25 September 1995

Doc. 7398


on the application by Ukraine

for membership of the Council of Europe

(Rapporteur: Mr NEMETH,

Hungary, Liberal, Democratic and Reformers' Group)

1.       Introduction

1.       The relationship between Ukraine and the Council of Europe goes back to 14 July 1992 when Ukraine applied for membership. Two months later, on 16 September 1992, the Assembly granted special guest status to the Supreme Council. In the last three years the legal system of Ukraine has shown a spectacular development.

2.       Together with the other rapporteurs, I visited Ukraine from 10 to 14 April 1995. On behalf of the Committee I wish to thank the authorities for their cooperation in the preparation and implementation of the programme both in Kyiv and in Crimea.

3.       The Political Affairs Committee adopted its favourable opinion on the application by Ukraine for membership of the Council of Europe at its meeting on 4 September 1995. The following day, the Assembly's Bureau decided to propose this question for inclusion in the Assembly's Order of Business for the September part-session. The debate is now scheduled to take place in the Assembly on Tuesday 26 September 1995 at 10 am.

4.       The Committee on Legal Affairs and Human Rights, while accepting the decision of the Assembly's Bureau, made no secret of the fact that it would have preferred to be granted more time to prepare its own opinion, especially as a meeting in Kyiv was programmed for 16-18 October 1995, the Committee was still waiting for certain expert studies by the European Commission for Democracy through Law ("Venice Commission"), and as it wanted to formulate and establish clearly and in full agreement with our Ukrainian counterparts, the commitments which the country is to enter into.

5.       Fortunately, our Committee's work is considerably facilitated by a number of excellent documents, of which I would like to mention the following:

- Report on the legislation of Ukraine, prepared by Mr José Maria Morenilla Rodriguez and Mr Jean Claude Soyer (the eminent jurists, prepared at the request of the Bureau and declassified on 6 April 1995): AS/Bur/Ukraine (1995) 1;

- Report by the Political Affairs Committee, drawn up by Mr Masseret in close cooperation with Mrs Severinsen, Rapporteur of the Committee on Relations with European Non-Member Countries, and with myself: Doc 7370;

- The clarifications from the Ukrainian authorities on the points requested by the Council of Europe: Doc 7370 Addendum;

- A document prepared by the Secretariat on the instructions of Mrs Severinsen, Rapporteur of the Committee on Relations with European Non-Member Countries, on the Constitutional Agreement between the Supreme Council and the President of Ukraine: AS/NM (1995) 22;

- The opinion of the Venice Commission on the present constitutional situation in Ukraine following the adoption of the Constitutional Agreement: CDL (95) 40.

- A preliminary study on the admission of Ukraine to the Council of Europe submitted by my predecessor, Mr Csaba Tabajdi: AS/Jur (1994) 7.

- Information report on the parliamentary elections in Ukraine (27 March 1994): Doc 7080 Addendum I.

2.       The Act on State Power and Local Government in Ukraine and the Constitutional Agreement

6.       When Ukraine became independent, in 1991, it decided to keep the "Brezhnev" Constitution which it had received in 1978. The Supreme Council1 approved this decision with a simple majority. Since 1991 the Constitution has been amended several times but it basically kept the Soviet power structure which proved to be incompatible with a modern parliamentary democracy. Both the Supreme Council and the President are elected directly by the people of Ukraine and each of them may therefore rightly claim to have received the supreme power from the people itself. A number of clashes between the President and the Supreme Council were the result and gradually the relations between these two main State organs worsened. To put an end to the existing deadlock an act on "State power and local self-government" was drawn up in order to establish a clear separation of responsibilities between the executive and legislative branches.

7.       In the Supreme Council the act was voted by 219 deputies out of a total of 407. About 100 deputies voted against. However, Article 171 of the Constitution provides that the Constitution can only be changed if two-thirds of the deputies actually vote in favour. The deadlock therefore continued and as a way out an agreement was concluded on 8 June 1995 between the President and the Supreme Council that "pending the adoption of the new Constitution public and local self-government authorities shall be organised and function on the principles set forth in the act on State power and local government. The 1978 Constitution would only remain effective in as far as it complied with the agreement and the new Act. A new Constitution was to be adopted not later than a year after the date of the signature of the agreement and was to be approved by referendum.

8.       This "Constitutional Agreement" (the "Agreement") was approved by the Supreme Council but - again - it was short of the two-thirds majority of the members as only 240 deputies voted in favour.

