The functioning of democratic institutions in Ukraine
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe(Monitoring Committee)
Co-rapporteurs: Mrs Mailis REPS, Estonia, Alliance of Liberals and Democrats for Europe, and Mrs Mariettade POURBAIX-LUNDIN, Sweden, Group of the European People's Party
1. The Parliamentary Assembly expresses its concern with regard to the criminal proceedings initiatedunder Articles 364 (abuse of office) and 365 (exceeding official powers) of the Criminal Code of Ukraineagainst a number of former government members, including against former Minister of the Interior, Mr JuriyLutsenko, former Acting Minister of Defence, Mr Valeriy Ivashchenko, former first Deputy Minister of Justice,Mr Yevhen Korniychuk, as well as former Prime Minister, Ms Yulia Tymoshenko.
2. The Assembly considers that Articles 364 and 365 of the Ukrainian Criminal Code are overly broad inapplication and effectively allow for post-facto criminalisation of normal politicaldecision-making. This runscounter to the principle of the rule of law and is unacceptable. The Assembly therefore urges the authoritiespromptly to remove these two articles from the Criminal Code and for the charges against formergovernment officials which are based on these provisions to be dropped. The Assembly wishes toemphasize that the assessment of political decisions and their effects is the prerogative of parliaments, andultimately of the electorate, and not of the courts. It considers that that strict international standardsdelimitating political and criminal responsibility need to be developed.
3. The Assembly regrets the numerous shortcomings noted in the trials against former governmentmembers and considers that they may have undermined the possibility for the defendants to obtain a fair trialwithin the meaning of Article 6 of the European Convention of Human Rights.
4. Inthe view of the Assembly, these shortcomings are the result of systemic deficiencies in the justicesystem in Ukraine. These deficiencies are not new and have been longstanding concerns of the Assembly,relating, inter alia, to the lack of independence of the judiciary, the excessive recourse to, and length of,detention on remand, the lack of equality of arms between the prosecution and defence, as well as theinadequate legal reasoning by the prosecution and courts in official documents and decisions.
5. With regard to the independence of the judiciary, the Assembly:
5.1. reaffirms its deep concern about the lack of independence of the judiciary and considers this isthe principal challenge for the justice system in the country;
5.2. considers that the current judicial appointment procedure undermines the independence of thejudiciary. It invites the authorities to abolish or, at least considerably shorten, the 5 year probationaryperiod for judges and to remove the Verkhovna Rada from the appointment process;
5.3. also considers that judges in their probation period should not preside over politically sensitive orcomplex cases;
5.4. further considers that the composition of the High Council of Justice runs counter to the principleof separation of powers and also undermines the independence of the judiciary. The Assemblytherefore asks for amendments to be adopted to the relevant laws that effectively remove therepresentatives of the Verkhovna Rada, the President of Ukraine and the Prokuratura from themembership of the High Council of Justice. Pending the adoption of these amendments, these three
institutions should appoint non-political members to the High Council of Justice;
5.5. invites the Verkhovna Rada promptly to adopt the necessary constitutional amendments that
would remove the provisions which impede the implementation of the recommendations of the
Assembly mentioned in paragraphs 5.2. and 5.4.;
5.6. expresses its concern about the many credible reports that disciplinary actions have been
initiated started, and judges removed from office by the High Council of Justice on the basis of
complaints of the Prosecutor’s office because due to the fact that the judges in question had decidedagainst the prosecution in a given court case. Such practices are incompatible with the principle of therule of law and should be stopped at once.
6. With regard to detention on remand, the Assembly:
6.1. expresses its concern regarding the excessive recourse to detention on remand, often without
justification or valid reasons, in the Ukrainian justice system;
6.2. notes in this regard that unlawful and excessive detention on remand is one of the major issuesin judgments handed down against Ukraine by the European Court of Human Rights;
6.3. reaffirms that, in line with the principle of presumption of innocence, detention on remand shouldonly be used as a measure of last resort when there is a clear risk of absconding or subversion ofjustice;
6.4. calls upon the authorities to ensure that the Criminal Procedure Code provides a clear procedurefor the review of the lawfulness and duration of detention on remand. In addition, guidelines should begiven that ensure that detention on remand is only applied as a measure of last resort and only on thebasis of a well-grounded decision by a court.
7. With regard to equality of arms between the prosecution and defence, the Assembly:
7.1. notes with concern the bias in favour of the prosecution which is endemic in the Ukrainian justicesystem;
7.2. calls upon the authorities to ensure that, in the Criminal Procedure Code, the equality of armsbetween prosecution and defence is guaranteed both in law and in practice;
7.3. invites the authorities in particular to ensure that the Criminal Procedure Code explicitly providesfor the defence to be provided with a copy of the case file of the prosecution and given a reasonabletime, under the control of a judge, for the defence to familiarise itself with the case file.
