26 September 1995
on the application by Ukraine for membership
of the Council of Europe
(Rapporteur: Ms SEVERINSEN,
Denmark, Liberal, Democratic and Reformers' Group)
With its population of some 52 million and an area of 630 000 square kilometres, Ukraine will soon be joining the Council of Europe. It will be one of the largest countries in the Council along with France, Germany, Great Britain and Italy.
Following Ukraine's declaration of independence on 1 December 1991 and the "Minsk Declaration" which marked the end of the Soviet Union, Ukraine obtained special guest status in the Parliamentary Assembly on 16 September 1992, having applied for full membership of the Council of Europe on 14 July 1992.
In his outstanding report prepared on behalf of the Political Affairs Committee regarding Ukraine's application for membership, Mr Masseret came to a favourable conclusion, while calling attention to the commitments made by the Ukraine to continue the democratic reform process. It would be superfluous to comment on every aspect of Mr Masseret's report in this opinion. Accordingly I will simply begin by highlighting the main landmarks of the first years of independence since 1991. Then I shall go on to investigate more thoroughly some of the major issues relating to Ukraine's application for membership, focusing in particular on the separation of powers and the situation in Crimea.
I. The first years of independence 3
II. The legislative framework for transition 4
- The legislature 5
- The executive 5
- The judiciary 6
III. Local government and the Crimean question 7
I. The first years of independence
The nuclear disaster at Chernobyl (26 April 1986) undoubtedly played a part in the awakening of the Ukrainian national conscience, by prompting discussion about the responsibility of the central government and the role of Ukraine in the Soviet Union. Having acted as the Soviet "bread basket" (which did not help it to avoid the appalling famine of 1932 to 1933), the question was whether Ukraine, which was the site of 40% of the nuclear power stations of the Soviet Union, was destined to become a "nuclear dustbin".
It was at the beginning of 1989 that the Ukrainian Democratic Movement for Perestro´ka (Roukh) was founded at the instigation of Levko Lukanienko. In the summer of the same year the Donbass miners held an unyielding strike in which they demanded among other things that the powers of the central administration be reduced; the fact is that although 70% of Ukrainian businesses were run directly from Moscow, only 5% of the currency earned by Ukraine returned home.
Leonid Kravchuk, who was responsible for the ideology of the Ukrainian Communist Party from 1980 to 1989, took skilful advantage of these various movements to get himself elected on 23 July 1990 as the President of Ukraine's Supreme Council (Verkhovna Rada).
During the first years of independence relations with Russia were animated to say the least, even though both countries had recognised their borders on 19 November 1990. The main causes of tension between the two neighbours were related to the division of the Black Sea fleet, the Crimean question, energy policy, disarmament and arrangements for implementing the START agreements on the reduction of strategic weapons.
Regarding the Commonwealth of Independent States, Ukraine resolutely supported those who favoured the idea of "divorce" as opposed to "integration". It was for this reason that she refused to sign the CIS Charter and the agreement on the "rouble zone" (the CIS economic union).
At the meeting which it held in Ukraine on 25 and 26 May 1993, the Committee on Relations with European Non-Member Countries was able to observe the scale of the economic recession affecting the country and the complexity of interregional relationships. Moreover, this phenomenon resulted in a marked political polarisation between regions in the general election of 27 March and 10 April 1994 which provided evidence of the strength of the centrifugal movements which existed in the country. The Roukh supporters (who were anti-communist and in favour of increased links with western Europe) were in the majority in western Ukraine, whereas parties in favour of economic integration with the CIS and increased links with Russia led by the former Prime Minister, Leonid Kuchma, prevailed in the east of the country. In Crimea it was the nationalists led by Yuri Meshkov who won with more than 70% of the vote.
The Parliamentary Assembly delegation sent to monitor these elections concluded that "the electoral process was fairly conducted and the election was free and fair, despite an apparently flawed electoral law and some infringements of the regulations as well as some inaccuracies in the counting at individual polling stations".
As for the presidential elections, they were held on 26 June and 10 July 1994. The two main candidates were the former President, Leonid Kravchuk, who was in favour of co-operation with the West, and Leonid Kuchma, who advocated increased links with Russia. In the end, Mr Kuchma was elected with 52% of the votes cast.
