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4. Constitutional Process in Ukraine in 2012

   


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Constitutional Process in Ukraine in 2012 reflects a range of Conclusions and Decisions passed on the matter by the Constitutional Court of Ukraine and analytical activity of the Constitutional Assembly of Ukraine set up on January   25, 2012 by President Yanukovich’s Decree № 31/2012. Passing of the new Law of Ukraine “On all-Ukrainian Referendum” on November 6, 2012 became an important milestone in the constitutional process.

Constitutional Process in the Decisions of the Constitutional Court of Ukraine

In 2012 the Constitutional Court of Ukraine was proactive in passing a number of decisions and rulings, some of which may, based on their contents, be characterized as essential elements of the constitutional process in Ukraine. First of all, it concerns the Decision № 2-rp/2012  of January 20, 2012 “In the case upon the constitutional petition of Zhashkiv regional council of Cherkassy oblast concerning official interpretation of the provisions of Articles 32.1, 32.2, 34.2, 34.4 of the Constitution of Ukraine”; Decision of  January 25, 2012 “In the case upon the constitutional petition of the Board of the Pension Fund of Ukraine concerning official interpretation of the provisions of Articles 1, 95.1, 95.2, 95.3, 96.2, 116.2, 116.3, 116.6, 124.2, 129.1 of the Constitution, 4.1.5 of the Budget Code of Ukraine, 9.1.2 of the Code of Administrative Proceedings of Ukraine in system connection with some provisions of the Constitution”[2]; Decision № 7-rap/2012 of April 4,  2012 “ In the case upon the constitutional petition of 59 People’s Deputies of Ukraine concerning conformity with the Constitution of Ukraine (constitutionality) of the provisions of Article 22.2 of the Law “On Elections of the People’s Deputies of Ukraine” concerning proportional assignment of electoral voting stations abroad to all single-seat electoral districts established on the territory of  the capital of Ukraine – city of Kyiv”;  Decision № 8-rp/2012 of April  5, 2012 “In the case upon the constitutional petition of 51 People’s Deputies of Ukraine concerning conformity with the Constitution (constitutionality) of Article 52.5, paragraph 2 of Article 98.10, Article 99.3 of the Law “On Elections of the People’s Deputies of Ukraine” (case on nomination of candidates for People’s Deputies of Ukraine under the mixed electoral system)”; Conclusion  of the Constitutional Court of Ukraine № 1-в/2012 of July 10, 2012, in the case on the Supreme Rada petition  to decide upon conformity of draft law on amendments to Constitution of Ukraine concerning  immunity, with the  Article s   157 and 158  of Constitution of Ukraine ( the case on amending Articles 80, 105, 126, 149 of the Constitution of Ukraine).  

Two first Decisions of the the Constitutional Court of Ukraine will be commented upon in the report on human rights’ protection in 2011 and early 2012. Meanwhile, the essence of the Decision of the Constitutional Court of Ukraine № 7-rap/22 of April 4, 2012 is clarified below.

The case on voting stations abroad

Bearer of right to constitutional petition approached the Constitutional Court of Ukraine with the motion to classify provisions of Article. 22 of Law of Ukraine “On Elections of the People’s Deputies of Ukraine”,  stipulating setting up voting stations abroad by Central Election Commission under the auspices of diplomatic missions of Ukraine, in military units (formations), deployed outside Ukraine, concerning proportional assignment of electoral voting stations abroad to all single-seat electoral districts established in the territory of  the capital of Ukraine – city of Kyiv, as unconstitutional.

The people’s deputies of Ukraine claimed that the Law provision establishing  proportional assignment of electoral voting stations abroad to all single-seat electoral districts established in the territory of  the capital of Ukraine – city of Kyiv, violates the constitutional principles of equal and free electoral right to vote and be elected, do not create equal opportunities for people’s deputies’ candidates in single-seat electoral districts, and, therefore, are contrary to provisions of Article  1.2,  Article 5.1, Articles  38,  69, 71, Article 76.1 of the Constitution of Ukraine.

In its deliberation over the case the Constitutional Court of Ukraine took into consideration the following: as far back as in its Decision № 1-rp/98 of February  26,  1998 ( case concerning Elections of People’s Deputies of Ukraine) the Constitutional Court of Ukraine ruled that “fundamental principles of general, equal and direct election right, free and secret ballot for Ukrainian citizens at  the elections of people’s deputies of Ukraine” set up constitutional foundations for the legal regulation of electoral process” (paragraph 3, p.4 of substantial part). Besides, under Article 77.3 and Article 92 of the Constitution of Ukraine, organization and procedure of elections of people’s deputies of Ukraine are defined exclusively by the laws of Ukraine.    

Under the law the voting stations abroad are set up to enable voting to the voters residing or temporarily staying in the territory of a foreign state. They are set up under Ukrainian diplomatic missions, in the military units (formations), deployed outside Ukraine, “with [their] proportional assignment of electoral voting stations abroad to all single-seat electoral districts established on the territory of  the capital of Ukraine – city of Kyiv”;  (Article 22.1, 22.2 of the Law). It is noteworthy that active electoral process is characterized by more or less equal influence of every voter on the ballot results.

According to the Constitutional Court of Ukraine,  the principle of equal voting right is ensured not only by principles of equal public participation in the elections, but also by approximately equal influence of the votes on the results of ballot. (paragraph 1, p. 13 of the substantial part of the Decision№ 1-rp/98 of February  26,  1998 ). That is the reason why single-seat electoral districts are set up by the Central Election Commission with due consideration of the territorial factor ( within respective administrative and territorial unit of Ukraine) and quantitative factor, under which the number of voters in each single-seat district will represent approximately same part of the total number defined by the State Registry.

Under the Law on Elections, which establishes time framework, procedure and order of setting up single-seat electoral districts and voting stations (including those abroad), the Central Election Commission sets up voting stations abroad with their subsequent assignment to single-seat electoral districts of Kyiv. (Subparagraphs 2, 3, 4, paragraph 6, Chapter XV “Final and transitory provisions”).

That’s why the Central Election Commission sets up single-seat electoral districts based on number of voters in the Kyiv State Registry, with allowed the average 12% deviation from mean numbers, excluding the voters staying or residing abroad. Under the circumstances provision of the Article 22 concerning proportional assignment of electoral voting stations abroad to all single-seat electoral districts established in the territory of the capital of Ukraine – city of Kyiv disagrees with Article 18.2 of the Law which allows the average 12% deviation from mean  number of voters in a single-seat district.  Besides, assignment of electoral voting stations abroad to Kyiv electoral districts (taking into account the number of voters in the capital) leads to the total increase of the number of voters unattached to the territorial community in Kyiv.  

Due to these factors the use of the Law provisions under which voters abroad vote for the people’s deputies candidates in single-seat districts of Kyiv does not ensure adequate freedom of Kyiv voters in expressing their will. The constitutional principle of equal electoral right obliges the state to create equal opportunities for exercising both active and passive electoral right at all stages of the electoral process, as well as equal opportunities in protection of electoral rights. The legal stand under which “to all voters and all candidates for people’s deputies of Ukraine equal election opportunities in exercising their electoral rights are granted and guaranteed by the Constitution of Ukraine” was formulated by the Constitutional Court of Ukraine in p.10 of the substantial part of its Decision № 1-рп/98 of February 2, 1998.

Therefore, provisions of the Law in force concerning proportional assignment of electoral voting stations abroad to all single-seat electoral districts established in the territory of the capital of Ukraine – city of Kyiv fail to provide equal opportunities for the candidates for people’s deputies of Ukraine for single-seat districts in Kyiv. The law restricts or totally disregards these candidates’ opportunities to influence the voters’ choice, if these voters stay or reside abroad. 

Besides, according to the ruling of the European Court on Human Rights in Strasbourg, the voters who stay or reside abroad (see Hilbe v. Liechtenstein, 1999) in the majority of cases are “a non-resident citizen is less directly or continuously concerned with, and has less knowledge of, a country’s day-to-day problems”, and, therefore, can be deprived of active voting right.

That’s why the Constitutional Court of Ukraine arrived at the conclusion that provisions  of Article 22.2  of the Law on  Elections concerning  assignment of electoral voting stations abroad to single-seat electoral districts established on the territory of Kyiv is contrary to  Article 38, Articles 69, 71 , Article 76.1  of the Constitution of Ukraine. On this basis it recognized provisions of Article 22.2 of the Election Law of November 17, 2011, as unconstitutional.  

