Doc. 9226

24 September 2001

Honouring of obligations and commitments by Ukraine

Report

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

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

 

Summary

 

The co-rapporteurs welcome the fact that Ukraine has recently made considerable progress in the fulfilment of its formal obligations, in particular in adopting or amending important pieces of legislation.

At the same time, they note with regret that some crucial laws listed in the obligations and commitments entered into by Ukraine are still subject to long-lasting discussions in the Rada. A key deficiency of the legal system remains the weak and inconsistent implementation and enforcement of the law.

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

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

The co-rapporteurs conclude that, although notable progress has been made since the Assembly’s latest resolution on Ukraine, Ukraine is still far from honouring all obligations and commitments as a member State of the Council of Europe. They suggest therefore that the Assembly continues to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

I.        Draft resolution

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

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

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

ii.       a framework act on legal and judicial reform;

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

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

v.       transformation of the role and functions of the prosecutor general’s office;

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

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

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

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

iii.       the first four chapters of a new civil code and a law on amendments to the existing code of civil procedure were adopted by the Rada on 21 June 2001;

iv.       a new law on political parties was adopted by the Rada on 5 April 2001, signed by the President on 28 April 2001;

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

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

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

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

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

7.       The Assembly condemns the aggression against, intimidation and even murder of journalists, members of parliament and opposition politicians in Ukraine. It calls on the Ukrainian authorities to ensure the rule of law, to conduct their media policy in a way which will convincingly demonstrate respect of the freedom of expression in the country and to improve the legal framework for the media and the safety and working conditions of journalists. In particular, the Assembly urges the authorities concerned to take the measures outlined in paragraph 5 of Resolution 1244, and, in addition:

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

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

iii.       to initiate a special investigation in the case of Mr Yeliashkevich, Deputy Chairman of the Financial Committee of the Rada;.

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

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

10.       The Assembly invites the Ukrainian authorities:

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

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

11.       In the light of the considerations above, the Assembly concludes that notable progress has been made since its April 2001 resolution on Ukraine, especially in respect of new legislation most of which, however, has not yet been implemented. The Assembly therefore calls on the Ukrainian authorities to implement and apply firmly the new criminal code and the ratified European conventions in the field of human rights. Ukraine advances certainly on the road towards full pluralist democracy, but is still far from honouring all of its obligations and commitments as a member State of the Council of Europe. The Assembly therefore resolves to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

II.       Draft recommendation

1.       The Assembly refers to its Resolution …(2001) on the honouring of obligations and commitments by Ukraine.

2.       In the light of the considerations stated in Resolution …(2001), the Assembly informes the Committee of Ministers that although Ukraine has made notable progress since the Assembly’s Resolution 1244 (2001), especially in respect of new legislation, but it is still far from honouring all of its obligations and commitments as a member State of the Council of Europe. The Assembly therefore resolves to pursue the monitoring procedure in respect of Ukraine in close co-operation with the Ukrainian delegation.

3.       The Assembly recommends that the Committee of Ministers:

i. pay due attention to the position of the Parliamentary Assembly in respect of the honouring of the obligations and commitments by Ukraine;

ii. encourage the Ukrainian authorities to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation and practice with the Organisation’s principles and standards, especially with standards guaranteed by the European Convention of Human Rights and the Strasbourg Court's case-law;

iii. intensify the co-operation programmes between the Council of Europe and Ukraine, notably for the implementation of the Action Plan for the media proposed by the Secretariat, with a view to assisting the Ukrainian authorities in their efforts to accomplish the difficult transition to democracy and to secure fundamental rights and liberties, particularly as regards freedom of expression and the media;

iv. devise specific co-operation activities to assist in the implementation of the European Charter for Local Self-government, and in strengthening the development of local democracy in Ukraine (both the legislative and regulatory framework and the training of those responsible within local self-government entities);

v. work out specific programmes for developing democratic behaviours and practices amongst the political leaders and the public at large.

III.       Explanatory memorandum by the Rapporteurs

CONTENTS

              Pages

A.       introduction       6

B.       adoption of laws and regulations – latest developments       7

C.       freedom of expression and freedom of the media       9

D.       Other issues raised during the last visit of the co-rapporteurs       11

E.       concluding remarks        12

Appendix I        Overview of the obligations and commitments of Ukraine       14

Appendix II       Comments of the Ukrainian delegation to the overview of the

Appendix III       Programme of the visit to Ukraine of the co-rapporteurs from

Appendix IV       Extracts of 2001 Co-operation Programme for Ukraine        27

a.       Introduction

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

 

2. In its Resolution 1244 adopted on 26 April 2001, the Assembly noted that “Notwithstanding a few positive steps taken by the Ukrainian authorities, notably the ratification on 4 April 2000 of Protocol No. 6 to the European Convention on Human Rights, following the ruling of the Ukrainian Constitutional Court that the death penalty is unconstitutional, the Assembly considers that the President, the Government and the Parliament (Rada) of Ukraine have failed to honour the commitments and obligations of Ukraine as a member state of the Council of Europe.”

3. In its Resolution 1244, the Assembly also regretted that “its previous resolutions, in particular Resolutions 1194 (1999) and 1239 (2001), had apparently not convinced the Ukrainian authorities of the need to take without delay a number of measures to meet Ukraine’s obligations and commitments as a member state.” It decided therefore that “should no substantial progress in honouring these obligations and commitments be made by the opening of its June 2001 part-session, it shall consequently consider imposing sanctions against the Ukrainian parliamentary delegation in accordance with Rules 6 to 9 of its Rules of Procedure.”

4. Further to a request from the Chairman of the Verkhovna Rada of Ukraine, Mr Ivan Plyusch, to postpone the debate on the follow-up given to Resolution 1244 (2001) on the honouring of obligations and commitments by Ukraine to the September 2001 part session of the Assembly, at its meeting on 8 June 2001 in Paris, - following an exchange of views on the obligations and commitments of Ukraine, the Monitoring Committee decided to ask the Bureau to remove this item from the draft order of business of the June 2001 part-session.

5. Moreover, at the Paris meeting, the Secretary General of the Council of Europe, Mr Schwimmer informed the Monitoring Committee of the decision taken by the Ministers' Deputies the previous day, which constituted a follow-up to the Assembly's decision in April and, in particular, its Recommendation 1513 (2001) to the Committee of Ministers. In the case of Ukraine, the Committee of Ministers had decided to take special measures, making use of paragraph 4 of the 1994 Declaration for the first time. The Committee of Ministers will reply to the Parliamentary Assembly's report and make specific proposals on adjusting and stepping up the assistance and co-operation programmes before the September 2001 part-session of the Assembly

6. At its June meeting, the Monitoring Committee also supported the Secretary General’s proposal to jointly organise with the Ukrainian authorities a public conference, with the participation of both the Committee of Ministers and the Parliamentary Assembly, in order to take stock, discuss and help accelerate reform in Ukraine in the light of implementation of commitments. This high level conference could be organised in Ukraine after the September 2001 part-session of the Assembly.

7. In accordance with the decision of the Committee of Ministers, the Secretary General of the Council of Europe has sent a Secretariat Delegation to Ukraine within the framework of the 1994 Declaration on compliance with commitments accepted by member States of the Council of Europe. This visit took place from 26 to 29 August 2001, and its conclusions are contained in the document SG/Inf(2001)27 (see also the concluding remarks of this report).

