Ukraine in the Council of Europe: achievements, prospects, problems

Ukraine got the status of the state-member of the Council of Europe on 9 November 1995. This means, first of all, that Ukraine took the obligation to observe norms and rules determined in the documents of the Council of Europe. At present these legal instruments , which comprise about 170 conventions, charters, other multi-sided agreements and a great number of resolutions and recommendations adopted by the Parliament Assembly and the Committee of Ministers, make the legal field of the Council of Europe determining the standards in the sphere of human rights protection, guaranteeing the superiority of the right and real pluralistic democracy in the state-members.

The Council of Europe became for Ukraine an actual indicator of the development of democratic processes, a criterion of the concordance of her internal human rights protection practices to the international legal standards.

While assessing the results of joining the Council of Europe, one must pay attention to numerous factors, both objective and subjective, that resulted in today. s, rather critical, situation, concerning the fulfillment by Ukraine her obligations taken when entering the Council of Europe. The process of joining started during the first year of the existence of Ukraine as a sovereign state . the application for joining the Council of Europe was handed in by Ukraine on 14 July 1992. On 16 September 1992 delegates from the Supreme Rada of Ukraine got the status of . specially invited. to the Parliament Assembly of the Council of Europe.

On 27 July 1995 Ukraine sent a letter signed by Leonid Kuchma, the President of Ukraine, Oleksandr Moroz, the speaker of the Supreme Rada of Ukraine, and Evhen Marchuk, the Prime-Minister of Ukraine. In particular, this letter read: . Constitutional, legislative and economic reforms that are being realized in Ukraine are aimed at constructing a state system which would completely agree with the European standards, which would guarantee human rights and freedoms, in particular, the demands of the European Convention on human rights. .

At the same time the State Interagency Commission in charge of joining the Council of Europe prepared answers to the questions of the Parliament Assembly. On the base of these answers the obligations of Ukraine on entering the Council of Europe were formulated.

The reports on accepting Ukraine by the Council of Europe were made by three lawyers: Ms. Severinsen (Denmark), Mr. Nemet (Hungary) and Mr. Masseret (France). Ms. Severinsen and Mr. Kelam (Estonia) entered the Monitoring Committee of the Council of Europe, which had to observe how Ukraine was fulfilling her obligations. The Committee also kept reminding Ukraine about the necessity to fulfil the taken obligations. Since 9 November 1995 (which is the date of joining the Council of Europe) our state accepted 43 documents of the Council of Europe, 29 of which are ratified and 14 are signed and have juridical force (the list of ratified and signed documents see at Appendices 1 and 2).

One of the doubtless achievements, which single out Ukraine among other state-members, is the fact that the Constitution of Ukraine (adopted on 28 June 1996) includes almost all basic statements of the European Convention on human rights (ECHR). Part II of the Constitution . Rights, freedoms and duties of man and citizen. stipulates the rights guaranteed to citizens by the state. These rights correlate with articles of the ECHR, as seen from the following table.




11 September 1997 is an important date for Ukraine: on this day Mr. E. Perelygin, the charge d’affaires of Ukraine at the Council of Europe, handed D. Tarsisz, the General Secretary of the Council of Europe, the document on the ratification of the ECHR by Ukraine. According to Article 66 of the Convention, this document came into effect for Ukraine on this date.

The most complicated obligation among those taken by Ukraine is the abolition of the death penalty. Resolution 1112 (1997) of the Parliament Assembly remarked, as a serious violation of the obligations taken, on the absence of the moratorium on the execution of death penalties in Ukraine and on the continuation of executions during 1996. As a result of the pressure on the side of the Council of Europe, the executions in Ukraine were terminated without any juridical basis. However, the final legislative abolishment of the death penalty has not been achieved yet and continues to be an obstacle in the relations between Ukraine and the Council of Europe. During the January and June sessions of the Parliament Assembly the non-fulfillment of her obligations by Ukraine were considered. The results were summed up in Resolution No. 1179 (1999) of the Parliament Assembly. This document remarked that Ukraine has important achievements in solving interethnic conflicts by peaceful means, in avoiding large-scale social unrest, which resulted in making Ukraine a stabilizing factor in the region. As other achievements of Ukraine the document remarked the adoption of the Constitution, signing important documents issued by the Council of Europe, the adoption of the law on Presidential elections and adoption of the Constitution of the Crimean republic.