The Court’s Decision was criticized in the “individual opinions” of the Constitutional Court judges P.Stetsyuk and V.Shyshkin. P.Stetsyuk, in particular, pointed out that the Court in its ruling on unconstitutionality of provisions of part 2, Article 22.2 of the Law on Elections concerning proportional assignment of electoral voting stations abroad to single-seat electoral districts established on the territory of Kyiv, should have specified what the essence of “contradiction” is. However, the Decision contains no such clarification. It means that assumptions made by the Constitutional Court, cannot be considered substantial as they are based on erroneous perception of the “deputy’s mandate” by the Court.  Any people’s deputy of Ukraine is “plenipotentiary representative” of the Ukrainian people as a whole; he is called upon to protect national interests (Article 79 of the Constitution of Ukraine, p. 5, p.2 of substantial part of the Constitutional Court Decision of July 7, 1998).     

The allegation that assignment of electoral voting stations abroad to single-seat electoral districts of Kyiv does not ensure the equal opportunities of candidates for people’s deputies of Ukraine for single-seat districts in Kyiv, as their opportunities to influence the choice of the voters  who stay or reside abroad are restricted, cannot be considered a justified argument either.  The Article 22 of the Law grants active, not passive electoral right, which in this case is just an organizational characteristic of the Ukrainian electoral process. Besides, the passing of 2011 Law on Elections by 366 people’s deputies (over 80 %of their constitutional number) and its immediate signing by the President testify to political expediency of such electoral procedure and order.  And political expediency issues are beyond the Constitutional Court jurisdiction (see the Constitutional Court of Ukraine Decisions№ 1-rp/98 of February 26; № 2-rp/2002 of January 30, 2002; № 1-в/2002 of October 16 etc.)

P.Stetsyuk, therefore, argues that ruling on unconstitutionality of Article 22.2 of the Law, the Constitutional Court in fact deprived Ukrainian citizens abroad of their electoral right in electing people’s deputies of Ukraine in the simple-majority districts.

As to the criticism, voiced by V.Shishkin, this latter called the resolution part of the Decision unmotivated. In judge Shishkin’s opinion, constitutionality of a given norm of the law cannot be evaluated against another norm of the same law, and that’s exactly what the Constitutional Court  did. Obviously all the norms of a law have the same ranking and legal force.   

Besides, ensuring the equal number of voters in single-seat districts remains an irresolvable problem. That’s why equality in this case means approximately equal number of voters in simple-majority districts. That’s why the Law established the margin of mean 12% deviation from average numbers. The Constitutional Court  Decision’s reading of the equality principle in absolute terms  leads to classifying the whole Law on Elections as unconstitutional.    

The European election standards  (see pp. 26-28 of clarifications to the Venice Commission “For Democracy through Law” “Code of Good Practice in Electoral Matters” suggest the interpretation of free elections as such that do not recognize any restrictions of either active or passive voting right. I.e. the European documents safeguard the guarantees of all voters’ access to the electoral process. The Court’s reference to the case Hilbe v. Liechtenstein by no means is relevant for Ukraine, as the Ukrainian legislation does not stipulate restrictions of electoral rights on the basis of the voter’s whereabouts.

To a certain extent, one can agree with P.Stetsyuk’s and V.Shishkin’s critical remarks. The fact that the Constitution of Ukraine grants equal electoral rights to all its citizens is the main argument in their favor.  In other words, the citizens’ whereabouts are of no importance for the matter. In any case, this Constitutional Court Decision in fact depletes the number of voters abroad by half (potentially – several million voters), thus weakening their influence on the results of the ballot strategically important for the country.  

Nomination of the candidates under mixed election system

The case started with the petition of 51 people’s deputies of Ukraine concerning conformity with the Constitution (constitutionality) of Article 52.5, paragraph 2 of Article 98.10, Article 99.3 of the Law “On Elections of the People’s Deputies of Ukraine”, as contrary to Article 76.1, Article 8, Article 38.1, and Article 71.1 of the Constitution of Ukraine.  The deputies argued that the said Articles are unconstitutional due to the fact that the provision of Article 52.5 of the Law on Elections allows for including the same person into the lists of candidates both in the national and single-seat electoral districts, which is unfair.    

In cases when the Central Election Commission finds out that the same person was elected as people’s deputy in multi-seat national district and – at the same time – in a single-seat electoral district, this person should be considered a winner only in the single-seat district. As to the party list, the candidate, next to the one in question, should be considered elected. The subject of the constitutional petition, disagreeing with that wanted to prove that this order of defining election results is contrary to the principles of equal electoral right.    

In its ruling on this matter the Constitutional Court referred to the provisions of Article 52.5, of the Law “On Elections of the People’s Deputies of Ukraine”, under which the same person can be nominated both in the national and single-seat electoral districts. Hence a candidate for people’s deputies nominated by political party will have more opportunities to exercise passive electoral right than a self-nominated candidate who runs in a single-seat district.   

The Constitutional Court pointed out that in its Decision. № 1-rp/98 of February  26, 1998 it already specified that the principle of the equal  electoral rights is not always observed with regards to the candidates on party ballots. They have more opportunities to be elected than the candidates running for single-seat districts. The violation of the equal electoral rights also occurs when one candidate is voted for twice. It proves that Article 52.5 of the Law on Elections contradicts Articles 8, 38.1, 71.1. and 76.1 of the Constitution of Ukraine.   

The Court believes that the list of candidates elected by certain portion of all voters within a party ballot should be the only outcome of the elections in the national district.  According to the Constitutional Court   Decision. № 1-rp/98 of February  26, 1998  the principle of the equal  electoral rights is ensured not only by the equal voting conditions for all citizens, but also by the equal influence of everyone on the results of parliamentary elections.

That’s why the Constitutional Court ruled that Article 52.2. of the Law “On the Elections of People’s Deputies of Ukraine” does not comply with the Constitution of Ukraine. This Court’s Decision also qualified paragraph 2, Article 98.10and Article 99.3 of the Election Law of 2011 as unconstitutional.     The Constitutional Court Decision seems quite logical and well-justified.

Initiative on banning the immunity

The Constitutional Court had to consider this case after the draft law on amendments to the Constitution of Ukraine envisaging banning of the deputies’, presidential and judges’ immunity was devised. We refer to the Resolution of the Supreme Rada of Ukraine   “On including the draft project on changes to the Constitution of Ukraine re immunity into the agenda of Session X of the Supreme Rada of Ukraine of the 6th convocation and its submission to the Constitutional Court of Ukraine” of June 20, 2012.

The Supreme Rada of Ukraine approached the Constitutional Court  with the motion to pass a decision on conformity of the draft law Election  on amendments to the Constitution of Ukraine envisaging banning of the deputies’, presidential and judges’ immunity № 10530 with the provisions of the Articles  157 and 158of the Constitution of Ukraine.   The draft law stipulated changes to the Articles 80, 105, 126, 149 of the Constitution of Ukraine which establish the immunity of the President, People’s Deputies of Ukraine and also judges of the general and constitutional jurisdiction.    The subject of legal initiative wanted to ban the constitutional rule under which the people’s deputies cannot be brought to criminal liability, detained or arrested without the Supreme Rada of Ukraine’s consent (Article 80 of the Constitution of Ukraine.  ). The same draft law envisaged banning the Presidential immunity for the term of his presidency  (Article  105 of the Constitution of Ukraine) and the immunity of the judges    (Articles 126, 149 of the Constitution of Ukraine).    

Considering the draft law in the Chapter of the deputiesimmunity as to its conformity with Articles 15 and 158 of the Constitution of Ukraine, the Constitutional Court   the Constitutional Court referred to the provisions already in place.  Having revised the draft laws of the similar contents, the Court arrived at the conclusion that the banning of the deputies’ immunity is not contrary to the provisions of   Article157 of the Constitution of Ukraine Constitution of Ukraine. (Conclusion № 1-в/2000 of June 27, 2000; № 2-в/2008 of September 10, 2008; № 1-в/2010 of April 1, 2010).

The Constitutional Court of Ukraine considered separately the issue of the draft law proposal on eliminating  Article 105.1establishing Presidential immunity for his whole term of office with regards to its conformity with provisions of Articles 157 and 158 of the Constitution of Ukraine.  Earlier in its Conclusion № 1-в/2010 of April 1, 2010 the Constitutional Court ruled that elimination of the clause concerning Presidential immunity from the Article 105.1 can lead to the restriction of citizens’ rights and freedoms, guaranteed by the President.   The Constitutional Court arrived at the conclusion that there are no grounds for introducing changes into the current legal provisions. As far as the judges’ immunity goes   under Article 126 of the Fundamental Law the judge cannot be detained or arrested prior to criminal verdict without the Supreme Rada of Ukraine consent. Under Article 149 of the Constitution of Ukraine this provision also applies to the judges of the Constitutional Court of Ukraine.

