9 January 2012
The functioning of democratic institutions in Ukraine
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe
Co-rapporteurs: Ms Mailis REPS, Estonia, Alliance of Liberals and Democrats for Europe, and
Ms Marietta de POURBAIX-LUNDIN, Sweden, Group of the European People's Party
The Monitoring Committee expresses its concerns with regard to the criminal proceedings initiated against a number of former government members. It considers that the charges amount to the post facto criminalisation of normal political decision-making. The committee considers that the assessment of political decisions and their effects is the prerogative of parliaments and, ultimately, of the electorate, and not of the courts. It therefore calls on the Ukrainian authorities to remove the articles of the Criminal Code that allow for the criminalisation of normal political decision making and asks that all charges based on these articles against former government members be dropped. In addition, the committee considers that the numerous shortcomings noted in the trials against formergovernment members may have undermined the possibility for them to obtain a fair trial within the meaning of Article 6 of the European Convention of Human Rights. In the view of the committee, these shortcomings are the result of systemic deficiencies in the justice system in Ukraine. These deficiencies, which are not new and have been long-standing concerns of the Parliamentary Assembly, are covered by the accession commitments of Ukraine to the Council of Europe. The committee therefore urges the authorities to promptly address these issues in line with Assembly recommendations. With regard to the upcoming elections, the committee regrets that the new electoral code for parliamentary elections does not take into account the main recommendations of the Assembly and the Venice Commission. It urges the authorities to implement a number of key recommendations before the next elections take place. In this respect, the committee considers that the upcoming parliamentary elections will be a litmus test for Ukraine’s commitment to democratic principles. With regard to the reform programme of the Ukrainian authorities, the committee is concerned that, despite the initial positive results, the drive and political will to implement these reforms are diminishing. It therefore urges the authorities to implement promptly the reforms needed to honour the country’s accession commitments and to build a robust democracy in the country.
71. The trials against the former government leaders have strained Ukraine’s relations with its European partners and undermined its European aspirations. While the reactions of the European Union and some of its member states are understandable, it is important to keep an eye on the larger strategic picture and to ensure that Ukraine’s further integration into the European family is not derailed. Only integration into the European family will ensure the consolidation of democracy and respect for human rights and the rule of law in the long run. This was also the essence of the message of Ms Timoshenko in her recent letter to European leaders, urging them not to cancel the Deep and Comprehensive Free Trade Agreement.
72. At the same time, it is also clear that the abuse of the justice system for political purposes cannot be tolerated from a member of the Council of Europe. While the country has the full right to prosecute anybody for ordinary crimes, it also has the obligation to ensure that each person obtains a fair trial and that the legal processes, including charges and convictions, are free from political influence and considerations. This is especially important when pursuing charges against leading politicians from the opposition.
73. We therefore call on the Ukrainian authorities, without further delay, to decriminalise ordinary political decision-making and to ensure that no-one will be, or remain, convicted for such charges. In addition, the Ukrainian authorities should ensure that all trials, and especially those against leading politicians, are in full compliance with the highest standards for a fair trial and that the principle of presumption of innocence should be respected. Detention on remand, especially when there is no risk of absconding or perversion of justice is unjustified and unacceptable. Those former government members who are currently in detention on remand should be released immediately pending their trial. Implementing these measures would be a clearsignal of the commitment of the current authorities to the norms and values of the Council of Europe. Conversely, failing to do so within a reasonable time frame, would raise serious doubts regarding the commitment of the authorities to the principles of democracy and the rule of law. In such an event, wewould recommend that the Assembly consider appropriate sanctions.
74. Inour previous report, we outlined the ambitious reform programme that was initiated by the current authorities and which was welcomed by the Assembly. Initially, several important results were achieved, including in the area of a closer integration of the Ukrainian economy into the European economic space. This underscores the importance given by the authorities to the closer European integration of the country. Regrettably, there are some indications that the reform process is running out of steam as only a few substantial developments have taken place with regard to the reform programme announced by the authorities. Implementing those reforms would have addressed, inter alia, a number of long-standing deficiencies and shortcomings that are at the origin of the criticism of the ongoing trials of former government members. Amendments promised to address concerns about the Law on the Judiciary and the Status of Judges, especially with regard to the independence of the judiciary, have not yet been put on the agenda of the Verkhovna Rada. We therefore call on the authorities to pursue their reform programme without hesitation or delay and to put constitutional reform as the top priority of this programme.
75. Since 2004, Ukraine has been holding elections that were globally in line with European standards.Unfortunately, the 2010 local elections deviated from that trend. Should the parliamentary elections in 2012 not be conducted in full compliance with European standards, this would be a serious regression in thecountry’s democratic development. That would be unacceptable. The upcoming parliamentary elections aretherefore a litmus test for Ukraine’s commitment to democratic principles.
76. Ukraine joined the Council of Europe in 1995 with the commitment to reform its democratic institutions in line with Council of Europe standards. The successive governments of the country have, to date, not honoured the accession commitments that were formulated to achieve that goal. All political forces, as well as the Verkhovna Rada as an institution, share responsibility for that. The current authorities, as well as all political forces in the country, should now make serious efforts finally to fulfil the remaining accession commitments and to build a robust democracy in the country.