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13.10.2006

Human Rights in Ukraine - 2004: I. HUMAN RIGHTS IN THE CONSTITUTION OF UKRAINE

   

1. General assessment of the constitutional affirmations
of rights and freedoms

The Constitution of Ukraine of 1996 effectively consolidated the system of State relations that existed at that moment – a semi-Presidential unitary republic with a parliament lacking any real powers, a relatively weak judicial system and also a government[1] without any significant political functions and therefore constantly dependent on direct presidential support. In general, the lack of accountability of the state to society in the new Constitution remained almost on the level of Soviet times.

The main, while at the same time, «shadow» power in the State was wielded by the Presidential Administration – accountable to no one, managing everything, an effectively uncontrollable power structure. The government was to fulfil not only the President’s directives, but also those of the head of the Administration, while bearing full responsibility for the state of affairs in the country. At the same time the Prime Minister’s role was often that of a naughty boy who deserved a beating. It is hardly surprising that the holders of this post changed virtually every year.

All this, to a certain extent, doomed the role of the Constitution to be a force not of dynamism, but of stagnation in the Ukrainian socio-economic and political transformations. The Constitution, moreover, was a rather eclectic legal text with norms passed as a compromise which different political players – from the communists to the «Greens» – interpreted in their own ways. However, the contradictions imbedded in the Constitution fairly soon became apparent and not only at the level of party disputes and differences in interpretation. Shortly after its adoption, discussion began within society about the need for amendments and supplementary articles to the constitutional text.

The Constitution of 1996 was, in general, an adequate reflection of paternalistic State aspirations and traditions typical of a post-totalitarian country. The State was proclaimed the national good, held the monopoly over all levers of influence in politics, economy, culture, education and health protection. At the same time, it remained the most powerful player on the market, the main cultural arbiter in the realm of ideas, the guarantor of welfare, employment, pensions and the physical health of citizens.

It is no wonder that liberty as a category, but not an instrumental concept («liberty» as distinct from «freedom») not only failed to become the main priority of the Constitution, but was not even mentioned in the list of its highest values and priorities. Political, civil and individual rights were also significantly limited. For instance, Article 34 of the Constitution contained thirteen direct restrictions on freedom of speech. A further two limitations on freedom of expression (in a state of emergency or military emergency) were allowed for in separate articles of the Fundamental Law.

The second chapter of the Constitution of Ukraine, numbering almost a third of the total number of constitutional norms, contained a great deal taken directly from two well-known international pacts of the UNO on human rights of 1966, yet, at the same time, from a strictly legal point of view, did not distinguish between norms of the International Convention on civil and political rights which a state must observe under any conditions and provisions of the International pact about social, economic and cultural rights, the possibility of fulfilling which is linked to the actual economic state of any given country. The point is that socio-economic rights are usually only considered to be norms of direct action if they receive official commentary defining the specific parameters of judicial safeguarding of the so-called «positive» rights and freedoms, that is, those over which the State has an active position.

Thus, directly copying western models in this case had a purely ideological, to a great extent, even demagogical result. For instance, the following rights included in the Constitution remain openly problematic in Ukraine: «the right to a home» (Article 47), «the right to a sufficient standard of living for oneself and one’s family, including sufficient nourishment, garments, dwelling» (Article 48), «the right to healthcare, medical care and medical insurance» (Article 49), «the right to an environment safe for life and health and the right to compensation for damage caused by violation of this right» (Article 50). These and other positive rights in present Ukrainian conditions have become pure fiction for a large number of Ukrainian citizens.

In this context one should also mention the right of every worker «to rest» (Article 45), as well as the altruistic promises of the state to promote «the development of medical institutions», to provide for «the development of physical culture and sport» (Article 49) and others. Hence, although in Article 55 of the Ukrainian Constitution it is stated that all «rights and freedoms of a person and citizen are protected by court», in reality most social, economic and cultural rights in the version they are affirmed in the still current Constitution cannot be protected in court.

This in turn leads not only to scepticism of ordinary citizens not only with regard to the possibility of defending their rights at a judicial level, but to a profound distrust in society of the promises in general made by the leaders of the Ukrainian State. Since the Constitution does not allow for any possibility of appeal to the Constitutional Court from ordinary subjects of the law (citizens, public human rights organizations, courts of general jurisdiction, except for the Supreme Court) many of the rights and freedoms proclaimed in the Constitution in 1996 have remained purely theoretical.