Having revised the proposed changes to Articles 126 and 149 of the Constitution of Ukraine the Constitutional Court of Ukraine ruled that they are not aimed at liquidation of independence or breach of the territorial integrity of Ukraine. Therefore they are not contrary to Article 157.1 of the Constitution of Ukraine Constitution of Ukraine. Nevertheless, the Constitutional Court the Constitutional Court in its Decision of December 1, 2004 in the case on judges’ independence as legal component of their status stated that their personal immunity is a factor of their independence. I.e. establishment of immunity means ensuring appropriate conditions for the administration of justice. Constitutional guarantees of immunity are stipulated by justice professional requirements. Well-known international documents also point out the need to ensure the judges’ immunity. Namely, under pp. 1 and 2 of the “Basic Principles on the Independence of the Judiciary” (see Resolution 40/32 and 40/146 of the UN General Assembly of November 29 and December 13, 1985) the judiciary immunity should be guaranteed and stipulated by the fundamental law. Everyone shall respect the judges’ independence and adhere to it. 

Guarantees of the judges’ independence are also addressed by the “European Charter on the Status of Judges” of July 10, 1998, Recommendations of the Committee of Ministers of the European Council “Independence, efficiency and role of judges” № (94) 12, of October 13, 1994, Recommendations of the Committee of Ministers of the European Council concerning independence, efficiency and role of judges of November 17, 2010 № (2010) 12 etc. Being aware of these provisions, the Ukrainian state has no right to ban constitutional guarantees of justice in force, setting forth high requirements towards judges and their profession.    

The Court believes that the judges’ immunity should not be regarded as their personal privilege. This institution is aimed at administering objective and unbiased justice, protection of personal and civil rights and freedoms. The banning of the judges’ immunity could lead to significant restrictions of the court protection right, guaranteed by Article 55 of the Constitution of Ukraine. That’s why changes to Articles 126.1, 126.3 and 149 of the Constitution of Ukraine, proposed by the draft law, are contrary to the Constitution of Ukraine.

The Constitutional Court of Ukraine recognized that provisions of Articles 157 and 158 of the Constitution of Ukraine banning the people’s deputies’ immunity are constitutional. Meanwhile it stated that the wish of the subject of legal initiative to ban personal Presidential immunity and the immunity of all Ukrainian judges’ immunity does not meet the provisions of Article 157.1 of the Constitution of Ukraine.

Constitutional process in the operation of the Constitutional Assembly

 3 plenary meeting of the Constitutional Assembly of Ukraine  were scheduled to be held in September-December 2012. These meetings had to take place alongside with its Coordination Office meetings. Each of the 7 Assembly’s commissions had to hold their meetings once a month.  The Constitutional Assembly Regulations adopted on September 21, 2012, laid foundations for the Assembly’s operation. They sustain that the Constitutional Assembly shall be guided by the Ukrainian Law, as well as by generally recognized principles and norms of the international laws. In particular, it stressed the need to adhere to the principles of supremacy of law, collegiality, self-governance and transparency, openness and glasnost’, independence, professionalism and scientific approach.  

The Constitutional Assembly convened with the Head, deputy Head, secretary and over 90 members engaged as volunteers participating in its meeting. In order to devise recommendations on the amendments to the Constitution of Ukraine the Constitutional Assembly set up the Coordination Office composed of the Constitutional Assembly Head, his deputy, secretary heads of the commissions and executive bodies of the Assembly.

The Constitutional Assembly set up 7 commissions on the following issues: 1)constitutional order and procedure for introducing changes to the Constitution of Ukraine;  2) personal and civil rights, freedoms and duties;  3) realization of rule of the people; 4) state government organization; 5) justice; 6) law enforcement; 7) administrative and territorial division and local self-governance.

Assembly’s plenary meeting was considered valid if at least two thirds of the Constitutional Assembly members participated. Each of the Constitutional Assembly members voted in person; delegating of votes was prohibited. The Constitutional Assembly Decisions were approved at its plenary meetings by majority of votes in open ballot, apart from cases defined by the Regulations.  The adoption of the “Concept of introducing amendments to the Constitution of Ukraine” and of the proposals of specific changes to the Constitution of Ukraine had to result in submitting respective documents to the President of Ukraine. Summary decisions of the Assembly shall be passed by at least two thirds of all the votes.

Between the plenary meetings the Assembly members work in the commissions and other working bodies according to the schedule. Each of the commissions had the authority to set up task forces including its members with the goal of devising amendments to the Constitution of Ukraine.  The commissions’ meetings were deemed valid if not less than one half of their members attended. The Assembly meetings, commissions’ and other working bodies’ meetings were open and transparent.  This requirement was ensured by media representatives’ attendance, coverage of Assembly operation on the President’s of Ukraine site etc. 

Analytical reports (published on September21, 2012) and other materials (proposals submitted by the head of human rights commission V.Butkevich, papers of methodological seminar “Methodological aspects of the Constitution of Ukraine’s updating” of October 24, November 29, 2012 etc) were the outcomes of the Assembly’s operation[3].

Regulations of the constitutional order fundamental principles

In his report “Issues of constitutional system improvement in Ukraine: experience and perspectives” the head of the constitutional system commission professor O.Skrypnyuk stated that not all the constitutions have structurally separate institutions making up the “constitutional system”. Different fundamental laws have Chapters under different titles “Principles of constitutional system” (Armenia, Belarus’, Russia), “Fundamental provisions” (Estonia, Georgia, Azerbaijan), but all of them regulate what we call the principles of the constitutional order. 

Analysis of the Constitution of Ukraine of 1996 allows to conclude that its Chapter I “Fundamental principles” contains the basic provisions of the Constitution. In other words the constitutional operation foundations represent the set of principles, which have supreme legal force and significance in organizing the operation of the state and society as a whole.  They define the format and organizational structure of the Ukrainian state; guarantee human rights and freedoms, restrict state authority and guarantee the rule of the people. These principles are the norms of direct action; they underlie the life and operation of the whole Ukrainian society.

Meanwhile practical implementation of the Fundamental Law proves that the Constitution of Ukraine in its current format fails to serve as an efficient barrier in the destructive competition between the branches of power. The examples of the recent past testify to that. Current situation is possible due to the lack of precise definitions of social and economic basics of the Ukrainian society, which is also manifested in the normative essence of the “Fundamental principles”. From strictly legal point of view the regulations of the constitutional order   principles fall under six groups of norms:  1) norms characterizing the state as sovereign and independent; 2) those that reveal the contents of the state operation; 3) those related to civil society; 4) those that define the state power organization; 5) those that lay foundations for the foreign policy; 6) those designating state symbols.

Currently these norms are in need of amendment. The civil society, meanwhile, is not strong enough in Ukraine and, therefore, cannot guarantee the irreversibility of democratic changes. The task, therefore, lies in strengthening the democratic foundations and civil society, which should also safeguard and guarantee constitutional order in Ukraine. Presently, there are serious discrepancies between constitutional norms and post-totalitarian reality with regards to real and not formal functioning of democratic, social and legal Ukrainian state. 

Although democratic principle is fundamental for the Ukrainian constitutionalism, the civil society and public at large cannot control 1) state guarantees of personal and civil rights and freedoms; ; 2)people’s rule  in its completeness  3) democratic nature of Ukraine as a whole. The rule of the people implies not only legal appurtenance of power to the people, but also real exercising of authority in accordance with people’s will and interests. Obviously some essential components of people’s right to political representation are absent from current reality. Often reluctance and simple incapacity of people’s representatives to carry out legislative activity lead to the lack of laws, which would specify the “General provisions”.   

There is also the problem of adequate functioning of the lawful state in Ukraine, where the principle of supremacy of law yet needs to be established. The Ukrainian state fails in its obligations in the social area. That’s why, according to professor O.Skrypnyuk, the social area of the state’s operation needs constitutional strengthening, while efficient mechanisms for state accountability to its citizens need to be established.   

Real guarantees of personal and civil rights and freedoms remain crucial issues for the constitutional process in Ukraine. One of the basic principles of legal state is the system of well-developed individual rights and freedoms. Despite the long list of rights stipulated by the Constitution in force, the majority of them remain mere declarations, not supported by real legal relationships in the society.  The gist of the problem is not only  state’s failure to meet its constitutional obligations, but also lack of constitutional mechanisms providing citizens with efficient tools in protecting their constitutional rights. 

