Human Rights in Ukraine - 2005: Civic Assessment of State Policy on Human Rights

CIVIC ASSESSMENT OF STATE POLICY ON HUMAN RIGHTS

General Overview[1]

At the beginning of 2005 a fundamentally new situation had emerged in Ukraine. The people, in open confrontation with the regime had, through peaceful non-violent means, asserted their choice. At the same time it was clear that the democratically elected President, Viktor Yushchenko, and his team had inherited a heavy burden of systematic and mass-scale violations of human rights, an immoral system of social relations, a country split between white and blue’ and ‘orange’ regions, a corrupt and out of control State apparatus, plundered State revenue, as well as a lack of democratic mechanisms for the functioning of power.   On the other hand, the public’s expectations regarding swift reforms and an improvement in the standard of living were clearly unrealistic. Exceptional steps were needed to achieve the anticipated breakthrough – the achievement of healthier social relations.

Back on 22 January the members of the All-Ukrainian Association of Human Rights Organizations “Ukrainian Helsinki Human Rights Union” congratulated the President upon his assumption of office and suggested a number of specific steps aimed at affirming and implementing human rights and fundamental freedoms. We proposed that a review be launched of the ‘constitutional reform’[2]; that a system allowing for individual constitutional submissions[3]  be introduced; that new draft laws for the Criminal Procedure and Penal Codes be drawn up and that new legislation on information technology be introduced.  We called for legislative mechanisms to be brought in which would finally make the judiciary independent and strong, which would create institutional mechanisms of public control, parliamentary and non-parliamentary and would initiate a reform of local self-government. We also suggested that a system of public service television and radio broadcasting be created.

At the same time we understood that new laws alone would not work if  the rotten semi-feudal social system remained intact, with only proximity to those in power guaranteeing privileges and benefits, and where as a result of fiscal pressure no one could work without stealing, this making each person vulnerable against the full power of the State. Convinced that it was specifically morally degeneration that had become one of the main causes of the social crisis which had led to the Orange Revolution, we also spoke of vital steps aimed at restoration, at abolishing the immoral system of social relations which had become entrenched under Kuchma’s regime, but which had originated in the communist era. We called for the immediate launching of an investigation into violations of human rights which had taken place in the place, especially those involving persecution of journalists, disappearances and political murders; repressions against individuals in connection with their political views or civic activity; the vote-rigging during the Presidential elections of 2004. We insisted that the results of such investigations be made public and that justice be restored as far as victims of such repression were concerned.  The steps we proposed also included the following: making access immediately available to illegally classified legal acts of the President of Ukraine, the Cabinet of Ministers of Ukraine, the Prosecutor General and other executive agencies which were concealed under the illegal stamps “Not to be printed”, “Not to be published” and “For official use only” (OU); ensuring separation of business interests and the regime; putting an end to the shameful practice of mass surveillance, in particular, wiretapping and interception of other means of communication;  beginning the process of restructuring and reforming the State apparatus, in particular, law enforcement agencies; creating mechanisms for real public control over the activity of Ukrainian law enforcement agencies and public monitoring of penal institutions. The plan we proposed for rooting out the communist legacy in society was given the name “dekuchmization”.

We are, with the deepest regret, forced to acknowledge that up to now this process of “dekuchmization” has not taken place.  The Orange Revolution has thus far not received a new impulse.  We would note that the term revolution in fact is possible only where revolutionary changes have continued. Revolution, according to Hannah Arendt[4], involves a change in the  political elite, the appearance of new leaders and an increase in the access of the people to power. Here, new leaders have not emerged, the elite has remained intact and access to power of the people has, on the contrary, decreased with the coming into force of the amendments to the Constitution on 1 January 2006 and the appointment of state and local deputies exclusively on the basis of party lists., The Gongadze case remains open since neither those who ordered or those who organized the journalist’s murder have been charged and brought to justice.  There has still been no formal authentication of the Melnychenko tapes which could provide vital evidence in the cases of Gongadze and Yelyashkevych[5], as well as in many other cases which made the headlines under Kuchma.  There have been no criminal investigations into the poisoning of Yushchenko; into the beating up of Yushchenko supporters by the ‘Berkut’ (special police unit) near the Central Election Commission (CEC) on the night of 23 October 2004 despite the fact that the entire attack was recorded on video; into the unauthorised breaking in to the server of the CEC and the irregularities during the vote count on 21 November, nor into the other serious accusations of vote-rigging during the elections. Repeated promises to bring such charges against several members of the CEC have not been kept. Those who have been charged and convicted have largely been people who carried out illegal orders, and not those who organized the mass-scale rigging, instigated violence or bribed voters. In the much-publicised Memorandum signed by Yushchenko, Yanukovych and Yekhanurov[6], an amnesty is spoken of for those who committed offences under Articles 157 and 158 of the Criminal Code[7]. We would note that the amnesty may only be applied in relation to those who have already been convicted of or charged with committing the crimes. The vast majority of organizers of the machinations remain unpunished.  Such impunity provides a carte blanche for future infringements of human rights.

All branches of power are guilty of infringements of the principles of the rule of law, favouring political expediency instead. Statutes of the Constitution have been violated on many occasions yet Ukrainian politicians seem to find nothing reprehensible in this.  Political life has become much more transparent, and specifically this openness has highlighted the naivety and lack of professionalism of the Ukrainian political stratum.  In fact, however, the transparency is extremely limited The Prosecutor General continues to neither publish its normative rulings nor register them with the Ministry of Justice.: It is extremely disappointing that the promise to disclose normative legal acts with the illegal stamps limiting access to information “Not to be printed” and “Not to be published” which previously served to conceal behind-the-scenes political deals, corruption and perks for high State officials has not been kept. Normative acts hiding behind such stamps from Kuchma’s regime could tell us a great deal about corruption in the highest echelons of power.  The mass media have reported that it was precisely by means of such stamps that the salaries of ministers, the President, other high-ranking officials and State Deputies (MPs) were substantially increased.  What can this be called but an example of Kuchmism and a vestige of Soviet thinking?  This demonstrates that fighting corruption has not become a priority for the ‘Orange’ regime.  There has also been no success in separating politics and business.  On the contrary, mutual accusations of corruption split the once united team and led to a political crisis, a loss of confidence among voters and unclear prospects for the future.

  During the first half of 2005 one could often see the open disregard of the executive branch of power for the right to private ownership which only exacerbated the distrust towards the State both on the part of Ukrainians, and from the international community.  Statements issued by high-ranking State figures about returning property into State hands, without the appropriate court rulings having come into force were manifestly inadequate and illegal, still more so the disclosure of lists of enterprises due for re-privatisation, which ran counter to the presumption of innocence.

There were even worse infringements of freedom of assembly than in 2004. Flagrant violations were perpetrated by the authorities in the capital, Kyiv.  Raids on a tent city, administrative detentions of civic activists were not confined only to programs chronicling the illegal actions of the old regime, but actually took place in Kyiv in May 2005.  One could provide many more such regrettable examples.

  The picture painted here may appear somewhat gloomy. However an important factor was the absence of the previous pressure of the regime on society. There was a sense in the country that it had become much easier ‘to breathe’. The atmosphere in society changed significantly with many people losing their fear of the authorities. There was a revolution after all – in the minds of many Ukrainians. Tens of thousands of people were prepared to defend their rights with the number of complaints about the illegal activities or omissions of the State authorities and of bodies of local self-administration rising sharply. The latter, for their part, began attempting to develop channels for working with the public and taking their demands into account. Moreover, a comparison of the situation with human rights in 2005 with that under Kuchma shows certain progress.  We can demonstrate this by providing an analysis of the development in 2005 of those trends considered in Human Rights in Ukraine – 2004, which reflected the ever worsening violations of human rights and fundamental freedoms during the 10-year period of Kuchma’s regime. (A comparative table on the state of implementation of recommendations made as part of that Report is given below).