The issue of the constitutional right to private property and business activity (Articles 41 and 42) also remains important as of 2004. According to Article 92 of the Constitution, the legal regulations for property are defined «exclusively by law». This means that one can alter the parameters of such regulations relating to property only by introducing amendments to current (standard) legislation. In our opinion, the foundations (principles) governing the legal regulations for property in Ukraine should have been more specifically defined directly in the constitutional text. Since property in the socio-economic sense is inseparable from the civil status of a person, legal protection of property, in our opinion, must be secured by legal guarantees of the highest order.

However, the situation in Ukraine is such that any composition of the Ukrainian parliament and government (this being confirmed even by the results of the Orange Revolution) can alter de facto the legal regulations for property. On the other hand, it remains somewhat incomprehensible why, for instance, guarantees of business, competition and other antimonopoly measures are determined in Ukraine exclusively by law. That is, it is not clear why the government cannot, under the Constitution, approve and introduce its own, supplementary guarantees of economic freedom.

The Constitution of Ukraine of 1996 recognizes that «compulsory withdrawal of private property can be applied … where justified by public need». We must acknowledge that this rule was not only applied under Presidents L. Kravchuk and L. Kuchma, but has continued to be applied by high-ranking state officials of the country since the victory of the Orange Revolution. Nor does one specially need to prove that systematic re-privatization, even as a «just» outcome of the Orange revolution of 2004 could destroy the right to private property no less than Bolshevik nationalization.

According to the Constitution of 1996 the right to private property can be cancelled by the State in a state of emergency or in war. Unfortunately, even in 2004, recognition (or lack of recognition) of the regulations for private property regarding many economic objects still remained an, albeit questionable, but nonetheless current prerogative of the state.

Since withdrawal of private property «justified by public need» is directly allowed for in the Fundamental Law, the norm concerning «the further full reimbursement of its value» (Article 41) does not significantly alter the situation. In a practical sense the given norm means that in the case of need, the State does not need to enter the property market as an ordinary participant. At the same time it proves that the Ukrainian post-totalitarian state continues to place its interests higher than the interests of the individual or of civic society.

Thus, the State’s commitment to ensure ‘the social orientation of the economy’ (Article 13) and also the whole context of Article 41 of the Constitution of Ukraine reflect the traditional supercilious mentality typical of a post-Soviet state not only in relation to individual owners of private property, but towards market and economic freedom generally. Evidence of this can also be found in Article 74 of the Constitution prohibiting the holding of nationwide referendums on questions of taxes or the budget.

Yet another example of constitutional support for State monopoly and a political course which protects the State from the direct influence of civic structures is demonstrated by Article 44, which defines the human right to strike action as being exclusively «to secure economic and social interests». The observance of this right can additionally be restricted in law, according to the Constitution, taking into consideration «the necessity to ensure national security, health protection, and rights and freedoms of other persons».

Generally, the legal regulations on strikes in Ukraine mean that strikes with political demands according to the Constitution of 1996 are banned. Yet even in 2004, a huge number of industrial objects in Ukraine remain the property of the State. This in turn automatically suggests that strikes for political reasons and motives in contemporary Ukraine are inevitable. What else, after all, can State teachers, doctors, scientists do when, 14 years after independence, the State pays them a pittance, and then, not always in full?

Considering the demands of the time, we consider that the Constitution of Ukraine contains an unacceptable number of indirect restrictions on civil, political and personal rights and freedoms. For example, one can say that such constitutional cautions as «the interests of national security», «territorial integrity», «public order», «health protection of the population», «protection of the reputation or rights of other people» in many cases do not promote the fast economic development of the country.

On the whole, the general constitutional restrictions (their list is given in Article 64), and also separate special restrictions given in addition to each specific proclaimed right or freedom (Articles 29–39 of the Constitution) can, in our view, be used by the State in order to considerably hamper Ukrainian progress. In the given context, even the requirement of Article 8 of the Fundamental Law concerning the direct legal force of all norms proclaimed in the Constitution (including rights and freedoms) cannot rectify the situation.