Priority state functions – administration of justice and law enforcement also are not fulfilled to full capacity. In particular, the mechanism of exercising and protecting human rights and freedoms, which would restrict the authority of state power institutes, is not yet set up unconstitutional level. Besides, the political climate in Ukraine is unfavorable for constructive dialogue and collaboration between various branches of power and, which is more crucial, between the state and the civil society. We are referring to the rule of people, political system of Ukraine and to the mechanism of checks and balances and its reflection in the Constitution of Ukraine. We need to revise the distribution of authority between the President, the Supreme Rada, and the Cabinet of Ministers of Ukraine, to reduce the concentration of power in the center, to ensure cooperation between the legislative and the executive branches of power and their complete accountability to the public.  

Another area of the constitutional amendments involves the court system improvement. Current law on court system and judges’ status, new Criminal and Procedural Code meet the European standards. However, the changes in the domain of public influence on justice (the jury institute, changes in the procedure for Higher Council of Justice formation etc) are still not sufficient.   

The issue of strict separation of competencies between the bodies of central power and local self-governments, development of local initiatives as such are still of crucial importance. Obviously, the introduction of the new model in self-governance should go hand in hand with administrative and territorial reform. 

Generally speaking, the updating of the constitutional order, adjustment of its basic principles becomes completely pointless without protection of the progressive changes achieved by Ukraine.  A natural constitutional order stipulates legal protection from numerous threats. Nevertheless the Constitution of Ukraine so far does not promote an institute for the protection of the constitutional order principles, while the provisions of Article 17 are too general. In fact, currently there are no efficient guarantees for the protection of the constitutional order principles in Ukraine.

Rule of the people in Ukraine

As stated by the head of commission on the implementation of the rule of the people professor A.Selivanov, the Constitution of Ukraine in force cannot be considered the final stop on the way towards real democracy (power of people) in Ukraine. The sovereignty of the Ukrainian people means that the people can amend constitutional order by way of referendum.  The foundations for the real exercising of democracy are laid by the constitutional principles: 1) only the society, the people define the essence of a state; 2) the main goal of the people’s power is ensuring individual and civil rights and freedoms. 

The analysis of the Ukrainian political and legal sources addressing the notion of “people’s power” allows us to arrive at the conclusion that natural and legal “the rule of the people” theory is based on recognizing human rights and freedoms as the embodiment of specific social and cultural values of the Ukrainian society.   

To understand the political supremacy of the people one should remember that the term “people” refers to a human entity endowed with body and soul, in the territory of the Ukrainian state. Hence natural rights of the people to govern it, constitutionally participate in the state affairs in various areas. First of all, we are talking about the sovereign right of the Ukrainian people to primary, constituent power. In this light the novel theories on sovereign rights of the Ukrainian regions, with their inherently autonomous and transcendental nature look rather dubious. 

Only the Ukrainian people  as one entity is a source of sovereign power, only the people is an integral social body, which represents the whole society. On the other hand, the unnatural representation of certain groups of population as independent political entities is the road to separatism, annihilation of the democratic values and achievements. That is why the Constitutional Assembly should take it for an axiom: the people have no claims to power, but are its immutable bearer with unlimited energy potential. 

The people are the source and bearer of the supreme authority, a sovereign without limitations. As such it is capable of exercising its will with regards to any governmental and non-governmental bodies and institutions. The Constitution only reflects (registers) this status of the people; it does not vest it with the authority. Lamentably, in practical operation the status of the Ukrainian people as the supreme political force is ignored. One of the reasons for that is the lack of legal definition for the “sovereignty of the people”.   The constitutional language specifying that “the people are the only bearer of sovereignty and the only source of power in Ukraine” has not yet found its adequate reflection in the law. Hence, it is regarded as a political and not legal provision.

Actual weakness of the democratic institutions, low level of independence among the majority of Ukrainian population  lead to the governmental suppression of people’s sovereignty by means of excessive regulation of social relations. In many instances the authorities practically disable public initiative. In fact the fragmented developments presented as public initiative are more often than not governmental initiatives. We observe this phenomenon every time when the state substitutes independent public actions with its own initiatives. Thus the state in fact ignores the constitutional order in its relations with people as the foundation of the political system. 

Currently the Ukrainian authorities have built a rigid vertical system, as confirmed by everyday political practice. The potential of people as the only source of power remains in this situation unclaimed even in the basic constitutional mechanisms. A powerful state-governed model model of ruling suppresses Ukrainian people’s sovereignty, thus excluding democracy from the defining characteristics of the Ukrainian state.

The recognition of individual and civil human rights in Ukraine guarantees political equality of the citizens and the state in the face of the law; in real life, however, we register a growing tendency of state apparatus supremacy both centrally and locally. It means rigid control of the bureaucratic class over the life and activities of the Ukrainian society, culturally pluralistic and diverse. Eventually the favorable conditions for autocracy, bureaucratic governance of people, and neglect of humanitarian principles reappear in Ukraine.

The people’s connection with the central authority and local self-governments becomes more and more immaterial, administrative only, which resulted in total loss of trust towards the state and its institutions among public at large. Besides, the Ukrainian legislator eventually removes legal barriers separating private and public areas of social life. The rule of the people for the umpteenth time is substituted by the power of bureaucratic apparatus; public officials promote their own interests at the expense of political freedoms and property rights of the Ukrainian people.   

Real politics disfigures constitutional norms of the Article 13.1, 13.3, 14.1, 16.1 of the Constitution of Ukraine, transforming them into mere declarations. The essence of the constituent power of the people is lost, while the state apparatus more and more often appropriates the prerogatives. The Constitution of Ukraine must establish and guarantee the sovereignty of people. The competencies of the institutions and officials of the governmental bodies and self-governments should be defined with this in mind. Nevertheless, specific legal language found in the Constitution of Ukraine currently in force promotes alienation of the real people’s interests from the Ukrainian officials’ intentions.   

Therefore, we should recognize the need for changes in the doctrinal approaches to defining the category of constitutional order in the focus of empowering the Ukrainian people in setting up of the political structure. The state’s attitude to the “rule of people” is already reflected in several Decisions of the Constitutional Court of Ukraine. E.g. in the Court’s Decision № 4-zp of  03.10.1997 one can read that the adoption of 1996 Constitution of Ukraine by the Supreme Rada is regarded as the act of people’s will, manifested only once.  

It is well-known that under Article 5 of the Fundamental law of the Ukr.SSR of 1978, the most significant political issues had to be addressed by nation-wide public hearing and referendum. Definitely, the developers of 1996 Constitution of Ukraine had no right to ignore this provision in their updating of the Fundamental law. The same procedure for public legitimizing of the Constitution was established by the conclusive provisions of the Constitutional agreement of June 8, 1995 which abolished referenda on any issue, with the exception of the adoption of the Constitution of Ukraine. In real life, however, these guarantees of the Constitution of Ukraine legitimacy were reduced to nil by the political leaders of Ukraine. The political elite postponed the implementation of the social ideals indefinitely, while the sovereignty of people remained only in the constitutional rhetoric.   

Therefore we established the fact of total absence of efficient legal mechanisms which should safeguard the Ukrainian people’s right to govern their own affairs. The state proved incapable of setting up a legal model for truly democratic governance.  No wonder the discussion on who is entitled to interpret the sovereign people’s will still goes on in Ukraine. That’s why the conceptual changes to the Constitution of Ukraine are imminent. The legislator should enable the people’s sovereignty to find adequate reflection in the constitutional order. In other words, Ukraine should treat updating of the Constitution of Ukraine as the modernization of the social agreement between the state and the political nation.

We can’t bear any longer the situation when in the economic relations between the state and the people f Ukraine property rights to natural resources of the country belong to the people (Article 13 of the Constitution of Ukraine), but are exercised by the bureaucrats.  Logically the Constitutional Court of Ukraine long ago should have filed public complaints with regards to the unconstitutionality of bureaucratic machinations with the objects of property right of the Ukrainian people.

The institute of people’s power is based on the concept of active society united by common political interests. It also applies to exercising power of people in the regions and the Autonomous republic of Crimea. The power of people is a component of natural constitutional order. it requires separation of local self-governance from the functions of the state, restriction of power prerogatives for the benefit of private citizens and civil society.   