8. Following the September 6 meeting of the Monitoring Committee, the co-rapporteurs also carried out a new fact-finding visit to Ukraine from 9 to 12 September 2001 in order to collect information and to assess the progress made on the respect by Ukraine of its obligations and commitments to the Council of Europe. All these discussions have fed into the present report. Once again, the co-rapporteurs are very grateful to the Ukrainian parliamentary delegation for having organised the visit in accordance with their requests and priorities.

b.       Adoption of laws and regulations – latest developments

9. As for the law on political parties, on 27 March 2000 the Verkhovna Rada of Ukraine approved the Law of Ukraine “On Political Parties”. But -following a veto by the President-, it had been referred to the Constitutional Court. A new version of the law on political parties was finally adopted by the Rada on 5 April 2001 and was also signed by the President on 28 April 2001. Further work is ongoing currently on by-laws relating to the functioning of political parties, especially such as financing.

10. Similarly, the new Criminal code was adopted by the Rada on 5 April 2001, signed by the President on 17 May 2001, and entered into force on 1 September 2001. This important new piece of legislation contains, inter aliea, no provisions on criminal responsibility for disgrace and libel. However the co-rapporteurs regret that the Council of Europe experts have never had the opportunity to examine the provisions of the new Criminal code. In this context, they welcome the suggestion of Mrs Gorbunova, Deputy Minister of Justice who proposed the organisation of an international seminar on the critical issues related to the criminal code with a view to creating a more transparent system.

11. On 21 June 2001 the Rada also adopted laws and amendments to the code of criminal procedure and to the laws on operative and search activity, on the police, on pre-trial detention and on administrative supervision of persons released from places of detention. On 23 June a final draft of a new code of criminal procedure was submitted to the Rada.

12. On 22 March 2001 the Rada voted (284 to nine) to pass a new bill on the introduction of a proportional party-list system in parliamentary elections, taking into account 23 out of the 38 changes proposed by President Kuchma. The bill stipulates that only parties supported by no less than 4 percent of voters nationwide can be represented in the Rada. This new “law on elections” which was adopted by a strong majority of the Rada (but failing to obtain the necessary two-thirds) – had afterwards been vetoed by the President.

13. On 7 June 2001 the Rada passed a new version of the “Law on elections”, providing for a new mixed system of voting; 335 members of the Rada will have to be elected on party lists and 115 in accordance with the majority system from electoral constituencies (at present the Rada is elected in equal numbers by proportional and majority election systems). Although this new election law has been supported by a strong majority of the Rada, the President stated that he would veto it again on the grounds that “it would restrict the rights of citizens of Ukraine”.

14. In this respect the co-rapporteurs were informed by Mr Beszmertny, representative of the President in the Rada, that there were disagreements between the Rada and the President on the modalities as how to assure appropriate representation of the political parties in the Rada, the length of the election campaign foreseen by the law, and other technical problems. The co-rapporteurs very much hope all the same that a new election law can be adopted before the forthcoming parliamentary elections in March 2002.

15. In order to prepare the law on the reform of the judicial system, a “Council on reforms of judicial system” was established on 30 August 2000 with the aim to develop, analyse and co-ordinate the relevant draft laws. A new co-ordinated draft Law “on the Judicial System” has been submitted to the Rada for consideration. However, this co-ordinated draft law on the judiciary was rejected in its third reading by the Rada on 24 May 2001.

16. Instead, a package of 10 laws (“small judicial reform”) was adopted by the Rada on 21 June 2001 that stipulate amendments to existing laws – aiming to ensure the work of the judiciary and law-enforcement bodies after the termination of the so-called Transitional Provisions on 28 June 2001.3 Obviously these laws do not cover the overall reform of the judicial system required under the Assembly’s Opinion No. 190, and the co-rapporteurs’ exchanges with the different parties and factions in the Rada have confirmed this view. Mrs Gorbunova, Deputy Minister of Justice, also stressed that the co-ordinated law on judiciary was still considered to be a high priority, but the transitory situation was also helping to include in the new drafts the many divergent views on the judicial system and the directions of reform.

17. Moreover, the co-rapporteurs believe that the real value of these (in many respect transitional) changes can only be made by an assessment of how, in practice, these laws are implemented. For their part, NGOs indicated that the independence of the courts at lower levels is not always assured, and that due process is not always respected – particularly in certain cases where the security services or tax authorities have claimed a particular interest.

18. As for the new Civil code, on 21 June the Rada adopted only the first three chapters of that code. Ukraine has not yet adopted a new code of civil procedure. Instead, on 21 June the Rada adopted a law on amendments to the old code of civil procedure. A draft code of civil procedure elaborated by the Working Group of the Cabinet of Ministers of Ukraine was transmitted to the Cabinet on 26 April 2001 for detailed examination and approval. Following this procedure the draft code will be transmitted to the Rada. The co-rapporteurs welcome nevertheless the fact that on 6 August 2001 the draft code was forwarded to the Director General of Legal Affairs of the Council of Europe for recommendations of its experts.

19. Among the laws and regulations adopted on 21 June by the Rada, one envisages a change in the role of the Prosecutor General’s Office, bringing it into line with the Constitution. (The new Ukrainian Constitution contained a separate chapter on the Prosecutor General’s Office which according to the opinion of the Venice Commission had been compatible with European standards. It was however undermined by Transitional Provision No 9 which provided that the PGO continued to exercise its old functions.) Although the Rada amended the law on the Prosecutor General’s Office on 21 June it seems that the latter does not remove the remit of the Prosecutor General to generally supervise legality.

20. As regards public prosecution, officials explained to the co-rapporteurs that courts would exert a greater control in the activities of the Prosecutor General’s Office in the future; any action or investigation by the PGO could be appealed to the courts; and it would require prosecutors to obtain warrants from judges before launching searches and arrests (indeed a fundamental step on the road to reform). Yet, the Prosecutor General still has the general supervision of legality until the entering into force of a new law on judiciary (which is still discussed in the Rada).

21. As Mr Pliusch, the Speaker of the Verhovna Rada, stressed to the co-rapporteurs, the mentality that everything should be decided by the Prosecutor General was now changing. Mr Pliusch was also confident that the remaining laws and regulations which form part of Ukraine’s commitment to the Council of Europe will be adopted by 18 January 2002, the end of the mandate of the current parliament.

22. Another matter of concern is the European Charter for Regional or Minority Languages. In December 1999 the Rada adopted a law on the ratification of the Charter which was declared unconstitutional under procedural grounds at the Constitutional Court on 12 July 2000. A new draft law on the ratification of Charter was submitted to the Rada on 30 August 2001.

23. As regards the problem of the separation of powers, the co-rapporteurs wish to mention a specific problem. On 29 May 2001 by a presidential decree “state secretaries” were appointed in the different ministries for the President’s term of office (five years). Their responsibilities will include “the safeguarding of organisational, legal and analytical and technical work of the cabinet of ministers”. The co-rapporteurs believe that this change in the structure of government will enable the President to have even more influence on executive authorities. Opposition politicians strongly criticised this mutation, and the Socialist Party asked the Constitutional Court’s opinion on the constitutionality of this decree. However, in this context Mr Zlenko, Minister of Foreign Affairs stressed to the co-rapporteurs that the new institution of state secretaries represented international practice and the main aim of which was to assist the ministers in the fulfilment of their administrative tasks.

