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Resolution 1755 (2010) Final version
The functioning of democratic institutions in Ukraine
1. The Parliamentary Assembly welcomes
the increase in legislative activity in Ukraine in the wake of the 2010
presidential election and the establishment of a new governing coalition,
which could lead to political stability. It considers that political
stability is an essential condition for the consolidation of democracy
in Ukraine. However, it is concerned that this relative stability
is fragile, as the underlying systemic causes of the instability
that has plagued the country in recent years have not been addressed.
2. The Assembly reiterates that the only manner in which lasting
political stability can be ensured is through constitutional changes
that establish a clear separation of powers, as well as a proper
system of checks and balances between and within the executive,
legislative and judicial branches of power.
3. Noting the concerns expressed with regard to the concentration
of power by the new authorities in Ukraine, the Assembly considers
that the consolidation of power by a newly established administration,
when achieved according to democratic principles, is understandable,
and in many cases even desirable, but warns that such consolidation
should not lead to the monopolisation of power by a single political
force, as this would undermine the democratic development of the
country.
4. The Assembly warmly welcomes the priority given, and political
will displayed, by the authorities to honouring Ukraine’s remaining
accession commitments to the Council of Europe. The Assembly offers
its full support to the authorities in their efforts to implement
the ambitious and far-reaching package of reforms that are necessary
to honour Ukraine’s commitments and obligations as a member of the
Council of Europe.
5. The Assembly is concerned that the hasty manner in which the
authorities are implementing these reforms could negatively affect
respect for proper democratic principles and, ultimately, the quality
of the reforms themselves. The fulfilment of the remaining accession
commitments entails the implementation of a series of far-reaching
and complex reforms which will have a deep impact on Ukrainian society.
The successful implementation of these reforms is therefore only
possible if they are based on wide political consensus and public
support. This, in turn, is only possible if respect for parliamentary
procedures and democratic principles is strictly observed.
6. Close co-operation with the European Commission for Democracy
through Law (Venice Commission) is crucial to ensure that the legislative
reform packages that are currently being developed are fully in
compliance with European standards and values. The Assembly therefore
calls upon the authorities and leadership of the Verkhovna Rada
of Ukraine to ensure that the Venice Commission is asked for an
opinion on the final versions of draft laws before they are adopted
in a final reading.
7. The different areas that are covered by the recent reform
initiative have already been extensively addressed by the Assembly
in previous resolutions dealing with Ukraine. Reaffirming its position
on these reforms, the Assembly, with regard in particular to:
7.1. electoral reform:
7.1.1. reiterates its recommendation
that a Unified Election Code be adopted in Ukraine and welcomes
the fact that a draft for such a Unified Code has now been tabled
for adoption in the Verkhovna Rada;
7.1.2. considers that electoral reform should not only entail
the adoption of a new election code, but also of a new electoral
system, and reiterates its recommendation that an electoral system
be adopted that consists of a proportional system based on open
lists and multiple regional constituencies;
7.1.3. reiterates that the imperative mandate that was introduced
with the constitutional amendments of 2004 runs counter to European
democratic standards;
7.1.4. calls upon all political forces to make good on their
promise to reform the legal framework for elections and to demonstrate
the commensurate political will to adopt a Unified Election Code
and a new electoral system, in line with recommendations of the
Venice Commission and the Assembly, well before the next parliamentary
elections;
7.1.5. urges the authorities to adopt provisions on party financing
in the Law on Political Parties that are fully in line with European
standards, especially with regard to transparency of party financing,
and to consider additional measures that would reduce the dependence
of political parties on economic and commercial interests;
7.2. reform of the Prokuratura:
7.2.1. recalls that Ukraine, upon accession to the Council of
Europe, made the following commitment: “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”, and regrets that this commitment still remains to be
implemented;
7.2.2. reaffirms that the general oversight function of the Prosecutor’s
Office in Ukraine runs counter to European standards and that, also
as a result of that function, it has powers that far exceed those
necessary in a democratic state;
7.2.3. calls upon the authorities and the Verkhovna Rada to adopt,
as soon as possible and in close consultation with the Venice Commission,
a law on the public Prosecutor’s Office that is fully in line with
European standards and values;
7.2.4. considers that constitutional amendments are essential
to remove the general oversight function from the Prosecutor’s Office
and reform this institution in line with Ukraine’s accession commitments;
7.2.5. recommends that, as an alternative to the oversight function,
the role of the ombudsperson is strengthened and a system of free
legal aid put in place;
7.3. reform of the justice system:
7.3.1. considers that the reform of the judiciary and justice
system is essential for the consolidation of the rule of law in
Ukraine, and reiterates its position that this reform should be undertaken
with a view to, inter alia,
eliminating all forms of corruption in the judiciary, while ensuring
the independence of the courts;
7.3.2. considers that the Law on the Judicial System and the
Status of Judges of Ukraine is a cornerstone of the reform of the
justice system and a key to ensuring the independence of the judiciary.