The exercising of sovereignty by the Ukrainian people implies complete realization of its right to imperative manifestation of will, legislative activity. It applies to the Ukrainian politics as a whole, including the cultural and language policies. It implies the need for restricting state power in order to safeguard justice as the expression of the deepest spiritual aspirations of the people. The provisions of Article 1 of the Constitution of Ukraine and its introduction defining Ukrainian state as legal, social and democratic should be revised accordingly.  Ukraine can become such a state only in the future. Today it bears only isolated characteristics of legal, social and democratic country.

Whatever the case, the Constitution of Ukraine should reflect the normative model for real and not declarative people’s rule. Instead of general provisions, e.g. citizens have the right to participate in…; special mechanisms of public involvement in all the functions of all the branches of power should be implemented. The Constitution of Ukraine should include the list of issues which can be addressed by referendum only. Currently direct people’s rule is extremely limited. Into the bargain, the situation deteriorates due to official suspicions at both central and local levels towards the free expressions of public opinion, spontaneous initiatives. 

The court system also needs updating to enable citizens’ participation in the administration of justice. However, even if the judges of the first instance courts were elected by the people and the judges of the appellate courts – by local representative bodies, we would anyway lack guarantees of protection against excessive governmental interventions into the administration of justice.  That’s why it would be expedient to re-introduce the institute of the judges of peace, elected by local population and administering justice on truly democratic principles into the updated Constitution of Ukraine.  

Constitutional model of self-governance

Speaking at the Constitutional Assembly meeting on September 21, 2012 the head of the commission on self-governance, Chair of the state-building department of the National University “Yaroslav the Wise Legal academy of Ukraine” S.Seriogina stated that the development of Ukraine as a democratic and legal state is to a large extent defined by the efficiency of its local self-governance system.

Local self-governance is one of the democratic foundations of the constitutional system of Ukraine. That’s why the local self-governance reform is the issue of utmost significance and importance.

The modernization process means for the Ukrainian statehood proper balance between political centralization and decentralization. It requires the updating of municipal legal institutions, which implies decentralization of public authority, bringing it closer to the people, establishing better conditions for actual satisfaction of human needs.   

The local self-governance in Ukraine is also a form of territorial self-organization and independent operation, self-regulation and control. It reflects most completely the close connection between modernization of the statehood and progress in civil society. 

The analysis of the 1996 Constitution shows that local self-governance as the object of lawful, social and democratic, constitutional and legal regulation is one of the underlying principles in the Ukrainian constitutional order (Article 7); the form of real people’s rule (Article 5); the right of the territorial community to resolve the issue of local jurisdiction (Article 140); and an autonomous institution under the Constitution of Ukraine.

Although legal, organizational and material/financial foundations of local self-governance have been laid in the years of the Ukrainian independence, the municipal operation still is characterized by the permanent crisis. According to public surveys, traditionally negative public perception of the local self-governance so far remains unchanged. The local self-governance bodies are perceived by the public as lower echelons of the governmental and not self-governed authority, i.e. not as an embodiment of non-governmental interests of the Ukrainian citizens.

Currently an experiment on legislative “improvement” of local self-governance is going on in Ukraine. In fact, it is the incarnation of artificially cultivated state and not public administration. Despite a number of steps taken to improve local self-governance in Ukraine (e.g. “Program for governmental support and promotion of local self-governance in Ukraine”) (2001), “Concept for governmental regional policy” (2001), “Concept for the program of legislative support of local self-governance” (2002), “State strategy for regional development till the year 2015” etc), no real progress has been registered with respect to non-governmental (public) initiatives.

It means that the efficient system of local self-governance, financially separated from the state, is not yet in place in Ukraine.  The constitutional organizational model was not elaborated. The existing structure of local self-governance is regarded as transitory; it hinders not only the progress of the local self-governance, but the progress of the state as a whole. The local self-governance bodies and officials still are rigidly accountable to the state executive bodies. Incompetent separation of their functions on the constitutional and lower levels does not help either. The local self-governance is plagued by soviet-type state paternalism, i.e. the state is responsible for everything, thus leading to the rebirth of autocracy and    centralization. Meanwhile the municipal philosophy has not yet found its implementation in Ukraine.  Trying to separate local self-governance bodies and central power at the organizational level, the legislator got really entangled in its constitutional model. Under Article 7 of the Constitution of Ukraine local self-governance is a civil society – not a governmental – institution. In real life, however, the rule of people does not start where governmental competencies end. 

The local self-governance essence is that it is set up as a result of spontaneous initiative of civil society. No wonder it is the best indicator of the state of democracy in the country. The local self-governance authority is different from that of the state (political power). In fact it is public non-governmental authority for local issues, restricted by the law. The local self-governance independence manifests itself in its autonomous authority, separated from the state.

On the other hand, neither state, nor local self-governance objectively can be isolated from each other. Self-governance is a specific type of public authority, independent mode of social governance. Neither are they supposed to overlap. Performance of functions delegated by the state is only a part of local self-governance competence.

In Ukraine the legal definition of a local self-government as given in Article 140 of the Constitution of Ukraine should be harmonized with the provisions of Article 3 of the European Charter of Local Self-Government, under which the local self-governance is the right and the real capacity of the territorial community to govern the matters of local jurisdiction, either independently or through local self-governance bodies, within the framework defined by the national laws.  It is also noteworthy that the local self-governance bodies are not a part of the system of state executive bodies.

The local self-governance model envisages the existence of territorial communities capable of undertaking responsibility for resolving local issues.  It stipulates the presence of territorial communities not only in the villages and cities, but also in the territories where the community operates in a decentralized mode. The enlargement of municipalities which already proved efficient in the countries of the Western Europe is called for. In Sweden, in particular, the merging of municipalities occurred in 1952, while in 1977 their number decreased four times more.  In Germany after the enlargement of the municipalities an average local community consists of 19 thousand members. In Denmark 1365 municipalities merged into 275 united municipalities where communities count approximately 18 thousand members.  Belgium, respectively, reduced the number of its communes from   2669 to 589.

The amalgamated territorial communities also would be good for Ukraine. In this case the following provisions should be met: 1) the quality of social services must not deteriorate; 2) the territorial communities which have no common boundaries shall not be united; 3) the communities’ enlargement shall be preceded by precise defining of the municipal competencies.

First of all the constitutional status of the territorial community has to be revised. Specifically, the competencies of the community should be broadened to include the issues of law enforcement, public safety, social security, environmental protection, development of the educational system, public health.  Currently the Ukrainian citizens are separated from the local affairs and have no instruments to control municipal power. The low level of legal awareness of public also affects self-governance negatively.

It is high time to grant local self-governments the right of appeal to the Constitutional Court of Ukraine for verification of the constitutionality of the Laws of Ukraine, Presidential Acts, the Cabinet of Ministers of Ukraine, legal acts of the Autonomous Republic of Crimea, which restrict or violated the rights and interests of the territorial communities.

The Constitution in force rigidly regulates the local self-governments’ system, which leads to the weakening of the local initiative in the majority of cases. While current legislation allows local councils to determine independently the organizational scope of their operation, the bureaucratic tendency still seems to prevail.  In particular, the heads of oblast’s, Kyiv and Sebastopol cities’ and district councils, village, settlement and city councils are required to adhere to standard lists of staff members, approved by the addendum to the Cabinet of Ministers’ of Ukraine Resolution № 1349 of December 3, 1999.

The adoption of the 1996 Constitution failed to alleviate the confrontation between the local self-governance bodies and local state administrations; consequently the quality of administrative services remains low in Ukraine, causing destabilization of social, economical and political situation in Ukraine. It is fair to say that the current model of self-governance is absolutely incapable of ensuring sustainable conflict-free development of democracy at the local level. 

The improvement of administrative services’ quality requires higher level of glasnost’, openness and public feedback. That’s why it is high time to establish the rights of the local councils to determine independently their structure and system of their executive bodies, the size of staff and respective expenditures constitutionally.

The Constitution of Ukraine in force envisages the setting up of executive bodies at the basic level only. The rayon and oblast’ councils should set up executive apparatus headed by the chairman. In the meantime the differences between the executive apparatus and executive body remain undefined. E.g. if the executive apparatus is not an executive body, who is responsible for the implementation of rayon and oblast’ decisions?  Under Article 119 of the Constitution of Ukraine the local state administrations are only in charge of interaction with the local self-governance bodies and performance of delegated duties only.    

It is high time to introduce the full-fledged system of regional and rayon self-governance in Ukraine. Constitutionalization of the regional and rayon self-governance implies the recognition of the new self-governance subjects: territorial communities’ associations, territorial community in rayon and oblas’t. Granting oblas’t and rayon councils the right to set up its own executive bodies (departments, divisions etc.) is another requirement.

