Doc. 9852

1 July 2003

Honouring of obligations and commitments by Ukraine

Report

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Rapporteurs: Mrs Hanne Severinsen, Denmark, Liberal, Democratic and Reformer’s Group, and Mrs Renate Wohlwend, Liechtenstein, Group of the European People’s Party

Summary

The co-rapporteurs believe that in the legal field and more generally in the reforming and modernising of Ukrainian society, important achievements had been made recently in Ukraine. It is of utmost importance that the finally adopted legal reforms be applied in Ukraine in conformity with international standards. The laws passed must be able to withstand the test of time and it is essential to narrow the gap between the formal passing of regulatory texts and the actual (legal) situation in the country. In this respect, the co-rapporteurs welcome the adoption (February 2002) and the entering into force (June 2002) of the Law on the Judiciary. They also welcome the fact that the Civil Code was finally adopted on 16 January 2003 by the Rada, and signed by the President on 3 March 2003, and that it will enter into force by 1 January 2004. Moreover, a new law on the ratification of the European Charter for Regional or Minority Languages was finally adopted by the Rada on 15 May 2003. At the same time, the co-rapporteurs call on the Ukrainian authorities to ensure that these provisions are applied at all levels of society, failing which they would remain purely theoretical. It is also essential to secure the full adherence of the state organs to the Rule of Law, to strengthen the independence of judges vis-ŕ-vis the state administration, and to re-establish public confidence in the court system in general.

The co-rapporteurs strongly encourage the Rada to adopt, as a matter of urgency, the still remaining major laws in the legal field of Ukraine’s commitments, notably the Civil Procedural Code and the Code on Criminal Procedure. Similarly, the transformation of the role and functions of the General Prosecutor's office should also be a high priority.

As regards the conditions of detention in the country, the co-rapporteurs share the concern of the European Committee for the Prevention of Torture (CPT) over the lack of progress in numerous areas (especially concerning the ill-treatment of persons deprived of their liberty by law-enforcement agencies, and overcrowding both in militia and penitentiary establishments).

The co-rapporteurs think that although the March 2002 parliamentary elections marked some improvement over previous elections, several serious flaws still persisted which perturbed the democratic consultation process. They encourage the Ukrainian authorities to demonstrate democratic progress by ensuring a democratic and transparent preparation for free and fair Presidential elections next year.

The co-rapporteurs are concerned about tentatives by the Presidential Administration aimed to establish an ever tighter control over the state-run, oligarch-controlled and independent media. They welcome the Resolution adopted by the Rada on 16 January 2003 on the conclusions of the parliamentary hearing on the issue of political censorship in Ukraine (4 December 2002) and the amendments adopted by the Rada on 3 April 2003 concerning a number of laws dealing with freedom of expression. They express the firm hope that these provisions will be effectively implemented at all levels of administration (national, regional and local). They appeal to the Ukrainian authorities to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country. Ukraine should meet its obligations in that field and implement the recommendations previously made by the Council of Europe experts.

The co-rapporteurs believe that although notable progress has been made since the Assembly’s Resolution 1262 (2001), Ukraine has not yet fully honoured all obligations and commitments as a member state of the Council of Europe. They suggest therefore that the Assembly should continue to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

I.        Draft resolution

1.        The Parliamentary Assembly refers to its Resolutions 1179 (1999), 1194 (1999), 1239 (2001), 1244 (2001) and in particular to Resolution 1262 (2001) on the honouring of obligations and commitments by Ukraine, adopted by the Assembly on 27 September 2001.

2.        With regard to domestic legislation and implementation of reforms, the Assembly is pleased to note that:

i.        the law on the judiciary was adopted by the Rada on 7 February 2002 and entered into force on 1 June 2002;

ii.        the Civil Code was finally adopted on 16 January 2003 by the Rada and signed by the President on 3 March 2003. It will come into force on 1 January 2004;

iii.        a new law on the ratification of the European Charter for Regional or Minority Languages was adopted by the Rada on 15 May 2003.

3.        With regard to the remaining commitments in the fields of domestic legislation and implementation of reforms, the Assembly urges the Ukrainian authorities to continue their efforts, but also to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation and practice with the Organisation's principles and standards, especially with standards guaranteed by the European Convention on Human Rights, as well as full compliance with the decisions of the Strasbourg Court as regards the individual and general measures that may be required by the Committee of Ministers.

4.        The Assembly recognises that legal reforms have indeed advanced in many areas, but is preoccupied by the lack of enforcement and recalls the need for a proper implementation of existing legislation. In particular, it expresses its deep concern with the slow progress made by the Ukrainian authorities to implement the principles and standards of the Council of Europe, which is demonstrated by:

i.       the lack of results in the investigation of the murder of a journalist, Mr Alexandrov, and of the disappearance of a journalist, Mr Gongadze;

ii.       the lack of progress in the investigation of a case of intimidation and beating of a member of parliament, Mr Yeliashkevich;

iii.       applying disproportionate penalties to persons who participated in the political demonstration on 9 March 2001 and who are still kept in prisons and, therefore, could be considered as political prisoners in Ukraine;

iv.       the practice of systematic instructions given by the highest executive to the General Prosecutor’s Office with regard to special cases of criminal prosecution and, particularly, those relating to journalists;

v.       the numerous cases of prosecution by the General Prosecutor’s Office of judges attempting to arrive at decisions in accordance with the law;

vi.       the lack of access of opposition political forces, represented in parliament, to electronic media, especially those which are controlled by the state;

vii.       the continuing practice of imposing on journalists some kind of officially approved guidelines to cover the events (so-called “temnyki”) as a newly-created type of implicit censorship.

5.       Accordingly, the Assembly urges the Ukrainian authorities:

i.       to adopt, as a matter of urgency, the still remaining major laws in the legal field of Ukraine’s commitments, notably the Civil Procedural Code and the Code on Criminal Procedure;

ii.       to fully implement the reform of the General Prosecutor's office, in accordance with Council of Europe principles and standards, and to implement in close co-operation with the relevant bodies of the Council of Europe the Joint Plan of Action pertaining to the reform of the Ukrainian Procuracy;

iii.       to secure the full adherence of the state organs to the Rule of Law, to strengthen the independence of judges from state administration and to restore the trust of citizens vis-ŕ-vis the court system in general.

6.        The Assembly notes that although the March 2002 parliamentary elections marked some improvement over previous elections, several serious flaws still persisted, and perturbed the democratic consultation process. It encourages Ukraine to demonstrate democratic progress by ensuring a democratic and transparent preparation for free and fair Presidential elections next year. In this respect, the Assembly resolves to send a special mission to Ukraine to follow the preparations for the next Presidential elections and declares its intention to observe their conduct.

7.        As regards the conditions of detention in the country, the Assembly shares the concerns of the European Committee for the Prevention of Torture (CPT) and the Ukrainian Commissioner for Human Rights and it deplores the lack of progress in numerous areas, especially concerning the ill-treatment of persons deprived of their liberty by law-enforcement agencies; overcrowding both in militia and penitentiary establishments, police malpractice against the lesbian and gay community, poor health care and insufficient financing. It invites the Ukrainian authorities:

i.       to complete the transfer of the entire penitentiary administration system under the authority of the Ministry of Justice, as well as to complete the transfer of different pre-trial detention centres, still under the authority of the Ministry of the Interior or of the Security Services, to the State Department for the Execution of Punishments – in accordance with the amendments to the appropriate laws passed by the Rada on 6 February 2003;

ii.       to improve without delay the conditions of detention in the country and to implement the recommendations and reports which the European Committee for the Prevention of Torture has drawn up following its visits in 1998, 1999 and 2000 (published in October 2002);

iii.       to investigate allegations of police harassment of the lesbian and gay community and to take disciplinary action as appropriate. The police should be made aware of the need to respect the rights of lesbian, gay, bisexual and transgendered persons, inter alia through the inclusion of relevant material in police training courses and manuals.

8.       As regards the protection of the status of the legal profession, the Assembly notes that one of the commitments undertaken by Ukraine, according to which a professional bar association will be established, has not yet been fulfilled. It therefore encourages the Ukrainian authorities to continue the dialogue with the relevant services of the Council of Europe on this issue.

9.       The Assembly condemns the very high incidence of violence against journalists (the most prominent among them being the killings of Georgyi Gongadze in 2000 and Ihor Alexandrov in 2001), and the low clear-up rate for such crimes. It is also concerned by the continued abuse, particularly in the provinces, of tax, regulatory and police powers in order to intimidate opposition media. It reiterates its call on the Ukrainian authorities to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country. In this respect, it also calls on the Ukrainian authorities to provide the opposition with equitable access to the state-owned national TV channel.

10.       The Assembly is concerned about tentatives of the presidential administration aimed to establish an ever tighter control over the state-run, oligarch-controlled and independent media. In this respect it welcomes the Resolution adopted by the Rada on 16 January 2003 on the issue of political censorship in Ukraine and, in particular, the amendments adopted by the Rada on 3 April 2003 concerning a number of laws dealing with freedom of expression, as these amendments aim at making these laws more protective of journalists, in particular on the question of their liability for the dissemination of information and on access to official documents. It expresses the firm hope that these provisions will be effectively implemented at all levels of administration (national, regional and local).

11.       Furthermore, in the field of the media, a serious outstanding matter of concern remains the revision of the different Ukrainian laws on broadcasting: Law on radio and television, Law on the public television and radio broadcasting system and Law on the National Television and Radio Council of Ukraine. It would be essential to dissociate this sector – vital for the free formation of public opinion – from any political interference, especially in view of next year’s Presidential elections. The Assembly therefore urges the Ukrainian authorities to implement – in close co-operation with the relevant bodies of the Council of Europe – the recommendations previously made by the Council of Europe experts. The Assembly also expects that the laws on information and on the printed press, which are at present under revision in the Rada, will be submitted to the Council of Europe in proper time for review before adoption.

12.       The Assembly takes note of the proposed constitutional amendments by the President of Ukraine which, if adopted, would lead to a comprehensive change in the functioning of the country’s democratic institutions. While awaiting the opinion of the Venice Commission on the final version of the draft law, and referring to its Recommendation 1451 (2000) on reform of the institutions in Ukraine, the Assembly stresses that during the constitutional revision process all provisions of the Constitution in force in Ukraine should be thoroughly respected, in particular as regards any procedure aimed at amending the Constitution. In addition, it calls on the Ukrainian authorities to take full account of the opinion of the Venice Commission during the constitutional revision process.

13.       In the light of the above, the Assembly concludes that, although progress has been made by Ukraine since the adoption of Assembly Resolution 1262 (2001), Ukraine has not yet honoured all obligations and commitments as a member state of the Council of Europe, and the Rule of Law in many areas has not yet been fully established. Therefore the Assembly resolves to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

II.        Draft recommendation

1.        The Parliamentary Assembly refers to its Resolution…  (2003) on the honouring of obligations and commitments by Ukraine.

2.        In the light of the considerations stated in this resolution, the Assembly informs the Committee of Ministers that, although progress has been made by Ukraine since the adoption of Assembly Resolution 1262 (2001), Ukraine has not yet honoured all obligations and commitments as a member state of the Council of Europe. Therefore the Assembly resolves to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

3.       The Assembly recommends that the Committee of Ministers:

i. encourage the Ukrainian authorities to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation and practice with the Organisation’s principles and standards, especially with standards guaranteed by the European Convention on Human Rights, as well as full compliance with the decisions of the Strasbourg Court as regards the individual and general measures that may be required;

ii. call on the Ukrainian authorities to implement in close co-operation with the relevant bodies of the Council of Europe the Joint Plan of Action pertaining to the reform of the Ukrainian Procuracy;

iii. establish a specific human rights training programme for Ukrainian prosecutors for the purpose of developing democratic practices amongst them;

iv. intensify the co-operation programmes between the Council of Europe and Ukraine, notably for the implementation of the Action Plan for the Media, with a view to assisting the Ukrainian authorities in their efforts to secure fundamental rights and liberties, particularly as regards freedom of expression and the media.

III.        Explanatory memorandum by the rapporteurs

I. INTRODUCTION

1.       The Assembly has already considered four reports on Ukraine’s obligations and commitments since the country’s accession to the Council of Europe in November 1995. The Assembly also debated a report on reform of the institutions in Ukraine on 4 April 2000,1 and it held a debate under urgent procedure on freedom of expression and the functioning of parliamentary democracy in Ukraine during its January 2001 part-session2. The last debate on the honouring of obligations and commitments by Ukraine took place at the September 2001 part session of the Assembly.

2.       Following the inauguration (on 15 May 2002) of the new Rada – outcome of the March 2002 parliamentary elections, the co-rapporteurs carried out a new fact-finding visit to Ukraine from 13 to 16 October 2002 in order to collect information and to assess the progress made on the respect by Ukraine of its obligations and commitments to the Council of Europe. All these discussions have fed into the present report. Once again, the co-rapporteurs are very grateful to the Ukrainian parliamentary delegation for having organised the visit in accordance with their requests and priorities.

II.       THE MAIN CONCLUSIONS OF THE LAST REPORT ON HONOURING OF OBLIGATIONS AND COMMITMENTS BY UKRAINE (DOC. 9226)

3.       In their last report presented to the Assembly at its September 2001 part-session, the co-rapporteurs welcomed the fact that Ukraine had made considerable progress in the fulfilment of its formal obligations, in particular in adopting or amending important pieces of legislation. At the same time, they noted with regret that some crucial laws listed in the obligations and commitments entered into by Ukraine were still subject to long-lasting discussions in the Rada. A key deficiency of the legal system remained the weak and inconsistent implementation and enforcement of the law.

4.       With regard to domestic legislation and implementation of reforms, the co-rapporteurs appealed to the Ukrainian authorities to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation with the Organisation’s principles and standards, especially with standards guaranteed by the European Convention of Human Rights and the Strasbourg Court's case-law.

5.       The co-rapporteurs condemned the continuing murders of journalists, aggression against and intimidation of journalists, members of parliament and opposition politicians in Ukraine. They called on the Ukrainian authorities to ensure the rule of law, to conduct their media policy in a way which would convincingly demonstrate respect of the freedom of expression in the country and to improve the legal framework for the media and the safety and working conditions of journalists.

6.       The co-rapporteurs concluded that, although notable progress had been made since the Assembly’s Resolution 1244 (2001), Ukraine was still far from honouring all obligations and commitments as a member State of the Council of Europe. They suggested therefore that the Assembly continues to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

III.       THE PARLIAMENTARY ELECTIONS IN UKRAINE OF MARCH 2002 AND THE FORMATION OF THE NEW MAJORITY IN THE RADA

7.       In its Resolution 1262, The Assembly encouraged the Ukrainian authorities “to demonstrate democratic progress by ensuring a democratic and transparent preparation for fair and free parliamentary elections in 2002”. In addition of taking part in the ad hoc committee of the

Bureau of the Assembly to monitor the parliamentary elections, the co-rapporteurs also participated in a pre-electoral mission of the Bureau in order to draw an assessment of the electoral campaign as well as the political climate in the run-up to the elections.

8.       The co-rapporteurs wish to stress that although the March 2002 elections marked some progress over previous elections, several serious flaws still persist.