1.  The Administrative pressure from the State which had significantly limited the freedom of the individual eased. Whereas previously only businesses supporting the regime had a chance of existing, such close ties ceased to be required. Nonetheless, connections with those in power remained a mechanism for protecting ones own business. At the same time the fiscal policy of the State did not change. The tax police, as one of the main violators of human rights and the symbol of political persecution in the past, should have ceased to exist, as was promised by many high-ranking officials, yet they continue to carry out a wide range of activities, including investigative operations which often lead to unwarranted interference in people’s private life and limit other freedoms in the country.  We still largely have the old State apparatus which became corrupt and out of control under Kuchma and which is accustomed to working mainly to rules of play involving corruption. The risk therefore that this trend will increase remains. The main tasks here are fundamental reforms in the economy and state management aimed at leading to a reduction of the shadow economy and real achievements in the fight against corruption.  Either real reforms must be carried out, or all will become as before.

2.  The rise in poverty and social inequality was stemmed. However the standard of living for a large percentage of the population remained low. Kuchma’s regime left in its wake a huge divide between a vast numbers of poor and tiny percentage of rich people. The pitiful income of a part of the population, together with the lack of reform of the medical service, is creating a threat to the right to life.  The fact that a considerable number of Ukrainians are still living in yesterday’s world, with another part already  in the future is creating a major challenge for the state.  Fighting poverty has become one of the main priorities of the State. For the first time the minimum pension equalled the minimum cost of living for those not working, with this increase being especially felt in rural areas. Social security payments also rose. It is a shame that the rise in prices as a result of largely artificially induced inflation has partially eaten away at this increase. The position of a significant part of the population remains in this sense unstable, all the more so since they are threatened with substantial rises in rent and communal charges being planned by the local authorities. These plans should be taken into consideration and not overtake the level of income of the majority of the population. In general the success pf the state in combating poverty is directly linked with moves made in fighting the shadow economy.

3.  The crushing of political opponents and use of law enforcement agencies as weapons in political battle have ceased, it is to be hoped for good. A detailed consideration of this issue is provided in the article by Oleksandr Kostenko “Can fair punishment of a criminal be considered political repression?” (see below).  The cries of ‘political persecution’ which are heard from those formerly holding the reigns of power are pure demagogy. Victims of political repression do not speak on central television channels, nor do they create new parties and start their own newspapers. On the contrary, real political competition has emerged where political forces are no longer frightened that they will be crushed by the full weight of the State apparatus. This was particularly demonstrated by the parliamentary elections in March 2006.

4.  The brutality of criminal and legal policy remains a serious problem. There have still been no initiatives for the systematic reform of law enforcement agencies.  Staff changes have not been able to democratise these given the lack of changes in function and powers of the Ministry of Internal Affairs, Security Service of Ukraine (SBU) and the Prosecutor’s office. Unfortunately such ‘shake-ups’ led to cases where the new regime appointed to responsible positions individuals who had taken part throughout 2004 in persecution of representatives of the opposition.  The Committee of the Verkhovna Rada on issues of legislative backup for the law enforcement agencies continued to stubbornly ‘push’ a draft of a Criminal Procedure Code built around a base model of Soviet inquisition-style criminal legal proceedings, despite the fact that the draft had been severely criticized by human rights organizations and had received a negative evaluation from the Council of Europe.  The latest attempt was in March 2006. Detention without court sanctions which according to the Constitution should be used only in exceptional circumstances is widespread. In fact it is detention with a court warrant that is rather the exception. Law enforcement agencies still widely apply remand in custody as a preventive measure. Human rights organizations continue to receive complaints alleging torture and ill-treatment during the criminal inquiry stage (before charges have been laid) and pre-trial investigation. Effective measures for countering the use of torture by the police have still to be introduced.  Complaints about the actions of law enforcement agencies are as a rule given cursory review or are considered in a biased fashion.  It is a telling sign that the largest numbers of complaints from individuals reaching the Ukrainian Ministry of Internal Affairs are related to actions of agencies of the MIA and significantly outweigh the number of complaints about crimes. There were virtually no improvements in the penal system, prosecutor’s office and SBU. 

It should be noted that the MIA has become more open and is cooperating more with human rights organizations. Major joint studies have been carried out into violence committed by individuals in the MIA, in particular, the use of torture. Representatives of human rights organizations have been invited to joint inspections of district police units together with lecturers of institutes of the MIA system and officers of the Department for Internal Security of the MIA. This experiment, launched at the beginning of 2005 in three regions – Kharkiv, Sumy and Poltava regions –proved extremely valuable and was extended to cover the whole country. At the beginning of 2006 a Public Council for the Observance of Human Rights began work under the umbrella of the Ministry of Internal Affairs.

It only became possible to talk of any real reform to the system of criminal justice and law enforcement agencies at the end of 2005. At first, under the auspices of the Council of National Security and Defence the relevant commission was set up, but this in fact did not prepare anything. Then later the reforms began being drawn up by the National Commission for the Strengthening of Democracy and the Rule of Law which was created by the President in August 2005 but which really only began working in December. Within the Commission a working group was created which is responsible for drawing up a Strategy for reforming the system of both criminal justice and law enforcement agencies however the work on its creation has still not been completed. Clearly such a task should have been commenced at the beginning of 2005.

5.  The independence and proper functioning of the court system, and respect for the rule of law as a whole, also remain serious areas of concern.  The number of incidents involving direct pressure on the courts was much lower than during Kuchma’s time, however there remained a lack of understanding of the importance of an independent judiciary, and financing for the courts was still inadequate.  Although the money allocated increased to 0.27% of GNP in comparison with 0.2% in 2004, this was sufficient to cover a mere 42 percent of actual needs. One can only welcome the decision to triple judges’ salaries in the future, but it is vital to properly finance other court needs as well, while at the same time limiting the source of such financing to State revenue alone, and abolishing financing from local budgets and so called “sponsors”.  The involvement of sponsors in financing the courts, initiated by former Prime Minister, Yulia Tymoshenko, vividly demonstrates the lack of conceptual understanding of the mechanisms by which the judiciary functions and of respect for the court as an independent and fully-fledged branch of power. Financing of the courts, just as under Kuchma’s regime, is so entirely under the control of the executive that the principle of the division of powers is seriously violated.

It was only in December 2005 that once again the National Commission for the Strengthening of Democracy and the Rule of Law prepared a Strategy for improving the court system in order to ensure fair trial in Ukraine in conformity with European standards.[8]  The Concept was given a positive assessment by the experts of the Council of Europe Venice Commission, and was later adopted by the President through the adoption of an Action Plan for 2006 on reforming the court system on the basis of the Strategy.  The Strategy is in the first instance aimed at improving the system of courts; reforming the system for selecting and providing professional development for judges; changing the system of disciplinary liability, as well as increasing the role of self-government of judges and reducing the administrative role of the chairperson of the court,  The Strategy deals separately with the issue of court financing. All criticism of this Strategy is effectively only heard from those who are defending their own corporate interests and are not interested in real reform.  In our opinion, the given Strategy on condition that it receives parliamentary support could significantly strengthen court defence of violated rights, and the results of its implementation may be felt by the end of 2006.

  An unquestionably positive step was the entering into force on 1 September of the Civil Procedure Code and the Code of Administrative Justice. The next step to follow was the creation of administrative courts. The intention to gradually liquidate military courts is also to be welcomed. However in general court reform is being stalled due to the lack of clarity as to the status of the Prosecutor’s office. What is more, the amendments to the Constitution, passed on 8 December 2004, return to the offices of the Prosecutor the old Soviet general surveillance functions which runs totally counter to the creation of a strong and independent judiciary. This is a massive step backwards as far as reforming the Prosecutor’s office and bringing it into line with European standards is concerned, as well as being a breach of Ukraine’s commitments made on joining the Council of Europe back in 1995.

  In general everything related to the ‘constitutional reform’ provides a graphic example of total disrespect for the Constitution and for the principle of the rule of law. The procedure for introducing changes to the Constitution has been infringed on many occasions. It would appear that none of our Ukrainian politicians is bothered by the fact that the ‘reform’ creates an illogical competition between the top State posts of President and Prime Minister within the framework of one – executive – branch of power. It also effectively shatters the integral unity of Ukraine’s foreign and domestic policy, encroaches upon the principle of joint responsibility of the Cabinet of Ministers, and makes primitive nonsense of the principle of division of power.  The ‘reform’ introduces principles of the worst political collectivism, transforms State Deputies of the Verkhovna Rada into voting machines, entirely dependent on the will of party bosses and leaders of factions, clearly increases the risk of confrontation between parliament and President and radically increases the direct organizational dependence of parliament on the will of the President.  Lacking the will to raise the level of their own political culture to the demands at least of the current Constitution, the present political elite are stubbornly attempting to lower the level of constitutional regulation to their confused and short-sighted pseudo-democratic concepts, yet again demonstrating a preference for short-term political expediency over respect for the rule of law. Its introduction led to an increase in the already considerable corporativism in the political system of Ukraine.