24. The co-rapporteurs also wish to report in this respect on two recent visits (17-21 July and 3-4 September 2001), of the Rapporteurs of the Congress of Local and Regional Authorities of Europe (CLRAE) to Ukraine. They have examined questions related to the implementation by Ukraine of the European Charter for Local Self-Government and CLRAE Recommendation 48 (1997). The Rapporteurs concluded that Ukraine still remained a highly centralised country and, in this respect, some further progress should be made in order to implement more widely the subsidiarity principle laid down in Article 4.3 of the ECLSG, and to remedy a significant legislative deficit in this context. Undue dismissal and pressure put on a number of mayors and local elected representatives remained a subject of preoccupation. One major obstacle to a full implementation of the Charter was the absence of a clearly defined level of local self-government.

25. The co-rapporteurs welcome the readiness of the Ukrainian authorities to honour their commitment to strengthening local and regional democracy, reflected in a decree passed on 30 August 2001 by President Kuchma – and the fact that significant action in this field is foreseen in the proposal for a Joint Programme between the Council of Europe and the European Comission for Ukraine, which is currently under consideration by the European Commission. Future co-operation programmes with Ukraine should give a high priority to the development of local democracy (both the legislative and regulatory framework and the training of those responsible within local self-government entities).

c.       Freedom of expression and freedom of the media

26. In its Resolution 1244, the Assembly expressed its concern over “the murders of journalists, repeated aggression against and continuing intimidation of journalists, members of parliament and opposition politicians in Ukraine, and the frequent and serious abuses of power by the Ukrainian executive authorities in respect of freedom of expression and of assembly.” Therefore the Assembly urged “the Ukrainian authorities, notably the President, to put an end to the practice of intimidation and repression of opposition politicians and the independent press, and to take all necessary measures to discourage and curb attacks and threats against journalists and other media representatives.”

27. In this context the rapporteurs would like to draw attention once again to the unresolved investigation of the disappearance and murder of Georgy Gongadze. But this is only the most visible instance of violence against and harassment of independent journalists, politicians and other prominent Ukrainians. In the first half of 2001 only, the Institute of Mass Information registered 43 cases of violation of journalists’ rights or exertion of pressure on the media by authorities. In addition one journalist was murdered, seventy journalists were subject to attacks and intimidation attempts. There have been seven lawsuits against media and harassment of journalists.

28. Mr Oleksy Movsesyean, an exployee of the Luhansk based local TV station was severely beaten on 28 August 2001, the latest in a string of attacks on journalists in Ukraine. Commenting on the incident, media NGOs informed the co-rapporteurs that local law-makers in Luhansk previously often expressed their annoyance at the independent political coverage of the ten-years old station which they eventually decided to liquidate in June 2001.

29. Mr Ihor Olexandrov, Director of private television and radio company TOR, who sought to expose corruption, was attacked in July 2001 and died in hospital four days later. Mr Olexandrov was the eleventh journalist killed in Ukraine in the last five years. The co-rapporteurs are upset by the claim of Mr Potebenko, Prosecutor General, who said that the killing had in no way been related to Mr Olexansdrov’s professional activities.

30. As for the case of Mr Gongadze, the Prosecutor General stressed that a new expertise (asked by Mrs Gongadze and supported by the international NGO “Reporters without Borders”) would in no way help the investigation. The co-rapporteurs also found somewhat strange his declaration that “no one can name a single case of intimidation of journalists in Ukraine”. When asked about the recent legal reforms Mr Potebenko stated that “albeit full of doubts, we have to move along with the decision of the Rada and the President to become conform with European standards”.

31. The co-rapporteurs also think that the recent verdict against the journalist Oleg Liachko reinforces the pervasive insecurity of journalists who criticise government officials in Ukraine. They support the repeated call by NGOs on President Kuchma to ensure that the Liachko case is reviewed by independent judicial authorities, and that politically motivated criminal prosecution of journalists cease in Ukraine.

32. The co-rapporteurs regret to be told by media NGOs that the recently established Informational Policy Council (by a Presidential decree of 3 April 2001) was “only simulating action” and it didn’t have any meaningful impact on the situation of freedom of expression in Ukraine. They therefore call on the Ukrainian authorities to conduct media policy in a way which will convincingly alleviate the fears that freedom of expression in the country is under threat.

33. The co-rapporteurs indeed would like to propose that the role of the Human Rights Ombudsman be expanded to the field of the media (following for instance the Swedish example of a media ombudsman).

d.       Other Issues raised during the last visit of the co-rapporteurs

34. As regards the penitentiary system, the co-rapporteurs were told by the Human Rights Ombudsman, Mrs Nina Karpachova, that on her insistence the students, unlawfully arrested following the 9 March 2001 demonstrations in Kyiv, had afterwards been released. However, the authorities ignored her appeal to change the charges against those persons considered to be responsible for the outburst of the violence on 9 March, from “crime against the State”, a paragraph not in use since Soviet time and which could result in 8 to 15 years imprisonment for the demonstrators. Those persons are still in the pre-trial detention centre (SIZO) of the Ukrainian security services, awaiting court trial.

35. Mrs Karpachova also informed the co-rapporteurs on the often humiliating conditions in Ukraine’s prisons, notably as regards the terrible situation of women in the Dnipropetrovsk pre-trial detention centre (SIZO) or in the Kryvyi Rih prison for women, where overcrowding remains a huge problem.

36. In this respect, the co-rapporteurs think that for the sake of transparency and as an incentive for further reforms, the Ukrainian authorities should consider declassifying the reports of the Council of Europe’s Committee on Prevention of Torture. (Ukraine has signed (2 May 1996) and ratified (24 January 1997) the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment. The CPT has visited Ukraine in 1998, 1999 and 2000.)

37. At the same time the Human Rights Ombudsman stressed that the new Head of the State Department for Execution of Punishments had a more humanist approach to the problems of the Ukrainian prison population. She also informed the co-rapporteurs that a presidential decree foresees the transfer of the so-called militia-holding facilities still under the authority of the Ministry of the Interior and the pre-trial detention centres under the authority of the security services to the State Department for Execution of Punishments by the end of 2001.

38. Mrs Karpachova voiced also some concerns that the court system might be unprepared for the change foreseen by the recent legal reforms, and the new inter-relationship between the PGO and the courts. It should also be noted that investigators, prosecutors and judges are usually inclined to issue harsh punishments, even against people who have committed petty crimes and do not present a danger to society. Mrs Karpachova also recalled that in trials in Ukraine presided over by judges, the conviction rate is extremely high, over 90%, which might be an indication that the presumption of innocence is not systematically respected.

39. As for the preparation of the forthcoming parliamentary elections, the co-rapporteurs have been informed on a specific problem. he Rada preliminarily approved a draft law “on political advertising and propaganda” on 7 June 2001. According to prominent media NGOs4, should the draft be adopted as a law, it would pose grave dangers to the freedom of expression and the press in the upcoming election. These NGOs stressed to the co-rapporteurs that this draft law violates Art. 34 of Ukraine’s Constitution, as well as Article 10 of the European Convention on Human Rights, because “it restricts freedom of expression and the freedom to disseminate information but it doesn’t fit any of the exceptions under which such restriction can be justified”.

