Human Rights in Ukraine

http://khpg.org/en/index.php?id=1247500411


13.07.2009 | Vsevolod Rechytsky

Draft Constitution of Ukraine

   

This new draft Constitution (author: Vsevolod Rechytsky) with article by article commentary is based on  the modern understanding of human rights protection

CONSTITUTION OF UKRAINE

(With article by article comments, draft 2009)

 

 

We, the Ukrainian People – citizens of Ukraine of all nationalities,

BASED on the centuries-old history of Ukrainian state-building,

LOOKING after the exercise of our rights and fundamental freedoms,

STRIVING to subordinate the state power to the interests of an individual, and the State in general – to the general public interest,

TAKING CARE of the life, freedom, and prosperity of the current and coming generations,

EXPRESSING our sovereign will,

adopt this Constitution as the Fundamental Law of Ukraine.

As compared to the Preamble to the current 1996 Constitution of Ukraine, the proposed Preamble to the draft Constitution is shorter, which is due to a new subject for the adoption of the Basic Law. If previously it was a legal entity, the Verkhovna Rada of Ukraine, now it is the Ukrainian People.

It is obvious that in this case it is not possible to mention the responsibility to the God or one’s own consciousness, as such relation is purely personal and personified. Not all citizens of Ukraine are believers, while believers belong to different churches and confessions. In addition, consciousness is a category which also exists in an individual format.

It would also be politically incorrect to mention that the People pass the Constitution being governed by the Independence Proclamation Act of 24 August 1991, since such broad scale political subjects as a nation or the people stand higher than any legal written self-obligations. The Preamble testifies the intention of the sovereign people to introduce a new Constitution of the state. As a sovereign, the Ukrainian People do not have any commitments in terms of any previously passed legal acts, external political forces, or circumstances.

 

Section І

GENERAL PRINCIPLES

The principles of the draft Constitution are based on the world outlook positions which reflect the universal patterns of constitutionalism of the Liberal Democratic nature. This Section of the Constitution defines the main parameters of the public and political life in Ukraine. They are presented in the form of concise constitutional provisions (values, principles, norms), which set the background for the perception of the entire constitutional text.

Article 1

1. The will of the People shall define the will of the Ukrainian State and shall be the highest political power.

2. The Constitution of Ukraine shall be the highest legal power.

3. The legislative, executive, and judicial branches of power in the Ukrainian State shall be subordinated to the will of the People and this Constitution.

Article 1 of the draft Constitutions sets that the will of the Ukrainian People should be the highest political authority. This means that the will of the Ukrainian People should be the highest live (represented by people) power in Ukraine. In its turn, the Constitution is defined in this article as the embodiment of the highest legal (abstract) will in the state. Passing the Constitution, the People consider it to be the guarantee of their freedom, the main tool to limit the bureaucratic expansion of the state. At the same time, the Constitution is a legal act which sets the rules of not only political cooperation between individuals, but also the functioning of the entire state mechanism, the Ukrainian State as such.

Article 1 of the draft Constitution is based on the idea that the sovereignty of the Ukrainian People should be higher than the state sovereignty of Ukraine, which urges the necessity to establish legal restrictions in relation to the State. Thus, it is logical that the Constitution serves as the main guarantor of the civil freedom, and that legally it stands over the functionally necessary, but politically instrumental state order. The theory of this type of fundamental political relations is described in the works of Friedrich von Hayek ("The Constitution of Liberty", "Law, Legislation and Liberty"), John Rawls ("A Theory of Justice", "Political Liberalism"), Ronald Dworkin ("Freedom’s Law"), Robert Nozick (“Anarchy, State and Utopia”), Brian Tamanaha (“On the Rule of Law”) and many others.

Due to its higher reasoning in relation to the political power of live people and the state in general, the legal power of the Constitution is strategic. It appears in the form of basics, principles, human rights, fundamental freedoms, as well as the rules set for the functioning (through the ratio of competences) of the main elements of the state mechanism. Such idea of the basic law is typical for the modern understanding of constitutionalism which in the West is identified with the rule of law.

At the same time, the coercive subjugation to common specific objectives (like it happened with Communism or fascism) equals to slavery, while subjugation to common abstract rules, however weighty their burden may seem to be, ensures space for broad freedom and diversity, as Friedrich von Hayek was writing. Thus, it is the constitution which should be the highest power authority in the society, while public authorities should become the main objects falling under its influence and the main channels of its implementation. The abstract is a rule, and the state is its implementation, as Hegel stressed in his time.

The constitution, however, is not just the main law. It represents everything which distinguishes law from legislation. Law is more universal than legislation in which it materialises. It is this circumstance that explains the relative integrity of the world constitutionalism and its noticeable dependence on specific national policies.

Article 2

1. The freedom of the people shall be the main aim of this Constitution.

2. The civil peace, safety, security, and stability shall be the main objectives of the Ukrainian State.

3. The objectives of the Ukrainian State shall be subordinated to the main aim of the Constitution of Ukraine.

4. To be free in dealing with its destiny shall be the main result of the freedom of the people for each Ukrainian citizen.

5. To act within the limits of the powers outlined by this Constitution and laws shall be the main result of the freedom of the people for each official and public servant.

The life of any modern society requires stability, but at the same time also dynamics and freedoms which are not in the best relations with stability. The constitution should react to this situation. By choosing only stability, people risk getting into authoritarianism and totalitarianism. Accepting only freedom, they lose benchmarks and start moving towards chaos. In order to avoid extremes, the modern constitutional systems are designed as bipolar models: part of the norms concern order and stability, while the rest deal with freedom.

As public freedom is strategically more important than the order, constitutions, in their best historic examples, take the side of freedom. A modern liberal and democratic constitution is a guarantor of freedom, the expression of which in a sound society is the measure of positive lack of regulation in economy (market), politics (democracy), and private life (privacy). In such a way, the constitution is not so much a regulator of the public life, as the guarantor against its excessive orderliness, bureaucratic regulation etc.

Freedom, however, is necessary as a priority of the Constitution. It is guaranteed by the constitutional norms not only because expressions of freedom in economy, politics, and private life bring higher efficiency, but also because freedom is important as a moral factor. Only free individuals are fully responsible for their actions.

Part 1 of Article 3 of the current Constitution sets that it is not freedom, but “human life, health, honour and dignity, inviolability and safety” that are recognized as the highest social value in Ukraine. In such a way, the current Constitution has an expressly guarding nature in relation to an individual. Literal interpretation of Article 3 of the Constitution may come to a paradoxical conclusion that the Constitution prohibits to risk a human life even during a war. This norm presumes that independence and sovereignty of the country, inviolability of its borders give in to the highest social value – the life of an individual. Constitutional articles, however, should not be metaphoric, but rather use legal norms aiming at a specific practical action.

The proposed text of the Constitution is based on the idea of public freedom as the highest value not only under the normal (peaceful) condition, but also in the state of emergency and under a martial law, when freedom requires additional guarantees for its preservation, as it is in these periods that the domination of the state over an individual becomes in particular threatening.

Among the main objects of legal protection, the draft Constitution lists life, freedom, and prosperity of the current and coming generations (the Preamble). It should be noted that each of the known constitutional systems in the world is unique from the point of view of their principles. In the USA, these include the principles of the English constitution in combination with the natural law and common sense; in France – freedom, property, security, and resistance to oppression. Also such ideas as T. Jefferson’s "right to life, freedom and pursuit of happiness", F. Roosevelt’s "four freedoms", W. Wilson’s "fourteen points" etc are well-known as well.

In addition, for modern constitutionalism not just norms, but also the structure of the basic law is important, just like its legal atmosphere, the concepts used in it, the type of regulation. Compact, but meaningful constitutional priorities do not have an immediate effect, but their effect is deep.

In this context, the first Section of the draft Constitution is designed as a legal guarantee that the will of the Ukrainian People defines the will of the State, i.e. serves as the highest political power. Unlike the will of the Ukrainian People, the Constitution of Ukraine is the highest legal power. In its turn, the State is defined in the Constitution as the source of power which ensures the supremacy of the Basic Law. For the force of the state to be efficient, it should be based on democracy and it should be legitimate.

Article 2 of the draft Constitution contains a norm according to which action within the limits of the powers outlined by the Constitution and laws shall be the main result of the freedom of the people for each official and public servant. This approach is less radical than the one fixed in Part 2 of Article 19 of the current Constitution (which fully prohibits any discretional powers). In particular, the phrase used in Part 2 of Article 19 of the current Constitution whereby "public authorities and local self-governance bodies, their officials shall act only on the basis, within the powers and in the manner envisaged by the Constitution and laws of Ukraine" actually leaves no space for political maneuvers of the highest political officials.

As it is proved by the modern practice, discretional powers should be prohibited (in the peaceful time) only to the officials of the military and law-enforcement authorities. In the proposed draft provisions of Part 2 of Article 19 of the Fundamental Law are transferred to Part 2 of Article 153.

Article 3

1. Ukraine is a sovereign, democratic and constitutional state.

2. Ukraine is a unitary republic.

3. There is single citizenship in Ukraine.

Article 3 of the draft Constitution establishes the key legal characteristics of the Ukrainian state. Here almost everything is preserved as in the current Basic Law. Just the provision describing Ukraine as a social state has been excluded, as there are no real grounds to establish this feature at the constitutional level.

Article 4

1. The State is responsible to the citizens for its activities.

2. The main obligation of the State shall be to guarantee human rights and fundamental freedoms.

3. Everyone shall be entitled to launch a legal action both against the Ukrainian State, and its authorities and officials.

4. All without exclusion public officials shall serve for the benefit of the interests of the Ukrainian People. Their powers shall be defined specifically in this quality.

According to Article 4 of the draft Constitution, the competence of all public officials should meet the principle of serving the Ukrainian People. This norm is important as a guideline for the current legislation. In this case, the notion of public officials is universal, as it allows one definition to encompass the higher rank politicians and public servants in the traditional meaning of this word.

In the majority of cases, servants of the people do not differ from other subjects of economy in terms of satisfying their interests. The principle of serving envisages that definition of the competence of officials should be governed by the publicly useful activities, through their real motivation may remain egoistic. Therefore the citizens are also guaranteed the right of legal action against the Ukrainian State as such, its authorities, and individual representatives.

Article 5

1. The right to determine and change the basics of the constitutional order in Ukraine shall belong to the People. It cannot be taken away by the State, its authorities or officials.

2. The People shall exercise the power both directly, and through public authorities and local self-governance bodies.

3. Should the freedom of the Ukrainian People be threatened, the people’s resistance to such threat shall be recognized legitimate.

Article 5 of the draft Constitution contains a concisely expressed right to democratic rebellion. Taking into consideration the experience of the Orange Revolution, Part 3 of Article 5 of the draft Constitution contains a provision that the people’s resistance for the protection of public freedom should be recognized legitimate.

A democratic rebellion is a classic element of the world constitutional culture. In particular, Article 20 of the FRG Constitution of 1949 envisages the right of the citizens to resist anybody who decides to make an attempt at their democratic order if it is not possible to use other means. Article 23 of the Czech Constitution of 1992 stipulates that citizens should resist any attempts at the democratic principles of human rights and fundamental freedoms if the functioning of constitutional bodies and the use of legal means in the country become impossible.

Article 120 of the Greek Constitution of 1975 obliges citizens should resist by any means to the attempts to cancel the Constitution in a violent way. Article 32 of the Constitution of Slovakia of 1991 proclaims that if the functioning of the constitutional authorities or the use of legal norms becomes impossible, each citizen shall have the right to resist to all who dare to make an attempt at the democratic functioning of human rights and fundamental freedoms. The same right is envisaged by Article 54 of the Estonian Constitution of 1992, Article 3 of the Lithuanian Constitution of 1992 etc.

Article 5 of the draft Constitution, like the rest of its text, is based on the idea that Crimean authorities (by their generic characteristics) are attributed to Ukraine’s local self-governance bodies.

Article 6

1. The power in Ukraine shall be exercised on the principles of its division into legislative, executive, and judicial branches. The legislative and the executive branches of power shall be autonomous in relation to one another. The judicial power shall be independent from the legislative and the executive branches.

2. The bodies of the legislative, executive, and judicial branches shall exercise their authorities within the limits established by this Constitution and laws.

3. The judicial power shall be governed by the will of the people only if it is expressed in the form of a law.

Article 6 of the draft Constitution is dedicated to the principle of division of power. Unlike the current Fundamental Law, the proposed text stipulates that the legislative and the executive branches are autonomous from each other. The notion of autonomy in this case is weaker than the idea of independence, but it matches the substance of the case better. Absolute division of powers is normally characteristic of presidential republics like the USA. As concerns the Ukrainian constitutional model, it is designed as a presidential-parliamentary republic, where the branches of power are not fully separated from each other.

The draft Constitution contains an idea that the judicial branch is independent from the legislative and the executive power. Thus, from the very beginning the structure of the judicial power is built in such a way that the judicial power is perceived not as an offset of the state power, but rather as a specific branch of power in the state. That is why it is provided with strengthened guarantees of independence. This is because in a constitutional state the court is not so much a state, but rather a super-state institution. It has to judge the state not being a judge in its own case. Article 6 of the draft stresses that the judicial power is governed by the will of the people only if it is expressed in the form of a law. The judicial power is prohibited from being an instrument for implementation of political moods of the masses; it is supposed to function exclusively on the basis of legal norms.

Article 7

1. The rule of law shall be recognized in Ukraine. Judicial decisions shall be approved in the name of the Law.

2. The Constitution of Ukraine shall have the highest legal force.

3. The norms of the Constitution of Ukraine shall be the norms of direct effect. Appeals to the court for protection of human rights and fundamental freedoms directly on the grounds of the Constitution of Ukraine shall be guaranteed.

Article 7 of the draft Constitution is dedicated to the principle of the rule of law. Unlike the current Basic Law, it stresses that judicial decision are passed not in the name of Ukraine (Article 124 of the current Constitution), but in the name of the Law (including the Basic Law, if the Constitutional Court is meant). In this case, the Law is higher than the State.

In addition, a constitutional state cannot proclaim sentences to itself. In accordance with the logic of a constitutional state, courts should implement the will of the law and they should not be an instrument in anybody’s hands. A positive example of the constitutional regulation in this case is Article 114 of the Constitution of Moldova of 1994, which sets forth that justice in this country is exercised in the name of the Law.

This position is sometimes criticized on the basis of the arguments that judges in their activities are supposed to be governed not only by legal acts, but also by the unwritten law (universal principles, values etc). In this case, one should remember that anyway judges get permission for the direct use of the law from the norms (text) of the law. In this case, it is the Basic Law of Ukraine (see Part 1 of Article 137 of the draft Constitution).

Article 8

1. International treaties ratified by the National Assembly of Ukraine shall be part of the national legislation of Ukraine.

2. It shall be prohibited to conclude international treaties that contradict the Constitution of Ukraine.

This norm is traditional for Ukraine, and thus does not need to be commented on.

Article 9

1. The Ukrainian language shall be the state language of Ukraine. The State shall ensure development and functioning of the Ukrainian language in all spheres of social life on the entire territory of Ukraine.

2. The State shall respect cultural and linguistic diversity of Ukraine. The State shall guarantee free development and use of the linguistic, ethnic, cultural, and religious identity of all indigenous and national minorities of Ukraine.

3. The State shall promote the learning of the languages of international communication.

Here a shorter version of Article 10 of the current Constitution has been used. It does not seem justified under the current circumstances to refer to the special status of the Russian language (the current Constitution) and to single it out among other languages.

Article 10

1. Market economy shall be the embodiment of the economic freedom principles.

2. Democracy shall be the embodiment of the political freedom principles.

3. Inviolability of private life shall be the embodiment of the personal freedom principles.

4. Economic, political, and personal freedoms cannot be cancelled by anybody. Their exercise may be limited only in the cases envisaged by this Constitution.

Article 10 is a necessary specification of the constitutional norm on the main aim of the Constitution of Ukraine set by Part 1 of Article 2 of this draft Constitution.

Article 11

1. Legal business initiative shall not be restricted. Freedom of agreement shall be guaranteed.

2. The State shall guarantee free movement of persons, goods, services, and capital.

3. The size of the state and local taxes shall not threaten economic freedom.

4. Trade shall be free.

5. Domestic and foreign investments shall be encouraged.

Article 11 of the draft Constitution stipulates that the Ukrainian state ensures free movement of people, goods, services, and capital on the basis of the Constitution and laws. This formula is a concise expression of the ideas that are key for the modern European state in general. It is an ideological adoption from the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005) as one of the most important principles for EU Member States.

Article 12

1. The land, its mineral wealth, and other natural resources of Ukraine shall be the property of the Ukrainian People.

2. Citizens, other individuals and legal entities may use the property of the Ukrainian People in accordance with this Constitution and law.

3. Property shall support independence and responsibility of an individual to the society. Charity actions of an owner envisage support and encouragement on behalf of the Ukrainian State. Everyone may be a subject and an object of charity activities.

4. All legal owners shall be equal before the law; all forms of property shall be equally protected by law.

5. The land titles shall be guaranteed. Such titles shall be acquired and disposed by the State, citizens, other individuals, and legal entities in accordance with this Constitution and law.

Article 12 of the draft Constitution is an upgraded variant combining Articles 13 and 14 of the current Basic Law. The current Constitution sets the "the property obliges". It looks that this expression is not a very successful copy of one of the norms found in the FRG Basic Law. The draft Constitution, however, sets that that property is supposed to "support independence and responsibility of an individual to the society". This is a well-known and legally transparent Hegel’s idea.

Article 13

1. Social life in Ukraine shall be based on the principles of democracy, political and ideological diversity.

2. In Ukraine, decisions shall be recognized democratic if they are passed without violation of legal procedures. Violation of legal procedures shall be the basis to invalidate a decision.

3. Dictatorship shall not be recognized as long as this Constitution is in effect.

4. The rights of political minorities shall be guaranteed. Decisions passed on the basis of a consensus cannot be cancelled by the will of the political majority.

5. No principle of professional requirements shall be applied for the occupation of political offices.

Article 13 of the draft Constitution is dedicated to democracy and political pluralism. It should replace a not very relevant provision of Part 2 of Article 15 of the current Constitution stipulating that "no ideology can be recognized as obligatory by the state". This raises a question about the attitude to the ideology of the Constitution of Ukraine. The same reason has been governing the removal of the provision of Part 1 of Article 17 of the current Constitution stating that "ensuing of the information security shall be <...> the cause of the all Ukrainian People".

Article 14

1. Freedom of expression (freedom of speech) shall be the precondition of any politics and law. It cannot be cancelled or limited by a referendum or by the National Assembly of Ukraine.

2. Any censorship shall be prohibited.

The inviolability of the freedom of expressed stipulated in Article 14 of the draft Constitution is an implementation of the modern understanding of the freedom of speech. Provisions of Article 14 of the draft mean that freedom of expression cannot be cancelled or narrowed even through amendment of the Basic Law, i.e. neither the National Assembly, nor a referendum can cancel or limit the freedom of expression due to any situational reasons.

It is well-known that the information is being exchanged in Internet on the basis of the model of the First Amendment to the US Constitution which prohibits the Congress from passing any laws that limit the freedom of speech. Unlike the UK, where the Parliament may limit the freedom of speech by adopting a simple act, the American approach is based on the idea that the category of the freedom of speech is higher than the ideas of politics and law. First there should be the freedom of speech, and it should provide the basis for the formation of political and adoption of laws.

The subjective right to the freedom of expression (freedom of speech) is stipulated further below in Article 31 of the draft Constitution. Its volume formally corresponds to the scope of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The role of Article 14 of the draft Constitution is to underline the fundamental nature of this freedom, exclude even a potential possibility of its restriction or cancellation.

It should be noted that in this case the provision establishes impossibility to limit the freedom of expression as such. This does not mean that the exercise of such freedom is also not subject to any restrictions. Thus, Article 14 of the draft sets inviolability of the principle (legal formula) of the freedom of speech, which is a classic norm for political Europe, established also by Part 1 of Article II-71of the Charter of Fundamental Rights of the Union (draft Constitution), and not the prohibition of the temporary restriction of the exercise of this freedom during the emergency situations or under a martial law.

Article 15

1. Foreign policy of Ukraine shall be aiming at ensuring its national interests and security through support of peaceful and mutually beneficial cooperation between the members of the international community on the basis of observance of norms of the international law.

Article 15 of the draft Constitution is dedicated to the foreign policy of Ukraine. National interests and security of the Ukrainian people are defined as the objectives of the foreign policy of the state. According to this norm, Ukraine supports peaceful and mutually beneficial cooperation with all members of the international society on the basis of the international law. In this case, the notion of the generally recognized principles and norms of the international law mentioned in Article 18 of the current Constitution are not used in the draft. This notion is considered to have little legal content.

Section ІІ

STATE SYMBOLS

Article 16

1. State Symbols of Ukraine shall include the State Coat-of-Arms of Ukraine, the State Flag of Ukraine, and the State Anthem of Ukraine.

2. The State Coat-of-Arms of Ukraine shall be a gold trident at the blue background. The State Flag of Ukraine shall be a light blue and yellow rectangular banner with its sides related to each other as 2:3; the light blue stripe shall be above.

3. The State Anthem of Ukraine shall be the anthem "Ukraine Has Not Yet Perished".

4. The procedure for the use of the State Symbols of Ukraine shall be established by law.

Article 16 of the draft Constitution is dedicated to the state symbols of Ukraine. Here it is suggested to decline the idea of a big coat-of-arms of Ukraine. There is also no provision whereby the law on the state symbols should be passed by two thirds of the constitutional composition of the Ukrainian parliament.

The draft Constitution returns to the old text version of the State Anthem of Ukraine. In Article 16 it is mentioned that the State Anthem of Ukraine should be the national anthem "Ukraine Has Not Yet Perished". This is done not only to improve the literary form. Any collective creativity by members of parliament or any other people on the improvement of the classic texts does not look to the point here.

Section ІІІ

RIGHTS, FUNDAMENTAL FREEDOMS, AND OBLIGATIONS

Section ІІІ of the draft Basic Law on laws and freedoms has a new title: Rights, Fundamental Freedom, and Obligations. This approach is explained by the fact that the draft Constitution is based on the terminology of the official translation of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

It is important here that the above Convention envisages not only protection of individuals, but also protection of rights (freedoms) of legal entities. In particular, Article 10 of the Convention deals with the freedom of expression which concerns not only people, but also legal entities – newspapers, other mass media. In addition, Section III of the draft Constitution concerns not only human obligations, but also obligations of the State, its authorities, other legal entities.

Article 17

1. The human dignity shall be inviolable.

2. All people shall be free and equal in their dignity and rights.

3. Human rights and fundamental freedoms shall be inalienable and in violable.

4. When adopting new laws or amending the existing ones, it shall not be admissible to violate the human constitutional rights and fundamental freedoms.

5. Human rights and fundamental freedoms established by this Constitution shall not be exhaustive.

6. Certain rights, fundamental freedoms and obligations may belong to legal entities.

Article 17 of the draft Constitution concerns protection of human dignity. It repeats the content of Articles 21-22 of the current Constitution, but starts with the new formula: the human dignity is inviolable, as it is used in Article II-71 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005). At the same time, the draft Constitution contains no current constitutional provision stipulating that the existing human rights and freedoms cannot be repealed. If the Constitution sets that the rights and freedoms are inexhaustible, this means that they exist independently of the law-makers’ intention. In addition, the inviolability of the rights and freedoms mentioned in Article 17 of the draft Constitution automatically means impossibility of their abolition.

As it is accepted in the international (European practice, individual rights, fundamental freedoms and obligations can also belong to legal entities, as it is stressed by Part 6 of Article 17 of the proposed draft.

 

Article 18

1. The human rights and fundamental freedoms established by this Constitution, cannot not be interpreted as restriction or violation of rights and fundamental freedoms recognized by international treaties of Ukraine.

2. All possible restriction related to the exercised of rights and fundamental freedoms envisaged by this Constitution shall:

1) be necessary in a democratic society;

2) be envisaged by law; and

3) meet accurately the objectives which they are introduced for.

Existence of Article 18 of the draft Constitution is explained by the fact that Ukraine has certain commitments under the International Covenant on Economic, Social and Cultural Rights of 1966. This is a legally-binding document which in its Part 1 of Article 5 sets that “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant". Thus, Article 18 of the draft Constitution is a legal tool which establishes the balance of the Ukrainian constitutional legislation on human rights and fundamental freedoms and the norms of the international public law valid in Ukraine.

Part 2 of Article 18 lists the standard requirements (“the three-syllable text”) applied by the European Court of Human Rights in Strasbourg to verify the validity of the restrictions imposed by the Council of Europe Member States on the human rights and fundamental freedoms envisaged by the 1950 Convention or optional protocols thereto.

Article 19

1. Each human shall be entitled to free development.

2. No one can be kept in slavery or captivity. Human trafficking shall be prohibited.

3. No one can be forced to do what does not meet the law.

4. Exercise of human rights and fundamental freedoms recognized by Ukraine shall be secured without discrimination on the basis of gender, race, colour of the skin, language, religion, political or other beliefs, national or social origin, belonging to national minorities, property status, birth or another other feature.

5. The State shall guarantee protection against discrimination on the features mentioned in Part 4 above.

Article 19 of the draft Constitution deals with the right to free development envisaged by Article 23 of the current Constitution. Unlike the current norm, its upgraded version has a broader content. Now it includes prohibition of slavery and forced labour envisaged by Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In addition, Article 19 of the draft absorbs the content of Article 24 of the current Constitution dedicated to the prohibition of discrimination. It is the right for free development that prohibition of slavery, discrimination and another other external coercion or pressure on a human being should proceed from. The norm on free development should be based on the relevant and thematically combined guarantees. The prohibition of discrimination proposed by the draft is presented in compliance with the official translation of Article 14 of the Convention on Human Rights and Fundamental Freedoms of 1950.

Article 20

1. Equality of rights of men and women shall be ensured by provision of women with equal with men possibilities in civil, political, and cultural activities, education and professional training, labour and remuneration, measures related to protection of women’s labour and health, establishment of pension privileges; creation of conditions to enable women to combine their labour with motherhood; legal protection, material and moral support of motherhood and childhood etc.

Article 20 of the draft Constitution is dedicated to the equality of rights of men and women. It actually repeats Part 3 of Article 24 of the current Basic Law.

Article 21

 

1. Citizens of Ukraine shall have equal rights and fundamental freedoms and shall be equal before the law.

2. Citizens of Ukraine cannot be deprived of their citizenship and the right to change their citizenship.

3. Citizens of Ukraine cannot be extradited from Ukraine or given out to a foreign state.

4. Citizens of Ukraine who stay outside Ukraine may come back any time.

5. The State shall guarantee care and protection to the citizens of Ukraine who stay abroad.

 

The integrated Article 21 of the draft Constitution includes all guarantees of the constitutional status of particularly citizens of Ukraine: equality before the law, prohibition of forced deprivation of citizenship, extradition etc. The content of this Article meets the provisions of Article 25 of the current Constitution. The proposed Article 21 also envisages the principle of equality of citizens before the law which is brought in from Part 1 of Article 24 of the current Constitution, where it is artificially combined with the prohibition of discrimination. It should be stressed that the prohibition of discrimination concerns not only Ukrainian citizens, but also any other individuals, a human being as such.

Article 22

1. Foreigners and stateless individuals staying legally in Ukraine shall enjoy the same rights and fundamental freedoms and shall have the same obligations as citizens of Ukraine, excluding the cases established by the Constitution, laws and international treaties of Ukraine.

2. Collective extradition of foreigners from Ukraine shall be prohibited.

3. Foreigners who reside in Ukraine may be extradited beyond its borders only on legal grounds. They shall be entitled to:

1) set forth arguments against their extradition;

2) request judicial consideration of their case; and

3) appear before a body or an official authorized to solve this issue.

4. A foreigner may be extradited from before they exercise the rights envisaged by Paragraphs 1, 2, and 3, of Part 3 above if such extradition is necessary in the interests of securing national security and public order.

