the opposition
parties. In addition, the quorum for several important decisions
by the election commissions has been reduced to three persons, which
makes a balanced distribution of leadership functions all the more important.
16. We received several reports that, in a number of regions,
bogus party branches of Ms Timoshenko’s Fatherland Party are being
set up and are fraudulently registered. The authorities appear to
be siding with the fake party branches when the party headquarters
challenges the legitimacy of these branches. This in effect allows
a hostile takeover of the Fatherland Party structure to occur, if
not with the complicity of the authorities, at least with their
full knowledge. If not remedied in a timely fashion, this could
affect the democratic nature of the forthcoming local elections.
17. High-level government leaders, and especially the President
of Ukraine, have repeatedly stressed that no one has more to benefit
from genuinely democratic elections than the current authorities.
They stated that they have therefore taken several measures to ensure
that these elections will be organised according to international
standards. To that effect, the authorities have invited a number
of international organisations, including the Council of Europe
and the Office for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR), to observe
these elections, and have stressed that they would welcome large
numbers of international observers. However, the relatively late
issue of these invitations could prevent a number of invited organisations
from making the necessary preparations for observing these elections.
3. Proposed amendments to the draft resolution
18. On the basis of the points mentioned above, we have
prepared a number of amendments to the original draft resolution
for consideration by the committee. Explanations are only given
where their aim is not clear from the text itself or from the explanations
given above.
Amendment A
In paragraph 3, first sentence, add the words, “, when achieved according to democratic principles,” between “newly established administration” and “is understandable”.
Amendment B
Replace paragraph 7.1.5 with:
"urges the authorities to adopt provisions on party financing in the Law on Political Parties that are fully in line with European standards, especially with regard to transparency of party financing, and to consider additional measures that would reduce the dependence of political parties on economic and commercial interests.”
Amendment C
Add a new sub-paragraph between sub-paragraphs 7.3.2 and 7.3.3:
"asks the authorities to bring the system of training of judges and the training institutes in compliance with European standards. For this purpose, judicial training must be part of the judicial branch and should be controlled and supervised by an independent body of judicial self-administration, as was recommended by the Venice Commission."
Amendment D
In sub-paragraph 7.3.6, change “an opinion of the Venice Commission” into “Council of Europe expertise”.
Amendment E
Add a new sub-paragraph after 7.4.2:
“calls upon the Verkhovna Rada to adopt the laws that are pending in parliament on conflict of interest and ethics in public service; on asset declarations of public officials; and on access to public information, after having obtained a Venice Commission opinion on these drafts.”
Amendment F
In paragraph 7.5.2, replace the words “Law on Order of Organising and Conducting of Peaceful Events” with “Law on Peaceful Assemblies”.
Amendment G
Add a new paragraph before paragraph 8:
“The Assembly expresses its concern about the increasing number of credible reports of undue involvement by the Security Service of Ukraine (SBU) in domestic political affairs, including pressure put on journalists and party and civil society activists and their relatives. It considers such activities unacceptable in a democratic society and therefore calls upon the authorities to reform the security services and its functions in line with European standards.”
Amendment H
Add a new paragraph between paragraphs 8 and 9:
“The Assembly takes note of the decision of the Constitutional Court of Ukraine of 1 October 2010 that declares as unconstitutional the law number 2222 amending the constitution in 2004. The Assembly considers that this decision should now prompt the Verkhovna Rada to initiate a comprehensive constitutional reform process with the view of bringing Ukraine’s Constitution fully into line with European standards.”
Amendment I
Replace paragraph 10 with the following text:
“The Assembly expresses its concern about the increasing number of allegations, and credible reports, that democratic freedoms and rights, such as freedom of assembly, freedom of expression and freedom of the media, have come under pressure in recent months. It considers that the interference of state organs, such as the law enforcement and security services, in the work of journalists and media organisations is incompatible with a democratic society. The Assembly calls upon the authorities to fully investigate all reports of infringements of rights and freedoms and to remedy any violations found. In addition, it calls upon the authorities to ensure that legal proceedings do not result in the selective revocation of broadcasting frequencies and to review any decision or appointment that could lead to a conflict of interest, especially in the field of law enforcement and the judiciary.”
Amendment J
Add a new paragraph between paragraph 11 and 12:
“The Assembly is concerned that allegations of possible electoral fraud could indicate a lack of trust of electoral stakeholders in the fairness of the conduct and administration of the forthcoming elections. Considering that trust in the administration of the elections is essential for their democratic nature, it calls upon the authorities to ensure a balanced composition of the election administration at all levels, including leadership positions. It recommends the authorities to consider adopting additional measures to foster the trust of electoral contestants and voters in the electoral process.”