9.       The electoral campaign was for instance overshadowed by the misuse and abuse of state resources, referred to in Ukraine as the use of the “administrative resource” in favour of, or against, a particular candidate or party. The main, but not the only, beneficiary of these practises was the Bloc For a United Ukraine (FUU), which took advantage of state resources and official positions to obtain meeting venues, use official events for campaign purposes and obtain uncritical coverage from local and regional media while denying opponents similar facilities. Moreover, governors and state and local authority officials, in direct violation of the election law, were often found campaigning in favour of candidates, and several allegations were received about pressure being put on state employees to vote for a particular candidate. The ad hoc committee of the Bureau also expressed its great concern about the misuse of these “administrative resource”, it being one of the main factors undermining the confidence in the democratic process in Ukraine (cf Doc. 9415 Addendum II).

10.       Another major source of concern was the inadequate composition of local electoral commissions, which resulted in a situation where 60 per cent of these were fully controlled by pro-presidential forces. Most importantly, the co-rapporteurs were extremely concerned by the complete lack of political dialogue, the high degree of tension and mistrust among political forces, and a general lack of confidence in the democratic process.

11.       The inadequacy of voter lists was a particular cause for concern. In direct contravention of the law, in over one third of the polling stations voters were added to the voters’ list on election day, new entries amounting, in some cases to up to two thirds of the votes cast in a polling station. The co-rapporteurs find this especially worrisome in the light of reports that voters were being bussed over constituency boundaries, which could, potentially, have changed the outcome of the vote in a single mandate constituency.

12.       Finally, poor technical organisation led to polling station overcrowding - resulting in a situation where sometimes human dignity was put at risk, which compromised the democratic nature of the process. The Central Electoral Commission should see to it that all polling stations are opened at a time stipulated by the legislation and that polling station officials seal ballot boxes in a manner that would forclose ballot box stuffing.

13.       In the new Rada, President Kuchma has managed to form a parliamentary majority, despite winning a smaller percentage of the vote at the 31 March 2002 parliamentary elections than the opposition. The pro-presidential block has grown steadily after the elections, winning over many independents and business people in opposition factions. When Parliament re-opened on 3 September the new majority in power controlled 228 votes, giving it a slim majority in the 450-seat Rada.

14.       Mr Lytvin, the newly elected Speaker of the Rada (and the former Head of the presidential administration), meeting the co-rapporteurs, denied allegations according to which the new pro-presidential majority had been created by exerting undue pressure on independents and business people in opposition factions.

15.       A pro-presidential majority is important as the 2004 presidential elections approach, not only to pass legislation proposals by the President but also to prevent possible impeachment proceedings. Mr Kuchma who previously backed a Russian-style presidential republic, on 24 August 2002 came out for a parliamentary system, after his pro-presidential majority had been secured. As regards the new electoral system, having vetoed the Law on proportional elections five times in 2001, Mr Kuchma now backs it as it will come into effect in 2006, two years after he leaves office.

16.       The representatives of the opposition parties stressed to the co-rapporteurs that the newly created majority was only an affiliate of the Presidential administration, and the wish of the electorate had not been reflected properly in the power structures following the parliamentary

elections. Dialogue with the Presidential majority in the Rada was extremely difficult because they categorically opposed possible impeachment of Mr Kuchma and were not ready to discuss the details of his possible resignation.

17.       Moreover they informed the co-rapporteurs that the power structures were increasingly using unlawful detention as a method of intimidation. In this context, the case of Mr Fedur was mentioned, the defence lawyer of Mrs Gongadze who had been detained at the beginning of October 2002. Mr Yuschenko also mentioned that, recently a number of criminal cases had been initiated pertaining against relatives of the members of his faction “Our Ukraine”.

IV. ADOPTION OF LAWS AND REGULATIONS (LATEST DEVELOPMENTS)

i. a framework act on the legal policy for the protection of human rights

18.       On 7 November 2001, the Monitoring Committee addressed the European Commission for Democracy Through Law (Venice Commission) - asking for its opinion on whether the Resolution on the Principles of the State Legal Policy of Ukraine in the Field of Human Rights, adopted by the Rada on 17 June 1999, could be considered as a framework act on the legal policy of Ukraine for the protection of Human Rights as referred to in Assembly Opinion No. 190 (1995). In its opinion, adopted at its 50th plenary meeting on 8-9 March 2002, the Venice Commission noted, inter alia, that:

19.       The co-rapporteurs accept the opinion of the Venice Commission, but they wish to stress that it is of utmost importance that these texts be applied in Ukraine in conformity with international standards.

ii. a framework act on legal and judicial reform

20.       The Law on Judiciary was adopted on 7 February 2002 by the Rada and came into force by 1 June 2002. The new Minister of Justice, Mr Lavrynovych informed the rapporteurs on the implementation of this Law which had defined the major directions of reform for his Ministry: legal framework for the organisation of judiciary, and the system of courts of general jurisdiction, principal requirements for the promotion of judges and the creation of new types of courts. The co-rapporteurs take note of the adoption of the Law on Judiciary, and they invite the Ukrainian authorities to secure implementation of these norms at all levels of society if they are not to remain purely virtual.

21.       The co-rapporteurs also met the Chairman of the Supreme Court of Ukraine, Mr Boiko, who informed them about the ongoing reform of the court system (following the entering into force of the Law on judiciary on 1 June 2002). In this context, Mr Boiko also stressed the importance to adopt the procedural codes, still under consideration by the Rada, as soon as possible. The co-rapporteurs think that it will also be important to strengthen the independence of judges from state administration, which is guaranteed by the Constititution, and to increase the lacking trust of citizens vis-ŕ-vis the court system in general.

22.       In this context, the co-rapporteurs wish to refer to the Judgement of the European Court of Human Rights, Sovtransavto holding vs. Ukraine in which the Court has clearly stated that “a judicial system which entails the risk of final judicial judgements being set aside repeatedly and indefinitely is in itself incompatible with the principle of legal certainty enshrined in Art. 6 of the Convention”. In its Judgement, the Court also criticised the repeated interferences of the executive with the judicial proceedings, and stated that such interferences were incompatible with the notion of an independent and impartial tribunal. It also acknowledged that the independence of Ukrainian Courts from the executive authorities could be significantly reinforced if they ceased to be dependent on the budgets of local authorities. The co-rapporteurs believe that this issue should call for careful examination by the Ukrainian authorities.

iii. a new criminal code and a code of criminal procedure

23.       A new criminal code was adopted by the Rada on 5 April 2001, and signed by the President on 17 May 2001; it entered into force on 1 September 2001. A final draft of a new code of criminal procedure was submitted to the Rada on 23 June 2001, but is still under discussion.

iv. a new civil code and a new code of civil procedure

24.       During the meeting with representatives of the factions of the parliamentary majority of the Rada, the co-rapporteurs were informed that the still remaining major laws in the legal field of Ukraine’s commitment, notably the Civil Code, the Civil Procedural Code and the Code on Criminal Procedure, will most probably be adopted before the end of 2002 by the Rada. (On 6 June 2003, the Civil Procedural Code was adopted by the Rada in its first reading). In this context, the co-rapporteurs welcome the fact that on 16 January 2003, taking into consideration the proposals of the President, the Civil Code was finally adopted. On 3 March 2003 the President of Ukraine has signed it into law which will come into force by 1 January 2004.

v. transformation of the role and functions of the General Prosecutor's office

25.       As regards the reform of the Prosecutor General’s Office (PGO), the Deputy Prosecutor General, Mr Vynokurov, stressed to the co-rapporteurs the very close co-operation with the Council of Europe Legal Directorate and that the PGO would take into account to as much as possible the opinion of the Venice Commission.

26.       Still, in this regard it is worth noting that the European Commission for Democracy Through Law (Venice Commission) in its the opinion on the draft law of Ukraine on the Prosecutor General’s Office (7 December 2001) maintained that despite some positive features the draft law cannot be regarded as a fundamental reform of the existing Procuracy. It continues to centralise too much power in the hands of the Prosecutor General, and in particular it has failed to divest the Procuracy of functions intended only to be transitional. The draft law appears to confer powers on the Procuracy which would more appropriately be exercised by the judicial branch. Moreover, the relationship between the Prosecutor and the executive remains entangled and needs transparency. Nor can the prosecutor be regarded as independent of the executive. The co-repporteurs call on the Ukrainian authorities and the relevant bodies of the Council of Europe to take actions aimed at the efficient implementation of the Joint plan of actions pertaining to the reforming of the Ukrainian Procuracy.

27.       On the Gongadze case, Mr Vynokurov informed the co-rapporteurs that the new General Prosecutor, Mr Piskun, appointed a new special group to speed up the investigation. The representative of the Gongadze family, Mr Menard, from Reporters sans frontičres, had been granted full access to the different investigation files with regard to this case - together with Mr J. Rivole, French forensic expert, who took part in the additional examination of Mr Gongadze's corpse.

28.       Similarly, the PGO declared his readiness to fully co-operate with Mr Kruger’s specific mission. In September 2002, the former Deputy Secretary General of the Council of Europe was appointed by the Bureau of Assembly as an expert consultant to report to it on the legal and judicial aspects of the investigation of the Gongadze case. The co-rapporteurs wish to include the main conclusions of the above mission in the updated version of their report.

29.       As regards the case of Yulia Tymosenko, the Prosecutor General’s Office had submitted a request to the Rada on 22 August to lift Mrs Tymosenko’s parliamentary immunity from prosecution. The PGO had broadened the previous investigation and had ample uncovered evidence that Mrs Tymosenko abused her office. (As soon as the Parliament consents, the PGO will bring a charge against Mrs Tymosenko of embezzlement of government property on a particularly large scale, and abuse of office causing damages of 2.271 billion US dollars.) Mrs Tymoshenko dismissed the proceedings initiated by the Prosecutor General against her as “politically motivated attacks against her opposition activities in the Rada”. Meanwhile the co-rapporteurs have learnt that the Kyiv appeal court ruled that the accusations against Mrs Tymosenko had been illegal.

30.       As regards the case of Mr Fedur (mentioned earlier), Mr Vynokurov said to the co-rapporteurs that his was a “rank and file” case; his detention occurred in connection with the illegal import of a car. (Yet, the co-rapporteurs were informed in the meantime about a court ruling, stating that the detention of Mr Fedur had been illegal.) Similarly, according to Mr Vynokurov, the investigations against relatives of members of the Yuschenko bloc had nothing to do with the political affiliation of these MPs.

vi. the completion of the interrupted ratification process of the European Charter for Regional or Minority Languages, and adequate protection for all minority groups in Ukraine

31.       The representatives of the factions of the parliamentary majority of the Rada also promised to look into the completion of the interrupted ratification process of the European Charter for Regional and Minority Languages, although they stressed that the undertaking required by the Charter would create a heavy financial burden for the country. In this regard, the co-rapporteurs welcome the fact that the presidential administration submitted a new draft instrument to the Rada in November 2002, thus relaunching the ratification process. The co-rapporteurs welcome the fact that a new law on the ratification of the European Charter for Regional or Minority Languages was finally adopted by the Rada on 15 May 2003, and signed by the President on 6 June. In this respect, the co-rapporteurs encourage the Ukrainian authorities that while implementing the provisions of the Charter, they should identify the territories in respect of the languages concerned.

“The Assembly invites the Ukrainian authorities to subordinate the State Department for the Execution of Punishments to the Ministry of Justice, and to complete the transfer of different pre-trial detention centres, still under the authority of the Ministry of the Interior or the security services, also to the Ministry of Justice.”

32.       As regards the control of the penitentiary institutions, the so-called “cells” at police stations and the so-called “centres of temporary detention” (IVS) are still under the direction of the Ministry of the Interior. In this context the Minister of the Interior, Mr Smyrnov, stressed that technically it would be very difficult to transfer these cells and detention centres to the State Department (there are 511 police detention centres and they have had 5 500 detainees during the last year).

33.       The Head of the State Department for the execution of punishments, Mr Lyovochkin, gave a detailed account of the situation in penitentiary institutions and he stressed the good co-operation established with the different bodies of the Council of Europe in improving the situation in Ukraine’s prisons. The co-rapporteurs acknowledge that notwithstanding serious problems concerning prison establishments, important reforms and improvements have been made. At the same time, they insist that the pre-trial detention centres still under the administration of the security services, should be brought under the supervision of the Department - in accordance with the amendments to the appropriate laws passed by the Rada on 6 February 2003.

34.       As regards the administration and supervision of the penitentiary system, the co-rapporteurs pointed out to their interlocutors that considering the actual situation in Ukraine, a certain degree of flexibility was needed. Indeed, co-operation between the Council of Europe and the State Department for the execution of punishments is well-established, and it seems that the subordination of this Department directly to the Council of Ministers can be an acceptable solution - as the essence of the obligation removing this Department from the Ministry of Interior had already been fulfilled. This point of view was also confirmed by the Human Rights Commissioner, Ms Karpachova during the exchanges with the members of the Monitoring Committee in Kyiv on 12-13 May 2003. Yet, the further demilitarisation of the prison system should be a high priority. Similarly, the co-rapporteurs will follow closely whether the principle of civilian control over the Department is fully ensured.

35.       It should also be noted that experts from the Council of Europe have proceeded to a re-assessment of the functioning of the prison system in Ukraine in spring 2003 (within the framework of the Joint Programme between the European Commission and the Council of Europe for Ukraine). The re-assessment will also provide information about the quality of work of the State Department. The essential issue for the proper functioning of the prison system according to the European standards must be carefully considered, whatever the structure for managing the prison system may be.

“to improve the conditions of detention in the country and to implement the recommendations in the reports which the European Committee for the Prevention of Torture has drawn up following its visits in 1998, 1999 and 2000”

36.       In this context the co-rapporteurs refer to three reports published at the beginning of October 2002 by the Council of Europe’s Committee for the Prevention of Torture which assessed the treatment of people detained in Ukraine. (These 3 reports, published with the agreement of Ukrainian authorities, together with their responses, concern the visits carried out between 1989 and 2000.) A series of recommendations have been made, especially concerning the systematic overcrowding of prison establishments, poor material conditions and the treatment of prisoners suffering from tuberculosis. The co-rapporteurs expect the prompt implementation of the above recommendations even if they understand the view of the Ukrainian authorities that these problems partly stem from the current economic situation of Ukraine.

37.       The co-rapporteurs share the concern of the CPT over the lack of progress in numerous areas. This is true for example of the Council of Europe recommendations designed to prevent the ill-treatment of persons deprived of their liberty by law-enforcement agencies, and to combat overcrowding both in militia and penitentiary establishments. As already underlined in the past by the Commission for the Prevention of Torture, a number of the recommendations concerned have no important financial implications and could be implemented without delay.

38.       The Commissioner for Human Rights, Mrs Karpachova confirmed to the co-rapporteurs the allegations (also mentioned by the CPT report) of physical ill treatment of detainees by members of the criminal police; she also touched upon problems concerning the systematic over-crowding in prison establishments, poor material conditions and the treatment of prisoners suffering from tuberculosis. She also informed rapporteurs about her actions to release the 64 persons detained following the dismantlement of the “tent city” on 17 September.

39.       Indeed, on the second anniversary of the disappearance of journalist Gongadze, the Ukrainian opposition organised demonstrations which attracted somewhere between 30 to 50 thousand demonstrators in Kyiv and an estimated 50 to 100 thousand demonstrators in other cities. A tent city was set up outside the Presidential administration on the night of 16 September to 17 September. It was dismantled early on 17 September; 64 demonstrators were arrested and then released two days later.