Innovations also call for revision of the constitutional state of the local state administrations. Their current over-centralized model only promotes bureaucracy and authoritarian governance. That’s why depriving local state administrations of their delegated self-governance authority is a necessary step. The transformation of the local state administrations from governing into control and monitoring bodies at the regional and rayon levels could become the pivotal change. To make it happen, Article 118 of the Constitution of Ukraine stipulating the right of the deputies to express non- confidence to the heads to the local state administrations, shall be respectively amended.    

Protection of human rights and freedoms

Proposals submitted by the head of the commission on human rights and freedoms professor V.Butkevich were not made public at the Constitutional Assembly meeting in September 2012. They were only submitted for the Secretariat and Coordination council consideration. Appreciating the importance of the issues addressed by professor V.Butkevich we offer the essence of his critical analysis below.

According to professor V.Butkevich, the discussion over constitutional rights and freedoms aimed at devising proposals for the Constitutional amendments as well as the analysis of the said proposals shall cover two areas:  1) evaluating the expediency (sufficient justification) of such amendments; and 2) defining conceptual, essential issues of rights and freedoms in need of updating.

As far as the expediency of the Constitution of Ukraine amendments are concerned, the facts and arguments confirm the necessity for such amendments. First, the language of numerous normative provisions of the Constitution of Ukraine does not reflect the essence and goal of its Chapters. Second, the Chapters which should address the guarantees for individual rights and freedoms or liability for their violations has either no relevant provisions at all, or mere declarations.  

Generally speaking, the complete language of the issues related to human rights and freedoms in the Fundamental Law needs revision, from Preamble to “Final provisions” in the focus of: 1) the goal of the human rights and freedoms; 2) their social, economical and political principles; 3) legal essence; 4) implementation mechanism; 5) safeguards of implementation and liability for failure to comply. The issues related to the goal must be addressed in the Preamble; the principles – in the Chapter dealing with the fundamental values; the meaning of the specific rights and freedoms in the constitutional code of rights, while implementation mechanisms and guarantees – in the Chapters dealing with the state and local self-governance authorities.

The international operation of Ukraine and its legal position with regards to the international law seriously affect the progress of the state and society as a whole. That is why it is not enough to rely only on constitutional provisions sustaining that the ratified international treaties are part of the national law of Ukraine, while its international operation is aimed at safeguarding national interests on the basis of universally recognized international legal norms.  

Ukraine ratified dozens of international treaties and agreements on human rights and freedoms completely disregarding the fact that their provisions are often conflicting (the state ends up in the situation when adhering to one convention means the breach of another). Besides, traditional Ukrainian caution with regards to human rights and freedoms’ conventions sometimes comes in contradiction with its main goal, i.e. the principle of supremacy of law. That’s why the Ukrainian position often remains unclear for its partners.   

The non-conformity of the Ukrainian constitutional law with the norms of the European convention of 1950 on the protection of human rights and fundamental freedoms is obvious. As a result, the European Court on human rights twice passed pilot decisions under which Ukraine was obliged to change its national legislation. If the situation does not change for the better, Ukraine might end up in the situation when its parliament will have to work systematically on achieving conformity with the European Court’s decisions, which can only be detrimental for the Ukrainian state prestige.   

Besides, although the 1996 Constitution is not human rights manual per se, its basic provisions in this area should be specified, “decoded”. It means that the terms like “legal state”, “legitimacy”, “principle of proportionality” “everyone has a right to housing” etc. should not just be there – positive commitments of the state guaranteeing the implementation of the said provisions should be added.   This requirement seems especially relevant in the area of social (economic) rights, as it remains, so far, the realm of constitutional illusions and unjustified promises.  

Summing up, 4 approaches can be identified in the problem dealing with human rights and freedoms. The Preamble shall offer only fundamental ideas, which permeate the whole text of the Constitution, and which are the basis for the majority of its provisions.   3 imperatives are worth mentioning here:  1) human dignity; 2) democracy and 3) supremacy of law. Further on, (in Preamble, Fundeamnetal principles, Chapter II, Final provisions) the correspondence of norms related to human rights and freedoms to each of the structural elements of the Fundamental Law should be ensured. It means that general declarations of intentions, goals and motives laid down in Preamble and “Fundamental principles”, shall not be transferred to the Chapter addressing specific rights and freedoms, while the Chapters dedicated to the mechanisms of exercising specific rights and freedoms and to competencies and accountability of the state authorities shall not duplicate Preamble provisions.

The classical triad people-individual-state, under which the state exists for the people, while the people defines mains tasks of the state for the benefit of individuals, should affect not only the general presentation of topics in the constitution, but also the language of its specific provisions, and their inter-relation. Currently the issue of precedence (i.e. who is the first, the second, and the third) in this triad is broadly discussed in Ukraine. The discussions are caused by the absence of precise definition in the Constitution of Ukraine.

The updated Fundamental Law, in particular, fails to answer the questions: 1) wheter it was adopted “on behalf of the Ukrainian people, or only “for the Ukrainian people; and 2) whether the Ukrainian state is a product of civil society or the embodiment of rigidly governmental ideological doctrine. Apparently only a constitution restricting state power for the benefit of civil society and guaranteeing respective rights and freedoms can be considered natural.

“General provisions” Chapter shall provide the definitions for the normative components underlying the whole text of the Constitution. Meanwhile, the Chapter II “Rights, freedoms and duties of the individual and citizen” is to be regarded as legal and not ideological Chapter. It shall contain 1) the list of the constitutional rights and freedoms 2) their essence and area of implementation; 3) requirements to the possible restrictions in their exercising. To achieve this goal the provisions of the current Constitution of Ukraine shall be compared against the models used by the European Convention of 1950 on the Protection of Human Rights and Fundamental Freedoms and The European Union Charter of Fundamental Rights 2000.

As to the mechanism for the exercising of human rights and freedoms, its components shall be clarified in the other Chapters of the Constitution of Ukraine. As is well-known, the current Constitution does not offer appropriate mechanisms at all. The updated Fundamental Law shall also look closely at the superficially synonymous terms, namely, the “Ukrainian people”, the “Ukrainian nation”, “the people”, “and Ukrainian citizens of all nationalities”. The excessive use of the adjective “Ukrainian”, though, makes one suspect that the legislator is trying to convince the others, while remaining unconvinced himself.    

The Preamble language “The Supreme Rada of Ukraine…is being aware of its responsibility to God, conscience…” seems quite vague. What is to be considered the Supreme Rada’s “conscience”? What has the order under which a Member of Parliament votes on behalf of a dozen absent members, or one person undertakes the role of conductor in parliamentary orchestra, to do with conscience? Apparently, it is easier for the politicians to be accountable to God and conscience than to its own people.  

Under the Constitution in force, the President of Ukraine shall “safeguard rights and freedoms of the citizens…for the benefit of all the compatriots”. In fact, however, he has to do the same for the foreigners and stateless persons, as under the law they enjoy the same rights and freedoms.  Therefore, the President must safeguard rights and freedoms not only of the citizens and not only for the benefit of all the compatriots. It is well-known that when a Ukrainian President phrased a resolution “to be resolved for the benefit of the Ukrainian citizens”, the European Court on Human Rights in Strasbourg classified it as violation of human rights, because the president within the terms of his jurisdiction has to protect the rights of all people.

The updated Constitution of Ukraine should envisage the liability for the authorities disregarding its provisions, as well as liability of the officials and public servants for the abuse of law. Political parties and the people’s deputies, in their turn, must be held accountable by the parliament not only for insult or slander (Article 80), but also for breach of their oath to “perform their duties for the benefit of all their compatriots” (Article 79).  It is common knowledge that presently the deputies have no scruples in breaking their oath by ignoring plenary meetings and work in the parliamentary committees.

Besides, someone has to be held accountable for the fact that 94% of state or local self-governments’ petitions requesting the banning of rallies and manifestation were satisfied by the Ukrainian courts, in violation of the Article 39 of the Constitution of Ukraine, which guarantees citizens’ right to peaceful gatherings. The Ukrainian courts brazenly violate this rule using the clause “restrictions leading to complete banning”, thus ignoring the classical principle of “proportionality” used in the systems of justice of the European Council members. While it is common knowledge that this principle is omitted in the Constitution of Ukraine, the fact that the European Court  constantly demands that Ukraine complies with it, is known only to the narrow circle of officials with access to confidential information.

