Doc. 8272

2 December 1998

Honouring of obligations and commitments by
Ukraine

Report

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

Rapporteurs: Mr Tunne Kelam, Estonia, Group of the European People's Party and

Mrs Hanne Severinsen, Denmark, Liberal, Democratic and Reformers' Group

I .        Draft resolution

1.        The Assembly notes that, since its accession to the Council of Europe on 9 November 1995, Ukraine has honoured part of its obligations and commitments as a member state, as they appear in Opinion No. 190 (1995). However, it is deeply concerned by the slow pace at which the state is fulfilling its remaining obligations and commitments.

2.       The Assembly recognises that:

i.        Ukraine has achieved settlement of international disputes by peaceful means and has avoided large-scale social unrest or civil war;

ii.        a new Constitution was adopted within one year of accession;

iii.        Ukraine has become a party to several conventions of the Council of Europe, in particular the European Convention on Human Rights and its Protocols 1, 2, 4, 7 and 11, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Framework-Convention for the Protection of National Minorities and the European Charter of Local Self-Government.

3.       However, in the light of the report of its Committee on the Honouring of Obligations and Commitments by Member States, the Assembly deplores that, in the transitional phase between a totalitarian and a democratic state, Ukraine has not achieved a clear separation between the judicial, legislative and executive powers. There is continuing control by the executive and a determination to seek and hold political power, sometimes illegally, which may unduly influence the next presidential elections which are to take place in October 1999.

4.       Many steps still have to be taken by the Ukrainian authorities to ensure the rule of law, as illustrated by non-implementation of decisions of the Constitutional Court and the Supreme Court, the rise in corruption, criminality and the hiring of military personnel of the Ministry of the Interior for private purposes.

5.       The legislative process has been slow and only a few of the fundamental legislative texts listed in Opinion No. 190 have been adopted. New civil and criminal codes have hardly been examined by the Verkhovna Rada (Parliament) and there has been very little progress in passing legislation on reform of the judiciary and the Prosecutor’s Office, which should be a matter of priority to shorten the transitional period provided in the Constitution as much as possible.

6.       The transfer of responsibility for the penitentiary system to the Ministry of Justice is lagging behind.

7.       Legislation on local self-government should be passed without further delay in conformity with the principles of the European Charter of Local Self-Government, including a clear distinction between the state administration and elected municipal councils. A new status for Kyiv and Sebastopol should be adopted in conformity with the Constitution and the European Charter of Local Self-Government.

8.       The adoption of the Constitution of the “Autonomous Republic of Crimea” should be accelerated with a view to contributing to the stabilisation of relations between the Ukrainian state authorities and the Crimean local authorities.

9.       As regards capital punishment, Ukraine has clearly failed to honour its commitments (212 persons executed between 9 November 1995 and 11 March 1997, according to official sources). The Verkhovna Rada should allow ratification of Protocol 6 of the European Convention on Human Rights as a matter of priority.

10.       Allegations of torture and ill-treatment in custody should be thoroughly investigated and police activities should be submitted to greater control by an independent or judicial body.

11.       State media should develop a neutral and independent editorial line and, were any legal action launched against opposition media, it should follow strict procedures, without forcing media that are under investigation to close.

12.       The election appeals process should be simplified and deadlines should be established and respected for bringing and resolving complaints.

13.       The Crimean Tartars with permanent residence in Crimea should be granted the right to vote before the presidential elections in October 1999.

14.       The Assembly stresses once more the importance of the de facto moratorium on executions and firmly declares that if any further executions take place, the credentials of the Ukrainian parliamentary delegation shall be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure.

15.       The Assembly considers that the Ukrainian authorities, including the Verkhovna Rada, are responsible to a great extent for the failure to respect the commitments Ukraine entered into when becoming a member of the Council of Europe, in particular those aiming at adopting within a year of accession:

- a framework-act on the legal policy of Ukraine for the protection of human rights ;

- a framework-act on legal and judicial reforms ;

- a new criminal code and code of criminal procedure ;

- a new civil code and code of civil procedure ;

- a new law on political parties.

Moreover, Ukraine committed itself to ratify within three years from the time of accession (9 November 1995) Protocol No. 6 of the European Convention on Human Rights on the abolition of the death penalty ; the deadline is now over and the Protocol has not been ratified. Furthermore, Ukraine has not honoured its commitment to ratify, within one year of accession, the European Charter for Regional and Minority Languages.

16.       This is the reason why the Assembly decides that, should these commitments not be honoured by the opening of its June 1999 part-session, it shall :

i.        proceed to the annulment of the credentials of the Ukrainian parliamentary delegation in accordance with Rule 6 of its Rules of Procedure, until these commitments have been fully complied with ;

ii.        recommend that the Committee of Ministers proceed to suspend Ukraine from its right of representation, in conformity with Article 8 of the Statute of the Council of Europe.

17.       The Assembly decides to transmit this resolution to the European Parliament, the European Commission, the OSCE, the European Bank for Reconstruction and Development, the World Bank, the International Monetary Fund and the Congress of Local and Regional Authorities of Europe, and invites them to take its provisions into account in their co-operation with Ukraine, in order to help the country overcome the above-mentioned problems.

II.        Draft recommendation

1.        The Assembly recalls its Resolution ... (1999) on the honouring of obligations and commitments by Ukraine, in which it notes that, since its accession to the Council of Europe on 9 November 1995, Ukraine has honoured part of its obligations and commitments as a member State, as they appear in Opinion No. 190 (1995), whilst expressing its deep concern as to the slow pace at which the state is fulfilling its remaining obligations and commitments.

2.       The Assembly recognises that:

i.        Ukraine has achieved settlement of international disputes by peaceful means and has avoided large-scale social unrest or civil war;

ii.        a new Constitution was adopted within one year of accession;

iii.        Ukraine has become a party to several conventions of the Council of Europe, in particular the European Convention on Human Rights and its Protocols 1, 2, 4, 7 and 11, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Framework-Convention for the Protection of National Minorities and the European Charter of Local Self-Government.

3.       However, in the light of the report of its Committee on the Honouring of Obligations and Commitments by Member States, the Assembly deplores that, in the transitional phase between a totalitarian and a democratic state, Ukraine has not achieved a clear separation between the judicial, legislative and executive powers. There is continuing control by the executive and a determination to seek and hold political power, sometimes illegally, which may unduly influence the next presidential elections which are to take place in October 1999.

4.       Many steps still have to be taken by the Ukrainian authorities to ensure the rule of law, as illustrated by non-implementation of decisions of the Constitutional Court and the Supreme Court, the rise in corruption, criminality and the hiring of military personnel of the Ministry of the Interior for private purposes.

5.       The legislative process has been slow and only a few of the fundamental legislative texts listed in Opinion No. 190 have been adopted. New civil and criminal codes have hardly been examined by the Verkhovna Rada (Parliament) and there has been very little progress in passing legislation on reform of the judiciary and the Prosecutor’s Office, which should be a matter of priority to shorten the transitional period provided in the Constitution as much as possible.

6.       The transfer of responsibility for the penitentiary system to the Ministry of Justice is lagging behind.

7.       Legislation on local self-government should be passed without further delay in conformity with the principles of the European Charter of Local Self-Government, including a clear distinction between the state administration and elected municipal councils. A new status for Kyiv and Sebastopol should be adopted in conformity with the Constitution and the European Charter of Local Self-Government.

8.       The adoption of the Constitution of the “Autonomous Republic of Crimea” should be accelerated with a view to contributing to the stabilisation of relations between the Ukrainian state authorities and the Crimean local authorities.

9.       As regards capital punishment, Ukraine has clearly failed to honour its commitments (212 persons executed between 9 November 1995 and 11 March 1997, according to official sources). The Verkhovna Rada should allow ratification of Protocol 6 of the European Convention on Human Rights as a matter of priority.

10.       Allegations of torture and ill-treatment in custody should be thoroughly investigated and police activities should be submitted to greater control by an independent or judicial body.

11.       State media should develop a neutral and independent editorial line and, were any legal action launched against opposition media, it should follow strict procedures, without forcing media that are under investigation to close.

12.       The election appeals process should be simplified and deadlines should be established and respected for bringing and resolving complaints.

13.       The Crimean Tartars with permanent residence in Crimea should be granted the right to vote before the presidential elections in October 1999.

14.       The Assembly stresses once more the importance of the de facto moratorium on executions and firmly declares that, if any further executions take place, the credentials of the Ukrainian parliamentary delegation shall be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure.

15.       It strongly recommends to the Committee of Ministers that the Assembly’s concerns be reflected in the programmes of Activities for the Development and Consolidation of Democratic Stability (ADACS) for Ukraine, to help the country overcome the problems mentioned above, in particular as regards the training of judges, and that, in due course, it draw all the necessary conclusions from the development of the situation in Ukraine, including measures under Article 8 of the Statute of the Council of Europe.

III. Explanatory memorandum by the rapporteurs

Contents

      Pages

I.       Introduction       9

II.       Recent developments       10

III.       Signature and ratification of Council of Europe conventions       11

IV.       The legal and judicial systems        13

      A.       The legislative process       13

      i.       The new Constitution       13

      ii.       Other laws       14

      B.       The judicial system       15

      i.       The judicial reform       15

      ii.       The Constitutional Court       16

      iii.       The Prosecutor's Office       16

V.       Human rights and fundamental freedoms       17

      A.       The constitutional provisions       17

      B.       Freedom of the media       18

      C.       Freedom of conscience and of worship       19

      D.       Minorities and citizenship       20

      E.       The language issue       22

      F.       The death penalty       22

      G.       The penitentiary system       23

      H.       Police brutality       24

VI.       Other questions       25

      A.       Local self-government       25

      B.       Crimea       27

      C.       The parliamentary and local elections of 1998       28

VII.       Closing remarks       30

Appendix I: Opinion N° 190 (excerpts)       33

Appendix II: Programme of the rapporteurs' visit on 7-10 December 1997       36

Appendix III: Programme of the rapporteurs’ visit on 15-18 September 1998       38

Appendix IV: Signed and ratified Conventions       40

Appendix V: Comments by the "executive bodies" of Ukraine       42

Appendix VI: Letter from Mrs Stanik of 31 March 1998 concerning death penalty       63

I.       Introduction

1.        When Ukraine joined the Council of Europe on 9 November 1995, it accepted the obligations incumbent upon all member states under Article 3 of the statute: the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. It also entered into a series of specific commitments which are listed in Opinion No. 190 (1995) of the Parliamentary Assembly    1. The Committee on Legal Affairs and Human Rights initiated the procedure for monitoring the obligations and commitments entered into by Ukraine, under Assembly Order No. 508 (1995), on 11 December 1995. The Political Affairs Committee and the Committee on Relations with European Non-Member Countries were instructed to give an opinion.

2.       The rapporteurs of the competent Committees, Mr Nemeth, Mrs Severinsen and Mr Masseret, visited Ukraine from 28 to 29 November 1996, at the same time that the Seminar on the abolition of the death penalty, organised by the Committee on Legal Affairs and Human Rights and the Ukrainian Ministry of Justice, took place in Kyiv. The memorandum prepared by the rapporteurs on the honouring of commitments by Ukraine [AS/Jur (1997) 15] was transmitted to the Ukrainian authorities. The comments by the Chairman of the Ukrainian parliamentary delegation can be found in doc. [AS/Mon (1997) 23] of 26 August 1997.

3.       During its January 1997 part-session, the Assembly held a debate under urgent procedure and adopted Resolution 1112 (1997) "on the honouring of the commitment entered into by Ukraine upon accession to the Council of Europe to put into place a moratorium on executions of the death penalty". The Rapporteur of the Committee on Legal Affairs and Human Rights on this specific issue, Mrs Renate Wohlwend, carried out a fact-finding visit to Ukraine on 5-7 November 1997, and her conclusions can be found in document 7974.

4.       By adopting Resolution 1115 on 29 January 1997, the Assembly transferred the responsibility for monitoring Ukraine's respect of these commitments to the new "Committee on the honouring of obligations and commitments by member States", which on 16 May 1997 appointed Mr Kelam and Mrs Severinsen as co-rapporteurs. The committee held an exchange of views with the Ukrainian parliamentary delegation on 25 September 1997 in Strasbourg.

5.       Following their first fact-finding visit to Ukraine on 7-10 December 1997 (see programme in Appendix II), the rapporteurs drew up a preliminary draft report, which was approved by the committee on 28 January 1998 and forwarded to the Ukrainian delegation for comments on 29 January 1998. These comments were received by the rapporteurs on 19 August 1998, i.e. three months later than the required deadline (see Appendix V), which is partly due to the holding of elections in March 1998.

6.       This report is based on the preliminary draft report (AS/Mon (1997) 35), the comments by the Ukrainian "executive bodies" and the second fact-finding visit to Ukraine carried out by Mr Kelam and Mrs Severinsen on 15-18 September 1998 (see programme in Appendix III). The rapporteurs would like to express to the Ukrainian authorities their gratitude for their hospitality. We shall examine in turn recent developments in the political, economic and social situation in Ukraine (Section II), signature and ratification of Council of Europe conventions (Section III), legal and judicial systems (Section IV), human rights and fundamental freedoms (Section V), other issues (Section VI: local self-government, the Autonomous Republic of Crimea and the parliamentary and local elections of 1998) and make some concluding remarks (Section VII).

II.       Recent developments in the political, economic and social situation in Ukraine

7.       Ukraine declared its independence on 1 December 1991.The transformation of Ukraine, which in the last centuries seldom enjoyed independence and responsibility for its own destiny, into an independent and sovereign state provided its leaders with a major challenge. Among other difficulties were the existence of regional divide (central, Eastern, Western Ukraine and Crimea), the ethnic divide and the reintegration of deported peoples, such as the Crimean Tartars.

8.       Parliamentary elections were held in Ukraine on 27 March and 10 April 1994. They were considered free and fair by the delegation of the Parliamentary Assembly which observed them. Presidential elections were held on 26 June and 10 July 1994. A new constitution was adopted on 28 June 1996. The latest parliamentary and local elections were held on 29 March 1998. According to the observers of the Parliamentary Assembly, they were a contribution to democratic development in Ukraine. However, the running of the electoral campaign had been tarnished by serious interference by executive authorities with freedom of expression.

9.       It should be underlined that, despite the difficulties it had to face during recent years, Ukraine has managed relatively well to maintain internal stability. The country has proved able to avoid large-scale social unrest or civil war, contrary to some of its neighbours. Furthermore, by signing in May 1997 a treaty on friendship, cooperation and partnership with Russia as well as an agreement concerning the Black Sea Fleet, Ukraine contributed to a great extent to regional stability. It is also worth noting that in July 1997 the Presidents of Ukraine, Russia and Moldova signed a declaration on trilateral co-operation aiming at the creation of the Euroregions "Lower Danube" and "Upper Prut". These various steps reflect Ukraine's efforts to implement its obligations before the Council of Europe to settle domestic and international conflicts by peaceful means.

10.       At the same time, Ukraine today is going through a serious economic crisis which is accompanied by rising organised crime and very high levels of corruption, as is documented in particular by anti-corruption watch-dog Transparency International. The standard of living of the population has drastically declined over the past years; moreover salaries and pensions often remain unpaid for several months. Unemployment is considered to be between 30 and 40%, particularly in Crimea.

11.       Furthermore, the Chernobyl nuclear catastrophy of 1986 led to huge damage to the environment and the population's social situation; its consequences will request immense efforts for the decades to come.

12.       In spite of these difficulties, Ukraine has made progress in establishing a legal framework aiming at consolidating democracy and protecting human rights. Unfortunately, there is still a long way to go to reach Council of Europe standards and to develop a market economy based on fair competition, respect of the laws and fighting against corruption.

III.       Signature and ratification of Council of Europe conventions

13.       Already before joining the Council of Europe on 9 November 1995, Ukraine had signed the Framework Convention on the Protection of National Minorities, which is in force since 1 May 1998. It had also acceded to the European Cultural Convention, the European Convention on Foreign Law and its Additional Protocol, and the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities.

14.       When joining the Council of Europe Ukraine pledged to sign and ratify a number of other Council of Europe instruments, as listed in Opinion No.190 (1995). As it appears from the table below, Ukraine has now fulfilled most of its commitments as far as ratification of conventions is concerned, with, however, two major exceptions: Protocol 6 to the European Convention of Human Rights and the European Charter for Regional and Minority Languages.

Fulfilment of commitments listed in Opinion 190

yes

no

yes

yes

yes

yes

yes and no

yes

§ 12, i:        European Convention on Human Rights and Protocols 1,2,4,7 and 11:

      Convention ratified as well as Protocols 1,2,4, 7 and 11.

§ 12,ii:       signature (within one year from accession) and ratification within 3 years of Protocol 6 on the abolition of death penalty :

      . Protocol 6 signed on 5 May 1997 but not yet ratified

§ 12, iii:       not to sign the CIS Convention on Human Rights

§ 12, iv:       signature and ratification of the Convention for the prevention of torture:

      . is in force as from 1 September 1997.

§12,v:       ratification of the Framework Convention for the Protection of National Minorities:

      . is in force as from 1 May 1998.

§12, vi:       signature and ratification of 4 specific conventions: they are all in force today.

§ 12, viii:       signature and ratification (within one year from accession) of the European Charter of Local Self-Government and the Charter for Regional and Minority Languages, and consideration with a view to ratification of the European Social Charter:

      .The European Charter of Local Self-Government is in force as from

1 January 1998.

      . The European Charter for Regional and Minority languages was signed on 2 May 1996.