40. The Minister of Foreign Affairs agreed with the co-rapporteurs that the forthcoming elections should be an opportunity to demonstrate democratic progress in Ukraine, and in this context he personally invited the co-rapporteurs to observe the March 2002 elections in Ukraine.

41. Finally, the co-rapporteurs wish to report on the case of Mr Yeliashkevich which is of specific concern to the Assembly (cf. Doc. 9169 (4 July 2001) on on the lack of efficient legal protection in Ukraine (intimidation of Mr Yeliashkevich, member of parliament; Motion for a Resolution presented by Mr Eörsi and others). During their visit in Kyiv, the co-rapporteurs have met Mr Yeliashkevich, Deputy Chairman of the Financial Committee of the Rada and Member of Parliament since 1994. He was assaulted on the evening of 9 February 2000 and as a result he suffered serious injuries. He suspects that this incident happened for political motives, as he suggested a special investigation in the Rada into the circumstances of the last Presidential elections.

42. During the last year and a half, Ukrainian law enforcement agencies failed to take any steps to elucidate this crime, and they intentionally misinformed the public on the nature of the MP’s injuries. Mr Yeliashkevich’s attempt to resolve the issue by lodging complaints on the basis of the criminal code of Ukraine with regard to the encroachment on the life and health of a member of parliament had been repeatedly refused. As for his case, Mr Potebenko, Prosecutor General, said evasively that the investigation was with the law enforcement authorities and he could not unveil any details on that. The co-rapporteurs call on the Ukrainian authorities to initiate a special investigation in this matter.

E.        Concluding remarks

43. In the light of their latest visit, the co-rapporteurs agree with the conclusions of the above-mentioned report of the Secretariat’s assistance and information mission to Ukraine, which, inter alia, stated that “Ukraine has recently made significant progress in the fulfilment of its formal obligations, in particular in adopting or amending important pieces of legislation. However, in the absence of any specific legal expertise of these new or revised laws, it is not possible, at this stage, to confirm that these reforms meet with expectations regarding their compatibility with European norms. For this reason, the Ukrainian authorities were invited to transmit, as a matter of urgency, these texts for expertise by CoE experts. It will then be essential to secure implementation of these norms at all levels of society if they are not to remain purely virtual”.

44. Moreover, the co-rapporteurs note with regret that some crucial laws listed in the obligations and commitments entered into by Ukraine are still subject to long-lasting discussions in the Rada. A key deficiency of the legal system remains the weak and inconsistent implementation and enforcement of the law. The low level of independence of most parts of the judiciary system is among the crucial problems.

45. Ukraine still needs to do more to honour its obligations and commitments. In view of the most recent developments, the following should be areas of priority:

46.       With regard to domestic legislation and implementation of reforms, the co-rapporteurs appeal to the Ukrainian authorities to strengthen co-operation with the Council of Europe in order to ensure full compatibility of Ukrainian legislation with the Organisation’s principles and standards.

47.        At the same time, the co-rapporteurs reiterate their concerns over the murders of journalists, repeated aggression against journalists, members of parliament and opposition politicians in Ukraine. They call on the Ukrainian authorities:

APPENDIX I: OVERVIEW OF THE OBLIGATIONS AND COMMITMENTS OF UKRAINE

OBLIGATIONS

SOURCE

 

MEASURES TAKEN

AUTHORITIES ARE URGED TO:

Freedom of expression

(The Assembly is concerned by murders of journalists, repeated aggression against and continuing intimidation of journalists, members of parliament and opposition politicians in Ukraine, and the frequent and serious abuses of power by the Ukrainian executive authorities in respect of freedom of expression and of assembly).

Separation of powers

Resolutions 1239 and 1244 (2001);

Recommendations 1497 and 1513 (2001)

 

Decriminalisation of libel with the adoption of the new criminal code.

No out-of-court closures of media outlets, or instances of pressure on the media through leverages of printing and distribution reported since January 2001.

In January 2001 the Supreme Court of Ukraine recommended to the courts that “reasonable limits” be applied in the review of cases involving libel and defamation of character.

Presidential decree on the establishment of an “Informational Policy Council” on 03/04/2001.

Presidential decision to set up a working group in order to develop the concept of public service TV and radio broadcasting.

State secretaries appointed by the President in the different Ministries.

- put an end to the practice of intimidation and repression of opposition politicians and the independent press, and to take all necessary measures to discourage and curb attacks and threats against journalists and other media representatives;

- improve the general framework in which the media operate, notably with the following measures:

- speedy and transparent investigation into all cases of violence and death of journalists;

- immediate abolition of regulations and practices allowing out-of-court closure of media outlets and termination of broadcasting;

- amend the Law on the National Television and Broadcasting Council in line with the expertise provided by the Council of Europe;

- stop practices of pressure on the media through the leverages of printing and distribution;

- ratify the European Convention on Transfrontier Television;

- continue working towards the implementation of legal and other mechanisms so as to secure the free and unimpeded activity of Ukraine's mass media;

- provide the democratic opposition with airtime on state television and radio channels, and equal media access to all candidates during the forth-coming parliamentary election campaign

- provide information on the modus operandi of this new institution

COMMITMENTS

SOURCE

HONOURED

MEASURES TAKEN

AUTHORITIES ARE URGED TO:

- To enact a new constitution;

Opinion No. 190,

11, paragraph v.

 

Adoption of a new constitution on 28/06/96.

The President initiated a referendum to change the constitution on 16/04/2000

- ensure that all provisions of the constitution in force in Ukraine are thoroughly respected in the implementation of the referendum results, in particular as regards any procedure aimed at amending the constitution.

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

   

A declaration of intention on the principles of the State legal policy adopted on 17/06/99 by the Rada

- submit to the Venice Commission for opinion on issue whether the Rada’s resolution could be regarded as a framework-act on the legal policy, mentioned in Opinion No. 190

- Framework-act on legal and judicial reforms

   

A new co-ordinated draft law on the “judicial system” rejected in third reading by the Rada on 24/05/01

A package of 10 laws (“small judicial reform”) adopted by the Rada on 21/06/01 that stipulate amendments to existing laws and regulations – aiming to ensure the work of the judiciary and law-enforcement bodies after the termination of the so-called Transitional Provisions on 28/06/01

- adopt and enact without delay

- New civil code

- New code on civil procedure

Opinion 190, Article 11, para v.

 

21/06/01 first three chapters adopted by the Rada (out of eight)

06/08/01 The text of the draft civil procedure code submitted for expertise to the Council of Europe

- complete the adoption of all chapters of the civil code

- adopt and implement

- New criminal code and new code of criminal procedure;

   

Criminal code adopted by the Rada on 05/04/2001 and signed by the President on 17/05/2001

- submit text of the Criminal code for an expertise to the CoE

COMMITMENTS

SOURCE

HONOURED

MEASURES TAKEN

AUTHORITIES ARE URGED TO:

- New law on elections and a law on political parties

   

A law on political parties adopted by the Rada on 05/04/2001 and signed by the President on 28/04/01

- implement and mobilise Venice Commission expertise on remaining by-laws relating to the functioning of political parties such as financing

election law

   

New law on elections adopted by the Rada on 7/06/01 but vetoed by the President

- adopt new election law and settle differences between the Rada and the President before the forthcoming parliamentary elections

Change the role and functions of the Prosecutor’s Office (particularly with regard to the exercise of a general control of legality)

Opinion No. 190,

11, paragraph vi.