Since all the norms allowed for in the Constitution of Ukraine of 1996 which place restrictions on human rights and freedoms do not contain the general criterion of being «necessary in a democratic society» (the requirement of the European Convention on Human Rights and Fundamental Freedoms of 1950), the degree of state interference in the fulfilment of human rights and fundamental freedoms cannot be measured against the standards of the European Court of Human Rights.

One should also note that the European Convention of 1950 deals with «human rights and fundamental freedoms», whereas the Constitution of Ukraine of 1996 – only with «human rights and freedoms». This means that in Ukraine today, as before, a legal entity (newspaper, other mass media) cannot make an appeal to a court in defence of its constitutional rights and freedoms which have been violated by the State.

In general, the approach of the Ukrainian Fundamental Law to the protection of the rights and freedoms proclaimed by it is too maximalist and at the same time puritanical. On the one hand, «The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value». (Article 3), on the other hand – «No ideology shall be recognised by the State as mandatory». (Article 15).

On the one hand «Everyone is obliged to strictly abide by the Constitution of Ukraine and the laws of Ukraine, and not to encroach upon the rights and freedoms, honour and dignity of other persons». (Article 68) and «Any violence against a child, or his or her exploitation, shall be prosecuted by law». (Article 52), on the other hand – «to ensure its …. informational security …. a matter of concern for all the Ukrainian people». (Article 17).

Certainly, the canons of the law demand that we consider the interests of other people and do not transform the exercising of one person’s rights into aggression directed at other subjects of law. In real life, however, and therefore in judicial practice, there is always a conflict of interests, and, accordingly, of different rights and freedoms.

In particular, as Montaigne once wrote, an unfavourable situation for one subject of law can bring certain benefit to another. It is difficult not to agree with G. Spenser’s statement that a perfect law would take into account not only human reason, but also human instincts, and would not therefore make unrealistically high demands as to individual human virtues. There can be no doubt that any natural constitution must reckon with the logical and rational features of human behaviour, but human nature also presupposes a considerable emotional and pragmatic aspect. That is, a natural constitutional law should not have parameters in excess of the average emotional matrix of homo sapiens.

It is also generally accepted that social interests cannot be forecast at once for many human generations. As Beccaria wrote, the only stable feature of any society is its dynamism, which presupposes an evolving concept of justice. On the background of the legal axioms mentioned the Ukrainian Constitution looks like a document based on reason, which has not been able to free itself from the spell of certain well-known Marxist paradigms. One example of this is the concept of public society as a pyramid of purely rational activities.

This understanding is reflected in the literalism of the constitutional requirement of punishment for «any violence against a child» (Article 52); in the idealism of «equal rights and obligations» of spouses in family relations (Article 51); in the maximalism in expectations as to «equal opportunities in the choice of profession and of types of labour activity» (Article 43), etc.

A Ukrainian publicist once called the Draft of the Ukrainian Constitution in the version of 26 October, 1993 «an instruction manual for Ukrainian people». Unfortunately, we are forced to acknowledge that this ironic characteristic has lost none of its sharp flavour.

2. The constitutional reform of 2004 and human rights

Constitutional reform as of December 31, 2004 was represented by the law № 2222-IV ‘On amendments to the Constitution of Ukraine» dated December 8, 2004. That law was based on Draft Law № 4180 on amendments to the Constitution of Ukraine in the final version of the Temporary Special Commission of the Verkhovna Rada of Ukraine on processing draft laws of Ukraine on amendments to the Constitution of Ukraine dated June 21, 2004.

The bill passed through the required procedure for consideration in the Constitutional Court of Ukraine and received the permission of the Court to put it to the vote in the Verkhovna Rada of Ukraine. Draft № 4180 was significantly different from Draft № 4105 which had already been put to the vote in the Verkhovna Rada of Ukraine but had not received the required (300) majority of votes to be passed. Thus, the final version of Draft № 4180 differed substantially from the draft with the same number which had been the object of consideration of the Venetian Commission in December 2003.