      . The European Social charter was signed on 2 May 1996.

      Ratification is under consideration.

§ 12, ix:       ratification of the General Agreement on Privileges and Immunities:

      . done on 6 November 1996

15.       The full list of Council of Europe instruments which Ukraine has signed and/or ratified appears in Appendix IV.

IV.       The legal and judicial systems

A.       The legislative process

16.       It should be said from the outset that since the adoption of the new Constitution on 28 June 1996, little progress has been achieved as far as the reform of the legal and judicial systems is concerned. Many draft laws were submitted to Parliament, but very few have been approved so far. Today Ukraine's legislation is based on presidential decrees rather than on law passed by Parliament: the proportion is about 10 to 1.

      i.       The new Constitution

17.       Upon accession to the Council of Europe, Ukraine committed itself to adopt a new Constitution within a year from accession. The adoption of the new Constitution by the Ukrainian Parliament within this time-limit, on 28 June 1996, constitutes a major political achievement for which Ukraine is to be praised. The Ukrainian authorities have compared this development with constitutional developments in neighbouring countries where Constitutions were adopted after a referendum on a presidential draft. Ukraine has succeeded in having its Constitution adopted by the Parliament after a 23-hour marathon sitting. Thus the new Constitution was the result of a long negotiated compromise.

18.        The European Commission for Democracy through Law ("Venice Commission") accompanied Ukraine all along the process of elaboration of the new Constitution submitting opinions on various drafts and also on the text finally adopted.

19.        The newly adopted Constitution reflects Ukraine's determination to be a democratic, social and law-based state (see in particular Article 1). Different chapters of the new Constitution will be presented below in the respective sections. As an overall remark, it may be said that the text finally adopted contains improvements in relation to previous drafts and takes into account many of the comments made by the Venice Commission on earlier drafts.

20.        The text establishes a strong executive under the leadership of a powerful President2, but checks and balances are present which should prevent recourse to authoritarian solutions. The principles of the rule of law are well reflected in the text of the Constitution. The following general principles implementing the rule of law are worth being mentioned:

      – the Constitution has the highest legal force and its norms have direct effect; laws and other legal acts are adopted on its basis and have to conform to it (Article 8);–

      – the principle of separation of powers is recognised and the bodies of the legislative, executive and judicial power exercise their authority within the limits established by the Constitution and in accordance with the laws (Article 6);–

      – the principle of legality has found a further clear expression in Article 19;–

      – the constitutional provisions concerning human rights are directly applied by the courts (Article 8, para. 3).21

21.        Article 9 makes international treaties, once ratified, part of domestic law. A reference to generally acknowledged principles and norms of international law has been introduced into Article 18 concerning the foreign policy of Ukraine.

22.        A further positive change is that Article 5, para. 2, now states that "the people exercise power directly and through bodies of state power and bodies of local self-government".

23.       Moreover, the important role assigned to the Constitutional Court should contribute to the establishment of a democratic culture and the development of constitutional law in Ukraine.

24.        However, the realisation of these constitutional principles depends to a large extent on the adoption of implementing legislation. A number of important provisions, such as those on the reform of the Procuratura, judicial reform, arrest, custody and detention etc., are to be implemented after a transitional period, which is not always specified. The rapporteurs urge the Ukrainian authorities to speed up the process of adopting the required legislation so that the transitional period will be as short as possible.

      ii.       Other laws

25.        According to Opinion No. 190, paragraph 11 v., Ukraine should adopt within a year of accession a series of other major legislative acts. Progress with respect to these acts is as follows:

Fulfilment

no

no

no

no

yes and no

§ 11,v:       - framework - act on human rights: a draft law was submitted to the Verkhovna Rada (Parliament) on 4 April 1997.

      - framework - act on legal and judicial reforms: a draft framework-act on legal reform was submitted to the Cabinet of Ministers (government) on 17 April 1997.

      - a new criminal code and code of criminal procedure: a draft criminal code was finally examined in 1st reading by the Verkhovna Rada in September 1998.

      - new civil code and code of civil procedure: a new civil code was presented to the Verkhovna Rada on 3 January 1997 and examined in 1st reading; as far as the new code on civil procedure is concerned, consultations are underway.

      - a new law on elections and a law on political parties: the new law on elections was adopted on 24 September 1997. A draft law on political parties is under discussion.

B.       The judicial system

      i.       The judicial reform

26.        Ukraine committed itself upon its accession to the Council of Europe that the independence of the judiciary would be secured, "notably with regard to the appointment and tenure of judges", a professional association of whom should be involved in the procedure for the appointment (see § 11, viii, of Opinion No. 190).

27.        The new Constitution contains a separate chapter on the judicial system which has received the positive assessment of the Venice Commission. The basic lines of the judicial reform are set out in the Constitution which provides for the establishment of a Constitutional Court and of courts of general jurisdiction. The latter comprise the Supreme Court of Ukraine, High Courts, Courts of Appeal and Local Courts, and prohibits the creation of extraordinary and special courts (Article 125).

28.        The following important principles of the rule of law appear in the text: justice is administered exclusively by the courts (Article 124); the independence and immunity of judges is guaranteed (Article 126); judges are appointed for life term after a 5-year probationary period (Articles 126 and 128); the main principles governing proceedings are also set out in the Constitution (Article 129).

29.       Article 128 could be criticised to the extent that it provides that the first appointment of a professional judge to office for a five-year term is made by the President of Ukraine; all other judges, except those of the Constitutional Court, are elected by parliament for permanent terms according to the procedure established by law. On the other hand, Article 127 sets out the requirements for the appointment of a judge and refers to the Qualification Commission of Judges, which controls whether candidates to the office of judge meet the requirements contained in the law and may recommend the election (appointment) of judges and their dismissal.

30.        Finally, the Constitution provides for the introduction of the High Council of Justice which is composed of 20 members of which the Parliament, the President, the Congress of Judges, the Congress of Advocates, the Congress of Higher Legal educational Establishments and Scientific Institutions each appoint 3 members, while the All-Ukrainian Conference of Employees of the Prosecutor's Office appoints two members. The Chairman of the Supreme Court, the Minister of Justice and the Prosecutor General are ex officio members. The creation of the High Council of Justice, in which professional associations of judges participate, is a positive step which could contribute to the strengthening, in practice, of the independence of the judiciary. The law on the High Council of Justice was adopted on 15 January 1998 and came into force on 19 February 1998. Furthermore, a draft law on the judicial system was submitted to the government on 12 May 1997 and a draft law on the status of judges on 26 May 1997.

31.        The main problem related to the judicial reform is the fact that, according to the transitional provision No. 12 of the Constitution, a transitional period is provided for the full entry into force of the new provisions on the judiciary which should not be longer than 5 years. During this period, the Supreme Court and the High Court of Arbitration continue to function according to the legislation in force. While the provision of a transitional period could have simply been dictated by financial and logistical problems, the rapporteurs recommend that the legislative framework for the realisation of the reform and its implementation in practice should be created as soon as possible in order to shorten the transitional period. Furthermore, the Council of Europe should strengthen its training programme of Ukrainian judges as regards the European Convention on Human Rights and the case-law of the European Court of Human Rights.

      ii.       The Constitutional Court

32.        The creation by the Constitution of a permanent Constitutional Court is to be welcomed. The role of the Constitutional Court has been further developed by the Act on the Constitutional Court of Ukraine adopted on 16 October 1996. Thus, while the Constitution does not provide for a procedure of constitutional appeals or addresses by individuals for violation of their human rights (giving to the Parliamentary Ombudsman the possibility to seize the Constitutional Court), the Act on the Constitutional Court of Ukraine introduces such a procedure on the basis of the power of the Constitutional Court to officially interpret the Constitution of Ukraine (see in particular Articles 42, 43 and 94 of the Act). On the basis of the new Act, the Constitutional Court will have a very important role to play for the development of constitutional law in Ukraine.

33.        The Constitution extends the guarantees of the independence of judges to the judges of the Constitutional Court. Article 23 of the Act on the Constitutional Court empowers the Constitutional Court to decide upon the termination of authority of a judge of the Constitutional Court, with the exception of cases of incompatibility of the office with other activities and the violation of the oath, when the decision is taken by Parliament. Article 31 of the same Act provides that a separate item is to be included in the state budget of Ukraine for the Constitutional Court.

      iii.       The Prosecutor's Office

34.        When becoming a member of the Council of Europe, Ukraine committed itself to change the role and functions of the Prosecutor's Office (especially concerning the general control of legality), transforming this institution into a body which is in accordance with Council of Europe standards (see Opinion No.190, paragraph 11, vi). In order to honour this commitment, Ukraine has already made some steps in reforming the Prosecutor’s Office, which has not been entrusted by the new Constitution with the function of general control of legality.

35.        The newly adopted Constitution contains a separate chapter on the Procuratura which, according to the opinion of the Venice Commission, seems generally compatible with European standards. According to the new Constitution, the Prosecutor's Office is entrusted with the prosecution in court on behalf of the State; the representation of the interests of a citizen or of the State in court in cases determined by law; the supervision of the observance of laws by bodies that conduct detective and search activity, inquiry and pre-trial investigation; the supervision of the observance of laws in the execution of judicial decisions in criminal cases, and also in the application of other measures of coercion related to the restraint of personal liberty.

36.        However, the positive achievements of the new Constitution in this field are undermined by the Transitional Provision No. 9 which provides that the Prosecutor's Office will continue to exercise the function of supervision over the observance and application of laws (general control of legality) and the function of preliminary investigation until new legislation has entered into force. The Constitution does not define any time-limit within which new legislation should be adopted. Moreover, according to the Transitional Provision No. 13 of the Constitution, the current procedure concerning arrest, custody and detention, including the competence of the Prosecutor's Office in the matter, is preserved for a 5-year period. Finally, the reform of the judicial system - for which also a 5-year transitional period was defined - should also be completed before the Prosecutor's Office could narrow up its functions (see comments of the Ukrainian authorities in Appendix V). It is to be hoped that some of these functions will be handed over to Mrs Karpachova who has recently been appointed Ombudsman. The rapporteurs would very much like to meet her during their next visit to assess her responsibilities and achievements.

37.        With regard to the progress in adopting a new Law on the Prosecutor's Office which will only allow the completion of the transitional period for the realisation of the reform of the Prosecutor's Office, on 17 February 1997, the President of Ukraine instructed the Prosecutor's Office together with the Ministry of Justice to ensure the preparation of the new wording of the law "on the Prosecutor's Office". The draft law was discussed twice with Council of Europe experts in July 1997 and February 1998. It seems to be in the process of being finalised.

38.        The rapporteurs cannot but appeal to all competent Ukrainian authorities to make every possible effort to shorten as much as possible the time needed for the realisation of the reform of the Prosecutor's Office in accordance with Ukraine's commitment in this respect. It is worth noting that a significant part of the Joint Programme (European Union and Council of Europe) concerns assistance for the reform of the Prosecutor's Office. Moreover, since this problem is not unique for Ukraine, a model for the reform of the Prosecutor's Office, for instance in the CIS countries, could be prepared.

V.       Human rights and fundamental freedoms

A.       The constitutional provisions

39.        The catalogue of rights protected by the new Constitution is very complete. It is also very much appreciated that Articles 22 and 157 guarantee the protection of the essence of human rights by forbidding the abolition of human rights by way of constitutional amendment. Of particular importance are also Article 8, para. 3, and Article 55, para. 1, providing that human rights are directly applied and protected by the courts.

40.       On the other hand, certain weaknesses pointed out by the Venice Commission concern in particular the lack of structure in the relevant constitutional chapter and the use of the same wording for social, economic and environmental rights on the one hand and for fundamental freedoms on the other.

41.        Regarding possible restrictions of human rights, the Constitution adopts a correct approach by providing for the possible restrictions article by article and not by means of a common, unavoidably vague, general clause covering without distinction all rights. Article 64, para.1, according to which constitutional human and citizens' rights and freedoms cannot be restricted, except in cases envisaged by the Constitution of Ukraine, takes up a recommendation made in the Venice Commission's opinion on the draft and closes an important gap in the protection of human rights.

42.       Unfortunately, together with the general clause on the possible restrictions of human rights contained in the previous Article 64, para. 1, the previous paragraph 2 of the same Article containing the principle of proportionality has also been deleted. Since many of the restrictions permitted by the individual articles of the Constitution, e.g. the restrictions on freedom of thought and speech authorised by Article 34, para. 3, are quite large, it will be essential that the Ukrainian Constitutional Court interprets the various restrictions of human rights as being subject to a general principle of proportionality.

      It would also have been useful to include a provision on the rights of legal persons.

43.        Concerning specific rights, it is particularly regrettable that capital punishment has not been abolished in the Constitution which prohibits arbitrary deprivation of life but not any deprivation of life (see below).

44.       The Venice Commission had criticised the restrictions on freedom of movement for too large a catalogue of reasons in the draft Constitution. Now this catalogue has been replaced by a clause generally allowing restrictions established by law. This makes, without any limitations, the constitutional protection of the freedom of movement subject to derogations by ordinary statute.

45.        Article 55, para. 2, grants the right to everybody to challenge decisions by public bodies and thus provides a constitutional basis for the judicial control of administrative authorities. It is however regrettable that no provision guaranteeing the constitutional right of access to independent and impartial tribunals also in civil and criminal matters has been added.

46.       Implementation of the constitutional provisions on human rights in practice will largely depend on legislation and interpretation of the relevant provisions by the Constitutional Court. The 5-year transitional period provided for the entry into force of the constitutional provisions on arrest, holding in custody and detention of persons suspected of having committed a crime, search etc. (see Transitional Provision No. 13) is extremely long. Since the end of the transitional period depends on the time of adoption of new legislation in this field, the rapporteurs recommend that the Ukrainian authorities deal with this legislation as a matter or priority.

B.       Freedom of the media

47.       Ukraine signed the European Convention on Transfrontier Television on 14 June 1996.       The new Constitution of Ukraine guarantees the right to freedom of expression and information with restrictions which read very much like those provided for by Article 10 of the ECHR (Article 34 of the Constitution).

48.       In the course of the last few years, media in Ukraine developed significantly.There are many new "independent" printed and electronic media, but the state still owns most of the broadcast media, making some censorship likely, in spite of the provisions of the laws "On printed media in Ukraine" and "On television and broadcasting".

49.       Moreover, the media face many problems including economic constraints. According to a governmental resolution, newspapers published by the parliament, the government and several newspapers for children are financially supported by the state. Quite a few representatives of media met by the rapporteurs in Kyiv, Simferopol and Odessa complained not only about the financial dependence of the press, but also about pressure by political parties and business circles, the impact of organised crime on the work of journalists and even killing of journalists.    2 They also expressed their dissatisfaction at the numerous trials of diffamation and the attitude of judges who sentenced them to heavy fines.This climate of violence inevitably leads to self-censorship on the part of journalists and is detrimental to the freedom of the media. The issue of the media gave rise to particular concern during the election campaign for the elections of March 1998, especially the forced closure of two newspapers (Pravda Ukrainy and Vseukrainskiye Vedomosti). Since then, the newspaper « Kyivskiye Vedomosti » has also been forced to close and « Myi » has to face a criminal charge.

50.       In their Joint Statement issued on 30 March 1998, the observers of the OSCE and the Council of Europe Parliamentary Assembly declared that "The media played a critical role in the election campaign, but not a neutral one. Both state and private media clearly promoted particular parties over others. There were a number of disturbing incidents during the campaign of newspapers and television stations experiencing pressure, such as financial inspections or legal actions, from state authorities, which served to somewhat curtail the freedom of the press [….]. These cases call into question Ukraine’s commitments as an OSCE participating State and its obligation as a Council of Europe member state to respect the rights and freedoms of the press".

C.       Freedom of conscience and of worship

51.       One of Ukraine's commitments, listed in paragraph 11, xi. of Opinion No. 190, is to facilitate "peaceful solution to the disputes existing among the Orthodox churches [...] while respecting the Church's independence vis-à-vis the State; a new non-discriminatory system of church registration and a legal solution for the restitution of church property should be introduced."

52.       Following accession, the dispute within the three Orthodox churches in Ukraine, amongst themselves and with the State, has not ended4. Regarding the issue of the restitution of church property, the Cabinet of Ministers adopted on 7 May 1998 an instruction stating that "the legislation of Ukraine provides for a step-by-step return of the cult buildings which are not used or do not serve their purpose" to the religious organisations. Furthermore, the "Order for the State Property Fund of Ukraine" of 29 May 1996 prohibits the privatisation of cult structures and non-cult buildings which belonged to religious organisations and are subject to return to the latter. However, various church representatives consider that property was only returning slowly to the churches.

53.       Complaints are also expressed by the representatives of various confessions regarding the lack of cooperation by the authorities at local level and the system of taxation. Often while a permission by the state authorities was obtained for the (re-)construction of a church, local authorities fail to give the land necessary for this purpose. There is no sufficiently good coordination between state and local authorities in this respect.

54.       With regard to the registration of churches and restitution of church property, according to the Ukrainian authorities, two draft laws aiming at amending the Law "On Freedom of conscience and religious organisations" were submitted to the Verkhovna Rada on 22 May 1997 and 26 January 1998. The first draft law provides for a new procedure for registering the statutes of religious organisations which avoids the possibility of discrimination, the second aims at an improved mechanism for the transfer of the former buildings of worship and religious property to religious organisations.