 

Constitution contains separate chapter on Prosecutor General’s Office which according to the opinion of the Venice Commission is compatible with European standards. It was however undermined by Transitional Provision No 9 which provided that the PGO continued to exercise its old functions.

Among the laws adopted on 21/06/01 by the Rada one relates to ending the Transitional Provisions and envisage a change in the role of the Prosecutor General’s Office, bringing it into line with the Constitution

- implement the new law in line with the Ukrainian constitution and with the Council of Europe principles and standards, and with the new draft codes on criminal and civil procedure

Transfer of the responsibility for prison administration, for the execution of judgments and for the registration of entry to and exit from Ukraine to the Ministry of Justice

Opinion No. 190,

11, paragraph vii.

 

A presidential decree transferred the prison administration from the Ministry of the Interior to the newly created State Department for Execution of Punishments (directly responsible to the Cabinet of Ministers) on 13/03/99

A presidential decree abolished the registration of persons entering Ukraine on 15/06/01

- subordinate the State Department to the Ministry of Justice;

- complete the demilitarisation process of the penitentiary system;

- complete the transfer of pre-trial custody centres (the so-called Militia Holding Facilities, ITTs) (still under the authority of the Ministry of the Interior), and of pre-trial detention centres under the authority of the security services [SBU];

Independence of the judiciary: appointment and tenure of judges

Opinion No. 190,

11, paragraph viii.

 

A draft law on reforming the court system is under consideration by the Rada

- adopt and implement

Protect the status of the legal profession by new law

Opinion No. 190,

11, Paragraph ix.

 

Introduction of the institution of ombudsman

- adopt and implement

The Constitutional Court shall 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

Opinion No. 190,

11, Paragraph x.

The Constitution of Ukraine (1996) contains the provisions with this regard

   

New non-discriminatory system of church registration and restitution of church property

Opinion No. 190,

11, paragraph xi.

 

Order for the State Property Fund of Ukraine (29/05/96) prohibits the privatisation of cult structures and non-cult buildings which belong to religious organisations. Two draft laws to amend the Law on freedom of conscience and religious organisations submitted to the Rada on 22/05/97 and 26/01/98

- introduce non-discriminatory system of church registration (by the Ministry of Justice) and restitute the churches’ property on their request ;

Development of policy towards ethnic minorities on the basis of the Framework Convention for the Protection of National Minorities

Opinion No. 190,

11, Paragraph xiii;

12. v.

 

Framework Convention ratified on 26/01/98;

In force as from 01/05/98

 

Ratify ECHR and Protocols 1, 2, 4, 7 and 11

Opinion No. 190

12. i

Ratified: 11/09/97

   

COMMITMENTS

SOURCE

HONOURED

MEASURES TAKEN

AUTHORITIES ARE URGED TO:

Sign within one year and ratify within three years Protocol No. 6 on the abolition of the death penalty

Opinion No. 190 12. ii.

Signed: 05/05/97

Ratified: 04/04/00

   

Refrain from signing the CIS Convention on Human Rights and other relevant CIS documents

Opinion No. 190

12. iii.

 

CIS Convention is not signed by Ukraine

 

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

Opinion No. 190

12. iv.

Ratified on: 05/05/97

Entered into force: 01/01/97

   

Sign and ratify Conventions on

extradition,

mutual assistance in criminal matters,

sentenced persons,

laundering, search, seizure and confiscation of proceeds from crime

Opinion No. 190 12. vi.

Ratified:11/03/98

Ratified: 11/03/98

Ratified: 28/09/95

Ratified: 26/01/98

   

Sign and ratify European Charter of Local Self-Government

Sign and ratify European Social Charter

Opinion No. 190 12. vii.

Ratified: 11/09/97

Signed : 02/05/96

-conduct policy in accordance with the principles of these conventions,

-ratify Social Charter

Sign and ratify European Charter for Regional or Minority Languages

Opinion No. 190 12. vii.

 

Signed: 02/05/96, adopted by the Rada on 24/12/99, but this ratification was declared unconstitutional by the Constitutional Court on 12/07/00;

new draft law on ratification submitted to the Rada on 30/08/01

- finalise the interrupted ratification process on the European Charter for Regional and minority languages

- ensure adequate protection for all minority groups in Ukraine

Sign and ratify Agreement on Privileges

Opinion No. 190

12. ix.

Ratified: 06/11/96

   

APPENDIX II

Comments of the Ukrainian delegation to the overview of the obligations and commitments of Ukraine prepared by the co-rapporteurs

Courtesy translation

5 June 2001

To :        Ms Renate WOHLWEND

Dear Co-Rapporteurs,

We have the honour to send to you comments and supplements to the overview of the obligations and commitments taken by Ukraine while her accession to the Council of Europe (Annex, 7 pages).

They have been prepared on the basis of information presented to the Permanent Delegation of the Supreme Rada of Ukraine to the PACE by the relevant parliamentary committees as well as by the Ministry of Foreign Affairs of Ukraine and the Ministry Justice of Ukraine.

The preparation of answers to your questions in the overview has allowed us to analyse once again activities by the state power bodies of Ukraine in the sphere of honouring of the obligations and commitments as well as to get reassured that these are being implemented despite serious internal difficulties Ukraine is facing for the time period.

In our opinion, this gives us every reason to hope for a well-balanced conclusion of the Monitoring Committee on the “Ukrainian issue”.

Please, accept assurances of our highest consideration.

Borys Oliynyk

Chairman of the Permanent Delegation

of the Supreme Rada of Ukraine to the PACE

Academician of the National Academy

of Sciences of Ukraine

Oleksandr Chalyi

Permanent Representative of Ukraine

to the Council of Europe

First Deputy Minister of Foreign

Affairs of Ukraine

Comments and supplementary notes to the table

on the Honouring of the Commitments and Obligations of Ukraine

as a Member State of the Council of Europe

Paragraph 1

On intimidation and repression of opposition politicians and the independent press, taking all necessary measures to discourage and curb attacks and threats against journalists and other media representatives, speedy and transparent investigation into all cases of violence against and the death of journalists.

Article 17 of the Law on Ukraine “On the State Support to Mass Media and the Social Protection of Journalists” stipulates that the responsibility for committing a crime against a journalist related to the performance of his/her professional duties or impeding his/her professional activities equals the responsibility for committing the same offence against a law enforcement officer.

The professional activities of a journalist cannot be used as grounds for his/her arrest, detention, or seizure of the materials that were collected, processed or prepared by him/her as well as of the technical means that he/she uses in his work.

In case of a fine imposed in accordance with the Civil Code of Ukraine upon a journalist and a mass media body for inflicting moral (non-proprietary) damages, they are held jointly responsible taking into account their respective share of liability.