Law № 2222-IV is radically different from the previous versions (Draft No. 4105, the first version of Draft № 4180) simply in the fact that the election of President is allowed for in nationwide elections. At the same time, Law № 2222-IV is a significantly less radical law in making amendments to the Ukrainian Constitution than its predecessors. Even in its updated version, it does not, in our view, encourage positive changes in the political system of Ukraine.

Like its unsuccessful predecessors, Law № 2222-IV allows for the election of State Deputies (members of parliament) on a purely proportional basis. In this respect it – now on the highest constitutional level – confirms the procedure of elections which had previously been allowed for by current legislation. In our opinion, the election of deputies to the Ukrainian parliament solely on the basis of proportional representation is not a sufficiently considered way of improving Ukrainian electoral legislation.

As a result of political compromise, a proportional system of elections to the Ukrainian parliament is already in existence at the level of constitutional and ordinary laws. However it would be more expedient before introducing such amendments to test the new system of elections to the Verkhovna Rada first in practice, and after that, depending on the results of the test, decide whether to formally install it at a constitutional level. The new system for elections has thus far not made a positive impression in practice. In a constitutional sense it does not seem optimal, while in the political it suggests both a lack of balance and unwarranted haste.

Whether Ukrainian society has gained anything from the introduction of a proportional system is impossible as yet to judge. Although the final version of the Ukrainian constitutional reform is the most moderate of those thus far offered, its effect will not be seen in the near future. In general, the new constitutional scheme is relatively simple. Henceforth, the President will be in charge of the foreign policy of the country, defence, internal security, and also of the heads of local state administrations. All other matters of internal political government will be decided by the Cabinet of Ministers and the Council for National Security and Defence. There is a clear weakening in the executive government vertical, which would in fact seem to be what the reformers were aiming to achieve.

A fundamental flaw in the constitutional reform is, in our opinion, the placing of some ministers of the Cabinet of Ministers of Ukraine (in the sense of their appointment and actual subordination) under the President of Ukraine, and the rest – under the Verkhovna Rada and Prime Minister of Ukraine. As we already mentioned, this new system of appointments and subordination will result in a situation where the foreign and domestic policy of Ukraine are in completely separate hands.

Since the post of President of Ukraine according to these reforms remains not only representative, but genuinely influential regarding some executive functions (foreign policy, internal security and defence), in practice this could lead to the deformation of the executive vertical, with clearly non-constructive competition between the President, Prime Minister and Secretary of the Council of National Security and Defence of Ukraine (CNSD) within the framework of this overall branch of state executive power.

If one considers that there is already competition between the roles of speaker and that of the President in Ukraine, the logic behind this constitutional reform seems even less comprehensible. In simplest terms, competition between high-ranking posts which belong to different branches of the government is constitutionally justified. However, it is difficult to see cogent reason for having competition between high-ranking state figures within one (executive) branch of the government.

We suspect that the authors of the constitutional reform were looking for a strategic compromise, but the way out they found has turned out to be a compromise of short-term tactics. As a result, a legal system, already criticized by the Venetian commission is again raised to the constitutional level. We are convinced that such a solution and version of political reforms would make Ukraine less a parliamentary republic, than an unwieldy legal conglomerate, inconsistent in the constitutional sense with new European political formations.

The fact that, according to the reform, the President of Ukraine can dissolve parliament in three cases (each of which can be the result of a broad range of reasons) is not consistent with the professed goal of transforming Ukraine from a presidential to a democratic republic.

Today the President is directly involved in forming the Cabinet of Ministers and appointing heads of local state administration (the Ukrainian version of governors). However in practice Ministers and heads of local state administration also depend to a great extent on the Prime Minister. Thus, having appointed some members of the Cabinet of Ministers and heads of local state administration, the President leaves the latter under the supervision of the Chairman of the Cabinet of Ministers. Of course, if Ukrainian governors, rather than being appointed by the President, were elected by their constituents, it could prove sufficient reason for constitutional reform. However there is no talk of electing governors at present. The principle of direct dependence of governors on the President has remained unchanged according to the reforms.

As for the relationship between the President and the Verkhovna Rada (parliament) of Ukraine, the new reforms not only do not change this in favour of the Verkhovna Rada, but in fact lead to an even greater level of dependence of the parliament on the will of the President. The power of the President to dissolve Parliament is, as mentioned, increased threefold. The reforms, therefore, weaken the influence of the President within the executive government branch yet at the same time make his control over the Ukrainian parliament several times greater. It is clear that in this, the reforms turn Ukraine into a relatively inconsistent parliamentary republic.