55.       These drafts are currently examined by Parliament; the rapporteurs would very much appreciate if these drafts could be submitted to the Council of Europe before their adoption.

D.       Minorities and citizenship

56.       As was said above, Ukraine had signed the Framework Convention for the Protection of National Minorities already before its accession to the Council of Europe, on 15 September 1995; it was ratified on 9 December 1997 and entered into force on 1 May 1998.

57.        According to the 1989 census, 127 national minorities had been registered of which 9 minorities comprised more than 100,000 members. The largest ethnic minority in Ukraine is Russian (about 22%). In Crimea though, Russians represent a majority of over 60%, with Ukrainians numbering over 20% and Crimean Tartars about 11% (after their deportation under Stalin, some 250.000 Crimean Tartars have returned to Crimea, about 250.000 still live in exile).

58.        The State Committee of Ukraine on Nationalities and Migrations, headed since May 1998 by Mr Rudko, has elaborated some amendments to the 1992 Law on National Minorities providing for wider protection and better relations between the Ukrainian population and the members of national minorities. The new draft law, which aims at protection of the rights of all national minorities, was submitted to the Verkhovna Rada on 17 December 1996. At the same time, the State Committee prepared a draft Concept on the State Ethnic Policy of Ukraine, which was approved by the Ministry of Justice on 19 February 1997 and submitted to the Verkhovna Rada on 4 April 1997.

59.       According to the legislation in force, equal rights are granted to every citizen of Ukraine regardless of national origin. Every national minority has the right to enjoy cultural autonomy, to teach in its own language and to create educational and cultural institutions. However, the law does not specify what responsibilities are to be assumed by the state in this respect, although it provides in principle for special appropriations for the development of national minorities in the State Budget of Ukraine.

60.       As far as representation of minorities in state and local structures is concerned, it seems that representatives of most main national minorities were elected in proportion to their share in the composition of the whole population of the relevant district. However, it should be noted that, if the Crimean Tartars are represented by two deputies in the Verkhovna Rada after the March 1998 elections, they have only one representative in the parliament of the Autonomous Republic of Crimea, while representing 11% of the population. This situation is due to the fact that the quotas for the national minorities which existed in the outgoing parliament were abolished following the President’s refusal of a system originally proposed by the Crimean Parliament to have a mixed system similar to the one in force for the Verkhovna Rada. This situation is highly unsatisfactory.

61.       Moreover, the elections to the Crimean Parliament were not announced until 12 February 1998 and the election campaign was marked by a wave of arrests of candidates and other violent events.

62.       It was hoped that Tartars without citizenship would be given the right to vote, but this was finally refused, which led to violent demonstrations and deprived some 80 000 Tartars from taking part in the election.

63.       As regards citizenship, the Ukrainian law on citizenship has recently been amended in order to facilitate the citizenship application process. These amendments were introduced after certain minorities, in particular Crimean Tartars, about 50% of whom (some 100 000 persons) do not have Ukrainian citizenship, had complained about the former citizenship acquisition process. According to information given to the rapporteurs in December 1997 by Mr Shubarov, Deputy Speaker of the Crimean Parliament, among 165 000 Tartars who have reached electoral age, 85 000 are not yet Ukrainian nationals. The latter cannot enter civil service and must face restrictions when trying to enter the university, privatising land or settling in other parts of Ukraine. It should be remembered that Ukraine does not recognise dual citizenship. To obtain Ukrainian citizenship, an applicant must renounce any former citizenship, which sometimes proves very costly and time-consuming, in particular for those Crimean Tartars who today hold Uzbek citizenship. It should be noted in this respect that, on 4 September 1998, an agreement between Ukraine and the Republic of Uzbekistan aiming at resolving issues related to the citizenship of deported people, came into force.

64.       It should also be noted in this respect that Article 15 of the draft Crimean constitution provides that Ukrainian citizens permanently living in Crimea are citizens of the Autonomous Republic of Crimea. It is highly unlikely that this provision will be accepted by the Verkhovna Rada.

65.       With regard to education, according to the latest data, there are 212 557 general educational and training institutions in Ukraine. Along them, 2 747 provide teaching in Russian, 107 in Romanian, 65 in Hungarian, 6 in Crimean Tartar language, 5 in Jewish language, 3 in Polish and 2 in Moldovan. 2 318 mixed schools teach in two languages. Regarding newspapers, 987 are published in minority languages.

66.       To the question of whether the Ukrainian authorities envisage the introduction of double (Ukrainian and Russian) citizenship for residents of Crimea of ethnic Russian origin, the reply was clearly negative.

67.       As a concluding remark, the rapporteurs urge the Ukrainian parliament to accelerate the process of ratification of the European Charter for Regional or Minority Languages given the number of national minorities living in the country. The draft law on ratification of the Charter was submitted to the Verkhovna Rada on 27 February 1997. It provides for application of its provisions to the languages of 13 minorities : Bulgarians, Greeks, Gagauzes, Jews, Crimean Tartars, Moldovans, Poles, Russians, Romanians, Hungarians, Germans, Belorussians and Slovakians. During their next visit to Ukraine, the rapporteurs will also try to collect further information on the Carpathian Ruthenian community.

E.        The language issue

68.       According to the Constitution, the state language is Ukrainian. At the moment, the Verkhovna Rada is considering a new draft law on "the development and use of languages in Ukraine". It provides in particular that the use of Ukrainian is compulsory not only for all state institutions, but also for private organisations and enterprises in their official communications, and in 70% of all broadcasting on non-governmental radio and television.

69.       On the other hand, the draft law seems to guarantee the free development and use of languages of national minorities, in particular Russian, in their cultural and educational activities. However, it is unlikely that much financial government support will be granted to implement these provisions.

70.       A particular problem might appear in the case of Crimea, since the draft Crimean constitution provides for three state languages -Russian, Ukrainian and Crimean Tartar- with Russian as the official language. It should be noted that during their meetings in Crimea the rapporteurs hardly heard any other language than Russian. But it is quite unlikely that the Verkhovna Rada will accept this provision.

71.       Given the potential problems which might be generated by the new law on language, the rapporteurs would appreciate receiving further information on this issue.

F.       The death penalty

72.       Following repeated unsuccessful requests by the rapporteurs to obtain information about death penalty in Ukraine, the Ukrainian Minister of Justice, Mrs Stanik, finally admitted in a letter dated 31 March 1998 to Mrs Fischer (see Appendix VI) that 203 persons had been executed in Ukraine between Ukraine’s accession to the Council of Europe in November 1995 and 1997. Furthermore, 9 persons were executed between 1 January and 11 March 1997. She added in the appendix that "in 1998 no execution of persons sentenced to capital punishment – death penalty has taken place in Ukraine". The rapporteurs would highly appreciate receiving further information concerning the period between 11 March and 31 December 1997.

73.       The blatant violation by Ukraine of its commitment to put into place a moratorium on executions of the death penalty immediately upon its accession to the Council of Europe gave rise to a debate under urgent procedure during the January 1997 part-session of the Assembly, which adopted Resolution 1112 (1997); this Resolution provides that, should any more executions take place, the Assembly may consider the non-ratification of the credentials of the Ukrainian parliamentary delegation at its next session.

74.       At first it seemed that a moratorium on executions had been decided by Ukrainian authorities after the Assembly's stern warning and, on 5 May 1997, Ukraine signed Protocol 6 of the European Convention on Human Rights, abolishing the death penalty. However, during the summer, news of executions having taken place secretly in 1997 started to leak out. This is why the rapporteur of the Committee on Legal Affairs and Human Rights, Mrs Wohlwend, carried out a fact-finding mission to Ukraine on 5-7 November 1997.

75.       It appears from her report (Doc. 7974) that 13 additional persons were executed between 1 January and 11 March 1997, after which a moratorium seems to have been decided by the President. One of the most appalling aspects of these executions is that the whole procedure was shrouded in secrecy and relatives of executed prisoners are not informed where their sons, husbands or fathers are buried, which Mrs Wohlwend rightly considers as "an affront to human dignity". It is hardly understandable why, on the one hand, executions are supposed to be a deterrent against criminality and, on the other hand, they are kept secret. That is also the reason why the rapporteurs were somewhat disturbed by the statement of Mrs Stanik, Minister of Justice, who advised them during their visit in December 1997 to listen only to official sources. Finally, in her letter of 31 March 1998, she announced that the secrecy on data concerning execution of capital punishment – death penalty had been lifted on 11 March 1998. However, recent evidence indicates that while some changes to the legislation on secrecy were made, they did not affect all the secrecy provisions concerning the death penalty. The rapporteurs are seeking clarification of this issue.

76.       Another problem appears in the case of Crimea, where 23 persons were condemned to death in 1995, 11 in 1996 and 13 during the first 11 months of 1997. In December 1997, 30 persons, including 2 women, were on death row. According to the representative of Amnesty International in Kyiv, 73 sentences to death have been passed in 1998 by Ukrainian courts. He was wondering whether these persons were still alive.

77.       Mr Moskal, representative of the Ukrainian Ministry of Interior in Crimea, told the rapporteurs that prior to enforcing Protocol 6 Ukraine needs to reach the European standard of living. Often the finger of the local authorities was pointed to the central government in Kyiv, they claim that no one consulted them before Kyiv officials signed such commitments. Poor communication, inadequate exchange of information and advice between central government and local authorities are clearly major problems in developing an efficient and transparent system of rule of law.

78.       It is now to be hoped that the executions carried out in Ukraine on 11 March 1997 were the last ones in the country's history, and that the new elected Parliament will abolish death penalty as soon as possible. However, it is clear that Ukraine blatantly betrayed the provisions of Opinion No.190 concerning death penalty and Resolution 1112. It was only in October 1997 in an oral statement and in December 1997 in written form that President Kuchma informed the President of the Parliamentary Assembly that in the future Ukraine will consistently observe the moratorium on death penalty. In January 1998, the Parliamentary Assembly adopted Resolution 1145, in which it demanded "that no more executions be carried out under any circumstances whatsoever".

G.       The penitentiary system

79.        When becoming a member of the Council of Europe, Ukraine committed itself to transfer the responsibility for the prison administration, for the execution of judgments and for the registration of entry to and exit from the country to the Ministry of Justice before the end of 1998 (see paragraph 11, vii., of Opinion No.190). At the moment there are some 230 000 prisoners in Ukraine.

80.        Today, the Ukrainian Penitentiary Service is still a constituent part of the Ministry of Interior. Its operational management and administration is the responsibility of the Chief of the Principal Department of the Interior Ministry. The Penitentiary Service employs about 37000 officials of which 21 000 are uniformed and 16 000 are civilian employees. It has close operational links with the military and police services. The military contingent of the Ministry of Interior is employed in the Penitentiary Service whose resulting militarisation is one of its most problematic characteristics. Financial and logistical problems have been invoked as some of the main reasons which could delay the transfer of responsibility of the penitentiary system to the Ministry of Justice for up to two years.

81.       According to the information provided by the Chairman of the Ukrainian parliamentary delegation on 26 August 1997, this commitment is not fulfilled. However, on 27 February 1997, the Ministry of Interior, the Ministry of Foreign Affairs, the Ministry of Justice, the State Committee of Ukraine on Nationalities and Migrations, the State Committee on the Protection of State Border and the Security Service were instructed to submit to the Cabinet of Ministers, by 1 September 1997, proposals aiming at transferring to the Ministry of Justice responsibility for the administration of the penitentiary system, the execution of judgements and the registration of entry to and exit from the country.

82.       Once again, this deadline has not been respected. On 22 April 1998, the President of Ukraine issued a Decree "On establishment of the State Department of Ukraine on Penalty execution", which envisaged that the Department become a central executive body of Ukraine. However, according to the Minister of the Interior, Mr Kravtchenko, whom the rapporteurs met in September 1998, this administration will be headed by one of his deputies, which is in clear contradiction with Ukraine’s commitments.

83.        A thorough analysis and assessment of the Ukrainian prison system has been conducted by Council of Europe experts in the framework of the Joint Programme (European Union/Council of Europe). The report, which has been published and transmitted to the Ukrainian authorities in January 1997, provides advice and guidance on how the Ukrainian prison system might be brought in closer conformity with western European standards and the European Prison Rules. It led to the creation of a steering committee on reforming the penitentiary system of Ukraine, which held a session in Kyiv in June 1997 and a session in Strasbourg in January 1998. It agreed with Council of Europe experts on five priority areas aimed at reforming the Ukrainian penitentiary system: organisational structure, selection and training of staff, classification and placing of convicted persons, organisation of carrying out long term punishment and related prisons. However, little progress has been made in this regard.

H.       Police brutality

84.       According to the NGOs met by the rapporteurs in Kyiv on 16 September 1998, in particular the Ukrainian Committee Helsinki-90, police violence remains a common phenomenon in Ukrainian society. In its report on "Police activities in Ukraine" of January 1998, the Association for the prevention of torture underlined that "the practice of torture and ill-treatment on persons arrested by the police is widespread, leading in several cases to the death of the suspect. The fact that the constitutional guarantees regarding holding in custody are suspended until the year 2001 is worrying and opens the door to legal uncertainty and arbitrariness. It contributes to the perpetuation of old methods and hinders the necessary change of mentality".

85.       The rapporteurs gave a copy of the above report to the Ukrainian Minister for the Interior, Mr Kravchenko, on 16 September 1998, asking him for comments. These comments are still awaited ….

VI.       Other questions

A.       Local self-government

86.        The new Constitution contains a separate chapter on "Local Self-Government". Moreover, Article 7 of the Constitution provides clearly and concisely that local self-government is recognised and guaranteed in Ukraine. On 15 July 1997, Ukraine ratified the European Charter of Local Self-Government, which came into force on 1 January 1998.

87.        The Venice Commission made a positive assessment of the relevant chapter of the Constitution.

88.       Following three visits to Ukraine (28-29 August 1997, 20-21 November 1997 and 29 March 1998), the Rapporteurs Group of the Congress of Local and Regional Authorities of Europe, nevertheless, noted a legislative deficit in different aspects of local self-government in Ukraine. It addressed recommendations to the Ukrainian authorities, proposing that the law of 12 June 1997 on Local Self-Government in Ukraine, being for the moment only an outline law, should be completed by additional legislation and in a manner in conformity with the provisions of the European Charter of Local Self-Government. Not only did this concern a new status for Kyiv and Sebastopol and new legislation on territorial administration, both designed to enshrine the principle of elected councils having their own subordinate administration, but also a range of other questions :

- municipal electoral law;

- referenda;

- local finance and tax;

- budget of municipal authorities;

- municipal land and property ownership;

- the status of elected representatives and officials;

- the role of mass-media in local life.

89.       The CLRAE also follows closely developments regarding the status of Kyiv, especially after the forced dismissal of the City Head L. Kossakivski on 26 June 1997. In the evening of 10 July 1997, the offices of Mr Kossakivski and his supporters were broken into by force. The police, present, made no attempt to intervene. The CLRAE immediately reacted and insisted that Mr Kossakivski should be reinstated forthwith as Head of the City Council of Kyiv and that the guards be removed from the offices which should be unsealed. The situation, however, remained the same up to and beyond the date of the elections of 29 March, in 1998. It is no longer purely a question of the existence or not of local democracy in the city of Kyiv but rather one of respect of law of which the President and his Administration should be the guarantor.

90.       As to the decision to appeal to military personnel to guard the locked offices of Mr Kossakivski, it appears from information given to the rapporteurs by Mr Shtanko, vice-Minister of the Interior, and Mr Ferents, first deputy Prosecutor General of Ukraine, that they belong to the State Security Department, which is part of the Ministry of the Interior. Anybody, be it a private firm or a group of members of the City Council of Kyiv, can hire these troops by contract. Thus, military personnel, whose duty it is to protect the interests of the State, can be used for the interests of private circles at the same time. This is still the case today, as was confirmed to the rapporteurs by reliable sources in September 1998. It is an illustration of today's rule of law in Ukraine.

91.       Another illustration is that neither the decision of the District Court of Kyiv, which declared on 1 October 1997 Mr Kossakivski’s dismissal illegal, nor confirmation of this decision by the Supreme Court on 21 January 1998, were implemented. Even the decision of the Constitutional Court on the incompatibility between the functions of mayor and head of the State administration is still igored, in particular in Kyiv.

92.       Article 8 of the Constitution states that "In Ukraine the principle of the rule of law is recognised and effective". However, the rapporteurs have witnessed a number of legal decisions, including the above-mentioned one by the Supreme Court, which remained without application or effect, thus raising the question of the respect of the rule of law in Ukraine, over and above questions of local democracy.

93.       With regard to the special status of Kyiv and Sebastopol which is foreseen by Article 118, par. 2, and Article 140, par. 2, of the Constitution ("particular aspects of the exercise of executive power (and local self-government) in the cities of Kyiv and Sebastopol are determined by special laws of Ukraine"), little progress has been achieved so far. Concerning Sebastopol, unfortunately, the Verkhovna Rada has not yet started to consider the relevant draft law. It has had three readings of its draft on the status of Kyiv, after which it was submitted for Presidential approval. However, for the moment, it is vetoed by the President. Contrary to the legislation in force, the Presidential administration accepted elections on 29 March 1998 only to the Municipal Council if Kyiv, with direct elections for City Head to await a new law for the status of Kyiv and Sebastopol. Finally, and once again contrary to the law, which provides for direct election of the Head of the Municipal Council by the people, the Municipal Council elected Mr Omelchenko as its head. It should be remembered that Mr Omelchenko is at the same time head of the State administration of Kyiv, a situation which is in clear contradiction with the European Charter of Local Self-Government, which provides for a clear division of responsibilities between local and central government, and with a decision by the Ukrainian Constitutional Court.