8. The Assembly notes with concern of reports that the health of former Minister of the Interior, Mr JurijLutsenko, and former acting Minister of Defence, Mr Valeriy Ivashchenko, who are in detention on remand, israpidly deteriorating and that both persons need medical treatment outside the prison system. The Assemblyasks that both men be released at once for humanitarian reasons pending the outcome of their trial, also inview of its concerns regarding recourse to detention on remand in Ukraine.
9. The Assembly welcomes the fact that a number of important reforms were implemented, inter alia, inthe area of the integration of the Ukrainian economy in the European economic space. This underscores theimportance given by the authorities to the closer European integration of the country.
10. The Assembly reaffirms its position that it will not be possible to implement the reforms necessary forUkraineto meet its commitments to the Council of Europe without first reforming the current Constitution. Ittherefore calls upon the President and Verkhovna Rada promptly to initiate a comprehensive constitutionalreform process and not to delay this until after the next Parliamentary elections have taken place. TheAssembly welcomes the positive opinion given by the European Commission for Democracy through Law(Venice Commission) to the proposal for a Constitutional Assembly, which the Assembly expects will be atthe basis of the constitutional reform process. In addition, the Assembly urges the authorities to make full useof the recommendations given by the Venice Commission’s opinions on previous drafts for constitutionalreform.
11. The Assembly welcomes the systematic requests by the authorities for the opinion of the VeniceCommission on draft laws prepared by them. However, it notes that, on several occasions, the draft laws onwhich opinions have been asked are subsequently withdrawn and that recommendations of the VeniceCommission are not addressed in those laws adopted ultimately by the Verkhovna Rada. The Assemblytherefore urges the authorities to take fully into consideration the opinions of the Venice Commission whenpreparing new laws, including on previous drafts on the same subject matter. In this context, the Assemblyexpects that the positive opinions given on the draft laws –prepared by the Presidential Commission for the
Strengthening of Democracy– on the bar, on freedom of assembly and on the constitutional assembly willbe taken into consideration in the draft laws that are sent to the Verkhovna Rada for adoption.
12. The Assembly takes note of the adoption, on 17 November 2011, of the Law of Ukraine on the Electionof Peoples Deputies. While welcoming that a number of its previous concerns were addressed, the Assemblyregrets that its main recommendations, namely the adoption of a Unified Election Code, and the adoption ofa regional proportional election system, were not implemented. With regard to the new electoral legislation,the Assembly:
12.1. emphasises that the adoption of this parliamentary election law should not be used as a pretextfor not adopting a Unified Election Code, which is still needed to ensure a coherent legal framework forall elections in Ukraine which is fully in line with European standards;
12.2. is concerned that the raising of the threshold for the proportional elections to 5%, combined withthe prohibition on parties to form electoral blocs to contest the elections, will negatively affect theopportunities for new or smaller parties to enter Parliament. The Assembly is concerned that theseprovisions may reduce pluralism, and further increase polarisation, in the new Parliament. Itrecommends that the threshold be lowered and the prohibition on electoral blocs be removed from theelectoral legislation, before the next parliamentary elections;
12.3. regrets the continued inclusion in this law of provisions that limit the right to stand for election foranyone convicted of a crime, regardless of the severity of the crime committed, and requests thatconstitutional amendments be adopted promptly that would allow these provisions to be removed fromthe electoral legislation;
12.4. calls upon the authorities to fully implement the recommendations of the Council of EuropeGroup of States against Corruption (GRECO) with regard to political party financing.
13. The Assembly considers that the upcoming parliamentary elections will be a litmus test for Ukraine’scommitment to democratic principles. The Assembly is of the view that international observation of theseelections will substantially contribute to their democratic conduct. It considers the Assembly should contributeto the international election observation efforts with a large delegation.
14. The Assembly notes that several important accession commitments have still not been fulfilled, despitethe fact that Ukraine acceded to the Council of Europe in 1995, nearly 17 years ago. The successivegovernments of the country, as well as the Verkhovna Rada and its political factions, share responsibility forthis failure. In Resolution 1755 (2010) the Assembly welcomed the ambitious reform programme of theauthorities to honour the remaining accession commitments. Despite the initial positive results in severalareas, the Assembly is concerned about signals that the drive and political will to implement these reformsare diminishing. The Assembly therefore urges the authorities, as well as all political forces in the country, toimplement promptly the reforms needed to honour the country’s accession commitments and to build arobust democracy in the country.
 Draft resolution adopted unanimously by the committee on 15 December 2011.