9.       It would probably go too far to say that the Agreement eliminated all frictions between President and Parliament. Some frictions became apparent when the Supreme Council decided to dismiss the Prosecutor General (Mr Datsiuk), a decision which was rejected by the President. On the parliamentary side there were critical reactions to the vigorous measures employed by the Government at the funeral of Patriarch Romanyuk, the head of the Kyiv-based Orthodox Church. Yet there seems to be a consensus to avoid a return to the previous state of political deadlock.

10.       The Agreement may easily be regarded as a mini-constitution. Its mere existence suggests that political conflicts in Ukraine come to an institutional and peaceful solution. The Agreement, while defining the relationship between the different organs of the State, may play a crucial role in the constitutional process of separation of powers.

11.       The Agreement is still more of a political than a legal document, reflecting the underlying conflicts and the present balance of powers. The President, the Speaker of the Supreme Council and the Prosecutor General seem to have unusually wide competencies, like the right to official interpretation of the law, while the court system and local government seem to be extremely weak. Further clarification of these fragile power relations seems inevitable.

12.       Detailed and highly interesting studies have been made about the contents and the validity of the Agreement and the act on State power and local Government, in particular by the Secretariat at the request of Mrs Severinsen, Rapporteur of the Committee on Relations with European Non-Member Countries2and by the European Commission for Democracy through Law ("Venice Commission").3 The Agreement and the text of the act have also been reproduced as a working document4.

13.       The operation of a constitutional court requires a firm legal basis. This is hardly ensured in present-day Ukraine. Although the 1978 constitution is formally in force, the Agreement has in practice superseded it. As it was accepted by a simple majority it could not substitute the old constitution. Furthermore, parts of the old constitution are made inoperative by the Agreement but these parts are not precisely defined. As a consequence the establishment of a constitutional court is hardly conceivable before the adoption of a new constitution.

14.       There are a number of arguments which plead in favour of the political and legal importance of agreement and act, among which I would like to mention:

- The fact that the 1978 Constitution itself has never been approved by a freely elected parliament with a two-thirds majority of its members.

- The need to find a solution for a serious constitutional deadlock which was paralysing the State and for which no solutions could be found in the existing constitution, and

- The temporary nature of the agreement and act which should be replaced by a new constitution within a year.

15.       In the meantime, work on a new constitution is going on and some of its provisional parts have already been submitted for a preliminary consideration by the Venice Commission. I attended the discussions in this Commission on 10 September 1995.

3.       The new Constitution

16.       The adoption of a new constitution by an applicant to the Council of Europe is, in itself, not a precondition for admission. However, improvements of the rule of law in societies in transition are best reflected in the drawing-up of a new constitution. For this reason, the commitment of the authorities to adopt the constitution by June 1996 must be warmly welcomed.

17.       Looking at the Agreement, the form of government seems yet to be decided in Ukraine. Elements of a presidential system and of a parliamentary one intermingle and seem to bring about circumstances in which both President and Parliament may easily paralyse decision-making. It does not seem rational, for instance, that the Supreme Council has the right to vote about an initiative for a referendum about no-confidence against the President. It is similarly questionable that after a presidential veto of an act voted by parliament, there is the requirement of a two-third majority for unfreezing the veto. Sooner or later a decision on the form of government must therefore be taken.

18.       The first free and democratic elections in Ukraine took place in Spring 1994. This event landmarked the transition from totalitarianism to democracy. Democracy is based on the pluralism of political parties. However, at present the political parties in Ukraine are merely proto-parties, partly owing to a bad law on elections. A new mixed proportional-majoritarian election system may largely contribute to strengthening the political parties. The intention to assist parties from the State budget may usefully serve the same aim.

19.       The system of local self-government seems to be in line with the European Charter on Local Self-Government - according to the Congress of Regional and Local Authorities. However, with regard to regional self-government the situation is questionable as they are hierarchically subordinated to the executive. Furthermore local governments lack real financial autonomy. Signing and ratifying the European Charter on Local Self-Government is fundamentally important for the future of local democracy in Ukraine.

4.       The Crimean peninsula

20.       It was in 1954 that Crimea was transferred from the Russian Federation to Ukraine as a symbolic gesture to mark three centuries of union between the two neighbours. After the independence of Ukraine it remained a constituent part.