5. Foreigners and stateless individuals may be granted the status of refugees or shelter in accordance with the procedure established by law.

6. No one can be replaced, extradited or given out to the state where there is a real threat that they can undergo death penalty, torture or other inhuman or humiliating treatment or punishment.

Article 22 of the draft Constitution is dedicated to the principles of the constitutional status of foreigners and stateless individuals which legally stay in Ukraine. This Article partially engulfs the content of Article 26 of the current Basic Law, but also includes important provisions of Article 4 of Protocol No. 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 related to the prohibition of collective extradition of foreigners.

Article 22 of the draft Constitution includes a requirement of Article 1 of Protocol No. 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 concerning the important procedural guarantees as to the exercise of foreigner rights. Inclusion of these guarantees in the Constitution is important, as the number of foreign citizens in Ukraine is steadily rising. The problems of foreigner rights on the territory of Ukraine represent a typical and daily social problem.

Part 6 of Article 22 of the draft meets the requirements of Part 2 of Article ІІ-79 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005).

Article 23

1. Every human shall have the right to live.

2. The State shall defend the human life.

3. No one in Ukraine can be convicted to death penalty or executed.

4. Everyone shall be entitled to protect their and others’ life from unlawful attempts.

5. Purchase of personal weapon for protection of themselves and their family from unlawful attempts shall be regulated by law.

Article 23 of the draft Constitution is dedicated to the right to life which in the current Constitution was established when Ukraine still exercised capital punishment. The new version of the right to life has been brought into compliance with Article 1 of Protocol No.13 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 which requires full and unconditional abolishment of death penalty. In such a way, the article on prohibition of death penalty has been brought into compliance with the European standard.

A novelty of Article 23 of the draft Constitution is the right to the purchase of weapon for the self-protection and protection of the family. It should be noted, however, that there is no universal attitude to this right in the Ukrainian context. There is also no negative attitude to this right in other countries. Part 4 of Article 23 establishes a legal procedure for the exercise of this right. Introduction of this right is supported by the fact that Ukrainian citizens cannot always count on the efficient protection of the police. Weapon as an instrument of self-protection is needed not only by businessmen, journalists, law-enforcement officers, and police helpers, but also by farmers, collectors, elderly people etc.

Article 24

1. Everyone shall have the right to respect and to protection of their dignity.

2. No one can be put to torture, as well as inhuman or humiliating treatment or punishment.

3. Confinement shall not be the grounds for the humiliation of human dignity.

4. Everyone shall be entitled to the respect of their physical and spiritual integrity. Without their voluntary consent, no one can be put to medical, research, or other tests or experiments.

Article 24 of the draft Constitution stipulates the principle of respect to human dignity. It also includes a norm on prohibition of tortures. The proposed version of Article 24 meets the provisions of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. A novelty here is the right to the respect to the physical and spiritual integrity it is established by Clause 1 of Article ІІ-63 of the Charter of Fundamental Rights of the Union (Section І of the Draft Treaty establishing a Constitution for Europe 2005) as the right to personal integrity. All other provisions of Article 24 of the draft Constitution are similar to the provisions of Article 28 of the current Basic Law.

Article 25

1. Everyone shall have the right to freedom, safety, and personal inviolability. No one can be deprived of freedom, excluding the cases and in accordance with the procedure established y law such as:

1) legal confinement upon the individual’s conviction by the court;

2) legal arrest or detention of an individual for the failure to fulfill a legal decision of the court or to enforce the fulfillment of an obligation established by law;

3) legal arrest or detention of an individual done for their delivery to the court under a grounded suspicion that such individual has committed an offence or if it is reasonably considered necessary to prevent the commitment by an individual of an offence or upon the individual escape upon its commitment;

4) detention of a juvenile on the grounds of a legal decision for application of oversight educative measures or legal detention of a juvenile for their delivery to a competent authority;

5) legal detention of individuals for prevention of dissemination of infectious diseases, as well as legal detention of mentally ill, alcoholics, drug addicts, or vagrants; and

6) legal arrest or detention of individual to prevent their unauthorized departure from the country or when they are subject to deportation or extradition procedure.

2. Everyone who is arrested or detained shall be immediately informed in the language known to them of the grounds for their arrest or detention and of the accusations put forward against them.

3. Everyone who is arrested or detained in accordance with Paragraph 2 of Part 1 above shall appear before the court immediately and shall be ensured consideration of their case within a reasonable term or released during the proceedings. Such release shall be conditioned by guarantees to appear for the court sitting.

4. Everyone who is deprived of freedom due to arrest or detention shall be entitled to initiate proceedings whereby the court shall without delay establish the legality of detention and make a decision on release if the detention is illegal.

5. In case of urgent necessity to prevent or to stop a crime, the authorized bodies may use detention as a temporary preventive measure, the validity of which shall be checked by the court within forty eight four hours. The detained individual shall be immediately released if within forty eight hours they have not been given a motivated decision of the court on their detention.

6. Everyone who is arrested or detained shall get a Card of Guaranteed Rights of an Individual Whose Freedom of Restricted before their arrest or detention. The disregard of this rule by an official or a public servant shall be the grounds for the rehabilitation of an arrested or detained individual.

7. Everyone who is arrested or detained shall immediately be provided with a possibility to shall defend themselves personally, as well as use the legal aid of a lawyer.

8. Everyone who is arrested or detained shall have the right for a personal meeting with the judge on contestation of their arrest or detention.

9. Relatives of the arrested or detained shall immediately be notified of such arrest or detention. Everyone arrested or detained shall be entitled to immediate notification of their relatives and intimates of their condition.

10. Each victim of an arrest or detention done in contradiction of this Article shall be guaranteed the right to indemnification of their moral and material damage.

 

Article 25 of the draft Constitution is dedicated to the human right to freedom, safety, and personal inviolability. Being similar to Article 29 of the current Constitution it includes a renewed version of this classic norm. Now the current version of this right has been brought into compliance with the official translation of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The new version of the Article is essentially broader than the current norm.

Thus, Article 25 of the draft Constitution envisages a new provision whereby everyone who has been arrested or detained should get a Card of Guaranteed Rights of an Individual Whose Freedom of Restricted before their arrest or detention. The disregard of this rule by an official or a public servant shall be the grounds for the rehabilitation of an arrested or detained individual. This provision has been included into the draft Constitution on the results of the human rights analysis of the practice of arrests and detentions in Ukraine over a number of recent years. It is justified from the point of view of proper guaranteeing of human rights.

Article 26

1. Everyone shall be guaranteed the inviolability of their residence or other legal property.

2. Penetration into the residence or other legal property, their inspection or search shall be not admissible otherwise than on a motivated decision of the court or on the basis of the law.

3. Arrest, inspection, and search at the individual’s own residence or other legal property at night shall be prohibited.

4. In the urgent cases related to the rescue of human lives and assets or due to the direct prosecution of the individuals suspected of having committed a crime, another procedure may be established for penetration into the residence or other legal property of the individual, their inspection or search.

Article 26 of the draft Constitution is an updated version of Article 30 of the current Basic Law. A novelty of this Article is the prohibition of arrest, inspection, and search at the individual’s residence or other legal property at night. A similar rule can be found in French legislation. In Ukraine this norm also looks rather up to date. Older citizens of Ukraine still remember the brutality of night arrests in the USSR in the 1930s.

This Article also contains a notion of "other legal property", which concerns such space facilities as offices, art workshops etc.

Article 27

1. Everyone shall be guaranteed the privacy of correspondence, telephone conversations, telegraph, electronic and other correspondence.

2. Exceptions can be established only by the court in the cases envisaged by law and under the condition that they are necessary in a democratic society to prevent a crime or establish the truth during the investigation of a criminal case if it is not possible to get information by other means.

Article 27 of the draft Constitution is self-evident and does not need to be commented on. This is an upgraded version of Article 31 of the current Basic Law.

Article 28

1. Intrusion in the personal or family life shall be prohibited, excluding the cases when such intrusion is done by the court on the basis of the law and is necessary in a democratic society in the interests of national or public security, for prevention of riots or crimes, protection of health or moral or protection of rights and freedoms of other individuals.

2. Everyone shall have the right to protection of their personal data (information on themselves).

3. Collection, storage, use, and dissemination of personal data without the consent of the individual shall be prohibited, excluding the cases envisaged by law and only in the interests of the national and public security, protection of rights and freedoms of other individuals.

4. Personal data can be used only for the objectives defined by law. Everyone shall be entitled to get acquainted with the information on themselves at the public authorities, local self-governance bodies, other institutions and organizations if such information does not contain state or other secret protected by law.

5. Everyone shall be guaranteed the judicial protection of the right to refute untrue information about themselves and their family members and the right to request the seizure of such information, as well as the right to indemnification of material and moral damage caused by collection, storage, use, and dissemination of untrue information on an individual.

Article 28 of the draft Constitution uses the notion of "personal data" instead of the notation "confidential information on an individual". Personal data is a legal term of special purpose. It means not just confidential information, but its special type, a variety. The notion of personal data is used in the European legislation. Generally, Article 28 of the draft is an upgraded version of Article 32 of the current Constitution. It new version is based on the official translation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

Article 29

1. Everyone who legally stays in Ukraine shall be guaranteed the freedom of movement, free choice of the place of residence, and the right to freely leave the territory of Ukraine.

2. No restrictions can be established on the exercise of these rights and freedoms excluding those that are envisaged by law and are necessary in a democratic society in the interests of the national or public security, support of public order, prevention of crime, protection of public health or morals, or for protection of rights and freedoms of other individuals.

3. Rights and freedoms set forth in Part 1 above may be subject to additional restrictions established by law in certain localities.

Article 29 of the draft Constitution is almost the same as Article 33 of the current Basic Law. Its content and form correspond to Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms which were not previously envisaged by the Convention and Protocol No. 1 thereto. Part 4 of Article 2 of Protocol No. 4 is in particular important in this case (Part 3 of Article 29 in this draft).

Article 30

1. Everyone shall have the right to the freedom of thought, consciousness, and religion; this right includes the freedom to profess their religion or beliefs during a divine service, training, performance or observance or religious practice and ritual ceremonies both individually, and together with others, both publicly and privately.

2. The freedom to profess their religion or beliefs shall be subject only to the limitations that are established by law and are necessary in a democratic society in the interests of public security, protection of public order, health or morals, and protection of rights and freedoms of other individuals.

3. The church and religious organizations in Ukraine shall be separated from the state, and the state school from the church. No religion or world outlook shall be recognized as obligatory by the state. All religions shall be equal before the law.

4. No one can be exempt from their constitutional obligations or refuse from the observance of laws on the basis of religious or other beliefs. If fulfillment of the military obligation contradicts any citizen’s religious or other beliefs, it can be replaced by alternative (non-military) service or work.

Article 30 of the draft Constitution corresponds to the official translation of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. It is also an improved version of Article 35 of the current Constitution. There is an important difference between the European and the current approach in Ukraine. In particular, the Convention for the Protection of Human Rights and Fundamental Freedoms refers only to the possibility of establishment of such restrictions on the exercise of this right which are necessary in a democratic society. The Ukrainian version of this norm (as well as other similar norms) contains no such reservation. From the legal point of view, this restriction is recognized essential.

Article 31

1. Everyone shall be entitled to the freedom of expression. This right shall include the freedom to follow one’s views, receive and pass over information and ideas without intrusion of public authorities and independently of the state borders. This Article shall not prevent the State from introducing licensing for the operation of radio broadcasting, television, and cinematography companies.

2. Being related to the obligations and liability, the exercise of these freedoms may be subject to such formalities, conditions, restrictions, or sanctions that are envisaged by law and are necessary in a democratic society in the interests of national security, territorial integrity or public order, prevention of riots or crimes, protection of public health or morals, protection of reputation or rights of other individuals, prevention of disclosure of restricted information or support of authority and unbiased nature of the court.

3. Exercise of the freedom of expression of views in art and research shall be free from restrictions.

4. Freedom and pluralism of the mass media shall be guaranteed.

 

Article 31 of the draft Constitution concerns the freedom of expression. From Part 1 to Part 3 it is an exact reproduction of the official translation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. By the level of its liberality the European version of the freedom of speech (freedom of expression) yields essentially to the First Amendments to the US Constitution, but it is much better than the current version of Article 34 of the Constitution of Ukraine.

Article 31 of the draft Constitution also contains a requirement of Article ІІ-73 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe) which establishes additional guarantees for the freedom of expression in science and art. As it is written down in the above Draft Treaty, art and research should be free from restrictions. Academic freedom should be respected.

The desire to release the freedom of expression from any restrictions in science and art is universal. Science and art have been proclaimed free in the court decisions which are based on the First Amendment to the US Constitution; the regulative content of the academic freedom (freedom of universities) has been established in the US at the legislative level (through establishment of judicial precedent). In Ukraine, the legal notion of the academic freedom is used for the first time (Part 3 of Article 51 of the draft). Generally, the content of Part 4 of Article 31 of the draft Constitution is maximally close to Part 2 of Article ІІ-71 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005).

Article 32

1. Everyone shall have the right of access to the official documents and other information on the activities of public authorities and local self-governance bodies, their officials and public servants. Exercise of this right envisages a possibility to file an information inquiry and to get information in any other way at the discretion of the inquirer.

2. Public authorities and local self-governance bodies, their officials and public servants shall be obliged to provide the data they possess on the information inquiries and regularly publish information on their activities.

3. Exercise of this right, as it is related to the obligations and liability, may be subject to such formalities, conditions, restrictions, or sanctions that are envisaged by law and are necessary in a democratic society in the interests of national security, territorial integrity or public order, prevention of riots or crimes, protection of public health or morals, protection of reputation or rights of other individuals, prevention of disclosure of restricted information or support of authority and unbiased nature of the court, provided the harm from the publication of the requested information exceeds the public interest in getting it.

Article 32 of the draft Constitution is new for the Ukrainian constitutional legislation. It sets the right of individuals and legal entities for access to the information on activities of public authorities and local self-governance bodies. The right of access to the official information has existed for a long time and is established today by the legislation of more than seventy countries of the world. This right is a traditional element for the constitutional legislation of liberal democracies. In the US the right to the access to information is established by such laws as the Freedom of Information Act (1966), the Privacy Act (1974), the Government in the Sunshine Act (1976). In Western Europe, the civil right for access to the official information was first established by the legislation of Sweden back in the 18-th century. In Ukraine, this right is envisaged by the Law on Information (1992), which mainly does not meet the European requirements. The Ministry of Justice is currently working on a new version of this law.

The version of the right of access to official and other information proposed in Article 32 of the draft Constitution is a product of the Ukrainian research. In particular, it is using the legal model developed by a Ukrainian researcher O. Nesterenko.

Article 33

1. Citizens of Ukraine shall be entitled to join political parties, movements, and other public associations for the exercise and protection of their or other people’s rights and freedoms, satisfaction of their political, economic, social, cultural, and other legal interests, excluding the restrictions that are envisaged by law and are necessary in a democratic society in the interests of the national security and public order, protection of public health, protection of rights and interests of other individuals.

2. Everyone shall have the right to join public associations, excluding political parties and movements.

3. No one can be limited in their rights and freedoms to be affiliated or not-affiliated with political parties, movements, or other public associations.

4. No one can be forced to join political parties, movements, or other public associations.

The norm incorporated in Article 33 of the draft Constitution has been brought into compliance with Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1966, Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, Article ІІ-72 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005).

Part 1 of the Article allows citizens to join public associations in order to protect not their own only, but also other people’s rights, freedoms and legal interests. This approach is an important legal guarantee of the functioning of human rights organizations in Ukraine.

Article 34

1. Activities of political parties, movements, and other civic unions aiming at the abolishment of Ukraine’s independence, change of the principles of its constitutional system in a violent way, violation of the sovereignty and territorial integrity of Ukraine, undermining of its security, illegal seizure of public power, promotion of war, violence, as well as instigation inter-ethnic, racial, and religious hostility, attempts at human rights and fundamental freedoms, and public health shall be prohibited.

2. Political parties, movements, and other civil unions shall be prohibited from establishing or having any armed formations.

3. Establishment and activities of organizational units of political parties and movements at public executive authorities, judicial bodies, executive authorities of local self-governance bodies, the Armed Forces of Ukraine, other military and armed formations shall not be allowed, just like at state companies, institutions, and organizations.

4. Establishment and activities of organizational units of political parties and movements at any educational institutions of Ukraine shall not be allowed.

5. Activities of political parties, movements, and other civil unions shall be prohibited in accordance with judicial procedures.

Article 34 of the draft Constitution is similar to Article 37 of the current Constitution and does not need detailed comments. It is, however, more clear, on the prohibition of the setup and activities of political party and movement units at educational institutions of Ukraine. The current prohibition concerns only state educational institutions.

Article 35

1. Everyone shall be entitled to participate in trade unions to protect their social and economic rights and interests. Trade unions shall unite individuals related by joint interests on the basis of their professional activities.

2. Establishment of trade unions shall be free and shall not require preliminary permit of the State.

3. Trade unions shall be equal before the law.

4. Membership in trade unions shall not be subject to restrictions, excluding those that are envisaged by law and are necessary in a democratic society in the interests of the national security and public order, protection of rights and freedoms of other individuals.

5. Trade unions shall be entitled to establish national federations of trade unions which can establish international trade unions organizations or join them.

6. No one can be forced to join or quit a trade union.

Article 35 of the draft is similar to Article 36 of the current Constitution. A new notion here is that the right to get united into trade unions is supplemented by their right to establish federations and become members of international trade unions. Previously, this right has been recognized in Ukraine at the level of the international treaties. Another novelty is that no one can be forced to join trade unions as organizations based on the collective interest.

Article 36

1. Citizens shall be entitled to participate in the administration of public and civil affairs, in all-Ukrainian and local referenda, to elect freely and be elected to public authorities and local self-governance bodies.

2. Citizens shall enjoy equal access to the public service, as well as to the service at local self-governance bodies.

Article 36 of the draft Constitution is the same as Article 38 of the current Basic Law and does not need to be commented on.

Article 37

1. Citizens shall be entitled to gather peacefully, without weapon and conduct meetings, rallies, and manifestations, set up tent villages, of which they shall notify public authorities and local self-governance bodies.

2. The exercise of this right can be restricted only by the court on the basis of the law and only in the cases when such restriction is necessary in a democratic society in the interests of the national security or public order for prevention of riots or crimes, protection of public health, and protection of rights and freedoms of other people.

Article 37 of the draft Constitution is an updated version of Article 39 of the current Constitution. Its content has been brought into compliance with the official translation of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and Article 21 of the International Covenant on Civil and Political Rights 1966. Article 36 of the draft Constitution mentioned the legal regime of tent villages.

Analysis of the current international experience shows that establishment of manifestation pickets requires no special notification of public authorities or local self-governance bodies therefore they are not mentioned in the text of this norm. Generally, provisions of Article 36 of the draft Constitution meet the current European standards.

Article 38

1. Everyone shall be entitled to direct individual or collective written appeals, to appeal personally to public authorities, local self-governance bodies, officials and servants of such bodies that are obliged to consider such appeals and provide an answer within the term established by law.

Article 38 of the draft Constitution repeats Article 40 of the current Constitution and does not need to be commented on.

Article 39

1. Each individual or legal entity shall be entitled to own peacefully their property. No one can be deprived of their property otherwise than in the interests of the society and on the legal grounds.

2. Everyone shall be entitled to possess, use, and dispose of their property, results of their intellectual and creative activities.

3. The private property right shall be inviolable.

4. Everyone shall be entitled to use the facilities of the state and municipal property in accordance with the law.

5. Coercive disposal of the property facilities may be done only on the basis of the motives of higher state necessity, on the grounds and in accordance with the procedure envisaged by law under the conditions of prior and full reimbursement of their market value.

6. Coercive disposal of ownership facilities with subsequent full reimbursement of their market value is admitted only under the conditions of martial law or the state of emergency.

7. Confiscation of property shall be applied only on the basis of the court decision in the cases and in accordance with the procedure established by law.

8. The exercise of the property right shall not prevent the exercise of other human rights and fundamental freedoms, the interests of the society, deteriorate the condition of the environment and natural qualities of the land.

Article 39 of the draft Constitution is similar to Article 41 of the current Basic Law. On the one hand, the updated version of the norm is maximally close to the requirements of Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of 20 March 1952 as amended by Protocol No. 11. In addition, if the current Constitution envisages "prior and full reimbursement of the facilities disposed under compulsion", the new versions of Parts 5 and 6 of Article 38 of the draft Constitution envisage prior and full reimbursement of the market value of the facilities disposed under compulsion.

Article 40

1. Everyone shall be entitled to business activities.

2. Business activities of the deputies, officials and servants of public authorities and local self-governance bodies shall be limited by law.

3. The State shall ensure protection of fair competition. Abuse of the monopoly position of the market shall not be allowed, just like unlawful restriction of the competition and unfair competition.

4. Types and limits of any monopoly shall be defined by law.

5. The State shall protect the rights of the consumers, exercise control of the quality and safety of the products and all types of services and works, and shall support the activities of the civic consumer associations.

Article 40 of the draft Constitution is similar to Article 42 of the current Constitution. The difference between them is that the new version of the Article is broader in its content. If the current Constitution stipulates that "everyone shall be entitled to business activities which are not prohibited by law", the draft sets that "everyone shall be entitled to business activities. On the other hand, Part 2 of Article 42 of the current Constitution sets that "the State shall ensure protection of the competition", while the draft envisages "that the State shall ensure protection of fair competition".

Article 41

1. Everyone shall be entitled to work, which includes a possibility to earn their living by the work that they freely chose or to which they freely agree to.

2. The State shall take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving gradually the full realization of this right by all appropriate means.

3. The use of forced labor is prohibited. Military or alternative (non-military) service or work shall not be considered forced, just like service or work that is performed by an individual on a sentence or another decision of the court, or according to the laws on martial law or the state of emergency.

4. Everyone shall have the right to proper, safe, and healthy conditions of labor and to the salary which shall not be lower than the one established by law.

5. The use of labor performed by women and underage children at the works dangerous for their life shall be prohibited.

6. The State shall guarantee protection from illegal dismissal.

7. The right to the timely receipt of remuneration for their work shall be protected by law.

8. Young children shall be provided with proper working conditions depending on their age and shall be protected from economic exploitation and work which can adversely affect their safety, health, physical, moral or social development or prevent them from getting education.

Article 41 of the draft Constitution ensures the right to work in the version that is used by Part 1 of Article 2 of the International Covenant on Economic, Social and Cultural Rights of 1966. Staring with this place everywhere, where it concerns the social and economic rights, the draft Constitution repeats the formula of Part 1 of Article 2 of the International Covenant on Economic, Social and Cultural Rights: "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, in order to gradually achieve the full realization of the rights recognized in the present Covenant by all appropriate means".

Such approach to social and economic rights makes it possible to perceive the constitutional text as a realistic one. Social and economic rights are interpreted in it as the priorities of the state efforts in the relevant area. A new introduction in Article 40 of the draft Constitution also include the guarantees of the employment rights of young people borrowed from the Article II-92 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe) which sets that " Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education."

Article 42

1. Everyone shall have the right to a strike to protect their social and economic and other rights, freedoms, and legal interests.

2. No one can be forced to participate or not particulate in a strike.

3. The exercise of this right cannot be subject to restrictions, excluding those that were envisaged by law and are necessary in a democratic society in the interests of national security or public order, prevention of riots or crimes, for protection of public health, rights and interests of other persons.

4. A strike can be prohibited only on the decision of the court based on the law.

5. A strike cannot be prohibited more than under the threat of dismissal.

Article 42 of the draft Constitution includes an updated version of the right to strike. This norm is presented in accordance with Part 1 of Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1966. In addition, there is a broader list of legal grounds for strike. If Part 1 of Article 44 of the current Constitution envisages the right to strike only for the protection of economic and social right, Part 1 of Article 41 of the draft Constitution envisages the right to strike for the protection of social and economic and other rights and legal interests. The experience of the Orange Revolution evidences that citizens who work for state companies and institutions may also go on strike to satisfy their political interests. In such a way, there is an attempt here to base the draft Constitution on modern realities.

According to Article 42 of the draft Constitution, the right to strike does not actually extend to the officials and servants of the police, the Prosecutor Office of Ukraine, the Security Service of Ukraine, and the Armed Forces of Ukraine. This is legally grounded on the provisions of Part 2 of Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1966.

Article 43

1. Everyone shall have the right to rest.

2. This rights shall be ensured by provision of weekly days off, as well as a paid annual leave, establishment of a reduced working day in relation to certain professions and production activities, reduced duration of work at night time.

3. The maximal duration of the working time, the maximal duration of rest and paid annual leave, days off and holidays, as well as other conditions for the exercise of the right to rest shall be established by law.

Article 43 of the draft Constitution established the right to rest. However, if the current Constitution envisages that everyone "who works" shall be entitled to rest, the draft is limited to the formula: "everyone shall be entitled to rest". Here, like in other places, the draft tries to avoid legal maximalism.

 

 

 

Article 44

1. Citizens and other individuals equalled to them shall be entitled to social protection which includes the right to their support in case they lose their working ability, the breadwinner, forced unemployment, as well as old age and other cases defined by law.

2. This right shall be guaranteed by the mandatory social insurance at the expense of insurance contributions made by individuals, companies, institutions, and organizations, as well as budgetary and other sources of social insurance; establishment of the network of state, municipal, and private institutions to care for those who are unable to work.

3. Pensions and other kinds of social payments and aid which are the main source of existence shall ensure the level of life which is not lower than the living standards established by law.

4. The State shall recognize and respect the right of the elderly people to adequate and independent life, to participation in the social and cultural life.

5. The State shall recognize and respect the right of individuals with physical defects to the measures aiming at ensuring their independent, social, and professional integration and participation in the social life.

6. The State shall take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving gradually the full realization of this right by all appropriate means.

Article 44 of the draft Constitution concerns the right to social protection. The proposed version of the norm has been brought into compliance with the requirements of the International Covenant on Economic, Social and Cultural Rights of 1966. Unlike Article 46 of the current Constitution, which grants the right to social protection to Ukrainian citizens, the new version of the right also extends to foreigners and stateless individuals who permanently and legally reside in Ukraine. The new version of the Article includes two novelties (Parts 4 and 5 of Article 44), which are partially borrowed from Articles ІІ-85 and ІІ-86 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe of 2005). The first provision concerns the right of the elderly people to the adequate and independent life and participation in the social and cultural life. The second one deals with the right of the individuals with physical defects to the measures aiming at ensuring their independence, social, and professional integration, participation in the social life.

Article 45

1. Everyone shall have the right to housing.

2. The State shall strive to establish conditions when everyone has a possibility to build their housing, purchase or lease it.

3. Citizens and other individuals equaled to them who require social protection not on their fault, housing shall be provided by the State and local self-governance authorities free of charge or for the payment affordable to them in accordance with the law.

4. No one can be deprived of their housing otherwise than on the basis of the law on the decision of the court.

5. The State shall take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving gradually the full realization of this right by all appropriate means.

Article 45 of the draft Constitution is a variant of the right to housing changed in accordance with the requirements of the Covenant on Economic, Social and Cultural Rights of 1966. In the draft, the right to a dwelling is presented as a social standard for the future. It does not make the housing more affordable to people, but it is more realistic and does not compromise the rest of the constitutional text. On the other hand, Article 45 of the draft is similar to Article 47 of the current Constitution.

Article 45 contains Part 5 which includes the formula that accompanies all social and economic rights in the draft. In addition, if Part 2 of Article 47 of the current Constitution sets that "citizens who require social protection are provided with the housing by the State <…> free of charge", the current norm is more realistic as it states: "citizens who require social protection not on their fault are provided with the dwelling by the State <…> free of charge".

The right to adequate life level for themselves and their family members envisaged by Article 48 of the current Constitution has been removed from the draft Basic Law. It belongs to the citizens of Ukraine and other individuals on the basis of Article 11 International Covenant on Economic, Social and Cultural Rights of 1966, but its establishment by the norms of a higher legal force and direct action looks unjustified.