In case of a conflict with regard to the inflicted moral (non-proprietary) damages between a journalist and a mass media body, on the one hand, and a government body or a local authority body or an official (officials) or an office holder (office holders), on the other hand, the court determines if there has been evil intent on the part of the journalist or the mass media body while taking into account the consequences of the use by the victim of an extrajudicial (pre-judicial) opportunities to refute false information, to uphold honour and dignity as well as to settle the conflict as a whole.

Articles 19, 20 and 21 of the Law state that grounds for bearing responsibility for violating this Law are the direct failure to implement, or the violation of, its provisions, impeding its implementation, as well as the failure to implement, or the violation of, the provisions of other legislative acts referred to in this Law.

The grounds for responsibility of government and local authority officials also include their interference into the professional, organisational and creative activities of mass media bodies and into the individual professional and creative activities of journalists, other infringements on the freedom of information activities, as well as biased decisions concerning mass media bodies and their staff when there are other co-founders.

Arbitrary action by government and local authority officials, by management of non-state organisations – founders (co-founders) of mass media entities, as well as by the management of mass media entities, and their violation of the provisions of this Law can be contested, in accordance with the Civil Code of Ukraine, Civil Proceedings Code of Ukraine and the Code of Ukraine on Administrative Offences, with a view to protecting the violated or contested right, or a law-protected interest, or to settle disputes among organisations or labour disputes.

The failure by the officials and other staff members of government and local authority bodies to implement the provisions of this Law and other legislative acts referred to in it entails criminal, administrative, disciplinary or other responsibility in conformity with Ukrainian Legislation.

On immediate abolishment of regulations and practices which allow for the closure, without judicial decision, of media outlets and the termination of broadcasting.

Article 19 of the Law of Ukraine “on Television and Radio Broadcasting” stipulates that the activities of a television or radio broadcaster are terminated by the decision of the founder (co-founders) or by that of the court, and the latter forwards, within a ten day period, a notification about this to the National Television and Broadcasting Council in order to have relevant changes made in the State Register.

In compliance with the Law of Ukraine “On printed Mass Media (the Press) in Ukraine”, the issue of a printed mass media publication can be terminated by the decision of its founder (co-founders) or by that of the Court.

On introduction of amendments to the Law of Ukraine “On the National Television and Broadcasting Council” in accordance with the expert assessment performed by the Council of Europe.

On 31 October 2000, Mr O. Zinchenko, Chairman of the Committee of the Supreme Rada of Ukraine addressed the Secretariat of the Council of Europe with a request to provide an opinion on the Law of Ukraine “On the National Television and Broadcasting Council”.

On 4 December 2000, a relevant analysis prepared by Mr K. Yakubovych, adviser to the Chairman of the National Television and Broadcasting Council of Poland, Chairman of the Steering Committee of the Council of Europe on trans-frontier television, was sent to Mr Zinchenko.

The above-mentioned comments are currently under consideration by the Secretariat of the Supreme Rada.

On stopping practices of pressure on the media through the leverages of printing and distribution

Article 34 of the Constitution of Ukraine stipulates that everybody is guaranteed the right to freedom of thought and speech, free expression of views and convictions. Everybody has the right to freely gather, store, use and disseminate information in oral, written or other form of one’s own choice.

The implementation of these rights can be limited by the law in the interests of national security, territorial integrity or public order to prevent disturbances or crimes, to protect public health, reputation or rights of other people, to prevent disclosure of confidential information or to support the authority and impartiality of justice.

Part one of Article 2 of the Law of Ukraine “On Television and Radio Broadcasting” states that television and radio organisations of Ukraine implement in their activities the principles of objectivity, reliability of information, competence, guarantee of every citizen’s rights to access to information, free expression of views and thoughts, ensuring ideological and political pluralism, adherence to the professional ethics and universally accepted standards of moral by their staff.

Article 2 of the Law of Ukraine “On Printed Media (the Press) in Ukraine” stipulates that freedom of speech and free expression of one’s views and convictions in the printed form are guaranteed by the Constitution of Ukraine and in accordance with this Law mean the right of any citizen to freely and independently seek, receive, record, store, use and disseminate any information by means of printed media.

Printed media enjoy freedom. It is forbidden to set up and finance state bodies, institutions, organisations or offices in order to censor media.

It is not allowed to demand preliminary consent to reports and materials which are disseminated by printed media, as well as to prohibit the dissemination of reports and material by officials from state bodies, enterprises, institutions or associations of citizens except the case when an official is the author of the information being disseminated or gave an interview.

The state guarantees the economic independence of and provides economic support for, the activities of printed media, prevents publishers and distributors from abuses of their monopoly position on the market. Actions to provide economic assistance to printed media as well as state executive bodies that perform this assistance are determined by the Cabinet of Ministers of Ukraine.

On the ratification of the European Convention on trans-frontier television

In accordance with the instructions of the Cabinet of Ministers of Ukraine dated 22 May 2001 and the instructions of the President of Ukraine dated 28 May 2001, the concerned central executive bodies should study the European Convention on trans-frontier television in order to ratify it and introduce the appropriate draft law.

At present the Committee on the Freedom of Speech and Information of the Supreme Rada of Ukraine has prepared and submitted to the Supreme Rada of Ukraine the draft law of Ukraine “On Amending Some Laws of Ukraine as a Result of the Parliamentary Hearings “Problems of Information Activities, Freedom of Speech, Adherence to Legality and the Situation of Information Security”. The draft law is based on critical remarks and proposals expressed during the parliamentary hearings on 16 January 2001, taking into account the requirements of PACE Monitoring Committee. The purpose of the proposed changes is to improve organisational, financial and economic conditions for the activities of the mass media, to prevent pressure on mass media and journalists, to create a competitive environment and equal conditions for the activities for mass media of different forms of ownership, to improve licensing mechanisms of the television and radio organisations.

The above-mentioned Committee has proposed to consider this draft law immediately. Its adoption will promote the honouring of obligations by Ukraine before PACE on the freedom of expression.

The Committee is also finalising the preparation of the new version of the Law of Ukraine “On Television and Radio Broadcasting”. A set of legislative initiatives foresees, in particular, the development of the legal framework in accordance with the standards of European legislation in the field of information and creation of preconditions to ratify the European Convention on trans-frontier television. The expert opinion of the Council of Europe on the Law of Ukraine “On the National Television and Broadcasting Council” is taken into account during its development.

Paragraph 2

No violations of the current Constitution of Ukraine on implementation the results of the all-Ukrainian referendum held on 16 April 2001, in particular, as regards the procedure to introduce amendments to the Constitution, have been registered.

Paragraph 3

The Permanent Delegation of the Supreme Rada of Ukraine in the PACE proposed in its letter dated 7 May 2001 to the President of Ukraine to approach the Venice Commission for the official interpretation of whether the adoption of the new Constitution of Ukraine (part II whereof sets forth the rights, freedoms and obligations of the individual and the citizen) is the implementation of Ukraine’s commitment pertaining to the framework act on the legal policy of Ukraine for the protection of human rights. At present, the Ministry of Foreign Affairs of Ukraine is preparing the Resolution “On the Basis of the State Policy on Human Rights”, adopted by the Supreme Rada of Ukraine on 17 June 1999 for forwarding it to the Venice Commission in order to receive the relevant expert opinion.