21.       Recently the Crimean Peninsula has been a major source of conflict between Russia and Ukraine. 70% of the population being ethnic Russians, the strategic importance of the Black Sea Fleet, the City of Sebastopol, the access to the sea and the Balkans made it hard to imagine that agreement could be reached. However, compromises were found.

22.       Ukraine may be considered as a unitary State. Yet the relationships between Ukraine and Crimea are those of a federal State. The problem is that about two thirds of the population of 2.7 million of Crimea is of Russian origin and that many of them believe that they would be better off if Crimea had closer relations or were even unified with Russia. Last June Sir Russell Johnson, on behalf of the Defense Committee, laid a highly interesting report before the Assembly of the Western European Union which contains a detailed historical and constitutional background of Crimea5. One may refer to this report without repeating what was said there.

23.       Until now the constitutional relationships between Ukraine and Crimea have not yet found adequate solutions. In the clarifications from the Ukrainian authorities on the points suggested by the Rapporteurs6 it is said that

"the Autonomous Republic of the Crimea is an administrative territorial autonomy in the composition of Ukraine, the limits of this autonomy are determined by the Ukrainian law `on the Autonomous Republic of the Crimea' of 17 March 1995. The scope of the autonomous powers of the Crimea shall be determined in the Constitution of the autonomous Republic of the Crimea which is now being developed by the Parliament, and after its adoption by this body it will be approved by the Supreme Rada of Ukraine in October - November 1995. The draft new Constitution of Ukraine also envisages a section in which the scope of power of the Crimea's autonomy will be precisely determined."

24.       In my opinion it is important that the status of Crimea and its relationship to the central State organs are clearly determined - possibly - in common agreement and then laid down in the Constitution of Crimea and that of Ukraine. Subsequently it should not be possible to change this status and relationship without the required majority in the Supreme Council for changing the Constitution and also without the approval of Crimea itself.

5.       The Prokuratura - the judiciary

25.       For those who want to know more about the legal situation of Ukraine I cannot but recommend to read the highly interesting report of the two legal experts7. What the report says about the Prokuratura is certainly very worthwhile and summarised below.

26.       The role of the Prokuratura is extremely important in the field of criminal procedure. However, the control of criminal prosecutions constitutes only a part of its competencies which are much wider. Its control is not only directed at State institutions (government, ministries, State committees, agencies, government of Crimea, local councils of peoples' deputies, military units, public servants, etc.) but also at political parties, public associations, mass movements, enterprises regardless of their form of ownership, and in addition, all persons falling under the jurisdiction of the administration.

27.       The Prosecutor General is appointed by the Supreme Council to which he is responsible and must submit an annual report. The other prosecutors are appointed by him.

28.       The Prosecutor General is defined as the guarantor of the respect of the fundamental rights granted to the citizens. He has the right to invalidate the decisions of all administrative bodies having violated these rights. He can also refer matters to the Court and lodge appeals against the decisions of tribunals in the interest of individuals or the public interest. In theory, the Prosecutor General, taken to be a necessary party in all legal proceedings in which he participates, does not have a privileged position in relation to the other parties. In practice, his influence seems to be overwhelming. The Prosecutor General and the other prosecutors exercise themselves a number of quasi judicial functions, notably concerning criminal investigation. They also monitor the execution of judicial decisions.

29.       The role of the Prosecutor General's Office has not changed substantially since the Soviet period. His role as the guarantor of general control over legality is more than anachronistic. He should by no means rule over court decisions. In liberal democracies the Prosecutor General limits himself to the representation of the material and other interests of the State.

30.       In the report of the Political Affairs Committee the reform of the Prokuratura is already proposed and this is certainly something which will have to be closely monitored in the future.

31.       The independence of the judiciary is respected in Ukraine. However, the tenure and appointment of judges should be further harmonised with Council of Europe standards. The commitment of the authorities to the creation of a professional bar association is promising. Its involvement in the appointment procedure may largely contribute to ensuring appropriate standards. Moreover, one should not disregard the poor financial conditions and its effects on the independence of the judiciary.

32.       Major developments are expected to take place in the field of criminal procedure. Competencies of the Ministry of the Interior and that of the Prosecutor General are under transfer to the Ministry of Justice and the courts. For example, the Minister of Justice will supervise the prison system and investigation procedures. A right to appeal to the courts against any kind of detention is under consideration and in the future only the courts may decide about penitential compulsory medical treatment. Signing and ratifying within a year the Council of Europe's Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment may strengthen this promising process.