40.       As regards allegations of physical ill treatment of detainees by the members of the criminal police, the Minister of the Interior, Mr Smyrnov told the co-rapporteurs that many of these complaints had not been substantiated (he said that around 13% of all complaints had been justified). He also defended the dismantlement of the “tent city” on the ground that there had been a valid court decision against the rally and the demonstrators had blocked major traffic crossroads in the capital. In addition, the co-rapporteurs have learnt that the Prosecutor General’s Office was currently checking the validity of the above allegations.

“the status of the legal profession will be protected by law, and a professional bar association will be established”

41.       As regards the “protection of the status of the legal profession” and the “creation of an independent bar association”, according to the newly appointed Minister of Justice, Mr Lavrynovych, “all issues had already been settled” in that field and lawyers enjoyed total independence in Ukraine. Yet, the representatives of Ukrainian Lawyers’ Union informed the co-rapporteurs that one of the commitments undertaken by Ukraine, according to which the status of the legal profession will be protected by law, and a professional bar association will be established, has not yet been fulfilled. Therefore they stressed that it would be extremely important that the Council continue its dialogue with the Ukrainian government on this issue and consistently emphasise the necessity of creating a professional bar association and the firmness of the Council of Europe stand on this issue.

V.        FREEDOM OF EXPRESSION AND FREEDOM OF MEDIA

“The Assembly calls on the Ukrainian authorities to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country and to improve the legal framework for the media as well as the safety and working conditions of journalists.”

42.       NGO representatives told the co-rapporteurs that there was increasing evidence that the restriction on media freedom in Ukraine was reaching a level of clear political censorship. The new Head of the President’s Administration, Mr Victor Medvedchuk, aimed to establish an even tighter control over the state-run and oligarch-controlled media. Free opinion building as a precondition for democratic development was hampered. NGO representatives raised the issue of the so-called “temniki” – weekly memoranda received from the presidential administration by all TV channels and most printed media, providing clear instructions about which topics should be covered and how these topics should be presented. Here, the co-rapporteurs also refer to the report published by Human Rights Watch in March 2003, entitled “negotiating the news: informal state censorship of Ukrainian television”. They fully agree with the recommendation of the report that the Council of Europe should use all available means and mechanisms to address the Ukraine’s failure to meet its obligations and implement the recommendations recently set forth by the Committee of Ministers.

43.       Several public actions recently have shown that more journalists feel that the pressure exerted on them has become unbearable. On 3 October 2002 more than 350 journalists from different media outlets signed a “manifesto of Ukrainian journalists” protesting against political censorship. On 8 October over 100 journalists met to found an independent trade union and discuss strike action for journalistic independence. The trade union aims at protecting journalists from pressure, censorship and possible dismissal for participation in strikes. Journalists also decided to set up a special representative organ, a ‘strike committee’, to act on behalf of journalists in talks with representatives of authorities and media owners.

44.       In this respect, the co-rapporteurs welcome the initiative of the Speaker of the Rada, Mr Lytvyn, who, during the meeting with them, declared his readiness to organise a parliamentary hearing on the freedom of the media. (Indeed, the parliamentary hearing on “society, media and the authorities: freedom of expression and censorship in Ukraine” took place on 4 December 2002. As the most important result, a working group of media representatives and MPs has been set up to prepare concrete legislative proposals in the media field.) Mr Lytvyn also stressed that varied and numerous anti-presidential publications are published in Ukraine without difficulty. He added that the Ukrainian State Tax Administration agreed not long ago to hold routine audit inspections of mass media enterprises with the participation of 'Reporters Without Borders' representatives. Moreover, the State Tax Administration has made public the list of media outlets included to the national plan of documentary checks in 2003.

45.       At the same time, the head of the presidential administration, Mr Medvedchuk denied that there was a problem of censorship in Ukraine, and he even questioned the existence of the so-called “temniks”. The creation of the new Main Department of Information Policy (and nomination of his collaborator, Mr Vasilyev, as Head of this Department) had nothing to do with controlling the media, the only task of this Department being to disseminate information on the President’s activity.

46.       The co-rapporteurs believe that, although the results of the parliamentary elections have also shown that blunt propaganda does not influence public opinion strongly, the absence of information on events and politicians can lead to a situation where freedom of information and opinions is increasingly suppressed and democratic participation minimised. This helps to partly explain the widespread public feeling of disenchantment that voting results have not been adequately transformed into political power structures in the new Rada. Freedom of expression and access to information about politcal, economic and social developments are crucial to the process of government accountability.

47.       In this context, it should, however, be added that the Presidential Administration expressed its readiness to assist the Parliamentary Assembly in undertaking an objective monitoring of the national media in Ukraine. The Head of the Presidential Administration, Mr Medvedchuk, addressed the co-rapporteurs in this sense on 24 October 2002, providing an analysis of the media monitoring for the preceeding week. According to Mr Medvedchuk, these statistics are “self-evident and testifying to a pluralism of opinions in the national media … and the absence of political censorhip in the country”. During October-December 2002, the Main Directorate on informational policy of the Presidential Administration was regularly mailing to the co-rapporteurs information letters pertaining to the monitoring of the Ukrainian media.

48.       The co-rapporteurs welcome the Resolution adopted by the Rada on 16 January 2003 on the outcome of the above-mentioned parliamentary hearing – and, in particular, the willingness of the Ukrainian lawmakers to “introduce amendments to the laws of Ukraine in the media field in accordance with the expert opinion provided by the Council of Europe”.

49.       The co-rapporteurs also take note of the decision of the Ukrainian Government to make public the Report of the Secretary General of the Council of Europe on the freedom of expression and information in Ukraine. They also believe that the meeting of the Ukrainian MPs with the experts and parliamentarians of the Council of Europe in April 2003 contributed to the reforms of legislation in the media field based on the conclusions of the experts of the Council of Europe. In this respect, they welcome the amendments adopted by the Rada on 3 April 2003 concerning a number of laws dealing with freedom of expression, as these amendments aimed at making these laws more protective of journalists, in particular on the question of their liability for the dissemination of information and on access to official documents. The co-rapporteurs express the firm hope that these provisions will be effectively implemented at all levels of administration (national, regional and local).

50.       Furthermore, in the field of the média, a serious outstanding matter of concern remains the revision of the different Ukrainian laws on broadcasting: Law on radio and television, Law on the public television and radio broadcasting system and Law on the National Television and Radio Council of Ukraine. It would be essential to dissociate this sector – vital for the free formation of public opinion – from any political interference, especially in view of next year’s Presidential elections.

VI.       OTHER ISSUES RAISED DURING THE LAST VISIT OF THE CO-RAPPORTEURS

51.       During their meeting with Foreign Minister Zlenko, the co-rapporteurs asked the minister about the impact of the so-called “Kolchuga affair” on the image of Ukraine abroad. (On 24 September 2002 the US government suspended 55 million dollars in annual aid to Ukraine, after the conclusions of the American Justice Ministry that the so-called “Melnychencho tape” on the President’s involvement in selling the “Kolchuga” radar system to Irak was authentic.) The interest of the co-rapporteurs in this case purely stemming from the fact that thus parts of the “Melnychencho tapes” have been authenticated.

VII.       PROPOSED CONSTITUTIONAL AMENDMENTS BY THE PRESIDENT OF UKRAINE

52.       On 6 March 2003, the Ukrainian President presented a draft law to the Rada with far-reaching amendments to the Constitution which, if adopted, would lead to a complete change in the functioning of democratic institutions in Ukraine. The main proposals in the draft law concern the transformation of the Rada into a bi-cameral body and strengthening to a certain extent the parliamentary traits of the political system. At the initiative of the co-rapporteurs, the Monitoring Committee decided to ask the Venice Commission to be seized of the matter and to prepare an opinion on the draft law.

53.        While awaiting the opinion of the Venice Commission on the final version of the draft law, the co-rapporteurs wish to refer to Recommendation 1451 (2000) on reform of the institutions in Ukraine, in which the Assembly stressed that “during the constitutional revision process all provisions of the Constitution in force in Ukraine should be thoroughly respected, in particular as regards any procedure aimed at amending the Constitution”. Moreover, It would be highly desirable that the main constitutional organs would work in close co-operation during the future stages of the constitutional reform.

VIII.       CONCLUDING REMARKS

54.       The co-rapporteurs believe that in the legal field and in generally reforming, modernising Ukrainian society, important achievements had been made recently in Ukraine. On the other hand, there appears to be an increasing discrepancy between the power elite and society. Domestic pressure against Mr Kuchma, which culminated in the popular demonstrations on 16 September 2002, is now being backed by international pressure that could isolate the country.

55.       It is of utmost importance that the finally adopted legal reforms be applied in Ukraine in conformity with international standards. As it was stressed by various members of the Monitoring Committee at the meeting of 11 December 2002 in Paris, the adopted laws ‘have to stand the robust test of time’, and it is imperative to reduce the gap between the formal adoption of rules and regulations and the (legal) reality in the country. The co-rapporteurs welcome the adoption (February 2002) and the entering into force (June 2002) of the Law on Judiciary. They also welcome that the Civil Code was finally adopted on 16 January 2003 by the Rada, signed by the President on 3 March 2003, and it will come into force by 1 January 2004. Moreover, a new law on the ratification of the European Charter for Regional or Minority Languages was finally adopted by the Rada on 15 May 2003, and signed by the president on 6 June. At the same time, they invite the Ukrainian authorities to secure implementation of these norms at all levels of society if they are not to remain purely virtual. It will also be essential to strengthen the independence of judges from state administration, and to increase the lacking trust of citizens vis-ŕ-vis the court system in general.

56.       The co-rapporteurs strongly encourage the new Rada to adopt, as a matter of urgency, the still remaining major laws in the legal field of Ukraine’s commitments, notably the Civil Procedural Code and the Code on Criminal Procedure. Similarly, the transformation of the role and functions of the General Prosecutor's office should also be a high priority.

57.       As regards the conditions of detention in the country, the co-rapporteurs share the concern of the European Committee for the Prevention of Torture (CPT) over the lack of progress in numerous areas (especially concerning the ill-treatment of persons deprived of their liberty by law-enforcement agencies, and overcrowding both in militia and penitentiary establishments).

58.       The co-rapporteurs are concerned about tentatives of the Presidential Administration aimed to establish an ever tighter control over the state-run, oligarch-controlled and independent media. They welcome the Resolution adopted by the Rada on 16 January 2003 on the conclusions of the parliamentary hearing on the issue of political censorship in Ukraine (4 December 2002) and, the amendments adopted by the Rada on 3 April 2003 concerning a number of laws dealing with freedom of expression. They express the firm hope that these provisions will be effectively implemented at all levels of administration (national, regional and local). They appeal to the Ukrainian authorities to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country. Ukraine should meet its obligations in that field and implement the recommendations previously made by the Council of Europe experts.

59.       The co-rapporteurs believe that although notable progress has been made since the Assembly’s Resolution 1262 (2001), Ukraine has not yet fully honoured all obligations and commitments as a member State of the Council of Europe. They suggest therefore that the Assembly should continue to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

APPENDIX 1

Resolution 1262 (2001)1

Honouring of obligations and

commitments by Ukraine

1. The Parliamentary Assembly refers to its

Resolutions 1179 (1999), 1194 (1999), 1239 (2001) and in particular to Resolution 1244 (2001) on the honouring of obligations and commitments by Ukraine, adopted by the Assembly on 26 April 2001.

2. In respect of Resolution 1244 (2001), the Assembly recalls the firm commitment of the Ukrainian delegation and the leaders of the parties and factions of the Rada to fulfil Ukraine's obligations and commitments, including in particular:

i. a framework act on the legal policy for the protection of human rights;

ii. a framework act on legal and judicial reform;

iii. a new criminal code and a code of criminal procedure;

iv. a new civil code and a new code of civil procedure;

v. transformation of the role and functions of the General Prosecutor's office;

vi. the completion of the interrupted ratification process of the European Charter for Regional or Minority Languages, and adequate protection for all minority groups in Ukraine.

3. With regard to these obligations and commitments, the Assembly is pleased to note that:

i. a new criminal code was adopted by the Rada on 5 April 2001, and signed by the President on 17 May 2001; it entered into force on 1 September 2001;

ii a final draft of a new code of criminal procedure was submitted to the Rada on 23 June 2001;

iii. four out of six chapters of a new civil code were

adopted by the Rada, while a law on amendments to the existing Code of Civil Procedure was adopted by the Rada on 21 June 2001;

iv. a new law on political parties was adopted by the Rada

on 5 April 2001, signed by the President on 28 April 2001;

v. a package of ten laws ("small judicial reform") was adopted by the Rada on 21 June 2001 that stipulate amendments to existing laws – aiming to ensure the work of the judiciary and law-enforcement bodies after the termination of the so-called "transitional provisions" on 28 June 2001;

vi. a new draft law on the ratification of the European Charter for Regional or Minority Languages was submitted by President Leonid Kuchma to the Rada on 30 August 2001.

4. With regard to the remaining commitments in the fields of domestic legislation and implementation of reforms, the Assembly urges the Ukrainian authorities to continue their efforts, but also to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation and practice with the Organisation's principles and standards, especially with standards

guaranteed by the European Convention on Human Rights and the Strasbourg Court's case-law.

5. In this respect the Assembly urges the Ukrainian authorities to fully implement the reform of the General Prosecutor's office, in accordance with Council of Europe principles and standards, with a view to abolishing the prosecutor's supervisory functions which are incompatible with the Constitution of Ukraine and risk undermining the independence of a rather weak judiciary.

6. The Assembly encourages Ukraine to demonstrate democratic progress by ensuring a democratic and transparent preparation for fair and free parliamentary elections next year.

7. The Assembly resolves to send a special mission to Ukraine to follow the preparations for the next parliamentary elections which are to be held in March 2002, and declares its intention to observe their conduct.

8. The Assembly notes the recent moves by Ukraine designed to protect journalists, specifically the harsher punishments against those convicted of harassing and/or persecuting journalists in the new Criminal Code. None the

less, the Assembly condemns the aggression against,

intimidation and even murder of journalists, members of parliament and opposition politicians in Ukraine. It calls on the Ukrainian authorities to ensure the rule of law, to conduct their media policy in a way which will convincingly demonstrate respect for the freedom of expression in the country and to improve the legal

framework for the media as well as the safety and working conditions of journalists. In particular, the Assembly urges the authorities concerned to take the measures outlined in paragraph 5 of Resolution 1244. In addition, it urges them:

i. to accelerate and complete the investigations of the disappearance and murder of Mr Heorhiy Gongadze, or initiate – if necessary – a new independent investigation in this matter, with the help of international experts;

ii. to conduct a full, transparent and impartial investigation of the murder of Mr Ihor Alexandrov and of other cases of journalists who have died in dubious circumstances;

iii. to initiate a special investigation in the case of

Mr Yeliashkevich, Deputy Chairman of the Financial Committee of the Rada.

9. The Assembly welcomes the Presidential Decree of 30 August 2001 on local and regional democracy, but regrets undue dismissal and pressure put on a number of mayors and elected local representatives, and urges the Ukrainian authorities to implement fully the European Charter of Local Self-Government which was ratified on 11 September 1997 and entered into force on 1 January 1998.

10. The Assembly urges the Ukrainian authorities to create appropriate conditions for national minorities, so that they can maintain and develop their culture and identity.

11. The Assembly invites the Ukrainian authorities:

i. to subordinate the State Department for the Execution of Punishments to the Ministry of Justice, and to complete the transfer of different pre-trial detention centres, still under the authority of the Ministry of the Interior or the security services, also to the Ministry of Justice;

ii. to improve the conditions of detention in the country and to implement the recommendations in the reports which the European Committee for the Prevention of Torture has drawn up following its visits in 1998, 1999 and 2000.