6. Surveillance by State enforcement agencies over citizens was in general on a smaller scale, yet it still remained substantial. Whereas in 2002 40 000 sanctions for intercepting information from communications channels were issued, in the first 9 months of 2005 the figure was around 11 000. These unofficial statistics were confirmed on 8 October by the then Prosecutor General of Ukraine, Sviatoslav Piskun in an interview given to the newspaper ‘Komsomolska Pravda v Ukraini’. He added that the material received had only been used in 40 cases, while in other countries the number of warrants issued is much smaller.  For example, in the USA the figure is four times smaller. Furthermore, there were numerous statements made by State figures suggesting that they had been under surveillance and that their conversations had been bugged. It is not known whether such tapping was carried out with a court sanction. In fact it became know that in the first half of 2005 the SSU carried out illegal tapping of telephone conversations of high-ranking officials, for example, the then Minister of Justice, Roman Zvarych.  It should be mentioned that this issue was a constant focus of attention of the President who stressed on many occasions the inadmissibility of unlawful surveillance, and who signed Decree No. 1556 on 7 November concerning measures aimed at preventing this. However, in our view, the enforcement agencies are not in a hurry to support the President. Quite on the contrary, there have been no other initiatives which would make the activities of law enforcement agencies accountable to the public, including in issues of control over the exchange of information. The SBU is still continuing to introduce a system for monitoring telecommunications through several Internet providers, monitoring more than half, and in the regions even more than 2/3 of Ukrainian traffic. The Order of the State Committee for Communications No. 122 which introduces control over the use of the Internet remains in force as a result of the will of the SBU to hold onto this form of maintaining control over society, despite the fact that the Ministry of Justice in a letter dated 13.10.2005 instructed the Ministry of Transport and Communications to revoke the Order within 5 days. The Order has still not been cancelled.  The SBU is adamantly resisting the adopting of draft Law No. 4042-1 “On interception of telecommunications” which contains guarantees against abuse. Together with other enforcement agencies, it introduced for the new version of the “List of items of information which constitute a State secret” of 12.08.05 a point about classifying statistical data about investigative operation, counter-intelligence and intelligence activities.  This point will mean that there is no possibility whatsoever of gaining information as to the number of warrants issued for interception of information from communications channels.  A solution can be found in the adoption by parliament of draft Law No. 4042-1 since its implementation is intended to resolve the problem of abuse in this sphere.

7. The right of the individual to protection of personal data remains under threat.  The President with his Decree of 10 March No. 457/2005 cancelled Decree No. 500 of 30 April 2004 on the introduction by the Ministry of Internal Affairs of a Single Register of Individuals on the basis of a single State automated passport system (SSAPS).  In addition, there had been a lot of information about the involvement in the past in preparing these cards of dubious business outfits as a result of which a huge database of personal data had ended up in private hands. Nonetheless, judging from information in the press, the MIA, without any prior arrangements being made, has completed a plan for SSAPS on the basis of a single multi-purpose individual identification code (with the tax identification code used as basis for this code). Recently Yury Lutsenko, Ukrainian Minister of Internal Affairs, announced the creation of citizens’ cards with a single number, stating in particular the following: “We have placed a package of documents with the Cabinet of Ministers ... We propose making a card for citizens of Ukraine in the form of a plastic card with an inserted electronic chip which will be strictly protected. The chip will hold the number of the card which will be the single card used both in the Tax and in the Pension Funds. Single …. However it is not a citizen’s number …, but cards … so that believers don’t feel concerned[9] … The chip will contain all necessary information about the individual, and in addition it will be possible to add information as to whether the person has a driver’s licence”.  The introduction of this passport according to the Minister is being deferred until after the elections in 2006. However the issue of foreign passports[10] in the form of a plastic card with a single number has already been introduced.  No basic law on the protection of personal data has yet been passed, nor any law on the creation of a Single Register. This means that all of this is being carried out without any basis in law as there must be in any democratic society. Obviously plastic cards are convenient, but they must be introduced in keeping with legal procedure and should in no way use a single multi-purpose identification code. In our opinion, basic laws should first be passed and only then should individual passes be introduced with observance of the right to privacy.

8. Cases of infringements of freedom of expression have become much less frequent. In all sectors of the media there is pluralism of opinions, the majority of national television channels and radio stations are balanced in their presentation of information, although some elements of manipulation of information do remain We are not aware of any cases of pressure being placed on journalists by the central authorities, and the State mass media are gradually freeing themselves of their traditional exclusively positive and biased attitude to the regime. It should be noted, however, that there are as yet no guarantees providing for the consolidation and development of these positive changes.  We would also mention that the local authorities in some regions continue to exert pressure on the mass media.  As a result of reduced pressure, the mass media have become less dependent on the whims of the authorities, yet they still remain bound by the power and will of their owners who are closely connected to politics. Administrative pressure, furthermore, has been replaced by financial pressure. As a consequence, all media outlets without any exception disseminate material which has been ordered in the guise of news items or information, this undermining the authority of the mass media in a democratic society and presenting a real threat to freedom of speech. This was particularly evident during the parliamentary election campaign when it was virtually impossible without financial support to end up in news reports even when important information was involved.

In this sphere we can only welcome the introduction by parliament of amendments to the Civil Code of Ukraine at the end of 2005 which significantly extend freedom of speech. Unfortunately there is still no clear position regarding the creation of public broadcasting and on the privatization of state media outlets, aside from the basic decision to create a system of public broadcasting on the basis of National TV Channel One (UT-1).and the First National Radio Channel.

9. The unwarranted classifying as secret or restriction of access to official information remains a problem. The promises to ensure openness of information, transparency and accountability of the regime to society made on Maidan Nezalezhnosti [Independence Square] during the Orange Revolution have largely not been kept.  It is difficult to assess progress in this area given the lack of openness and desire to limit access to any information about their activities in the State apparatus beginning back in Soviet times.  It should be noted that the use of the illegal stamps restricting access “Not to be printed” and “Not to be published” has ceased, and the Ministry of Justice has disclosed the names of 295 normative acts of the government issued with the stamp “Not to be printed” over the last five years. The documents themselves however have still to be made public, while the President’s Secretariat has still not dared to disclose even the names of acts issued by the President with illegal stamps.

  The lack of openness as regards information, of transparency and accountability of the authorities to society, the unwarranted classification of information and limitation of freedom of the flow of information must surely be one of the most dangerous for the future of a country in comparison with other violations of human rights. Nor is this only connected with the fact that such a situation creates a breading ground for corruption.  The information sphere forms the foundation on which all political, administrative, economic as well as simply any kind of decisions involving human activities. The more information is used for taking these decisions, the more well-founded and effective they will be. The most important political decisions are usually consolidated at the level of law and set down in various normative acts. We thus have a three-tier system for decision-making: information, politics and the law. This can be figuratively represented as a tree with its roots, trunk and crown. The better developed the root system, the larger and stronger the tree will be.  Whereas when, at the legal (third) level, acts are passed which prohibit or restrict the access of participants of controversial, political debate (the second level) to information (the first level), then the quality of political decisions inevitably deteriorates. An unnatural situation arises where the crown does not let its own roots nourish the tree.  This happens particularly often in cases when attempts are made to limit and control the executive branch of power or even parliamentary institutions.  This is of course done with the best intentions, however societies thus afflicted with isolationism fall into a state of stagnation, their intellectual elite emigrates and their economies turn into a source of raw materials for their more open and therefore more dynamic neighbours. For this reason it is vital to reassess the existing priorities of information policy and consolidate the legislative basis for information openness.