In the parliamentary elections the communists and their allies won over 100 seats, mainly in the country's industrial east. About sixty moderate nationalists were elected, mostly in western and central Ukraine. Most of the remaining seats went to the independents and only a few to the extreme nationalists. Alexander Moroz (socialist) was elected Speaker of the Parliament. Following these elections Ukrainian politics became increasingly affected by a conflict between the executive and the legislature fuelled by the continued implementation of the 1978 Constitution which had been amended more than 500 times. In order to break the existing deadlock, a constitutional agreement was drawn up between the Supreme Rada (the parliament) and the President of Ukraine and signed on 8 June 1995; this agreement is generally referred to as the "mini-constitution".
II. The legislative framework for transition
The process of constitutional change in Ukraine is under way but is far from being completed. The present constitution dates back to 1978 and, in spite of numerous amendments, it still bears the stamp of its origins, as is shown by the priority given to economic and social rights and the preservation of a highly influential "Prokuratura" within the judicial system. An important landmark in the process of democratic reform was the adoption by the parliament on 18 May 1995 of the law on "state power and local self-government in Ukraine". The main aim of this law, which is regarded as a "mini-constitution", is to solve the problem of the separation of powers and relations with the local authorities, at least until the new constitution comes into force (in June 1996 at the latest).
Adopted on a simple majority (a constitutional revision requires a two-thirds majority), this text was the subject of a "constitutional agreement" between the President and the Supreme Rada to the effect that the provisions of the current Ukrainian Constitution and legislation are only valid if they comply, or at least do not conflict, with the "mini-constitution". It should, however, be noted that this Agreement itself was only approved by a simple majority in parliament.
Article 61 of the agreement provides that "The legislation of Ukraine shall be effective in so far as it is not contrary to the rules of this law. Pending the adoption of the new Constitution of Ukraine, the provisions of the applicable Constitution of Ukraine shall be effective only in so far as they comply with the present Constitutional Agreement".
This agreement may be regarded above all as the result of a political compromise between the two constitutional bodies endowed with the legitimacy of direct universal suffrage, which compromise can only be respected and given effect if there is a balance between the powers and a kind of moral consensus. It amounts to an interim solution which should be upheld until the adoption of the new constitution which should in turn be largely based on the principles of the agreement, particularly where the separation of powers and the organisation of the local authorities are concerned.
The mini-constitution reaffirms the primacy of the people and endorses the political role of the citizens and their involvement in the process of democratic transition. Accordingly, provision is made for both the Supreme Rada and the regional and local councils to be elected by equal, direct universal suffrage in a secret ballot. There seems to be considerable room for direct or semi-direct democracy, since express provision is made for the use of national, regional or local referenda. The Supreme Rada may hold a national referendum on its own initiative or at the instigation of a minimum of three million electors and the President is authorised to do likewise for the reasons and in accordance with the procedure laid down in the Ukrainian law on referenda.
The mini-constitution preserved the system of a single elected assembly made up of 450 members. The Supreme Rada appears to have been granted extremely wide-ranging powers, but the desire to create a balance between the public authorities shows in the fact that the power to initiate laws has been shared between the members and standing committees of the Assembly, the President of Ukraine, the Council of Ministers as well as the Supreme Court and the Supreme Court of Arbitration.
The Supreme Rada has the customary means of supervision with respect to the government; it performs a type of investiture by giving its opinion on newly formed governments' programmes of activities, and can pass a motion of individual or collective censure, including instances when "the draft budget has not been submitted within the required time".
Finally, the mini-constitution gives the parliament the means to successfully oppose the President of Ukraine by providing that it shall impose a veto on the decrees of the President of Ukraine whenever they are deemed incompatible with the laws and the constitution of Ukraine and simultaneously bring the case before the Constitutional Court. This being so, it now seems essential for a constitutional court to be set up as quickly as possible to perform an arbitrating role which might prove to be vitally important. Furthermore, the parliament can override the President's veto to a bill by adopting it by a two-thirds majority on a second reading.
In the report they prepared for the Bureau of the Assembly on the legislation of Ukraine, Mr Morenilla Rodriguez, who is a judge in the European Court of Human Rights, and Mr Soyer, who is a member of the European Commission of Human Rights, stressed that the draft constitution had been criticised in particular because it attempted to strike an impossible compromise between a parliamentary and a presidential system. This observation also applies to the provisions of the mini-constitution and gives rise to a degree of doubt as to whether the balance that has been established between the legislature and the executive will last.
The President of Ukraine is elected by direct universal suffrage for a five-year term of office which can be renewed only once. The mini-constitution grants the President a large number of powers. As guarantor of national sovereignty, territorial integrity, compliance with the constitution and respect for human rights, he enjoys the particular powers traditionally vested in a head of state. He addresses messages to the Ukrainian people, is the Supreme Commander-in-Chief of the armed forces, may declare war or a state of emergency, signs treaties and has extensive powers of pardon and appointment.