12. In the light of the above, the Assembly concludes that substantial progress has, indeed, been made by Ukraine since the adoption of Assembly Resolution 1244 (2001) in April of this year, particularly with respect to significant

new legislation recently enacted in Ukraine. The

Assembly calls upon the Ukrainian authorities to firmly apply the new Criminal Code and the ratified conventions in the field of human rights in order to further advance on the road towards pluralist democracy. Hence, the Assembly further resolves that in the event that Ukraine should ultimately honour its few remaining commitments before the Council as per Opinion No. 190 (1995) by the January 2002 part-session, it will consider terminating the formal monitoring procedure regarding Ukraine, while continuing the ongoing dialogue with the Ukrainian authorities within a broader monitoring framework regarding measures that may be taken in order to address some of the problem areas that were identified in the process of the monitoring procedure

_____

1. Assembly debate on 27 September 2001 (30th and 31st Sittings) (see Doc. 9226, report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, co-rapporteurs: Mrs Severinsen and Mrs Wohlwend).

Text adopted by the Assembly on 27 September 2001 (31st Sitting).

APPENDIX II

Programme of the visit to Ukraine of the co-rapporteurs (Kyiv, 12-16 October 2002)

Co-rapporteurs:        Mrs Hanne SEVERINSEN (Denmark, LDR)

      Mrs Renate WOHLWEND (Liechtenstein, EPP)

Secretariat:        Mr Geza MEZEI

Saturday, 12 October 2002

1.50 pm       Arrival of Mrs Severinsen

2.30 pm       Arrival of Mrs Wohlwend

Sunday, 13 October 2002

3.25 pm       Arrival of Mr Mezei

6.00-9.00 pm       Working dinner with representatives of NGOs (organised by the Information and Documentation Centre of the Council of Europe)

Monday, 14 October 2002

9.00 am       Meeting with Mr Volodymyr Lytvyn, Chairman of the Supreme Rada of Ukraine

10.15 am       Meeting with Mr Viktor Medvedchuk, Head of the Administration of the President of Ukraine

11.30 am       Meeting with Mr Hryhority Omelchenko, Chairman of the Ad hoc Investigation committee

2.30 pm       Meeting with representatives of Deputies’ Factions and Groups of Parliamentary Majority

4.00 pm       Meeting with Mr A. Zlenko, Minister of Foreign Affairs of Ukraine

5.00 pm       Meeting with representatives for Deputies’ Factions of “Our Ukraine”, the Communist Party of Ukraine, the Socialist Party of Ukraine and the Yulia Tymosenko Bloc

6.00 pm       Meeting with Ms Nina Karpachova, Ukrainian Parliament’s Commissioner for Human Rights

7.30 pm       Meeting with Ambassadors of the Council of Europe member States in Ukraine (organised by the Embassy of the Republic of Lithuania)

Tuesday, 15 October 2002

9.00 am       Meeting with Mr Serhiy Vynokurov, deputy Prosecutor General of Ukraine

10.30 am       Meeting with Mr Oleksandr Lavrynovych, Minister of Justice of Ukraine

12.00 am       Meeting with Mr Vitaliy Boiko, Chairman of the Supreme Court of Ukraine

1.30 pm       Dinner hosted by Mr B. Oliynyk, Head of the Permanent delegation of the Supreme Rada of Ukraine to PACE

5.15 pm       Meeting with Mr Yuriy Smirnov, Minister of Interior of Ukraine

4.30 pm       Meeting with Mr Volodymyr Lyovochkin, Head of the Penitentiary Department of Ukraine

5.30 pm       Meeting with representatives of the Lawyers’ Union of Ukraine

Wednesday, 16 October 2002

9.00 am       Meeting with representatives of mass media of Ukraine

Afternoon:       Departure of the co-rapporteurs and Mr Mezei

APPENDIX III

Comments to the draft report of the Monitoring Committee by the Ukrainian authorities on the Honouring of Obligations and Commitments by Ukraine taken upon accession to the Council of Europe

III. THE PARLIAMENTARY ELECTIONS IN UKRAINE OF MARCH 2002 AND THE FORMATION OF THE NEW MAJORITY IN THE RADA

Paragraph 9

The issue of the countrywide usage of the so-called "administrative resource" became one of the main political factors of the recent parliamentary electoral campaign in Ukraine. The main bulk of the "ad.r." accusations was attributed to "For a United Ukraine" bloc of political parties since its list contained high ranking officials from the capital and regions.

At the time of electoral process, the Central Electoral Commission (CEC) of Ukraine has diligently checked, jointly with the law-enforcement and controlling representatives, a range of appeals as to the recurrence by "FUU" to the adm. resource. It appeared, in the course of the checks, that by the usage of the adm.r. there actually was a legitimate carrying out by the bloc of the pre-election campaign at the expense of the proceeds of their electoral fund. That right is stipulated by law for all subjects of the electoral process, yet not all of them wanted to use it. The main reason for that was not the political subtext but the inability of a political force to attract to its electoral fund the necessary amount of financial resources that could enable it to use the air time on TV and radio channels or for the space in the Ukrainian printed press.

Regarding the activity of the officials who were candidates and, allegedly, used their professional status to campaign for the bloc: the biggest number of allegations voiced against the officials who were on the electoral list of the "FUU', actually related to their active coverage in media. Nevertheless, such candidates' activities could not be qualified as pre-electoral campaign and hence to fall under restriction and prohibition as to its carrying out. In accordance with the Law of Ukraine "On the elections of people's deputies of Ukraine" (second part, art.51) the official news reports during the electoral process as to candidates' activities related with the fulfillment of their official duties, which are foreseen by the Constitution of Ukraine or by laws of Ukraine, do not fall into the pre-electoral campaign. The only provision that contains prohibition for candidates being officials, is part sixteen art. 56. In accordance with it such candidates are not allowed to attract for the benefit of their pre-electoral campaign or to use in any activity related to carrying out of their pre-electoral campaign, persons that are subordinated to them (during working hours), service transport, means of telecommunications, equipment, premises, other facilities and resources available at their working place as well as to use service and working meetings, meetings of the personnel for the carrying out of the pre-electoral campaign. Nevertheless, the complaints received by the electoral authorities did not contain instances of that sort of violations of the Law.

As to the officials who were not candidates for deputies but still committed, according to other participants of the electoral process, direct violations of the electoral law as regards the support for this or that political force or a separate candidate. In accordance with part two art.29 of the Law, any decisions, actions or inaction of public (state) authorities, local authorities, enterprises, agencies and organizations, their functionaries and officials, could have been appealed exclusively via courts. By law the electoral process participants had the possibility to use the right to appeal to the court, but as it was revealed in practice, instances of such appeals via courts were quite few. Apparently, the subjects of the right to appeal simply didn't want to undermine their political image in the eyes of the electorate since they have probably understood in advance the erroneousness of their stand as to their far-fetched allegations against functionaries. (Comments prepared by the Central Electoral Commission)

Proposals for further actions

To provide for the elaboration of the Law of Ukraine "On introduction of amendments to the Law of Ukraine "On elections of people's deputies" basing upon the practice of its application during elections to the parliament in 2002. In this context, to take into account the findings of the international observer missions over these elections as well as the recommendations of the international conference "Elections and referenda in Ukraine: legislative provisions, problems of implementation and ways of improvement", held 13-15 Nov 2002 under auspices of the USAID.

Measures foreseen by the Ukrainian authorities

New wording of the Law of Ukraine "On elections of people's deputies of Ukraine" to be ready for the first reading by the Verkhovna Rada Committee on issues of state building and local self government with the participation of CEC and Ministry of Justice representatives. (March – July 2003)

Paragraph 10

In accordance with the Law of Ukraine "On elections of people's deputies of Ukraine" 255 Regional Electoral Commissions (REC) have been instituted directly by the CEC based on applications from political parties, electoral blocs of political parties ranging not less then 12 and not more then 20 persons.

REC have been instituted by the applications of political parties' and blocs of political parties central managing bodies under condition that political parties (parties that constitute the electoral bloc) are registered as established by the law and have (at least one of parties that constitute an electoral bloc, has) registered, as established by law, organizations in the Aut. Republic of Crimea, oblasts, cities of Kyiv and Sevastopol on territories of which a single-mandate constituency have been instituted.

The Law on elections of people's deputies also stipulates the subjects for applications and that their candidates are obligatory included into REC. These are representatives of political parties, electoral blocs of political parties that overcame the 4% barrier at previous elections in 1998 as well as parties that have in the current Verkhovna Rada their party factions (factions of blocs) under condition that political parties (parties that make part of the electoral bloc of political parties) and have (at least one of the p. parties that constitute an electoral bloc) organizations in regions duly registered in accordance with the law stipulated in part two art.133 of the Constitution of Ukraine on whose territory an appropriate single-mandate electoral constituency have been instituted.

Representatives of other parties, electoral blocs of political parties were included to the composition of Regional Electoral Commissions by lot.

Out of 45 political parties and blocs that took part in the formation of REC, 17 parties had the right for mandatory inclusion to the REC, all the rest took part in REC formation by lot. All 17 parties have used their right and submitted candidates to concrete REC. The overall number of persons included to RECs from these parties reached 3682 persons. By way of lot, out of 2367 representatives from 28 parties and blocs to REC were included 802 persons from 25 parties and blocs. Thus, the CEC, based on applications from 42 parties and blocs, has instituted 225 REC in the number of 4484 persons.

It should be noted that the Law "On elections of people's deputies" doesn't stipulate the procedure of nomination of the REC management out of members of those Commissions. Nevertheless, the CEC, while resolving these issues, based its stand on general fundamentals of the electoral process, first of all on the principle of equality of rights of all p. parties, blocs that took part in the REC formation.

To organize and carry out the voting, 33 113 polling stations electoral commissions have been created that comprised 478 382 persons as members. Out of that number, 313 314 persons from p. parties and blocs, 159 020 persons from candidates to people's deputies, 5 414 - from REC Chairmen.

As to the formation of the polling stations Commissions (PSC) management, provisions of the Law on elections stipulate that each party and bloc that are the subjects of the electoral process as well as each candidate who is registered in a respective single-mandate constituency, have the right to a proportional part of managerial positions in PSC. In accordance to that part, a number of PSC managerial positions have been determined for each party and bloc and for each candidate registered in a respective single-mandate electoral constituency. (Comments prepared by the Central Electoral Commission)

Proposals for further actions

Refer to same proposals as under paragraph 9.

Measures foreseen by the Ukrainian authorities

Refer to same measures as under paragraph 9.

Paragraph 11

Assertion that the additions to voters' lists on the day of elections by the electoral commissions is a direct violation of the law "On elections" doesn't reflect the reality. The Ukrainian legislation provides the possibility to supplement, under certain conditions, voters' lists on the day of elections as well. The checks done by the CEC and RECs of complaints on decisions, actions and inaction of PSC while exercising their powers as to precision and introduction of amendments to the lists, have shown that there were no violations of the law that could influence the results of the voting. At the same time, it's true that in practice there were cases of voters’ migration who realized their right for vote not in the place of their residence but using the absentee coupon as stipulated by the Ukrainian electoral legislation. (Comments prepared by the Central Electoral Commission)

Proposals for further action

To provide for the elaboration of the Law “On introduction of amendments to the Law of Ukraine “On elections of people’s deputies of Ukraine”.

Measures foreseen by the Ukrainian authorities

Refer to same measures as under paragraph 9.

Paragraph 12

In accordance with the Law the voting was taking place in specially allocated premises that had enough cabins (rooms) for secret voting. Space for handing over of the ballots were also identified. Standard requirements for voting premises as well as tentative list of equipment and inventory needed for the polling station including requirements as to the number of cabins for secret voting and ballot boxes in relation with the number of voters contained in voter lists, have been stipulated by the CEC.

In particular, at the polling stations with up to 500 voters, not less then two cabins for secret voting have been in place, at stations with 500 to 1500 voters - 2-3 cabins, with 1500-3000 voters - 3-4 cabins.

The RECs have provided for the manufacturing of cabins in sufficient quantities, in accordance with specimens of multi-usage cabins for secret voting during elections and referenda, that were approved by the appropriate CEC decision.

31 March 2002, on the day of the voting, all polling stations except for 64 polling stations of the single-mandate constituency N 90 have opened their doors at the time stipulated by the law "On elections", that is at 8 AM. An insignificant delay in the work of N 90 constituency polling stations has been caused by the attempts of certain political forces to wreck the elections in this constituency due to an extraordinary event - the murder just before the voting of one of the candidates. Because of the direct CEC intrusion and due organizational work done by the REC, the elections in the above-mentioned constituency have taken place.

Alongside with this, it should be noted that at some polling stations some delays were observed with handing over of the bulletins which caused lines of voters in front of the cabins. The reason for that was simultaneous elections of people's deputies and of elections to the self government bodies. Each voter received up to 7 different bulletins and it took some time for the voter to make his choice. Nevertheless, these reasons in any way influenced elections general results. (Comments prepared by the Central Electoral Commission)

Proposals for further actions

Refer to same proposals as under paragraph 9.

Measures foreseen by the Ukrainian authorities

Refer to same proposals as under paragraph 9.

IV. ADOPTION OF LAWS AND REGULATIONS (LATEST DEVELOPMENTS)

Paragraph 17

Indeed, Mr Fedur has been detained at the time of high-priority investigative actions in the criminal case. On 26 Dec 2002 the pre-trial investigation in the criminal case on a charge against Mr Fedur (art 358 parts 1,2,3; art 190 part 2 of the Criminal code) has been finished. As of today, Mr Fedur has studied the case file and has refused defendants' participation. He has lodged an application concerning the execution of additional investigative actions, the application has been reviewed and the pre-trial investigation reinstated. As to the lawfulness of Mr Fedur's detention, this is being checked up now; final decision will be provided only after the finalization of pre-trial investigation.

Investigative bodies of the Ukrainian prosecutor's office do not deal with investigations aimed against relatives of Mr Youshenko bloc members as well as against parliamentarians related to their political activities. (Comments prepared by the PGO)

Measures foreseen by the Ukrainian authorities

Investigation is carried out in accordance with pre-trial investigation plan (not subject for disclosure).

In accordance with the plan of pre-trial investigation.

Paragraph 20

For the implementation of stipulations of the Law on Judiciary, the Cabinet of Ministers, by its Resolution 760 dated 4 June 2001, has approved the plan of actions for the organizational support of its implementation in 2002.

In accordance with the Decree of the President 780 dated 29 August 2002, the State Court Administration of Ukraine has been created with the main function to organize support of the activities of all courts (except for the Supreme Court and the Highest specialized courts) and other bodies and authorities of the judicial system. The above-mentioned law institutes the jury and people's jurors.

Steps have been taken in further reforming judicial system based on the mentioned law. By Presidential Decree 889 dated 1 October 2002, within the system of courts of general jurisdiction, the Courts of Appeal and Cassation of Ukraine and the Highest Administrative Court of Ukraine have been instituted. (Comments prepared by the SCU)

Proposals for further actions

To speed up creation of conditions and to allocate appropriate premises to the Courts of Appeal and Cassation and to the Highest Adminstrative Court of Ukraine.