The Constitution cannot ensure proper level of life to the population of Ukraine. This aim can be achieved only by liberalising the economy and developing the creative potential of the people. As a legal instruction, the right to proper level of life does not sustain any criticism. The impossibility to protect this right in the court means that its implementation is possible (if at all) in another dimension.

Article 46

1. Everyone shall be entitled to the protection of health, medical aid, and medical insurance.

2. Protection of health shall be ensured by state funding of the relevant social and economic, medical and sanitary, health and prevention programmers. The state shall establish conditions for efficient medical service affordable to citizens. The minimal volume of free medical services shall be established by law.

3. The State shall promote development of the medical institutions of all forms of property and shall support medical insurance.

4. The State shall take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving gradually the full realization of this right by all appropriate means.

Article 46 of the draft Constitution is a version of the right to the protection of health changed in accordance with the International Covenant on Economic, Social and Cultural Rights of 1966. In the draft, the right to free protection health, as well as the above mentioned right to a dwelling are set forth a social standard for the future. The norm does not make medical service more affordable to the people, but it is more realistic and does not undermine the regulative potential of other articles of the Basic Law.

The general arguments related to this approach are presented in a comment to Article 45 of the draft.

Article 47

1. Each shall have the right to safe for human life and health environment and compensation for the damage caused by the violation of this right.

2. Each shall be guaranteed the right of free access to information on environment, on the quality of food and objects used in everyday life, as well as the right for its dissemination. Such information cannot be made secret by anybody.

Article 47 of the draft Constitution is the same as Article 50 of the current Constitution and therefore does not need to be commented on.

Article 48

1. Marriage shall be grounded on free consent of individuals. Each spouse shall have equal rights and obligations in marriage and family.

2. Parents shall maintain their children until they are at age of discretion. Children of full legal age shall care for their parents not able to work.

3. Family, childhood, motherhood, and fatherhood shall be protected by law.

Article 48 of the draft Constitution is almost similar to Article 51 of the current Constitution and thus does not need to be commented on. At the same time, the current constitutional formula: "Marriage shall be grounded on the free consent of a man and a woman" is replaced by a more liberal one whereby "marriage shall be based on a free consent of individuals".

Unisexual marriages are recognized by legislation of some European countries (six countries of the world and two US states). Some foreign diplomats working in Ukraine have unisexual spouses, and Ukrainian citizens also marry unisexual partners abroad. In particular, there has been a problem related to the receipt of the heritage by one of the spouses who got married in the UK.

 

 

Article 49

1. All children shall be free in their rights independently of their origin, as well as whether they have been born in marriage or outside it.

2. All children shall be entitled to support personal relations and direct contact with both parents if it does not contradict their interests.

3. Violence over children and their exploitation shall be prosecuted by law.

4. Maintenance and upbringing of orphan children and children deprived of parental care shall be put on the State. The State may delegate these powers to other persons. The State shall encourage and support charity activities in relation to children.

5. Public authorities and local self-governance authorities, companies, institutions, and organizations of all forms of property in the activities related to children shall first of all primarily care for the interests of the child.

6. Children shall be entitled to protection and care needed to ensure their wellbeing.

7. Children shall be entitled to express their views freely; these views shall be taken into account depending on the age and maturity of the child.

Article 49 of the draft Constitution is an updated version of Article 52 of the current Basic Law. The novelty of the approach is that Parts and 6 of this Article have been supplemented by the norms envisaged by Parts 1 and 3 of Article ІІ-84 of the Charter of Fundamental Rights of the Union (Draft Treaty establishing a Constitution for Europe). In the first case this concerns the right of a child to support constant personal relations with the parents, and in the second – the right of the child to express their views freely. The updated version of the norm obliges parents to take into account the views of the child on the issues that concern them.

In the updated variant, there is also no mentioning of prohibition of "any violence" over a child (current Constitution), while just "violence over children" is prohibited. In such a way, this version of the norm is cleared of legal maximalism.

Article 50

1. Everyone has the right to education. Secondary education is obligatory.

2. The State shall ensure affordable and free pre-school, complete secondary and vocational education at state and municipal educational institutions.

3. Citizens shall be entitled to get free higher education at state and municipal education institutions on the basis of a competition.

4. Citizens that belong to indigenous peoples and national minorities shall get in accordance with the law the right to study in their native language, as well as study their native language at state and municipal educational institutions or through national cultural societies.

5. The State shall take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving gradually the full realization of this right by all appropriate means.

Article 50 of the draft Constitution concerns the right to education. Unlike Part 1 of Article 53 of the current Constitution, the new version of the right to education envisages that that not complete secondary education is mandatory, but rather simply secondary education. Complete secondary education at state and municipal education institutions remains free of charge, but it is no longer obligatory (coercive). Not all people have sufficient abilities to master the programmer of the complete secondary school. The overstated requirements of Article 53 of the current Constitution result in non-objective positive marks given for the lack of the necessary skills and knowledge. The new version of the Article provides everyone with a possibility to get complete secondary education, but it removes the legal coercion for this. In all other respects, this version of the right to education is brought closer to the requirements of Part 1 of Article 2 and Part 1 of Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1966.

Formula of Part 3 of Article 50 of the draft on provision of "free" education means that free education does not oblige the university graduates to pay for their education with their work in the places defined by the state etc.

 

 

 

Article 51

1. Everyone shall be guaranteed the freedom of literary, artistic, research and development creative activities, protection of their intellectual property and copyright, as well as moral and material interests that emerge due to various types of intellectual activities.

2. Everyone shall have the right to the results of their creative activities; no one can use or disseminate them without the author’s consent, excluding the cases envisaged by law.

3. Academic freedom is guaranteed. The State shall promote in any possible way development of science and higher education, establishment of ties with the world scientific community.

4. Cultural heritage shall be protected by law.

5. The State shall ensure preservation of historic monuments and other objects of cultural value and take measures to return the cultural values, currently found abroad, to Ukraine.

Article 51 of the draft Constitution is dedicated to the freedom of literary, artistic, research and development creative activities. Unlike Article 54 of the current Constitution, the new version of the norm guarantees the academic freedom (freedom of universities). At the same time, it mentions not establishment of scientific relations of Ukraine with the world community (the current norm), but establishment of relations between the Ukrainian researchers and the world scientific community. In such a way, the regulative potential of this norm is directed to specific subjects – the researchers, and not the Ukrainian State as such. The new provision is better focused on the essence of the problem.

In terms of other provisions, this Article is similar to Article 54 of the current Basic Law.

Article 52

1. Human rights and fundamental freedoms are defended by the court.

2. Everyone shall be guaranteed the right to contest in the court the decisions, actions or omission of action on behalf of public authorities, local self-governance bodies, their officials and public servants.

3. Everyone shall be entitled to address the Commissioner of the National Assembly of Ukraine for Human Rights for protection of their rights and freedoms.

4. Everyone shall be entitled to address international judicial institutions for protection of human rights and fundamental freedoms, as well as the relevant bodies of international organizations of which Ukraine is a member or a participant.

5. Everyone shall be entitled to defend their and other people’s rights and freedoms against violations and illegal attempts.

Article 52 of the draft Constitution brings Article 55 of the current Basic Law into compliance with the terminology of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and does not require any special comments.

Article 53

1. Everyone shall have the right to the public consideration of their case within a reasonable period of time by an independent and unbiased court which shall settle the dispute on their rights and obligations of civil nature and establish validity of any criminal accusation put forward against them.

2. Judicial decisions shall be announced publicly, but the press and the public may be not admitted to the sitting hall during the court proceedings or any part of it in the interests of the moral, public order and national security in a democratic society, if it is required by the interests of minors or protection of private life of the litigants or – to the extent, recognized by the court as strictly necessary – when due to particular circumstances the publicity of the proceedings may harm the interests of justice.

3. An individual shall be considered not guilty of a crime or a criminal offence and cannot be subjected to criminal punishment until their guilt is proved in accordance with the legal procedure and established by a court sentence.

4. No one shall be obliged to prove their innocence in a crime or criminal office.

5. Accusation cannot be grounded on the evidence received in an illegal way, as well as on assumptions. All doubts about the validity of the guilt of the individual shall be interpreted for their benefit.

6. Everyone accused of a crime or criminal offence has at least the following rights:

1) to be immediately and in detail informed in the language they understand about the nature and grounds of the accusation put forward against them;

2) to have time and possibilities necessary to prepare their protection;

3) to defend themselves personally or use legal aid of a defender selected at their own discretion, or – in case of lack of funds to pay for the legal aid of a defender – get legal aid free of charge when it is required by the interests of justice;

4) to interrogate the witnesses of the prosecution or request that they are interrogated, as well as to request that the protection witnesses are summoned and interrogated under the same conditions as the witnesses of the prosecution;

5) to get free of change assistance of an interpreter if they do not understand the language used in the court or do not speak such language.

7. If a court sentence is cancelled as unjust, the State shall indemnify the material and moral damage caused by ungrounded conviction.

Article 53 of the draft Constitution reproduces the right to fair justice as established by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The necessity of precise textual reproduction of the right to fair justice in accordance with the European standard in the Ukrainian Constitution has ripened long ago. Ukrainian human rights activists, researchers, and international experts have been writing about this for a long time. In this case, the official translation of the relevant subjective right has been used.

Article 53 of the draft Constitution contains individual elements of the right to fair justice from Article 62 of the current Basic Law. The new version of the right to fair justice preserves the main provisions of Parts 1, 2, 3, and 4 of Article 62 of the current Constitution.

 

Article 54

1. Everyone has the right to the indemnification of material and moral damage caused by illegal decisions, actions and omission of action of public authorities, bodies of local self-governance bodies, their officials and public servants while fulfilling their powers at the cost of the state or local self-governance bodies.

Article 54 of the draft Constitution actually repeats the content of Article 56 of the current Constitution and does not need to be commented on.

Article 55

1. Everyone shall be guaranteed the right to know their rights, freedoms, and obligations.

2. Laws and other regulations that determine human rights and freedoms, as well as obligations shall be made known to the people in accordance with the procedure established by law.

3. Law and regulations that determine human rights and freedoms, as well as obligations which have not been made known to the people in accordance with the procedure established by law shall be invalid.

Article 55 of the draft Constitution actually repeats the content of Article 57 of the current Constitution and does not need to be commented on.

Article 56

1. Laws and regulation shall have no retroactive effect, excluding the cases when they mitigate or cancel an individual’s liability.

2. No one can be liable for the actions which at the moment of their commitment were not recognized by law as offences.

3. This Article shall not prevent the judicial consideration and punishment of any individual for any action or omission of action which at the time of their commitment constituted a criminal offence in accordance with the general principles of law recognized by civilized nations.

Article 56 of the draft Constitution repeats Article 58 of the current Constitution and does not need special explanations.

As to Part 3 of Article 56 of the draft, it is almost a precise textual reproduction of Part 2 of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. This approach makes it possible to speak not only about political recognition of Holodomor of 1933 in Ukraine as an act of genocide against the Ukrainian People, but also raise the issue of legal liability of the individuals guilty of such actions.

Article 57

1. Everyone shall be entitled to legal aid. In the cases envisaged by law legal aid shall be provided free of charge or for partial payment.

2. An independent self-governed organization, the Bar, shall operate to provide professional legal aid for the settlement of cases in courts, other public authorities and local self-governance bodies, at companies, institutions and organizations of all forms of ownership.

3. Everyone shall be free in selecting the defender (representative) of their rights.

4. Bodies of pre-trial investigation, state prosecutor, and the court shall be prohibited from voluntary intrusion into the selection by an individual of the defender (representative) of their rights and from hindering their participation in the case.

5. The secret of the individual’s communication with their defender (representative) shall be protected by law.

 

 

Article 57 of the draft Constitution is thematically similar to Article 59 of the current Constitution of Ukraine. At the same time, it contains essentially broader guarantees of professional activities of the layers as defenders of human right in the system of criminal justice.

The new version of the norm includes the recommendations expressed in the Criminal Justice Reform Concept for Ukraine of 2007 (approved by the Presidential Decree). The new version of the Article makes it possible to stimulate the professional lawyer activities in practically all spheres of professional and personal life of the people.

Article 58

1. No one shall be obliged to fulfill criminal instructions or orders.

2. Guilty individuals shall be punished for the issuance or fulfillment of criminal instructions or orders.

Article 58 of the draft Constitution almost repeats the content of Article 60 of the current Constitution and needs no special explanations. In comparison to the current norm, the adjective "evidently" has been removed from the phrase "evidently criminal instructions and orders".

Article 59

1. No one can be brought to legal liability twice for the same violation.

2. Legal liability of a person shall be of individual nature.

Article 59 of the draft Constitution repeats the content of Article 61 of the current Constitution and needs no special explanations.

Article 60

1. An individual shall not be liable for the refusal to give evidence or explanations in relation to themselves, their family members or close relatives defined by law.

2. A suspect, an accused or a culprit shall be entitled to protection.

3. A convict shall enjoy all human rights and fundamental freedoms, excluding the restrictions envisaged by law and established by a court sentence.

4. Restrictions in the exercise of human rights and fundamental freedoms imposed on individuals convicted to the deprivation of freedom shall be grounded and meet accurately the aim of the punishment.

6. The conditions for the confinement of the individuals convicted to the deprivation of freedom shall be close to the positive aspects of life in a healthy environment.

Article 60 of the draft Constitution repeats the main ideas of Article 63 of the current Constitution. At the same time, it contains broader guarantees of the rights of the convicted individuals. The new version of the norm takes into account the recommendations expressed in the Criminal Justice Reform Concept for Ukraine of 2007.

Article 61

1. Exercise of constitutional human rights and fundamental freedoms, excluding the cases envisaged by this Constitution shall not be subject to restrictions.

2. Under the martial law or the state of emergence, certain restrictions may be established in relation to the exercise of rights and fundamental freedoms with definition of the period of validity of such restrictions. No restrictions may be imposed on the exercise of human rights and fundamental freedoms envisaged by Articles 17, 19, 20, 21, Parts 1, 2, 3, 4 of Article 23, Articles 24, 25, 32, 38, 45, 48, 49, 52, 53, 54, 55, 56, 57, 58, 59, and 60 of this Constitution.

Article 61 of the draft Constitution is the same as Article 64 of the current Constitution. This norm refers to a list of subject rights and fundamental freedoms in the text of the draft Constitution. The list of the references is brought into compliance with the new order of articles in the proposed Constitution.

Article 62

1. Protection of freedom, independence and territorial integrity of Ukraine shall be an obligation of citizens of Ukraine.

2. The military service order shall be determined by law.

Article 62 of the draft Constitution is a renewed version of Article 65 of the current Constitution. The draft Constitution is based on the idea of constitutional protection of the public freedom which explains the presence of the category of freedom in the list of the values that are supposed to be protected by the citizens of Ukraine.

Article 62 of the draft Constitution does not envisage the obligation to honor the state symbols of Ukraine. At first sight, such exclusion may look irrelevant. On the other hand, demonstrating their attitude to the symbols, citizens effectively express their consent or disagreement with the policies of their own country.

The Americans can hardly be suspected of lacking patriotism. However, it is they who have many times resorted to public burning or demonstrative washing of the US flag. In a number of its decisions, the US Supreme Court recognized that in such a way people express their assessment of the political power in the country.

Governments and states may be essentially and tragically wrong, as it is provide the by political history of 20th century. Thus, the obligation to honor state symbols has a hidden totalitarian context, as if it puts the state sovereignty above the sovereignty of the people, which is erroneous.

Article 63

1. Everyone shall be obliged to refrain from causing harm to the natural and cultural heritage of Ukraine and shall indemnify the losses that they cause.

Article 63 of the draft Constitution contains a new version of Article 66 of the current Constitution of Ukraine. The phrase: “everyone is obliged to refrain from causing harm to the nature, cultural heritage” is replaced by the phrase “everyone shall be obliged to refrain from causing harm to the natural and cultural heritage of Ukraine”. The Basic Law shall proceed from the fact that the civilization is the biggest polluter of the environment. The same can be said about a human being, an organization or a business operator. The request to refrain from causing harm to the nature is generally utopian as it exceeds the real possibilities of legal regulation. Despite of their seemingly noble image, such provisions can be regarded as featuring legal infantilism.

Article 64

1. Everyone shall pay taxes and charges in accordance with the procedure and in the amounts established by law.

Article 64 of the draft Constitution is a modified analogue of Article 67 of the current Basic Law. It is shorter, as the current version of the obligation to pay taxes and charges also includes unnecessary procedural elements. For example, many Ukrainian citizens are actually not obliged to submit their tax returns as their incomes are calculated automatically. In such a way, the current constitutional norm declares an obligation which in fact is not universal.

Article 65

1. Everyone shall observe the Constitution of Ukraine and laws and refrain from making attempts at human rights and fundamental freedoms, legal interests, dignity and interests of other individuals.

2. Ignorance of the law shall not exempt from legal liability.

Article 65 of the draft Constitution is exactly the same as Article 68 of the current Constitution and does not need to be commented on.

Section IV

CIVIL SOCIETY

Articles 66-71 of the draft Constitution are dedicated to the constitutional status of the civil society in Ukraine. The presence of this Section in the Constitution is explained by the fact that Ukraine is a post-totalitarian republic. The experience of totalitarianism has not become a universal for all countries, but it rolled through the world having become probably the biggest political temptation of the previous century.

Ukraine has paid a high price of the life in the conditions of dictatorship and lack of freedom. Even such long-established democracies as the US and the UK have no such knowledge of on domination of the state over an individual as Ukraine. Therefore, a section dedicated in the draft Constitution to civil society is not a tribute to the fashion, but rather a conclusion made from the historic experience of the country. In order not to fall under dictatorship again, the society should create the relevant prevention mechanisms. The Orange Revolution in Ukraine has proved that the Ukrainian people indeed realize the essence of freedom. Freedom is protected not only by Article 2 of the draft Constitution. The civil freedom is also protected by Article 4 (responsibility of the state to the society), Article 10 (market, economic freedom), Article 11 (business initiative, freedom of agreement).

Generally, Section IV of the draft Constitution is designed as a compact set of legal instruments for protection of private interests.

Article 66

1. Civil society shall form a self-conscious and self-governed non-governmental part of the Ukrainian people. Civil society in Ukraine shall function on the basis of the principles of freedom, pluralism, tolerance, and non-interference on behalf of the state.

2. Reasonable interests of individuals and private legal entities shall be under the protection of this Constitution and laws.

3. Functioning of political parties, movements, and other civil associations shall not be controlled by the Ukrainian State, excluding the cases when they fail to observe the requirements of this Constitution and law.

Article 66 of the draft Constitution underlines at a higher level the autonomy of the expressions of civil society in Ukraine and stresses the importance of creating an atmosphere of self-sufficiency and freedom of choice in this area.

Article 67

1. Functioning of public authorities and local self-governance bodies, their officials and public servants shall be subject to civil control. For this purpose, human rights organizations may be set up.

Article 67 of the draft recognizes and underlines that protection of civil interests requires special civil institutions to be set up. The Article emphasizes the need to professionalize the exercise of the oversight function of the civil society.

Article 68

1. Public authorities, local self-governance bodies, their officials and civil servants shall not be allowed to interfere unreasonably into the exercise of legal civil initiatives.

Article 68 prohibits the State, its authorities and officials to interfere with the creative sphere of functioning of the civil society.

Article 69

1. Preservation of the state or other law-protected secrets shall be the prerogative of the specially authorized individuals. Other individuals shall not be subject to the liability for disclosure of state or other law-protected secrets.

2. Types of restricted information shall be determined by law.

3. The secrecy regime for the restricted information shall not last for more than thirty years.

4. Unlawful and illegal activities of the Ukrainian State, its authorities, local self-governance bodies, their officials and public servants shall not be subject to the state or other law-protected secret.

5. The information on the individual, who is being nominated, elected or is elected to a state or any other public office shall be considered as socially significant and may be provided on information inquiries.

 

There is hardly a need to prove the anti-corruption potential of this norm. In addition, this Article reflects the typical for the Western Europe and the USA idea that public figures, unlike private individuals, are obliged to live in the atmosphere of information transparency. This is the necessary tribute which public figures will have to pay as a compensation for their status. This position is also defended by the Court of Human Rights in Strasbourg, the US Supreme Court etc.

Article 70

1. Any monopoly for the ownership of the mass media and telecommunications shall be prohibited.

In this case, the Constitution sets forth guarantees for the activities of the mass media. They are important for the normal functioning of the communication sphere in Ukraine. The people should have access to different aspects of information on the world; they should exchange new knowledge and take useful lessons from this.

Article 71

1. Political, religious, artistic, or other personal likings of an individual shall not be subject to encouragement or restriction on behalf of the State.

Article 71 stresses the inadmissibility of the situation when the state becomes an open or secret supporter of a certain social group or ideological trend in a specific society.

By its nature, the state can in no way play up to the any religious confessions, doctrines or individual artistic searching. This is because the activities of the state should concern everybody and should be approved by the democratic majority of the country.

Section V

ENVIRONMENTAL SECURITY

The necessity of this Section is explained by the fact that Ukraine’s environmental safety is one of the issues of strategic importance. At the same time, observance of environmental standards is a typical requirement of the European Union to their current and potential members.

The draft Constitution does not refer to Chornobyl disaster, but its consequences are felt in everywhere in Ukraine. The environmental topic is present in the international treaties signed on behalf of Ukraine. Environmental cleaning of the territory is a subject of foreign political obligations of the country. From the point of view of legal drafting, this Section is based on the combination of the current norms on environmental safety (Articles 16, 50, 66 of the current Constitution) with the new directions.

Development of Articles 71-74 of the draft Constitution is based on the norms of the international Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (ratified by Law of Ukraine No. 832-XIV (832-14) of 6 July 1999).

Article 72

1. Everyone shall have the right to live in a healthy and favorable environment.

2. Preservation of the environmental security, support of environmental balance in Ukraine, and preservation of the gene pool of the Ukrainian People shall be an obligation of the State.

3. Environmental standards shall be established by law.

4. No broad scale business initiative shall come into effect without a preliminary positive opinion of an independent environmental study.

Article 72 of the draft combines the norms existing in the current Basic Law with the new provisions on the necessity to approve environmental standards by a law.

Another new norm is the mandatory nature of environmental expert studies. Today, such mandatory expert studies are envisaged by the current Ukrainian legislation. This provision, however, is worth being stipulated at the constitutional level.

Article 73

1. Citizens and other individuals equaled to them shall be entitled to participate in the decision-making related to the existing environmental state, safety or protection.

2. Everyone shall be guaranteed free access to the legislation on environmental state, safety or protection.

Development of Article 73 is based on the norms of the international Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (ratified by Law of Ukraine No. 832-XIV (832-14) of 6 July 1999). The relevant provisions of this Convention are presented in a more concise and generalized form.

Article 74

1. If an independent environmental study of industrial and other technical facilities evidences the condition of the environmental pollution that is dangerous for the human life and health, it shall be paid for by the owner of such facilities.

2. An environmental study cannot be denied if the party that insists on it has its own source to finance such study.

Article 74 supports independent environmental non-governmental organizations. Its potential is aiming at satisfaction of the needs of the civil society through its own resources and activities.

It is obvious that environmental movement in Ukraine will continue growing. This Article cerates the legal space necessary for this purpose.

Article 75

1. Each victim of a man-made environmental pollution shall be entitled to a judicial or other indemnification of the harm caused to them.

Article 75 guarantees the indemnification of the damage caused by the man-made environmental pollution. The damage caused by the people should be indemnified.

Section VI

ELECTIONS, REFERENDIM

Article 76

1. The will of the people shall be expressed through free and regular elections, the referendum and other forms of direct democracy.

2. It is prohibited to conduct elections and referenda under the martial law or state of emergency.

Article 76 of the draft Constitution is similar to Article 69 of the current Basic Law. The only difference between them is that the current Constitution uses the phrase "the will of the people shall be expressed through elections", while the draft stresses that "the will of the people shall be expressed through free and regular elections".

Article 77

1. Citizens of Ukraine who have attained the age of eighteen shall have the right to vote at elections and referenda.

2. The citizens recognized incapable by the court shall have no right to vote.

Article 77 of the draft Constitution fully corresponds to Article 70 of the current Constitution and needs not to be commented on.

Article 78

1. Elections to public authorities and local self-governance bodies shall be free and shall take place on the basis of universal, equal, and direct suffrage by secret ballot.

2. Voters shall be guaranteed the free from political, administrative, and other coercion or intimidation expression of their will.

3. The election and referendum procedures in Ukraine shall be regulated by law.

4. Citizens may refuse to participate in elections or referenda.

As compared with Article 71 of the current Constitution, Article 78 of the draft Constitution has additional provisions. Part 2 of Article 78 specifies the notion of free elections, while Part 3 stipulates that all election procedures in Ukraine should be established by law. Article 78 of the draft stresses that citizens of Ukraine should be entitled to stay politically neutral. It should be underlines that in accordance with the proposed Constitution citizens are not obliged to enter political parties or non-governmental organizations, participate in demonstrations, pickets, strikes etc.

In general terms, it would have been reasonable if the majoritarian election system is reintroduced for the elections to the Parliament of the Autonomous Republic of Crimea and local self-governance bodies. This could have been used as a basis for the further logics of Ukraine’s transition to a bicameral parliament, the National Assembly of Ukraine. In this case, solution of these issues is attributed to the competence of the law.

As concerns the elections to the National Assembly of Ukraine, their Upper Chamber should be elected on the basis of the majoritiarian system, while the Lower Chamber – on the basis of the proportional representation system, the majoritarian system or a mixed one.

The system of proportional representation is useful from the point of view of prospects for the development of the Ukrainian political parties. If elections to the Chamber of Deputies of the National Assembly are purely majoritarian, the political parties may lose an incentive for their further growing.

On the other hand, the existing election system should be changed to a more humane and structurally completed one. Citizens should not vote on the basis the lists actually closed to them. As a possibility, parliamentary elections in Ukraine could be improved through introduction of an analogue of the Polish election system. In that case, the population of Ukraine could vote only for the upper parts of the relevant party lists. The rest of the candidates from parties and blocs could be included into the regional lists.

Article 79

1. Any all-Ukrainian referendum shall be announced by the National Assembly of Ukraine or the President of Ukraine in accordance with requirements of this Constitution.

2. An all-Ukrainian referendum conducted on the decision of the National Assembly of Ukraine or the President of Ukraine shall be paid for at the cost of the state.

3. All-Ukrainian referenda may decide on the issues related to the competence of the National Assembly of Ukraine and the Government of Ukraine, excluding the restrictions established by this Constitution and the law.

4. An all-Ukrainian referendum on the people’s initiative shall be proclaimed by the President of Ukraine at the request of no less than three million citizens of Ukraine who have the right to vote, provided the signatures for the support of the referendum have been collected in no less than two thirds of the oblasts with no less than one hundred thousand signatures in each oblast.

5. The conduct of an all-Ukrainian referendum on the people’s initiatives shall be paid for either at the cost of the state, or by the citizens’ own funds.

6. No referendum can be held on the personal appointments to officers, as well as adoption of bills on taxes, budget, and amnesty.

7. No referendum can be held on the issues related to the competence of the judicial branch.

8. No all-Ukrainian referendum can be held during the impeachment of the President of Ukraine.

Article 79 of the draft Constitution is dedicated to the referendum. It is bigger than the relevant article present in the current Basic Law. A referendum on the people’s initiative may, if necessary, be paid at the cost of voluntary contributions of the citizens. This is explained by the fact that a referendum on the people’s initiative cannot be planned beforehand. On the other hand, authorities should not deny a referendum to the people due to the lack of state (budget) funds. In addition, self-funding of the referendum could be a stimulating factor for the populist initiatives. Citizens would not support by their own money a politically unjustified referendum.

The proposed text lists a number of issues on which no all-Ukrainian referendum can be held. Even though such prohibitions have existed before, now they are raised to the constitutional level.

Article 80

1. Exclusively an all-Ukrainian referendum shall approve a new Constitution of Ukraine, as well as amend Sections I and XVI of this Constitution.