Paragraph 4

The draft Law of Ukraine on the judiciary did not receive the necessary majority in the third reading and was voted down on 24 May 2001.

Currently two alternative draft laws on judiciary have been submitted to the Supreme Rada of Ukraine:

The Committee on Legal Policy of the Supreme Rada of Ukraine has considered these draft laws of Ukraine on the judiciary system at its meetings on 22 and 25 May 2001 and adopted the decision by a majority of vote to recommend the Supreme Rada of Ukraine to adopt the first of the above-mentioned draft laws (taking into account the proposals by the authors of the second above-mentioned draft law) in the first reading.

Both draft laws were discussed at the Plenary meeting of the Supreme Rada of Ukraine session on 25 May 2001. The vote on this issue will be held on 7 June 2001.

It should be noted that both draft laws address the issues of the legal framework for courts, the activities of qualification commissions of judges of Ukraine to administer justice, solve the issues related to the status of judges and activities of the judges’ self-governing bodies.

Paragraph 5

On 17 May the President of Ukraine signed into Law the new Criminal Code, adopted by the Supreme Rada of Ukraine on 4 April 2001.

In order to adopt the new Code of Criminal Procedure of Ukraine as soon as possible, a working group has been set up in the Supreme Rada of Ukraine, whose task is to prepare and submit the draft Code for the first reading before September 2001.

Paragraph 6

The Provisional Drafting Commission on the new Civil Code is working in the Supreme Rada of Ukraine. It has considered almost 1000 proposals and critical remarks made by the subjects of the legislative initiative and has practically finished the preparation of all the eight books of the Code for the third reading. The Supreme Rada of Ukraine will consider them during the current Parliamentary session.

The draft Code of Civil Procedure of Ukraine was sent by the Ministry of Justice of Ukraine on 2- April for the consideration to the Cabinet of Ministers of Ukraine, to be subsequently submitted for consideration by the Supreme Rada of Ukraine.

Paragraph 7

The Law “On Elections of Peoples’ Deputies of Ukraine” was approved by the Supreme Rada of Ukraine on September 24, 1997. The Law “On Elections of Peoples’ Deputies of the Supreme Council of the Autonomous Republic of Crimea” was adopted on February12, 1997 with changes and supplements introduced by the Law of Ukraine of March 3, 1998.

The Law “On Elections of Local Radas Deputies and Village, Settlement, Town and City Heads” was adopted on January 14, 1998.

The Law of Ukraine “On Political Parties” was approved by the Supreme Rada on April 5, 2001. It was signed by the President of Ukraine and enforced on April 28, 2001 when it was published.

Paragraph 8

On May 24, 2001 the draft laws “On Amending the Law of Ukraine ”On Prosecutor’s Office”, “On Amending the Criminal Procedure Code of Ukraine”, “On Amending the Civil Procedure Code of Ukraine” were included into the Agenda of the 7th Session of the Supreme Rada of Ukraine. These bills envisage a change of the role and functions of the Prosecutor’s Office according to the new Constitution of Ukraine, to the principles and standards of the Council of Europe as well as to provisions of the draft Criminal Procedure and Civil Procedure codes, in particular regarding exercising of the general control of legality and arrest sanctioning.

Paragraph 9

With the purpose to accelerate the Ukraine’s honouring its obligations and commitments to the Council of Europe the Ministry of Foreign Affairs of Ukraine has initiated a Cabinet’s of Ministers of Ukraine instruction to the corresponding ministries and institutions to take the following urgent measures:

Paragraph 10

Obligations and commitments mentioned here will be implemented in the new Law of Ukraine “On Judicial System”.

Paragraph 20

In April 2001, in the framework of implementation of norms and principles of the European Charter of Local Self-Government ratified by Ukraine into the national legislation, the Supreme Rada of Ukraine approved the Law “On Bodies of Population Self-Organisation” (submitted to the President’s of Ukraine signing) and the Law of Ukraine “On the State Law Experiment of Local Self-Government Development in the Town of Irpin, Kyiv Oblast” (signed by the President of Ukraine) that had been elaborated by assistance of governmental structures of Sweden.

Following the recommendations approved by the Fifth CLRAE Session the Supreme Rada of Ukraine has passed the Law “On Local State Administrations” and “On Status of the Capital of Ukraine – the City-Hero of Kyiv”.

The Committee of the Supreme Rada of Ukraine on State Building and Local Self-Government is drafting the Programme of Self-Government Promotion, the Law “On the City-Hero of Sevastopol” and a new version of the Law “On Status of Local Rada Deputies” for submitting to the parliamentary consideration.

On May 16, 2001 the respective parliamentary Committee on Social Policy and Labour approved the decision to request the President of Ukraine to commission the Cabinet of Ministers of Ukraine to submit the draft Law “On European Social Charter Ratification” for consideration of the Supreme Rada of Ukraine.

Paragraph 22

In view of the fact that the Law of Ukraine “On ratification of the European Charter for Regional and Minority Languages, 1992” had been declared unconstitutional and invalid with the Decision of July 12, 2000 of the Constitutional Court of Ukraine, on May 28, 2001 the President of Ukraine, according to Article 7 of the Law of Ukraine “On International Agreements of Ukraine”, article 9,4,3 of the Supreme Rada of Ukraine Regulations as well as on the request of members of the Permanent Delegation of the Supreme Rada of Ukraine to the Council of Europe Parliamentary Assembly and the Ministry of Foreign Affairs of Ukraine on commissioned the Ministry of Justice of Ukraine jointly with the Ministry of Foreign Affairs of Ukraine to submit within a short time period a draft Law on ratification of the European Charter for Regional and Minority Languages to be submitted to the Supreme Rada of Ukraine.

Moreover, the relevant parliamentary committees on international affairs as well as on human rights, national minorities and interethnic relations are considering the draft Decision of the Supreme Rada of Ukraine ”On Provision for Honouring Obligations and Commitments to the Council of Europe by Ukraine” submitted by People’s Deputies of Ukraine B. Olyinik, A. Rakhanskiy, and Y. Marmazov on May 17, 2001. The draft envisages an alternative procedure of the Charter ratification, namely: it is suggested that I. Plyusch, Chairman of the Supreme Rada of Ukraine, “would submit without any delay the text of the Law of Ukraine “On Ratification of the European Charter of Regional and Minority Languages, 1992” adopted by the Supreme Rada of Ukraine on December 24, 1999” for signing by L. D. Kuchma, President of Ukraine”. The draft is planned to be considered at the beginning of June 2001.

