PACE Resolution 1549: Functioning of democratic institutions in Ukraine
(Provisional version) Resolution 1549 (2007)1
1. The Parliamentary Assembly is concerned by the political developments in Ukraine which have evolved in recent months and culminated in President Victor Yushchenkos decree of 2 April 2007 announcing the early termination of powers of the Verkhovna Rada (Parliament) of Ukraine. The continuing political instability is the result of the systematic failure by the successive Ukrainian governments to establish coherent policies backed by substantial legal, administrative and economic reforms. The political reforms that would set "the rules of the game" and enable law-based institutions to guarantee democratic rights and freedoms and promote political competition have not been completed to date.
2. The Assembly stresses that the current crisis in Ukraine is also the result of the hasty and incomplete constitutional and political reform of 2004, under which a number of changes have been introduced to the Constitution of Ukraine without taking into account the reservations of the Venice Commission and without holding a comprehensive public debate in the country. The Assembly regrets that the strong criticism expressed in its Resolution 1466 (2005) and its repeated calls on the Ukrainian authorities to address these issues as a matter of urgency, in order to secure the legitimacy of the constitutional changes of 2004 and their compliance with European standards, have gone unheeded.
3. In this context, the Assembly recalls its numerous earlier appeals to reform the institutions in Ukraine as expressed in Resolutions 1179 (1999), 1239 (2001), 1244 (2001), 1346 (2003), 1364 (2004), 1466 (2005) and Recommendations 1395 (1999), 1416 (1999), 1451 (2000) and 1722 (2005). It recognises the achievements of the Orange Revolution that have allowed for key democratic freedoms to take root in Ukraine: the country now enjoys freedom of speech and of the media, freedom of assembly, freedom of political competition and opposition, and a vibrant civil society. Moreover, a year ago the country proved its ability to conduct free and fair legislative elections. What Ukraine lacks today, however, are guarantees built into its democratic institutions that would consolidate those newly acquired freedoms.
4. Personal rivalries and short-sighted fights for personal gain, linked to posts and positions, have led to various attempts by some political forces to take advantage of the constitutional vacuum that emerged with the coming into effect of the controversial 2004 constitutional amendments in January 2006. The Assembly regrets that the absence of independent counterweights allows the key state bodies to feel themselves above the law. This has seriously tarnished the reputation of all the political leaders in Ukraine.
5. The Assembly launches an urgent appeal to the President, the members of Parliament and the Government of Ukraine to resolve their current crisis in a legitimate, strictly constitutional and peaceful manner, either by calling legitimate early elections, emanating from the ruling of the Constitutional Court, or by way of a negotiated compromise. In this process, all political forces should abstain from sharp and biased public statements in support or condemnation of any political force in Ukraine.
6. In this regard, the Assembly notes that the top leaders of the country have maintained dialogue throughout the ongoing crisis. It also takes note of the fact that the Ukrainian leadership has so far succeeded in maintaining stability and civil peace in the country, which testifies to the existence of an internal potential to overcome the current crisis. Furthermore, it is a positive sign that the law enforcement agencies have so far performed their function of sustaining public order and safety without direct involvement in the political struggle and that the armed forces have maintained their neutrality.
7. However, the Assembly is concerned by the reports of engaging minors by some political forces in mass political actions, which is in violation of the United Nations Convention on the Rights of the Child. It stresses that such practices are unacceptable and calls upon all political forces in Ukraine to honour the said Convention to which Ukraine is a party.
8. The Assembly calls on the political forces of Ukraine, as a matter of urgency, to resume working on the improvement of the Constitution of Ukraine and the related legislation in order to establish at last an effective system of checks and balances and bring constitutional provisions in line with European standards. Constitutional reform should be part of the discussions aimed at the resolution of the current political crisis. The Assembly expresses its expectation that the Venice Commission will be actively involved in the process of drafting constitutional reform proposals.
9. The Assembly reaffirms that the recall of peoples representatives by the political parties ("imperative mandate") is unacceptable in a democratic state. The relevant constitutional provisions need to be abrogated in line with the recommendations of the Venice Commission in 2004; similar provisions also need to be deleted from ordinary legislation. The Assembly believes that a consistent political programme, responsible and committed party membership and scrupulous screening of parties candidates are more effective tools for encouraging party and faction discipline.