2. Exclusively an all-Ukrainian referendum shall decide on the change of the territory of Ukraine.

3. The decisions passed at an all-Ukrainian referendum may not be cancelled by the existing convocation of the National Assembly of Ukraine.

Provisions of Article 80 are traditional for Ukraine. Part 3 of the Article transfers the already existing legislative provision to the constitutional level.

This norm warns against the possible intensification of the competition between the people’s and parliamentary expression of the will.

Article 81

1. There shall be a referendum of the Autonomous Republic of Crimea and local referenda.

 

Existence of this norm is explained by the fact that a referendum of the Autonomous Republic of Crimea does not fully coincide with the notion of a local referendum.

 

Section VII

NATIONAL ASSEMBLY OF UKRAINE

 

The main purpose of Articles 82-112 below is to introduce a bicameral parliament in Ukraine, the National Assembly of Ukraine. The National Assembly represents the legislative power in the state. It should act within the authorities defined by the Constitution of Ukraine, the law on the Parliamentary Rules of Procedures, and other laws of Ukraine. It is proposed that the National Assembly should consist of two chambers, the Chamber of Regions and the Chamber of Deputies, and be elected for 4 years.

The Chamber of Regions (the Upper Chamber) should be introduced for political representation of the regions: 24 oblasts, the Crimean Autonomous Republic, and the Metropolitan District of the City of Kyiv. It should be composed of senators elected by oblast councils, the Crimean Verkhovna Rada, and Kyiv City Council. Unless impeached, all former presidents of Ukraine should be members of the Chamber of Regions.

The Chamber of Deputies (the Lower Chamber) composed of 300 members should be elected by the citizens on the basis of an equal, direct and universal suffrage by secret ballot.

The National Assembly should work in sessions. This is how it should pass laws, resolutions, declarations, statements etc. All issues related to its competences should be decided either at separate or joint meetings of its chambers.

Introduction of a bicameral parliament in Ukraine aims mainly to abate the conflicting elements in the mechanism of the state power, to restore the representative function of the parliament, to raise the authority of the local self-governance, to promote the balanced development of the regions, and to support Ukraine’s policy of its accession to the European Union. The number of regions in western and central Ukraine essentially exceeds their number in the east and south. It is this territory that is inhabited by those Ukrainian voters who are most positive about Ukraine’s accession to the European Union.

A bicameral parliament will not wipe away the social and cultural differences between the eastern and western population of Ukraine, but it may enable the country to develop in a more harmonious way. The Upper Chamber represents a link between the legislative and the executive branches of power, therefore the influence of the attitudes in the west and centre of Ukraine on the formation of the Ukrainian government should intensify. Following the example of the Upper Chamber of the US Congress (the Senate), the Ukrainian National Assembly should provide its consent to the appointment of the Prime Minister, members of government, and judges of the Constitutional Court by the President of Ukraine.

A bicameral parliament is not something unusual for a unitary country. There are bicameral parliaments in such unitary countries as Poland, Italy, Japan, Spain, the Netherlands, Romania, France, Croatia, the Czech Republic, the Philippines, and Ireland. Mainly, the majority of the legislative assemblies in old democracies are bicameral independently of their political system (the United Kingdom, France, Italy, the United States, and Switzerland). Sometimes, countries of a similar type have a "hidden" bicameral system (Germany, Norway).

The name of the parliament, the National Assembly, should signal that Ukraine departs from its Soviet past. The National Assembly (as the Lower Chamber) exists in France. There also other names used for the parliamentary chambers, such as the House of Lords and the House of Commons in the United Kingdom, the House of Councilors and the House of Representatives in Japan, the Senate and the Congress of Deputies in Spain, the Senate and the Chamber of Deputies in Mexico, the Senate and the Sejm in Poland etc.

The upper and lower chambers normally differ in terms of the number of their members, the formation procedure, competences, the legal status of their members etc. In the majority of cases, lower chambers are elected by the people on the basis of equal and direct universal suffrage by secret ballot. The lower chambers are associated with the idea of people’s representation and the rule of the legislature authorized to approve budgets and laws and solve other issues of the similar importance.

Upper chambers are not always formed through elections. In the USA and Japan, their upper chambers are elected, but this has not always been so. Election of the US Senate was introduced in 1913, while in Japan its Upper Chamber has bees been elected only since 1947. In federal countries, the upper chamber is formed by the federation subjects (Austria, India, Germany). Certain traces of an appointed upper chamber have survived in Italy. Members of the upper chamber may be delegated by the autonomous formations in Spain.

Generally, organization of a bicameral National Assembly of Ukraine agrees with the European tradition. Members of the Chamber of Regions should be elected by oblast councils, the Crimean Verkhovna Rada, and Kyiv City Council from among the citizens not younger than 30 years, while members of the Chamber of Deputies should be elected among the citizens who reached 21 years on the ballot day. In the world, the age qualification of the members of parliament ranges between 18 and 40 years old. Members of the upper chambers may be elected/appointed for a longer period than those of the lower chambers; otherwise such periods can also be equal (Italy).

The number of members of lower chambers varies between 200 and 600 people. Upper chambers may have from 16 (Belize) to more than 1000 (UK) members. Chambers normally work in accordance with their own rules of procedure.

 

Article 82

 

1. The sole legislative body in Ukraine shall be the National Assembly of Ukraine

2. The National Assembly of Ukraine shall act within the powers established by this Constitution and by law.

3. The sequence of the National Assembly of Ukraine convocations shall be defined by the sequence of elections to the Chamber of Deputies of the National Assembly of Ukraine.

 

This article underlines that Ukraine does not recognize an unlimited parliamentary competence (it is the UK Parliament that is unlimited in this sense, which is rather an exception from a general rule). In addition, Article 82 contains an important technical norm establishing that the sequence of the National Assembly convocations is defined by the sequence of elections to its lower chamber. Further on, quite a number of situations in the state/political life are tied up to the notion of parliamentary convocations.

 

Article 83

 

1. The National Assembly of Ukraine shall consist of two chambers: the Chamber of Regions (the Upper Chamber) and the Chamber of Deputies (the Lower Chamber).

2. The Chamber of Regions shall consist of the ex officio Senators and the Senators elected by the Verkhovna Rada of the Crimean Autonomous Republic, oblast councils, and Kyiv City Council for the period of six years. To be elected as a Senator, the candidate shall get the majority of votes from the constitutional composition of the Crimean Autonomous Republic, oblast councils, and Kyiv City Council.

3. Three Senators shall be elected to the Chamber of Regions from the Verkhovna Rada of the Crimean Autonomous Republic and two Senators shall be elected from each oblast council and Kyiv City Council.

4. Senators shall be elected from among the members of the Verkhovna Rada of the Crimean Autonomous Republic, oblast councils, and Kyiv City Council.

5. The ex officio Senators shall include individuals who on the basis of Part 2 of Article 116 of this Constitution preserve the title of honor of the President of Ukraine.

6. Every two years, one third of the Senators, excluding the Speaker of the Chamber of Regions and the ex officio Senators, shall be re-elected on the basis of the rotation procedure.

7. The Speaker of the Chamber of Regions and the ex officio Senators shall not be subject to rotation.

8. Two thirds of the Senators of the first National Assembly of Ukraine, as well as each subsequent convocation following the early termination of powers of the National Assembly of Ukraine shall be elected before term by two equal parts in two and four years accordingly. This shall be followed by the regular replacement procedure.

9. The Chamber of Deputies shall consist of two hundred members elected by the citizens of Ukraine for four years.

 

Article 83 is mainly of a procedural nature. Election of Senators by local councils, and not by people, is explained by the fact that they should represent the interest of not so much specific voters, but rather the regions as such, the territories of the country, i.e. the Senate should be composed of the representatives of local political elites.

On the other hand, Article 83 sets that future Senators should first become members of the relevant oblast councils or the Crimean Verkhovna Rada. This means that, before becoming Senators, they should first go through the electoral filter at the local level. This should ensure their true link to the regional constituents.

 

Article 84

 

1. A citizen of Ukraine who has reached thirty years old on the ballot day, has the right to vote, and has resided in Ukraine for the past five year before the ballot day, may become a Senator of the National Assembly of Ukraine.

2. A citizen of Ukraine who has reached twenty one years old on the ballot day, has the right to vote, and has resided in Ukraine for the past five year before the ballot day, may become a Deputy of the National Assembly of Ukraine.

3. A citizen who has a criminal record for committing an intentional crime cannot be elected to the National Assembly of Ukraine if the record has not been cancelled and lifted in accordance with the procedure established by law.

4. Powers of Senators and Deputies of the National Assembly of Ukraine shall be established by this Constitution and by law.

 

Article 84 is clear that thus it does not need to be commented on.

 

Article 85

 

1. Regular elections to the Chamber of Deputies shall take place on the last Sunday of the last month of the fourth year of the term of powers of the National Assembly of Ukraine.

2. Regular elections to the Chamber of Regions shall take place within the last five days of the last month of each second year of powers of the National Assembly of Ukraine.

3. Any pre-term elections to the National Assembly of Ukraine shall be called by the President of Ukraine and shall be held within sixty days upon the publication of the decree on the pre-term termination of powers of the National Assembly of Ukraine.

 

Article 85 gives oblast councils five days to conduct the Senators’ elections. This option is used due to the fact that different councils may encounter technical difficulties with arranging such elections on one specific day.

 

Article 86

 

1. Senators and Deputies of the National Assembly of Ukraine shall exercise their powers on the permanent basis.

2. Senators and Deputies of the National Assembly of Ukraine shall not have any other representative mandate, be on the civil service, be involved in any other remunerable or entrepreneurial activities (excluding teaching, research, and creative activities), and be a member of the management body or a supervisory board of a profit-making company or an organization.

3. Requirements concerning the incompatibility of the Senator or Deputy mandate with other types of activity shall be established by law.

4. Should the incompatibility requirement be violated, a Senator or a Deputy should within twenty days upon the emergence of such circumstances terminate the relevant activities or resign from their parliamentary powers.

 

In countries with the presidential and mixed forms of government (USA, Brazil, Russia, France), the parliamentary mandate is normally not combined with the membership in the government. The same idea has been used in the proposed draft Constitution.

 

Article 87

 

1. Before assuming office, Senators and Deputies National Assembly of Ukraine shall take the following oath: "I swear loyalty to Ukraine. I commit myself to protect the sovereignty and independence of Ukraine with all my deeds, to care for the good of the Homeland, and for the welfare of the Ukrainian people. I swear to observe the Constitution and laws of Ukraine and exercise my powers in the interests of all fellow countrymen."

2. The refusal to take the oath shall result in the loss of the Senator or Deputy mandate.

3. The Senators and Deputies’ powers shall begin after they sign the oath.

4. The Senators and Deputies’ oath shall be administrated by the Speakers of the Chambers of the National Assembly of Ukraine or the oldest Senator or Deputy.

 

The draft Constitution proposes a slightly changed text of the oath for Senators and Deputies. The phrase "I swear to observe the Constitution and laws of Ukraine, fulfill my obligations in the interests of all fellow countrymen" is replaced by "I swear to observe the Constitution and laws of Ukraine and exercise my powers in the interests of all fellow countrymen". This change is a logic development of a prohibition of an imperative mandate.

Different procedures may also be used for the oath administration. For the very first or each pre-term election upon the dissolution of the National Assembly by the President, the oath may be administered by the oldest Senator or Deputy. In case of the Senators rotation or replacement of Deputies who for various reasons quit before term, the oath may administered by the Speaker of the Chamber of Regions or the Chamber of Deputies.

 

Article 88

 

1. Senators and Deputies of the National Assembly of Ukraine shall not be held liable for the results of their voting and statements made in Parliament or its bodies, excluding the liability for the attempts at honour and dignity, and intentional dissemination of untrue information about an individual.

2. No imperative mandate is recognized in relation to Senators and Deputies.

3. During the sessions of the National Assembly of Ukraine, Senators and Deputies cannot be arrested or detained without the consent of their chamber. As an exception, a Senator or a Deputy may be arrested or detained in locus delicti.

4. The National Assembly of Ukraine cannot make decisions on the increase of salaries for the current composition of Senators and Deputies of the National Assembly of Ukraine.

 

Article 88 does not recognize an imperative mandate. This approach is classical for the developed democratic countries (France, Italy, Spain and UK). Senators and Deputies should take into account the will of the people and the interests of the nation as such. A free mandate has been recognized in Western Europe since 19th century, which is why it is impossible to recall a senator or a deputy from their post.

It is on these ideas that the current draft Constitution is based on. Imperative mandate has survived in China, Cuba, and a number of other developing countries. In the majority of countries, even when a member of parliament quits a political party, this does not result in the deprivation of their mandate, but such member loses the political party support at the next elections.

In the countries with the presidential and mixed forms of government (USA, Brazil, Russia, France), the parliamentary mandate is not combined with the membership in the government. The same idea has been adopted for this draft Constitution.

Part of Article 88 guarantees limited inviolability to Senators and Deputies for the period when the National Assembly is in session. The same approach is adopted in the USA, Ireland, Norway, and the Philippines. A Senator or a Deputy may be arrested or detained on the site of a crime committed by them. Such procedure is also envisaged by the constitutions of many post-totalitarian countries.

 

Article 89

 

1. Exercise of powers by Senators and Deputies shall not be identical to the exercise of powers by the National Assembly chambers.

2. In case of regular expiry of powers of the National Assembly of Ukraine, its chambers shall continue exercising their powers until the first sitting of the first session of the next National Assembly of Ukraine.

3. In case of early termination of powers of the National Assembly of Ukraine, its chambers shall cease exercising their powers on the day when the presidential decree on the early termination of powers of the National Assembly of Ukraine is published.

4. In case of termination of powers of the National Assembly of Ukraine or rotation of its Upper Chamber, the Senator or Deputies to be replaced shall continue exercising their powers until the new Senators and Deputies swear their oath.

5. Powers of any Senator or Deputy shall terminate before term in the event of:

1) their resignation;

2) a guilty verdict against them coming into effect;

3) a court declaring them incapable or missing;

4) termination of their citizenship or their departure from Ukraine for permanent residence abroad;

5) failure to stop the activities incompatible with the Senator or Deputy’s mandate within twenty days upon the emergence of the relevant circumstances; and

6) their death.

6. The decision on the preterm termination of any Senator or Deputy’s powers in the cases envisaged by Items 1 and 4 of Part 5 of this Article shall be passed by the relevant National Assembly Chamber , and in the cases envisaged by Item 5 of Part 5 of this Article – by the court.

7. Should a guilty verdict against any Senator or Deputy come into effect, or should any Senator or Deputy be recognized incapable or missing, their powers shall terminate on the date when the relevant court decision comes into effect, and in case of their death – on the day of death attested by the death certificate.

8. Powers of any Senator or Deputy, who occupy their office through individual replacement, shall be exercised only until the mandate of the replaced Senator or Deputy expires.

 

Article 89 is clear, and thus it does not need any additional explanations. Importantly, it sets that the powers of the Senators and Deputies are not identical to the powers of the National Assembly. This rule has serious procedural consequences in case of a pre-term dissolution of the National Assembly. In general, Article 89 is aiming at mitigating the political conflict at the moment of possible aggravation of relations between the President and the National Assembly.

 

Article 90

 

1. The National Assembly of Ukraine shall work in sessions.

2. The National Assembly of Ukraine shall be competent provided no less two thirds of the constitutional composition of each of its chambers are elected.

3. In case of early termination of powers of the National Assembly of Ukraine, its plenary sessions shall cease on the day when the presidential decree on the early termination of powers of the National Assembly of Ukraine is published.

4. The National Assembly of Ukraine shall gather for the first session not later than on the tenth day upon the official publication of the parliamentary election results.

5. The fist sitting of the newly elected National Assembly of Ukraine shall be held as a joint sitting of its chambers opened by the oldest Senator or Deputy.

 

The National Assembly works in sessions. Two sessions are envisaged over a year, which is an average figure. In Germany, Italy, and Luxemburg, there are no parliamentary sessions at all and parliaments work on the basis of unscheduled plenary sittings. In other countries, parliaments work in sessions, and sessions are even called by a special act of a head of state (Austria, UK, India and Japan). Sometimes, parliaments gather for sessions according to a schedule (Brazil). There can be different numbers of sessions per year. In Ukraine, the need for two sessions per year is recognized. One session is held in the USA and Japan, two sessions – in Spain and France, and 3-4 sessions – in India.

 

Article 91

 

1. The regular sessions of the National Assembly of Ukraine shall begin on the first Tuesday of February and the first Tuesday of September each year.

2. Special sessions of the National Assembly of Ukraine, with indication of their agendas, shall be convened by the Speaker of the Chamber of Regions at the request of the President of Ukraine or not less than one third of the constitutional composition of the Chamber of Regions or the Chamber of Deputies.

3. Should the President of Ukraine issue a decree on the introduction of the martial law or the state of emergency in Ukraine or in its individual territories, the National Assembly of Ukraine shall gather for a plenary sitting within forty eight hours.

4. Should the powers of the National Assembly of Ukraine expire during the martial law or the state of emergency period, their Chambers shall continue exercising their powers until the first sitting of the first session of the National Assembly of Ukraine elected after the cancellation of the martial law or the state of emergency.

5. Should the powers of the National Assembly of Ukraine be terminated or the members of the Upper Chamber be subject to rotation during the martial law or the state of emergency period, the Senators and Deputies subject to replacement shall continue exercising their powers until the Senators and Deputies elected to the National Assembly of Ukraine after the cancellation of the martial law or the state of emergency swear their oath.

6. The operation procedure of the National Assembly of Ukraine shall be established by the Constitution of Ukraine, the Law on the Parliamentary Rules of Procedures, and other laws.

 

Article 91 has an important, but purely procedural nature. The purpose of these norms is clear and needs no special comments. The regulative potential of Article 91 is aiming at decreasing the risk of organizational conflicts in the structure of the National Assembly.

 

Article 92

 

1. The National Assembly of Ukraine shall make decisions at the joint and separate meetings of its Chambers. Each Chamber shall vote separately.

2. Speakers or Deputy Speakers of the Chambers shall take turns to preside over the joint meetings of the National Assembly of Ukraine. The first joint meeting after the election of the Speakers of the Chambers shall be presided over by the Speaker of the Chamber of Regions.

3. Meetings of the National Assembly Chambers shall be open. The closed meetings of the Chambers shall be held on the decision of the majority of the constitutional composition of the relevant Chamber.

4. The decisions of the National Assembly of Ukraine shall be passed exclusively at its plenary sittings by voting.

5. Senators or Deputies shall vote personally. The vote submitted by any Senator or Deputy on behalf of another Senator or Deputy shall be considered void and shall not be counted.

 

The National Assembly chambers may have joint and separate sittings. Joint sittings for ceremonial issues are envisaged by the constitutional legislation in Austria and Germany, and for the session opening and closing – by the law of Australia, Brazil, Mexico, and the Netherlands.

 

Article 93

 

1. The competence of the National Assembly of Ukraine shall be exercised through the joint and exclusive powers of the National Assembly Chambers.

2. The joint powers of the National Assembly of Ukraine shall be exercised through adoption of decisions by the Chamber of Deputies, which shall further be subject to the consideration and approval or decline by the Chamber of Regions.

3. In the cases envisaged by the Constitution of Ukraine, the joint powers of the National Assembly Chambers shall be exercised through the adoption by Senators and Deputies of the decisions that are functionally different, but aiming at the achievement of the same political result.

4. Exclusive powers of the National Assembly Chambers shall be exercised through adoption by each of them of their own decisions, independent from the position of the other Chamber.

 

Bicameral parliaments are distinguished on the basis of the powers granted to its chambers. In the majority of cases, parliamentary chambers have identical powers in relation to the consideration and adoption of laws. This may be the reason why in the USA bills may be filed with any Congress chamber. Lower chambers normally have special powers in the area of finance (adoption of the budget), while upper chambers are dealing with ratification of international agreements. In the USA and Ecuador, upper chambers approve governmental and other appointments done by the president. The powers are divided in a similar way in the proposed draft Constitution.

In other countries with bilateral parliaments, it is either lower chambers (France), or both chambers at the same time (Italy) that have to approve governmental appointments. This evidences that the Ukrainian model tends to the presidential republic no less than to the mixed one. This draft Constitution models Ukraine as a presidential-parliamentary republic with a strong president. The majority of the modern bicameral parliaments are based on the principle of unequal status of the chamber; the same principle is used in this draft Constitution.

Bicameral parliaments in unitary countries serve for efficient representation of the regional interests. Parliaments of Bolivia, Italy, Spain, Columbia, and France are considered to be regional representation bodies. At the same time, there is a widely spread idea that upper chambers are the bearers of a special type of knowledge, the depth of the political thought, and sound conservatism. E.g. membership in the upper chamber of the Italian parliament is associated with prominent achievements in the social, research, and artistic areas. Upper chambers are also traditionally less involved in political fights and they represent the "supra-party" type of political existence.

Bicameral parliaments provide for a more complicated and graceful system of people’s representation than unicameral parliaments. This is one of the reasons why radical leftist forces object to the introduction of bicameral parliaments in unitary countries. Bicameral parliaments, however, are better than unicameral ones in overcoming legislative mistakes, and they pass more balanced political decisions. It is these ideas that the draft Constitution is based on. Modern representative bodies should combine common sense with the depth of expert opinions, which is a strong argument behind the introduction of a bicameral parliament in Ukraine.

 

Article 94

 

1. The joint powers of the National Assembly of Ukraine shall include:

1) amendment of the Constitution of Ukraine in accordance with the procedure established by Section XVI of this Constitution;

2) calling of all-Ukrainian referenda on the issues attributed to the competence of the National Assembly of Ukraine, with exceptions established by this Constitution and by law;

3) adoption of laws;

4) approval of the State Budget of Ukraine and its amendment in accordance with the procedure established by Article 170 of this Constitution; oversight of the implementation of the State Budget of Ukraine, adoption of decisions on its implementation;

5) approval of the nationwide programmers for economic, research and development, social, national and cultural development, and environmental protection;

6) hearing of the annual and special state of the nation addresses made by the

President of Ukraine;

7) approval of the decisions made by President of Ukraine on the use of the Armed Forces of Ukraine and other military and armed formations established on the basis of the law in case of aggression against Ukraine;

8) removal of the President of Ukraine from his office on the basis of the impeachment procedure envisaged by Article 122 of this Constitution;

9) consideration and adoption of the decision on the approval of the Action Programme of the Government of Ukraine;

10) approval of the decisions on the provision by Ukraine of loans and economic assistance to any foreign states and international organizations, as well as on the receipt by Ukraine of loans not envisaged by the State Budget of Ukraine from foreign countries, banks, and international financial institutions; the oversight of their use;

11) approval of the decision on provision of the military assistance to other countries, on sending of the detachments of the Armed Forces of Ukraine to other countries, or on admittance of the detachment of the armed forces of other countries to the territory of Ukraine;

12) approval within forty eight hours upon their promulgation of the decrees of the President of Ukraine on the introduction of the martial law or the state of emergency in Ukraine or in its individual territories, on total or partial mobilization, and on announcement of individual areas as areas of the emergency environmental situation;

13) ratification and denunciation of international treaties of Ukraine;

14) appointment and dismissal of the officials of the National Assembly of Ukraine; approval of the estimates of the National Assembly of Ukraine; definition and approval of the secretariat structure of the National Assembly of Ukraine;

15) approval of the list of state property not subject to privatization; establishment of the legal principles for the withdrawal of facilities from private ownership;

16) hearing of the annual Ombudsman’s reports on the status of the observance of human rights and fundamental freedoms;

17) approval by law of the Constitution of the Autonomous Republic of Crimea and amendments thereto;

18) consideration of the issue of the responsibility of the Government of Ukraine; adoption of a no-confidence resolution resulting in the resignation of the Government of Ukraine;

19) approval of the general structure, size, and definition of functions of the Armed Forces of Ukraine, the Security Service of Ukraine, other military, and armed formations set up on the basis of the law, as well as the Ministry of Internal Affairs of Ukraine; and

20) other powers attributed to its competence in accordance with this Constitution.

 

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In the context of the worldwide practices, the powers of the National Assembly are typical. The joint powers of the Assembly include the main powers of the current Verkhovna Rada. They are mainly associated with the legislative and representative parliamentary functions.

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Article 95

 

1. The exclusive powers of the Chamber of Regions shall include:

1) provision of consent to the appointment of the Prime Minister of Ukraine, members of the Government of Ukraine, and the Head of the Security Service of Ukraine by the President of Ukraine;

2) appointment and dismissal of the Governor of the National Bank of Ukraine on the submission made by the President of Ukraine;

3) appointment and dismissal of half of the Board of the National Bank of Ukraine;

4) appointment and dismissal of half of the National Council for TV and Radio Broadcasting;

5) appointment and dismissal of the members of the Central Election Commission on the submission made by the President of Ukraine;

6) provision of consent to the appointment and dismissal of the Head of the Antimonopoly Committee of Ukraine and the Head of the State Property Fund of Ukraine by the President of Ukraine;

7) provision of consent to the appointment of the Prosecutor General of Ukraine by the President of Ukraine; removal of the Prosecutor General of Ukraine from office in accordance with the procedure established by Article 148 of this Constitution;

8) adoption of the decision on an inquiry to be sent to the President of Ukraine at the request of a Senator, a group of Senators or a committee, preliminary supported by no less than one third of its constitution composition;

9) appointment of the judges of the Constitutional Court of Ukraine on the submission made by the President of Ukraine;

10) oversight of the functioning of the Government of Ukraine in accordance with this Constitution; and

11) other powers in accordance with this Constitution.

 

Article 95 sets the procedure whereby the Chamber of Regions is supposed to provide its consent to the appointment of the Prime Minister and members of the Government by the President. Provision of consent is a milder than approval or appointment form of the parliamentary response to the choice made by the President. It underlines the status of the President as the head of the executive branch. According to the proposed Constitution, the President of Ukraine bears personal political responsibility for the functioning of the executive power in the country.

If the Chamber of Regions refuses to provide its consent to the appointment of the Government proposed by the President, this should mean that it is impossible for the Government to start working. In this case, the President of Ukraine may either resort to a compromise or dissolve the National Assembly. Another solution in this case is to appoint the political figures which in the future can be replaced by the President on the basis of Clause 11 of Part 1 of Article 117 of the draft Constitution.

Other powers of the Chamber of Regions coincide with the staffing authorities that the Verkhovna Rada of Ukraine used to have before the 2004 reform. The draft Constitution, however, envisages no State Committee for TV and Radio Broadcasting as its functions are actually replicated by the National Council for TV and Radio Broadcasting.

In general terms, the above Article is truly based on the principle of checks and balances in the functioning of the legislative power mechanism.

 

Article 96

 

1. The exclusive powers of the Chamber of Deputies shall include:

1) appointment and dismissal of the Head and members of the Accounting Chamber;

2) election of judges of the general jurisdiction courts for an unlimited period;

3) appointment of the Ombudsman on the submission made by the forum of human rights organizations; vote of no-confidence in the Ombudsman by two thirds of its constitutional composition resulting in the Ombudsman’s resignation;

4) adoption of the decision on an inquiry to be sent to the President of Ukraine at the request of a Deputy, a group of Deputies or a committee, preliminary supported by no less than one third of its constitution composition;

5) calling of the presidential elections within the terms established by the Constitution;

6) establishment and elimination of districts, establishment and change of city and village borders on the submissions made by local self-governance bodies, attribution of inhabited localities to the categories of towns, naming and renaming of inhabited localities and district on the submissions made by local self-governance bodies;

7) dissolution of the Verkhovna Rada of the Crimean Autonomous Republic provided there is an opinion of the Constitutional Court of Ukraine that it has violated the Constitution or laws of Ukraine; calling of pre-term elections to the Verkhovna Rada of the Crimean Autonomous Republic;

8) calling of elections to local self-governance bodies;

9) oversight of the functioning of the Government of Ukraine in accordance with this Constitution; an

10) other powers in accordance with this Constitution.