Paragraph 21

The introduction of the appropriate amendments into procedural codes in force and the adoption of the Administrative procedure code of Ukraine is needed since the newly created courts will not be empowered with relevant authority and will not be able to begin their work. The above-mentioned steps are to be made irrespective of the fact that the President, by his Decree, has stipulated the number of judges in these courts, the CM has determined the maximum number of their personnel and the Verkhovna Rada has allocated financial means in the State budget 2003.

The independence and untouchability of judges is guaranteed by art 126 of the Constitution and by laws of Ukraine. Any influence over the judges is forbidden. Art 129 also stipulates that judges while justicing are independent and are subordinated only to the law. The main functions of the court are to ensure the protection of rights and freedoms of an individual and citizens, guaranteed by the Constitution and laws, the rights and lawful interests of legal persons, interests of the society and the state. The law on Judiciary provides that the judicature in Ukraine is exercised on fundamentals of equality of all parties to the legal action vis-a-vis the law. While justicing, the judges are independent of any influence, do not report to anyone and are subordinated only to the law. Intrusion into judicature, influence over courts or judges in any form is forbidden and leads to the responsibility stipulated by the law. That is, based on the above-mentioned, the independence of judges is stipulated both by the Constitution and by the laws of Ukraine. Judges cannot be dependent from tax administrations, this is stipulated and forbidden by the law. The courts of Ukraine take decisions both to the benefit of taxpayers and to the benefit of tax authorities, this is yet another proof of their independence and that they are subordinated only to the laws while resolving on legal matters. (Comments prepared by the GPO and State Tax Administration)

Proposals for further actions

To speed up the adoption of the new Civil-procedural, Criminal-procedural, Administrative-procedural codes submitted to the Rada as well as the new wording of the Law on Procuracy.

Paragraph 23

The draft of the Criminal-procedural code was submitted to the Verkhovna Rada’s consideration on 23 June 2001. Because of the termination of powers of the VR of the third convocation and in accordance with art. 6.2.2. of the VR Rules of Procedure, legislative proposals and drafts that were not approved by the Rada of the previous convocation in the first reading are considered to be withdrawn; the draft of the Criminal-procedural code is withdrawn.

With the aim to elaborate the Criminal-procedural code draft, a working group of the Cabinet of Ministers was created which, in accordance with CM Resolution 176-r dated 24 March 2002 is headed by Mr V. Maliarenko, Chairman of the Supreme Court of Ukraine (Comments prepared by the Ministry of Justice)

Proposals for further actions

To provide for the finalization of the Criminal-procedural Code draft and to submit it to the VR consideration with the aim of its final approval.

Measures foreseen by the Ukrainian authorities

To organize a meeting of Ukrainian and Council of Europe experts to discuss Criminal and Criminal-procedural codes expertise results in the framework of European Commission-CE Joint Program for Ukraine (17-19 Feb 2003)

Paragraph 24

On 16 Jan 2003, with taking into consideration the proposals of the President, the Civil Code was adopted. On 3 March 2003 the President of Ukraine has signed the Civil code that comes into force by 1 Jan 2004 (art.1. of its Final and transitional provisions).

The Civil-procedural code draft was submitted to Rada's consideration by the CM N29-100\4 dated 10 Jan 2002. Because of the termination of powers of the Verkhovna Rada of the third convocation and in accordance with art. 6.2.2. of the VR Rules of Procedure, legislative proposals and drafts that were not approved by the Rada of the previous convocation in the first reading are considered to be withdrawn; the draft of the Civil-procedural code was turned back to the CM. At this time its draft is being finalized taking into account the amendments in the current Ukrainian legislation and the Council of Europe experts’ conclusions. (Comments prepared by the Ministry of Justice)

Proposals for further actions

After finalization, to submit the Civil-procedural code draft to Rada's consideration with the aim of its final approval. (1st half-year 2003)

Paragraph 25

On 11-13 Sep 2002 Mr S. Piskun, Prosecutor General, has visited the Council of Europe on the invitation of Mr W.Schwimmer, the Secretary General. During meetings with the CE top officials, the issue of Ukraine's observance of its commitments has been discussed in detail and it has been agreed as to the elaboration and implementation of Joint action plan pertaining to the Procuracy reform in accordance with the constitutional model, European norms and standards. Following the results of the visit to Ukraine of the CE experts mission on 3-7 Nov 2002, the GPO and the CE Legal Directorate have agreed upon the above-mentioned Action plan. (Comments prepared by the GPO)

Proposals for further actions

To provide for the implementation of the Joint CE and GPO Action plan with the aim of incorporation into the national legislation of the European standards as to the role and place of GPO in a democratic society based on the principle of the rule of law.

Paragraph 26

On 14 July 2002 the people deputies G.Vasiliev, Yu. Karmazin, B. Medvedchuk, M. Mychko and B. Rozvadovskiy have submitted to Rada's consideration the draft "On amendments to the law on Procuracy". In general the draft mentioned has received a negative assessment of Mr D. Gamilton and Ms G. Sukhotska, members of the Venice Commission, as such that failed to divest the Procuracy of functions intended only to be transitional; because of that its approval wouldn't be relevant. Consequently, and also taking into account the stand of the Prosecutor General, the aforementioned draft was not submitted to Rada's consideration and, in accordance with art 6.2.2. of its Rules of Procedure, is considered to be withdrawn. (Comments prepared by the GPO)

Proposals for further actions

To take into account the assessment of the Venice Commission experts while elaborating the new draft law on Procuracy.

Measures foreseen by the Ukrainian authorities

- to include, in the Conception the remarks of the Venice Commission members pertaining to certain aspects of Procuracy's organization and activities.

- to identify the ways of the reform which will enable to transform the Procuracy into an authority in line with Council of Europe principles

- to ask the CE to make an expert assessment of the draft Conception

- to finalize and adopt the Conception in due procedure

- to elaborate on its base and to submit for the Rada's consideration the draft of the new Law on Procuracy as well as the package of other draft laws pertaining to Procuracy's organization and activities in conformity with the stipulations of the Constitution of Ukraine, international norms and standards. (2003)

Paragraph 27

On 12 July 2002 after his appointment to become Prosecutor General, Mr Piskun has created a new investigation group in this criminal case. Already in July 2002 the investigators, together with experts from the Kyiv forensic research institute of the Ministry of Justice, have performed an additional examination of the place where on 2 Nov 2000 the headless body had been found. There have been found some objects that were examined by the experts.

An additional examination of body remnants and samples have been taken for the needs of the complex forensic, genotype and criminal expertise. Based on the new proofs, the investigation group has ordered 15 new forensic testing following which it has been reliably and undoubtedly proved that the headless body found in Tarascha rayon of Kyiv oblast belongs to Mr G. Gongadze. As well as for the first time it was possible to identify the approximate time of his death. On request of Ms Lesia Gongadze, the civil party in this case, an additional forensic and genotype expertise with the assistance of the Swiss experts has been made using their equipment. This expertise has proved for good the results of previous tests done by the Ukrainian experts as to the identification of Mr Gongadze's corpse.

Apart of that, in the course of investigation it became possible to get nearer for the full clarification relating to the circumstances of Mr Gongadze's disappearance on 16 Sep 2000 as well as for the identification of persons involved in his disappearance and murder.

In Sept-Oct 2002 Mr Menar who now represents Mrs L. Gongadze, the grieved side in this criminal case, has travelled to Kyiv twice. He has met the Prosecutor General and he got the access to all expertise done. Moreover, Mr Menar, together with Mr Rivole, forensic expert and the President of the Association of forensic experts, took part in an additional examination of Mr Gongadze's corpse with the possibility to take tissue samples in order to carry out in Jan 2003 in Switzerland an additional forensic and genotype expertise. Mr Menar is given full access to the documents on the criminal case; this was appreciated by Mrs L.Gongadze, the grieved side. (Comments prepared by the PGO)

Measures foreseen by the Ukrainian authorities

The investigation is carried out in accordance with the pre-trial investigation plan (not subject for disclosure)

Paragraph 28

In Nov 2002, as a proof of his readiness to full cooperation with the upcoming mission of Mr Kruger, the PACE Bureau representative, Mr Piskun has sent to him the detailed information on actions that were taken by the Procuracy for the inquiry in this case.

On 12-14 Dec 2002 Mr Kruger and Ms Ravaud have travelled to Ukraine. This mission has been taken for the implementation of the Bureau decision as well as the arrangements reached between Mr W. Schwimmer and Mr Piskun during Mr Piskun's visit to Strasbourg in September 2002.

During his talks in the PGO, Mr Kruger has obtained comprehensive answers related to the course of investigation as well as other information needed for the preparation of objective conclusions related to the state of the art in the investigation of Mr Gongadze's murder. Mr Kruger was informed that the investigation of this case is being carried out to the maximum extent transparently and the investigation findings are broadly treated during regular press conferences of the PGO top officials. The Prosecutor General has ensured Mr Kruger that the investigation is being carried out in a completely unbiased way, first of all from the political point of view. The investigation will check all possible versions of the crime. It was stressed that the PGO is interested in the objective coverage and appraisal of its activities related to the investigation of the Gongadze case.

Having abstained from premature conclusions that will be forwarded to PACE, Mr Kruger was, in general, positive as to the work of the Ukrainian investigative authorities both from the point of view of its detailed manner and the openness of the investigation. (Comments prepared by the PGO)

Proposals for further actions

- to obtain Mr Kruger’s report, to review it and, if necessary to provide commentary

- to continue to periodically (once in three months) inform the Council of Europe Secretary General as to the results and the state of the art of the Gongadze case investigation as well as other crimes committed to journalists

Measures foreseen by the Ukrainian authorities

At his meeting with Mr Kruger, the General Prosecutor has mentioned that the issue, as of today, is to finally unveil this crime and to apprehend its perpetrators. However, the main bulk of work is transferred now to the operative services in charge of the search of the culprits. With this aim the investigative judges have passed appropriate mandates to the authorities in charge of the search. The General Prosecutor has explained that as of today the Ukrainian investigators are doing everything needed, therefore there is no need to help them. (Tentative implementation terms: after the report is obtained, once in three months).

Paragraph 29

Taking into account of the new proofs that have been gathered in the criminal case, the PGO prepares a new request to the Rada with a view to obtaining its consent to bring Mrs Timoshenko to criminal responsibility. (Comments prepared by the PGO)

Measures foreseen by the Ukrainian authorities

The investigation is carried out in accordance with the pre-trial investigation plan (not subject for disclosure).

Paragraph 30

As regards Mr Fedur's case - please see comments to item 17.

Investigative authorities of the Procuracy do not carry inquiries aimed against relatives of members of the Yuschenko bloc connected with the political affiliation of these MPs. (Comments prepared by the PGO)

Measures foreseen by the Ukrainian authorities

The investigation is carried out in accordance with the pre-trial investigation plan (not subject for disclosure).

Paragraph 31

In the end of October 2002 the President has submitted for the Rada consideration the draft Law on Ratification of the European Charter. Following the results of its finalization and with the aim to speed up the approval of the law on Charter's ratification as well as taking into consideration MPs proposals, a working group within the Verkhovna Rada Committee on issues of European integration was set up. It comprises the representatives of the Presidential Administration, central executive bodies related (Ministry of Justice, Ministry of Education, State Committee on nationalities and migration) and leading Ukrainian researchers. The working group has elaborated an alternative draft. In the nearest future the Verkhovna Rada is to consider the aforementioned drafts.

Proposals for further actions

To submit the drafts to Rada’s plenary session for consideration with the aim of the final approval of the law on Charter’s ratification. (Feb-Apr 2003)

Paragraph 32

Centers of temporary detention of apprehended and detained persons (IVS in Russian; Ukrainian abbreviation: ITT, - translator's note) are subordinated to the Interior Ministry. In accordance with art 11 of the Law on Militia, militia authorities are given the right to apprehend and detain, in premises especially allocated for these purposes, persons that are suspected in perpetration of crimes as well as the individuals in relation to whom a preventive measure of taking into custody has been taken. The Criminal-procedural code stipulates that the detention of a person suspected in committing a crime is a measure of the procedural compulsion, that is a person is being placed for a short period of time in especially allocated premises (ITT). Art 155 of the Criminal procedural code stipulates that such persons could be held in such places for not more than three days. If there is no possibility to bring the detained persons to an investigation isolation ward (SIZO - transl. note) either because of the long distance or lack of appropriate means of communications, they could stay in ITT up to 10 days. In accordance with art 4 of the Law on Preliminary detention, the institutions that are entitled to keep persons to whom a preventive measure of putting into custody has been chosen, are the investigation isolation wards of the State Department for the execution of punishments.

In some cases that are governed by the necessity to undertake investigative actions, these persons can stay at the ITT or at a guard-house. Looking into the experience of keeping detained or arrested persons in custody in the developed European countries, makes it possible to affirm that similar institutions function in police establishments there as well, the difference lies only in terms of keeping which are stipulated by national legislation.

Proposals for further actions

It is believed not to be relevant to take the ITT out of the subordination of the Interior Ministry.

Paragraph 33

On 6 Feb 2003 the Rada has adopted the Law "On Introduction of amendments to certain legislative acts of Ukraine pertaining to the functioning of the criminal-execution system". This law brings the Ukrainian legislation in line with the international standards as regards issues of the criminal-execution functioning. In particular, the issue of all persons taken into custody is regulated, i. e. they are kept in SIZOs of the Department. The norms of the law "On preliminary imprisonment", exclude the SSU to have SIZO in its subordination. Thus, the Security Service of Ukraine deprived of the right to possess investigation isolation wards. In other terms, from a legislative point of view, the issue of transfer of the IIW (SIZO) from the SSU to the State Department on execution of punishments has been solved. (comments prepared by the Interior Ministry)

Paragraph 34

The commitment of Ukraine, in accordance with sub-item YII of item II of the Opinion 190 (1995) has been fulfilled. The State Dep on execution of punishments has been created being an autonomous body subordinated directly to the CM. This has enabled:

- to meet the commitments taken by Ukraine upon accession as well as the CE experts recommendations pertaining to the cessation of all links with the military, militia and to the demilitarization of the criminal-execution system.

- to make the management of the criminal-execution system easier, which became more flexible and operative at the expense of the concentration of all forces and efforts within the same agency, including services of guard, supervision and security, and excluding the functions alien to it, diminishing redundant correspondence on issues pertaining to the activities of the Ministry of Interior, has enabled to accelerate the documentation speed.

- to exclude the intrusion of functionaries who were not directly responsible for the activities of the criminal-execution system, including its economic activity.

- to significantly improve the legislative and regulatory activities, to shorten the passage of drafts of the acts and regulations.

- to create the system of training of specialists for the work within the system, including the set up of its own legal college.

- to improve the resolution of issues related with the upgrading of the system, the housing construction for its employees at the expense of allocation of means directly to the State Department (Presidential Decree 344\98 dated 22.04.98).

- to improve the convicts' employment by way of granting to State Department the status of "state contractor" for the needs of the defense and security sectors (by the same Decree).

- to ameliorate the structure and manning table of the establishments and agencies of execution of punishments (CM Resolution 653 dated 22.04.99); it has made easier the resolution of organizational-manning issues, so as to react promptly for system's everyday needs.

The activities of the Department related to the direct implementation of a unified state policy in the sphere of execution of criminal punishments is a proof that it can resolve issues that the system is now facing. The change of its current status, the introduction of an additional tutelage by any other central executive body will not bring positive results and will hinder the further development of the

penitentiary system within the context of the European community requirements. Moreover, in accordance with the existing legislation the supervision over the penitentiary institutions activities is exercised by the CM, Procuracy institutions and the Rada's Ombudsperson on Human Rights.