10. The Assembly recognises that both regular and pre-term elections constitute a legitimate democratic instrument for the people to choose and control the authorities that act in their name. Early elections are a normal practice in all democratic countries of the Council of Europe and as such could be accepted as a key building block of the political compromise. However, the Assembly underlines that for any elections to be considered democratic, they should be conducted according to a legitimate procedure that allows fair campaigning and free choice for voters.
11. In this respect the Assembly notes with concern that the existing provisions of election legislation that regulate pre-term elections within the constitutionally set timeframe (60 days) are insufficient and do not guarantee proper conditions for free and fair elections. It regrets that the government has not complied with the legally valid decree (until proven otherwise) and has not allocated the required funding for these elections.
12. The Assembly also urges the Ukrainian authorities and political forces to address as soon as possible the problem of the parliamentary election system of Ukraine which may represent one of the causes of the weakness of the political system. A fully proportional system with closed party lists and with all of Ukraine being treated as one single constituency, as endorsed by the constitutional amendments of 2004, does not guarantee the election of a parliament representing Ukrainian society in all its diversity.
13. The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts decisions, which is a sign of erosion of this crucial democratic institution. Independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out a comprehensive judicial reform, including through amendments to the Constitution.
14. The Assembly reiterates that the authority of the sole body of constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Pressure in any form on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to solving the crisis in its earlier stages which undermines the credibility of the court. There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
15. In the light of the above, the Assembly recommends to the Ukrainian authorities the urgent adoption of the following concrete measures to address the causes of the crisis and prevent further dysfunctioning of democratic institutions in Ukraine:
15.1. to re-launch the constitutional reform project, in close co-operation with the Venice Commission, in order to improve the Basic Law of Ukraine and bring it in line with European standards, in particular as regards the provisions on the separation of powers, the imperative mandate, the judiciary and the prosecutors office as stipulated in various opinions of the Venice Commission on the subject and Assembly Resolutions 1364 (2004) and 1466 (2005);
15.2. to adopt and enact without further delay basic constitutional laws (laws on the Rules of Procedure of the Verkhovna Rada of Ukraine, on the parliamentary temporary special and investigatory commissions, on central bodies of the executive power, on the parliamentary opposition, on referendum, etc.) and to bring the Law on the Cabinet of Ministers of Ukraine in line with the Constitution of Ukraine, taking into account relevant European standards and the opinion of the Venice Commission;
15.3. to amend the Law on the Elections of Peoples Deputies of Ukraine in order to set up proper procedures for the organisation of pre-term elections in case of dissolution of the Parliament;
15.4. to envisage changing the system of elections to the Parliament, for example by introducing open party lists whereby voters could indicate their preferences as to particular candidates included in the election lists proposed by political parties (blocs) and by dividing the country into different constituencies;
15.5. to carry out the reform of the judiciary on the basis of the Judicial Reform Concept adopted by the President of Ukraine in May 2006 with the aim of establishing an independent and effective judiciary in Ukraine, taking into account the recent opinion of the Venice Commission;
15.6. to launch the reform of the criminal justice system and law enforcement agencies and to take active legislative and practical measures to tackle all forms of corruption, including political corruption.
16. The Assembly believes that in order to effectively implement the above recommendations, all parties involved in the conflict should engage in an open and constructive dialogue on the settlement of the situation in Ukraine.
17. The Assembly calls upon the Secretary General of the Council of Europe, as a matter of priority, to take all appropriate measures in his competence to contribute to the process of settlement of the crisis in Ukraine. It also considers that the activities relating to the Council of Europe Action Plan for co-operation with Ukraine should be stepped up in order to achieve a noticeable strengthening of democratic institutions in Ukraine.
18. The Assembly asks the Venice Commission to give an opinion on the existing legislative basis for pre-term parliamentary elections in Ukraine and on the possible ways to improve electoral legislation based on European practice.
19. The Assembly confirms its readiness to help Ukraine overcome its current deadlock either through its assistance mechanisms or other specific arrangements. Nevertheless, it is up to the Ukrainian political leaders to work out the most appropriate solution for its internal problems. The Assembly believes that not all domestic avenues for a quick, efficient and legitimate political compromise have been exhausted as yet. It therefore calls upon the Ukrainian leaders to build up new political confidence through establishing sound safeguard mechanisms for national unity, fair political competition and coherent and comprehensive reforms, the main directions of which are outlined in the Assemblys Resolution 1466 (2005).
1 Assembly debate on 19 April 2007 (16th Sitting) (see Doc. 11255, report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), Rapporteur: Mrs Severinsen and Mrs Wolhlwend). Text adopted by the Assembly on 19 April 2007 (16th Sitting).