As for the government, it is "subordinated to the President of Ukraine and responsible to him". Not only does the President appoint the Prime Minister but he is also responsible for forming the government, establishing, reorganising and dissolving ministries, departments and other national and local executive authorities, and appointing and dismissing the heads of such authorities.
The obvious result of this is that the government (currently led by Yevgeny Marchuk) is subject to considerable political restrictions. It is formed and dissolved by the President and accountable not only to the President but also to the Supreme Rada, which can table a motion of no-confidence in the government in various instances.
The President therefore is the central pillar of executive power in a system which is obviously swaying towards a presidential regime without nevertheless pushing aside the traditional structures of parliamentary government.
The structures and operating methods of the Ukrainian judicial system have remained largely unchanged since the communist regime, in spite of a genuine desire on the part of the new authorities to reform the system with a view to giving it greater independence.
The authorities told the Assembly rapporteurs in particular that a number of bills relating to the judicial system would be debated in parliament at the end of 1995 or the beginning of 1996, including new civil and civil procedure codes and new criminal and criminal procedure codes as well as a law relating to lawyers.
Apart from the Constitutional Court, the Ukrainian judicial system is made up of general courts which deal with civil, criminal and administrative cases, and arbitration courts which are responsible for cases related to business. Under the mini-constitution judges are appointed by the President of Ukraine at the instigation of the Ministry of Justice and on approval from the Supreme Court and the Supreme Court of Arbitration. Since nothing is said about the possibility of independence of the Ministry of Justice, the executive can bring considerable influence to bear on the appointment of judges.
The constitution currently in force in Ukraine, supplemented by a law of 3 June 1992, provides for a constitutional court which is not yet in operation although some of its members have already been appointed. The signing of the Constitutional Agreement and the balance which has been created thereby between the legislature and the executive should now prompt the Constitutional Court to be set up as soon as possible so that it can at least perform its role as an arbitrator between the executive and the legislature.
As regards the Public Prosecutor's Office, it comprises the Prosecutor-General and the public prosecutors who act as his subordinates; this institution is extremely reminiscent of the Soviet Prokuratura whose considerable powers have not really been diminished by the mini-constitution.
The first problem lies in this body's status and the identity of the superior authorities to which it is answerable; while the Prosecutor-General is appointed and dismissed by the Supreme Rada upon recommendation by the President of Ukraine, the prosecutors are independent in the exercise of their duties. They are not answerable to the judiciary, even though they exercise many of the duties traditionally assigned to the latter in a democratic regime. For instance, they are invariably responsible for supervising the lawfulness of the acts not only of central and local authorities but also of citizens and legal persons, and they must supervise "compliance with the legislation concerning rights and freedoms of citizens".
Article 43 of the mini-constitution provides that the "Prosecutor's Office of Ukraine shall be the authority entrusted with holding formal charges, exercising general supervision and supervision of the enforcement of sentences in places of confinement". In fact, the powers thus conferred upon it are very substantial. Investigatory powers, police "operational activities" and sentence enforcement are placed under its control, thus taking them completely out of the hands of the Ministry of Justice. The same applies to prison administration, which is assigned to the Ministry of the Interior. Such a system provides no effective guarantee on the presumption of innocence and the rights of the defence and of prisoners.
Nevertheless, some practical measures have been mooted with a view to radically reorganising the Prokuratura's functions. The Outline Law on Legal and Judicial Reforms, for example, will provide for a large number of powers to be transferred from the Prosecutor's Office to the courts; powers of supervision of lawfulness, administrative appeals and supervision of detention on remand during investigations should be given back to the judiciary, and prison administration and sentence enforcement will be assigned to the Ministry of Justice at some point between 1996 and 1998.
Quite evidently, the guarantees on the independence of the Ukrainian judicial system are susceptible to further improvement. This is dictated not only by the Council of Europe's democratic principles but also because the political system introduced, at least temporarily, by the Ukrainian Constitutional Agreement produces a balanced separation between the legislature and the executive, which each have major powers. The judiciary must not be the weak link in this institutional system: the President or the Supreme Rada must not have excessive powers of supervision of judicial activities. Important steps for the future include settling the problem of the appointment of judges, rendering the Constitutional Court definitively operational and reforming the Prokuratura.