6.       Human Rights

33.       The Agreement supplemented with a new bill of rights may constitute the two legs of a future constitution. The commitment of the authorities to adopt a Framework Act on the Legal Policy of Ukraine for the Protection of Human Rights is to be warmly welcomed. The intention of signing and ratifying the European Convention on Human Rights and its main protocols within a year is of great importance.

34.       Freedom of religion and conscience is respected. But this is not only a negative right. The State should support the churches as this strengthens the pluralism of society which is vitally important for States in transition. The ongoing delay of the registration of the Autocephalous Orthodox Church raises the need for a new system of church registration similar to that of associations. The lack of a legislative basis for a more extended form of restitution of church property may be considered contrary to Protocol No 1 of the European Convention on Human Rights on the right to property. A fair and impartial investigation of the events on 18 July 1995, when the police crushed a religious gathering, may prove how rights are implemented in practice.

35.       The primacy of international law over national legislation should not be limited to the field of human rights alone. It must be acknowledged that - without this basic principle - the introduction of the provisions of international legal instruments into domestic law may become impossible. It is noted and is regarded as a positive development in line with the Council of Europe understanding of international law that Ukraine did not sign the CIS Convention on Human Rights.

36.       Another major positive sign of the friendly conduct of Ukraine is the process of returning art objects taken from abroad to the Soviet Union in World War II. The intention to go on with this is noted and regarded of great importance and most welcome.

7.       The situation of minorities

37.       Unfortunately, I have had only a limited opportunity to look at the situation of minorities, which I think should be the subject of further studies by the Committee on Legal Affairs and Human Rights, but would like to quote in its entirety the Chapter on the situation of minorities in the preliminary study presented to the Committee by Mr Tabajdi, my predecessor:

"55.       The population of Ukraine totals nearly 52 million, of whom 37,8 million are Ukrainians (72,7%), 11,4 million Russians (21,9%), 400 000 Belorussians (0,77%), 480 000 Jews (0,96%), 300 000 Moldavians (0,57%), 250 000 Crimean Tartars (0,48%), 230 000 Bulgarians (0,44%), 220 000 Poles (0,42%), 164 000 Hungarians (0,31%), 145 000 Romanians (0,26%), 100 000 Greeks, 40 000 Germans, 40 000 Gypsies and between 10 000 and 15 000 Slovaks or inhabitants of some other origin. Eighteen million people, accounting for 31,2% of the population, speak Russian (including 4,5 million Ukrainians who also regard Russian as their mother tongue). Between 125 000 and 150 000 Jews left the country from 1985 to 1993. The Grand Rabbi of Kiev estimates the number of Jews living in Ukraine at 600 000.

56.       According to these figures, the biggest "minority" in Ukraine is the Russian community. Although they represent some 21,9% of the population nationwide, they form a majority in certain parts of the country. Owing to their historical roots and linguistic and cultural features, the Russian population in eastern Ukraine may be regarded as a "national community". For that reason the "Russian question" demands a solution that is both fundamental and specific. It seems that, despite the legitimate apprehension repeatedly expressed, the Russian national community in Ukraine is perhaps unlikely to become a source of tension as in the Baltic countries. Ukraine itself has largely contributed to this over and beyond the common historical roots, because it seems to find generally satisfactory ways of managing the situation of minorities, especially the Russian minority, within the context of the law on minorities, the law concerning the use of languages and the draft constitutions (status of the Crimea). On the other hand, the Ruthenian minority, whose size is estimated at nearly 800 000, raises problems of a particular kind. Ukrainian official circles regard the Ruthenians only as a population group speaking a certain dialect, and even the most enlightened members of the Ukrainian intelligentsia refuse to recognise the existence of this minority. Politicians are against the grant of any autonomy to the Ruthenians. The law on minorities provides, in principle, for a free choice of identity, which means that the choice, even though not confirmed by practice, is in theory guaranteed to Ruthenians by law in the same way as to other minorities. The situation being what it is, on 15 May 1993 the Sub-Carpathian Ruthenians set up their own government in Bratislava under the leadership of Ivan Turianitza.

57.       In recent years the Ukrainian authorities have made considerable efforts as well as significant economic sacrifices to facilitate the repatriation of the various populations forced into exile or deported (Crimean Tartars, Germans and others).