 

The Chamber of Deputies is granted the power to elect and appoint judges of the general jurisdiction courts. This is explained by an attempt to separate the judicial appointment from the governmental ones, which are attributed to the Chamber of Regions. The same logic lies behind the procedure set for the appointment of the Ombudsman.

In order to strengthen the independence of the judicial branch, the National Assembly is not given the current parliamentary power to dismiss the judges of the Constitutional Court of Ukraine. The same concerns the current presidential powers to dismiss the constitutional judges appointed by the President.

A novelty of Article 96 is that the issues related to the change of the administrative and territorial system of Ukraine should be solved on the submission of local self-governance bodies.

Like Article 95, Article 96 is also fully governed by the principle of checks and balances in the functioning of the legislative power mechanism.

 

Article 97

 

1. At the session of the National Assembly of Ukraine, a Senator or a Deputy may address themselves with an inquiry to the bodies of the parliamentary chambers, to the Government of Ukraine, to heads of other public executive authorities and local self-governance bodies, as well as executives of companies, institutions, and organizations located on the territory of Ukraine independently of their subordination and ownership forms.

2. Heads of public executive authorities and local self-governance bodies, companies, institutions, and organizations shall notify the Senator or the Deputy on the results of consideration of their inquiry within the terms established by law.

 

This is a classical parliamentary norm which does not need to be commented on.

 

Article 98

 

1. On the proposal of no less than one third of the constitutional composition of the Chamber of Regions or the Chamber of Deputies, the National Assembly of Ukraine may consider the issue on the responsibility of the Government of Ukraine and vote no confidence in the Government of Ukraine by the majority of the constitutional composition of each of its chambers.

2. The issue on the responsibility of the Government of Ukraine cannot be considered by the National Assembly of Ukraine more than once during one regular session within one year after the approval of the Action Programmer of the Government of Ukraine, and during the last session of the current National Assembly of Ukraine.

 

Provisions of Article 98 are classical for the Ukrainian parliamentarism, and they are also present in the current Ukrainian Constitution which sets similar rules for the unicameral Verkhovna Rada of Ukraine.

 

Article 99

 

1. The National Assembly Chambers shall elect their Speakers and Deputy Speakers by the majority of votes from their constitutional composition.

2. Before Speakers and Deputy Speakers are elected, the sittings of the Chambers shall be presided over by the oldest Senator or Deputy.

3. The Senator and the Deputy elected as Speakers of the National Assembly Chambers shall suspend their membership in their political party or movement for the entire term of their stay in office.

4. Each of the National Assembly Chambers may recall the Speaker or Deputy Speaker from their office by the majority of votes from their constitutional composition.

5. In the relations with other public authorities of Ukraine and public authorities of other countries, the National Assembly of Ukraine shall be represented by the Speaker of the Chamber of Regions. If the Speaker of the Chamber of Regions National Assembly of Ukraine cannot temporary fulfill this function, the National Assembly of Ukraine shall be represented by the Speaker of the Chamber of Deputies.

6. Speakers of the National Assembly Chambers shall:

1) conduct joint and separate sittings of the National Assembly Chambers;

2) organize the functioning of the National Assembly Chambers and coordinate the functioning of their bodies;

3) sign acts passed by the National Assembly Chambers; and sign acts passed by the National Assembly of Ukraine as such;

4) represent the National Assembly Chambers in their relations with other public authorities of Ukraine and public authorities of other countries; and

5) organize the functioning of the staff of the National Assembly Chambers.

7. The Speaker of the Chamber of Regions shall be in charge of the work of the National Assembly staff in general.

8. Speakers of the National Assembly Chambers shall exercise their powers in accordance with the Law on the Parliamentary Rules of Procedure.

 

Article 99 sets that the Speakers of the National Assembly Chambers should suspend their membership in their political party or movement for the entire term of stay in office. A similar rule exists in the UK, Sweden etc. Other provisions of Article 99 are technical (procedural), and thus they do not need to be commented on.

 

Article 100

 

1. For the purpose of the legislative work, preparation and preliminary consideration of the issues attributed to their competence, exercise of oversight functions, the National Assembly Chambers shall set up committees composed of Senators and Deputies and shall elect their chairs, first deputy chairs, deputy chairs, and secretaries.

2. Within their powers, the National Assembly Chambers may set up temporary ad hoc commissions for preparation and preliminary consideration of issues.

3. Each of the National Assembly Chambers shall set up their own committees and temporary ad hoc commissions.

4. For the investigation of the public interest issues, each of the National Assembly Chambers may set up temporary investigation commissions if this is supported by no less than one third of the constitutional composition of the relevant Chamber.

5. Opinions and proposals of the temporary investigation commission shall not be decisive for the investigation and the court.

6. Organization and functioning procedure of the National Assembly Chambers, their temporary ad hoc and investigation commissions shall be regulated by law.

 

Provisions of Article 100 are traditional not only for Ukraine, and thus they do not need to be commented on.

 

Article 101

 

1. The President of Ukraine may terminate the powers of the National Assembly of Ukraine before term if:

1) an all-Ukrainian referendum passes a law, particularly important for the development of the society, which the National Assembly of Ukraine has failed to pass during two sessions in a row;

2) the Chamber of Regions gives no consent to the appointment of the Prime Minister of Ukraine and members of Government of Ukraine by the President of Ukraine within the terms established by the Constitution;

3) the National Assembly of Ukraine fails to organize its plenary sittings within thirty days of one session; and

4) the number of Senators or Deputies becomes less than two thirds of the constitutional composition of the relevant National Assembly Chamber.

2. Should any Senator or Deputy voluntarily refuse from their mandate, which results in preterm termination of powers of the National Assembly of Ukraine, they cannot be elected to the next National Assembly of Ukraine formed through preterm elections.

3. The President of Ukraine shall decide on the preterm termination of powers of the National Assembly of Ukraine after consultations with the Speakers of the Chambers and leaders of parliamentary factions.

4. The powers of the National Assembly of Ukraine, formed after preterm termination of powers of the previous National Assembly of Ukraine, cannot be terminated over a year after it starts functioning.

5. The powers of the National Assembly of Ukraine also cannot be terminated in the following cases:

1) during the martial law or the state of emergency period;

2) if an impeachment procedure has been initiated against the President of Ukraine;

3) in the last six months of the constitutional term of powers of the National Assembly of Ukraine; and

4) in the last six months of the constitutional term of powers of the President of Ukraine.

 

According to the draft Constitution, Ukraine has a mixed or so-called third form of government. The first two forms include the parliamentary republic (Austria, Italy, Germany) and a coherent presidential republic (the USA, Mexico, Panama, Uruguay). The mixed form combines the elements of the presidential and parliamentary republics. In mixed republics, the president normally has the right to dissolve the parliament. A classical example of a mixed form of government is France. Ukraine used to have a similar form of government in 1996-2004.

The mechanism of pre-term termination of powers exists in the majority of monarchies and republics (excluding the presidential republics, such as Brazil, the USA and others). The right to dissolve the parliament is considered to be an efficient counteraction to the parliament’s temptation to dismiss the government. Most often, the parliament is dissolved by the head of state (Austria, the UK, Spain, Italy, Germany, Japan), or the speakers and the Prime Minister (France). The draft Constitution also envisages a dissolution procedure.

Powers of the National Assembly are normally terminated on such grounds as the impossibility to appoint the Chancellor (Austria), a failure to form the government (Spain), the real political necessity (France), the abuse of the vote of no-confidence (Hungary) etc.

Article 101 empowers the President of Ukraine to dissolve the National Assembly in four cases. Such a right is normally granted to the heads of state in presidential-parliamentary or parliamentary forms of governance. Most often, the presidents make this step on the recommendation of the governments, but sometimes also on their own initiative.

The President of France may dissolve the parliament after consultations with the Prime Minister and Speakers of Chambers, even though the consent of the latter is not obligatory. The President of Finland dissolves the parliament on the recommendation of the government and on the President’s own initiative. The presidential power to dissolve the parliament is a strong tool that can be used by the executive branch to influence the legislative one. Therefore, in constitutions this power is normally limited by certain circumstances. The same logic is used in the proposed draft Constitution.

Typical grounds for the dissolution of the parliament include the impossibility to form the government (Italy, Hungary, and Russia). Sometimes, the fate of the parliament is decided depending on whether the public supports an important president’s initiative at a referendum. According to the proposed Constitution, the National Assembly may be dissolved by the President if an important law, which the Assembly fails to pass during two sessions in a row, is passed at a referendum.

It should be stressed that the draft Constitution does not require the President to dissolve the National Assembly, but rather allows the President to do that. Sometimes constitutions prohibit dissolution of parliaments during the state of emergency (France, Russia, Poland, Hungary, and Romania), which is also the case with the draft Constitution.

 

Article 102

 

1. The National Assembly of Ukraine shall pass laws and other acts by the majority of the constitutional composition of its Chamber of Regions and Chamber of Deputies, excluding the cases envisaged by the Constitution and by law.

 

Due to its purely technical nature, Article 102 does not need to be commented on.

 

Article 103

 

1. The following shall be determined exclusively by laws:

1) human rights, fundamental freedoms, and obligations;

2) citizenship, civil legal personality, the status of foreigners and stateless individuals;

3) rights of indigenous peoples and national minorities;

4) the procedure for the use of the state language;

5) the principles for the use of natural resources, the exclusive (maritime) economic zone, the continental shelf, the exploration of the outer space, organization and use of power supply, transport, and communications systems;

6) the principles of social protection, forms and types of pension provision; the principles of labor and employment regulation, marriage, family, childhood, motherhood, and fatherhood care; the principles of upbringing, education, culture and health care; the environmental safety principles;

7) the legal regime of property;

8) the legal principles of entrepreneurship; the competition rules and norms of antimonopoly committee regulation;

9) the principles of foreign relations, foreign economic activities, and customs;

10) the regulation principles for demographic and migration processes;

11) the procedure for the establishment and functioning of civil associations and mass media;

12) organization and functioning of the state public executive authorities; the civil service principles, the organization principles for the state statistics and information technologies;

13) the territorial system of Ukraine;

14) the judiciary, justice procedures, the status of judges, the forensic enquiry principles; organization and functioning of the prosecution system, the inquiry and investigation bodies, the notary system, the penitentiary bodies and institutions; the bar organization and functioning principles;

15) the local self-governance principles;

16) the status of the special Metropolitan District; the special status of cities;

17) the principles of the national security, the organization of the Armed Forces of Ukraine, and security of the public order;

18) the legal regime of the state border;

19) the legal regime of martial law and the state of emergency, the areas of emergency environmental situation;

20) the elections and referenda procedures;

21) the status of Senators and Deputies of the National Assembly of Ukraine;

22) the principles of the civil and legal liability; the crimes, criminal, administrative, or disciplinary offences, and liability for them;

23) categories of information that constitute state secrets, other secrets, confidential information, and personal data protected by law.

2. The following shall be established exclusively by laws:

1) The State Budget of Ukraine and the budgetary system of Ukraine; the taxation system, taxes and charges; the principles for the establishment and functioning of the financial, monetary, credit, and investment markets; the status of the national currency, as well as the status of foreign currencies in Ukraine; the procedure for the formation and payment of the domestic and foreign debt; the procedure for the issuance and circulation of securities, their types and forms;

2) the procedure for the dispatching of the Armed Forces of Ukraine to other countries; the procedure for the admittance and the conditions of stay of the armed forces detachments from other countries in Ukraine;

3) the weight, measure and time units; the state standards;

4) the procedure for the use of state symbols;

5) state awards;

6) military and diplomatic ranks and other special titles;

7) state holidays;

8) the procedure for the set up and functioning of free and other special zones that have economic or migration regime different from the general one.

3. Amnesty shall be announced by law.

 

This list corresponds to the one established by the current Constitution. A new introduction here is that according to Item 23 of Part 1 of Article 103, only laws should establish "categories of information that constitute state secrets, other secrets, confidential information, and personal data protected by law".

In addition, if the current Constitution contains a provision on "legal principles and guarantees of entrepreneurship", the draft Constitution mentions only "legal principles of entrepreneurship", while the guarantees may also be established by governmental resolutions.

If the current Constitution stipulates (Item 11 Part 1 Article 92) that "the principles of the establishment and activity of political parties" should be regulated exclusively by laws of Ukraine, the draft Constitution sets (Item 11 Part 1 Article 103) that the laws of Ukraine are supposed to define the procedure for the establishment and activities of political parties".

The current Constitution also refers to "the organization and procedure for conducting elections and referendums" (Item 20 Part 1 Article 92), while the draft Constitution focuses on "the elections and referenda procedures" (Item 20 Part 1 Article 92).

 

Article 104

 

The right of legislative initiative in the National Assembly of Ukraine shall belong to:

1) the President of Ukraine;

2) the Government of Ukraine;

3) the Supreme Court of Ukraine;

4) the Verkhovna Rada of the Crimean Autonomous Republic;

5) Senators and Deputies of the National Assembly of Ukraine; and

6) the Ombudsman.

2. The bills defined as urgent by the President of Ukraine shall be considered by National Assembly of Ukraine ahead of the order.

3. All bills, excluding the State Budget Bill, shall be submitted by the subjects of legislative initiative to any of the National Assembly Chambers.

 

Article 104 extends the existing list of the subjects of legislative initiative with the Ombudsman, the Supreme Courts, and Senators.

The extension of the list is explained by the fact that the right of legislative initiative which today belongs to the members of the Ukrainian parliament is often exercised "on a commission" of other individual who have no such right. Thus the above list is enlarged in order to avoid the actual replication of the powers granted to the members of parliament.

The Ombudsman may, of course, find a Deputy or a Senator as a mediator, but this approach is not considered to be efficient.

 

Article 105

 

1. A law shall be signed by the Speakers of the National Assembly Chambers. The Speaker of the Chamber of Deputies shall be the first to sign the law. Thereupon the law shall be signed by the Speaker of the Chamber of Regions and shall be immediately sent to the President of Ukraine.

2. A bill, excluding the State Budget Bill, which does not get the majority of votes from the constitutional composition of each of the National Assembly Chambers, shall not be considered to be adopted by the National Assembly of Ukraine.

3. If the National Assembly Chambers do not come to a unanimous decision while considering a bill, a bill can be passed over for the consideration of a Reconciliation Committee set up by the National Assembly Chambers.

4. After a bill has been dealt with by the Reconciliation Committee, the Chamber of Deputies shall accept it for a repeated consideration. A bill worked out by the Reconciliation Committee can be sent for a repeated consideration to the Chamber of Deputies not more than three times.

5. Within fifteen days upon having received it from the Speaker of the Chamber of Regions, the President of Ukraine shall sign the law, accepting it for implementation, and shall officially promulgate it. The President of Ukraine may also return the law to the National Assembly of Ukraine for repeated consideration with his or her motivated and formulated proposals in accordance with the veto procedure.

6. If within the established period of time the President of Ukraine does not return the law for repeated consideration, the law shall be considered to be approved by the President of Ukraine and shall be signed and officially promulgated by the President of Ukraine.

7. If after the presidential veto, the law is passed by the National Assembly of Ukraine again by no less than two thirds of the constitutional composition of each of its chambers, the President of Ukraine shall be obliged to sign and officially promulgate it within ten days.

8. If upon the presidential veto, the State Budget Law of Ukraine is passed again by no less than two thirds of the constitutional composition of the Chamber of Deputies, the President of Ukraine shall be obliged to sign and officially promulgate it within ten days.

9. The law shall come into effect within ten days upon its official promulgation if another is not envisaged by the law itself, but not before its publication.

10. If the President of Ukraine refuses to sign and promulgate the law which has been passed in accordance with the requirements of this Constitution, this shall constitute a gross violation of the Constitution of Ukraine.

11. The law shall be officially promulgated within ten days upon its signature by the President of Ukraine.

12. The procedure for the publication of the resolutions and other acts of the National Assembly of Ukraine, as well as the resolutions and other acts of the National Assembly Chambers shall be regulated by the Law on Parliamentary Rules of Procedure.

 

Article 105 of the draft Constitution offers a solution to overcome contradictions between the National Assembly Chambers. This solution corresponds to the established practice used for the same purpose in the US Senate, the French National Assembly etc. The right to return a bill for a repeated consideration by the lower chamber is rather typical. It is recognized in the UK, Spain, Japan, Russia etc.

The right to veto laws passed by the National Assembly of Ukraine is a complementary tool which can be used by the head of state to influence the legislative body. This right is envisaged by the US, Russian, Polish, Czech, and other constitutions. In some countries, the presidential veto is overridden either by a qualified majority or a simple repeated voting in support of the declined bill (Greece, Italy, Romania, Hungary). No less typical is the presidential right to submit the parliamentary acts to constitutional courts or referenda.

 

Article 106

 

1. The budget system of Ukraine shall be developed on the basis of fair and unbiased distribution of the social wealth between citizens and the population of the administrative and territorial units of Ukraine.

2. Exclusively the State Budget Law of Ukraine shall define the expenditures of the state for the general social needs, as well as the size and the purpose of such expenditures.

3. The state shall ensure that the State Budget of Ukraine is balanced.

4. Regular reports on the State Budget incomes and expenditures shall be officially promulgated.

 

In view of its technical nature, this Article does not need to be commented on.

 

Article 107

 

1. The State Budget of Ukraine shall be annually approved by the National Assembly of Ukraine for the period between 1 January and 31 December or for another period under particular circumstances.

2. A State Budget bill shall be adopted by the Chamber of Deputies and then passed for approval to the Chamber of Regions.

3. If, considering the State Budget bill, the National Assembly Chambers cannot come to a unanimous decision, the Speaker of the Chamber of Regions shall pass such bill to the Reconciliation Committee set up by the National Assembly Chambers on an equal footing.

4. If upon its consideration by the Reconciliation Committee, the State Budget bill is again declined by the Chamber of Regions, or if the Chamber of Regions makes no decision on the State Budget bill upon its consideration by the Reconciliation Committee, the State Budget bill shall be approved by the Chamber of Deputies on its own. Thereupon, the State Budget Law shall be signed by the Chamber of Deputies and passed for signature to the President of Ukraine.

5. No later than 15 September of each year, the Government of Ukraine shall pass the next year State Budget bill to the National Assembly of Ukraine. The bill shall be accompanied by a report on the implementation of the current State Budget of Ukraine.

 

A special procedure is proposed to overcome any contradictions that may rise between the National Assembly Chambers while they consider the State Budget. In general terms, it reminds the way the state budget is adopted in France. The draft budget is submitted to the Chamber of Deputies and then it is passed for approval to the Upper Chamber of the Ukrainian parliament. Almost everywhere where there are bicameral parliaments, budgets are passed by lower chambers. Draft budgets are normally submitted to the lower chamber (with the exception of India), as recommendations of the upper chamber on the budget are normally not binding.

Upper chambers may sometimes veto budget bills. Unlike adoption of other legislation, however, the budget may be passed by the Lower Chamber on its own. Similarly, the budget may be passed with the House of Lords in the UK, a similar procedure is envisaged in Japan. In Russia, the Duma may pass the budget by a qualified majority of votes, having overridden the veto of the Upper Chamber (the Federation Council).

 

Article 108

 

1. According to the law on the National Assembly of Ukraine, the Government of Ukraine shall submit a report on the implementation of the State Budget of Ukraine.

2. The report submitted by the Government of Ukraine shall be officially published.

 

Due to its technical nature, this Article does not need to be commented on.

 

Article 109

 

1. On behalf of the National Assembly of Ukraine, the Accounting Chamber exercises control of the receipt and use of funds of the State Budget of Ukraine.

2. The legal status of the Accounting Chamber shall be established by law.

 

Due to its technical nature, this Article does not need to be commented on.

 

Article 110

 

1. The currency of Ukraine shall be hryvnia.

2. The National Bank of Ukraine shall ensure stability of the currency.

 

Due to its technical nature, this Article does not need to be commented on.

 

Article 111

 

1. The Board of the National Bank of Ukraine shall develop the principles of the currency and credit policy and shall oversee its implementation.

2. The legal status of the Board of the National Bank of Ukraine shall be established by law.

 

Due to its technical nature, this Article does not need to be commented on.

 

Article 112

 

1. The Ombudsman shall exercise the parliamentary oversight of the observance of human rights and fundamental freedoms.

2. The Ombudsman shall be appointed by the Chamber of Deputies National Assembly of Ukraine on the submission of the nationwide forum of human rights organizations of Ukraine.

3. A citizen of Ukraine who has reached thirty five years old on the appointment day and speaks the state language may be appointed Ombudsman.

4. Within the funds defined by the State Budget of Ukraine, the Ombudsman shall appoint the Ombudsman’s local representatives of Ukraine and shall establish expert and other bodies and services.

 

Article 112 deals with the Ombudsman’s status. Unlike the current Constitution, the draft offers such a procedure which makes the Ombudsman a real representative of the civil society interests in Ukraine.

The candidacy for this position is submitted to the Chamber of Deputies by the national forum of human rights organizations. Such form (the national union) exists in Ukraine, and its political maturity is high enough, which allows entrusting it with nomination of the relevant candidate.

 

Section VIII

PRESIDENT OF UKRAINE

 

Articles 113-123 define the legal status of the President of Ukraine. The presidential power concept adopted by the draft Constitution envisages that the head of state occupies the top place in the hierarchy of the state institutions and represents the country at the top level in the international affairs. According to the draft Constitution, the President heads the executive power in Ukraine. This new presidential status partially reminds the presidential powers envisaged by the current Constitution before 2004. As a matter of fact, the presidential powers are close to the model of a strong president in a presidential republic.

At the same time, the President of Ukraine only generally guides the functioning of the Government without being its member. The President’s right to dissolve the parliament is considered to be counterbalanced by the parliament’s rights to vote no confidence in the Ukrainian Government and to impeach the President for a gross violation of the Constitution.

In some countries, an administrative prime minister plays the role of an intermediary between the government and the president.

The post of the President in the proposed Constitution belongs to the model of a state with a strong president in a mixed presidential-parliamentary republic. Unlike a presidential republic, where the head of the executive branch cannot dissolve the parliament, the President of Ukraine is granted this right. Unlike the French President, the Ukrainian President cannot dissolve the parliament just on his or her wish. The grounds for the parliament’s disbanding are established by the Constitution. In general terms, however, the dissolution of the parliament is a classic attribute of the presidential power in presidential-parliamentary republics.

The proposed model should provide for better stability of the country’s political system. In particular, it will not be possible to dismiss the head of the executive branch on political motives, as the fate of the President of Ukraine in this case does not depend on political perturbations in the parliament. The presidential-parliamentary republic has been chosen to the disadvantage of the purely presidential because the presidential model has so far been efficiently functioning only in the USA, which is different from other similar republics (Latin American states) by high level of political culture.

In addition, the presidential republics lack a mechanism for solving contradictions between the executive and legislative branches of power (which is not allowed by the principle of the division of powers). To the contrary, the presidential-parliamentary republics have such a mechanism, as the branches of power here are not so much independent, as rather autonomous in relation to each other. This idea is reflected in the draft Constitution with a direct reference to the autonomy relations between the executive and the legislative branches.

In the Ukrainian model of the presidential-parliamentary republic, the head of state is elected through direct universal suffrage which provides for a strong nature of the presidential powers. Presidents are elected by people not only in presidential and mixed republic (the USA, Brazil, Mexico, Russia, France, Azerbaijan), but also in the purely parliamentary ones (Austria, Ireland, Iceland, Romania, Bulgaria, Poland, Slovenia, Moldova).

In general terms, introduction of the presidential (presidential-parliamentary) form of government in Ukraine is supported by the arguments proposed in his time by the Ukrainian lawyer I.Pukshyn. In his opinion, it is not by chance that business in the developing countries prefers democratic structures with elements of centralization and authoritarianism. This is explained by the necessity to concentrate the state power in order to mobilize national resources to overcome the civilization backwardness. In particular, this is the reason why parliamentary republics are not popular in the Arabic "oil monarchies". Therefore, it is common for the developing countries to tend to not parliamentary, but rather presidential or half-presidential forms of government (Algeria, Ghana, Nigeria, Pakistan, Ethiopia, Greece (1970s), Turkey (1890s).

Even though it is not just the USA, France, the UK, Japan or Canada, but also such countries as Hungary, Latvia, Moldova, Ukraine, Romania, and the Czech Republic that are based on a polycracy (i.e. their public authorities are formed through democratic procedures; there is a functioning system of checks and balances; the interests of the centre and regions are balanced; the human rights and fundamental freedoms are guaranteed), young democracies find themselves under a rather strong influence of the corporate and oligarchic groups that can be opposed only by a publicly elected head of state (Poland, Romania, Ukraine, Slovakia, Bulgaria, Croatia, Slovenia, Moldova, Lithuania, Georgia, Armenia).

Today, there is a trend towards no so much pure (parliamentary or presidential), as hybrid (half-presidential, partially parliamentary) forms of governance. The countries, that have no established state-building traditions, more often adopt a presidential or half-presidential form of governance, i.e. parliamentary republics (Italy, India, Germany, Portugal, Bulgaria, Hungary, the Czech Republic) are much less widespread than presidential republics. Half-presidential and presidential can nowadays be found in Asia and Europe; they are rather common in the Northern and Latin America, as well as Africa (the USA, Costa-Rica, Uruguay, Peru, Columbia, Ecuador, Venezuela).

It should also be noted that the success of the US presidential republic cannot be considered as a purely national achievement. The United States have been formed by the European dissidents, which in their time resolutely rejected the political absolutism of the Old World. The independent method to legalize the legislative and the executive branches of power, invented by the USA, has later lead the country to its impressive cultural, economic, and military success. After the US achievements, it became impossible to ignore the creative potential of the presidential form of governance.

Pure parliamentarism is also opposed by a number of national arguments. It is well known that successful parliamentary republics are dependent on high political culture of their political parties, which is something that Ukrainian political parties still lack. Just the very number of them evidences the excessive ambition and petty obstinacy of the Ukrainian political elite. In addition, main political ideologies (conservatism and liberalism) remain undeveloped in Ukraine. In their turn, political parties with established ideological principles, such as the Communists, the Socialists, and the Rukh, find themselves on the margins of the political life. As such drawbacks require a lengthy evolution period to be fixed, a parliamentary republic in Ukraine seems to be rather problematic from a practical point of view.

Also from the historic perspective, Ukrainian parliamentarism has not been very successful. The Central Council policies, and later the Directorate’s "collective dictatorship" and the functioning of the Working People’s Congress have been rather eclectic, disorganized, and frankly populist. Even though the Central Council was accurately following democratic procedures, and its Chairman Mykhailo Hrushevskyi did not abuse his powers to come down to authoritarianism, the general outcome of the Ukrainian parliamentarism of the beginning of the 20th century appeared to be disastrous. Actually, between the times of Bohdan Khmelnytskyi and Hetman Pavlo Skoropadskyi, only autocratic governance has been relatively successful. Almost all researcher of Ukraine’s political history agree that the Ukrainian democracy was efficient when it was guided by a single leader.

In the current circumstances, the parliamentary republic may have a pendulum effect on the governmental level under the conditions of the ethnic and cultural split of Ukraine into the West and the East. The political fluctuations of the governmental short-term priorities are normal, but in the parliamentary Ukraine this can lead to the fluctuations of the governmental strategies, which is something that is difficult to sustain for any state. It is not a secret that, due to its geographic location, Ukraine’s foreign policy is rather often formed as a forced reaction to the challenges of the Russians. In actually presidential Russia, the decision-making is characterized by resoluteness and dynamism, while in parliamentary republics is it more compromise and slow. Therefore, the parliamentary Ukraine risks being chronically later in its replies to the initiatives of the Eastern neighbor. One can foresee that with a presidential republic the Ukrainian governmental can be stable for 4-5 years, while in a parliamentary republic it will last for not more than 6-12 months.