94.       Another source of deep concern is related to the instructions given on 26 May 1998 by Mr Kushnarev, head of the Presidential administration, to the heads of the regional, the Kyiv and the Sebastopol State administrations, to prevent local elected representatives from addressing directly the Council of Europe, arguing that this is contrary to the Constitution. Such an instruction is in clear contradiction with the Constitution itself (Art. 55) and the membership of Ukraine in the Council of Europe. The rapporteurs have requested the immediate abrogation of this instruction.

95.        The rapporteurs urge the Ukrainian parliament to seriously take into consideration the observations made by the CLRAE. The new law on local self-government and the law on the status of Kyiv will complement the Constitution and should be adopted as soon as possible, so that the elections of mayors in Kyiv and Sebastopol can take place as soon as possible. At the same time, they launch a strong appeal to the Ukrainian authorities to implement court decisions and to abrogate unconstitutional instructions to local authorities.

B.       Crimea

96.        The new Constitution of Ukraine defines the autonomy of the "Autonomous Republic of Crimea". The text finally adopted is more precise and coherent than the text appearing in the draft, although it remains evident that the parliament did not wish to give to Crimea a status comparable to a German Land or a Spanish Region. The text carefully avoids speaking about Crimean laws but only refers to "normative regulation". So, the current status of Crimea is hardly different from that of an oblast.

97.        A list of powers of the Autonomous Republic are listed in the Ukrainian Constitution both in respect to normative regulation (Article 137) and to other acts (Article 138). The power of the Crimean Parliament to appeal to the Constitutional Court of Ukraine, in accordance with a commitment undertaken by Ukraine upon its accession (see paragraph 11, x., of Opinion No. 190) is ensured. This power should further imply that there is a sphere of competence protected by the Constitution. Nevertheless, Crimean normative acts have to comply not only with the Constitution but also with the laws of Ukraine. One could therefore conclude that the central authorities can legislate within the area of application of Articles 137 and 138 of the Constitution.

98.        The Venice Commission has analyzed this problem and the rapporteurs subscribe to this analysis which is as follows:

      a. One could say that the Crimean authorities have to respect national legislation dealing with issues which are in the national competence and do not coincide with the issues listed in Articles 137 and 138.

      b. One could say that national legislation is competent to state the principles of law which have to be implemented by the Crimean authorities whose task is to provide for detailed regulation of the issues listed in these articles.

      c. One could say that national legislation can deal with the issues listed in these articles when national interests are at stake.

99.        The last alternative is the most flexible one but it could favour an enlargement of the national competence if the Constitutional Court accepts the central state's interpretation of the definition of national interests. It could imply a large scope for differences of opinion and conflicts.

100.       On 10 February 1998, the Verkhovna Rada of Ukraine adopted a law on "The Verkhovna Rada of the Autonomous Republic of Crimea", which determines the authorities, the organisation and the activity of the Crimean parliament.

101.        The definition of the Crimean autonomy in the Ukrainian Constitution has in general contributed to the improvement of relations between Kyiv and Simferopol. But stabilisation will be definitely achieved only after the "Autonomous Republic of Crimea" will have adopted its own Constitution. Article 135 of the Ukrainian Constitution provides that the Crimean constitution must be approved by the Ukrainian Verkhovna Rada. On 21 October 1998, the parliament of the Autonomous Republic of Crimea approved a new draft constitution, the fifth since 1992 which has been submitted to the Verkhovna Rada. Outstanding issues include the status of formerly deported peoples, in particular of the Crimean Tartars, the acquisition of Ukrainian citizenship, language matters and restrictions on resettlement. The Crimean leaders met by the rapporteurs in Simferopol expressed their dissatisfaction at the lack of economic and financial autonomy of the Autonomous Republic of Crimea.

102.       Another source of concern is the representation of Crimean Tartars in the Crimean parliament. Due to the law on "Elections of Deputies to the Verkhovna Rada of the Autonomous Republic of Crimea" of 12 February 1998, the Crimean Tartars, who account for 11% of the population of Crimea, have only one representative in the local parliament. Out of a total of 165 000 Crimean Tatar returnees of voting age, only some 80 000 have Ukrainian citizenship, and thus enjoy the right to vote. It has to be regretted that, unlike for the 1994 parliamentary elections, returnees with permanent residence, regardless of citizenship, were not allowed to vote in 1998.

C.       The parliamentary and local elections of 1998

103.       Parliamentary, municipal and regional elections took place in Ukraine on 29 March 1998.

a.       Parliamentary elections

104.       The conclusions of the joint statement issued on 30 March 1998 by the OSCE and the Council of Europe Parliamentary Assembly are as follows :

"The Ukrainian elections were conducted under a generally adequate legal and administrative framework. However, the campaign was marred by incidents of violence, arrests and actions against candidates and abuse of public office that represent a serious shortcoming in the conduct of the campaign, and raises questions about the neutrality of the state apparatus in the election.

Further steps could have been taken to ensure the full participation of returned Tartars in the election, and a better possibility for them to be represented in the Crimean Parliament.

The late passage of laws and regulations caused confusion and uncertainty about the electoral process.

The media played a critical role in the election campaign, but not a neutral one. Both state and private media clearly promoted particular parties over others. There were a number of disturbing incidents during the campaign of newspapers and TV stations experiencing pressure, such as financial inspections or legal actions, from state authorities, which served to somewhat curtail the freedom of the press.

On election day the process was carried out in a generally peaceful and orderly manner. The complexity of the system did, however, cause problems in the polling stations. The capacity of voting booths was too low and open voting and family voting is still a common problem. The observers reported a very great effort in polling stations to complete the voting process.

The implementation of the election results was hindered by confusing and unclear election appeal procedures. Parallel appeal processes involving both the judiciary and election commissions provided an opportunity for forum shopping and obstructed the installation of several deputies to Parliament. Legislative reforms in this area and additional training for the judiciary in resolving election disputes will minimize the reoccurrence of future implementation issues".

105.       At the time of the rapporteurs’ second visit to Ukraine in mid-September 1998, that is some six months after the elections, there were still seven cases of challenged election results pending before the courts, in particular those of MM. S. Holovaty and Yu. Orobets, whom the rapporteurs met on 16 September in Kyiv. Mr Holovaty is a member of the Ukrainian parliamentary delegation and his credentials were approved by the Assembly in September 1998. On 3 August 1998, he filed a petition to the European Commission of Human Rights claiming that the trial against him was illegal and unconstitutional. As for Mr Orobets, his election was invalidated on 16 April 1998, whilst the new elections on 16 August 1998 were again invalidated on 20 August 1998. A third election is to be held on 20 December 1998, and the rapporteurs have been invited to observe it.

106.       This is why, in its final assessment of these elections, the OSCE Office for Democratic Institutions and Human Rights stated : "Unclear election appeal procedures have contributed to the appearance of selective enforcement of election laws. Those deputies who have been the most outspoken of current policies incurred the greatest difficulties in taking their office. At best the appearance of such selective enforcement is the result of confusing parallel appeal processes, at worst it is undermining OSCE commitment to hold accountable and transparent elections as prescribed by the paragraphs 7.6 and 7.9 of the Copenhagen document […]. The electoral appeal process must contain clear lines of demarcation for the judiciary and election commissions to prevent forum shopping and to promote transparency and confidence in the system".

      The rapporteurs entirely share this assessment and deplore the continuous challenges to the electoral results of opponents to executive authority, which is most detrimental to democratic stability.

b.       Municipal and regional elections

107.       In its report on the municipal and regional elections of 29 March 1998 in Ukraine (Doc. CG/Bur (4) 132 rev.), the Congress of Local and Regional Authorities of Europe assessed these elections as follows :

      "Throughout its visit, the CLRAE delegation was received with courtesy, efficiency, and a degree of warmth which suggested that its presence in Ukraine for these elections was appreciated.

      There had been a vigorous and, in places, a highly intimidating electoral campaign, with a significant number of actual and alleged irregularities and unfair practices which the delegation hopes will be examined by the relevant authorities in the near future.

      There had also been an unfortunate blurring of the relative roles of the judiciary and the Electoral Commissions; in some cases, a thinly-disguised use of governmental institutions (police, public prosecutors office, law courts) for electoral advantage; unacceptable pressure on some newspapers and TV stations; allegations about a mix of political, financial and economic interests in the absence of clarity about privatisation processes; a complicated electoral procedure with last minute changes and major problems as the report indicates in Kyiv, Sebastopol and Odessa.

      For the future, the CLRAE proposes that there be improvements to the electoral law to avoid last-minute changes; that there be not so many elections on the same day; that there be more polling stations in each constituency in order to decrease voter affluence; that campaigning and electoral propaganda be stopped 48 hours before polling; that more care be taken to ensure impartiality in the composition of the Electoral Commissions and that the central Electoral Commission should be free from any sort of pressure in fulfilling its responsibilities.

***

      Ukraine is in a transitional phase between a totalitarian and a democratic state. Inevitably the transitional period is affected by a continuing control by the Executive and a determination, sometimes bordering on illegality, to seek and hold political power. There is still not enough clarity and separation of judicial, political, executive and electoral functions.

      The Constitution does not clarify mechanisms for solving the inevitable Parliamentary/Presidential impasse which leaves its mark on local and regional democratic reform. Indeed, it is the control of municipalities and regions wherein lies one of the keys to control of the country as a whole.

      However, there are some promising signs for the future. Some new Parliamentarians openly espouse the cause of local and regional self-government. One of the tasks of the new Parliament will be to proceed with reform on local and regional self-government, bolstered by high participation in the elections ; by the strong interest shown by the public and public institutions in local matters and by the belief that real choices are now possible."

VII.       Closing remarks

108.       Indeed, Ukraine is in a transitional phase between a totalitarian and a democratic state. Since its accession to the Council of Europe in November 1995, it has restricted itself to honouring the formal commitments listed in Assembly Opinion No. 190 by becoming a party to the main conventions of the Council of Europe.

109.       As for the legal, social and political reforms needed to achieve the transition to democracy, Ukraine is still lagging behind. There is still not enough clarity and separation between the judicial, executive and legislative powers, but a continuing control by the executive and a determination to seek and hold political power, sometimes illegally, which may unduly influence the next presidential elections which are to take place in October 1999.

110.       These concerns were shared by Mrs E. Mann, Chair of the European Parliament Delegation for Ukraine, and Mr O. de Laroussilhes, from the European Commission, at a meeting with Mr Kelam on 29 September 1998 in Brussels.

111.        At this stage, the following conclusions may be formulated:

      a. the adoption of the Constitution constitutes undoubtedly a major political achievement which will hopefully allow progress in different fields;

      b. the ratification of the European Convention on Human Rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Charter of Local Self-Government are another important positive step;

      c. many steps still have to be taken by Ukrainian authorities to ensure the rule of law, as illustrated by the rising corruption, criminality and the hiring of military personnel of the Ministry of the Interior for private purposes;

      d. the legislative process has been slow and only a few of the fundamental legislative texts listed in Opinion No. 190 (1995) have been adopted. New civil and criminal codes have hardly been examined by the Verkhovna Rada and there has been very little progress in passing legislation on reform of the judiciary and the Prosecutor's Office, which should be a matter of priority to shorten the transitional period provided in the Constitution as much as possible;

      e. the transfer of responsibility for the penitentiary system to the Ministry of Justice is lagging behind;

      f. legislation on local self-government should be passed without further delay in conformity with the principles of the European Charter of Local Self-Government, with a clear distinction between the state administration and elected municipal councils. A new status for Kyiv and Sebastopol should be adopted in conformity with the Constitution and the European Charter of Local Self-Government;

      g. the adoption of the Constitution of the "Autonomous Republic of Crimea" should further contribute to the stabilisation of relations between the Ukrainian state authorities and the Crimean local authorities;

      h. as regards capital punishment, Ukraine has betrayed its commitments (212 persons executed between 9 November 1995 and 11 March 1997, according to official sources). The Verkhovna Rada should allow ratification of Protocol 6 of the European Convention on Human Rights as a matter of priority;

      i. allegations of torture and ill-treatment in custody should be thoroughly investigated and police activities should be submitted to greater control by an independent or judicial body;

      j. state media should develop a neutral and independent editorial line and, should any legal actions be launched against opposition media, it should follow strict procedures, without forcing media which are under investigation to close;

      k. the election appeals process should be simplified and deadlines should be established and respected for bringing and resolving complaints;

      l. the Crimean Tartars with permanent residence in Crimea should be granted the right to vote before the next presidential elections in October 1999.

112.       The rapporteurs conclude that Ukraine has not made sufficient progress in the honouring of its obligations and commitments as a member state of the Council of Europe and that the monitoring procedure should continue.

113.       They recall that, according to Resolution 1115 on the setting-up of the Monitoring Committee, "the Assembly may penalise persistent failure to honour obligations and commitments accepted".

114.       The rapporteurs launch an appeal to the Ukrainian authorities, in particular to the President and the Verkhovna Rada, to urgently take the necessary steps to make Ukraine into a full democratic state accepting the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, with a view to collaborating sincerely and effectively in the realisation of the aims of the Council of Europe.

Appendix I

OPINION No. 190 (1995)

on the application by Ukraine for membership of the Council of Europe

Excerpts

11.       Accordingly, in the light of assurances given by the highest authorities (letter of 27 July 1995 from the President of Ukraine, the President of Parliament and the Prime-Minister), and on the basis of the following considerations, the Assembly believes that Ukraine is able and willing, in the sense of Article 4 of the Statute, to fulfil the provisions for membership of the Council of Europe as set forth in Article 3: "Every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council":

i.       Ukraine has been taking part in various activities of the Council of Europe since 1992 — through its participation in intergovernmental "co-operation and assistance" programmes (notably in the fields of legal reform and human rights) and the participation of its special guest delegation in the work of the Parliamentary Assembly and its committees;

ii.       "political dialogue" between Ukraine and the Committee of Ministers of the Council of Europe was initiated on 13 July 1994;

iii.       a joint European Commission/Council of Europe programme for legal and judicial system and local government reform is being prepared and its implementation is scheduled to start in autumn 1995;

iv.       Ukraine has signed the Framework Convention on the Protection of National Minorities. Moreover, it has acceded to the European Cultural Convention, the European Convention on Foreign Law and its Additional Protocol and the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities;

v.       the following legislation in conformity with Council of Europe standards will be adopted within a year from accession:

      - a new constitution;

      - a framework-act on the legal policy of Ukraine for the protection of human rights;

      - a framework-act on legal and judicial reforms;

      - a new criminal code and code of criminal procedure;

      - a new civil code and code of civil procedure;

      - a new law on elections and a law on political parties;

vi.       the role and functions of the Prosecutor's Office will change (particularly with regard to the exercise of a general control of legality), transforming this institution into a body which is in accordance with Council of Europe standards;

vii.       the responsibility for the prison administration, for the execution of judgments and for the registration of entry to and exit from the country will be transferred to the Ministry of Justice before the end of 1998;

viii.       the independence of the judiciary in conformity with Council of Europe standards will be secured, notably with regard to the appointment and tenure of judges; and the association of judges will be involved in the procedure for the appointment of judges;

ix.       the status of the legal profession will be protected by law and a professional bar association will be established;

x.       the Constitutional Court of Ukraine will be competent to decide on the compatibility of the acts of the legislative and executive authorities of the Autonomous Republic of Crimea with the constitution and laws of Ukraine;

xi.       a peaceful solution to the disputes existing among the orthodox churches will be facilitated while respecting the Church's independence vis-à-vis the state; a new non-discriminatory system of church registration and a legal solution for the restitution of church property will be introduced;

xii.       the state and progress of legislative reform will permit the signature and ratification, within the delays indicated, of the European conventions listed hereunder;

xiii.       policy towards ethnic minorities will be further developed on the basis of the Framework Convention for the Protection of National Minorities and according to the principles of Assembly Recommendation 1201 (1993) for an additional protocol to the European Convention on Human Rights on this question.

12.       The Parliamentary Assembly notes that Ukraine shares its interpretation of commitments entered into as spelt out in paragraph 11, and intends:

i.       to sign the European Convention on Human Rights at the moment of accession; to ratify the Convention and Protocols Nos. 1, 2, 4, 7 and 11 within a year; to recognise, pending the entry into force of Protocol No. 11, the right of individual application to the European Commission and the compulsory jurisdiction of the European Court (Articles 25 and 46 of the Convention);

ii.       to sign within one year and ratify within three years 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 with immediate effect from the day of accession to put into place a moratorium on executions;

iii.       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;

iv.       to sign and ratify within a year from the time of accession the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment;

v.       to ratify within a year from the time of accession the European Framework Convention for the Protection of National Minorities, and to conduct its policy towards minorities on the principles set forth in Assembly Recommendation 1201 (1993) and incorporate it into the legal and administrative system and practice of the country;

vi.       to sign and ratify, and meanwhile to apply the basic principles of other Council of Europe conventions notably those on extradition, on mutual assistance in criminal matters, on the transfer of sentenced persons, and on laundering, search, seizure and confiscation of proceeds from crime;

vii.       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;

viii.       to seek settlement of international disputes by peaceful means (an obligation incumbent upon all member states of the Council of Europe);

ix.       to sign and ratify within a year from the time of accession the General Agreement on Privileges and Immunities, and its additional protocol;

x.       to co-operate fully in the monitoring process for implementation of Assembly Order No. 508 (1995) on the honouring of obligations and commitments by member states of the Council of Europe, as well as in monitoring processes established by virtue of the Committee of Ministers' Declaration of 10 November 1994 (95th session).