Taking into account the complexity and the responsibility for the tasks as regards further reforming of the system, the necessity to concentrate efforts, forces and means within one state authority - which is the State Department - we wouldn't consider it relevant to charge the Ministry of Justice with the overall management of the criminal-execution system.

As regards further demilitarization of prisons system: in accordance with the legislation in force the agents who do their service in detachments of punishments establishments are the agents of rank and file and commander composition within the State Department and are not military servicemen. Stipulations of the Law on Universal military duty and military service as well as military statutes' stipulations, do not extend to them. (Comments prepared by the State Department)

Proposals for further actions

To elaborate and submit for the consideration of the President “The Conception on further reforming of the criminal-execution system in 2003-2004”.

Measures foreseen by the Ukrainian authorities

To provide for the implementation of the main directions of the criminal-execution system stipulated by the aforementioned Conception and aimed at further humanization and the demilitarization of the system.

Paragraph 35

After Ukraine's accession to the Council of Europe,in order to implement the EC-CE Joint Programme in the field of reforming of the local self-government and penitentiary system the EC and CE experts have reviewed in 1996 the legislation, other regulatory norms dealing with the execution of punishments and their usage in Ukraine. Following the results of their work, the CE has prepared and made public its Report "Appraisal of prison system of Ukraine" with the concrete recommendations as regards further reforming of the system of the execution of punishments with the aim to create the penitentiary system as an autonomous social institution. All CE experts' recommendations have been met. (Comments prepared by the State Department)

Proposals for further actions

To organize the CE experts inspection mission and to provide normal conditions for their work.

Measures foreseen by the Ukrainian authorities

To hold the seventh meeting of the CE Steering Group on reforming the penitentiary system of Ukraine with the participation of CE and Ukrainian experts. (April 2003)

Paragraph 36

Overcrowding: during 2001-2002 the Department has created 492 cells for holding of the persons convicted for the life imprisonment, 5380 cells for keeping convicts in punishment establishments, 158 cells for keeping convicts in investigation isolation wards. In 2002 works were started to create 304 cells for keeping convicts for the life imprisonment and the construction of a regime bloc for 400 cells at the Vilniansk investigation isolator. Apart of that, a restriction was lifted as to the application of the parole system of release for persons convicted for certain categories of crime as well as the introduction of a preventive measure in the form of placing a person under custody only on court decision. In 2002, 30 590 convicts have been released on parole, almost 9 400 convicts have been transferred to colonies, 7 800 persons have been transferred to provisional investigation isolators. This allowed, in comparison with 2000, to reduce by 11% the number of condemned and imprisoned in imprisonment establishments.

The Ministry of Interior is taking organizational and practical measures aimed at bringing the ITT and the reception and distribution centers for persons apprehended for vagrancy, special reception centers for persons under administrative arrest in line with the European norms and standards in accordance with the recommendations of the CPT following its missions in 1998, 1999 and 2000. During the last five years 5 new ITT have been built, current refurbishment was done at 120 ITT, at 19 reception and distribution centers and at 9 special reception centers. The overcrowding of some ITT is due to the fact that SIZO institutions of the Department are not able to receive from ITT those that should be transferred there. That is why some of the persons are detained at ITT for longer terms than stipulated by the norms.

Despite the actions taken, still some 6 000 imprisoned are kept at the establishments with the infringement of legislatively stipulated sanitary norm (2,5 sq. m. per person). At this time the resolution of the problem is refrained by insufficient financial and economic possibilities of the state.

Some practical actions taken for the last years, in particular, the adoption and implementation of the State Programme on fight against Tuberculosis (TB) has allowed to improve the medical treatment of imprisoned and to bring this decease down. Only in 2002, 5 742 persons that were in the penitentiary institutions have caught TB for the first time. Medical institutions of the system possess all necessary medicines and work in close contact with the blast anti-TB institutions that are under the administration of the Ministry of Health Care.

As regards the observance of human rights, in order to remove the significant shortcomings in the activities of the establishments that have been inspected, appropriate action plans have been elaborated, their implementation is under the Department's supervision.

Tuberculosis (TB) treatment: for the implementation of the Presidential Decree 643/2001 dated 20 Aug 2001, the Department has elaborated and approved at its Board its interior Programme on complex actions to fight TB at the establishments of the criminal-execution system for the years 2002-2005. The aforementioned Programme spreads to all fields: prophylactics, identification and treatment of TB infection.

During 2002 an overall prophylactic fluorography check-up of all detainees within the system was completed. Those who are brought to SIZOs are also being checked.

All TB hospitals have been - this was done on a centralized basis - provided with anti-TB medicines for the period until April 2003.

Centrally provided - both for the personnel and the detainees - was also an overall medication prophylactics for 20 colonies with the highest TB rate.

In order to improve supervision for diagnosis and treatment, the methodological recommendations "Peculiarities of TB diagnostics and treatment at penitentiary establishments" have been elaborated and agreed with the Ministry of Health Care.

Within the framework of the implementation of a pilot DOTS - strategy project in the Donetsk oblast, the work is being done, jointly with the oblast Health Care Directorate, to review the situation and to agree on joint actions. Within the framework of this project a training for laboratory assistants of the system's medical institutions was held based at the Donetsk oblast medical institutions. Qualification level of medical workers, as regards microscopic TB diagnostics, have been improved.

The above-mentioned has made it possible to render better medical treatment to imprisoned and to improve the treatment's effectiveness. The work performance in 2001 showed that the infection rate in TB institutions (for 100 patients checked out) has decreased twice. The number of patients in 2002 was 20% less than in 2001. One of the successful performance factors of the Programme is the number of cases of TB active form, which has been reduced in two times in comparison with 2001. (Comments prepared by the State Dept)

Proposals for further actions

- to go on with the reforming of the penitentiary system aimed at its social reorientation with taking into account of the international experience, principles of humanism, lawfulness, democracy, fairness differentiated and individual influence over detainees.

- to restart the construction of 9 new SIZOs and to identify the optimum establishments’ structure of the penitentiary system.

- to go on with the implementation of the Departmental interior programmes and plans especially as regards the fight against TB.

Measures foreseen by the Ukrainian authorities

1) During inspections of system’s establishments, to constantly pay attention to the observance by the management of these establishments of the requirements of the State Program on fight with TB as well as to issues of target usage of budgetary means. To improve the personnel training and to strengthen the control over the observance of human rights and freedoms in imprisonment establishments.

2) To appeal to the PM of the Autonomous Republic of Crimea, Heads of the oblasts state administrations with the aim to restart the building of new SIZOs.

3) Following the results of the last CPT mission and taking into account the restricted financing of the Min. of Interior and that the re-equipment of militia special establishments necessitates significant material spending which is not foreseen by the budget, the CM of Ukraine has instructed the CM of the Aut. Rep. of Crimea, oblasts, cities of Kyiv and Sevastapol state administrations to provide financial assistance to militia authorities to care for the appropriate conditions in keeping detainees at the militia special establishments in accordance with the CPT Recommendations.

Paragraph 37

From the time of the transfer of the State Department from the Interior Ministry administration, the number of complaints of citizens as to ill-treatment in establishments of confinement has significantly diminished. All the complaints are thoroughly checked and, in cases of inhuman treatment, actions are taken to remove the infringements and to restore the rights violated. During 2002, 910 appeals have been sent from the establishments of the system to the PGO concerning the violation of conditions and procedures of the execution of punishments, only 65 of them dealt with methods of influence that are not allowed. All appeals have been duly checked, the facts stated there were acknowledged as such that were not confirmed. The criminal cases on them were not initiated. At the same time the bodies of the procuracy are exercising systematic checks as to the reasonableness of the usage of disciplinary punishments vis-a-vis detainees. During previous year the prosecutors have released from penalty premises 198 persons as those that were punished without grounds.

In 2002, there were in the establishments of the system no instances of ill-treatment vis-a-vis prisoners and condemned. Neither there were appeals to the Department from the authorities of procuracy. Neither such cases were found by members of the CPT mission during their visit to the establishments of punishment in 2002, the information on that was voiced at the final meeting on 6 Dec 2002.

As regards cases of ill-treatment vis-a-vis apprehended persons from the side of law enforcement bodies of the Interior Ministry, a complex of organizational and practical measures is taken aimed to improve the situation. (Comments prepared by the PGO and the Interior Ministry)

Proposals for further actions

1) The PGO jointly with the State Department have to finalize the draft of the new Correctional-labour code of Ukraine to be submitted for the second reading in the Rada

2) The Interior Ministry elaborates the appropriate methodological recommendations for its different offices as well as the explanatory work is on the way with the subordinated personnel as regards the observance of detainees' rights and freedoms. In particular, a directive was given to hold regular checks of rayon militia establishments and ITT concerning the prevention of usage by militiamen of tortures and inhuman behavior with persons apprehended. The issue is under special supervision by the Interior Ministry top management.

3) To ensure timely and all-round informing of the CPT to its inquiries following visits to Ukraine in accordance with the procedure established by the European Convention for the prevention of torture and inhuman or degrading treatment or punishment, in particular to the letter of the CPT President Mrs S. Casale dated 20.12.2002

Measures foreseen by the Ukrainian authorities

In penitentiary establishments to revise systematically the observance by their administrations of the requirements of the European Convention on prevention of Torture.

Paragraph 38

In Ukraine there is no statistical data as regards instances of physical ill-treatment with those arrested and condemned. The allegation of Mrs Karpachova as regards systematic physical ill-treatment of detainees, is her own appraisal of the state of affairs. Improvement of custody conditions, material provision and medical treatment of detainees remains a topical issue and is in relation with the budget assignments for these needs.

In order to improve imprisoned and condemned persons nutrition, on 19 Oct 2001 the Department Board has approved "The complex programme as regards the improvement of food provision in 2001-2005". Provision to the establishments of flour, cereals and macaroni of the system's own production, has allowed to streamline additionally 3,25 mln UAH to improve detainees' nutrition. (Comments prepared by the PGO and State Department)

Proposals for further actions

- to enhance the procuracy supervision over the observance by the penitentiary establishments administrations of human rights as well as over the targeted usage of budgetary allocations.

- taking into account the social and economic situation in the state, to continue works on creation of relevant communal and daily living needs for the detainees, their nutrition and medical-hygienic care.

- to make more active the implementation of respective CE programs for the training of the Ukrainian law enforcement agents as regards the European Convention requirements (article 3 - prohibition of tortures), in particular, of the EC-CE Joint Programme for Ukraine and Plan of Actions of the CE Steering group on reforming of the penitentiary system in Ukraine

Measures foreseen by the Ukrainian authorities

To go on with the implementation of Departmental interior programs and plans, practically in all directions and specifically as regards:

- strengthening of protection, supervision, security and legal order;

- taking the establishments of the criminal-execution system out of the crisis situation;

- improvement of food supply and enhancement of the material base;

- diminishing of the risks connected with AIDS among the personnel and the detainees;

- the implementation of the Complex programme of work with personnel in 2000-2004.

Paragraph 39

For having committed the administrative offence in the city of Kyiv, related to the infringement of the order of the organization, holding of gatherings, meetings, street rallies and making malignant resistance to militiamen at the time they were executing the court decision restricting the right of some NGOs for massive rallies, on 16 Sept 2002 the bodies of the Interior have apprehended 64 persons. Vis-a-vis 63 apprehended persons protocols were compiled as regards administrative offence committed by them, this is stipulated by articles 185 and 185-1 of the Code on administrative offences. Later to the protocols were taken the courts. Concerning one person, by the resolution of the prosecutor's office in the Darnitsa rayon of the city of Kyiv, the sanction was obtained to place that person up to 30 days to the reception and distribution center of the Kyiv city militia. Administrative penalties in the form of the administrative arrest have been brought by courts against 51 persons, to other offenders the courts have decided to impose fines and administrative penalties. On 18 Sept 2002 the Court of Appeal reviewed the aforementioned administrative cases, as regards 44 offenders the administrative arrest for more than 1 day has been replaced by the administrative arrest for 1 day, for other cases the rayon court decisions have been acknowledged as valid. (Comments prepared by the PGO)

Paragraph 40

The prosecutor's Office of Kyiv was charged with the check up of the lawfulness of militiamen actions pertaining to the dismantlement on 17 Sept 2002 of a tent city set up within the framework of the action "Raise Ukraine!". According to the Prosecutor Office information, on 7 Oct 2002 the initiation of the criminal case was declined on the ground of absence of corpus delicti in militiamen actions. Nevertheless, on 10 Oct 2002 the PGO of Ukraine has canceled the aforementioned decision and initiated a criminal case on grounds of abuse of power and office committed by the law enforcement agents, the crime which is stipulated by the Crim code, part I, art 365. The Prosecutor Office of Kyiv is charged with the organization of a pre-trial investigation. At this time the investigation of the case is on. (Comments prepared by the PGO)

Measures foreseen by the Ukrainian authorities

The PGO is to carry out the supervision over the pre-trial investigation of the case. (until the lawful decision is taken in this case)

Paragraph 41

In accordance with art 4 of the Law on Advocacy which stipulates the principles and organizational forms of advocacy activities, the advocacy of Ukraine is realizing its activities on principles of the rule of law, independence, democracy, humanism and confidentiality. "The advocate has the right to exercise the advocacy activities individually, … to associate with other advocates in … advocates' unions which function in accordance with this Law and advocates' unions statutes". The latter function on the ground of free will, self government, collegiality and openness".

Advocates unions' registration is being carried out at the Ministry of Justice. The CM Resolution N 302 dated 27 Apr 2003 has approved the Regulations on the order of registration of the advocates unions. As of today, the Ministry of Justice has registered 363 advocates unions.

On 14 Nov 1990 the Ministry has registered the All-Ukrainian NGO "The Union of advocates of Ukraine" (certificate N 6). (Comments prepared by the Ministry of Justice)

Proposals for further actions

The Joint Programme EC - CE for Ukraine for 2002-2003 provides for the actions aimed at the support of the creation of the professional association of advocates ("Strengthening of independence and effectiveness of the judicial system" project). The Ministry of Justice and the Union of advocates of Ukraine are in charge to carry out actions in Ukraine.

V. FREEDOM OF EXPRESSION AND FREEDOM OF MEDIA

Paragraph 42

In accordance with part III art 15 of the Constitution of Ukraine, censorship in Ukraine is forbidden. The Laws on Radio and Telebroadcasting, on Printed Publications stipulate that the intrusion of the state authorities, their officials, NGOs, individual citizens into the creative activity of Radio and TV organizations, publishers, as well as the censorship in the form of supervision over the ideological content of transmissions and publications is forbidden.

In accordance with art 34 of the Constitution everyone is guaranteed the right for the freedom of thought and speech, on free expression of one's opinion and conviction. Every one has the right to freely collect, preserve, use and spread the information orally, in written or in any other form at one's own choice. The realization of these rights could be restricted by law in the interests of national security, territorial integrity or public order with the aim to prevent disturbances or crimes, for the needs of the health care of the population, for the protection of the reputation or the right of other people, for the prevention of disclosure of information obtained confidentially or for the maintaining of the authority and objectiveness of the justice.

It is stipulated by the provisions of the Law on Print media in Ukraine, that freedom of speech and free expression in the printed form of one's opinions and convictions are guaranteed by the Constitution of Ukraine, as well as the right of every citizen is stipulated to freely and

independently look for, receive, fix, save, use and spread any information with the help of the print media. The print media are free. It is forbidden to create and finance public bodies, agencies and organizations or positions of officials for the censorship of the media.