Many violations of the constitutional rights and freedoms can be found also in the operation of the executive branch in Ukraine. Partially it is due to lack of efficient legal liability for the violation of human rights and freedoms. A bureaucrat or an official in Ukraine only declares his/her readiness to be held accountable. But when the real administrative liability is imminent he/she is infinitely upset. When the criminal charges loom, the bureaucrat quickly acquires foreign citizenship and seeks asylum abroad. Lamentably the Constitutional Court of Ukraine also shows no concern about potential individual petitions addressing the violations of rights and freedoms.    

Updating the Constitution of Ukraine the legislator should address the Preamble phrase “ensuring human rights and freedoms”, which entails no formal obligations. Further on the Constitution stresses that the Cabinet of Ministers of Ukraine “undertakes measures aimed at ensuring individual and civil rights and freedoms”  (Article 116 of the Constitution of Ukraine). But the Preamble provisions should be aimed at all the state bodies without exceptions. That is why the updated Fundamental Law shall establish specific guarantees for the protection of rights and freedoms, adequate legal forms and types of liabilities for the violations committed by any branch of the state power.  

Human dignity also cannot be reduced simply to the “decent living conditions”.  The human dignity concept should become a fundamental principle stated in the Preamble, which is called to safeguard not only political democracy, but also supremacy of law. The “General provisions” Chapter, in its turn, should focus on the logic of protection of the most important human interests. It is common knowledge that currently this Chapter is a mere declaration. The constitutional principles are hanging there like decorative umbrellas covering unattractive reality: single citizenship proclaimed by the Constitution is amended by factual dual citizenship; division of power into legislative, executive and judicial branches is successfully combined with excessively developed legislative competencies of the executive branch; the supremacy of law is understood, in the best case, as the supremacy of a legal norm; local self-governance  is guaranteed on paper only. Evidently, the Constitutional Assembly of Ukraine should put an end to the declarative statements on rights and freedoms, typical of Ukraine but not supported by any real means or resources. It is especially true of social-economic rights.   

Besides, the updated Constitution should introduce systemic approach to the articles addressing human rights and freedoms. Currently the mechanism of the constitutional regulation begins with the description of topical state issues, then moves to the issues of rights and freedoms, and, finally, gets back to the state, sometimes mentioning in passing human rights and freedoms. Auxiliary additional elements and components are to be found between these categories and terms. Naturally, some legal digressions are inalienable parts of the Constitution, but the logic of the constitutional discourse cannot be completely random.  

Embracing the dramatic changes occurring in the Ukrainian society, the Constitution of Ukraine shall take a firm stand with respect to equality principle (first of all, concerning existing disproportions in the incomes of “budget area” employees), and with respect to the principle of cultural, religious and language diversity (in particular, there have been attempts to eliminate Article 11 of the Constitution of Ukraine by the current law). Obviously, it is not enough to recognize Ukraine as a social state in order to resolve the underlying problems in the Ukrainian society.

The issues related to the protection of common workers’ interests are addressed in the Chapter I - “Fundamental principles” of the Constitution only indirectly, which is definitely not enough. The institution of public appeal to the Constitutional Court for the protection of the constitutional rights and freedoms is virtually non-existent. Although the members of public can approach the courts of general jurisdiction seeking formal-legal protection of their constitutional rights and freedoms, the constant courts’ refusals to consider such claims have become one of the characteristics of the Ukrainian justice. It is high time to enforce the judges’ and courts’ responsibility for their formal (“mechanical”) rejections. At the constitutional level the abuse of the law widely spread in Ukraine should be efficiently opposed.     

Chapter ІІ of the Constitution of Ukraine “human and civil rights, freedoms and obligations ” shall be logically harmonized with Chapter I “Fundamental principles”. E.g. the Chapter I provisions defining all the constitutional norms as the norms of direct action (Article 8) cannot be implemented in practical operation due to legal peculiarities of the Chapter II of the Fundamental Law. On the other hand, the social focus of rights and freedoms (Chapter ІІ of the Constitution) found no reflection in its “General Provisions”. It is also noteworthy that the realization of the majority of the Articles (35 out of 41) of the Chapter ІІ depend directly on “principles and order defined by the law”.  However, in this context the Articles lose their constitutionality de facto (as confirmed by practice). The general mention of their direct action is merely fictitious.  

The Constitution should use precise language of the international legal acts, under which Ukraine has undertaken respective obligations. Such approach would allow to get rid of a whole range of misunderstandings in the constitutional use of law. E.g. if Ukraine officially promised to ban any manifestations of discrimination, it should be reflected in its Fundamental Law. I.e. the banning of discrimination cannot be equalized with existing constitutional negation of possible priviledges or restrictions. (Article 24). Ukraine expressed its commitment to safeguarding freedom of thought, conscience and religion, which is not the same as “freedom of ideology and conscience” (Article 35). In its turn, “freedom of expressing one’s opinion” cannot be equalized with “freedom of thought and speech” (Article 34), as these articles address the issues, essentially different in their legal connotation. 

Ukraine has to coordinate the Constitution in force with its international obligations and commitments. The consequences of Ukraine’s joining international organizations, which use different guidelines in their operation, should also be taken into account. Thus, under the European Convention for Protection of Human Rights and Fundamental Freedoms (1950) Ukraine is committed to meet the requirements which are not directly stipulated by its Fundamental Law. Currently the Constitution of Ukraine does not contain a provision banning discrimination on the religious basis (in Ukraine this notion is referred to as “religious convictions”); national origins (the Constitution refers only to the “ethnic” origin); various types of birth (with respect to the rights of persons conceived in vitro or born from the surrogate mothers).

Even more discrepancies can be found between the Constitution of Ukraine and the European Union Charter of Fundamental Rights (2000). E.g. the Constitution of Ukraine bans discrimination on the grounds of political or other convictions, while the Charter treats “convictions” and “opinions” as two different manifestations of legal discrimination. The Constitution, as opposed to the Charter, does not contain banning of discrimination based on genetic characteristics, belonging to national minority, origins, limited capacity to work, age and sexual orientation. The claims that constitutional formula “based on other characteristics” covers the whole range of aforementioned characteristics are groundless, as not a single court in Ukraine would classify sexual orientation as “other characteristics”. 

The majority of social/economical rights are only declared in the Constitution of Ukraine which makes the Fundamental Law inefficient and vulnerable for criticism. It looks like here a conceptually new approach is also called for. Taking into account the fact that Ukraine already is or intends to become a party to a number of charters, codes and conventions of the European Council, the Chapter II of the Constitution should reflect the social and economic rights which are universally accepted by e.g. the European Council Charter of fundamental rights (2000).

The issues of state discretion in applying the restrictions in the exercising of individual constitutional rights are unjustifiably simplified. Thus, the European Convention for Protection of Human Rights and Fundamental Freedoms (1950) provides for the governmental intervention into the exercising of the right to immunity of the dwelling only for specified purposes, in compliance with the law and only when this intervention is necessary in a democratic society. The Constitution of Ukraine, on the other hand, is vague with respect to the goal of intervention.  Obviously such phrases as “saving of individuals’ property or life, need of persecution” etc. cannot be regarded as the definition of a “goal”. The Fundamental Law remains completely silent on the issue of democratic society as a factor in applying the law.  No wonder that the majority of the breaches of the right to the immunity of the dwelling in Ukraine, considered by the European Court, were committed “in line with the law’.  

The constitutional rights and freedoms in Ukraine are restricted in conformity with the model “rights and freedoms are exercised freely, with the exception of restrictions, stipulated by the law”. So, the restrictions are stipulated without any prior identification of the areas where they can be applied. Evidently, in this situation the constitutional restrictions can become unlimited.

Over the period of time which elapsed after the Constitution of Ukraine was adopted in 1996, many countries have introduced new individual and civil rights and freedoms. Specifically, the rights of elderly people, the rights of the disabled, the rights with respect to social rehabilitation, individual rights of access to official information and participation in public life etc. were added. All these and some other rights shall be analyzed in the focus of their potential inclusion into the Constitution of Ukraine.  The ban against violations of the Fundamental Law norms, interpretation of the Constitution in the restrictive mode, human and body organs traffic, children’s labor is also worth considering.   

Other constitutional Chapters should include specific obligations of the state power bodies and local self-governments in the realization of the proclaimed rights and freedoms: setting up of specific realization mechanisms, guarantees and procedures for the restitution of the violated rights. Currently the Constitution of Ukraine contains only general provisions, e.g. “The Supreme Rada of Ukraine defines human rights and freedoms and their guarantees; The President of Ukraine is the guarant of the rights and freedoms; the Cabinet of Ministers takes measures for ensuring human rights and freedoms …”

According to the Fundamental Law, the rights and freedoms are not a compulsory area of operation for the local self-governance bodies. Meanwhile the Congress of local and regional aurhtorities of the Council of Europe recognizes the issues of democracy and human rights and freedoms as fundamental.