Appendix II

PROGRAMME OF THE FACT-FINDING VISIT TO UKRAINE

(7-10 December 1997)

Sunday 7 December

Afternoon       Arrival of the delegation in Kyiv

5:00 pm       Meeting with Mr. L. Kossakivski, Mayor of Kyiv

Monday 8 December

9:00 am       Meeting with MM. O. Tereshtschuk and I. Shtanko,

      vice-Ministers of the Interior

10:00 am       Meeting with Mr. Y. Kuchnarev, Head of the presidential        administration

11:30 am       Meeting with representatives of the City Council of Kyiv (majority)

12:15 pm       Meeting with representatives of the City Council of Kyiv (opposition)

1:00 pm       Meeting with Mr. E. Heycker, Ambassador of Germany

3:00 pm       Meeting with Mrs S. Stanik, Minister of Justice

4:00 pm        Meeting with Mr O. Moroz, Speaker of the Parliament

5:00 pm       Meeting with the representatives of the Union of Lawyers

6:00 pm       Meeting with Mr S. Holovaty, former Minister of Justice

7:30 pm       Meeting with Mr A. Pavlitchenko, Director of the Council of Europe Information and Documentation Centre in Kyiv, and representatives of NGOs active in the field of human rights

Tuesday 9 December

8:00 am       Departure to Simferopol (Crimea)

10:30 am       Meeting with Mr E. Rubtsov, Vice-Chairman of the Supreme Council, and Mr A. Rakhansky, Vice-Chairman of the Ukrainian parliamentary delegation

12:15 pm       Meeting with Mr A. Safontsev, first Vice-Prime Minister of the Autonomous Republic of Crimea

3:00 pm       Meeting with Mr C. Tiutiunik, Chairman of the Supreme Court of Crimea, Mr V. Shuboï, Prosecutor of Crimea, and Mr G. Moskal, Representative of the Ukrainian Ministry of the Interior in Crimea

4:00 pm       Meeting with the Tartar community, represented by Mr R. Tshubarov, Vice-Chairman of the Supreme Council of Crimea, Mr I. Arifov, Vice-Chairman of the Council of Ministers of Crimea, and Mr H. Bekirov, Chairman of the group "Kurultaï" in the Supreme Council of Crimea

5:00 pm       Meeting with representatives of the media

7:00 pm       Departure to Kyiv

Wednesday 10 December

9:00 am       Meeting with MM. B. Ferents, first Deputy Prosecutor General of Ukraine, I. Poltavets, senior assistant of the Prosecutor General, and I. Drezhtshani, Head of the International Law Department of the Prosecutor General's Office

10:30 am       Meeting with Mr B. Hudyma, vice-Minister of Foreign Affairs

1:00 pm       Meeting with Mr B. Oliynyk, Chairman of the Ukrainian parliamentary        delegation with the Council of Europe, and other members of the delegation

afternoon       Departure of the delegation.

Appendix III

PROGRAMME OF THE FACT-FINDING VISIT TO UKRAINE

(15-18 September 1998)

Tuesday 15 September 1998 (Kyiv)

- Arrival of the delegation

4:00 pm       Meeting with Mr E. Gurvits, MP, former Mayor of Odessa

5.00 pm       Meeting with the Ambassadors of Greece, Denmark and Estonia

Wednesday 16 September 1998 (Kyiv)

8.15 am       Meeting with the Ukrainian parliamentary delegation to the Council of Europe

9.00 am       Meeting with Mr O. Tkachenko, Chairman of the

      Verkhovna Rada of Ukraine

10.00 am       Meeting with representatives of factions and political groups of the Verkhovna Rada

11.30 am       Meeting with Mr E. Kushnarev, Head of the Presidential administration

12.15 pm       Meeting with Mr V. Yalovy, Deputy Head of the Kyiv State Administration

2.15 pm       Meeting with Mrs S. Stanik, Minister of Justice

3.30 pm       Meeting with Mr V. Boiko, Chairman of the Supreme Court of Ukraine

4.45 pm       Meeting with Mr Y. Kravchenko, Minister of the Interior, and MM. I. Shtanko and O. Shtanko, Deputy Ministers

6.00 pm       Meeting with MM. S. Holovaty and Yu. Orobets, MPs

7.00 pm       Meeting with NGOs active in the field of human rights

Thursday 17 September 1998 (Odessa)

- Departure to Odessa

11.00 am       Meeting with Mr V. Piatov, first Deputy Mayor

1.30 pm       Meeting with Mr A. Prokopenko, Secretary to the municipal council, and Mrs Z. Skliaruk, Vice-Chair of the Odessa city electoral commission

2.15 pm       Meeting with representatives of national minorities and media

3.00 pm       Meeting with Mr L. Kapelyushny, former head of the Odessa city electoral commission and editor of "Slovo" newspaper

5.00 pm       Departure to Kyiv

7.00 pm       Meeting with Mr D. Tabashnik, MP, former Head of the Presidential administration

Friday 18 September 1998 (Kyiv)

7.30 am       Meeting with Mr L. Kossakivski, MP, former Mayor of Kyiv

9.00 am       Meeting with Mr S. Vinokurov, Deputy Prosecutor General

10.30 am       Meeting with Mr O. Shaly, first Deputy Minister for Foreign Affairs

11.45 am       Press conference.

Appendix IV

Chart of signatures and ratifications of conventions of the Council of Europe by Ukraine

Conventions of the Council of Europe

Date of signature

Date of ratification

Date of entry into force

European Convention on Information on Foreign Law and Additional Protocol to the European Convention on Information on Foreign Law

 

14.07.93

14.09.93

European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities

 

14.07.93

22.12.93

European Cultural Convention

 

24.02.94

13.06.94

European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders

 

22.09.95

29.12.95

European Convention on the Transfer of Proceedings in Criminal Matters

 

22.09.95

29.12.95

European Convention on Transfrontier Television

14.06.96

   

Partial Agreement on European Commission "for Democracy through Law"

 

Law of Ukraine on Accession on 22 November 1996

 

Open Partial Agreement on the prevention of, protection against, and organisation of relief in major natural and technological disasters

 

Edict of the President of Ukraine of 15 January 1997
No. 24/97

 

Convention on the Recognition of Qualifications concerning Higher Education in the European Region

11.04.97

   

Anti-doping Convention

02.07.98

   

European Convention on the Protection of the Archaeological Heritage (revised)

02.07.98

   

Convention on the Transfer of Sentenced Persons

 

22.09.95

01.01.96

Statute of the Council of Europe

 

31.10.95

09.11.95

Framework Convention for the Protection of National Minorities

15.09.95

09.12.97

01.05.98

European Convention on Human Rights

09.11.95

17.07.97

11.09.97

Protocol No. 2 to the European Convention on Human Rights

09.11.95

17.07.97

11.09.97

Protocol No. 11 to the European Convention on Human Rights

09.11.95

17.07.97

01.11.98

European Social Charter

02.05.96

   

European Charter for Regional or Minority Languages

02.05.96

   

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

02.05.96

24.01.97

01.09.97

General Agreement on Privileges and Immunities of the Council of Europe

 

01.10.96

06.11.96

Protocol to the General Agreement on Privileges and Immunities of the Council of Europe

 

01.10.96

06.11.96

European Charter on Local Self-Government

06.11.96

15.07.97

01.01.98

Protocol No. 1 to the European Convention on Human Rights

19.12.96

17.07.97

11.09.97

Protocol No. 4 to the European Convention on Human Rights

19.12.96

17.07.97

11.09.97

Protocol No. 7 to the European Convention on Human Rights

19.12.96

17.07.97

11.09.97

Protocol NO. 6 to the European Convention on Human Rights

05.05.97

   

European Convention on Extradition

29.05.97

16.01.98

09.06.98

Additional Protocol to the European Convention on Extradition

29.05.97

16.01.98

09.06.98

Second Additional Protocol to the European Convention on Extradition

29.05.97

16.01.98

09.06.98

European Convention on Mutual Assistance in Criminal Matters

29.05.97

16.01.98

09.06.96

Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters

29.05.97

16.01.98

09.06.98

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime

29.05.97

17.12.97

01.05.98

Additional Protocol to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

26.01.98

   

Second Additional Protocol to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

26.01.98

   

Appendix V

Comments by the « executive bodies » of Ukraine

Répresentation Permanente d'Ukraine

auprès du Conseil de l'Europe

Strasbourg 19 August 1998

Dear Mr Haller,

      I would like to attach herewith remarks by the executive bodies of Ukraine to the preliminary draft report of the Parliamentary Assembly of the Council of Europe concerning fulfilment of obligations undertaken by Ukraine upon accession to the Council of Europe.

      I hope that this document will be of certain assistance to Mrs Severinsen and
Mr Kelam in drafting a relevant report.

      Yours faithfully

Olexandre Kupchyshyn

Permanent Representative of Ukraine

to the Council of Europe

Mr Bruno Haller

Clerk

Parliamentary Assembly

Council of Europe

Strasbourg

Unofficial translation

Remarks by the executive bodies of Ukraine to the preliminary draft report of the Parliamentary Assembly of the Council of Europe concerning Ukraine's honouring its commitments undertaken during accession to the Council of Europe

Section II "Recent developments in the political, economic and social situation in Ukraine"

      —pa       ragraph No. 7:It

      It is necessary to supplement this paragraph by the information on the parliamentary and local elections which were held on 29 March 1998.

      —pa       ragraph No. 8:In

      In this paragraph it would be appropriate to reflect such an important achievement of Ukrainian foreign policy as conclusion of comprehensive agreement with all Ukraine's neighbouring countries and absence of territorial claims to Ukraine from the foreign countries.

      —pa       ragraph No. 9:On

      One could hardly understand the rapporteurs when they speak about a very high level of corruption in Ukraine without giving any criteria of their estimates.

      The legislative activity of the Verkhovna Rada of Ukraine is criticised without appropriate clarifications, and it is emphasised that "today's Ukrainian legislation is based more on the President's decrees than on laws".

      This statement does not reflect the real state of affairs. Parliament of Ukraine, after Ukraine's accession to the Council of Europe, adopted a number of important laws on urgent questions of state crafting, economy, human rights protection, and among them the Constitution of Ukraine. In view of the above there are no sufficient reasons to state that the Verkhovna Rada is inactive.

      In this context one should mention that the Ukrainian President's decrees are not issued instead of the laws, but they regulate questions related, according to the Constitution of Ukraine, to the President's competence proper.

Section IV "The legal and judicial systems

Item "A" "The legislative process"

1.       The new constitution

       paragraph No. 19:

      To supplement this paragraph by the sentence that the President of Ukraine under Article 102 of the Constitution of Ukraine is the head of state and is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens' rights and freedoms.

2.       Other laws

      —pa       ragraph No. 24:To

      To supplement the third position by the following sentence:

      "Draft Criminal Code has been prepared by the Cabinet of Ministers but not submitted to the Verkhovna Rada of Ukraine for consideration. This is explained by the fact that the new Law of Ukraine 'on Judiciary' has not been adopted yet".

Item "B" "The judicial system"

1.       The judicial reform

      —pa       ragraph No. 28:Re

      Requires elaboration since the paragraph states as if there is a contradiction between the provisions of Article 128 of the Constitution of Ukraine and Article 127 of the Constitution of Ukraine.

      Besides, draft report references to the uncertainty of the role the Qualification Commission of Judges for the appointment of the judges are unfounded since:

      —Ar       ticle 127 of the Constitution of Ukraine sets out the requirements for the appointment of a judge to office and also envisages that Ukraine's citizen may be recommended for the office of judge by the Qualification Commission of Judges;—

      —un       der Article 128 of the Constitution of Ukraine the first appointment of a professional judge to office for a five-year term is made by the President of Ukraine. All other judges, except the judges of the Constitutional Court of Ukraine, are elected by the Verkhovna Rada of Ukraine for permanent terms the procedure established by law. That is, the article sets out what authority namely may appoint the judges to office;—

      —ac       cording to Article 128 of the Constitution of Ukraine the Qualification Commission has the authorities to rendering recommendation concerning the appointment of the judges to office. Thus, we are talking about the body which recommends but not appoints the judges to office;—

      —th       e role of the Qualification Commission of Judges is determined by the Law of Ukraine "on Qualification Commissions, Qualification Attestation and Disciplinary Responsibility of the Judges of Ukraine" of 2 February 1994.—

      —pa       ragraph No. 29:It

      It seems necessary to revise this paragraph taking into account that:

      —ac       cording to Article 131 of the Constitution of Ukraine the High Council of Justice consists of twenty members;—

      —th       e Law of Ukraine on the High Council of Justice was adopted on 15 January 1998, and came into force on 19 February 1998.—

      —pa       ragraph No. 30:Th

      This paragraph raises the question of clarification of the role of qualification commissions of judges in the appointment of judges. The corresponding text should read as follows:

      "According to the law, qualification commissions of judges shall control whether candidates to the office of judge meet requirements contained in the Law of Ukraine "on the Status of Judges". Such commissions advice on the election (appointment) of judges and their dismissal".

      Besides, according to the Transitional Provisions of the constitution, the Supreme Court of Ukraine and the High Court of Arbitration of Ukraine continue to function according to the legislation in force, but not according to "the old system" as indicated in the text of the report.

      —pa       ragraph No. 31:Ac

      According to Article 38 of the Law of Ukraine "On the Constitutional Court of Ukraine" of 16 October 1996, the forms of addresses to the Constitutional Court of Ukraine are constitutional appeal and constitutional addresses. The law does not envisage such form of address to the Constitutional Court of Ukraine as "constitutional complaints".

      —pa       ragraph No. 33:Th

      This paragraph is set forth so, as if the Public Prosecutor's Office has to establish general control of legality which contradicts Opinion No. 190 (1995) (p. 11.IV). It is proposed to set out the mentioned paragraph in the following wording:

      "33.       During accession to the Council of Europe, Ukraine undertook to change the role and functions of the Prosecutor's Office (especially concerning the general control of legality) by transforming this institution into a body, corresponding to the principles of the Council of Europe. In order to honour this commitment Ukraine has already made very important steps in reforming the Prosecutor's Office. The status of the Prosecutor's Office has been changed by the new Constitution of Ukraine, and this body has not been entrusted with a task to exercise general control of legality.

      —pa       ragraph No. 35:Ta

      Taking into account that the terms of reforming the Prosecutor's Office have not been determined and the issue of investigation in the Prosecutor's Office bodies has not been considered more closely in Opinion No. 190 (1995), it is proposed to set out this paragraph in the following wording:

      "35.       Formation of the Prosecutor's Office on the principles of the Council of Europe in conformity with points 9 and 13 of Section XV of the 'Transitional Provisions of the Constitution of Ukraine is carried out gradually in tandem with the creation of necessary legal and organisation condition, personnel and logistical supply. Functions relating to authorising the entrance into the lodgement or other possession of a person, arresting correspondence, its extraction in post/telegraph offices and picking up information from communication channels have already been transferred from the authority of the Prosecutor's Office to competence of courts. Later the courts will also give sanctions for arresting, holding under arrest and detaining the suspects, as well as for carrying out inspection and search of the lodgement or another individual's possessions.

      With the creation of the supervisory bodies, such as the Ombudsman of the Verkhovna Rada of Ukraine on Human rights, the Auditing Chamber, State Tax Administration and others, the sphere of Prosecutor's Office overseeing law observance (general control of legality)" — is narrowing.

      —pa       ragraph No. 36:In

      In order to reflect most completely the situation of preparing the draft law on the Prosecutor's Office it is proposed to set it out in the following wording:

      "36.       In 1997 the General Prosecutor's Office prepared a draft law (new wording) of Ukraine 'on the Prosecutor's Office'. The draft law was twice discussed at meetings with Council of Europe experts in July 1997 and February 1998. Now it is being finalised with due account of remarks and proposals submitted by the CE experts, as well as in connection with necessity to co-ordinate its provisions with the draft Penal-Procedural Code, Penal-Executive Code, Judiciary Code and others".

Section V "Human rights and fundamental freedoms"

Item "B" "Freedom of the media"

      —pa       ragraph No. 47:Th

      The phrase "There are many new independent publications and electronic media ..." has to be set out in the following wording: "There are many new independent printed and electronic media ...".

      One cannot agree with the opinion, contained further on in this phrase: "... the state still owns most of the broadcast media, making some censorship likely", because the form of ownership does not mean the presence of censorship. So the Law of Ukraine "on Printed Media (the press) in Ukraine" of 1992 (Article 2, paragraphs 2, 3 and 4) provides for "Printed media are free. It is prohibited to create and finance the state bodies, institutions, organisations or posts for censorship of media.

      Requirement of prior co-ordination of the reports and materials, disseminated by printed media, as well as prohibition to spread reports and materials by officials is not permissible ...".

      The Law of Ukraine "on Television and Broadcasting" (Article 6) provides also that "Interference of state bodies and bodies of local and regional authority, and their officials ..., in creative activity of TV — or broadcasting organisations, and the censorship, as a control of the ideological content of transmissions, is prohibited ...".