58.       The law declaring Ukrainian the country's only official language was adopted in 1989. Since then, demands for Russian to be recognised as the country's second official language have been constantly increasing, especially in areas with a big Russian-speaking population (inhabited by Russians, Ukrainians and other groups). Such recognition was the subject of one of the political claims made by the striking miners in June 1993. A draft law along the same lines was also tabled in December 1992 by the Crimean Parliament. At present there is no reason to fear any undermining of the role of the Russian language in education, where it is predominant, even in relation to the proportion of the Russian population. The law on the use of languages and the Supreme Council's November 1991 declaration on the rights of minorities guarantee the possibility of using the language of the minority — alongside Ukrainian — as an official language in all sub-central administrative entities where the minority forms a compact community. Moreover, the law on minorities, signed by President Kravchuk on 25 June 1992, secures for all minorities the right to be taught in their mother tongue, as well as the right to exercise their religion freely, maintain their traditions, celebrate their national festivals and preserve their emblems. The minorities may freely maintain contacts with their mother nations. The Ukrainian law on minorities may be regarded as exemplary among the countries of central and eastern Europe as it is in tune with European legislation and standards. However, as its implementing decree has not been promulgated, few of its provisions have been applied so far.

59.       A ministry of national minorities and migration was set up in May 1993. Its functions include dealing with the problems of national minorities living in Ukraine, maintaining contacts with the Ukrainian diaspora abroad and settling questions concerning emigration and the return of national minorities to their homelands.

60.       The Ukrainian Government refuses to grant to any region or districts whatever, with the exception of the Crimea, the economic autonomy they demand, nor is it prepared to satisfy their request for the organisation of a free-trade area. Apart from economic considerations, this attitude is likely to restrict considerably the scope for establishing the economic basis necessary for the assertion of minorities' rights. In November 1993 the Ukrainian Parliament rejected a proposal to set up a special economic area in sub-Carpathian Ukraine.

61.       According to representatives of the organisations of national and ethnic minorities, there are no inter-ethnic conflicts in Ukraine. Prejudice and xenophobia are expressed there as elsewhere. Nationalism is particularly in evidence in western Ukraine, where xenophobia is more strongly manifested, even among local councillors. We are aware of two law-suits brought by individuals of Jewish origin on the grounds of anti-semitic harassment."

38.       In conclusion, it may be said, however, that minority rights are basically respected in Ukraine. Many legal documents demonstrate that the idea of an ethnic State is excluded from legislation. The Law on National Minorities (1992) states that the "State guarantees the right to national and cultural autonomy to all national minorities". Signs of positive discrimination occur in the local election law of Crimea, giving the right to national minorities to elect councillors on grounds of progressive quotas. The repatriation of deported people, especially the Crimean Tartars, is of great moral and political significance. Hopefully the right to free choice of identity prevails to remain the guideline in the field of minority politics. Signing and ratifying the Charter on Regional and Minority Languages may serve this aim.

8.       Death penalty

39.       From the clarification given by the Ukrainian authorities on the points requested by the Rapporteurs8 it appears that, in 1994, the Ukrainian courts sentenced 143 persons and, in the first half of 1995, 74 persons to death. In 1994, 60 death sentences were actually executed.

40.       The death penalty in Ukraine was the subject of a report of Amnesty International published last July9 and the information below was also provided by that Organisation. Although Ukraine progressively reduced to five the number of offences carrying a possible death sentence in peacetime, there has been no corresponding reduction in the number of military offences which carry a possible death sentence in time of war. These now number 18 after changes introduced in August 1995.10 The changes made in a law entitled `On the introduction of amendments and additions to several legislative acts of Ukraine on the responsibility of officials11 which amended several provisions of the Criminal Code. These provisions will eventually form part of a new Criminal Code, to replace the current one which was inherited from the Soviet era.

41.       According to Amnesty International's information, a new draft Criminal Code of Ukraine has been drawn up and is at present being examined in committee stage by the Supreme Council. The bill is said to contain an article on the death penalty formulated as follows:

"1.       The death penalty by shooting may be imposed only for premeditated murder under aggravated circumstances.

2.       A special law may be envisaged for the carrying out of the death penalty for crimes committed against the established procedures for performing military service in time of war or in a situation of combat.

3.       The death penalty may not be applied to persons under 18 at the time the crime was committed, to women, or to men over 65 years of age."