III. Local government and the Crimean question
Ukraine is a unitarian state in which local authorities have some measure of independence from the central authority. During a visit to Ukraine from 19 to 21 June 1995, a delegation from the Congress of Local and Regional Authorities of Europe was able to investigate in situ how local and regional government is organised in Ukraine and to initiate a very fruitful co-operation with the Ukrainian authorities.
Ukrainian territorial administration is divided up into regions, cities, including their respective urban districts, towns and villages; the Autonomous Republic of Crimea and the cities of Kiev and Sebastopol, which have been declared cities of national importance, have special status and are governed by separate rules. The mini-constitution reaffirms the principle that village, town and city Radas (councils), which are the local administrative authorities, shall be elected by nationals of Ukraine residing within the territory of the authority in question. Ukrainian nationals also elect the Chairs of the Radas, who, as the heads of the local executive committees, establish general policy guidelines for local activities and also discharge the "executive functions delegated to them, the scope of which is specified by the President of Ukraine." Furthermore, the President appoints the elected Chairs of the regional, Kiev and Sebastopol, and municipal and district Radas to be the heads of the corresponding central administrative authorities and can dismiss a council Chair if he or she has violated the relevant constitutional, statutory or regulatory provisions.
This election/appointment system well illustrates the twofold role attributed to local administrative authorities. They are elected territorial authorities with wide-ranging powers, since in addition to approving the local budget and setting local tax levels, they can organise local referenda, redistribute certain functions to other local authorities and "decide, at their discretion, all local matters within the limits of the constitution and laws of Ukraine." On this basis the Chairs of the councils and the executive committees are answerable to each council. However, the local authorities are also administrative districts, bound by a linear principle of subordination to their superior executive authorities.
Accordingly, whenever decisions taken by local authorities on matters coming within their jurisdiction, or by the Chairs and executive committees within the framework of the functions delegated to them, are inconsistent with hierarchically superior rules, they may, respectively, be suspended or nullified by central government officials on the next highest level of authority or, as a last resort, by the President of Ukraine. There is no mention of any remedy against such suspensions or nullifications.
The system is therefore fairly complex, but is governed by clear organisational principles. However, it would be useful to specify the operational procedure and the exact scope of the powers vested in local administrative authorities. The Ukrainian authorities have informed us that the Law on the Procedure for the Establishment, Organisation and Powers of Local Administrative Authorities will be adopted in the second half of 1995, based on the principles of the 1985 European Charter of Local Self-Government.
The Autonomous Republic of Crimea
The Constitutional Agreement states that "The Autonomous Republic of the Crimea shall be an administrative-territorial unit of Ukraine (which) decides, at its discretion, matters falling within its competence under the Constitution of Ukraine and laws of Ukraine".
Following the first war between Russia and Turkey (1768-74), Russia annexed Crimea and established a major naval base at Sebastopol, which was to become one of the main stakes in the Crimean War (1854-56) fought between the French and the British on one side and the Russians on the other.
During the second world war Crimea was occupied by nazi Germany from 1941 to 1944. Moscow accused the Tatars of Crimea of having collaborated, en masse, with the occupying forces, and the entire Tatar population (about 400 000 people) was deported to Siberia and Uzbekistan. Large numbers of Russian and Ukrainian settlers came to replace the Tatars and by 1989 respectively accounted for 65% and 25% of the Crimean population. From 1985 the Tatars began to return to Crimea, and despite all the obstacles put in their way by the local authorities some 300 000 of them had resettled in the region by 1993. Yet, the problem has not been solved for all that.
From 1992 Crimea became one of the issues at dispute between Russia and Ukraine, in particular with regard to the Black Sea naval fleet. It should be recalled that Crimea was "donated" to Ukraine by Russia in 1954 on the three hundredth anniversary of the 1654 Pereyaslav Agreement, which made Ukraine a Russian protectorate.
In the referendum on independence held in Ukraine on 1 December 1991 only a small majority of the population of Crimea (of whom 58% are Russian) was in favour of autonomy. On 5 May 1992 the Supreme Soviet of the Autonomous Republic of Crimea proclaimed the Crimean peninsula's independence. The Crimean separatist movement moreover had the backing of the Russian conservative parties, which even went so far as to question the lawfulness of Crimea's transfer to Ukraine in 1954.
On 30 January 1994 Yuri Meshkov, who had the overt support of the Russian Commander of the Black Sea fleet, was elected President of the Autonomous Republic of Crimea with an overwhelming majority. Kiev reacted to his nationalist demands with a number of threats to establish a "direct presidential administration" in the region. In the end, on 17 March 1995, the Ukrainian Parliament revoked Crimea's constitution.