The above analysis suggests that on the whole the situation with regard to human rights improved in 2005, however this improvement cannot be considered firmly entrenched.  Obviously it is not possible in the space of a year to eradicate corruption, to radically reduce the scale of the shadow economy and to change the way of thinking of law enforcement officers and of the State apparatus as a whole. However the political will is needed as well as persistent efforts aimed at improving the situation with human rights.

The activity of the Constitutional Court of Ukraine needs to be improved, in particular, by introducing a system of individual constitutional submissions and the passing of a relevant procedural law.  Provisions must be removed from the Constitution which significantly limit the independence of judges of the Constitutional Court – those which allow for the judges’ dismissal by those who appointed them. An important area needing reform remains that of the institution of the Human Rights Ombudsperson. Despite the fact that the authority of this institution was undermined by the participation of the Ombudsperson in political campaigning and by her politically engaged activities, one needs to review the powers of the Ombudsperson and strengthen and broaden his/her spheres of activity in order to enhance parliamentary monitoring of the observance of human rights and fundamental freedoms. It would also be advisable to consider the possibility of introducing separate Verkhovna Rada Representatives on the Rights of the Child, Protection of Privacy, Freedom of Expression, etc.

It should be mentioned that at the end of 2005 and beginning of 2006 the move in the direction of reform became more noticeable. A positive role in this was played by the National Commission for the Strengthening of Democracy and the Rule of Law, created by the President of Ukraine, which has become a major generator of reforms. High-quality concepts for court reform, for the organization of free legal aid and other areas have appeared. Progressive laws on implementing judgments and applying the case law of the European Court of Human Rights, on access to court rulings, and others have been adopted.  In addition, certain laws which contained potential violations of human rights have been rejected through the President using his power of veto.

Prior to this certain reforms were prepared for in the Plan of Measures for implementing the Action Plan Ukraine – EU, passed by the Cabinet of Ministers in April 2005.  The Action Plan was drawn up with the participation of representatives of non-governmental human rights organizations and contained a number of specific measures for improving the overall situation.  However at the end of the year it transpired that most of these steps had not been taken and their implementation was postponed until 2006.

In summarizing, one should add that state policy on affirming and safeguarding human rights and fundamental freedoms is not systematic and rather chaotic. Furthermore political expediency and departmental interests of agencies of power are given significantly more weight than the interests of the public, and therefore the activities of these agencies are largely aimed not at affirming human rights, but at pursuing ephemeral state or personal interests. In Ukraine there is essentially no developed and properly approved strategy for a state policy on safeguarding fundamental rights and freedoms. The exception here would be the right to a fair trial, if one takes into consideration the drafts of the above-mentioned Strategies prepared by the National Commission, as well as certain social rights, although the level of protection of the latter, in turn, leaves a great deal to be desired.

  One step towards the formulation of such policy was the passing by the President of Decree No. 39 from 20.01.2006 on Ukraine’s fulfilment of its obligations before the Council of Europe. However it too is rather a kind of program for vital minimum measures than a concept of state policy with the aim of ensuring institutional, financial and legal protection of rights and freedoms.

  In our opinion the possibility still remains for a swift start to effective reform. What is exceptionally important here is the condition of adherence to the Constitution and to the principles of the rule of law, including the fulfilment of all procedural requirements. Only under those conditions will the changes for the better with regard to human rights become irreversible.

 

A Review of recommendations made by human rights organizations in Human Rights in Ukraine – 2004, with information on the level of implementation in 2005[11]

CAN FAIR PUNISHMENT OF A CRIMINAL BE CONSIDERED POLITICAL REPRESSION?

Oleksandr Kostenko, Doctor of Law

With the coming to power of a new regime, the question is always raised of how the new leaders will treat representatives of the old order. This is entirely natural, since it is this attitude which can determine what exactly is replacing what.

Therefore, the new leaders, if they wish to be progressive, as opposed to their predecessors, must be guided in their attitude to the old order by a progressive doctrine.

Ukraine’s change in regime took place as the result of the Orange Revolution, which was anti-criminal in its nature. The people came out onto the revolutionary Maidan [square] under the banner “Criminals must be punished!”  The revolutionary situation in Ukraine in 2004 arose out of heightened class conflict between two social classes – that of non-criminals with a class of criminals.

This latter class of criminals had succeeded in turning the state into an instrument for the criminal exploitation of those who were not criminals.  One manifestation of this lawless exploitation was corruption inflicting the most suffering on non-criminals.

What by right belonged to non-criminals was siphoned off through corrupt channels into the hands of the criminals who used state means to legalize their illegally acquired riches. Having corrupted, moreover, the institutions of criminal justice, they were able to cynically assert that their wealth had been obtained legally since these institutions had not declared them to be criminal (on the principle: that if you’re not caught, you’re not guilty).  Having ended up in the hands of criminals, the state became a tool for legalizing illicit activities. Any crime, disguised with the help of state mechanisms, could be committed.  One can cite as examples the murder of the journalist Georgy Gongadze, the plundering of the Black Sea Fleet, as well as the rigging of elections at every conceivable level.

It is perfectly natural that the people, having endured so much criminal lawlessness, passed power into the hands of the political opposition in the hope of a decriminalization of the state.

And when the new regime undertook the task of decriminalizing the state, the problem arose how to do this so that such a process did not turn into political repression.

Here one should be guided by the appropriate legal doctrine for preventing arbitrary actions both from those who misuse criminal charges, applying them against innocent people, and from those who may abuse the defence of people who are guilty. In the first instance this may be representatives of the regime, in the second – of the opposition.

In the following we present such a doctrine for countering arbitrary rule.

In modern criminal justice there is a principle of the inevitability of punishment for a crime. This is, for example, laid down in Article 2 of the Criminal Procedure Code of Ukraine, where one of the objectives of criminal justice is to ensure “that each person who has committed a crime shall be held to answer”.  Following from this, the law stipulates that: “the court, the prosecutor, the detective inquiry and pre-trial investigation agencies must within the limits of their competence launch a criminal investigation with regard to any occasion where elements of a crime have been detected, and must take all appropriate measures for establishing what happened, who committed the crime and for punishing the culprits” (Article 4 of the Criminal Procedure Code of Ukraine). 

In addition, Article 24 of the Ukrainian Constitution states that all citizens are equal before the law, and that there shall be no privileges or restrictions based on, for example, political views. This means that any charges under the Criminal Code must be applied without differentiation to all criminals, regardless of whether they are representatives of the regime or of the opposition.  However it also follows that those who defend the accused must also observe the principle of equality of all individuals before the law.

If, for example, the regime wishes to have criminals prosecuted, this must not be done selectively, according to political affiliations, charging the “others” while shutting their eyes to “their own” criminals. 

Nor, however, does the opposition have the right to defend “their” criminals and suggest that they must be released and not held to answer because the authorities are closing their eyes to the crimes of those who are “politically” part of their crowd.

In order to avoid selective treatment, the opposition may demand only that the new regime ensures that criminal charges are also laid against “its” criminals.  If the opposition is real, and not a political cover for the vested interests of groups greedy for power, then one would advise them to make such a selective approach impossible by seeking the adoption of a law on criminal liability of investigators, the prosecutor or other authorized individuals for illegally refusing to bring those guilty of having committed a crime to answer.  Then a selective approach in bringing criminal charges would be outlawed through the risk of punishment. Those with the authority would be forced to bring charges against all who commit crimes, and not only criminals from the ranks of the political opposition.

At the same time the regime is entitled to criticize the opposition for its selectivity and ask why the latter only defends “its own” criminals against unfair charges, asking whether they really think that all criminals are always fairly accused.  The lesson from this for the opposition would be: you need to defend all, including “the others”, against injustice, and that way you can succeed in defending “your own”.  The same lesson should be learned by the regime: charges must be brought against all those who have committed crimes, including “ones own people”, otherwise there will be no decriminalization of the country.

Only in such a way can one eliminate a selective approach to liability for criminals regardless of whether the approach is started by those in power or the opposition.

However, at this point yet another problem arises.

Having usurped power in the state, the class of criminals established the circumstances most favourable for their criminal style of life and unsuited to honest ways. Under the pressure of these circumstances a part of the population succumbed to criminalization.  Finding themselves confronted with the dilemma whether to become the criminals’ victims, or to take the same criminal road, they chose the latter. In society a criminal culture thus developed, enabling survival in conditions of “state criminality”.