The judicial system remains virtually untouched by the reforms. The partial reinstatement of the system of general supervision by the prosecutor’s offices of observance of human rights and freedoms is, in our opinion, difficult to support. Although, according to specialists, this partial return of the prosecutor’s supervision over adherence to human rights and civil liberties is explained not so much by Ukraine’s low level of legal development (which is Strasbourg’s official position), as by the low level of income of the Ukrainian population. Indeed, the defence of one’s rights, freedoms and interests in a court of law remains an expensive and casuistic procedure for many ordinary Ukrainian citizens.

In general, it would be possible to reconcile oneself to the reform if Ukraine’s level of civic and political development were significantly higher. However Ukraine is a very young democracy and it is unlikely that the application of parliamentarian mechanisms and procedures for solving most of its problems will truly impress its young political system.

Hannah Arendt, in her analysis of the features of any organic revolution, once stated that genuine revolutions always widen the framework of people’s representation. That is, the social basis of State management with every new revolution becomes wider, more democratic. The exact opposite of this can be observed as a result of the constitutional reform, since the direct influence of the people on Ukrainian politics is actually decreased. Although citizens of Ukraine will continue to elect Presidents, and the mass media will function, hopefully, without censorship and «temnyki[2]», this will not significantly influence the political course of the country. It is for this reason that the legal consequences of the constitutional reform may be regarded as legislative devolution.

After all, the President with post-reform powers could be elected in Parliament, and only the subordination of the local state administrations to him still allows us to see his post as a balanced counter to the legislative branch of power in the State. If, in future, the heads of the local state administrations start being elected, the national election of a President will lose any sense.

One should also take into account that after the election of Viktor Yushchenko President, Ukraine has gained the opportunity not only to become a democracy, but also a country, which (like the Baltic states) maintains a positive separation from post-Soviet republics. However it is precisely Russia’s presence on the long Ukrainian border that serves as sufficient evidence of the need for Ukrainian presidential republicanism. The key point here is the possibility for a swift presidential reaction to Russian challenges to foreign policy which Ukraine will not lack in the future.

As far as the European and Atlantic political world is concerned, it is not very important whether Ukraine becomes a parliamentarian or a presidential republic. However, the situation is quite opposite from the point of view of Ukraine’s political relations with its Eastern neighbours. It is precisely in this context that it is worth paying more attention to the organizational disarray of Ukrainian political forces, to the factional self-centredness of their interests, and to the ever present demagogy found in national parliamentary debates.

The paradox of the constitutional reform is seen in the way that, while continuing to dilute responsibility in a mixed parliamentary environment for strategic decisions in the country, the reforms demonstrate a sharply increased level of political demands with regard to tactical parliamentarian manoeuvres and operations. On the one hand, the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine will in parallel be responsible for the current home and strategic foreign (principle-defining) policy of Ukraine. On the other hand, in order to carry out this role in a proper fashion, an unprecedented degree of factional disciple will be introduced into parliament.

Thus, if in accordance with Article 81 of the acting Constitution of Ukraine, a decision about pre-term cessation of the authorities of a State Deputy of Ukraine following his or her resignation, or due to withdrawal of citizenship or the person’s departure abroad for permanent residence, is taken by the Verkhovna Rada of Ukraine, in accordance with the reform… «if a State Deputy of Ukraine, elected from a political party (electoral bloc of political parties), does not belong to the faction of Deputies of this political party (electoral bloc of political parties) or if the Deputy of Ukraine leaves this faction, his or her authorities shall be cancelled pre-term on the basis of law at the decision of the higher leadership body of the relevant political party (electoral bloc of political parties) from the date of the decision».

Moreover, this new procedure for removing a State Deputy’s authorities demonstrates not only the introduction of tough factional discipline into the Verkhovna Rada, but also the diminished importance of the individual in the Ukrainian political process. From the outside, it is reminiscent of the consolidation of political allies around their ideological leaders, familiar in Ukraine from communist days.