Unfortunately, the Constitutional Court of Ukraine so far remains indifferent to the issues of human rights’ and freedoms’ protection. Obviously, no national constitution can be interpreted as a universal code of rights and guarantees of adherence to them. Nevertheless the authority of the state bodies combined with their responsibility should become in Ukraine the subject of constitutional control and supervision.   

Updating the referendum legislation

As was mentioned above, on November 6, 2012 the Supreme Rada of Ukraine passed a Law “On all-Ukrainian Referendum”. The new law invalidated the former Law of Ukraine “On all-Ukrainian and Local Referenda” of 1991, passed before the 1996 Constitution of Ukraine and contrary to some of its provisions. 

Under the new law, both adoption of completely new version of the Constitution of Ukraine and essential amendments to the current Fundamental Law can become the referendum subject. Referendum also has the power to cancel, seek invalidation or invalidate the law on amendments to the Constitution of Ukraine. The regular laws of Ukraine can be passed or rejected; amendments to the laws can be introduced (with the exception of budget, taxation and amnesty laws) by the same procedure. The law allows resolving any issues through all-Ukrainian referendum, with exception of those which cannot be brought to referendum under the Constitution of Ukraine.  

All these factors beyond any doubt provide additional incentives for the operation of the Constitutional Assembly of Ukraine. The more radical are the changes introduced to the Fundamental Law in force, the lesser is their potential dependence on the Supreme Rada of Ukraine. If the Constitutional Assembly of Ukraine will come up with the completely new Fundamental Law, it can be passed without people’s deputies of Ukraine participation, i.e. exclusively on public initiative.

Besides, a referendum has authority of banning any constitutional amendments introduced by the parliament earlier (with the exception of procedurally correct amendments to the Chapters І, ІІІ, ХІІІ of the Constitution which envisage the use of referendum in the automatic mode).

It is clear that different political forces will perceive (and already perceive) the Law “On all-Ukrainian Referendum” in different ways. However, being aware of the fact that convocation of the Constitutional Assembly of Ukraine was called for by chronic parliamentary incapacity, the use of referendum as means of overcoming parliamentary failures looks expedient.  If parliamentarism in Ukraine is really terminally ill, only the people can perform the functions of a surgeon.

Besides, the passing of the Law “On all-Ukrainian Referendum” gives real meaning to Article 5 of the Constitution of Ukraine concerning the sovereignty of the Ukrainian people. As reads part 3 of this Article, “The right to determine and change the constitutional order in Ukraine belongs only to the people and may not be usurped by the state, its bodies or its officials.Precise legal interpretation of this norm means that all the norms of the Fundamental Law which determine or change the constitutional order in Ukraine, shall be changed by way of referendum (alongside with provisions of Chapter ХІІІ of the Constitution of Ukraine).

In other words, the Law “On all-Ukrainian Referendum” in theory allows to abolish the changes to the Fundamental Law introduced by the Supreme Rada but failing to meet fundamental interests of the Ukrainian people. This law is a kind of moderate equivalent of “right of people to democratic uprising” present in Euro-Atlantic constitutionalism.

The critics of the new Law insist that this normative act practically deprived Ukrainian citizens of the right to participate in the local referenda. Here is what we respond to that: first, Chapter ІІІ of the Constitution in force does not stipulate an institution of local referendum (this type of referendum is envisaged only by Article 38 and 138 of the Constitution of Ukraine with respect to the Autonomous Republic of Crimea), so there is no direct unconstitutionality in this law; second, the newly passed law does not forbid the Supreme Rada to pass another – separate – law on local referenda.  This last argument is even more substantial in the light of the Ukrainian law provisions concerning direct expression of people-‘s will at the local level.

The passing of the Law “On all-Ukrainian Referendum”, considered “outlandish” by some, caused most vivid discussion among legal community in Ukraine.[4] In particular, public activists and lawyers I.Koliushko and Yu.Kirichenko accused the Supreme Rada of Ukraine of unconstitutional rejection of its own prerogatives. The authors of publication claim that it is not about the parliament’s stand per se, but about the desire of the parliamentary majority to acquire a priori control over the constitutional process. 

The following can be said in this respect. First, as stated earlier the process of introducing appropriate changes into the Constitution of Ukraine is not limited to provisions of Chapter XIII.  This process is also governed by the provisions of Article 5 of the Fundamental Law, which for a prolonged period of time had no substantiation in the current legislation. If the contents of this Article are interpreted precisely in accordance with the stated goal, then all laws addressing the constitutional order in Ukraine should be passed not by the Supreme Rada, but by the Ukrainian people only.  E.g. that is how the form of governance in Ukraine should have been decided upon in 2004.

Second, the new Law “On all-Ukrainian Referendum” gives a real meaning to the concept of guarantees against potential usurping of people’s sovereignty by the state. Clearly, not only legislative, but also executive and judicial branches of power, not to mention the President, can pose as “state usurpers”. That is why the constitutional referendum can be the only legitimate and legal means of counteracting the state complot against inalienable rights, freedoms and interests of the Ukrainian citizens.

Obviously, organizing a referendum on public initiative without official support will be no easy task in Ukraine. However, as J.Talmon put it, starting with the year 1789, “it is not the kings’ despotism, but unlimited parliamentary majority, totalitarian democracy that present real threat for the political freedom of the people”.[5] Besides, according to T. Jefferson, even more knowledgeable in democracy-related issues, the people is the only political subject that cannot be corrupted. It seems relevant here to quote W. Chamberlin who sustains that the interests of the Ukrainian people practically at all times of its existence have been betrayed by its own leaders.[6]

According to A. Kwasniewski, the Supreme Rada of Ukraine of the 6th convocation was the richest parliament in Europe as to the wealth of its members. Meanwhile, as to income per capita Ukraine ranked 39th (out of 40) in Europe…”[7]

Third, the very operation of the Supreme Rada of Ukraine of the 6th convocation allows to determine deep crisis (if not death) of Ukrainian parliamentarism as such. If, for example,  the foundations of the language policy for 45 million-strong population of Ukraine could be set up by approximately 80 people’s deputies with someone else’s mandates, led by M.Chechetov, who can stop another leader from orchestrating the voting on broadening, continuing or banning someone’s rights or competencies?  

Fourth, the opponents to the Law “On all-Ukrainian Referendum” presume political infantilism of the Ukrainian people. Beyond any doubt, people as well as parliaments can commit fatal political mistakes. But nothing insures better from further political failures than one’s own experience.  Written with the best of intentions the “Constitution of Europe” was annihilated by the average French and Dutch citizens. The people were not convinced by the document prepared by professional politicians.

In any case the crucial issue for Ukraine today is not the adoption procedure, but the essence and quality of the constitutional amendments. So far professional analytical and synthetic research with respect to the constitutional changes is open and transparent. And it is up to the Ukrainian people only to give an answer to the question whether they are ready to protect and restitute their rights and interests directly. The best obvious solution would be a specialized body, elected by the people with the aim of adopting the draft (or the amended version) of the Constitution of Ukraine – “The Constitutional   Assembly”, “Constituanta” etc.

As to the elementary comparison of the political opportunities of the Supreme Rada and the Ukrainian people, the people’s deputies’ reputation is totally noncompetitive. And does the passing of marginally liberal law on referendum not testify to irresponsibility of our parliament?   

[1] Prepared by V.Rechitsky, constitutional expert of KhHRG, UGUHR in the Constitutional Assembly of Ukraine

[2] See commentary to 2 decisions. V.Rechitsky. The constitutional process in Ukraine: 2011 – early 2012. Current tendencies and summary.  // Human rights in Ukraine 2011. HR organizations’ report – Kharkiv, Human rights 2012. –pp. 22-28.

[3] The compilation of reports edited by V.Rechitsky is given below 

[4] See e.g.: Koliushko I., Kirichenko Yu. Parliament approved unconstitutional order of amending the Constitution of Ukraine, Legal bulletin of Ukraine, № 46(907), November 17-23, 2012.

[5] Talmon J. Political Messianism. – London: Secker and Warburg, 1960. – P. 318.

[6] Chamberlin W. The Ukraine. A Submerged Nation. – N.-Y.: The Macmillan Company, 1944. – P. 6-7.

[7] See on-line resource: www.epravda.com.ua/news/2010/10/18/252448/

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