This however does not mean that citizens drawn into criminal activities by the class of criminals abetted by the state they criminalized are not themselves criminally liable. Just like those who dragged them into such activities, they must be held to answer, but in different ways, each for his or her own deeds.  One may not refuse to bring charges against an official, for example, who committed acts falling under the Criminal Code on the grounds that “given the criminalized state of the nation everybody did it”. The law does not allow for liability to be waived on such grounds. Quite another matter that the country could, for example, declare an amnesty for those who committed crimes under the pressure of criminogenic factors created by those criminals who, for their own personal gain, criminalized the state and thus inculcated a criminal culture which corrupted members of society.  In this way, those drawn into criminal activities could be amnestied, while those who drew them in would face severe punishment.

Besides an amnesty, current legislation also provides for the possibility, in the case of people drawn into crime in this way, of applying such options as recognizing the actions as having been carried out in a state of urgent necessity, releasing them in connection with a change in circumstances, releasing them on the grounds of active repentance, freeing a convicted person from having to serve his or her sentence by means of a pardon, etc.

A reminder would here seem appropriate that, in accordance with Article 44 of the Criminal Code of Ukraine, a person who has committed a crime may only have criminal liability waived by a court according to rules and procedure established in law (aside from release under an amnesty, or if pardoned).  No other state authorities are empowered to free a criminal from responsibility for his or her crime, with that not excluding for political reasons.

The choice, therefore, of who to punish, and who to pardon, must not be arbitrary, and in particular, must not depend on the political preferences of the regime or the opposition.  If one allows the principle to become entrenched of a kind of political selectivity as regards bringing criminal prosecution, or on the contrary, when refusing to bring charges, then any rapist, thief or corrupt official will make use of the chance, declaring that he or she is part of the opposition to the regime and gaining in such a way a carte blanche to call criminal prosecution for the crime he or she committed political persecution. And what will the present opposition do if the people give them power, and the present regime if it ends up the opposition, i.e. if they change places? Clearly the principle typical for such situations will hold true – they’ll get what they’ve asked for, like it or not.

It should be noted that there is always a danger that the regime could resort to political repression however the opposition can similarly resort to political defence of those who are guilty.  One can counter both the abuses of the regime and those of the opposition only by observing both the letter and the spirit of the law.

As far as political repression is concerned, this is generally considered to include laying criminal charges against innocent people on political grounds, or for the same motives sentencing those who are guilty to unfairly harsh punishment.

Only if such behaviour can be detected in the actions of the regime will the opposition have justification in claiming political repression on the part of those in power.

One more detail should be added. However paradoxical this may be, a clean-up removing criminals carried out by the regime is good for everybody, including the criminals themselves. Even the criminals know that the most dangerous evil is total lawlessness. And a regime in the hands of criminals always breeds such arbitrary rule.

For society political repression directed at innocent people may be dangerous. It is dangerous, however also when the opposition for political or any other motives places obstacles in the way of bringing the guilty to justice.

So, can fair punishment of a criminal be considered political repression? Under no circumstances! On the contrary – it is moral, legal, and at the end of the day, the political duty of any regime which must not be a tool in the hands of criminals, but must safeguard law and order promoting the well-being of all citizens. 

22-06-2005

From “Maidan”: . http://maidan.org.ua/

NOW AND FOREVER: KHPG COMMENTARY ON REMUNERATION FOR STATE DEPUTIES[12]

Over the last few days there has been a lot of publicity over the Verkhovna Rada’s overruling of the President’s veto on the Law of Ukraine “On introducing amendments to Article 20 of the Law of Ukraine “On the status of a State Deputy of Ukraine”.  The essence of the matter is that on 4 April 2006 the Ukrainian Verkhovna Rada  (parliament), chaired by Speaker of Parliament, V. Lytvyn, passed a Law in accordance with which all former state deputies of Ukraine will have the right to join the reserve of personnel of the Central Department of the State Civil Service of Ukraine and to receive material assistance should they lose their work after the expiry of their term of office as State Deputy.  According to the press, since the first vote for the Draft Law could not gain the requisite 300 votes, Speaker Lytvyn put the Draft Law to the vote a second time. As a result, out of the 370 deputies registered present, 307 people’s representatives voted for the Law.

If one discards superfluous legal formalities, the essential point is that from henceforth each former state deputy has the right before reaching retirement age to receive from State revenue compensatory monthly payments of around 2 thousand US dollars. In the reality of today’s Ukraine, this means that an unemployed ex-parliamentarian has gained the right to receive a monthly income of approximately 4 monthly payments to a current member of the Ukrainian National Academy of Sciences or around 6 salaries of a professor of a Ukrainian university of the highest category, or 12 – 13 salaries of a highest category doctor, or approximately 20 months’ salary of a highest category school teacher.

It is also worth recalling the current salaries of people’s representatives. In accordance with paragraph 2 of Article 33 of the Law of Ukraine “On the status of a State Deputy of Ukraine”, a State Deputy as far as material and social everyday provisions are concerned is equal to members of the Cabinet of Ministers of Ukraine.  This in turn means that the monthly salary of a current State Deputy equals approximately 4 thousand US dollars. This means that one current deputy costs the Ukrainian State as much as eight current members of the Academy of Sciences or 12 professors or 26 surgeons or 40 secondary school teachers.  The pension for a State Deputy, according to the law, fluctuates between 80- 90% of the salary current at the time received by a State Deputy.

In addition, the Verkhovna Rada provides a former State Deputy immediately after the expiration of his or her term of office, for the period of finding a job, with payment of material assistance amounting to the salary which working State Deputies receive, taking into consideration all supplementary and special payments, however for no longer than one year” (paragraph 5 of Article 20 of the Law).  And “on retiring a State Deputy is paid financial assistance amounting to 12 monthly salaries of a current State Deputy , financed by budgetary allocations to provide for the activities of the Verkhovna Rada of Ukraine” (Point 2 of paragraph 12 of Article 20 of the Law). Thus, on completion of their term of office, a Deputy is to also receive “material” assistance (money for the period of finding another job) and before retirement – “financial” aid (money to ease the process of retirement), each of which equals his or her annual salary (48 thousand US dollars).  

If one tries some simple arithmetic, then over the five years that a State Deputy holds office, he or she will have received a salary of approximately 240 thousand US dollars, to which one should add the “material” and “financial” assistance, this equalling around 96 thousand US dollars. For the moment we will not speak of the compensation payments which are currently being discussed in the press, or about the pensions.

The salary of a State Deputy over five years of office thus effectively comes to around 336 thousand US dollars. Everybody also knows that “a State Deputy, regardless of his or her place of residence, should s/he wish, has the right to receive a lump sum of  financial compensation for the expenses incurred in creating suitable living conditions, or for the parliamentary term official living quarters, or living quarters for permanent residence” (paragraph 1 of Article 35 of the Law).  Since a married Deputy has the right to an additional separate room, the minimum amount of compensation (given the housing market in Kyiv) will not come to less than 120-150 thousand US dollars. Thus all payments together constitute approximately half a million US dollars. In view of these figures, one can understand the peeved expressions of young Ukrainian “Rastignacs” who didn’t manage this time to join the ranks of parliamentary deputies. However it remains in question whether Ukrainian voters fully understand the “material” sense of their actions. We know at least that some did not vote for “Nasha Ukraina” [“Our Ukraine”] quite simply because they didn’t want, speaking figuratively, to give the singer Ruslana or the sentimental Olha Herasymyuk ten “Mercedes” each.

At this point it seems reasonable to ask how this corresponds to world practice. At first glance all seems acceptable. After all in the West too the fact that deputies receive weighty remuneration from the state is considered to provide a guarantee of their independence. A large number of constitutions even have the corresponding articles with regard to this (USA, Spain, Germany and others). In particular the twenty seventh amendment to the US Constitution stipulates that the size of parliamentary salaries may not be increased by Congressmen for their own benefit. That is, any possible increase in compensation can only take effect for a mew Congress following an “election of Representatives”.  It is also typical that the level of deputy remuneration equals that of official salaries of members of the government (Austria) or of high-ranking civil servants (France).  Very often the amount is fixed at the level of 50-70% of a minister’s salary. It can moreover depend on the degree to which the deputy plays a real role in the work of parliament (France), the deputy’s length of service, or his or her active involvement on parliamentary committees (Austria).