Concurrently with the dispute between the authorities in Kiev and those in Crimea, interminable rounds of negotiations were being held between Russia and Ukraine on the subject of the division of the Black Sea fleet. After Russian and Ukrainian seamen came to blows in Odessa in April 1994, Kiev agreed to lease the naval bases at Sebastopol, Kerch and Donuzlav to Russia. On 9 June 1995 Presidents Yeltsin and Kuchma finally signed an agreement in Sochi, providing for the warships to be shared fifty-fifty and permitting Russia to use the port installations at Sebastopol, inter alia. This agreement would seem to have brought the long quarrel to an end and clearly constitutes a major step forward towards peace in the region.
As for relations between Kiev and Crimea, it should be noted that significant progress towards normalisation was made with the decree on the executive organs of the Autonomous Republic of Crimea signed by President Kuchma on 19 August 1995. This decree provides in particular that, pending the adoption of a new Ukrainian constitution, the Prime Minister of Crimea shall be appointed and dismissed by the Supreme Rada of the Autonomous Republic of Crimea, in agreement with the President of Ukraine. The other members of the Crimean Government are to be appointed and dismissed by the Prime Minister of Crimea, in agreement with the Supreme Rada of the Autonomous Republic. The presidential decree moreover allows the establishment of local government authorities in the republic's districts, placed under the authority of the Government of Crimea, the Ukrainian Council of Ministers and the President of Ukraine.
All these provisions must of course be confirmed in Ukraine's new constitution, but they already amount to an important step along the road to normalisation of relations between the central authorities in Kiev and the authorities of the Autonomous Republic of Crimea. The improvement in relations with Russia, which should lead to a treaty of friendship and co-operation between the two countries, also furthers the stability of the region and is proof of President Kuchma's desire to develop peaceful relations with neighbouring countries, a factor very much in favour of Ukraine's accession to the Council of Europe.
Since securing its independence in 1991, Ukraine has unquestionably advanced along the road to democracy. In their report on the legislation of Ukraine, the eminent legal experts even spoke of spectacular progress, while noting that there was still a need for far-reaching reforms. This is precisely the objective of the commitments entered into by the Ukrainian authorities, and the Committee on Relations with European Non-Member Countries will be especially vigilant in ensuring that the commitments set forth in paragraphs 11 and 12 of the draft opinion adopted by the Political Affairs Committee (Doc. 7370) are honoured, with special emphasis on the need to guarantee the independence of the judiciary.
Normalisation of relations with Russia, in particular as regards the Black Sea fleet, and of the situation in Crimea is an important factor, which tells in favour of Ukrainian membership of the Council of Europe.
The Constitutional Agreement concluded by the President of Ukraine and the Supreme Rada is definite progress towards establishing a pluralist parliamentary democracy based on the rule of law. It clearly sets out the principles for the organisation and separation of the public authorities and introduces the requisite mechanisms for ensuring that their relations are governed by law.
Nevertheless, the text bears the imprint of the conditions prevailing at the time of its drafting. It is the result of a compromise between the executive and the legislature, and so has not always facilitated the completion of the requisite reforms for a transition to democracy. The apportionment of responsibilities is sometimes unclear, the nature of the regime, that is whether it is presidential or parliamentary, is not specified, and better guarantees could undoubtedly be devised for the independence of the judiciary.
Moreover, it is important that the Ukrainian legal system should be homogeneous and coherent, not scattered through the texts which have gradually emerged during the transition to democracy and which vary in legal force. The adoption of the new Ukrainian Constitution will harmonise and complete this process.
Lastly, we must bear in mind that much work remains to be done in the field of constitutional guarantees on human rights, which were not dealt with in the Mini-Constitution, even though everyone agrees that these rights are already well protected in Ukraine. It should be noted in this connection that on 15 September 1995 Ukraine signed the Framework Convention for the protection of national minorities.
The considerable progress already made, the planned reforms and also the determination of the Ukrainian authorities to carry democratisation through to completion lead us to conclude that Ukraine is quite capable of fulfilling the requisite undertakings for it to become a member of the Council of Europe. Such membership would no doubt encourage the Ukrainians. In view of the recently reinforced procedure for monitoring member states' commitments, we certainly need have no qualms about placing this trust in them.
Reporting committee: Political Affairs Committee (Doc. 7370).
Committee for an opinion: Committee on Relations with European Non-Member Countries.
Reference to committee: Doc. 6681 and Reference No. 1808 of 30 September 1992.
Opinion approved by the committee on 26 September 1995
Secretary to the committee: Mr Dufour.