      —pa       ragraph No. 48:"A

      "Another complaint relates to the latest amendments to the Law on Television, which prohibits the TV stations, created with the participation of foreign investors from informing about political developments during the election campaign. Objective journalism is therefore very problematic, which is to be deplored especially during the pre-election campaign."

      Such statement of the draft report is based on materials of the draft law "on introduction of changes into the Law of Ukraine on Television and Broadcasting", though in such case the language of the supplement to Part 5, Article 28, was also something different, that is: "It is prohibited for citizens of Ukraine and associations of citizens, officials and organisations to use foreign TV and broadcasting organisations or their subsidiaries and representations in Ukraine for conducting the pre-election campaign, and canvassing during preparing or conducting the referenda." (the draft of the Verkhovna Rada of
20 November 1997, No. 1442). However, the President of Ukraine vetoed this and a number of other provisions of the mentioned draft law. This veto was not overcome by the Verkhovna Rada during further consideration of the draft law on 5 March 1998. The said provision was drawn by Verkhovna Rada and the law that was adopted did not contained, this provision.

      In view of the above, it is recommended the rapporteurs of the Council of Europe Parliamentary Assembly to exclude the above example from the report as one of the statements concerning Ukraine's violation of the right of TV and broadcasting companies having foreign investments. In addition, during the elections to the Verkhovna Rada of Ukraine (March 1998) TV and broadcasting companies having foreign investments (Studio "1+1"), "Inter", ICTV, etc.) took an active part in highlighting the election events.

      —pa       ragraph No. 48:Th

      The situation described in this paragraph concerns only the state address assistance, regulated by the Law of Ukraine "on State Assistance of Media and Social Protection of Journalists" (Article 6), according to which some special extraordinary cases and reasons for giving support to individual media experiencing economic difficulties, are provided for.

      Rules of state support, defined by the same law, are applied to all media, acting in accordance with the Constitution of Ukraine, no matter what are their ideological and political affiliations and forms of property.

      The regulations of this law do not apply to the following forms of mass media:

      —ad       vertising;—

      —er       otic;—

      —fo       unded with participation of legal or natural persons, whose activity do not include the production and supply of paper, printing equipment and technical means of broadcasting;—

      —fo       unded in Ukraine by international organisations with participation of juridical or natural persons from other states and by persons without citizenship;—

      —wh       ose materials from foreign media account for more than 50% of total amount of production.It

      It is necessary also to replace the word combination "This climate of violence", which is not exactly correct (for example, with the word combination "Such state of affairs").

      Also, why journalistic self-censorship should be absent?

      "Self-censorship" is absolutely normal and necessary phenomenon, which is determined not only be legal norms, but also by moral standards.

Item "C" "Freedom of conscience and of worship"

      —pa       ragraph No. 49:In

      Information contained in this paragraph of the statement, inadequately reflects current situation in Ukraine in this sphere (outdated data were taken as its basis).

      According to the President of Ukraine's assignment; Opinion of the Council of Europe Parliamentary Assembly No. 190 (1995) and proposals of the State Inter-agency Commission on issues of introduction of the Council of Europe's regulations and standards into Ukraine's legislation, the State Committee of Ukraine on Religious Affairs has prepared and sent two drafts laws to the Cabinet of Ministers of Ukraine: draft law of Ukraine on introduction of the changes into Article 14 of the Law of Ukraine "On Freedom of Conscience and Religious Organisations" (submitted for consideration by the Verkhovna Rada on 22 May 1997) and the draft law of Ukraine on introduction of the changes and additions to Ukraine Law "on Freedom of Conscience and Religious Organisations" (submitted to the Verkhovna Rada of Ukraine on 26 January 1998).

      The first of the above draft laws provides for a new procedure of the registration of the statutes of religious organisations that prevents the possibility of discrimination of the latter, the second one — an improved mechanism of the transfer of the former buildings of worship and religious property to religious organisations. These issues are in the follow-up of the recommendations of the Council of Europe which are in Opinion No. 190 (1995).

      Today, both draft laws are being considered in the Verkhovna Rada of Ukraine.

      In 1996 the State Committee of Ukraine on Religious Matters, the Government of the Autonomous Republic of Crimea, Oblast, town state administrations registered 1 113 statutes of religious organisations, in 1997 — 1 469. In this case only few religious organisations were refused registration on motivated reasons. The registration of the statutes and legal advice assistance to the founders of the religious organisations are given free of charge in contrast to the registration of the public organisations' statutes. The system of working out the statutes which is today in force in Ukraine does not envisage the differences in the legal status of the religious organisations of the different confessions, does not differentiate them into traditional and non-traditional, does not establish the so-called "test periods" for the religious communities which desire to receive the status of legal persons. The problem of legalisation of the religious organisations is absent in Ukraine since the state recognises them as legal by the mere fact of their establishment. In this case, under the legislation in force, the state control is realised not only of the religious organisations as is stated in the draft report, but of the observation of the law on freedom of conscience and religious organisations.

      The above is real evidence of relations and does not give any grounds to qualify as discriminatory the currently existing system of registering the statutes of the religious organisations in Ukraine.

      The opinion is shared by the heads of ten of the largest churches and religious organisations in Ukraine which represent over 90% of the network of the religious organisations in the country. They consider that the present system of registration is in full conformity with the requirements of the democratic society, takes into consideration specific features of the religious organisations and should not be altered or unified with the procedure which was adopted for political parties and public organisations since the religious organisations are quite different from the latter. On this occasion, the All Ukrainian Council of Churches and Religious Organisations at that time sent letters to the Council of Europe and the President of Ukraine.

      —pa       ragraph No. 50:Th

      The legal basis for legal solution of the issue on the return of the Church property is the Constitution of Ukraine and Ukraine's Law "on Freedom of Conscience and Religious Organisations". The above draft law on introduction of amendments and modifications to Ukraine's Law on Freedom of Conscience and Religious Organisations, is in fact aimed at improving the legal mechanism of reinstating the religious organisations in the possession of former buildings of worship, return (hand over) of religious property.

      At present, 19 000 religious organisations which have the status of legal entity in Ukraine are using 12 700 buildings of worship. In the execution of the Decree and Instruction of the President of Ukraine as to the return (hand over) of the buildings of worship and property to the religious organisations in 1992-97, believers received approximately
3 400 temples and prayer houses including some 400 in 1997. In 1992-97 on the lot of land which had been allocated by the authorities to construct the buildings of worship,
1 920 temples and prayer houses were built, almost half of them (981) were constructed by the believers of the three orthodox churches of Ukraine. At present 1 890 buildings of worship are at the stage of construction.

      At the same time, there are 169 former cult buildings which at present do not serve their purpose (museums, picture galleries, houses of culture, etc.) and the religious organisations demand their return.

      Considering as necessary the transfer of these worship buildings and property alienated from the church at that time and on the initiative of the State Committee of Ukraine on Religion , the Cabinet of Ministers of Ukraine adopted the decision (instruction of the Cabinet of Ministers of Ukraine of 7 May 1998) "the legislation of Ukraine provides for step-by-step return of the cult buildings which are not used or do not serve their purpose" to the religious organisations.

      The Order of the State Property Fund of Ukraine of 29 May 1996 prohibits the privatisation of cult structures and non-cult buildings which belonged to religious organisations and are subject to return to the latter.

      On the whole, the solution of the issue concerning the return of the former church property is related rather with weakness of the legal basis for such work or with an absence of co-ordination between the state and local authorities rather than with financial and economic difficulties of the present stage of the country's development as well as specific features of establishing the network of religious organisations when the rates at which new religious organisations form greatly exceed the rates at which they reproduce or create their material resources.

      The return of the property to churches should take place on conditions of preserving public accord, interconfessional stability and with consideration of social interests of the overwhelming majority of the population of this or other community. Attempts of some religious organisations in spite of the law to independently realise the redistribution of sacred property for their benefit were negatively evaluated by representatives of Christian confessions in Ukraine who on 21 July 1997 signed the memorandum on non-acceptance of forcible actions in interconfessional interrelations.

      —pa       ragraph No. 51:Th

      The statement that in the issue of taxation "religious associations are submitted to the same system as commercial associations" has nothing to do with reality.

      In spite of the crisis situation in economy the state gives some privileges to religious organisations in the issue of taxation. Financial and property incomes received in the form of irrevocable financial assistance or voluntary donations are not subjected to taxation; any other incomes from rendering cult services and passive income.

      Since registered religious organisations are not engaged in business activities, they are exempt from land tax. Since 1 November 1997, the incomes of the religious organisations received from rendering of cult services and sale of things of cult purpose have been VAT exempted. Other privileges for the religious organisations as non-profit organisations also exist.

Item "D" "Minority and citizenship"

      —pa       ragraph No. 56:On

      On 15 September 1995 Ukraine signed the Framework Convention for the Protection of National Minorities.

      On 9 December 1997 the Verkhovna Rada of Ukraine approved Ukraine's Law "on Ratification of the Framework Convention for the Protection of National Minorities".

      On 26 January 1998 the instrument on ratification by Ukraine of the Framework Convention for the Protection of National Minorities was transferred by the Minister of Justice of Ukraine S.R. Stanik to be deposited at the Office of the Secretary General of the Council of Europe.

      On 1 May 1998 the convention came into force for Ukraine.

      —pa       ragraph No. 57:By

      By Decree of the President of Ukraine of 8 May 1998 No. 453/98 Mykola Rudko was appointed head of the State Committee of Ukraine on Nationalities and Migration.

      As to the European Charter for Regional and Minority Languages (hereinafter referred to as the Charter), it should be noted that standards which were defined in it, by and large, are introduced into Ukrainian legislation. In particular, they are incorporated in Ukraine's Laws "on National Minorities in Ukraine", "on Languages in Ukraine", "on Education", and are envisaged in civil and criminal proceedings. The majority of the provisions of the Charter have been already realised in our state within the framework of its policy in the sphere of international relations. Separate provisions of the Charter which were previously absent in the legislation in force, were envisaged in the draft laws of Ukraine "on development and application of languages in Ukraine" and "on introduction of modifications and amendments to Ukraine's Law on National Minorities in Ukraine" which were transferred to be approved by the Verkhovna Rada of Ukraine.

      The above Charter in 1996 was discussed by a number of ministries, other central bodies of the executive power, in particular, by the State Committee of Ukraine on Nationalities and Migration, the Ministry of Foreign Affairs, Ministry of Justice and Ministry of Information and has been recommended for ratification.

      In view of the impossibility to provide fulfilment of the obligations which ensue from the Charter, concerning more than 100 ethnic groups which reside in the territory of Ukraine and which under legislation in force may be identified as national minorities and taking into account the right of each country to determine the languages in regards to which this country is obliged to apply the Charter's provisions (p. 1, Article 3 of the Charter), the decision was taken to temporarily limit the number of such languages.

      The Charter's text contains principles of such limitation, which interprets the languages of national minorities as such that, first, "traditionally are used within the limits of a certain territory of the state", and differ from the official language and are not the languages of the migrants (p. "a-1", Article 1 of the Charter), and second, "are the means of association of a certain number of persons which justifies the realisation of different protective and stimulating measures envisaged in the Charter" (p. "b-1", Article 1 of the Charter).

      Proceeding from the above criteria, the languages of ten national minorities were determined and to them the Charter's provisions will be applied, namely: Bulgarians, Greeks, Gagauses, Jews, Crimean Tatars, Moldavians, Poles, Russians, Romanians and Hungarians.

      In this case, we had in mind that inclusion into the list of the languages of other national minorities will be realised, as is envisaged in p. 2, Article 3 of the Charter, in the years that follow, based both on the needs of national minorities and taking into consideration required objective preconditions (sufficient strength and compact settlement of the relevant national minorities, availability of the required number of specialists with knowledge of their languages, etc.).

      However, since the time of Ukraine's draft law "on ratification of the European Charter for Regional or Minority Languages" was prepared, a number of circumstances has emerged, which expedite the inclusion to the list indicated in the draft of the following languages: German, Belorussian and that of Slovakian national minority of Ukraine.

      These circumstances are as follows. Lately, the strength of the German minority has essentially increased (as a result of migration processes and change of ethnic self-identity): from 37 800 persons to about 100 000 persons (according to unofficial data). At the same time, the compact settlement of the ethnic Germans increased. Germany renders significant assistance not only in housing construction but also in construction of social and cultural infrastructure of the settlements in which ethnic Germans reside, including schools.

      Recently the organisational structure and political activity of the German minority has noticeably increased, in particular, the number of the appeals from the leaders of German public associations to ensure their language needs have increased.

      There is no doubt about the sufficient number of specialists of the German language which has been widely studied as a foreign language in the system of general educational and higher schools.

      Belorussian and Slovak minorities are characterised by processes of structurisation and self-organisation even greater although such tendencies are developing somewhat slower compared with Germans of Ukraine. However, Belorussians as well as Slovaks are autochthonous minorities in our state. And it is to the autochthons, that according to the Council of Europe recommendations, protection measures have to be applied in the first place, in particular, in the sphere of development and use of their languages.

      The mentioned objectives provide grounds for including the Belorussian, German and Slovak languages into the first priority list of languages of national minorities, to which the above issues of the Charter after its ratification will be applied. Thus at the first stage after entering into force of the Charter, protection measures concerning thirteen languages of the national minorities, including languages of all autochthonous minorities of Ukraine, will be implemented.

      The draft law of Ukraine on ratification of the European Charter for Regional or Minority Languages was submitted by the President of Ukraine for adoption to the Verkhovna Rada of Ukraine on 27 February 1997, in connection with honouring by Ukraine of its commitments given to the Council of Europe.

      —pa       ragraph No. 58:Ac

      According to the data of the 1998 census more than 100 national minorities were registered in Ukraine of which nine exceed more than 100 000 persons that account for over 22% of the country's population. 1.6 million Russians live in the Autonomous Republic of Crimea, they represent over 60% of the autonomy's population; Ukrainians — 0.6 million (over 20%). Today more than 250 000 of Crimean Tartars returned to Crimea from places of deportation, nearly the same number live in exile.

      —pa       ragraph No. 59:Ex

      Experience amassed from practical application of the Law of Ukraine on National Minorities in Ukraine, signed by the President of Ukraine on 25 July 1992, ascertained and assured the possibility for improving some of its articles and provisions by inserting relevant modifications and amendments to them.

      The State Committee of Ukraine on Nationalities and Migrations prepared the draft of modifications and amendments to the Law of Ukraine on National Minorities in Ukraine, which incorporated the main provisions and principles of relevant international agreements and acts. The main aim of this work is to assure equal relations and harmonious interaction of representatives of different nationalities in Ukraine, maintaining the atmosphere of tolerance, confidence and respect in relations between them, preventing the inter-ethnic conflicts, protection of the rights of all nationals of Ukraine, which belong to national minorities.

      On 17 December 1996 the above draft law was submitted by the Cabinet of Ministers of Ukraine for the approval by the Verkhovna Rada of Ukraine.

      To achieve the balance of the interests, harmony and tolerance in inter-ethnic relations, the State Committee of Ukraine on Nationalities and Migrations has elaborated the draft of the concept of state ethnic policy of Ukraine. According to the provisions of the project of this concept, the ethnic policy is considered as a system of state measures, directed at the satisfaction of the needs of the representatives of the different ethnoses related to specifics of their ethnic and cultural development, settlements of inter-ethnic conflicts, elimination of factors of inter-ethnic tension and inter-ethnic conflicts, ensuring the participation in state-crafting processes of different structural ethno-national components of the Ukrainian society.

      On the 4 April 1997, the draft concept on state ethnic policy of Ukraine was submitted by the Cabinet of the Ministers of Ukraine for endorsement by the Verkhovna Rada of Ukraine.

      —pa       ragraph No. 60:Ac

      According to the Law of Ukraine on National Minorities in Ukraine (Article 16) in force with the state budge of Ukraine provides for special appropriations for the development of national minorities.

      A new wording of the above law envisages special appropriations for the development of national minorities in the state budget of Ukraine, the budget of the ARC and in local budges, whose fulfilment will be carried out according to the legislation in force.

      —pa       ragraph No. 61:Th

      This paragraph requires elaboration taking into consideration the following information.

      According to Article 24 of the Constitution of Ukraine, the citizens have equal constitutional rights and freedoms and are equal before the law. There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics.

      Article 71 of the Constitution of Ukraine sets out that elections to bodies of state power and bodies of local self-government are free and are held on the basis of universal, equal and direct suffrage, by secret ballot.

      In Ukraine's laws "on Election of People's Deputies of Ukraine", "on the Verkhovna Rada of the Autonomous Republic of Crimea", "on Local Self-government in Ukraine", "on Elections of the Deputies of Local Councils and Village, Settlement and City Heads" the above-mentioned constitutional provisions are realised in full extent.

      According to the agreement on the issues related to deportees, national minorities and peoples, signed by Ukraine on 9 October 1992 in Bishkek and ratified by the Verkhovna Rada of Ukraine on 17 December 1993, the Sides shall provide for the deportees who voluntarily return to the place of their residence at the moment of deportation, political, economic and social rights which are equal with permanent residence citizens.

      Taking into account the above-stated there are no legal grounds to establish fixed quotas and other advantages, guarantees for the Crimean Tartars in forming the Verkhovna Rada of Ukraine, Verkhovna Rada of the Autonomous Republic of Crimea, bodies of local self-government. It was evidenced by the results of the elections held on 29 March 1998.