However this is merely the external side of the issue. The internal essence lies in the fact that deputies’ salaries in the West equal the salaries of professors of prestigious national universities.  If a professor of an American state university can receive approximately 7-8 thousand, and of a private university – 8,5 – 10 thousand US dollars a month, this does not differ greatly form the salary of an American senator or ordinary Congressman (their monthly salary being around 16 thousand dollars a month).  Accordingly the rector of a US state university has a salary of approximately 25-26, while the rector of a private university – 45-50 thousand dollars a month, which is not very far off that of the President of USA (around 40 thousand dollars a month).

According to the Danish politician, Hanne Severinsen, her parliamentary salary is not much larger than that of an experienced teacher or journalist in her country.  In general, the salary of a member of the European Parliament can clearly not compete with that of an accomplished neurosurgeon. In the German Bundestag the salary of a deputy is approximately the same as that of a university professor. One could continue this list however it would be better to focus on the typical pay divide.

The spread of salaries for all those who work in American state institutions is approximately 1:5.  In Europe this figure roughly equals 1:4. This means that the salary of an ordinary civil servant in the USA cannot be less than 25% of the salary of a minister. We have approximately the same situation in Western Europe where in absolute figures state salaries are obviously less than those in the USA, but where the percentage ratio between salaries remains at the same level. With regard to Ukraine, here, as is recognized by the State Deputies themselves, the spread of salaries between those who are paid from state revenue equals 1:40.  This is indeed the case since the average Ukrainian teacher in a state school receives a monthly salary of around 100 US dollars, while a State Deputy receives 4 thousand dollars. By dividing the second into the first, we obtain the nationwide salary range of 1:40.

One should also note that in Western Europe and USA the level of salaries for high-ranking state officials is not and cannot be concealed from the concerned public[13].  In the USA this is guaranteed by the 1966 “On Freedom of Information Act”, and in part by the subsequent 1976 Government in the Sunshine Act.  In Western Europe the judgments of the European Commission and the European Court of Human Rights stand guard over open access to such information. In Ukraine, on the other hand, it is futile to try to find out from official sources the size of the salaries of, for example, judges of the Constitutional or Supreme Court of Ukraine. Even after the Orange Revolution the salaries of members of the Cabinet of Ministers of Ukraine were increased privately (the corresponding governmental document being classified with a stamp restricting access).  The author of this article was at one stage present when one of the former judges of the Constitutional Court in an ironic tone told his colleagues from the Latvian Constitutional Court about our inept journalists and how they had not succeeded in finding out the actual size of judges’ salaries in the Constitutional Court.  However a deeper irony lay in the fact that a) their Latvian colleagues could not understand why this should be a secret; b) their own salaries at that time were approximately five times higher than those of their Ukrainian colleagues; c) they were proud that they had succeeded in averting the privatization of flats in the old quarters of Riga by higher government officials (among whom was Raimond Pauls).  The example demonstrates how even after the collapse of the USSR the Ukrainian judge without realizing it reflected a certain form of thinking: two worlds – two systems.

Almost ten years have elapsed since then. However the salaries of judges of the Supreme Court or of the Constitutional Court remain concealed from Ukrainian journalists.  There is talk that at present these come to around 10-11 thousand US dollars a month. When Constitutional Court judges, at the end of their term of office, retire, they immediately receive not a pension, but “state maintenance” equalling 80% of the pecuniary compensation and other types of financial provision of a judge of the Constitutional Court of Ukraine currently in office (Article 29 § 2 of the Law of Ukraine “On the Constitutional Court of Ukraine”).  In effect a judge of this rank will live for the rest of his or her life on maintenance or a pension which equal approximately 10 thousand US dollars a month.

Of course counting other people’s money is not the most noble of activities. It is similarly ignoble to stick labels on Ukrainian people’s representatives or other high-ranking public officials. Still more so given that they themselves sometimes speak critically of themselves. As one of my colleagues admitted who presently, in addition to his 450 dollars a month as a university professor, also receives 3,5 thousand dollars pension as an ex-deputy, “I didn’t do it with my own hands”. It seems that it was the Ukrainian state that did it for its loyal and grateful sons and daughters.  As a result of this, we have in the country the predictable situation where the contrast between state and the public is not only failing to disappear, but is becoming even more marked.  It would be insufficient to say that State Deputies behave selfishly. The worst is that in actual fact they behave in a treacherous fashion. W. Chamberlain once wrote in a small work entitled “Ukraine – a subjugated nation” that the Ukrainian people were permanently betrayed by the national elite. However Chamberlain was writing about how the elite betrayed its people in times where there was no political freedom, whereas now we see that the elite continues to morally betray the people in conditions of sovereign statehood.

Observing how unfailingly the “grabbing instinct” functions within the corridors of power, one cannot help but wonder why Russia has not bought up our people’s representatives with their oil dollars. After all, if 2 thousand US dollars is how much a deputy’s conscience is worth, then for 5 thousand one can risk buying up a deputy’s powers of reason. Ukrainian deputies at the price of eight professors to one … Quite recently Y. Kushnaryov stated in a television broadcast that no constitution in the world stipulates the right of the people to revolution, while A. Matviyenko, also on television, said that the majority of federations are created on the basis of national identity. In fact the majority of federations have nothing to do with national characteristics, and the institution of a people’s uprising is a classical element of world constitutional culture (this right in various forms is enshrined in the US Declaration of Independence, Article 20 of the 1949 German Constitution, Article 120 of the Constitution of Greece from 1975, Article 32 of the 1991 Slovakian Constitution, Article 54 of the 1992 Estonian Constitution and Article 3 of the 1992 Lithuanian Constitution).

It is deeply regrettable that even after the election of the genuinely democratic figure of Viktor Yushchenko as President of Ukraine, even after the Orange Revolution,  a real revolt of the rich against the poor continues to unfold and intensify in Ukraine, in the apparently respectable form of the constitutional reforms. It is clear that calling our deputies “rich” is much less about being offensive than about resorting to flattery. The truly rich after all do not lunge at money like a dog at a bone.  The pathological love of our people’s representatives for “remuneration”, “compensation” and “assistance” serves rather as evidence of their former roots in poverty. This is the usual behaviour of people who most definitely did not grow up in a palace.  Yet again you can see a lord by such things. Oscar Wilde once wrote that there is only one class of people greedier than the rich and that is the poor. Ukrainian deputies are not bothered by their image, but they can’t turn down “bad money”. Yet would it be possible for a people’s representative for whom poverty has been genetically inbred to behave in any other way?

At the end of the day, what happened in the last few days could be ignored. However one cannot fail to note yet another example of the infantile nature of the Ukrainian national parliamentary system.  Childish instincts in politics are not just a weakness, but a real risk and danger for the people. And Ukrainians may in the very near future experience that directly. Having violated all conceivable procedures and rules, having trampled on the principles of their own Constitution, the State Deputies led by Speaker Volodymyr Lytvyn “re-welded” a presidential parliamentary Ukraine into a parliamentary presidential setup. Now it is this ill-fated mechanism which is supposed to move us towards Europe..

The Ukrainian parliamentary vote is somewhat reminiscent of a child’s competition for sweets. With something over their eyes, the kiddies try to get the sweets which for the game have been hung before them on thin strings. And among the children there are a few adults. Some, like Oleksandr Moroz, have genuinely joined the game and can already feel the taste of sugar in their mouth, while others, like V. Lytvyn, more distanced and clever, correct and direct the chaotic hurtling of the little ones towards a well-camouflaged abyss.

Adherence to the Constitution of Ukraine in 2005[14]

  The situation as regards observance of constitutional norms in Ukraine during 2005 cannot be considered as a whole to have been satisfactory. The main problem in this area arose as a result of the legally incorrect introduction of amendments to the Constitution of Ukraine (the Law of Ukraine No. 222-IV from 8 December 2004), as a result of which the presidential – parliamentary republic of Ukraine turned into a parliamentary – presidential republic.  Without embarking on an analysis of the political essence of the constitutional changes (this analysis was presented in “Human Rights in Ukraine – 2004”), we must note that the serious infringements of constitutional procedure in the course of making amendments to the Main Law of Ukraine have led to a situation whereby not only the Ukrainian and international communities, but even the very initiators and implementers of this so-called “political reform”, are not entirely sure of the legality and legitimacy of the steps they have taken.