It therefore deeply regrets that this law was adopted and enacted
in great haste in July 2010, without waiting for the opinion of
the Venice Commission that had been requested by the Minister of
Justice of Ukraine;
7.3.3. asks the authorities to bring the system of training of
judges and the training institutes into compliance with European
standards. For this purpose, judicial training must be part of the judicial
branch and should be controlled and supervised by an independent
body of judicial self-administration, as recommended by the Venice
Commission;
7.3.4. asks the authorities to ensure that the Law on the Judicial
System and the Status of Judges and the Law on Amendments to Legislative
Acts, concerning prevention of abuse of the right to appeal, take
into account any recommendations, or concerns addressed, in the forthcoming
Venice Commission opinions, by amending the laws as required;
7.3.5. considers that without constitutional amendments it will
not be possible to reform the judiciary in line with European standards
and values;
7.3.6. urges the authorities to reform the Bar and establish
a professional Bar association in line with the commitments Ukraine
undertook on accession to the Council of Europe;
7.3.7. asks the authorities to adopt, as soon as possible, the
new Criminal Procedure Code, to request Council of Europe expertise
on the draft of this code, and address any possible concerns before
it is adopted in a final reading;
7.3.8. calls upon the authorities to ensure that the justice
system is sufficiently funded from the state budget, as the current
situation of chronic underfunding increases the potential for corruption
and undermines the rule of law;
7.4. fight against corruption:
7.4.1. regrets the decision of the Verkhovna Rada to postpone,
until 2011, the entry into force of the package of anti-corruption
laws that were developed with the assistance of the Council of Europe,
as well as the vetoing by the former president of the anti-money
laundering law. The Assembly welcomes the adoption, by the Verkhovna
Rada, of the Law on Preventing and Counteracting the Legalisation
(Laundering) of Proceeds from Crime that came into force on 20 August
2010;
7.4.2. welcomes the priority given by the new president to the
fight against corruption and urges him to ensure that the aforementioned
package of anti-corruption laws is now enacted without further delay
and that all the recommendations made by the Group of States against Corruption
(GRECO) in its joint first and second round evaluation report are
now promptly implemented;
7.4.3. calls upon the Verkhovna Rada to adopt the laws that are
pending in parliament on Conflict of Interest and Ethics in Public
Service, on Asset Declarations of Public Officials and on Access
to Public Information, after having obtained a Venice Commission
opinion on these drafts;
7.5. civil society:
7.5.1. highlights
the importance of civil society for Ukraine’s democratic development
and therefore asks the authorities to speed up the adoption of a
new law on civic organisations with a view to addressing the deficiencies
noted in the current legal framework for non-governmental organisations;
7.5.2. asks the Verkhovna Rada to adopt the Law on Peaceful Assemblies,
on the basis of the comments and recommendations of the Venice Commission.
8. The Assembly expresses its concern about the increasing number
of credible reports of undue involvement by the Security Service
of Ukraine (SBU) in domestic political affairs, including pressure
put on journalists and party and civil society activists and their
relatives. It considers such activities unacceptable in a democratic
society and therefore calls upon the authorities to reform the security
services and their functions in line with European standards.
9. The Assembly notes that the reforms are constrained in many
areas by the current constitutional provisions. Therefore, it will
not be possible to implement the reforms necessary for Ukraine to
meet its commitments to the Council of Europe without first reforming
the constitution. The Assembly therefore calls upon the authorities
and opposition to jointly implement a constitutional reform package
that addresses the current shortcomings, as well as the underlying
causes of the systemic political instability, in line with its previous
recommendations. In this respect, the Assembly reiterates its previous
recommendation that the current constitution should be amended instead
of an entirely new constitution being adopted.
10. The Assembly takes note of the decision of the Constitutional
Court of Ukraine of 1 October 2010 that declares as unconstitutional
Law No. 2222 amending the constitution in 2004. The Assembly considers
that this decision should now prompt the Verkhovna Rada to initiate
a comprehensive constitutional reform process with a view to bringing
Ukraine’s constitution fully in line with European standards.
11. An increased respect for democratic freedoms and rights has
been one of the main achievements in Ukraine’s democratic development
in recent years. Any regression in the respect for and protection
of these rights would be unacceptable for the Assembly.
12. The Assembly expresses its concern about the increasing number
of allegations, and credible reports, that democratic freedoms and
rights, such as freedom of assembly, freedom of expression and freedom
of the media, have come under pressure in recent months. It considers
that the interference of state organs, such as the law enforcement
and security services, in the work of journalists and media organisations
is incompatible with a democratic society. The Assembly calls upon
the authorities to fully investigate all reports of infringements
of rights and freedoms and to remedy any violations found. In addition,
it calls upon the authorities to ensure that legal proceedings do
not result in the selective revocation of broadcasting frequencies and
to review any decision or appointment that could lead to a conflict
of interest, especially in the field of law enforcement and the
judiciary.
13. Media freedom and pluralism are cornerstones of democracy.
The Assembly is therefore concerned about recent developments that
could undermine these principles. It calls upon the authorities
to take all necessary measures to protect media freedom and pluralism
in Ukraine and to refrain from any attempts to control, directly
or indirectly, the content of the reporting in the national media.
14. The Assembly is concerned that allegations of possible electoral
fraud could indicate a lack of trust of electoral stakeholders in
the fairness of the conduct and administration of the forthcoming
elections. Considering that trust in the administration of the elections
is essential for their democratic nature, it calls upon the authorities
to ensure a balanced composition of the election administration
at all levels, including leadership positions. It recommends that
the authorities consider adopting additional measures to foster
the trust of electoral contestants and voters in the electoral process.
15. The Assembly reaffirms it readiness to assist Ukraine in strengthening
its democratic institutions and firmly establishing a society based
on the principles of democracy, respect for human rights and the
rule of law.