The requirement to preliminary coordination of communications and materials that are spread by the print media is not allowed as well as is not allowed the ban on spreading communications and materials from officials, state bodies, enterprises, agencies, organizations or associations of citizens except for cases when an official is the author of the information being spread or he gave an interview.

The state guarantees the economic independence and provides for the economic support of the print media activities, prevents the monopoly abuse on the market from the side of editors and spreaders of print production. Actions aimed at economic support ensuring of the print media activities as well as the state executive bodies in charge of this support are being defined by the CM of Ukraine. In accordance with the stipulations of the aforementioned law, the publication of a print media outlet could be cancelled by the decision of the founder (co-founder) or by the court.

The media of Ukraine in accordance with the national legislation have the right to cover all aspects of the activities of bodies state authorities and bodies of local authorities. State authorities and local authorities are mandated to provide for the media full information as regards their activities through the appropriate informational services of state authorities and local authorities, to provide for the journalists free access to it, except for cases, stipulated by the Law on State secret, should not exercise pressure upon them and should not interfere into their production process. The media may carry their own studies and analysis of the activities of the state authorities and local authorities, their officials, to give their appraisal of them, to give comments.

The issue of the ensuring of the freedom of expression is regulated by art 171 of the Criminal code which stipulates that the purposive hindrance of the lawful professional journalist's activity is punished with a fine equal to 50 non-taxed revenue minimums or by the arrest for the term up to six months or by the restriction of liberty to the term up to three years.

The state does not interfere in the creative process of the work of the journalist's collectives. The information concerning the so called "temniki" is groundless. In most of the cases, the problems with the freedom of expression are due to the fact that the relations between the owners or co-founders and the creative collectives are not settled. The bulk of the conflicts that appear in journalists' surrounding could be explained particularly by this. (Comments prepared by the State Commission on Radio and TV)

Proposals for further actions

To introduce appropriate corrections to the informational sphere regulations in force.

To improve the instrument of the realization of the right for the protection of honour and dignity, to enhance guarantees for the realization of the right to the information and to improve the legal instruments of the realization of the constitutional norm pertaining to the ban of censorship.

Measures foreseen by the Ukrainian authorities

With the aim of the legal provision of free functioning of the mass media outlets, freedom of expression in Ukraine, to take the following actions:

- to introduce the efficient instrument of the systemic monitoring over the observance of the informational sphere legislation in force with the aim not to let the unlawful termination or hindrance of the media outlets as well as for the provision of equality of rights and possibilities for the creation and functioning of the mass media outlets of all forms of property, prevention of the informational services market monopolization.

- to elaborate the Informational code of Ukraine taking into account the proposals of the participants to the parliamentary hearings on freedom of expression in Ukraine. (4 Dec 2002) (During 2003)

Paragraph 43

The legislation of Ukraine in force, in particular, part II art 19 of the Law on the State support to the media and the social protection of journalists, provides for the responsibility for the interference of state and local authorities officials into the work of the media. The State Committee on information has officially addressed members of the journalist's strike committee with a request to provide the information on concrete facts of encroachment upon the freedom of expression. The strike committee didn't provide any example of pressure on journalists or censorship.

In general, the national legislation, though it needs some amendments in order to bring it in line with the European one, sufficiently permits to effectively defend journalists' rights as well as those of the mass media outlets. For example "Svoboda", a well-known newspaper in Ukraine, has the experience of participation to 20 court trials, the greater bulk of which ended to its benefit. The same could be said of the newspaper "Informational bulletin". (Comments prepared by the State Commission on Radio and TV)

Paragraph 44

In accordance with the Presidential Decree "On additional measures to provide openness in the activities of the bodies of state authority", with the aim of broad and qualitative informing of the population on most important issues of the State Tax Administration activities, as well as for the introduction of the efficient civil control over the tax service, the State Tax Administration of Ukraine and the National union of journalists have signed a Memorandum on cooperation in order to reach the aforementioned aims. That is meant by uniting possibilities to place information pertaining to the state tax units activities in print and electronic media outlets, via press-releases and as articles in the press.

As additional measures for the uninterrupted media functioning, further consolidation of freedom of expression in Ukraine, the President, in accordance with art 102 of the Constitution has ruled to submit proposals for the removal of legal, administrative, economic and organizational obstacles to further development of media activities. The Decree is also aimed to ensure the implementation of the Presidential Decree N817 dated 23 July 1998 "On some measures on deregulation of the entrepreneurial activity", as regards checks of media outlets. It is foreseen by this Decree that in the beginning of the year the State Tax Administration (STA) renders - mandatory and publicly - the list of media outlets they are going to check in the course of the current year. As it could be seen from the aforementioned, the STA doesn't create any obstacle of the information coverage dealing with financial checks with the participation of the media and does everything possible to further cooperation with media if only the documentation pertaining to the checks of the subjects of economic activity and which is forbidden by the Ukrainian legislation, is not made public.

The STA has made public the list of media outlets included to the National plan of documentary checks in 2003 ("The bulletin of tax service" N 2, 2003). The aforementioned list has been also passed to the Institute of mass information and to the National union of journalists. (Comments prepared by the State Tax Administration)

Paragraph 45

Please see the comments to paragraph 41

Paragraph 46

The political life of Ukraine is broadly covered in the media, in particular, on the radio and on TV. Thus, for the implementation of the requirement of the Law "On order of coverage of the activities of bodies of state authority and bodies of local self government in Ukraine by the media", the State Committee on information ensures live broadcasts of the opening sessions of the Rada on the UT-1 (the First TV channel) and on the First radio channel.

During the days of Rada's plenary sessions, the UT-1 provides, in the evening time, live broadcasts of the 30-minutes informational programme "The diary of the Rada's session", the next day the programme is retransmitted in UT-2 TV channel. Apart of that, each Saturday the UT-1 makes a live 45-minutes topical broadcast with the participation, on the proportional basis, of representatives of deputy factions (groups) and non-faction MPs.

The coverage of the executive branch activities is provided (in accordance with statutes' commitments) mainly by the state-run and the communal media.

With the aim to create additional conditions for the implementation of citizens constitutional rights to information, citizens participation in the management of state affaires, implementation of the stipulations of the President's Message "The European choice. Conceptual fundamentals of the economic and social development strategy of Ukraine for 2002-2011", the President has signed a Decree "On additional measures to provide for openness in the executive bodies' activities".

In accordance with this Decree beginning with Jan 2003 a preparation of three-months Reports on the CM activities are introduced (later on proposed to the broad public for discussion) on how the CM deals with topical social, economic and other issues, implementation of reforms, implementation of the state general programs, measures ensuring defense and national security of Ukraine public order, fight with criminality, implementation of other functions, stipulated by the Constitution and laws of Ukraine, acts of the President.

Recently a Unified web portal of bodies of the executive was initiated at the Internet. Without any doubt it will facilitate the objective coverage of state structures functioning, will ensure the openness and transparency in the work of the executive.

In accordance with the Law on Elections of deputies, air time was given on national and regional TV and radio channels to make public the pre-election programmes of the political parties (blocks) and of the candidates. From 18 Feb to 29 March 2002 the TV air time was given for the broadcasting of pre-election programmes of all political parties and blocs as well as of candidates in the majority constituencies. (Comments prepared by the State Radio and TV)

Proposals for further actions

To improve the existing legislation on elections in its part dealing with the coverage of the electoral process, pre-election programs of political parties (blocs) and those of the candidates.

To make optimal the work of the state authorities as regards interrelation with the media and public.

Measures foreseen by the Ukrainian authorities

With the aim of the overall and objective media coverage of bodies of state authorities, different political forces, the State Radio and Television envisages to take such actions:

- to inform the broad public more actively concerning the activities of bodies of the executive; to ensure the collection, analysis and systematization of information on the activities of the central (local) body of the executive as well as the realization of citizens rights to obtain information in due time;

- to constantly make the systemic informational accompaniment of the activities of the central (local) body of the executive;

- to create the informational data bank as regards the work of the central (local) body of the executive.

(during 2003)

Paragraph 47- 49

In evidence of the existing in Ukraine of wide pluralism of expression in mass media, during Oct-Dec 2002 the Main Directorate on informational policy of the Presidential Administration was regularly mailing to the CE Monitoring Committee co-rapporteur, Mrs H. Severinsen, information letters pertaining to the monitoring of the Ukrainian media ". (Comments prepared by the Foreign Ministry)

CM of Ukraine has adopted a decision on making public the Report of the CE Secretary General experts on freedom of expression and information in Ukraine (following the results of their mission to Ukraine on 18-20 Nov 2002 in the framework of CE Committee of Ministers topical monitoring).

On 17-18 Feb 2003 the delegation of the Ukrainian experts has paid a visit to the CE with the aim to inform the CE on the situation in the field of media functioning in Ukraine.

The Ukrainian experts have also pointed out the existence of certain problems in the media field consisting of the necessity of bringing amendments to the media legislation, in taking of the efficient measures by the authorities in order to prevent cases of violence against journalists, in holding of appropriate training for civil servants and judges, in the adoption of the Ethical journalists code, etc. The meetings and discussions held by the Ukrainian delegation have testified for the need to provide the CE with maximally full, comprehensive and objective information as to the situation in the media field in Ukraine from all spectrum of political forces in the country. (Comments prepared by the Foreign Ministry)

Measures foreseen by the Ukrainian authorities

In accordance with the CM commission, the Ministries and agencies are in charge to prepare comments to the CE experts Report and are to report on the progress of fulfillment of recommendations contained in the Report. Consequently, the Government of Ukraine as regards these issues will inform the CE Committee of Ministers.

VI. OTHER ISSUES RAISED DURING THE LAST VISIT OF THE CO-RAPPORTEURS

Paragraph 50

On 21 Sep 2002, right after the accusations from the American side based on the Melnychenko tape, the Foreign Minister Zlenko has sent a letter to the Chairman of UN Security Council containing a request to take necessary steps, in accordance with the appropriate rules, by which the UN Security Council is guiding its work, to identify facts and to inform the Ukrainian government of the results. Apart of that, it was stressed Ukraine’s readiness to provide its full and complete assistance in the carrying out of the appropriate investigation.

In Oct 2002 at the invitation of the President of Ukraine, a group of American and British experts has visited Ukraine with the aim to look into the issues related to allegations of Ukraine’s possible selling of "Kolchuga" stations to Iraq.

A possibility for the detailed familiarization with the national system of exports control was given to foreign experts. Twice they visited the "Topaz" plant in Donetsk as well as they had a possibility to check over the availability of all "Kolchuga" stations in Ukraine directly at places of their disposition in military units of the Armed forces of Ukraine.

Paragraph 51

The group of foreign experts has received answers practically to all questions that were emerging during their visit to Ukraine and that related to possible selling of "Kolchuga" stations to Iraq. The experts got familiarized with the materials and results of investigations concerning this issue done by the Ukrainian law enforcement bodies, in particular by the SSU and PGO.

At the same time, the experts have touched a range of issues that were in no way related to Iraq and dealt with lawful exports of "K" stations to other countries. Sticking to their commitments before their partners from the third countries and taking into account such information's sensibility, the Ukrainian side did not provide it to the American and British experts which caused their certain discontent and led to the conclusion as to the insufficient transparency from the side of the Ukrainian party.

Experts were also given answers to all additional questions that they have asked following the results of their work. To our opinion the US and British representatives have obtained sufficient information in order to make conclusions as regards the absence of violation by Ukraine of sanctions against Iraq. (Comments prepared by the Foreign Ministry)

Proposals for further actions

Taking into account the situation that has created, further review of the issue as to the allegations of the Ukraine's possible selling of "K stations to Iraq, within the format Ukraine-USA-Great Britain, is believed as unperceptive. In relation to this:

- to continue to take measures with the aim of transference of further review of this problem - as it was proposed by Ukraine from the very beginning - into the framework of the UN Security Council Committee on sanctions against Iraq (661).

- to continue to defend the position of Ukraine in the framework of UN Security Council Committee 661, to attract to this work the Embassies of Ukraine in the states-members of the UN Security Council.

- to continue, in the framework of the Ukrainian - American group on issues of non-proliferation and export control, bilateral consultations with the USA on this issue.

Measures foreseen by the Ukrainian authorities

To promote this issue review in the framework of the UN SC Committee 661. (During 2003)

VII. CONCLUDING REMARKS

Paragraph 52

Please see comments to items 23 and 30.

Paragraph 53

Please see comments on item 36.

Paragraph 54

Please see comments to items 41, 42, 43, 44

Concluding part

From the time of Ukraine's accession to the Council of Europe and the adoption by the PACE of its Opinion 190 (1995), the Government of Ukraine, in close co-operation with the Verkhovna Rada of Ukraine, was making efforts for the honouring of obligations and commitments taken.

Acknowledging, that this process has taken more time then foreseen, as of today it is nevertheless possible to note, the fulfillment of the greater part of obligations and commitments. This gave ground for the Parliamentary Assembly to recall in its Resolution 1262 (2001) and Recommendation 1538 (2001) of "the significant progress of Ukraine" and to raise the issue of possible monitoring procedure cessation. It is important that during the last one and a half year, the process of the improvement of the Ukrainian legislation as well as the practice of its usage in line with the Council of Europe norms and standards, was not interrupted. The evidence to this is a detailed information contained in the aforecited Commentary of the Government.

The Government of Ukraine highly appreciates CE assistance in the build-up of principles of pluralistic democracy, human rights protection and the rule of law in Ukraine, including the efforts of the Assembly's Monitoring Committee and of the co-rapporteurs personally. Following the reaction of the Committee of Ministers to the Parliamentary Assembly documents as well as due to the initiatives of the Ukrainian side, a range of co-operation programmes, in particular, the EC-CE Joint Programme for strengthening democratic stability in Ukraine, CE Plan of actions for media, bilateral and multilateral programs in the field of human rights protection and the rule of law, have been approved and are being implemented now.

The Government of Ukraine is aware of the importance to make the way through the monitoring period by the Parliamentary Assembly of the Council of Europe being a political and psychological factor that will allow to lead an active and equal dialogue with the European Union.

Considering the aforementioned reflections, the Government of Ukraine brings forward a proposal on the cessation of the general monitoring procedure vis-a-vis Ukraine by the Parliamentary Assembly of the Council of Europe and the introduction of the post-monitoring dialogue.

Recognizing the existence of problems in certain areas of life functioning in Ukraine, several directions in post-monitoring dialogue framework are proposed, in particular:

• Freedom of expression and media outlets activities (including the investigation of crimes against journalists);

• Finalization of the procuracy authorities reform (in line with the Action plan currently under elaboration with CE experts);

• Continuation of periodic actions and contacts aimed to fulfill the remaining commitments (adoption of the Civil-procedural and Criminal-procedural codes, ratification of the European Charter of regional languages or languages of minorities).

The Government of Ukraine will continue to make all necessary efforts aimed to provide the complete honouring of obligations and commitments Ukraine has undertaken upon accession to the Council of Europe.

*****

Comments prepared by the Ukrainian Parliamentary delegation to the Parliamentary Assembly of the Council of Europe

To Part III

See comments presented by the Central Electoral Commission

To Part IV paragraphs 23 and 34 regarding the adoption of the civil, the civil - procedural and the criminal - procedural codes and the reforming of the Procuracy

The Verkhovna Rada of Ukraine has already adopted the Civil code of Ukraine that comes into force by 1 Jan 2004. The Ministry of justice has elaborated the drafts of the new Civil-procedural and Criminal-procedural codes of Ukraine. At present these drafts are being checked by the Ministry of Finance and the Supreme Court of Ukraine, afterwards they will be submitted to the Cabinet of Ministers.