APPENDIX III

Programme of the visit to Ukraine of the co-rapporteurs from 8 to 12 September 2001

Saturday, 8 September

14.15 Arrival of Mrs R. Wohlwend

Sunday, 9 September

14.10       Arrival of Mrs H. Severinsen and Mr Geza Mezei

17.00       Meeting with NGO’s in the Council of Europe Information Office in Kyiv

20.00       Working dinner with Mr Olexander Chalyi, State Secretary for European Integration, Permanent Representative of Ukraine to the Council of Europe in Strasbourg

Monday, 10 September

08.00        Working breakfast with Mr A. Zlenko, Minister for Foreign Affairs of Ukraine

09.00 Meeting with Mr I. Plusch, President of the Verkhovna Rada of Ukraine

10.15 Meeting in the Presidential Administration of Ukraine

11.30 Meeting with the Representative of the President of Ukraine in the Rada, Mr Roman Beszmertny

14.00 Meeting with Mrs Karpachova, Human Rights Commissioner

16.00 Meeting with representatives of fractions and groups of the Verkhovna Rada

17.30 Meeting with the Ukrainian Parliamentary delegation to the PACE

19.00 Meeting with Ambassadors of the CE member countries (organised by the Embassy of Latvia in Ukraine)

Tuesday, 11 September

09.00        Meeting with Mr Potebenko, Prosecutor General of Ukraine

10.30 Meeting with Mrs Gorbunova, Deputy Minister of Justice of Ukraine

12.00 Meeting with V. Boiko, President of the Supreme Court of Ukraine

13.00 Meeting with representatives of mass-media of Ukraine

15.00       Meeting with representatives of national minorities of Ukraine

15.25       Departure of Mrs Wohlwend

16.30 Meeting with Mrs L. Gongadze, mother of journalist G. Gongadze

18.00 Meeting with Mr O. Yel’ashkevych, Deputy head of the Committee for finances and banks activities of the Verkhovna Rada of Ukraine

19.00       Dinner offered by Mr B. Oliynik, Head of the Ukrainian Parliamentary Delegation to the Parliamentary Assembly of the Council of Europe

Wednesday, 12 September

09.00 Departure of Mrs H. Severinsen

14.10        Departure of Mr G. Mezei

APPENDIX IV

EXTRACTS OF 2001 CO-OPERATION PRORAMME FOR UKRAINE

I. TO STRENGTHEN THE RULE OF LAW

1       THE LEGAL FRAMEWORK AND ORGANISATION OF THE STATE

1.1 Constitution and constitutional issues

1.2 The legal norm

1.2.1 The drafting of legal norms

1.3 Administrative laws, administrative justice and functioning of the administration

1.3.1 The legal framework of the activities of the State and its bodies

1.3.2 The judicial control of administrative acts

1.4 Local and regional authorities

1.4.1 Local and regional democracy

1.5       Foreigners and citizens in a State governed by the Rule of Law

1.5.1 The law on foreigners and the right of asylum

1.5.2       Nationality/citizenship and alien's permanent residence

2.       LEGAL RELATIONS BETWEEN INDIVIDUALS

2.1 Legal framework

2.1.1 Civil law and civil procedure

2.1.2 Family law

2.2       Legal security

2.2.3       The company register

3. IMPROVING THE INDEPENDANCE AND THE FUNCTIONING OF

3.1 The judiciary and judges in a state governed by the rule of law

3.2       Harmonisation of the rules governing the profession of lawyers within a state

3.3       The role of court registrars and Rechtspfleger in improving the efficiency of

3.4 Legal aid and alternatives to legal aid

3.5 Mediation and alternative methods of solving disputes

3.6 The enforcement of judicial decisions in civil and commercial matters

4.       THE RULE OF LAW AND PUBLIC SAFETY

4.1 Criminal law and criminal procedure

4.1.1 The legal framework (criminal code and code of criminal procedure)

4.1.2 Juvenile justice

4.2       Fight against criminality and corruption

4.2.1 Prevention and control of criminality

4.2.2 Fight against corruption

4.3       The police in a State governed by the rule of law

4.3.1 The organisation of police

4.4       The penitentiary system

4.5 The public prosecution service in a state governed by the rule of law

5.       SCIENTIFIC REVOLUTION AND LEGAL PROTECTION OF HUMAN BEINGS

5.1 Bioethics

5.2 The new information society and the protection of personal data

5.3 Legal computer technology

II. BILATERAL AND MULTILATERAL ACTIVITIES IN THE FIELD OF HUMAN RIGHTS

1        HUMAN RIGHTS PROTECTION AND PROMOTION

1.1       Ensuring compatibility of domestic law and practice with European human rights standards

1.1.1 European Convention on Human Rights

1.1.2       European Social Charter

1.2 Improvement of procedures for the protection of human rights and mechanisms at national and European level

1.2.1        Government Agents

1.3 Training and awareness raising in human rights for the legal professions and law enforcement agencies

1.3.1 Legal professions

1.3.2       Police and Human Rights

1.4       Promoting knowledge and awareness of European human rights standards in civil society and supporting the development of a strong civil society attached to human rights values

1.5 Protection of specific rights or groups or in particular circumstances

1.6 Abolition of the death penalty

1.7       Promotion of non-judicial means for the protection of human rights

1.8        Consolidation and development of the legal protection of persons belonging to national minorities

Reporting committee: Committee on the Honouring of Obligations and Commitments by Members States of the Council of Europe.

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

Draft resolution and draft recommendation unanimously adopted by the committee on 24 September 2001

Members of the committee: MM. Mota Amaral (Chairman), Mr Polozhani, Mrs Severinsen, Mrs Durrieu (Vice-Chairs), Mrs Akgönenç, MM. Arzilli, Atkinson, Attard-Montalto, Bársony, Bartos, Begaj, Mrs Belohorska, MM. Bindig, van den Brande, Cekuolis, Christodoulides, Cilevics, Davis, Demetriou, Einarsson, Enright, Eörsi, Fayot, Mrs Feric-Vac, MM. Floros, Frey, Frunda, Gjellerod, Glesener, Gligoroski, Gross, Gürkan, Gusenbauer, Haraldsson, Holovaty, Irmer, Ivanenko, Jakic, Jansson, Jaskiernia, Mrs Jones, Mr Jurgens, Mrs Kanelli, Mrs Kautto, Lord Kilclooney, MM. Kostytsky, Landsbergis, van der Linden, Luis, Magnusson, Marmazov, Martinez Casan, Moeller, Neguta, Olteanu, Pollo, Popescu, Mrs Ringstad, MM. Rogozin, Saglam, Mrs Sehnalova, Mrs Shakhtakhtinskaya, MM. Slutsky, Smorawinski, Soendergaard, Mrs Stoyanova, M. Surjan, Mrs Tevdoradze, MM. Vahtre, Vella, Weiss, Mrs Wohlwend, MM. Yanez Barnuevo, Zierer.

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

Secretaries to the committee: Mr Ausems, Mr Mezei, Ms Clamer and Ms Trevisan.


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

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

3 These Laws were: on amendments to the Law “On the judicial system”; on amendments to the Law “On the Prosecutor General’s Office”; on amendments to the Criminal Procedure Code; on amendments to the Law “On the status of judges”; on amendments to the Law “On bodies of the judicial self-governance”; on amendments to the Law “On qualification commissions, qualifying certification and disciplinary responsibility of court judges”; on amendments to the Laws “On operative and search activity” “On the militia”, “On pre-trial custody”, “On administrative supervision over persons released from places of imprisonment”; on amendments to the Law “On the Court of Arbitrage”; on amendments to the Arbitrage Procedure Code; on amendments to the Civil Procedure Code.

4 Irex Pro-Media Ukraine Legal Defense and Education Programme, Internews Ukraine, Association of Independent Broadcasters - Equal Access.