The reform also stipulates that a State Deputy’s parliamentary mandate is incompatible with other kinds of activity prohibited by the Constitution. In turn, non-compliance with the rules regarding incompatibility shall be grounds for the compulsory removal of a deputy’s mandate.

In this way, the constitutional reform is reinstating an imperative (party-corporative) mandate which was already half forgotten in Ukraine. A Deputy is again regarded here as a party pawn, a rank-and-file cardholder for electronic voting. It looks as though the elections to the Verkhovna Rada of Ukraine risk becoming a link in the mechanism for introducing not so much electoral, as party priorities. It is unlikely that the personal psychological qualities of a parliamentarian, his or her individual experience, intellect, and also geographical link with a certain region will be used here. In general, as open preliminary calculations show, the implementation of a purely proportional system of representations runs the risk of creating a situation where 85–90% of Deputies will be citizens of Ukraine’s capital Kyiv.

It looks as though the constitutional reform will transform parliament from a place of open public discussion into an arena for battles of factional gladiators. This is to be regretted, since in the context of constitutional changes, one cannot so far speak of the renewal of the stimuli of political action which Vaclav Havel believes to be: moral instinct, sense of taste, ancient political wisdom, and analytic delicacy of feelings. On the contrary, one can observe that as far as the renewal of the status of State Deputies is concerned, the constitutional reform has applied philosophical reduction, legal-logic simplification, and the denigration of constitutional material to the requirements of crude legislative tactics.

Besides, combining voting for the constitutional reform with amendments to current electoral legislation was also ethically questionable. When the faction «Our Ukraine» (leader Viktor Yushchenko) demanded the resignation of the government and the Central Election Commission, and also the immediate amendment to the Law on Presidential elections, this was not a question of gaining political benefits for the opposition, but about the intrinsic right of the Ukrainian people to vote for the fulfilment of their sovereign will. This will was not subordinate to, but above the participants in the Ukrainian negotiation process.

Since the political right to elect and to be elected precedes all bodies of power, their branches and sub-divisions – from Parliament and President to Cabinet of Ministers and Central Electoral Commission included, the electoral rights of Ukrainian citizens, their scope and procedure for being implemented must not be the object of profit-seeking agreements.

This meant the impossibility in principle of improving the Ukrainian electoral legislation under the guarantees of a parliamentary vote for constitutional reform, or for any other vote at all. The will of the people in a material and procedural sense is sovereign, and cannot therefore be subject to the whims of the participants in any negotiation process. It is a priori higher, inherently superior to any leaders and political elite of the country as a whole.

That is why the decision whether the second round of presidential elections should be fair and transparent could not and should not depend on deals reached from above, but which remained in essence private. The values directly involved were incomparably higher than interests of any parliamentarian factions or presidential contenders. Moreover, the issue of constitutional reform is generally too important to be «pushed through» under the pressure of a short-term crisis. The Constitution is the ultimate regulator of domestic and foreign political life of Ukraine, and in no way should it be a hostage to political manoeuvring.

In one way or another, Ukraine’s domestic policy has became for the future a prerogative of the parliament – a political institution the course of which in the conditions of Ukraine can be outwardly corrected. As is well-known, direct democracy is important because it is physically impossible to corrupt all the people. This well known statement of Thomas Jefferson has repeatedly been confirmed in practice. This is why it remains imperative that the authority and effectiveness of the post of President and also his dependence on the direct will of the Ukrainian people are retained.

In addition, the post of the President is an important counterbalance to possible foreign economic pressure on Ukraine. This argument is strengthened by the fact that Ukraine is at the level of development where its financial-economic strength and public policy are virtually inseparable. Under these conditions, a special role in the political system of Ukraine can be played by a nationally elected leader.

For these reasons, the reduction of the presidential status to representative functions and functions of foreign policy introduced by the reforms is, in our opinion, dangerous even from the point of view of ensuring the interests of state sovereignty. One can predict that corporatism in the political system of Ukraine after implementation of the reform will increase, and the influence of financial-economic groups on parliament will become systemic.

One should also stress that the main lobbyists of constitutional reform were political supporters of the former President L. Kuchma, and also representatives of parliamentary factions which during the elections gained no more than 5–6% of votes of the Ukrainian electorate. It does not appear justified, therefore, that the constitutional ideas of Ukrainian political outsiders should have to be implemented by their opponent Viktor Yushchenko.