As regards the reforming of bodies of the Procuracy: On 12 July 2001 the Law of Ukraine "On introduction of amendments to the Law "On procuracy" has been adopted which came into force from 26 July 2001. The amendments introduced are based on the already adopted Law of Ukraine "On judiciary of Ukraine". As of now the draft law "On introduction of amendments to the Law "On procuracy" is being considered by Rada's Committees. This draft law has been elaborated in order to fulfill Ukrainian commitments before the Council of Europe as regards the change of the Procuracy role; its elaborators believe that in general the draft is in line with the CE standards.

As a follow up to the draft's work, a cooperation between the Ministry of Justice, Prosecutor General's Office and relevant CE structures will take place in order to make use of the European experience for the aforementioned draft.

To Part IV paragraph 31 regarding the commitment to sign and to ratify the European Charter for Regional or Minority Languages

On 28 October 2002 the President of Ukraine has, for the second time, submitted to the Rada's consideration the draft law "On ratification of the European Charter for Regional or Minority Languages". At this time the work is on in the Rada to finalize the aforementioned draft. In order to speed up its adoption as well as to take into account deputies' proposals, a Working group within the Rada's Committee on issues of European integration has been created which comprises representatives of the Presidential Administration, central executive authorities related ( Ministry of Justice, Foreign Ministry, Ministry of Education, State Committee on nationalities and migration) as well as leading Ukrainian scholars. In the nearest future the Rada will to review the issue on this draft's ratification.

On 16-17 October 2002 the State Committee on nationalities and migration, under the auspices of the CE, held an international seminar on "Future role of the European Charter for regional or minority languages in Ukraine" with CE experts, people's deputies of Ukraine, executive authorities representatives, scholars and NGO representatives.

To Part IV paragraph 32 - 35 regarding the continuation of functioning of Centers of temporary detention for apprehended and detained persons (ITT) within the Interior Ministry, investigation isolation wards (IIW or SIZO) within the Security Service of Ukraine and what relates to the demilitarization of the State Department on execution of punishments

There exist, under Interior Ministry subordination, Centers of temporary detention for apprehended and detained persons and they do not refer to penitentiary institutions. In accordance with art. 11 of the Law of Ukraine "On militia" the authorities of the Interior are given the right to apprehend and detain, in premises especially allocated for these purposes, persons that are suspected in perpetration of crimes as well as the individuals in relation to whom a preventive measure of taking into custody has been taken.

The same is stipulated by the Criminal-procedural code of Ukraine. Its article 155 stipulates that these persons could be held in such places for not more than three days. If there is no possibility to bring the detained persons to an investigation isolation ward (SIZO - transl. note) within the above mentioned term either because of the long distance or lack of appropriate means of communications, they could stay in ITT up to 10 days.

In accordance with art 4 of the Law on "Preliminary detention", the institutions that are entitled to keep persons to whom a preventive measure of putting into custody has been chosen, are the investigation isolation wards of the State Department for the execution of punishments. In some cases that are governed by the necessity to undertake investigative actions, these persons can stay at the ITT or at a guard-house.

It should be mentioned that looking into the experience of keeping detained or arrested persons in custody in the developed European countries, makes it possible to affirm that similar institutions function in police establishments there as well, the difference lies only in terms of keeping which are stipulated by national legislation.

On 6 Feb 2003 the Rada adopted the Law "On Introduction of amendments to certain legislative acts of Ukraine pertaining to the functioning of the criminal-execution system". This law deprives the Security Service of Ukraine of the right to have investigation isolation wards under their subordination which are transferred from the SSU to the State Department on execution of punishments.

In accordance with the legislation in force the agents who do their service in detachments of punishment institutions are the agents of rank and file and commander composition within the State Department and are not military servicemen. Hence, stipulations of the Law on Universal military duty and military service as well as military statutes' stipulations, do not extend to them.

To Part V paragraph 42 regarding restrictions of freedom of expression and mass media in Ukraine

In accordance with part III art 15 of the Constitution of Ukraine, censorship in Ukraine is forbidden. The Laws of Ukraine "On Radio and telebroadcasting", "On Printed publications" stipulate that the intrusion of the state authorities, their officials, NGOs, individual citizens into the creative activity of Radio and TV organizations, publishers, as well as the supervision over the ideological content of broadcasts and publications is forbidden.

In accordance with the article 34 of the Constitution everyone is guaranteed the right for the freedom of thought and speech, on free expression of one's opinion and conviction. Every one has the right to freely collect, preserve, use and spread the information orally, in written or in any other form at one's own choice. The realization of these rights could be restricted by law in the interests of the national security, territorial integrity or public order with the aim to prevent disturbances or crimes, for the needs of the health care of the population, for the protection of the reputation or the right of other people, for the prevention of the disclosure of information obtained confidentially or for the maintaining of the image and objectiveness of the justice.

In Ukraine the Law "On Print media in Ukraine" is in force in accordance with which every citizen has the right to freely and independently search for, receive, fix, save, use and spread any information with the help of the print media. The print media are free. It is forbidden to create and finance public bodies, agencies and organizations or officials' posts for censorship of the media.

The state guarantees the economic independence and provides for the economic support of the print media activities, prevents the monopoly abuse on the market from the side of editors and disseminators of print production. In accordance with stipulations of the aforementioned law, the publication of a print media outlet could be cancelled by the decision of the founder or by the court.

The media may carry their own research and analysis of state and local authorities activities, their officials, to provide their appraisal of them, to give comments.

The issue of the ensuring of freedom of expression is regulated by art 171 of the Criminal code which stipulates that the purposive hindrance of the lawful professional journalist's activity is punished by an appropriate criminal punishment. Persecution of a journalist for his execution of professional duties as well as for criticism, exercised by an official or a group of persons on preliminary conspiracy, is also forbidden.

The state does not interfere in the creative process of the work of journalist's collectives. Mentioning in the draft Report of the so called "temniki" is groundless.

In most of the cases, the problems with the freedom of expression are due to the fact that relations between the owners or co-founders and the creative collectives are not settled. The bulk of the conflicts that appear in journalists' surrounding could be explained particularly by this.

To Part V paragraph 43 regarding accusations that an intolerable pressure is exercised to journalists

The legislation of Ukraine in force, in particular, par. II of the article 19 of the Law "On State support to the media and on social protection of journalists", provides for the responsibility for the interference of state and local authorities officials into professional organizational and creative activity of mass media outlets as well as into individual professional creative work of journalists, for other encroachment to informational activity freedom, for one-sided decisions as regards mass media outlets and their employees if other co-founders exist.

To Part V paragraph 44 regarding the commitment of the Verkhovna Rada Chairman to hold parliamentary hearing on issues of the protection of freedom of expression in Ukraine

On 4 December 2002 the parliamentary hearing on " Society, mass media outlets, authorities: freedom of expression and censorship in Ukraine" has taken place. Co-rapporteurs were members of the Government, the Supreme Court Board, representatives of human rights NGOs and journalists' trade unions.

Taking into account participants' conclusions and proposals, the Rada has approved, on the 3 April 2003 and in its first reading, the Law "On introduction of amendments to certain Laws of Ukraine following the parliamentary hearing on " Society, mass media outlets, authorities: freedom of expression and censorship in Ukraine". This law contains the amendments to the Code of Ukraine on administrative offence and stipulates that the illegal refusal to provide information, untimely or incomplete provision of information, or provision of information that does not correspond to reality in cases when such information should be provided at the request of a physical or legal entity in accordance with the Law "On information" or the Law "On Appeals of citizens" would be punished by fines of the officials from 25 to 50 untaxed citizens revenue minimums.

Also, appropriate amendments have been introduced into the Law "On Information" as regards the prohibition of censorship in its meaning of control of the contents or any illegal pressure on mass media outlets or journalists exercised by bodies of state or local authorities, civil servants or officials of these bodies in the form of direct or indirect influence upon managers, founders (co-founders), journalists (creative workers) of mass media outlets aiming at spreading or not spreading of certain information, in particular, silencing of public utility information, introduction of prohibition on showing or mentioning of certain individuals, prohibition of criticism of bodies of the authority or certain individuals. Censorship being applied to journalists, is a form of hindrance to journalists' legal professional activity, which brings criminal responsibility in accordance with the Criminal Code of Ukraine.

No one could be brought to responsibility for expressing estimation judgements. To estimation judgements are attributed the observations that don't contain factual data (criticism, appraisal of actions, etc.) as well as observations that cannot be interpreted as such that contain factual data taking into consideration the character of the linguistic usage (usage of hyperbola, allegory, satire, etc.). Estimation judgements are not subject to denial.

A person is released from responsibility for the disclosure of the confidential information or other restricted information if the court rules that the right of the general public to obtain this information prevails the rights of other entities, including that of the state, as regards the non-disclosure of such information.

Additional grounds for the release from responsibility of mass media outlets and journalists are governed by the Laws "On Print mass media outlets in Ukraine", "On Television and radio broadcasting", "On Information agencies" and "On State support of mass media outlets and on social protection of journalists". It has been also stipulated legislatively, that bodies of state and local authorities cannot bring actions as regards the protection of honor, dignity and business reputation, they also can't claim for the recovery of moral (non-material) damage. This doesn't deprive the state or local authority official of the possibility to defend in court his own honor and dignity if this official would prove that the information that has been made public refers directly to him and infringes his rights directly.

In case of a conflict as regards the inflicted moral (non-material) damage, between a journalist and a mass media outlet, from the one side, and a state or a local authority body or an official (officials), from the other side, the plaintiff should prove the falsity of information that was made public and the existence of journalist's or mass media outlet's malice. The court also takes to consideration the results of victim's usage of possibilities for extrajudicial (pre-court) rebuttal of the untrue information, the vindication of his honor and dignity and settlement of the conflict in general".

"By journalist's or mass media outlet's malice should be understood such their actions when they, prior the spreading of information, were aware of its falsity. The journalist and the mass media outlet are released from responsibility for the spreading of information that does not correspond to reality in such a case when such information presents public interest, and the journalist acted in good faith and has made its check- up".

The law also stipulates the amounts of claims as regards the recovery of moral (non-material) damage.

To Part V paragraph 45 regarding the existence of censorship problem in Ukraine and even the existence of the so-called "temniki"

Not a single case of the existence of such "temniki" has been found and there was not a single lawsuit to courts as regards the protection of rights due to the so-called "temniki".

To Part V paragraph 46 regarding the suppression of freedom of information and democracy

It should be noted that the political life of Ukraine is broadly covered in the media, in particular, on the radio and on TV. Thus, for the implementation of the requirement of the Law "On Order of coverage of the activities of bodies of state authority and bodies of local self government in Ukraine by the media", the State Committee on information ensures live broadcasts of the opening sessions of the Rada on the UT-1 (the First TV channel) and on the First radio channel.

During the days of Rada's plenary sessions, the UT-1 provides, in the evening time, live broadcasts of the 30-minutes informational programme "The diary of the Rada's session", the next day the programme is retransmitted in UT-2 TV channel. Apart of that, each Saturday the UT-1 makes a live 45-minutes topical broadcast with the participation, on the proportional basis, of representatives of deputy factions (groups) and non-faction MPs.

Recently a Unified web portal of bodies of the executive was initiated at the Internet. Without any doubt it will facilitate the objective coverage of state structures functioning, will ensure the openness and transparency in the work of the executive.

In accordance with the Law on Elections of deputies, air time was given on national and regional TV and radio channels to make public the pre-election programmes of the political parties (blocks) and of the candidates. From 18 February to 29 March 2002 the TV air time was given for the broadcasting of pre-election programmes of all political parties and blocs as well as of candidates in the majority constituencies. Thus, there are all grounds to believe that the existence of danger to suppress freedom of information in Ukraine, as it was mentioned in the Report, has been made too high.

APPENDIX IV

Programme of the meeting of the Monitoring Committee in Kyiv (from 12 to 14 May 2003)

Sunday 11 May 2003

      Arrival of participants at " Boryspil " airport

Monday 12 May 2003

10.00 - 14.00       Meeting of the Committee (In camera)

14.00 - 15.30       Private lunch

15.45       Departure to the Presidential Administration

16.00 - 17.30       Meeting with His Excellency, Mr Leonid Kuchma, President of Ukraine

Tuesday 13 May 2003

9.00 - 13.00        Exchange of views with:

13.00 - 14.30       Lunch hosted by the Permanent Delegation of the Supreme Rada of Ukraine to the Parliamentary Assembly of the Council of Europe

14.45 - 16.15       Exchange of views with members of Parliamentary factions and groups

16.30       Departure for the River Station

17.00 - 18.30       Boat trip on the Dnipro

19.00 - 19.45       Press conference by the Chair and the co-rapporteurs

Wednesday, 14 May 2003

9.00 - 11.30       Kyiv city tour

      Transfer to " Boryspil " airport

Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Reference to committee: Resolution 1115 (1997) of 27 January 1997 and Resolution 1262 (2001)

Report adopted by the committee on 25 June 2003: 21 for, 0 against, 2 abstentions

Members of the committee: Mrs Durrieu (Chairperson), Mr Frunda, Mr Frey, Mrs Tevdoradze (Vice-Chairpersons), Mrs Aguiar, Mr Akçam, Mr Akhvlediani, Mr B. Aliyev, Mr André, Mr Arzilli, Mr Atkinson, Mr Baška, Mr Bernik, Mrs Bilgehan, Mr Bindig, Mr van den Brande, Mr Budin, Mrs Burbiene, Mr Cabrnoch, Mr M. Cavuşoğlu, Mr Čekuolis, Mr Christodoulides, Mr Cilevičs, Mr Colombier, Rt. Hon. Davis, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Dobelis, Mr Einarsson, Mr Eörsi, Mrs Feric-Vać, Mr Glesener, Mr Gross, Mr Gusenbauer, Mr Hancock, Mr Hegyi, Mr Hedrich, Mr Holovaty, Mr Jakič, Mr Jaskiernia, Mr Jurgens, Lord Kilclooney, Mr Kirilov, Mrs Konglevoll, Mr Kvakkestad, Mr van der Linden, Mr Lintner, Mr Magnusson, Mr Martínez Casań, Mr Medeiros Ferreira, Mr Melčák, Mr Mollazade, Mr Neguta, Mr O’Keeffe, Mr Olteanu, Mr Pangalos, Mr Rakhansky, Mrs Ringstad, Mr Rivolta, Mr Rogozin, Mr Rustamyan, Mrs Severinsen, Mrs Shakhtakhtinskaya, Mr Shishlov, Mr Slutsky, Mr Smorawinski, Mr Soendergaard, Mrs Stoyanova, Mr Surjan, Mr Tepshi, Mr Tkáč, Mr Vanoost, Mrs Wohlwend, Mr Yáńez Barnuevo, Mr Zacchera.

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mrs Ravaud, Mr Mezei, Mrs Clamer, Ms Mathey.


1 See Docs. 8272, 8424, 8666 and 9226; Resolutions 1179, 1194, 1244 and 1262; and Recommendations 1395, 1416, 1451, 1513 and 1538.

2 See Docs. 8945 and 8946, Resolution 1239 and Recommendation 1497.