42.       At present the criminal code contains four other peacetime offences in addition to premeditated murder which carry a possible death sentence, exempts pregnant women and minors but has no age limit. It should be borne in mind that, according to official statistical information, all but two of the death sentences passed in recent years have been for premeditated, aggravated murder. The restriction of the death penalty in law to just this offence, therefore, would not appear to be a major factor in reducing the overall number of death sentences passed. In addition the absence of public information on the sex and age of those sentenced to death and executed also makes it impossible to judge what impact the proposed changes in the draft would have on the actual figures of death penalty application.

43.       In the draft opinion proposed to the Assembly by the Political Affairs Committee (Doc 7370) it is said in paragraph 12.ii that Ukraine intends "to sign and ratify within a year from the time of accession Protocol No. 6 of the European Convention on Human Rights on the abolition of the death penalty in time of peace, and meanwhile put into place a moratorium on executions."

44.       In the clarifications submitted by Ukraine it is, however, said that "hereto the issue of the abolition of capital punishment in Ukraine has not been considered by the State authorities. The issue of a moratorium on capital punishment is studied by the State authorities, in particular by the Standing Committee of the Supreme Rada of Ukraine for human rights, national minorities and inter-ethnic relations".12

45.       Yet, at the end of the clarification on the death penalty it is said:

"Further on, capital punishment as a measure of inhumane nature will be consecutively excluded along with the establishment of appropriate social and economic conditions in the country."

46.       Your Rapporteur feels that it is absolutely necessary to have a clear commitment from the Ukrainian authorities regarding the death penalty. However, provided the moratorium is kept, it might be proposed that the time for the definite abolition of the death penalty in time of peace should be prolonged to three years after accession in a similar way as in the Assembly's Opinions on Moldova and Albania13, provided, of course, a moratorium on executions is introduced with immediate effect from the moment of accession of Ukraine to the Council of Europe.

9.       Proposed amendments

      The draft opinion included in the report of the Political Affairs Committee (Doc 7370) is, on the whole, an excellent text to which the Committee on Legal Affairs and Human Rights wishes to subscribe without changing or adding much to it.

      The Committee authorised its Rapporteur to table the following amendments:

Amendment No 1

In the draft Opinion, paragraph 4, add, after "an apparently flawed electoral law", the following text:

"and some infringements of the regulations as well as some inaccuracies in the counting at individual polling stations."

Amendment No 2

In the draft Opinion, paragraph 5, replace the part of sentence starting from "spectacular progress" by the following text:

"that `as for the rule of law and the protection of human rights, one records progress which is at times spectacular, even if the legislation and even more its implementation in practice suffer from indisputable inadequacies'."

Amendment No 3

In the draft opinion, paragraph 6, second sentence, replace the words "has opened the way and set a deadline for the adoption, following a referendum," by "should be followed by the adoption".

Amendment No 4

In the draft opinion, paragraph 7, replace this paragraph by the following text:

"The Act of 17 March 1995, the Constitutional Agreement of 8 June 1995 and a presidential decree of 19 August 1995 confirm the special status of Crimea. The precise scope of its autonomy is to be laid down in the new constitution of Ukraine, as well as in the Crimean constitution which is now being drawn up by its parliament for approval by the Supreme Council of Ukraine."

Amendment No 5

In the draft Opinion, paragraph 11.iii, replace the words "as from 1 January 1996" by "in autumn 1995".

Amendment No 6

In the draft Opinion, paragraph 11.iv, add, immediately after "a year from accession:" the words "- a new Constitution;".

Amendment No 7

In the draft Opinion, paragraph 11.vii, add the following sentence at the end:

"The professional bar association will be involved in the procedure for the appointment of judges."

Amendment No 8

In the draft Opinion, paragraph 11.x, add the following sentence at the end:

"A new non-discriminatory system of church registration and a legal solution for the restitution of church property will be introduced."

Amendment No 9

In the draft Opinion, paragraph 11.xi, delete the end of the sentence starting from "and also of the Charters ...".

Amendment No 10

In the draft Opinion, paragraph 12.ii, replace "to sign and ratify within a year" by the words "to sign within one year and to ratify within three years".

Amendment No 11

In the draft Opinion, paragraph 12.ii, replace the word "meanwhile" by the words "with immediate effect from the day of accession".

Amendment No 12

In the draft Opinion, after paragraph 12.ii, add a new sub-paragraph worded as follows:

"pending further research on the compatibility of the two legal instruments, not to sign the CIS Convention on Human Rights and other relevant CIS documents given the fact that individual applications submitted under this Convention might render impossible the effective use of the right to individual application under Article 25 of the European Convention on Human Rights."