However, the implementation of constitutional reform with radical transformations of Presidential authorities between the first and the second rounds of the presidential elections even defied common sense. Neither from the point of view of law, nor with a view to efficient politics, could it reasonably happen that the citizens of Ukraine in the first round of the elections voted for a President with one constitutional status and in the second – for a President with a manifestly different status.

Hundreds of thousands of people stood on Independence Square in Kyiv in December’s freezing temperatures in order to elect a strong leader. Consciously and subconsciously they counted on the power of his constitutional post. In general, the strength of spirit and mind of the people on the square were significantly higher than the ideological tone of the Ukrainian constitutional reform. Unprecedented in its scale in the modern history of Ukraine, the permanent Orange Demonstration stood up not for a change in formal-legal institutions, but for a change in the actual corrupt live government.

During the days of the Revolution, Ukrainian citizens protested not against imperfect judicial frameworks, but against specific individuals. The passing-bell which rang for half a month on the capital’s square was convincing proof that the last remnants of Ukrainian post-communism could be buried. It was there and at that time that Ukrainian citizens freed themselves of their old political fears, and at the same time – their sense of dependence and slavery.

3. Recommendations

In our opinion, Draft № 4180 on amending the Constitution (now the Law of Ukraine «On amending the Constitution of Ukraine» № 2222-IV dated December 8, 2004) requires review by the Constitutional Court as well as a re-vote with a constitutional majority in parliament. After all, the draft was significantly amended after its presentation to the Constitutional Court but before the vote on it in parliament on December 8, 2004. It is highly likely that in the new post-revolutionary situation, it will be rejected by the parliament as not meeting current Ukrainian needs.

On the whole, taking into account the abovementioned specific features of the Ukrainian political situation, we suggest redrafting the Law on amending the Constitution of Ukraine in the direction of fundamentally different issues. We have in mind the following:

1. The Verkhovna Rada (Parliament) must effectively control the activities of the Government, and of the executive branches of power as a whole through permanent and temporary parliamentary committees and commissions. In order to achieve this aim, the supervisory functions of parliament and of the public (individual citizens and non-governmental organizations) must at a judicial level be significantly strengthened.

This can be achieved by passing relevant legislation: on access to information; on the government; on public control over the activities of the state executive; on political opposition. It would be useful in this case to also prepare and pass a special law on impeachment, as well as on parliamentary temporary, investigative and other commissions.

2.. Ukrainian procedural legislation on the Constitutional Court must be significantly improved. Up to now the Constitutional Court of Ukraine, as is well-known, has worked as an arbiter or go-between in disputes between the President and the Verkhovna Rada of Ukraine. Furthermore, the Constitutional Court’s function of providing constitutional defence of rights and freedoms was never seriously carried out. We therefore believe that in the future the list of possible complaints which can be taken to the Constitutional Court must be broadened.

3. It is also necessary to prepare and pass a separate law on constitutional court procedure, since without detailed regulation of procedural questions at the judicial level, it will remain impossible to consider the Constitutional Court of Ukraine as a court with constitutional jurisdiction in the full understanding of this concept.

4. A strengthening of guarantees of independence of the judiciary and of access to legal justice needs to be allowed for in the Constitution.

5. The constitutional status of the prosecutor should be changed, leaving only the function of representing the state in court: support for State prosecutions in criminal cases and the representation of the State in civil cases should be the function of a Department of the Ministry of Justice.

6. The Constitution should allow for the creation of an Investigative Committee which would absorb the investigative departments of the Ministry of Internal Affairs, Security Service of Ukraine and the Prosecutor.

7. The State committee for television and radio should be disbanded, and its functions according to the Constitution should be carried out by a National Council for television and radio.



[1] The government is the Cabinet of Ministers, with the Prime Minister being appointed by the President, although the choice must be supported by half or more of the members of the Verkhovna Rada (Parliament) (translator’s note)

[2] «temnyki» – were the ‘instructions’ given to journalists etc as to ‘safe’ subjects and how to cover them, and subjects to be avoided entirely. (translator’s note)

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