At the same time the document notes a number of drawbacks, more general of which are the absence of distinction between judicial, legislative and executive branches of power, attempts to control the situation and keep the political power, sometimes by illegal methods, on the side of the executive power, growth of corruption and crime, too slow process of legislative reforms, application of torture and degrading treatment to the detained, the state control over mass media. Sections 8 and 13 of this document again insist on the necessity to set the de jure moratorium on the execution of death penalties in Ukraine.

In Section 14 the document reproaches Ukrainian executive power and the Supreme Rada of Ukraine, keeping them responsible for the non-adoption of five important documents:

frame document on the policy of Ukraine concerning human rights protection;

frame document on the legal and judicial reforms;

new Penal and Penal-Procedural Codes;

new Civil and Civil-Procedural Codes;

new law on political parties (the latter demand is contained in Subsection V of Section 12 of Conclusion No. 190 of the Parliament Assembly of the Council of Europe).

In June 1999 the Parliament Assembly of the Council of Europe (PACE) again considered the fulfillment of the obligations taken by Ukraine. The results were summed up in Recommendation No. 1416 PACE, which pointed out that in the fulfillment of the main problems (listed in Resolution No. 1179 (1999) PACE), up to 20 May 1999, . no important progress has been achieved. . At the same time the document presented the steps which had been made by Ukraine in April 1999. Then the Supreme Rada adopted in the first reading the draft of the law . On the judicial system. . On 14 June 1999 the Constitutional court postponed the consideration of the question about non-Constitutional character of the death penalty . the question raised by MPs on the initiative of the Permanent Delegation of Ukraine in the Council of Europe. On 17 June 1999 the Supreme Rada of Ukraine adopted the frame document on the legislative policy concerning the human rights protection in Ukraine.

The final conclusion was the statement about . The achievement of certain progress on the way of fulfilling the obligations by Ukraine. . The Parliament Assembly recommended the Committee of Ministers to enforce the ADACS program for Ukraine, which is a program of measures aimed at the development and consolidation of democratic stability.

At the same time the Council of Europe suggested the new state-members other programs, which involve expert, informative, financial and other kinds of aid from the Council of Europe. So, beside the cooperation programs . Demosphen. , . Femida. , . LODE. and . Demo-right. , Ukraine was recommended to implement three yearly programs (. Aiding development and consolidation of democratic security. Cooperation with and aid to the countries of Middle and Eastern Europe. Programs for 1996 . 97 . 98. ). Among the main directions of these programs is the aid in legal, legislative, judicial, law-enforcing spheres and reformation of local self-rules. the details of the above-listed programs and reports on their fulfillment are published in the issues of the bulletin of the Ukrainian Information and Documentation Centre of the Council of Europe.

Appendix 1

LIST

of the Council of Europe Conventions ratified by Ukraine(by 20 July 1999)

001 The Statute of the Council of Europe (decision of the Supreme Rada of Ukraine of 31 October 1995 about joining the Council of Europe, 9 November 1995 . instrument of the ratification was handed to the General Secretary of the Council of Europe).

002 General Agreement on privileges and immunities of the Council of Europe and the Protocol to the General Agreement on privileges and immunities of the Council of Europe (the law of Ukraine on joining . 1 October 1996, coming to the effect for Ukraine . 6 November 1996).

005 European Convention on human rights, 1950 (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

009 Protocol 1 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

010 Protocol to the General Agreement on privileges and immunities of the Council of Europe, 1952 (ratified on 6 November 1996).

018 European Cultural Convention (the Supreme Rada of Ukraine ruled to join the Convention on 24 February 1994, ratified on 13 June 1994).

024 European Convention on the extradition of criminals, 1957 (the Supreme Rada of Ukraine ruled to join the Convention on 22 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 11 March 1998, came to the effect for Ukraine on 9 June 1998).

030 European Convention on the mutual aid in criminal cases, 1959 (the Supreme Rada of Ukraine ruled to join the Convention on 22 September 1995, signed on 30 May 1997, handing the ratification instrument to the General Secretary of the Council of Europe on 11 March 1998, came to the effect for Ukraine on 9 June 1998).

044 Protocol 2 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

045 Protocol 3 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

046 Protocol 4 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

051 European Convention on observation of conditionally sentenced or conditionally released culprits, 1964 (the Supreme Rada of Ukraine ruled to join the Convention on 22 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 28 September 1995).