Lack of clarity as regards the political and legal situation in the country, in turn, meant that the “reformers” back in October 2005 began creating artificial obstacles against any possible review of the results of the changes by the Ukrainian Constitutional Court.  The direct and covert actions of the Verkhovna Rada and its speaker, Volodymyr Lytvyn, in this direction had been predicted in advance by certain Ukrainian and foreign analysts.  The former Adviser to the President of Ukraine on legal matters and Judge of the US Court of Federal Claims, Bohdan Futey, spoke, in particular, of the strong likelihood that parliament would block a review of the results of the changes by not swearing in the new intake of judges of the Constitutional Court.  One can now even state that all the main events in the realm of “process and procedural” Ukrainian constitutionalism unfolded in 2005 according to the scenario foreseen by Judge Futey. However one needs to add other details in order to further explain and analyze the state of affairs.

In particular, according to the norms of constitutional legislation one of the duties of the Constitutional Court of Ukraine is to provide “official interpretation of the Constitution of Ukraine and of the laws of Ukraine” (paragraph 1, point 2 of Article 150 of the Constitution of Ukraine). In addition, the Constitutional Court is authorized to receive and pass judgement on questions regarding the conformity with the Constitution of Ukraine of laws, decrees of the President and other normative legal acts. The decisions of the Constitutional Court in interpreting or checking the constitutionality of laws “are mandatory for execution throughout the territory of Ukraine, …  final and shall not be appealed.”  (Article 150 § 2 of the Constitution of Ukraine). While the Constitution of 1996 does not directly stipulate the number of constitutional judges who must vote for a  decision “mandatory for execution”, the Law of Ukraine “On the  Constitutional Court of Ukraine” from 16 October 1996 stipulates that a decision of the Constitutional Court is considered passed if no less than 10 constitutional judges vote for it.

Furthermore, the responsible (effectively controlling) role in introducing any amendments to the national Main Law is vested in the Constitutional Court of Ukraine.  In particular, “a draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine “upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution”.

Article 157 of the Constitution in turn states that « the Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine. The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”.  As for Article 158 of the Constitution, this says that: a “draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than one year from the day of the adoption of the decision on this draft law. Within the term of its authority, the Verkhovna Rada of Ukraine shall not amend twice the same provisions of the Constitution”.

The Constitutional Court of Ukraine is thus empowered to fulfil both analytical and controlling functions.  The Court carries out these tasks in accordance with special rules set down in norms of domestic (material and procedural) legislation. The main legislative sources here are Sections XII and XIII of the Constitution of Ukraine, the Law of Ukraine “On the Constitutional Court of Ukraine ” from 1996, as well as the Regulations of the Constitutional Court of Ukraine.  According to the Main Law, the Constitutional Court of Ukraine is made up of 18 judges, with the President, the Verkhovna Rada and the Congress of Judges of Ukraine each appointing (partly actually electing) an equal number of judges, that is, each chooses 6 judges for the Constitutional Court.  The Constitution and Law also lay down a number of special requirements for candidates to this highest court post. All judges of the Constitutional Court of Ukraine are appointed for nine years without the right of appointment to a repeat term. There is also an age limit with judges unable to continue in their post after reaching 65, the age of retirement age. According to the political (constitutional) “reform”, if the need arises, the judge may be dismissed by the body or state official responsible for appointing them (Article 85 § 1, point 26, Article 106 § 1, point 22 of the Constitution of Ukraine).

Soon after the adoption by the Verkhovna Rada of Ukraine in October 1996 of the Law of Ukraine “On the Constitutional Court of Ukraine” the first judges were appointed. Given the 9-year term of office which the Constitution stipulates, and the ban on their reappointment, as well as the norm regarding retirement age, the term of office of more than half of the judges of the Court was due to expire in October 2005.  Through a combination of various circumstances, which from the outside would seem by chance, all of the above created a fierce political and legal collision in Ukraine. As Bohdan Futey had predicted in his analysis, from the formal point of view the mass exodus of constitutional judges from their positions should not have created serious organizational or political problems. However, given the situation with the constitutional reform, in practice this exodus of the first intake of judges turned into a real political and legal crisis, leading to serious complications in the force of the constitutional principle of the division of power. The main stumbling block here was the procedure for swearing in the newly-appointed constitutional judges. The essence of the matter was as follows.

Firstly, the Verkhovna Rada was unable (in fact did not want) to appoint the appropriate number of constitutional judges in accordance with its quota. Secondly, the leadership in parliament, represented by Volodymyr Lytvyn consistently ignored the requirements of the Constitution of Ukraine and of the Law of Ukraine “On the Constitutional Court of Ukraine” with regard to swearing in the constitutional judges already appointed by the other parties with this authority. This resulted in an effective lack of working constitutional judges. The activities of the highest and single body of constitutional jurisdiction of Ukraine were suspended for an indefinite period. One can say that from October 2005 the Constitutional Court of Ukraine de facto fully ceased to function.

In order to better understand and correctly assess the situation, it is worth recalling particular provisions of the relevant legislation.  In accordance, for example, with Article 46 of the Law of Ukraine “On the Constitutional Court of Ukraine”, proceedings into a case are launched on the basis of a constitutional submission or constitutional appeal submitted by the parties stipulated in the Constitution. The relevant procedure should be initiated by the Constitutional Court at its special session. For this, on the basis of Article 47 of the Law a panel (effectively two panels) of Judges of the Constitutional Court needs to be formed.  The Law of Ukraine “On the Constitutional Court of Ukraine” stipulates that only a panel of judges may vote “for” or “against” launching proceedings into a case. This formally means that any session of the Constitutional Court regarding the launching of proceedings shall be considered to have competence if there are no less than eleven members of the Constitutional Court present.  In order for a case to be accepted (or to be rejected) at least six judges of the eleven present at the session must have voted for it.

The Law of Ukraine “On the Constitutional Court of Ukraine” also demands that consideration of the merits of a case be carried out at a plenary session. It is precisely at plenary sessions that the Constitutional Court adopts decisions on issues foreseen by point 1 of Article 13, and also gives its opinion on issues set down in points 2, 3 and 4 of Article 13 of the Law of Ukraine “On the Constitutional Court of Ukraine”.  According to the Law, a plenary meeting of the Constitutional Court is considered to have competence to adopt decisions if there are at least twelve judges of the Constitutional Court present.   Moreover, decisions of the Constitutional Court on the merits of a case are considered to be adopted and opinions approved at a plenary meeting if they were voted for by no less than ten judges of the Constitutional Court. 

  We thus see that the rules and procedure stipulated both in the Constitution and in legislation for the working of the Constitutional Court of Ukraine require that both in launching proceedings into a case, and in deciding on the merits of a case, there needs to be a minimum number of judges present. As mentioned, 11 constitutional judges constitute a minimum quorum for a session of the Constitutional Court to be able to launch proceedings or to decide against doing so. No less than 12 judges should be present at a plenary session of the Constitutional Court when considering and ruling on the merits of a case. At least 10 judges need to vote for a specific decision or conclusion.

Bearing in mind the circumstances which meant that in October 2005 the term of office of most of the judges of the Constitutional Court was coming to an end, the latter’s political and judicial ability to work lay in the hands of the Verkhovna Rada of Ukraine (effectively of the Speaker of Parliament, Volodymyr Lytvyn). .The procedural side of the matter proved to be of principal importance and hinged on the fact that each newly-appointed judge (regardless of whether he or she was appointed by the President, the Verkhovna Rada or the Congress of Judges of Ukraine), before commencing their duties, needed to be sworn in at a special session of the Verkhovna Rada of Ukraine. As is stipulated in Article 17 § 3 of the Law of Ukraine “On the Constitutional Court of Ukraine, a judge of the Constitutional Court „ “swears an oath of allegiance at a session of the Verkhovna Rada of Ukraine which is attended by the President of Ukraine, the Prime Minister of Ukraine, the Chairperson of the Supreme Court of Ukraine no longer than a month after his or her appointment as a judge of the Constitutional Court of Ukraine”. This means that if the Verkhovna Rada does not schedule a special session for the swearing-in of judges, or if any of the highest state officials do not agree or are unable to attend this session, the Constitutional Court will not be able to function. That is, its judges will simply not be able to take up their professional duties.