In addition, in parliamentary republics governments function on the basis of corporate arrangements made by political party factions, which, in their turn, always risk falling under the corruption influence. In other words, in a not so wealthy parliamentary republic members of parliament and government can be financially tempted. In a presidential republic, it is the people who choose the head of the executive branch (and its strategy), which makes it rather difficult to use the same methods to corrupt them.

Ukrainian polls demonstrate that people in Ukraine support the presidential republic more, just like they are more in favor of direct presidential elections. Due to a popular support, a publicly elected president has less chance to become a political "puppet". Having been legitimized by millions of citizens, the Ukrainian needs to have matching powers, and thus should be granted the status of the head of state.

 

Article 113

 

1. The President of Ukraine shall be the head of the Ukrainian State and shall speak on its behalf.

2. The President of Ukraine shall head the state executive power in Ukraine without being a member of the Government of Ukraine.

3. The President of Ukraine shall be the Supreme Commander-in-Chief of the Armed Forces of Ukraine.

4. The functions of the President of Ukraine shall include:

1) the general guidance of the Government of Ukraine;

2) the security of the territorial integrity and state sovereignty of Ukraine;

3) oversight of the observance of the Constitution of Ukraine;

4) security of human rights and fundamental freedoms; and

5) representation of the Ukrainian State in the world.

 

See general comment to Section VIII.

 

Article 114

 

1. The President of Ukraine shall be elected by the citizens of Ukraine on the basis of the universal, equal, and direct suffrage by secret ballot for four years.

2. A citizen of Ukraine who was born in Ukraine or has been naturalised as a Ukrainian citizen before he or she was 18 years old, who has reached the age of thirty-five on the ballot day, has the right to vote, has resided in Ukraine for the past ten years prior to the ballot day, and speaks the state language, may be elected as the President of Ukraine

3. One and the same person shall not be the President of Ukraine for more than two consecutive terms.

4. The President of Ukraine shall not have any other representative mandate, hold any other office in public authorities or civil associations, as well as be involved in any other paid or business activity, or be a member of a management body or a supervisory board of a profit-making company.

5. The presidential election shall be held on a last Sunday of the last month of the fourth year of the incumbent President’s powers. In case of preterm termination of any President’s powers, the presidential election shall be arranged in ninety days upon such termination of powers.

 

Part 2 of Article 114 restricts the possibility to become President of Ukraine for the individuals who acquired the Ukrainian citizenship as grown-ups. This is because an individual striving to become President of Ukraine should be deeply integrated into the Ukrainian culture, the people’s everyday life, their traditions etc.

The need of such restriction is explained by the fact that from the legal point of view the current constitutional legislation of Ukraine makes no difference between the citizens of Ukraine who were born and have grown up in Ukraine, and the individuals who have acquired their Ukrainian citizenship after they moved to Ukraine as adults.

In other terms, Article 114 is similar to Article 102 of the current Constitution, and thus it needs no additional comments.

 

Article 115

 

1. The newly elected President of Ukraine shall occupy the office not later than in fifteen days after the official publication of the election results and upon searing the oath at a sitting of the National Assembly of Ukraine.

2. The oath of the President of Ukraine shall be administered by the Speaker of the Chamber of Regions.

3. The President of Ukraine shall swear the following oath: "Occupying this high post, I, (name and surname), elected by the will of the people President of Ukraine, swear allegiance to Ukraine. I commit myself to take every effort to defend the sovereignty and independence of Ukraine, to care for the welfare of the Homeland, freedom and prosperity of the Ukrainian People, to stand up for civil rights and freedoms, to observe the Constitution and laws of Ukraine, to exercise my powers in the interests of all country fellowmen, and to bring up the authority of Ukraine in the world".

4. The President of Ukraine, elected at pre-term elections, shall swear oath within five days upon the official publication of the election results.

 

Part 2 of Article 115 entrusts the sets that the administration of the presidential oath into the Speaker of the Chamber of Regions. Under the current Constitution, this is done by the Chief Justice of the Constitutional Court, which is ungrounded and politically illogical.

In accordance with the new Preamble, Article 115 partially alters the text of the presidential oath, and replaced "to care for <…> the welfare of the Ukrainian People" by "to care for <…> freedom and prosperity

In addition, the phrase "I commit myself <…> to observe the Constitution and laws of Ukraine, to fulfill my obligations in the interests of all fellow countrymen" (Article 104 of the current Constitution) is replaced by "I commit myself <…> to observe the Constitution and laws of Ukraine, to exercise my powers in the interests of all country fellowmen".

 

Article 116

 

1. The President of Ukraine shall enjoy the right of inviolability while exercising the presidential powers.

2. The title of the President of Ukraine shall be preserved for life, unless the President of Ukraine has been impeached from the presidential office.

 

This norm is traditional not only for Ukraine, and thus it needs no comments.

 

Article 117

 

1. The President of Ukraine shall:

1) do the general guidance of the Government of Ukraine, ensure state independence, national security and the legal succession of the state;

2) make addresses to the people, as well as annual and special addresses to the National Assembly of Ukraine on the internal and external state of the nation;

3) represent the state in international relations, conduct negotiations, and conclude international treaties of Ukraine;

4) make decisions on the recognition of foreign states;

5) appoint and dismiss heads of Ukraine’s diplomatic missions to other countries and international organizations; accept credentials and letters of recall from diplomatic representatives of foreign states;

6) call a nationwide referendum in the cases envisaged by this Constitution; announce a nationwide referendum on popular initiative;

7) call preterm elections to the National Assembly of Ukraine within the dates established by this Constitution;

8) terminate the powers of the National Assembly of Ukraine in accordance with this Constitution;

9) appoint, on the consent of the Chamber of Regions, the Prime Minister of Ukraine, terminate the powers of the Prime Minister of Ukraine, and make decision on the Prime Minister’s resignation;

10) appoint, on the consent of the Chamber of Regions, members of the Government of Ukraine, the Head of the Security Service of Ukraine, and dismiss them; appoint and dismiss heads of other central public executive authorities;

11) appoint, excluding the Prime Minister of Ukraine, individual members of the Government of Ukraine through a replacement procedure, if the total number of such replacements does not exceed one fourth of the newly appointed Government of Ukraine;

12) appoint, on the submission of the Government of Ukraine, heads of local state administrations and dismisses them;

13) appoint, on the consent of the Chamber of Regions, the Prosecutor General of Ukraine;

14) make a submission to the Chamber of Regions for the appointment and dismissal of the Governor of the National Bank of Ukraine; appoint and dismiss half of the Council of the National Bank of Ukraine;

15) appoint and dismiss half of the National Council of Ukraine for TV and Radio Broadcasting;

16) appoint and dismiss, on the consent of the Chamber of Regions, the Head of the Antimonopoly Committee of Ukraine and the Head of the State Property Fund of Ukraine;

17) establish, reorganize, and abolish ministries and other central public executive authorities acting within the scope of the funds envisaged for the maintenance of public executive authorities;

18) cancel acts of the Government of Ukraine and acts of the Council of Ministers of the Crimean Autonomous Republic;

19) appoint and dismiss the high command of the Armed Forces of Ukraine and other military formations; govern in the area of national security and protection of Ukraine;

20) head the National Security and Protection Council of Ukraine;

21) decide on the introduction of the martial law in Ukraine or its individual territories with subsequent approval of such decisions by the National Assembly of Ukraine in case of armed aggression or threat of attack, danger to the state independence of Ukraine or its territorial integrity;

22) decide on the basis of the law on the general or partial mobilization, the use of the Armed Forces of Ukraine and other military formations in case of armed aggression against Ukraine with the subsequent approval of such decisions by the National Assembly of Ukraine;

23) decide, if necessary, on introduction of state of emergency in Ukraine or in its individual territories, as well as announce, if necessary, individual territories of Ukraine to be the areas of emergency environmental situation with subsequent approval of such decisions by the National Assembly of Ukraine;

24) make a submission to the Chamber of Regions for the appointment of judges of the Constitutional Court of Ukraine;

25) make the first appointment to the position of a professional judge for the period of three years; and establish courts in accordance with the procedure established by law;

26) confer highest military ranks, highest diplomatic and other special titles and class orders; and deprive on the basis of the law of highest military and diplomatic ranks, other highest special titles and class orders;

27) confer state awards; establish and confer presidential distinctions;

28) decide on provision and termination of the Ukrainian citizenship and on granting of asylum in Ukraine;

29) exercise the amnesty power;

30) establish, within the funds envisaged by the State Budget, consultative, advisory, and other subsidiary bodies and services necessary for the exercise of the presidential powers;

31) sign laws passed by the National Assembly of Ukraine; sign the State Budget Law passed by the Chamber of Deputies;

32) veto the laws passed by the National Assembly of Ukraine and return them for the repeated consideration of the National Assembly of Ukraine; veto the State Budget Law passed by the Chamber of Deputies;

33) make a submission to the Chamber of Regions on appointment and dismissal of members of the Central Election Commission;

34) exercise other powers in accordance with this Constitution

2. The President of Ukraine may call a nationwide referendum if during two sessions in a row the National Assembly of Ukraine fails to pass a law particularly important for social development.

3. It is the prerogative of the President of Ukraine to decide which law is particularly important for social development.

4. The President of Ukraine may not pass the presidential powers over to other individuals or bodies.

5. On the basis and for the implementation of this Constitution, the President of Ukraine shall issue decrees and orders binding all over Ukraine.

6. Acts of the President of Ukraine, issued within the powers envisaged by Items 3, 4, 5, 8, 10, 11, 12, 16, 17, 19, 20, 23, 24, 25, and 26 of this Article shall be countersigned by the Prime Minister of Ukraine and the minister in charge of the act and its implementation.

 

The presidential powers set forth above are in the majority of cases similar to those that were granted by the Constitution of Ukraine in the period between 1996 and 2004.

In the draft Constitution it is proposed that the Chamber of Regions would provide its consent to the appointment by the President of the Prime Minister and other members of the Government. The Government cannot be formed without such consent. Further, the President may replace 25% of the newly formed Government over the period of its powers without reconciling such decisions with the National Assembly. This right strengthens the independent status of the executive branch of powers, making it at the same time possible to mitigate a potential conflict between the President and the National Assembly at the stage when the Government is formed. The President may make concessions to the parliament for certain candidates, and then replace them (in half a year) by others on the basis of this constitutional right.

Many countries are now trying to overcome the drawbacks of the presidential and parliamentary forms of government by making the state mechanism more flexible and stable at the same time. This is because for an efficient governance of the country it is important to ensure not so much the division of powers, but rather the cooperation between different state institutions. This problem can be solved through the use of mixed models. The latter include the semi-presidential republics of France, Portugal, Finland, Russia etc. A similar form of governance is based on the logic of a strong presidential power subjected to the conditions of the mitigated (as compared to the presidential republics) division of powers, where the head of state exercises executive powers together with the prime minister.

In the majority of similar cases, the head of state is in charge of solving strategic issues, exercising direct oversight only over individual governmental policies. The prime minister is normally in charge of managing the government. A similar mechanism of power is more complicated, than the one used in a presidential republic, but it provides rather fair chances for solving conflicts between the branches of power. The head of state may lift tension by dissolving the parliament, while the parliament may, under certain circumstances, dismiss the government.

Despite of the fact that many modern constitutions fix the principle of the division of powers, the head of state is allowed to exercise certain judicial powers. Often presidents appoint judges and exercise the right of amnesty. This is the way that is followed by the constitutional legislation of Ukraine.

The draft Constitutions also takes away the presidential power to make a submission on the proclamation of the state of war (Item 19 Part 1 Article 106 of the current Constitution), as the state of war equals the martial law which is introduced (in the draft) on the basis of the Constitution by a presidential decree with the subsequent approval by the National Assembly.

 

Article 118

 

1. The National Security and Protection Council of Ukraine shall be a coordination body for national security and protection issues under the President of Ukraine.

2. The National Security and Protection Council of Ukraine shall coordinate and oversee the functioning of public authorities in the area of national security and protection.

3. The President of Ukraine shall be the Chairman of the National Security and Protection Council of Ukraine.

4. The President of Ukraine shall form the personal composition of the National Security and Protection Council of Ukraine.

5. The Prime Minister of Ukraine, the Minister of Protection of Ukraine, the Head of the Security Council of Ukraine, the Minister of Internal Affairs of Ukraine, and the Minister of Foreign Affairs of Ukraine shall be the ex officio members of the National Security and Protection Council of Ukraine.

6. Speakers of the National Assembly Chambers may participate in the meetings of the National Security and Protection Council of Ukraine.

7. Decisions of the National Security and Protection Council of Ukraine shall be effectuated by the decrees of the President of Ukraine.

8. The competence of the National Security and Protection Council of Ukraine shall be defined by law.

 

Powers of the National Security and Protection Council described in Article 118 above actually coincide with its powers under Article 107 of the current Constitution, and thus these norms do not need to be commented on.

 

Article 119

 

1. The President of Ukraine shall exercise the presidential powers before the newly elected President of Ukraine takes office.

2. Should the powers of the President of Ukraine terminate during the martial law or the state of emergency period, the exercise of such powers shall continue until the President, elected after the martial law or the state of emergency is cancelled, takes office.

3. The powers of the President of Ukraine shall terminate before term in the event of:

1) resignation;

2) impossibility to fulfill the presidential powers due to the physical conditions;

3) removal from office through the impeachment procedure; and

4) death.

 

Article 119 is similar to Article 108 of the current Constitution, and thus it does not need to be commented on.

 

Article 120

 

1. The resignation of the President of Ukraine comes into effect after the President of Ukraine announces his/her resignation at a joint meeting of the National Assembly Chambers.

 

Article 120 does not need to be commented on.

 

Article 121

 

1. The fact that the President of Ukraine is unable to fulfill the presidential powers due to the physical condition should be established at a joint meeting of the National Assembly chambers and confirmed by a decision passed by the majority of the constitutional composition of the Chamber of Regions on the basis of a written submission made by the Supreme Court of Ukraine at the request of the Chamber of Deputies, and a medical conclusion.

 

Article 121 is a modified version of Article 110 of the current Constitution (adapted to the bicameral structure of the parliament), and thus it requires no special explanations.

 

Article 122

 

1. The President of Ukraine may be removed from office by the National Assembly of Ukraine on the basis of the impeachment procedure in case of commitment of an intentional crime or gross violation of the Constitution of Ukraine.

2. The issue on the impeachment of the President of Ukraine shall be initiated by the majority of the constitutional composition of the Chamber of Deputies.

3. For the purpose of investigation, the Chamber of Regions shall set up an ad hoc investigation commission.

4. Conclusions of the ad hic investigation commission shall be considered at a meeting of the Chamber of Regions.

5. Should there be grounds, the Chamber of Regions shall send the conclusions of the ad hoc investigation commission to the Supreme Court of Ukraine or the Constitutional Court of Ukraine by the majority of its constitutional composition.

6. Should the ad hoc investigation commission come to a conclusion that the actions of the President of Ukraine are characterized by any features of an intentional crime, the conclusions of the commission shall be sent by the Chamber of Regions to the Supreme Court of Ukraine.

7. Should the ad hoc investigation commission come to a conclusion that the actions of the President of Ukraine are characterized by any features of gross violation of the Ukrainian Constitution, the conclusions of the commission shall be sent by the Chamber of Regions to the Constitutional Court of Ukraine.

8. The decision on the impeachment of the President of Ukraine shall be passed by the Chamber of Regions by no less than two thirds of its constitutional composition upon the receipt of the conclusion of the Supreme Court of Ukraine or the Constitutional Court of Ukraine on whether the actions, that the President of Ukraine is accused of, are characterized by any features of an intentional crime or a gross violation of the Constitution of Ukraine.

9. Impeachment of the President of Ukraine shall not exempt him/her from criminal liability, but such exemption shall be possible on a decision of the majority of the constitutional composition of the Chamber of Regions if the President of Ukraine voluntarily resigns under the threat of impeachment.

 

The impeachment procedure proposed by Article 122 is developed on the basis of well-known models. In Italy, the president is impeached for the state treason and attempts at the constitutions; in the US – for treason, a bribe, gross crime, and other offences; in Germany – for the intentional violation of the constitution and federal law; in Mexico – for the state treason and crime. In Ukraine, impeachment follows an intentional crime or a gross violation of the Constitution. The issue on qualification of the gross violation of the Constitution remains, however, relatively open. The Constitution describes the President’s refusal to sign a properly passed law as a gross violation, as well as an ungrounded proclamation of a martial law or the state of emergency. Other gross violations of the Constitution should be established ad hoc by the Constitutional Court of Ukraine.

Fulfillment of legal norms requires a certain discretion and individual understanding from the subjects of power. It is not possible to avoid a limited gap in the implementation of legal prescriptions at the constitutional level as well. Therefore, the draft Constitution refers to a gross violation, and not to any violation of the Constitution that may be committed by the President of Ukraine. It is not possible to commit a gross violation of the Constitution due to imprudence. A gross violation envisages an intentional and essential abuse by the President of the presidential powers.

In its turn, it is traditional to involve judicial bodies into the impeachment procedure. This is the case in Italy, Bulgaria, Germany (the constitutional court), Portugal, Finland, and Romania (the supreme court).

 

Article 123

 

1. In case of preterm termination of powers of the President of Ukraine in accordance with Articles 119, 120, 121, and 122 of this Constitution, the presidential powers shall be fulfilled by the Prime Minister of Ukraine until the new President of Ukraine is elected and takes office.

2. The Prime Minister of Ukraine cannot fulfil the presidential powers envisaged by Clauses 2, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 24, 27, and 29 of Article 117 of the Constitution.

3. If it is not possible for the Prime Minister to fulfil the presidential powers, such powers, excluding those referred to in Part 2 of this Article, shall be fulfilled by the Speaker of the Chamber of Deputies.

 

According to Article 123, in case of preterm termination of the powers of the President of Ukraine, the presidential powers should temporarily be fulfilled by the Prime Minister of Ukraine. A similar mechanism is used in Austria, Russia, Tunis, Finland, and Sri-Lanka. The Prime Minister may also be replaced in the period when the Prime Minister fulfils the presidential powers by the Speaker of the Chamber of Deputies, which is a new provision.

A similar replacement chain is envisaged by the US Constitution. If due to some circumstances the US Vice-President is not able to fulfill the presidential duties, such duties go to the Speaker of the US House of Representatives. The constitution should obviously ensure that the country is governed under any circumstances. The risks for life of political leaders grow together with the increase of their mobility. Thus, there is a need to develop legal procedures also for emergency situations.

 

Section IX

GOVERNMENT OF UKRAINE AND OTHER PUBLIC EXECUTIVE AUTHORITIES

 

 

Articles 124-131 define the status of the Government of Ukraine as the highest collective public authority. A new feature in its status is that the Government is subordinated to the President of Ukraine. The constitutional theory makes a difference between the governments that work under the leadership of the head of state and the governments operating under the leadership of the prime minister. In France and Belgium, governments subordinated to the heads of state are called councils of ministers, while the government under the leadership of the prime minister is referred to as the cabinet council. In some countries, smaller nuclei are set up within governments and are called cabinets.

The status of the Government of Ukraine meets the requirements of the executive branch organization in the countries with a mixed form of government with the post of the prime minister. In this case, the prime minister is seen as a president’s assistant endowed with all necessary powers. The prime minister is in charge of administering the government, as well as of performing certain coordination functions. Many modern constitutions set forth only general competences of the government. At the same time, there is a trend to more specific definition of governmental powers in the basic laws. Therefore, Article 127 of the proposed draft Constitution lists the necessary governmental authorities.

Having fixed the principles of the division of powers (all branches of power are proclaimed autonomous in relation to each other), the draft Constitution prohibits members of Government to combine their mandate with membership in the Chamber of Regions or the Chamber of Deputies. Such restriction exists not only in presidential republics, but also in the constitutional legislation of Austria, the Netherlands, Norway, France etc. This makes it possible to avoid excessive politicization of ministers, who are prohibited from business and any other profit-making activities (France, Romania, Germany).

 

Article 124

 

1. The Government of Ukraine shall be the highest collective authority in the system of public executive authorities.

2. The functioning of the Government of Ukraine shall be generally governed by the President of Ukraine.

3. The Government of Ukraine shall be responsible to the President of Ukraine. It shall be controlled by and subordinated to the National Assembly of Ukraine within the limits established by this Constitution.

4. In its functioning, the Government of Ukraine shall be governed by the Constitution of Ukraine, laws, and acts of the President of Ukraine.

 

See comments to Article 123 above.

 

Article 125

 

1. The Government of Ukraine shall include the Prime Minister of Ukraine and ministers.

2. The first minister in the list of governmental appointments shall act as the Vice Prime Minister.

3. The Prime Minister of Ukraine and members of the Government of Ukraine shall be appointed by the President of Ukraine on the consent of the majority of the constitutional composition of the Chamber of Regions.

4. The President of Ukraine shall form the Government of Ukraine on the basis of consultations with the Speakers of the National Assembly Chambers and the Prime Minister of Ukraine.

5. The President of Ukraine may appoint certain members of the Government of Ukraine without consent of the Chamber of Regions National, excluding the Prime Minister of Ukraine, through the replacement procedure, if the general number of such appointments does not exceed one fourth of the newly appointed Government of Ukraine.

6. Members of the newly appointed Government of Ukraine cannot be dismissed by the President of Ukraine on the basis of the replacement procedure earlier than six months after their appointment.

7. The Prime Minister of Ukraine shall manage the Government of Ukraine on the instruction of the President of Ukraine.

8. The Prime Minister of Ukraine shall aim the functioning of the Government of Ukraine at the implementation of the Action Programmer of the Government of Ukraine approved by the National Assembly of Ukraine.

9. If necessary, the Prime Minister of Ukraine shall make submissions to the President of Ukraine for the establishment, reorganization, and abolishment of ministries, other central executive authorities within the scope of funds envisaged by the State Budget of Ukraine for the maintenance of such authorities.

 

Governments of the presidential-parliamentary republics are often formed without the parliament’s involvement, but even in this case the arrangement of political forces in the country influences the creation of the government. The same model is proposed by the draft Constitution to form the Ukrainian Government. According to Article 125, the President is supposed to select members of Government through consultations with the speakers of the National Assembly chambers and the incumbent Prime Minister.

In the presidential-parliamentary republics, the president may entrust the management of the government to the leader of the party that has won the parliamentary elections. This is, however, not a universal method to fill the prime minister’s post. Under the draft Constitution, the President of Ukraine is free in choosing candidates for the position of the Prime Minister, which positions the President as a strong and independent figure in the model of governance proposed for Ukraine.

The international practice (e.g. in France) evidences that when the presidential party wins the parliamentary elections, the president chooses whom he wishes for the prime minister’s position. In an adverse case, the prime minister’s political independence goes up essentially. It is in order to avoid such a situation that the formation of the Ukrainian government is fully entrusted into the independently elected President of Ukraine. Forming the Government, the President of Ukraine takes advice from the speakers of both parliamentary chambers and factions leaders. This practice is rather widespread.

The Nordic States have adopted the principle of "negative parliamentarism", which means that the governments of these countries do not always count on the trust vote in their parliaments. Even through they have a possibility to approve the governmental programmer, this is not required at the beginning of the government’s activities. In Ukraine, it is proposed that the Government should continue exercising its powers until the parliament refuses to support it. This means that the Government is not supposed to prove its loyalty to the National Assembly, while the National Assembly should prove the loss of confidence in the Government by voting.

Another novelty in the draft Constitution is that there is no full-fledged position of the Vice Prime Minister in the Government. This practice is known to the European countries. In Germany, the Chancellor just appoints one of the federal ministers as his/her deputy (most often, the Minister for Foreign Affairs). Under the draft Constitution, the Vice Prime Minister’s post is taken by the minister who comes the first in the list of governmental appointments. Thus, this can be the Minister of Economy, the Minister of Finance, the Minister for Foreign Affairs etc.

The draft Constitution does not limit the number of ministers, which is also typical, as the governmental activity should encounter no barriers. The functioning of the Government is based on the principle of collective responsibility. Ministers freely express their opinions during the discussions of the issues, but they preserve political unity after the decisions are taken. This means that a minister should not publicly criticize the Government while being its member. If the National Assembly votes no confidence in the Government, the Government should resign.

 

Article 126

 

1. The Government of Ukraine shall resign to the newly elected President of Ukraine.

2. The Prime Minister of Ukraine, other members of the Government of Ukraine shall be entitled to declare their resignation to the President of Ukraine.

3. Resignation of the Prime Minister of Ukraine shall result in the resignation of the entire Government of Ukraine.

4. Adoption of a no confidence motion by the National Assembly of Ukraine shall result in the resignation of the Government of Ukraine.

5. If the President of Ukraine accepts the resignation of the Government of Ukraine, on the President’s instruction the Government shall continue exercising its powers until the newly formed Government of Ukraine begins functioning.

6. The Prime Minister of Ukraine shall request resignation of the Government from the President of Ukraine on the decision of the President of Ukraine or upon a no confidence vote by the National Assembly of Ukraine.

 

Provisions of Article 126 are typical for many modern democracies of the world and are fully acceptable for Ukraine; for this reason, they do not require any special comments.

 

Article 127

 

1. The Government of Ukraine shall

1) ensure the state sovereignty and economic independence of Ukraine, exercise of the domestic and foreign policies of the state, fulfillment of the Constitution and laws of Ukraine, acts of the President of Ukraine;

2) take measures to ensure human rights and fundamental freedoms, fulfillment of constitutional duties;

3) ensure implementation of the financial, pricing, investment, and taxation policies; policies in the areas of labor and public employment, social care, education, science and culture, environmental protection, environmental security and the use of nature;

4) develop and implement nationwide programmers of economic, research and development, social and cultural evolution of Ukraine;

5) ensure conditions for the development of ownership forms; manage public property in accordance with the law;

6) develop the State Budget Bill of Ukraine and ensure the implementation of the State Budget of Ukraine approved by the National Assembly of Ukraine; submit the report on the implementation of the State Budge of Ukraine to the National Assembly of Ukraine;

7) take measures to ensure the dependence ability and national security of Ukraine; public order, fight against corruption;

8) arrange and ensure Ukraine’s foreign economic activities and customs affairs;

9) direct and coordinate the functioning of ministries and other public executive authorities; and

10) fulfill other functions in accordance with the Constitution of Ukraine, laws, and acts of the President of Ukraine.

 

Article 127 sets the governmental powers which practically coincide with the authorities of the current Cabinet of Ministers; for this reason, the above norms do not need to be commented on.

 

Article 128

 

1. Within its competence, the Government of Ukraine shall issue binding resolutions and orders.

2. Acts of the Government of Ukraine shall be signed by the Prime Minister of Ukraine.

3. Acts issued by the Government of Ukraine, ministries, and other central public executive authorities shall be registered in accordance with the procedure established by law.

 

By its content and structure, Article 128 is traditional for the Ukrainian constitutional legislation, and thus its norms do not need to be commented on.

 

Article 129

 

1. The public executive power in oblasts and districts, the Special Metropolitan District and the city of Sevastopol shall be exercised by the local state administrations.

2. The procedure for the exercise of the public executive power in the Special Metropolitan District and the city of Sevastopol shall be established by law.

3. The local state administration shall be composed by the heads of local state administrations.

4. Heads of local state administrations shall be appointed and dismissed by the President of Ukraine on the submission of the Government of Ukraine.

5. When exercising their powers, heads of local state administrations shall be responsible to the President of Ukraine and the Government of Ukraine, accountable to and controlled by higher public executive authorities.

6. Local state administrations shall be accountable to and controlled by higher public executive authorities.

7. Decisions of heads of local state administrations that contradict the Constitution of Ukraine, other legislative acts of Ukraine may be cancelled by the President of Ukraine, the Prime Minister of Ukraine or a head of a higher local state administration.

 

All parts of Article 129 are clear, and thus they do not need to be commented on.

 

Article 130

 

1. On their relevant territories, local state administration shall ensure:

1) representation and protection of the nationwide interests of Ukraine;

2) oversight of the implementation of the Constitution and laws of Ukraine, acts of the President of Ukraine, the Government of Ukraine, ministries, and other public executive authorities;

3) observance of the legality and public order regime, respect of human rights and fundamental freedoms set by the Constitution, fulfillment of duties;

4) oversight of the proper exercise by local self-governance bodies of the powers granted to them, as well as proper used of the state allocations and subventions; and

5) exercise of other powers granted to them by law or delegated by local self-governance bodies.