Amendment No 13

In the draft Opinion, paragraph 12.vi, add the following text at the end:

"and to continue the process of returning art objects, where appropriate on a reciprocal basis, to the countries from which the Soviet Union took them in World War II."

Amendment No 14

In the draft Opinion, replace paragraph 12.vii by the following text:

"To sign and ratify, within one year from accession, the European Charter on Local Self-Government and the Charter for Regional and Minority Languages, and to study with a view to ratification the Council of Europe's Social Charter, and meanwhile to conduct its policy in accordance with the principles of these Conventions."


Letter from Mr Németh

to Mr Oliynik, Chairman of the Ukrainian Special Guest Delegation,

dated 21 September 1995


      It is already nearly half a year since I visited Ukraine, your capital, and Crimea, together with the Rapporteurs of the other two committees. I remember with pleasure this visit and the constructive meetings I had on that occasion.

      The Committee on Legal Affairs and Human Rights discussed the accession of Ukraine to the Council of Europe at its last meeting on 11 September 1995 in Paris, at which Mr Holovatiy was also present. The Committee is now applying the new rules on the accession procedure instituted in the wake of the adoption of Order 508 (1995) on the honouring of obligations and commitments by member States, which was first explicitly applied to the Republic of Moldova and the Republic of Albania. Consequently, the Committee would like to ask you for the approval of your competent authorities of paragraphs 11 and 12 of the draft Opinion tabled by the Political Affairs Committee (pages 3 and 4 of Doc 7370) and of my own suggested amendments to these paragraphs, a copy of which is enclosed.

      These amendments are still to be approved by the Committee on Legal Affairs and Human Rights.

      The Committee will discuss the accession of your country again at its next meeting, on Monday 25 September 1995, and it would therefore be useful if I could receive an indication of your country's willingness to enter into these commitments before the meeting.


Reporting Committee: Political Affairs Committee (Doc 7370)

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 6681 and Reference 1808 of 30 September 1992

Opinion approved by the committee on 25 September 1995

Secretaries to the committee: M. Plate, Ms Bakardjieva and Ms Kleinsorge

1 1 Also called the Supreme Rada or, in Ukrainian, "Verkhovna Rada".

2 2 AS/NM (1995) 22.

3 3 CDL (95) 40.

4 4 AS/Jur (1995) 23.

5 5 Doc 1464, paragraphs 83-98.

6 6 Doc 7370 addendum, p.21

7 7 AS\Bur\Ukraine (1995) 1.

8 8 See Doc 7370 Addendum, pp 17 and 18.

9 9 AI Index EUR 50/07/95.

10 10 The following offences in the military crimes section of the Ukrainian Criminal Code carry a possible death sentence if committed in time of war or a situation of combat:

      1.       Article 232       "Insubordination"

      2.       Article 234       "Resisting a superior or compelling him to violate official duties"

      3.       Article 236       "Forcible actions against a superior"

      4.       Article 241       "Desertion"

      5.       Article 242       "Unwarranted abandonment of unit in a combat situation"

      6.       Article 243       "Evasion of military service by maiming or any other method"

      7.       Article 245       "Intentional destruction or damaging of military property"

      8.       Article 249       "Violation of service regulations for guard duty"

      9.       Article 251       "Violation of rules for performing combat lookout"

      10.       Article 254       "Abuse of authority or official position by a military official"

[This Article was amended, and articles 254-2 and 254-3 added, in August 1995. The remaining articles are from the Soviet era criminal code dating from 1961 and still currently in use in Ukraine.]

      11.       Article 254-2       "Exceeding of authority or official position by a military official"

      12.       Article 254-3       "Neglectful attitude towards duty by military authorities"

      13.       Article 255       "Surrendering or abandoning to the enemy of means of waging war"

      14.       Article 256       "Abandonment of sinking warship"

      15.       Article 257       "Unwarranted abandonment of battlefield or refusal to use a weapon"

      16.       Article 258       "Voluntary surrender into captivity"

      17.       Article 260       "Looting"

      18.       Article 261       "Violence against the population in an area of military operations""

11 11 Published on 11 August 1995 in the newspaper Holos Ukrainy ("Voice of Ukraine"), organ of the Supreme Council.

12 12 See Doc 7370 Addendum II, p. 17.

13 13 See Opinion No 188 (1995), para. 11.c, and Opinion No 189 (1995), para. 17.ii.