      Thus, by the results of the elections to the Verkhovna Rada of Ukraine and local councils in 1998 the deputies from the national minorities were elected on the whole in proportion to their share in the composition of the whole population of the relevant district. Thus, in Hertsaivsky District Chernivtsi Oblast, up to 96% of the population are Romanians. Fifteen Romanians and five Moldavians were elected to Chernivtsi Oblast Council.

      Ivan Popesku, Romanian nationality, was once again elected on Novoselytsky electoral district Chernivtsi Oblast.

      Five Hungarians, one German, one Jew, one Slovak and one Russian were elected as deputies of Zakarpattia Oblast council from the number of national minorities.

      On Beregivsky electoral district with compact residence of Hungarian population, Miklosh Kovach, the chairman of the Association of the Hungarian Culture, was elected to the Verkhovna Rada of Ukraine.

      Mustafa Djemilev, the Speaker of the Majlis of Crimean Tatars and Deputy Speaker Refat Chubarov were elected to the Verkhovna Rada of Ukraine. One representative of Crimean Tatars — L. Bazazieyv was elected to the Crimean Parliament.

      Representation of national minorities in local councils in the places of their compact residence on the whole is in conformity with specific weight of these minorities in the composition of the population of the relevant oblasts and districts (with the exception of the representation of Crimean Tatars in the Verkhovna Rada of the Autonomous Republic of Crimea).

      —pa       ragraph No. 62:Pr

      Procedure of acquiring by the deported Crimean Tartars of the citizenship of Ukraine is established by the Law of Ukraine on Introduction of the Changes to the Law of Ukraine on the Citizenship. In accordance with this law, persons which were deported from the Ukrainian territory, as well as their descendants can acquire Ukraine's citizenship using a simplified procedure: for them the issue on habitual residence in the territory of Ukraine over the last five years and having necessary knowledge of the Ukrainian language is not obligatory.

      Practice of legislation on citizenship indicates that those from the deported, who arrived at Ukraine from the Russian Federation, the Republic of Tadjikistan and the Republic of Kirghizstan do not have any barriers in acquiring Ukrainian citizenship. As individuals without citizenship, at any time, by demonstrating respective desire, those Crimean Tartars who arrived in Ukraine from the Republic of Uzbekistan in the period from
13 November 1991 to 28 March 1992, that is, before the entering into force of the Law of the Republic of Uzbekistan on the Citizenship of the Republic of Uzbekistan can acquire Uzbekistan citizenship. This category of Crimean Tartars, which comprise by different estimates, from 13 000 to 20 000 at any time can receive Ukrainian citizenship. Relevant state services of Ukraine technologically are completely ready for this process.

      Difficulties on acquiring Ukrainian citizenship concern, first of all, those, nearly
65 000 people, from the number of deported Crimean Tartars, who arrived at Ukraine from the Republic of Uzbekistan already after the adoption of its Law on Citizenship. This law does not provide for any automatic loss of Uzbek citizenship in the case of voluntary acquisition of foreign citizenship, and an individual is considered to be a national of the Republic of Uzbekistan until authorities of this state make relevant decisions. In accordance with Ukrainian legislation, to acquire Ukrainian citizenship these individuals have to present a document on the absence or cessation of the other state citizenship. Today the paperwork on certificate on cessation of citizenship of the Republic of Uzbekistan takes nearly six months and costs US$ 100. In addition, during this process it is necessary to make several trips to Kyiv to the Embassy of the Republic of Uzbekistan to Ukraine. All this to a great extent, complicated the acquisition of the Ukrainian citizenship by some of Crimean Tartars, and, in particular, made impossible their participation in the 1998 election, to Ukraine's Verkhovna Rada and to local councils.

      Settlement of the question on acquiring the citizenship requires that Crimean Tartars will express their desire to acquire Ukrainian citizenship. Accordingly, those of the deported Crimean Tartars who remain citizens of the Republic of Uzbekistan have to receive residence permits and submit the application-guestionary for acquiring the Ukrainian citizenship and notarially certified declaration on refusal of the citizenship of the Republic of Uzbekistan. Now the collection of applications from the relevant category of Crimean Tartars population has begun. According to the citizen's will, the lists will be made, which will become a basis for the completion of negotiation process with the Republic of Uzbekistan concerning this matter.

      Certain provisions of this paragraph require greater detailisation concerning what restrictions for entering the university and crossing the border (financial, social, legislative, etc.) are meant in the sentence. In the suggested version they can be accepted as such that indicate cases of restriction of rights for free movements and education (Articles 26, 33 and 53 of the Constitution of Ukraine) guaranteed to all individuals who on legal grounds stay in the territory of Ukraine.

      In addition, the provisions in brackets of the given version do not have any connection of substance with the preceding one and cannot be considered as such which provide for the existence of a border between the ARC and other territory of Ukraine.

      —pa       ragraph No. 63:Ar

      Article 15 of the draft constitution of the ARC is not approved by the Verkhovna Rada of Ukraine since its contents contradict the Constitution of Ukraine.

      —pa       ragraph No. 64:Ac

      According to the data of the Ministry of Education of Ukraine for the 1997-98 school year, only 212 557 general educational and training institutions function in the state. Among them, 2 747 are in the Russian language, 107 are in the Romanian language, 65 are in the Hungarian language, 6 are in the Crimean Tartar language, 5 are in the Jewish language, 3 are in the Polish language, 2 are in the Moldavian language and 2 318 mixed schools teach in two languages.

      —pa       ragraph No. 66:In

      In 1997 the annual amount of broadcasting time in the languages of national minorities of Ukraine constituted: television — 543.4 hours (specifically, the Romanian language — 130, the Crimean Tartar language – 100, the Hungarian language — 53, the German language — 32, the Armenian language — 30, the Bulgarian language — 29 and so on); radio — 1 205.4 hours (specifically, the Romanian language — 340, the Hungarian language — 324, the Crimean Tartar language — 234, the Armenian language — 82, the Greek language — 40, the Gagaus language — 36, the Bulgarian language — 36 and son on.

      Today, 987 newspapers are being published in the languages of the minorities, six of them — as the additions to the newspaper of the Verkhovna Rada of Ukraine "Holy Ukrainy" ("Voice of Ukraine").

Item "E" "The language issue"

      —pa       ragraph No. 67:It

      It seems reasonably to add this paragraph with information that according to
Article 10 of the Constitution of Ukraine in Ukraine, the free development, use and protection of Russian, and other languages of national minorities of Ukraine, is guaranteed. The Law "on Languages in the Ukrainian RSR" in force, determines the procedure of use of the languages of national minorities in work of state bodies, public associations as well as enterprise, institutions, organisations disposed in the places of residence of the citizens from the number of national minorities.

      The draft law "on the development and use of languages in Ukraine" has been worked out according to the assignment of the President of Ukraine of 5 December 1996. The number of ministers and other central executive bodies worked on it, this draft passed professional examination, was discussed and approved by the Council on Language Issues Policy under the President of Ukraine.

      New political realities of Ukraine, as a sovereign state, were reflected in the draft. It is based on relevant provisions of the Constitution of Ukraine, its content corresponds to other legislative acts and requirements of international acts.

      The wording in the report that the draft "seems to be characterised by a strong tendency towards Ukrainisation" — does not adequately reflect the situation.

      The draft law of Ukraine on the development and use of the language in Ukraine is directed at increasing the sphere of using the Ukrainian language as a state language (and as a language of title nation) taking into account that the system of intellectual, cultural and informational dependence of Ukraine on the central institutions of the Russian empire and then on the totalitarian system of the USSR was formed over a long historical period, and the Ukrainian language was being replaced by the Russian language and very often was forbidden.

      It corresponds to paragraph 1 of The Hague recommendations on the Rights of National Minorities to Education, which have to integrate into the wide national society by acquiring command of the state language. Only through this, they will have an opportunity to fully participate in the Ukraine's social life. It should be noted that the representatives of all national minorities of Ukraine during this period were subjected to genocide and forcible Russification and owing to it we lost knowledge of the native language.

      The statement on obligatory use of the Ukrainian language during cultural and sports events is not accurate. It is written in the draft (Article 20 "Language in the field of culture and sport"): "Events held by national minorities and the speeches of artists, announcements and accompaniments of these events can be carried out in the languages of national minorities".

      —pa       ragraph No. 69:As

      As for the ARC, it is a constituent part of Ukraine and according to the Constitution of Ukraine (Article 92), the pattern of using languages is determined by the laws of Ukraine. But today, according to the provisions of the European Charter for Regional or Minority Languages, it is the Ukrainian language, which needs protection in the ARC (more than
600 000 Ukrainians live in the ARC).

      The adoption of the Law of Ukraine on the Development and Use of Languages in Ukraine has to free the language issue from problems and tension.

Item "F" "The death penalty"

      —pa       ragraph No. 73:To

      To withdraw the statement that "At first it seemed that a moratorium on executions had been decided by Ukrainian authorities after the Assembly's stern warning" since the introduction of a real moratorium on death penalty and the signing of Protocol No. 6 of the European Convention on Human Rights was implemented within the framework of honouring commitments by Ukraine, when joining the Council of Europe.

      In addition, the paragraph should be supplemented by the following information: starting from 29 November 1996, the President of Ukraine did not decline any petition for clemency for persons, convicted to capital punishment by the courts of Ukraine and any death penalty was not carried out after this date. After 11 March 1997 any death penalty was not carried out in Ukraine.

      The signing of Protocol No. 6 to the European Convention on Human Rights is considered by Ukraine in the context of Article 18 of the Vienna Convention on the Rights of International Treaties (1960), that is as such that obliges our state to abstain from actions, which would deprive the treaty of its subject and goal. After this date any death penalty was not carried out in Ukraine.

      The above means that actual introduction of moratorium on this type of punishment in Ukraine. On 9 October 1997 the President of Ukraine, L. Kuchma submitted for consideration by the Verkhovna Rada of Ukraine the draft law on ratification by Ukraine of Protocol No. 6 to the European Convention on Human Rights.

      The President of Ukraine, L. Kuchma informed the President of the Council of Europe Parliamentary Assembly, L. Fischer (personally at the conference of the Second Summit and in written form in December 1997) on Ukraine's position on this problem and persuaded that in the future Ukraine will consistently observe the moratorium on death penalty.

      —pa       ragraphs No. 75 and No. 76:To

      To combine these paragraphs into one and give it the following language, which is based on the more recent information:

      "It is necessary to ascertain with satisfaction, that to fulfil the assignment of the Prime Minister of Ukraine of 14 February 1998, the Ministry of Justice of Ukraine declassified information on execution of capital punishments — death penalty, exactly, on 11 March 1998 the Decree of the State Committee of Ukraine on State Secrets and Technical Protection of Information was registered, which introduced modifications into the list of data which constitute state secrets.

      In April 1998 the Minister of Justice of Ukraine, S. Stanik, sent a letter to the President of the Council of Europe Parliamentary Assembly, L. Fischer, which contained statistic data on persons, who had been sentenced to capital punishment — death penalty, these data being valid, starting from the moment of Ukraine's joining the Council of Europe and data concerning persons, who were executed during this period.

      We suggest that this paragraph follows paragraph 78.

      —pa       ragraph No. 78:Th

      This paragraph should be reviewed, with the account of results of the first part of the session of the Council of Europe Parliamentary Assembly (26-30 January 1998) at which the credentials of the Ukrainian parliamentary delegation in the Assembly were ratified and Resolution 1145 (1998) was adopted.

Item "G" "The penitentiary system"

      —pa       ragraphs No. 80 and No. 81:Re

      Require additions and appropriate changes since on 22 April 1998 the Decree of the President of Ukraine "on Establishment of the State Department of Ukraine on Penalty Execution" was issued, which envisaged that the Department is formed as a central executive body of Ukraine, that corresponds to the recommendations of the Council of Europe (p. 5.15 of the Council of Europe report of "Estimation of the Penitentiary System of Ukraine".

      At the present stage, relevant draft law and other legislative instruments are elaborating, which should regulate the department activity and determine the mechanism for separating it from the Ministry of Interior of Ukraine, since at the present stage it is temporarily subordinated to the Ministry of Interior of Ukraine.

      —pa       ragraph No. 82:It

      It is necessary to take into account the fact that in June 1997 the report of the Council of Europe "Estimation of the Penitentiary System of Ukraine" was thoroughly examined and discussed with participation of the experts of the Council of Europe and the leadership of Ukraine's system in charge of penal and punishment affairs. The plan of measures of Ukraine's Ministry of Interior on the fulfilment of recommendations, stated in this report, was worked out and is being successively realised.

      The steering committee on reforming the penitentiary system of Ukraine was created. Its two sessions were held in Kyiv (June 1997) and in Strasbourg (January 1998).

      According to the above recommendations, with the experts of the Council of Europe, five joint projects on priority directions of reforming penal and executive system of Ukraine, namely: organisational structure, selection and training staff, classification and placing of convicted persons, organisation of carrying out long-term punishment and related prisons, whose realisation has been begun, were determined.

Section VI "Other issues"

Item "A" "Local self-government"

      —pa       ragraph No. 88:Th

      There are no appeal courts in Ukraine.

      —pa       ragraphs No. 91 and No. 92:Th

      These paragraphs require elaboration taking into account the following information.

      The Ukrainian state recognises and guarantees local self-government, since it considers it as one of the foundations of the democratic system in the country.

      Principles of the local self-government and basic grounds of its execution are stated in the Constitution of Ukraine, the Laws of Ukraine "on Local Self-government in Ukraine", "on the Election of Deputies to the Local Councils and Village, Settlement, City Heads".

      In the development of these documents the draft laws of Ukraine "on administrative and territorial systems of Ukraine", "on communal property in Ukraine", "on local taxes and collections in Ukraine" were elaborated.

      The development of process of local self-government is promoted by the Decrees of the President of Ukraine concerning the activity of the Ukrainian delegation in the CLRAE, the Fund of Promoting Development of Local Self-government in Ukraine, the Co-ordination Council on Local Self-government under the President of Ukraine, the Ukrainian-Swedish experiment on the development of local self-government in the town of Irpen Kyiv Oblast.

      On this legal basis, 12 063 representative bodies of local self-government act in Ukraine today. Nearly 100 000 of municipal officials work in the executive bodies of councils. There are no state administrations in the villages, settlements, towns, except Kyiv and Sevastopol, and the bodies of local self-government, exclusively, execute the power over these settlements.

      At the regional level (oblast, region, district in the city), interests of the local self-government are represented by 24 oblast, 388 regional and 116 city district councils.

      State administrations do not interfere into the activity of bodies of local self-government, and only supervise the observance of the legality, constitutional principles and execution by these bodies of separate authorities of executive bodies, that are given to them by law and which they perform at the expense of the state budget costs. In particular, they constitute: the registration of civil state acts, population registration, military registration, granting the state social assistance, privileges, etc.

      The important moment of self-government in Ukraine became the associations of bodies of local self-government, established nearly in all oblasts, as well as over twenty general Ukrainian unions, the most influential of which, is the Association of the Cities of Ukraine, that unites nearly 220 cities.

      The elections held in March 1998 have become the most important recent event that will have a permanent influence on the course of matters in the local self-government in Ukraine for the nearest four years.

      Within the election process two mutually complement tendencies united: heredity and, simultaneously, renovation of the personnel of the bodies of local self-government.

      Ukraine, for the second time during its six year independent existence, demonstrated adherence to democratic standards within the process of power change. According to the recognition of the majority of observers, including from the Council of Europe, the elections were held freely.

      The results of the election in some districts became the object for court examinations. This is the next step to the civilised society, in which disputes are solved within the framework of the law, but not with the help of violence, terror, violation of the inalienable human rights and freedoms.

      As to the establishment of local self-government in the cities of Kyiv and Sevastopol, the Constitution of Ukraine set out the definition of peculiarities of local self-government in these cities by separate laws. Concerning Sevastopol, unfortunately, the Verkhovna Rada of Ukraine has not started to consider the relevant draft law. The Law "on the Capital of Ukraine — the Hero city of Kyiv", adopted by the Verkhovna Rada of Ukraine, in the opinion of the President of Ukraine, does not correspond to the constitution in a number of provisions of the organisation and co-ordination of the executive power system and local self-government.

      Real self-government exists in Kyiv and is represented by the city, district councils and by numerous bodies of self-organisation of the city population.

      At present in Ukraine, the processes aimed at the establishment of local self-government, development of the mass civil and business initiative of the population are under way. It takes place on the basis of separation powers of local executive bodies and the local self-government.

      L. Kuchma, the President of Ukraine started the implementation of the municipal reform in Ukraine, which is related to the interests of the residents of over 440 towns,
900 settlements and nearly 29 000 villages. Elaboration of the programme on the state support to the local self-government is coming to an end.

      Reforms in Ukraine are conducted taking into account the realities based on the existing scientific potential, taking into consideration the European experience and demands of the European Charter on Local Self-Government.

Item "B" "Crimea"

      —pa       ragraph No. 97:Re

      Requires elaboration taking into account the following information.

      On 10 February 1998, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "on the Verkhovna Rada of the Autonomous Republic of Crimea", which determined the authorities, the order of organisation and activity of the Verkhovna Rada of the Autonomous Republic of Crimea. The Law of Ukraine "on Elections of Deputies to the Verkhovna Rada of the Autonomous Republic of Crimea", of 12 February 1998, determined the procedure of conducting elections of the deputies to the Verkhovna Rada of the Autonomous Republic of Crimea. According to this law the elections to Verkhovna Rada of the Autonomous Republic of Crimea held on 29 March 1998.