055 Protocol 5 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

062 European Convention on information concerning foreign legislation, 1968 (the Supreme Rada of Ukraine ruled to join the Convention on 14 July 1993, ratified on 13 June 1994).

073 European Convention on transferring criminal cases, 1972 (the Supreme Rada of Ukraine ruled to join the Convention on 22 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 28 September 1995).

086 Additional Protocol to the European Convention on extradition of criminals, 1975 (handing the ratification instrument to the General Secretary of the Council of Europe on 11 March 1998, came to the effect for Ukraine on 9 June 1998).

097 Additional Protocol to the European Convention on information concerning foreign legislation, 1978 (the Supreme Rada of Ukraine ruled to join the Convention on 14 July 1993, handing the ratification instrument to the General Secretary of the Council of Europe on 13 June 1994).

098 Second additional Protocol to the European Convention on extradition of criminals, 1978 (handing the ratification instrument to the General Secretary of the Council of Europe on 11 March 1998, came to the effect for Ukraine on 9 June 1998).

099 Additional Protocol to the European Convention on transferring criminal cases, 1978 (handing the ratification instrument to the General Secretary of the Council of Europe on 11 March 1998, came to the effect for Ukraine on 9 June 1998).

104 Convention on the protection of wild flora, fauna and natural environments in Europe (5 January 1999).

106 European Convention on main principles of trans-frontier cooperation between territorial communities of power bodies, 1980 (the Supreme Rada of Ukraine ruled to join the Convention on 14 July 1993, handing the ratification instrument to the General Secretary of the Council of Europe on 21 September 1993).

112 European Convention on extradition of convicted person, 1983 (the Supreme Rada of Ukraine ruled to join the Convention on 22 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 28 September 1995).

117 Protocol 7 to the European Convention on human rights (signed on 19 December 1996, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

118 Protocol 8 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

122 European Charter on local self-rule, 1985(signed on 6 November 1996, handing the ratification instrument to the General Secretary of the Council of Europe on 11 September 1997).

126 European Convention against torture and inhumane and degrading treatment or punishment, 1987 (signed on 2 May 1996, the law of Ukraine adopted on joining the Convention on 24 January 1997, handing the ratification instrument to the General Secretary of the Council of Europe on 5 May 1997).

141 Convention on laundering, search, arrest and confiscation of money earned in a criminal way, 1990 (signed on 30 - 31 May 1997, the law of Ukraine adopted on joining the Convention on 15 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 26 January 1998, came to the effect for Ukraine on 1 May 1998).

155 Protocol 11 to the European Convention on human rights (signed on 9 November 1995, ratified on 17 July 1997, came to the effect for Ukraine on 11 September 1997).

157 Frame Convention on the protection of national minorities (signed on 15 September 1995, handing the ratification instrument to the General Secretary of the Council of Europe on 26 January 1998, came to the effect for Ukraine on 1 May 1998).

Appendix 2

LIST

of the Council of Europe Conventions signed by Ukraine(by 20 July 1999)

035 European Social Charter (signed on 2 May 1996).

114 Protocol 6 to the European Convention on human rights concerning the abolition of the death penalty (signed on 5 May 1997).

European Convention on trans-frontier television (signed on 14 January 1996).

135 Anti-doping Convention (signed on 2 July 1998).

143 European Convention on the protection of archeological inheritance (reconsidered version signed on 2 July 1998).

148 European Charter on regional languages and languages of minorities (signed on 2 May 1996).

151 Protocol 1 to the European Convention against torture and inhumane and degrading treatment or punishment (signed on 26 January 1998).

152 Protocol 2 to the European Convention against torture and inhumane and degrading treatment or punishment (signed on 26 January 1998).

160 European Convention on realization of children. s rights (signed on 7 May 1999).

162 Protocol 6 to the General Agreement on privileges and immunities of the Council of Europe (signed on 3 November 1998).

163 European Social Charter (reconsidered version signed on 7 May 1999).

165 Convention on nostrification of qualifications in higher education in the European region (signed on 11 April 1997).

169 Protocol 2 to the European Convention on main principles of trans-frontier cooperation between territorial communities of power bodies (signed on 3 November 1998).

173 Convention on the criminal right concerning corruption (signed on 27 January 1999).