2. All acts adopted by local self-governance bodies shall be passed over within five days upon their signature to the local state administrations of the relevant level.

3. Any head of local state administration may contest in the court any decisions of local referenda, as well as any acts passed by local self-governance bodies, their officials on the motives of their incompliance with the Ukrainian law.

4. In case of high state need, any head of local state administration may stop any decisions of local referenda, as well as any acts passed by local self-governance bodies and their officials on the motives of their incompliance with the Ukrainian law with their concurrent contestation in the court.

 

Article 130 regulates at the constitutional level the new status of local state administrations. Unlike in the current Constitution, the local state administrations are not granted the powers of executive authorities under the local self-governance bodies. Instead of a broad notion of "a public executive authority", the draft Constitution is more specific and defines two types of local executive authorities, namely (a) a public executive authority and (b) a local self-governance executive body. Under the draft Constitution, the functions of local state administrations are similar to the functions of state prefectures in France.

 

Article 131

 

1. Members of the Government of Ukraine, heads of other central and local public executive authorities may not combine their office with any other work (excluding teaching, research, and creative activities in their free time), be members of any management body or a supervisory board of a company or a profit aiming organization.

2. Organization, powers, and functioning procedures of the Government of Ukraine, other central and local public executive authorities shall be established by the Constitution of Ukraine and the law.

 

Norms of Article 131 are clear, and thus they do not need to be commented on.

 

Section X

JUDICIAL POWER AND PUBLIC PROSECUTION OF UKRAINE

 

Articles 132-149 of the draft Constitution are dedicated to the organization principles of the judicial branch in Ukraine. In their main features, they remain similar to those set by the current Constitution (in its version before 2004). The Section, however, has a different title and instead of "Justice" it is called "Judicial Power and Public Prosecution of Ukraine" which is better reconciled with the principle of division of powers. Article 132 is based on the idea that judicial decisions should be approved in the name of the Law, with the arguments for this approach described above.

The Public Prosecution is not a part of the judicial branch, but its functions are complementary to the judicial authority.

 

Article 132

 

1. Justice in Ukraine shall be exercised exclusively by courts. Delegate of the judicial functions to or their appropriation by other bodies or officials shall be prohibited.

2. Jurisdiction of courts shall extent to all legal relations that emerge in the state.

3. People shall participate in the administration of justice on the basis of this Constitution and the law.

4. Court decisions shall be approved in the name of the Law and shall be binding all over Ukraine.

5. Court shall also:

1) provide consent to the investigative actions related to the restriction of human rights and fundamental freedoms;

2) select the prevent measures, provide consent to the use of coercive measures related to the temporary restriction of personal or property human rights;

3) record the evidence in the cases envisaged by law; and

4) consider complaints for the actions of the individuals responsible for pre-trial investigation.

6. The law may also confer other functions on courts.

7. A judge who oversees the pre-trial investigation of a case may not consider the case on the essence of the presented accusation.

 

Article 132 is similar to Article 124 of the current Constitution; however, the current wording “The people shall directly participate in the administration of justice through people’s assessors and the jury” is replaced by “The people participate in the administration of justice on the basis of this Constitution and the law”. Unfortunately, people’s participation in the administration of justice in Ukraine has not yet become direct in the exact meaning of this word.

The judicial system in Ukraine is rather critical about the idea to introduce juries. As no juries have started functioning in Ukraine, the Constitution should be realistic and it should establish the principle of people’s participation in the administration of justice in a new way (with specific forms of participation to be envisaged by law).

As to Parts 5 and 6 of Article 132, their content is fully new for the Ukrainian constitutional practice. The list of the most important powers of courts exercised at the stage of pre-trial investigation is introduced on the basis of the 2007 Criminal Justice Reform Concept in Ukraine.

 

Article 133

 

1. The system of general jurisdiction courts in Ukraine is based on the principles of territory, specialization, and level arrangement.

2. The Supreme Court of Ukraine shall be the highest judicial authority in the system of general jurisdiction courts.

3. The Supreme Court of Ukraine shall be in charge of official interpretation of Ukrainian laws.

4. The relevant high courts shall be the higher judicial authorities among the specialized courts.

5. Appellate and local courts shall act on the basis of the law.

6. Establishment of extraordinary and special courts shall not be allowed.

 

Main provisions of Article 134 are the same as those of Article 125 of the current Constitution with Parts 2 and 3 being essentially new. In Part 2, the existing principles of territorial and specialised arrangement are supplemented with the principle of level arrangement. Part 3 sets the Supreme Court of Ukraine should interpret Ukrainian laws. Both novelties are disputable, though representatives of the judicial branch have expressed quite a number of arguments to support them.

In particular, the need to introduce the principle of level arrangement has been grounded by the Criminal Justice Reform Concept for Ukraine developed by the national Commission for Strengthening Democracy and Establishment of the Rule of Law under the President of Ukraine in 2007.

Part 3 of Article 134 authorizes the Supreme Court to do the official interpretation of the Ukrainian laws, thus taking this power away from the Constitutional Court. See also the comment to Article 139.

 

Article 134

 

1. Independence and inviolability of judges in the course of exercise of their professional duties shall be guaranteed by the Constitution of Ukraine and by law.

2. It shall be prohibited to exercise any pressure or influence on judges.

3. Without the consent of the High Council of Justice, a judge cannot be detained or arrested before the court passes a conviction verdict.

4. The procedure for the appointment and dismissal of judges shall be established by the Constitution of Ukraine and by law.

5. Provided they properly fulfill their duties, judges shall occupy their office for a lifetime, excluding the judges of the Constitutional Court and the judges who are appointed for the first time.

6. Judges shall have no political obligations to the bodies or individuals that have elected or appointed them.

7. The powers of judges shall be terminated by the bodies that have elected or appointed them in the following cases:

1) impossibility to fulfill their duties due to their physical condition;

2) violation of the incompatibility requirements;

3) break of oath;

4) termination of citizenship;

5) submission of a resignation request or voluntary withdrawal from the post; and

6) commitment of actions incompatible with the title of a judge.

8. The powers of a judge shall be terminated upon the occurrence of the following events:

1) termination of the period for which a judge has been elected or appointed;

2) achievement of the pension age;

3) coming into force of a conviction verdict; and

4) recognition of a judge as missing or proclamation of a judge as deceased;

5) death.

9. The state shall ensure personal security of judges and their family members.

 

Article 134 is an essentially updated version of Article 126 of the current Constitution. A novelty here is that the general (unlimitedly broad) independence and inviolability of judges is replaced by their functional independence, i.e. independence from any pressure or external influence while they exercise their professional powers. This approach is widespread in the international practice.

In Part 2 of Article 134, the Verkhovna Rada is replaced by the High Council of Justice as the body that should provide its consent to the detention and arrest of a judge. It is obvious that should a bicameral parliament be introduced, it will be unnecessary to preserve the existing procedure for the provision of consent for the detention or arrest of a judge. Moreover, parliaments in such situations most often just agree with the opinions of the relevant committee.

The personal composition of the High Council of Justice and its formation procedure evidence that this body does not lack moral or professional authority. At least, this authority should be enough to provide consent for the detention or arrest of judges.

Part 6 of Article 134 sets that judges have no political obligations to the bodies or individuals that elected or appointed them. It does not matter who grants judicial powers to judges. It is important, however, that judges remain politically independent afterwards. According to Article 2 of the Universal Charter of the Judge of 1999, the judge, as a holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure, and independently from other judges and the administration of the judiciary.

The novelty of Article 134 is that the procedure for the termination of judges’ powers depends on the circumstances that cause such termination. In particular, Part 7 of Article 134 preserves the existing procedure for the termination of the judge’s by the body that elected or appointed such judge,

Vice versa, Part 8 of Article 134 envisages automatic termination of the judge’s powers if one of the following events occur: 1) achievement of the pension age; 2) coming into force; 3) recognition of a judge as missing or proclamation of a judge as deceased; 4) death. Such an update of the constitutional provisions is rather reasonable.

In addition, if the current Constitution establishes a specific pension age for judges (65 years), the draft Constitution attributes pension age to the issues to be established by law.

 

Article 135

 

1. Justice in Ukraine shall be administered by professional judges and, in the cases defined by law, by people’s assessors and jurors.

2. Professional judges cannot belong to political parties, movements, and trade unions, participate in any political activities, run for any elected posts at public authorities and local self-governance bodies, have any representative mandate, occupy any other paid positions, perform any paid work, excluding scientific, pedagogical, or creative work.

3. To the position of a judge, a qualification commission of judges may recommend a citizen of Ukraine, who shall be not younger than thirty years old, have a higher legal education, high moral qualities, and experience of work in the area of law of not less than five years. Such citizen shall have received special training as a judge, shall have leaved in Ukraine for no less than ten years, and shall speak the state language.

4. Judges of specialized courts may be individuals who have received expert training on the issues related to the jurisdiction of such courts; such judges shall administer justice in panels of judges.

5. Additional requirements to individual categories of judges shall be established by law.

6. Professional interests of judges shall be protected in accordance with the procedure established by law.

 

Part 2 of Article 135 essentially broadens the list of incompatibility requirements for judges. If the current Constitution prohibits judges to be involved in "any political activities", the draft Constitution specifies the notion of the prohibited political activities. It is well known that prohibition to be involved in political activities did not prevent the former Chief Justice of the Supreme Court of Ukraine to stand for the membership in Parliament.

Article 135 requires that to be recommended to the position of a judge an individual should be a professional lawyer of not less than thirty years old. Such age qualification is rather widespread in the world. Young people are appointed to the position of judges in the countries that lack professional candidates. Ukraine, however, has already moved away from this stage.

In addition, Part 3 of Article 135 supplements the list of requirements that a professional judge should meet "high moral qualities" and "special training as a judge". These requirements are typical in the international practice.

 

Article 136

 

1. The President of Ukraine shall make the first appointment to the position of a professional judge for the period of three years. All other judges, excluding the judges of the Constitutional Court of Ukraine, shall be elected by the Chamber of Deputies in accordance with the procedure established by law.

2. The Chief Justice of the Supreme Court of Ukraine shall be elected and dismissed by the Plenum of the Supreme Court of Ukraine in accordance with the procedure established by law.

 

Article 136 mainly corresponds to Article 128 of the current Basic Law. A novelty here is that the term of the first appointment to the position of a professional judge is shortened from five to three years.

 

Article 137

 

1. When administering justice, judges shall obey only to the Law.

2. Justice shall be administered by a judge alone, by a panel of judges or by a jury.

3. Justice shall be based on the following principles:

1) rule of law and legality;

2) equality of all participants of a judicial process before the law and the court;

3) validity of guilt;

4) competition between the litigants and their freedom in presentation of evidence and argumentation of its cogency;

5) equal access of litigants to the expert examination;

6) support of the state case by a public prosecutor;

7) security of the defendant’s right to protection;

8) procedural equality of the prosecution and protection;

9) openness of the judicial proceedings, excluding the restrictions established by law;

10) recording of the judicial proceedings by technical means;

11) security of appellate and cassation contestation of judicial decisions, excluding the restrictions established by law;

12) reasonable period of judicial proceedings;

13) security of rights and legal interests of a victim, indemnification of the damages caused to the victim;

14) impossibility to send a case for additional investigation;

15) obligatory nature and secured enforcement of judicial decisions.

4. The law may establish also other principles of justice for courts of certain judicial jurisdictions.

5. Individuals guilty of expression of disrespect to a court or a judge shall be subject to legal liability.

 

Part 1 of Article 137 sets that when judges administer justice, they should obey only to the Law. It is clear that the notions of the "law" and "acts of law" for not always coincide. The law is the main substantial part, ethic and philosophical justification of any written constitution and act of law. To be governed by Law in the administration of justice means to be governed by the ideas of reason and morality. In this case, the word "Law" is capitalized, which represents the Law as a generic notion. In addition, a judge can be governed by law only when it is allowed by an act of law. This is why it is proposed that justice in Ukraine be administrated in the name of the Law.

Article 137 sets forth an essentially extended list of principles of justice, with the new ones being introduced by Items 1, 5, 12, 13, 14, and 15 of Part 3 of Article 137. Arguments for the benefit of such changes can be found in the 2007 Criminal Justice Reform Concept for Ukraine. Extension of the list of principles of justice is also support by the new version of the right to fair court established by Article 53 of the draft Constitution.

Other provisions of Article 137 of the draft Constitution are similar by their content to Article 129 of the current Basic Law.

 

Article 138

 

1. The state shall ensure proper funding of courts; the State Budget of Ukraine should envisage a special article of expenditures for the maintenance of courts.

2. Courts shall be funded by the State Treasury of Ukraine through the judicial administrations subordinated to the Supreme Court of Ukraine.

3. There shall be judicial self-governance recognized and acting in Ukraine.

 

Article 138 sets that courts should be funded by the State Treasury through the mediation of judicial administrations subordinated to the Supreme Court of Ukraine. This funding procedure should guarantee material independence of the court from the state executive authorities.

 

Article 139

 

1. The Constitutional Court of Ukraine shall be the sole body of constitutional jurisdiction in Ukraine.

2. The Constitutional Court of Ukraine shall decide on the compliance of laws and other regulations with the Constitution of Ukraine and officially interpret the Constitution of Ukraine.

 

The competences of the Constitutional Court of Ukraine no longer include the official interpretation of Ukrainian laws. Under the draft, the Constitutional Court of Ukraine should interpret the laws only when it checks its constitutionality. It is not very common for constitutional courts to interpret laws, exceptions being Albania, Egypt, Poland, and Uzbekistan. The international experience proves that interpretation of laws should rather be entrusted to the highest judicial body in the systems of laws of general jurisdiction. The same approach has been adopted in the proposed draft.

 

Article 140

 

1. The Constitutional Court of Ukraine shall consist of nine judges.

2. Judges of the Constitutional Court of Ukraine shall be appointed on the submission of the President of Ukraine by the majority of the constitutional composition of the Chamber of Regions.

3. A judge of the Constitutional Court of Ukraine shall be a citizen of Ukraine who at the moment of his appointment has reached forty years, has a higher legal education and no less than ten years of professional record. He shall also have lived in Ukraine over the recent twenty years and shall speak the state language.

4. A judge of the Constitutional Court of Ukraine shall be appointed for the term of ten years and cannot be reappointed.

5. The chief justice of the Constitutional Court of Ukraine shall be appointed at a plenary meeting of the Constitutional Court of Ukraine from among the judges of the Constitutional Court of Ukraine by secret ballot only for one three-year term.

 

The status of the Constitutional Court of Ukraine remains almost unchanged. The novelties here include the appointment procedure and the number of constitutional judges. Thus, judges of the Constitutional Court of Ukraine are appointed on the submission of the President of Ukraine by the Chamber of Regions. The new procedure makes it possible to study better the candidates, to make the replacement procedure easier (in terms of its organization), as well as to guarantee the publicity and transparency of the appointment procedure.

The President of Ukraine and the National Assembly of Ukraine will have no possibility to dictate their will to the judges whose status is due to the selection done by two public authorities. A similar appointment procedure is established for the judges of the Supreme Court by the US Constitution.

The number of the constitutional judges is also decreased to nine individuals (uneven number). Such number of judges should be enough to solve the issues at the high judicial authority of any country. An uneven number of judges is introduced to prevent the cases of equal division of votes in the decision-making process. The very possibility of equal division of votes in the Constitutional Court of Ukraine may essentially influence the efficiency of its work.

 

Article 141

 

1. Judges of the Constitutional Court of Ukraine shall be covered by the independence and inviolability guarantees and provisions on the grounds for dismissal envisaged by Article 134 of the Constitution, as well as incompatibility requirements established by Part 2 of Article 135 of the Constitution.

 

Article 141 is similar to Article 149 of the current Constitution, and thus it does not need any special explanations.

 

Article 142

 

1. The Constitutional Court of Ukraine shall be empowered to decide on the compliance with the Constitution of Ukraine (constitutionality) of the following:

1) laws and other legal acts of the National Assembly of Ukraine;

2) acts of the President of Ukraine ;

3) acts of the Government of Ukraine;

4) legal acts of the Verkhovna Rada of the Crimean Autonomous Republic.

2. The issues mentioned in Items 1, 2, 3, and 4 of Part 1 of this Article shall be considered on the request of the President of Ukraine; o less than five Senators or twenty Deputies; judges of the general jurisdiction courts; the Ombudsman; and the Verkhovna Rada of the Crimean Autonomous Republic.

3. The Constitutional Court of Ukraine shall be in charge of the official interpretation of the Constitution of Ukraine.

4. On the issues, envisaged by this Article, the Constitutional Court of Ukraine shall pass decisions which are binding on the territory of Ukraine, final and not subject to contestation.

 

Article 142 is almost similar to Article 150 of the current Constitution. A new thing here is that Part 2 of Article 142 of the draft Constitution authorizes chief justices of the general jurisdiction courts to request the check-up of the constitutionality of laws and other legal acts. In addition, the powers of the Constitutional Court of Ukraine no longer include official interpretation of Ukrainian law.

Taking into account that the Constitutional Court will no longer be in charge of official interpretation of Ukrainian laws, the right given to the chief justices of general jurisdiction courts to address the Constitutional Court should not overburden the latter.

 

Article 143

 

1. At the request of the President of Ukraine or the Government of Ukraine, the Constitutional Court shall issue conclusions on the constitutionality of the current international treaties of Ukraine or the international treaties submitted to the National Assembly of Ukraine for ratifications.

2. On the request of the Chamber of Regions and on the grounds of Parts 5 and 7 of Article 122 of this Constitution, the Constitutional Court of Ukraine provides conclusions on the presence or absence of any feature of gross violation of the Constitution of Ukraine in the actions of the President of Ukraine.

 

Provisions of Part 1 of Article 143 are similar to the content of Part 1 of Article 151 of the current Constitution, and thus they do not need to be commented on.

Norms of Part 2 of Article 143 make self-evident legal drafting rules (procedural norms) which also does not require any special comments.

 

Article 144

 

1. Laws and other relations shall be recognized unconstitutional by the Constitutional Court of Ukraine either in full or partially if they are not compliant with the Constitution of Ukraine or if the procedure set by the Constitution of Ukraine for their consideration, approval, or coming into force has been violated.

2. Laws, other legal acts or their individual parts recognized unconstitutional shall lose their validity on the date when the Constitutional Court of Ukraine passes a decision on their unconstitutionality.

3. Material and moral damage caused to individuals and legal entities by the acts and actions recognized unconstitutional shall be indemnified by the state in accordance with the procedure established by law.

 

Article 144 is the same as Article 152 of the current Constitution, and thus it does not need to be commented on.

 

Article 145

 

1. The procedure for the organization and functioning of the Constitutional Court of Ukraine and its proceedings procedure shall be established by law.

 

Article 145 is self-evident, and thus it does not need to be commented on.

 

Article 146

 

1. The Public Prosecution of Ukraine shall make up an independent system of public authorities that shall be in charge of the following:

1) criminal prosecution of an individual, presentation of accusations, management of the pre-trial investigation, and drafting of an accusation act;

2) support of the state prosecution in the court;

3) representation of the interests of a human and the state in the cases defined by law;

4) oversight of the observance of laws by the bodies involved in the operative investigations, inquiry, and pre-trial investigation;

5) oversight of the observance of laws in the course of execution of judicial decisions in criminal cases, as well as application of other coercive measures related to the restriction of personal freedom;

6) oversight of the observance of human rights and fundamental freedoms, observance of laws on these issues by public authorities, local self-governance bodies, their officials and servants; and

7) oversight of the observance of human rights and fundamental freedoms, observance of laws on these issues by the detachments of the Armed Forces of Ukraine, and other military and armed formations of Ukraine.

2. The public prosecutor, that has drafted an accusation act, shall support the state case in the court and participate in the appellation proceedings on this case. Any restrictions in relation to this principle shall be established by law.

3. Actions or omission of action by public prosecution officials may be contested in the court.

4. Any external pressure or influence on the public prosecution officials shall be prohibited.

5. The Public Prosecution of Ukraine, its officials and servants shall act only on the basis, within the powers, and in the manner envisaged by the Constitution of Ukraine and by law.

6. The functioning of the Public Prosecution of Ukraine shall be under the control of the National Assembly of Ukraine.

 

Article 146 establishes the general status of the Public Prosecution of Ukraine as an independent system of public authorities. The powers of the Public Prosecution are altered as compared to those set by Article 121 of the current Constitution (in its amended version after 2004). The list of the Public Prosecution functions has been developed on the basis of 2007 Criminal Justice Reform Concept for Ukraine.

Clause 7 of Part 1 above authorizes the Public Prosecution to oversee the observance of human rights and freedoms, as well as the related laws in the Armed Forces detachments and other military and armed formations.

The Armed Forces detachments and other military and armed formations make a special part of the state mechanism which is characterized by an ability to use force or other coercion (including the psychic one) under the conditions of the limited individual freedom. First of all, this concerns the Ukrainian citizens who get conscribed for the obligatory military service in accordance with the law. It is the Public Prosecution that is authorized to exercise oversight functions in relation to the Armed Forces detachments.

 

Article 147

 

1. The Public Prosecution of Ukraine shall be headed by the Prosecutor General of Ukraine appointed by the President of Ukraine on the consent of the Chamber of Regions.

2. The Prosecutor General of Ukraine shall be appointed for four years.

3. Excluding the cases envisaged by law, the public prosecution system of Ukraine shall be built in accordance with the system of general jurisdiction courts of Ukraine.

 

A new provision in Article 147 concerns the procedure set for the appointment of the Prosecutor General, who is appointed by the President of Ukraine on the consent of the Chamber of Regions.

Provision of Part 3 of Article 147 meet the recommendations made in the Criminal Justice Reform Concept for Ukraine developed by the National Commission for the Strengthening of Democracy and Establishment of the Rules of Law under the President of Ukraine in 2007.

 

Article 148

 

1. The Prosecutor General of Ukraine may be removed from his/her post before term by the Chamber of Regions in case of improper exercise of his/her powers.

2. The issue on the removal of the Prosecutor General of Ukraine from his/her post may be initiated by no less than one third of the constitutional composition of the Chamber of Regions.

3. The decision on the pre-term removal of the Prosecutor General of Ukraine from his/her post shall be passed by no less than two thirds of the constitutional composition of the Chamber of Regions.

4. Professional interests of the Public Prosecution officials shall be protected in accordance with the procedure established by law.

 

According to Part 1 of Article 148, the Prosecutor General of Ukraine may be dismissed before term by two thirds of the constitutional composition of the Chamber of Regions. It is clear that this should be done on the basis of legal grounds.

The procedure proposed for the appointment and dismissal of the Prosecutor General adds stability to the exercise of the Prosecutor General’s powers. Provided the Prosecutor General properly fulfill his/her professional powers, the Prosecutor General should remain unchanged for all four years of his/her appointment. Under the draft Constitution, the president of Ukraine cannot dismiss the Prosecutor General before term.

The legal grounds for the preterm dismissal of the Prosecutor General include negligence, abuse of the law, excessive political commitment etc. Specific grounds for the dismissal of the Prosecutor General should be defined by law.

 

Article 149

 

1. There shall be the High Council of Justice operating in Ukraine which shall:

1) make submissions on the appointment and dismissal of the categories of judges defined by law;

2) make decisions on the violation by judges and public prosecutors of the incompatibility requirements;

3) exercise disciplinary proceedings in relation to the judges of the Supreme Court of Ukraine and judges of the high specialized courts and consider complaints to the decision on the institution of disciplinary liability of the judges of appellate and local courts, as well as public prosecutors;

5) remove judges temporarily from the exercise of their powers; and

6) provide consent for the detention or arrest of judges before the pronunciation of the conviction sentence by the court.

2. The High Council of Justice shall consist of nineteen members, no less than ten of which should have a working record as a professional judge.

3. The convent of judges of Ukraine, the convent of the representatives of the institutions of higher legal learning and research institutions of Ukraine shall elect seven members each to the High Council of Justice, while the all-Ukrainian conference of the public prosecution officers shall elect two of such members.

4. The Chief Justice of the Supreme Court, the Chief Justice of the Constitutional Court of Ukraine, and the Prosecutor General of Ukraine shall be ex officio members of the High Council of Justice.

 

Article 149 is dedicated to the status of the High Council of Justice. Certain novelties are introduced by Part 1 and Part 2 of the Article. Part 1 sets that the high Council of Justice should also be responsible for (1) temporary removal of judges from the exercise of their powers; and (2) provision of consent for the detention and arrest of judges before the pronunciation of the conviction sentence by the court.

Part 2 of Article 149 stipulates that the High Council of Justice should include nineteen members, no less than half of which should have worked as professional judges. This provision corresponds to Article 11 of the Universal Charter of the Judge of 1999 which requires that judges should be brought to the administrative and disciplinary liability by an independent body, the essential part of which should be composed of professional judges. It is for this reason that the Chief Justice of Constitutional Court is introduced into the High Council of Justice.

 

Section XI

SECURITY SERVICE, ARMED FORCES, POLICE

 

Article 150

 

1. The Security Service of Ukraine shall protect the national interests of Ukraine, its state sovereignty, the basics of the constitutional system of Ukraine and its territorial integrity, and shall ensure protection of state secrets.

2. Functioning of the Security Service of Ukraine, its bodies, officials and services shall be based on the principles of the rule of law and legality, respect of human rights and fundamental freedoms, non-affiliation with political parties, responsibility to the Ukrainian People, the National Assembly, and the President of Ukraine.

3. Functioning of the Security Service of Ukraine shall be subject to the public prosecution oversight.

 

Article 150 defines the functions of the Security Service of Ukraine, the list of which mainly coincides with the list of objectives set for the Security Service of Ukraine by Article 2 of the Security Service Law of Ukraine of 25 March 1992. The constitutional list, however, is shorter due to the logic and style of the constitutional regulation.

 

Article 151

 

1. The Armed Forces of Ukraine shall be in charge of Ukraine’s protection, armed guarding of its sovereignty, and territorial integrity.

2. Relevant military formations and low-enforcement bodies of the state shall be in charge of guarding the state border of Ukraine. The organization and functioning procedure shall be defined by law.

3. It is prohibited to use the Armed Forces of Ukraine, other military and armed formations to limit human rights and fundamental freedoms, change of the basics of the constitutional system of Ukraine, removal of public authorities or prevention of their legal functioning.

4. The state shall ensure social protection of Ukrainian citizens that serve in the Armed Forces of Ukraine, other military and armed formations, as well as their family members.

5. It shall be prohibited to establish any military and armed formations not envisaged by law on the territory of Ukraine.

 

Article 151 defines the basis of the status of the Armed Forces of Ukraine. Its norms almost coincide with the Article 17 of the current Constitution. Here the words "protection of Ukraine, protection of its sovereignty" have been replaced by the words "Ukraine’s protection, armed guarding of its sovereignty". For political purposes, the draft Constitution includes no provisions prohibiting location of foreign military bases on the territory of Ukraine.

 

Article 152

 

1. The police shall make up a special system of public executive authorities aiming to protect life and health of citizens, their rights and fundamental freedoms, as well as interests of the society and the state from criminal attempts.

2. Functioning of the police, its officials and servants shall be based on the principles of the rules of law and legality, respect of human rights and fundamental freedoms, non-affiliation with political parties, responsibility to the Ukrainian people, the National Assembly, and the President of Ukraine.

3. The police shall have the powers to use coercive measure for the purposes defined by Part 1 of this Article.

4. The use of coercive measures by the police shall be envisaged by law and shall be necessary in the democratic society for the protection of life and health of citizens and other individuals, their rights and fundamental freedoms, property, national and civil security from criminal attempts.

5. The state shall ensure social protection of Ukrainian citizens who serve in the police, as well as their family members.