APPENDIX III and Section III "Signature and ratification of Council of Europe conventions"

      Information concerning the signature and ratification by Ukraine of Council of Europe conventions (as of July 1998) is enclosed.

      Taking into account this information and considering that, for today, Ukraine signed all conventions, foreseen by Opinion No. 190 (1995) and ratified the majority of them, except the European Charter for Regional or Minority Languages and Protocol No. 6 to the European Convention on Human Rights (draft laws on their ratification are elaborating in the Verkhovna Rada of Ukraine), Appendix III and Section III "Signature and ratification of Council of Europe conventions" require essential amendments.

Appendix VI

Letter from Mrs Stanik of 31 March 1998 concerning death penalty

Unofficial translation

Kyiv, 31 March 1998

Your Excellency!

      Let me express to you my respect and in response to your letter of 10 February 1998 concerning information on persons sentenced to capital punishment - death penalty inform you about the following.

      Judicial statistics of the Ministry of Justice of Ukraine contains data on number of persons sentenced to death penalty whose sentences came into force and information on their execution was received from the courts of Ukraine.

      During 1995, 1996, 1997, 486 persons were sentenced to capital punishment - death penalty.

      203 persons sentenced to capital punishment -death penalty were executed since November 1995 till 1997 including sentences issued before November 1995 and 9 persons executed since 1 January till March 1997.

      In this regard it should be noted that the Ministry of Justice does not directly receive information on execution of death sentences from administration of those bodies where they are executed. However, the enclosed data has been prepared by the Ministry of Justice in accordance with its competence.

      Taking this opportunity I would like to inform you that I personally undertook several measures aimed at resolving the issue of introduction of de-jure moratorium on execution of capital punishment - death penalty in Ukraine and abolition of this punishment. In particular, after my visit to the Council of Europe head-quarters and our meeting I addressed several times Mr. Moroz, Chairman of the Verkhovna Rada of Ukraine, and Mr. Oliynyk, Chairman of the Committee of the Verkhovna Rada of Ukraine on Foreign Affairs and relations with the CIS, in order to consider as soon as possible at the session of the Verkhovna Rada of Ukraine the issue on adoption of the Law of Ukraine "On ratification of the Protocol n°6 to the European Convention for the Protection on Human Rights and fundamental Freedoms, concerning the abolition of death penalty" and Law of Ukraine "On amendments to the Criminal Code of Ukraine" that envisaged replacement of capital punishment - death penalty by life imprisonment. Nevertheless, up till now those issues have not been considered by the Verkhovna Rada of Ukraine.

Her Excellency

Mrs Leni Fischer

President of the Parliamentary Assembly

Council of Europe, Strasbourg

      Moreover, in accordance with instruction of the President of Ukraine and the Prime-Minister of Ukraine the Ministry of Justice of Ukraine has lifted secrecy from data concerning execution of capital punishment - death penalty. On 11 March 1998 the Ministry of Justice had registered the order of the State Committee on State Secrets and Technical Protection of Information that introduced changes to the "Code of information that constitutes state secret of Ukraine".

      Taking this opportunity I would like to express the hope for our further fruitful co-operation in the field of development of democracy, protection of human rights and freedoms in Ukraine.

Yours faithfully,

S. Stanik

Minister of Justice of Ukraine

Enclosure:       information concerning death penalty in Ukraine since 9 November 1995 till 31 March 1998.

Information

on execution in Ukraine of capital punishment - death penalty

since 9 November 1995 till 31 March 1998

203 persons sentenced to capital punishment - death penalty were executed since November 1995 till 1997 including sentences issued before November 1995.

      Since 9 November 1995 till 31 December 1995 no execution took place in Ukraine.

      During 1996 194 persons sentenced to capital punishment were executed, namely:

Name

Sentenced

Executed

Mosienko V.O.

Bochkovskiy M.A.

Gurskiy O.V.

Vashchenko V.M.

Mykhalskiy O.B.

Rudenko S.V.

Kolmykov O.V.

Panchuk A.V.

Protsenko O.V.

Chernysli G.P.

Lozoviy D.V.

Tilkov T.Y.

Bobkov I.V.

Bieliy G.V.

Sotnyk B.Y.

Gladyshev Y.F

Komarov O.O.

Shcherbyna B.I.

Yanchevskiy V.Y.

Pashchenko V.D.

Liakh A.I.

Beliaev V.V.

Tumasian K.R

Guliamov B.

Volkov S.G.

18.01.95

27.02.95

29.11.93

03.06.94

14.10.94

31.01.95

24.02.95

26.04.94

29.03.95

21.02.95

03.04.95

06.05.95

14.02.95

20.12.94

20.03.95

20.09.94

09.02.95

03.03.95

03.03.95

10.03.95

20.10.94

24.02.95

19.01.95

27.01.95

23.03.95

17.01.96

19.01.96

20.01.96

22.01.96

22.01.96

23.01.96

23.01.96

24.01.96

24.01.96

25.01.96

26.01.96

27.01.96

28.01.96

29.01.96

30.01.96

31.01.96

01.02.96

02.02.96

03.02.96

05.02.96

06.02.96

08.02.96

09.02.95

10.02.96

11.02.96

Trachuk A.M.

24.03.95

12.02.96

Kiriya L. O.

29.11.94

13.02.96

Snopok S.I.

03.02.95

14.02.96

Mygal I.S.

04.05.95

14.02.96

Khitren O.M.

14.03.95

15.02.96

Kushnir V.O.

15.03.95

16.02.96

Kozakov A.I.

29.11.94

19.02.96

Parovnikov O.J.

23.12.94

20.02.96

Filenko M. V.

28.04.95

26.02.96

Zabolotskiy A.Y.

24.01.95

27.02.96

Berezhnyuk P.J.

05.06.95

27.02.96

Bayev M.M.

02.06.95

28.02.96

Matskevych D.R.

21.03.95

29.02.96

Cherniavskiy S.M.

27.03.95

29.02.96

Symonenko O.Y.

22.05.95

01.03.96

Chyrka I.P.

28.04.95

02.03.96

Strukov Y.O.

21.03.95

04.03.96

Krystyniak Y.V.

18.11.94

05.03.96

Novikov A.V.

02.06.95

05.03.96

Yarosh I.O.

03.03.95

06.03.96

Tarasenko M.A.

16.06.95

06.03.96

Kondria Y.V.

28.02.95

07.03.96

Skoryk M.G.

13.02.95

09.03.96

Fetisov Y.O.

28.02.95

10.03.96

Mukhin M.F.

27.01.95

11.03.96

Otian S.M.

06.02.95

12.03.96

Remizov A.S.

02.06.95

12.03.96

Mazalov P.O.

07.07.95

12.03.96

Piatakov I.V.

24.03.95

15.03.96

Lopatko Y.S.

05.04.95

16.03.96

Batus G.V.

24.01.95

18.03.96

Pavlyuk O.F.

02.03.95

18.03.96

Zhovnarchuk O.O.

06.03.95

19.03.96

Ivushyn S.V.

15.03.95

19.03.96

Shabelnykov O.P.

21.06.95

30.03.96

Dragunov S.M.

29.03.95

03.04.96

Proskurovskiy I.M.

17.04.95

03.04.96

Cheprasov S.Y.

22.03.95

05.04.96

Reprintsev Y.Y.

31.03.95

05.04.96

Cherkashyn D.O.

04.07.95

08.04.96

Ogly V.I.

21.06.95

09.04.96

Andreychikov V.O.

05.05.95

10.04.96

Girzhen S.M.

05.05.95

11.04.96

Anokhin I.M.

10.08.95

11.04.96

Selezniov V.P.

06.06.95

22.04.96

Protsyk Y.Y.

05.06.95

23.04.96

Myshkovets A.V.

16.06.95

29.04.96

Sigorskyi I.B.

30.06.95

29.04.96

Kalenyk L.V.

26.05.95

07.05.96

Ponikarchyk A.M.

01.08.95

13.05.96

Trushanov I.V.

29.05.95

18.05.96

Lazarev S.V.

26.05.95

20.05.96

Rogdanov I.I.

01.06.95

21.05.96

Shylovets V.S.

01.06.95

25.05.96

Kazarinov S.V.

27.04.95

30.05.96

Kotykov M.M.

05.09.95

31.05.96

Kutt B.M.

06.09.95

01.06.96

Mukhin Y.M.

04.08.95

04.06.96

Shtuka M.O.

13.06.95

05.06.96

Kravchenko O.V.

05.06.95

06.06.96

Dobra Y.I.

10.07.95

07.06.96

Tseselskyi A.J.

30.10.95

08.06.96

Geydenreykh Y.M.

28.07.95

10.06.96

Kobrin V.G.

11.09.95

10.06.96

Djakhbarov A.M.

26.08.95

11.06.96

Koshevnik V.I.

09.10.95

11.06.96

Chagar V.M.

Funduk V.O.

07.08.95

05.06.95

12.06.96

13.06.96

Azguzhynov O.O.

12.10.95

14.06.96

Ogoltsov B.Y.

25.07.95

17.06.96

Radionov I.M.

Markitan O.V.

Matyukha R.V.

01.08.95

25.07.95

22.08.95

17.06.96

18.06.96

18.06.96

Shyshchenko I.V.

20.07.95

19.06.96

Rumianstsev I.S.

02.10.95

20.06.96

Shakhverdiyev S.D.

23.08.95

21.06.96

Shalun I.A.

16.05.95

22.06.96

Kotliar D.Y.

17.03.95

24.06.96

Alkhimov V.A.

11.05.95

24.06.96

Kuzmin M.M.

08.06.95

25.06.96

Bilonovskiy O.B.

15.03.95

26.06.96

Nykonenko N.O.

05.10.95

27.06.96

Astafurov D.O.

11.08.95

28.06.96

Churylov M.M.

14.07.95

01.07.96

Skorobogatov S.V.

04.09.95

01.07.96

Popov I.I.

19.10.95

02.07.96

Gorbach V.O.

24.10.95

02.07.96

Artsuk M.G.

15.06.95

03.07.96

Gumenyuk V.V.

25.10.95

03.07.96

Gorodetskiy A.I.

03.08.95

04.07.96

Saidov K.A.

01.11.95

04.07.96

Danylenko I.M.

12.05.95

05.07.96

Shevchuk O.V.

03.08.95

05.07.96

Gopsha O.G.

Sergiychuk O.I.

15.06.95

19.10.95

06.07.96

06.07.96

Cherkashyn V.O.

26.05.95

08.07.96

Nikolaitsa V.R.

07.09.95

09.07.96

Klymenko M.M.

28.08.95

11.07.96

Tymofeyev A.V.

05.07.95

15.07.96

Tarkilo T.P.

23.06.95

16.07.96

Kurtov A.O.

13.07.95

17.07.96

Alkhimenko O.V.

09.06.95

25.07.96

Kalashnykov P.V.

25.09.95

26.07.96

Biryukov D.A.

23.10.95

29.07.96

Vedmedenko O.O.

23.10.95

05.08.96

Botsu B.I.

12.09.95

06.08.96

Dragomyretsiy M.M.

04.09.95

12.08.96

Dzigoyev G.S.

19.04.95

13.08.96

Nakonechnyi P.O.

13.12.95

13.08.96

Abram L.M.

16.08.95

14.08.96

Butok O.V.

25.09.95

14.08.96

Goncharov O.A.

11.07.95

15.08.96

Tymofeyev O.M.

31.05.95

16.08.96

Gutsaluyk S.V.

27.03.95

21.08.96

Yanusik Y.V.

31.10.95

21.08.96

Synytsia O.M.

20.07.95

11.09.96

Pekhnio Y.V.

11.09.95

12.09.96

Kozian I.V.

29.03.95

01.10.96

Shevchuk B.I.

15.03.95

09.10.96

Podurets M.I.

20.12.95

16.10.96

Tekuchev S.G.

11.09.95

17.10.96

Skyba A.M.

17.04.95

22.10.96

Chubarev O.V.

17.04.95

23.10.96

Komladze V.A.

13.06.95

25.10.96

Yemets O.Y.

23.10.95

28.10.96

Masyuzhenko V.I.

16.03.95

30.10.96

Bayatian R.G.

13.06.95

31.10.96

Diachenko I.M.

21.07.95

02.11.96

Tanasevskyi A.Y.

31.05.95

04.11.96

Zakharkov O.M.

26.05.95

05.11.96

Kurichay I.I.

20.12.95

05.11.96

Rozinshtein M.V.

25.10.95

06.11.96

Petrov O.G.

18.10.95

12.11.96

Romanenko V.V.

30.03.95

18.11.96

Kaban V.M.

01.12.95

18.11.96

Nikitin S.Y.

15.11.95

19.11.96

Meteliov V.K.

03.11.95

20.11.96

Gudzyk M.N.

01.11.95

21.11.96

Baydin V.V.

05.03.96

21.11.96

Kerzhakov M.M.

28.12.95

22.11.96

Kovalchuk S.M.

01.12.95

23.11.96

Tyrabian M.L.

11.12.95

25.11.96

Nikonorov P.G.

10.10.95

26.11.96

Kozub Y.D.

26.02.96

26.11.96

Blokhin S.M.

01.12.95

27.11.96

Pastovets V.V.

07.03.96

28.11.96

Bogutskyi O.V.

31.01.96

29.11.96

Sikirinov V.M.

01.11.95

02.12.96

Dreval V.M.

12.01.96

03.12.96

Belin V.M.

23.02.96

03.12.96

Fylypov O.V.

29.12.95

04.12.96

Grybov M.V.

11.07.95

05.12.96

Kamalov A.A.

27.02.96

06.12.96

Filchenko V.P.

26.01.96

09.12.96

Tretiakov M.M.

10.11.95

10.12.96

Merzhiyevskyi O.K.

Stovbun O.O.

04.11.95

26.02.96

17.12.96

17.12.96

Prokudin M.D.

08.02.96

18.12.96

Pozniakov Y.M.

Lypka M.M.

04.12.95

08.12.95

19.12.96

20.12.96

Ulianov J.M.

Nikerov V.I.

11.09.95

29.08.95

21.12.96

23.12.96

Prodan G.D.

29.08.95

24.12.96

Mokrukha S.G.

08.04.96

25.12.96

Turyshchev L.V.

19.03.96

29.12.96

Shvets O.M.

Kolomiychuk D.P.

28.12.95

21.03.96

30.12.96

30.12.96

Severianin P.L.

Nishcheta A.D.

22.02.96

04.04.96

31.12.96

31.12.96

      In the first quarter of 1997, 9 persons sentenced to capital punishment were executed, namely:

Name

Sentenced

Executed

Androshchuk A.Y.

Gordiyenko Y.O.

Safronov R.V.

12.03.96

09.08.95

04.10.95

03.01.97

04.01.97

11.01.97

Garnash M.S.

19.03.96

11.01.97

Zuachen V.M.

02.04.96

25.01.97

Yakimenko E.Y.

29.02.96

07.02.97

Tunika Y.A.

Ardelianov V.G.

29.08.95

29.08.95

22.02.97

24.02.97

Fedorchenko P.V.

22.08.95

11.03.97

In 1998 no execution of persons sentenced to capital punishment - death penalty has taken place in Ukraine.

Reporting committee: Committee on the honouring of obligations and commitments by Member States.

Budgetary implications for the Assembly: to be assessed by the Committee on the Budget and the Intergovernmental Work Programme.

Reference to committee: Resolution 1115 (1997) of 27 January 1997.

Report unanimously approved by the committee on 26 November 1998.

Members of the committee: Mr Sole Tura (Vice-Chair), Mrs Gelderblom-Lankhout (Vice-Chair), MM. Glotov (Vice-Chair), Akselsen, Atkinson, Averchev, Mrs Aytaman, MM. Bársony, Bindig, Brunetti, Christodoulides, Columberg, Dagys, Davis, Dinçer, Domljan, Dumitrescu, Mrs Durrieu, MM. Eltz, Fico, Figel, Mrs Fleetwood, MM. Frunda, Gjellerod, Gross, Gusenbauer, Hagård, Jansson, Jaskiernia, Jurgens, Mrs Kautto, MM. Kelam, Kiratlioglu, Kostytsky, Koulouris, Kuzmickas, Leoni, Magnusson, Marmazov, Martelli, Marten, Melcak, Mota Amaral, Mozetic, Muehlemann, Pahor, Mrs Poptodorova, Mr Ramirez Pery, Mrs Ringstad, Lord Russell-Johnston, MM. Sceberras Trigona, Schwimmer, Mrs Severinsen, MM. Shishlov, Sinka, Smorawinski, Steolea, Mrs Stoyanova, MM. Tahiri, Urbain, Valkeniers, Weyts, Mrs Wohlwend.

N.B. The names of those members who took part in the meeting are printed in italics.

Secretaries to the committee: Mr Ausems, Mrs Dufour and Mrs Chatzivassiliou.


    1 Excerpts from this Opinion are reproduced in Appendix I.

2 According to Article 102 of the Constitution, he is "the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens’ rights and freedoms".

    2        The following unsolved cases of killing of journalists have been reported: MM Grouchtsky, Frelik, Ivanov and Motrenko. The most prominent recent such victim in Ukraine was the editor of the newspaper "Vechernaya Odessa", Boris Derevyanko.

4        It should be noted that on 21 July 1997 a "Joint memorandum against the use of force in interdenominational disputes" was signed by the leaders of Ukrainian religious confessions.