6. The functioning of the police shall be subject to public prosecution oversight.

 

Article 152 defines the status of the police in Ukraine. This Article, in particular the use of the term "police", is a novelty introduced by the draft. The definition of the police in the proposed Constitution is partially borrowed from the model law on police developed for CIS countries. According to the draft, the police is not a public authority, but rather a system of public executive authorities with a special purpose. Its main characteristic feature is a specialized operation profile and its right to coerce and to use force.

The notion of the police should replace the existing notion of the militia. The notion of militia formations is most often used in the world to define the civil self-protection formations. To be a police officer normally means to be on a civil service.

 

Article 153

 

1. The powers of officials and servants of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police shall be established by the Constitution of Ukraine and the law.

2. Officials and servants of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police shall act only on the basis, within the limits of the powers and in the manner envisaged by the Constitution of Ukraine and the law.

3. Professional interests of officials and servants of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police shall be exercised in accordance with the procedure established law.

 

Article 153 is dedicated to the principles of legality in the functioning of the authorities that are entitled to use force. Part 2 of Article 153 is almost an exact reflection of Part 2 of Article 19 of the current Constitution. It actually prohibits discretionary powers in the peace time for a broad category of civil servants.

Such authorities, their officials and servants are supposed to act only on the basis, within the powers and in the manner envisaged by the Constitution and the law. As to other public officials, they should act on the basis of the legal formula set forth in Part 5 of Article 2 of the draft Constitution.

 

Article 154

 

1. Functioning of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police shall be under the control of the National Assembly of Ukraine. Should the parliamentary control procedure be introduced, it shall be invalid if officials and servants of such authorities refer to the state or any other secret protected by law.

2. In order to exercise of public control over the functioning of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police, civil human rights protection organizations may be established.

3. Information on the functioning of the Security Service of Ukraine, the Armed Forces of Ukraine, other military and armed formations, as well as the police shall be open and shall be provided on an information inquiry, unless such information is classified as state secret or other secret protected by law.

 

Article 154 establishes the guarantees of the parliamentary oversight of the functioning of the Public Prosecution, the Security Services, the Armed Forces, and the police of Ukraine.

The Article requires information transparency from the authorities that are entitled to use force in Ukraine. Provisions of Part 3 of Article 154 have been reconciled with the recommendations of the Criminal Justice Reform Concept for Ukraine developed by the National Commission for Strengthening Democracy and Establishment of the Rule of Law under the Present of Ukraine in 2007.

 

Article 155

 

1. The Ombudsman shall be entitled to suspend an action or an act issued by any police official or servant on the motives of protection of human rights and fundamental freedoms, but not longer than for forty eight hours.

 

In the cases of higher state necessity, Article 155 entitles the Ombudsman to suspend, in the case of higher state necessity, any action or act of any police officer and servants for the period of forty eight hours. This norm needs to be further specified in a law. Such right is granted to the Ombudsman to prevent illegal deportation of foreigners, illegal arrests and detentions, illegal transfer of the underage individuals from one place where they serve their sentence o another, the use of torture etc.

 

Section XII

TERRITORIAL SYSTEM

 

Articles 156-163 define Ukraine’s territorial system. These articles almost do not differ from the same provisions of the current Constitution. The draft Constitution, however, sets the city of Kyiv as a Special Metropolitan District. The city of Sevastopol preserves its current legal status.

The draft Constitution also has no special section on the legal status of the Autonomous Republic of Crimea (ARC), through it remains unchanged.

As under the proposed draft the President of Ukraine is the head of the executive branch, the Representative Office of the President in the ARC has been replaced by the Representative Office of the Government of Ukraine in the ARC. According to Article 163, the Government of Ukraine should have a Minister for Ukraine-ARC relations. Introduction of this post should aim to improve the representation of the ARC’s interests at the higher governmental level.

 

Article 156

 

1. The territorial system of Ukraine shall be based on the principles of unity and integrity of the state territory, combination of centralization and decentralization in the exercise of the state power, balance of the socio-economic development of the regions with due regard to their historic, economic, environmental, geographic, and demographic features, ethnic and cultural traditions.

 

This Article is the same as Article 132 of the current Constitution and needs no special comments.

 

Article 157

 

1. The administrative and territorial system of Ukraine shall include the Autonomous Republic of Crimea, the Special Metropolitan District, oblasts, districts, town/cities, town/city districts, settlements, and villages.

2. Ukraine shall include the Autonomous Republic of Crimea, Vinnytsia, Volyn, Dnipropetrovsk, Donetsk, Zhytomyr, Zakarpattia, Zaporizhzhia, Ivano-Frankivsk, Kyiv, Kirovohrad, Luhansk, Lviv, Mykolayiv, Odesa, Poltava, Rivne, Sumy, Ternopil, Kharkiv, Kherson, Khmelnytsk, Cherkasy, Chernivtsi, and Chernihiv oblasts, the cities of Kyiv and Sevastopol.

3. The city of Kyiv shall make up the Special Metropolitan District with its status to be established by law.

4. The status of the city of Sevastopol shall be defined by law.

 

Article 157 is almost similar to Article 133 of the current Constitution and needs no special comments. See also general comments to Section XII.

 

Article 158

 

1. The Autonomous Republic of Crimea shall be an indispensible part of Ukraine. Within the powers established by the Constitution of Ukraine, it shall solve the issues attributed to its competence.

3. The public authorities of the Autonomous Republic of Crimea shall be attributed to the local self-governance bodies with a special status.

 

Part 1 of Article 158 is the same as Article 134 of the current Constitution and needs no special comments.

Part 2 introduces a novelty which specifies in legal and political terms the legal nature and the constitutional status of such public authorities of the autonomous republic as the Verkhovna Rada and the Council of Ministers of the ARC. In the current Constitution, the legal status of these bodies remains unclear.

 

Article 159

 

1. The Autonomous Republic of Crimea shall have its Constitution to be passed by the Verkhovna Rada of the Crimean Autonomous Republic and approved by the National Assembly of Ukraine.

2. The regulations of the Verkhovna Rada of the Crimean Autonomous Republic and decisions of the Council of Ministers of the Autonomous Republic of Crimea cannot contradict the Constitution of Ukraine and the law, and shall be passed in accordance with the Constitution of Ukraine, laws, acts of the President of Ukraine and the Government of Ukraine and for their implementation.

 

Article 159 is similar to Article 135 of the current Constitution and needs no special comments.

 

Article 160

 

1. The Verkhovna Rada of Crimea shall be the representative body of the Crimean Autonomous Republic.

2. Within its powers the Verkhovna Rada of the Crimean Autonomous Republic shall pass decisions and resolutions which shall be binding in the Autonomous Republic of Crimea.

3. The Council of Ministers of the Autonomous Republic of Crimea shall be the public executive authority of the Autonomous Republic of Crimea. The Head of the Council of Ministers of the Autonomous Republic of Crimea shall be appointed and dismissed by the Verkhovna Rada of the Autonomous Republic of Crimea on the agreement with the President of Ukraine.

4. The powers, the formation and operation procedure of the Verkhovna Rada of the Autonomous Republic of Crimea and the Council of Ministers of the Autonomous Republic of Crimea shall be defined by the Constitution of Ukraine and the law, and regulations of the Verkhovna Rada of the Crimean Autonomous Republic in the issues related to its competence.

5. Justice in the Autonomous Republic of Crimea shall be administered by the courts that belong to the common judicial system of Ukraine.

 

Article 160 is the same as Article 136 of the current Constitution and thus needs no special comments.

 

Article 161

 

1. The Autonomous Republic of Crimea shall have the regulation competence over the following areas:

1) agriculture and forests;

2) melioration and open-cast mines;

3) public works, useful arts and trades; charity;

4) city development and residential sector;

5) tourism, hotel business, and fairs;

6) museums, libraries, theatres, other cultural institutions, historical and cultural preserves;

7) public transport, motorways, water pipes;

8) hunting and fishing;

9) sanatorium and medical services.

2. For the motives of incompliance of the regulations issued by the Verkhovna Rada of the Crimean Autonomous Republic with the Constitution of Ukraine and the law, the President of Ukraine may suspend the validity of the regulations issued by the Verkhovna Rada of the Crimean Autonomous Republic and contest their constitutionality with the Constitutional Court of Ukraine.

 

Article 161 is the same as Article 137 of the current Constitution and thus needs no special explanations.

 

Article 162

 

1. The competence of the Autonomous Republic of Crimea shall cover the following:

1) calling of elections to the Verkhovna Rada of the Crimean Autonomous Republic, approval of the election commission of the Autonomous Republic of Crimea;

2) organization and conduct of referenda of Autonomous Republic of Crimea and local referenda;

3) management of the property that belongs to the Autonomous Republic of Crimea;

4) development, approval and implementation of the budget of the Autonomous Republic of Crimea on the basis of the common taxation and budget policies of Ukraine;

5) development, approval and implementation of programmers of the Autonomous Republic of Crimea for socio-economic and cultural development, rational use of nature, environmental protection in accordance with the nationwide programmers;

6) granting of resort status; establishment of resort sanitary protection areas;

7) participation in the ensuring of human rights and fundamental freedoms, promotion of the legal order and public security;

8) ensuring of the functioning and development of the state and national languages and cultures in the Autonomous Republic of Crimea; protection and use of historic and cultural monuments;

9) participation in the development and implementation of state programmers for the return of departed nationalities;

10) initiation of the introduction of the state of emergency and establishment of the areas of emergency environmental situations in the Autonomous Republic of Crimea and its individual areas.

2. Other powers may also be delegated to the Autonomous Republic of Crimea by law.

 

Article 162 is the same as Article 138 of the Constitution and thus needs no special comments.

 

Article 163

 

1. There shall be the Permanent Representation Office of the Government of Ukraine operating in the Autonomous Republic of Crimea with its status to be defined by law.

2. The Government of Ukraine shall include a Minister for Mutual Interests of Ukraine and the Autonomous Republic of Crimea.

 

See the general comments to Section XII.

 

Section XIII

LOCAL SELF-GOVERNANCE

 

Articles 164-170 are dedicated to the local self-governance. Local self-governance is granted essential additional powers and guarantees. Article 164 proposes an updated definition of the local self-governance. Unlike the current Constitution, the local self-governance is largely based on the model that is used in the European Charter on Local Self-Governance of 15 October 1985.

The draft Constitution contains no definition of the basic level of the local self-governance – a territorial community of a village, settlement, and town/city. Instead, a notion of the territorial unity of a village, settlement, town/city, district, town/city district, and oblast is introduced. Population of the Special Metropolitan District is also defined as a territorial community. According to the draft, executive committees of councils, their sections and departments are defined as executive bodies of the local self-governance. Executive committees are headed by council chairs elected directly by the population of villages, settlements, town/cities, districts, town/city districts, and oblasts.

Under the draft, the executive bodies of local self-governance do not coincide with local state administrations, which are granted oversight powers similar to those held by state prefectures in France. Other articles of this Section need no special explanations.

 

Article 164

 

1. Local self-governance shall be the right and the real ability of the residents of villages, settlements, town/cities, districts, town/city districts, and oblasts, as well as local self-governance bodies set up thereby to regulate and manage a certain part of public affairs acting within the limits of the Constitution of Ukraine and law, under their responsibility and in the interests of the local population.

2. Rules for the exercise of the local self-governance in the Special Metropolitan District and in the city of Sevastopol shall be established by law.

3. The local self-governance shall be exercised in accordance with the procedure established by law directly by the population and through the local self-governance bodies: village, settlement, town/city, district, town/city district, and oblast councils and their executive committees.

4. The general organization of the town/city district management shall belong to the competence of town/city councils.

5. Village, settlement, town/city, district, town/city district councils shall promote establishment on the initiative of residents of building, street, block, and other bodies of residents’ self-organization and grant them part of their own competence, finance, and property.

 

Article 164 is clear and needs no special comments. See also general comments to Section XIII of the draft Constitution.

 

Article 165

 

1. Village, settlement, town/city, district, town/city district, and oblast council shall be composed of members elected by the population of villages, settlements, towns/cities, districts, town/city districts, and oblasts on the basis of universal, equal, direct suffrage by means of secret ballot. Local councils shall be elected for four years.

2. Chairs of village, settlement, town/city, district, town/city district, and oblast councils shall be elected by the population of villages, settlements, towns/cities, districts, town/city districts, and oblasts on the basis of universal, equal, direct suffrage by means of secret ballot for the term of four years.

3. Executive bodies of the local self-governance shall be the executive committees elected by the members of village, settlement, town/city, district, town/city district, and oblast councils, as well as departments, sections, and other executive bodies.

4. Chairs of local councils shall head the councils’ executive committees and shall preside at their meetings.

5. The status of the members, chairs, and executive committees of the relevant local self-governance, their powers, and the procedure for their establishment, reorganization, and abolishment shall be established by law.

 

Article 165 is transparent and needs no special comments. See also general comments to Section XIII. To a certain extent, Article 165 is similar to Article 141 of the current Constitution.

 

Article 166

 

1. The material and financial basis of the local self-governance shall include the movables and real estate, funds of local budgets, state subsidies and subventions, other funds, land, and natural resources owned by the territorial communities – the population living in villages, towns/cities, districts, city/town districts, and oblasts.

2. Territorial communities of villages, settlements, towns/districts, town/city districts, and oblasts may unite on contractual basis the municipal property facilities, as well as their budget funds to fulfill joint projects or for joint funding (maintenance) of municipal companies, organizations, and institutions and to set up relevant bodies and services for this purpose.

3. The state shall participate in formation of revenues of local self-governance budgets and shall financially support the local self-governance.

4. Expenses of local self-governance bodies incurred due to the decisions passed by public authorities shall be compensated by the state.

 

Article 166 is transparent and does not need any special explanations. See also general explanations to Section XIII. Article 166 is similar to Article 142 of the current Constitution.

 

 

Article 167

 

1. Territorial communities of villages, settlements, towns/cities, districts, town/city districts, and regions shall directly or through local self-governance bodies manage the municipal property; approve the programmers of socio-economic and cultural development and oversee their implementation; approve budgets of the relevant administrative and territorial units and oversee their implementation; establish local taxes and charges on the basis of the law; ensure conduct of local referenda and implementation of their results; establish, reorganize, and abolish municipal companies, organizations, and institutions, as well as oversee their operation; solve other local issues attributed to their competence by law.

2. Oblast, district, town/city district council shall approve oblast and district budgets formed on the basis of State Budget funds, proceeds from municipal property, local taxes and charges for their relevant division between territorial communities and for the implementation of joint projects, as well as the funds attracted on contractual basis from local budgets for the implementation of joint socio-economic and cultural programmers, and oversee their implementation; they shall also solve other issues attributed to their competence by law.

3. Local self-governance bodies may also be attributed by law other powers of public state executive authorities. The state shall fund the exercise of such powers in full at the cost of the State Budget of Ukraine or by the attributing individual nationwide taxes to the local budget on the basis of the procedure established by law. The state shall also provide transfer relevant public property facilities to the local self-governance bodies.

4. In terms of ensuring nationwide issues of Ukraine, observance of the legal and legal order regime, respect of the human rights and fundamental freedoms established by the Constitution, use of state subsidies and subventions, exercise of public executive authority powers delegated to them shall be under the control of relevant local state administration.

 

Article 167 is fully transparent and does not need any special comments. See also general explanations to Section XIII. In general terms, Article 166 is similar to Article 143 of the current Constitution.

 

Article 168

 

1. Within the limits set by law, local self-governance bodies shall pass decisions which are binding on the relevant territory.

2. All acts adopted by the local self-governance bodies and their officials shall be passed to the relevant local state administrations within five days upon their adoption.

3. Heads of local state administrations shall be entitled to contest in the court the decisions issued by local referenda, acts of local self-governance bodies and their officials on the motives of their incompliance with the Ukrainian legislation.

4. Heads of local state administrations shall be entitled to suspend decisions of local referenda, acts of local self-governance, and their officials in case of higher state necessity on the motives of their incompliance with the Ukrainian legislation and to contest them concurrently in the court.

 

Article 168 is clear and needs no special comments. See also general explanations to Section XIII. In general terms, Article 168 is similar to Article 144 of the current Constitution.

 

Article 169

 

1. Local self-governance rights shall be protected in the court.

 

Article 169 needs no special explanations.

 

Article 170

 

1. Other issues related to the organization of the local self-governance, formation, activities, and responsibility of local self-governance shall be defined by law.

 

Article 170 is similar to Article 146 of the current Constitution and needs no special comments.

 

Section XIV

STATE OF EMERGENCY

 

Articles 171-174 establish the guarantees of human rights and freedoms in the state of emergency. The content of this Section is based on the Law of Ukraine on State of Emergency Legal Regime of 16 March 2000. This Section aims to establish and inform the citizens of Ukraine on the conditions of the state of emergency and its main regulative characteristics. The purpose of this Section is partially preventive.

Modern societies are sometimes called the risk societies. Fresh examples of France and Georgia prove that the state of emergency may become the only possible way to renew the public order. In any event, citizens of Ukraine should have a generally accessible source of information on the main parameters and consequences of a state of emergency.

At the same time, Article 172 reminds that an ungrounded introduction of the state of emergency by the President makes a gross violation of the Constitution.

 

Article 171

 

1. The state of emergency shall be introduced in Ukraine or on its certain territories in the cases of emergency man- or nature-caused situations, as well as in the event of an attempt to seize the state power or change the constitutional order of Ukraine in a forcible way.

2. The state of emergency regime shall allow temporary and threat-induced restriction of the exercise of human rights and fundamental freedoms, rights and legal interests of legal entities established by the Constitution.

 

Article 171 is of a procedural nature and does not need any special explanations. See also general comments on Section XIV.

 

Article 172

 

1. The state of emergency in Ukraine or on its certain territories shall be introduced by a presidential decree to be approved by the National Assembly of Ukraine within forty eight hours upon its publication by the President of Ukraine.

2. If the state of emergency in Ukraine or on its certain territories is introduced after the President of Ukraine has dissolved by National Assembly of Ukraine, the signature of the presidential decree on the introduction of the state of emergency shall mean restoration of the powers of the National Assembly of Ukraine.

3. The presidential decree on the introduction of the state of emergency shall come into effect upon its publication.

4. The presidential decree on the introduction of the state of emergency shall be announced through the media or in any other way.

5. The refusal by the National Assembly of Ukraine to approve the presidential decree on the introduction of the state of emergency shall mean its cancellation.

6. Ungrounded introduction of the state of emergency by the President of Ukraine shall be a gross violation of the Constitution of Ukraine.

 

Article 172 is of a procedural nature and does not need any special explanations. See also general comments on Section XIV.

 

Article 173

 

1. The state of emergency in Ukraine may be introduced for not longer than thirty days and not longer than sixty days on it’s certain territories.

2. If necessary, the President of Ukraine may extend the state of emergency for thirty days.

3. The presidential decree on the introduction of the state of emergency shall come into effect upon its approval by the National Assembly of Ukraine.

 

Article 173 is of a procedural nature and does not need any special explanations. See also general comments on Section XIV. All provisions of Article 173 meet the current law of Ukraine.

 

Article 174

 

1. The rules on the introduction of the state of emergency shall be established by the Constitution and law.

2. The presidential decree on the introduction of the state of emergency shall contain an exhaustive list of human rights and fundamental freedoms subject to temporary restriction.

 

Article 174 is of a procedural nature and does not need any special explanations. See also general comments on Section XIV. All provisions of Article 174 meet the current law of Ukraine.

 

Section ХV

MARTIAL LAW

 

Articles 175-177 establish legal principles of martial law. This Section is mainly based on the Law of Ukraine on the Martial Law Legal Regime of 6 April 2000. The reasoning behind a special constitutional section on martial law is the same for the section on the state of emergency.

 

Article 175

 

1. Martial law shall be introduced in Ukraine or on its certain territories in case of armed aggression or threat of attack, danger to the state independence or territorial integrity of Ukraine.

2. The martial law regime shall allow temporary and threat-induced restriction of the exercise of human rights and fundamental freedoms, rights and legal interests of legal entities established by the Constitution.

 

Article 175 is of a procedural nature and does not need any special explanations. See also general comments on Section XV. All provisions of Article 175 meet the current law of Ukraine.

 

Article 176

 

1. Martial law in Ukraine or on its certain territories shall be introduced by a presidential decree to be approved by the National Assembly of Ukraine within forty eight hours upon its publication by the President of Ukraine.

2. If martial law in Ukraine or on its certain territories is introduced after the President of Ukraine has dissolved by National Assembly of Ukraine, the signature of the presidential decree on the introduction of the martial law shall mean restoration of the powers of the National Assembly of Ukraine.

3. The presidential decree on the introduction of martial law shall come into effect upon its publication.

4. The presidential decree on the introduction of martial law shall be announced through the media or in any other way.

5. The refusal by the National Assembly of Ukraine to approve the presidential decree on the introduction of martial law shall mean its cancellation.

6. Martial law in Ukraine or on its certain territories shall be cancelled by a presidential decree on the proposal of the National Security and Protection Council of Ukraine and announced through the media.

7. Ungrounded introduction of martial law by the President of Ukraine shall be a gross violation of the Constitution of Ukraine.

 

Article 176 is of a procedural nature and does not need any special explanations. See also general comments on Section XV. All provisions of Article 176 meet the current law of Ukraine.

 

Article 177

 

1. Preterm termination of powers of the National Assembly of Ukraine during the period of martial law or the state of emergency shall be prohibited.

2. Restoration of the capital punishment or conviction to capital punishment during the period of martial law or the state of emergency shall be prohibited.

 

Article 177 is of a procedural nature and needs no special explanations as it corresponds to Ukraine’s international commitments.

 

Section XVI

AMENDMENT PROCEDURE

 

 

Norms of Articles 178-185 are rather specific, and thus they need not so much legal, as political comments. The draft Constitution is supposed to be discussed by the representatives of the Ukrainian civil society (i.e. by the Constitution Assembly of Ukraine). Their unbiased approach should be guaranteed by the impossibility of their election to the first National Assembly (after the adoption of the new Constitution). Other norms of this Section are of a technical legal nature partially replicating the provisions of the current Constitution.

 

Article 178

 

1. The Constitution of Ukraine shall be passed by no less than two thirds of the constitutional composition of each of the chambers of the Constitutional Assembly of Ukraine convened on the basis of the same rules used for the first composition of the National Assembly of Ukraine.

2. Members of the Constitutional Assembly of Ukraine shall not be entitled to ballot and be elected to the first National Assembly of Ukraine after the adoption of this Constitution.

3. The powers of the Constitutional Assembly of Ukraine shall terminate after it passes the Constitution of Ukraine. The new Basic Law of Ukraine passed by the Constitutional Assembly of Ukraine shall be approved at the nationwide referendum.

4. The referendum on the approval of the Constitution of Ukraine shall be called by the President of Ukraine.

 

Article 178 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ.

 

Article 179

 

1. The Constitution of Ukraine shall be amended on the decision of the National Assembly of Ukraine passed by no less than two thirds of the constitutional composition of each of its Chambers. Such amendments shall be approved by no less than two thirds of the constitutional composition of each of the National Assembly Chambers of the following convocation.

2. The amendments made to Sections I and XVI of the Constitution of Ukraine shall be approved at a nationwide referendum.

3. The referendum on the approval of the amendments made to Sections I and XVI of the Constitution of Ukraine shall be called by the President of Ukraine.

4. Refusal by the President of Ukraine to call a referendum on the approval of the amendments made in accordance with this Constitution to Sections I and XVI of the Constitution of Ukraine shall constitute a gross violation of the Constitution of Ukraine.

 

Article 179 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ.

 

Article 180

 

1. A constitutional amendment bill may be submitted to the National Assembly of Ukraine by the President of Ukraine or no less than one third of the constitutional composition of any National Assembly Chamber.

 

Article 180 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ. This Article is similar to Article 154 of the current Constitution.

 

Article 181

 

1. The Constitution of Ukraine cannot be amended if such amendments entail violation, abolition, or restriction of human rights and freedoms, or if they are aiming at the elimination of independence or territorial integrity of Ukraine.

2. The Constitution of Ukraine cannot be amended during the period of martial law or the state of emergency.

 

Article 181 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ.

This article is almost the same as Article 157 of the current Constitution.

 

Article 182

 

1. The bill on the amendment of the Constitution of Ukraine which has been considered by the National Assembly of Ukraine, but was not passed, can be submitted to the National Assembly of Ukraine again not earlier than in a year after a decision on such a bill has been made.

2. Over the term of its constitutional powers, the National Assembly of Ukraine cannot change the same provisions of the Constitution of Ukraine twice.

 

Article 182 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ. This Article is similar to Article 158 of the current Constitution.

 

Article 183

 

1. The National Assembly of Ukraine shall consider any bill on the amendment of the Constitution of Ukraine provided there is an opinion of the Constitutional Court of Ukraine on its compliance with Articles 181 and 182 of this Constitution.

 

Article 183 is of a procedural nature and needs no special explanations. See also general comments on Section XVІ. This article is almost the same as Article 159 of the current Constitution.

 

Article 184

 

1. The Constitution of Ukraine shall come into effect on the day of its official promulgation.

 

Article 185

 

1. The day of adoption of the Constitution of Ukraine shall be a state holiday, the Constitution Day of Ukraine.

 

Section XVII

TRANSITIONAL PROVISIONS

 

This Section is necessary to provide for the transition from the previous to the new Constitution. Similar rules were envisaged in the 1996 Constitution. Other than that, no further comments are needed for Section XVII

 

1. Laws and other regulations passed before this Constitution comes into effect shall be valid in the part that does not contradict this Constitution.

2. Elections to the National Assembly of Ukraine shall be held on … 20….

3. The first National Assembly of Ukraine shall gather for a session not later than on the tenth day after the official publication of the results of parliamentary elections.

4. The first plenary sitting of the first National Assembly of Ukraine shall be opened by the oldest Senator of the National Assembly of Ukraine.

5. The first and the second rotation of Senators elected to the first National Assembly of Ukraine shall be done on the basis of drawing of lots.

6. Presidential elections shall be held on the last Sunday of … 20….

7. The Government of Ukraine shall be formed on the basis of this Constitution within ... months after it comes into effect.

8. The Constitutional Court of Ukraine shall be formed on the basis of this Constitution within ... months after it comes into effect. Before the new composition of the Constitutional Court of Ukraine is formed, the current Constitutional Court of Ukraine shall interpret this Constitution, and the laws of Ukraine shall be interpreted by the current Supreme Court of Ukraine.

9. In accordance with this Constitution, the Prosecutor General of Ukraine shall be appointed within … after it comes into effect.

10. In accordance with this Constitution, the Ombudsman shall be appointed within … after it comes into effect.

11. In accordance with this Constitution, heads of local state administrations shall acquire the status of heads of local state administration as envisaged by its provisions.

12. After this Constitution comes into effect, village, settlement, district, rayon, city district, and oblast councils shall exercise the powers defined hereby until the new councils are elected in … 20….

13. Before the laws are adopted to define the exercise of the state executive power in the separate metropolitan district and the City of Sevastopol, the executive power in the Cities of Kyiv and Sevastopol shall be exercised by the bodies envisaged by the 1996 Constitution of Ukraine.

14. Judges of all courts in Ukraine, excluding the judges of the Constitutional Court of Ukraine, elected or appointed before this Constitution comes into effect, shall continue exercising their powers until the expiry of the term for which they have been elected or appointed.

15. The military bases existing on the territory of Ukraine at the moment when this Constitution comes into effect can be used for the temporary stay of foreign military formations on the lease conditions in accordance with the procedure established by the international treaties of Ukraine ratified by the Verkhovna Rada of Ukraine or the National Assembly of Ukraine.

 

President of Ukraine ___________

 

Kyiv, __________ 20__

 

No.____________

 

1) termination of the period for which a judge has been elected or appointed; 2) impossibility to fulfil their duties due to their physical condition; 3) violation of the incompatibility requirements; 4) break of oath; 5) termination of citizenship; 6) submission of a resignation request or voluntary withdrawal from the post.
of the Ukrainian People."

 

 

Preamble

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