The subsequent development of events in Ukraine showed that it was not only Speaker of Parliament, V. Lytvyn, but also the former Chairperson of the Supreme Court of Ukraine, V. Malyarenko, who made certain efforts to prevent the Constitutional Court judges from being sworn in. Lytvyn, for example, not only consciously avoided organizing the swearing in of the judges, but actually gave public commentary on this to the Ukrainian and foreign media.  On the surface in his answers to journalists, what was involved was an attempt, in a, frankly speaking, strange way, of protecting the gains of the constitutional reform and preserving through this “order” and “stability” in the country. As for the former  Chairperson of the Supreme Court of Ukraine, V. Malyarenko, he resigned for the period of the parliamentary elections (for almost half a year), formally due to his being in the first five candidates for State Deputy on the candidate list of Lytvyn’s political bloc.  In taking this step, the former Chairperson of the Supreme Court not only acted in breach of special legislation on the court system and political parties which prohibits judges from being involved in any political activity, but also made it impossible for him to attend in official capacity the procedure for swearing in the judges of the Constitutional Court.

As a result, as particular analysts had predicted, the scenario involving the disruption of the swearing in procedure was deliberately orchestrated by high-ranking Ukrainian state officials. The formal legal procedure for taking an oath of allegiance was used in this case not as a stabilizing, but rather as a destructive political measure. As far as the possible motives for this are concerned, a possible explanation for the unlawful actions of V. Lytvyn and V. Malyarenko might be both their personal ambition and the conflict, seen since President Kuchma’s regime, between two Ukrainian political ideologies.  The competition between “east” and “west”, conservatives and democrats, present effectively since the “Orange Revolution” prevented not only the swearing-in of Constitutional Court judges, but even the very inclusion of the question of the swearing-in on the parliamentary agenda. At the same time, by sabotaging the swearing-in of judges already appointed, the Verkhovna Rada of Ukraine blocked the appointment of their quota of judges to the Constitutional Court.  This means that at present only 14 judges have been appointed to the Constitutional Court of Ukraine. The remaining candidates will have to be appointed by State Deputies of the new parliament.

In weighing up the consequences of the Verkhovna Rada’s carrying out of its constituent function from October 2005 to April 2006, it would be difficult not to conclude that the Ukrainian parliamentary body during this period was attempting to usurp the role of some kind of “main power” in the state. As a result, parliament not only did not appoint as per their quota the appropriate number of Constitutional Court judges, but also failed to allow those judges already appointed to commence their work.  Harsh as it may sound, the actions of the Ukrainian parliament in the given situation must be classified as a dangerous encroachment on the principle of constitutional legality, and the political strategy applied by Speaker of Parliament, Lytvyn, and former Chairperson of the Supreme Court of Ukraine, V. Malyarenko, as a direct abuse of their official position, whether or not politically tinged.  Regardless of all of the Speaker’s patriotic rhetoric, under his leadership parliament succeeded in removing the highest and single body of constitutional jurisdiction from the state mechanism.  By doing so, in real terms, it moved beyond the judicial limits laid down in Articles 6 and 19 of the Constitution of Ukraine. With its destructive actions the Verkhovna Rada seriously damaged the national judicial mechanism of checks and balances.  Through deliberate inaction, the Verkhovna Rada of Ukraine was in direct breach of Article 6 § 2 of the Constitution of Ukraine which states: “Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”. The position of the Verkhovna Rada with regard to forming a new make-up of the Constitutional Court of Ukraine also ran counter to Article 19 § 2 of the Constitution where it is stipulated: “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.”

There can be no doubt that, since the amendments to the Constitution of Ukraine from 8 December 2004 envisaged the transfer of a large number of powers from the President to the Prime Minister of Ukraine by 1 January 2006, a lot of hopes were pinned on the Constitutional Court of Ukraine.  From the very beginning (the day of the vote for the amendments to the Main Law), a good many academics and politicians raised the issue of the shaky juridical basis for the “political reform” both in the procedural and in the material legal sense.  It would suffice merely to note that in the voting for Draft Law No. 4180 by the Verkhovna Rada of Ukraine, a large number of the same normative provisions were accepted  which had been rejected by the same body as part of Draft Law No. 4105 eight months previously. A parliamentary vote on Draft No. 4105, which was similar in its content to No. 4180 had been held on 8 April 2004, with its supporters that time receiving only 294 votes (that is, 6 votes less than was needed in order to introduce amendments to the Constitution of Ukraine).

Despite this, exactly 8 months later 410 State Deputies voted for the constitutional reforms as presented in Draft Law No. 4180.  The clear problem with time in the adoption by the Verkhovna Rada of this normative act is that the Constitution of Ukraine stipulates that a draft law proposing amendments to the Constitution which has been considered and not accepted, may not be resubmitted to the Verkhovna Rada until a year has elapsed from the day of the last vote in Ukraine’s parliament.

Furthermore, the vote in the Verkhovna Rada of Ukraine on 8 December 2004 was for a package of constitutional amendments as a whole, and not for individual provisions or articles. This was also a flagrant breach of law-creating procedure laid down in the Regulations of the Verkhovna Rada.  As a result, the parliamentary “hysterical” haste and judicial irresponsibility led to particularly serious consequences.  One is forced here to add the reminder that the present Constitution envisages two votes on any issue involving amendments to its text.  A draft law tabled by those empowered with legislative authority should first be supported by a simple majority (50% + 1), and then by a qualified majority (75%) of the constitutional composition of State Deputies of the Verkhovna Rada.  Although the current Constitution says nothing about which session of the Verkhovna Rada should hold the first vote on amendments, it contains a separate norm with regard to the second vote. The second vote on introducing amendments should take place at the “next regular” parliamentary session. Yet in the given case the vote on amendments to the Main Law was taken not at the standard regular session of parliament, but in the exceptional circumstances of the Orange Revolution. The procedural side, therefore, of the introduction of constitutional amendments in the form of draft law No. 4180 seems extremely problematical.

Another well-known circumstance in those events was the fact that the political compromise formalized in an agreement and reached between the candidates competing for the presidency after the second round of voting, included three innovations to be introduced during the re-run of the second round.  These were: a) each of the candidates was to have the same number of representatives in the make-up of electoral commissions; b) the overall number of absentee voter papers was not to exceed 0,5% of the overall number of voters on the district polling stations’ voter lists; c) the right to vote outside the polling stations was to be granted only to those disabled people officially recognized as needing this option.  However before the re-run of the second round, Presidential candidate Viktor Yanukovych submitted a petition to the Constitutional Court of Ukraine and soon received a decision from the Court annulling the recently agreed rules and procedure for voting outside polling stations. As a result of these actions a purely legal question arises as to whether one should regard as valid the agreement which had just been made between the presidential candidates. After all, one of the parties through his actions effectively rejected the agreement reached.

Under normal circumstances all of the above-mentioned problems with agreements and clashes should have been regulated long before the constitutional reform came into force. However, without the appropriate number of judges, the Constitutional Court, from October 2005 was not able to launch any proceedings. It was therefore unable to pass any rulings on the substantive issues. All of this makes it possible to conclude that the Ukrainian “political reform” entered into force on 1 January 2006 only formally. That is, as follows from the canons of constitutional law, all problematical aspects of the “political reform” will certainly need to be reviewed according to constitutional (court) procedure. Since the introduction of amendments to the 1996 Constitution of Ukraine changed the form of government in Ukraine from presidential to parliamentary-presidential, it would appear illogical were a transformation of such significance and content to be able to by-pass higher judicial and constitutional checks.

As Bohdan Futey noted in his analysis of the events around the Ukrainian constitutional reform, the problems and contradictions which the reform both led to and highlighted allow one to look at the Ukrainian legal situation in a significantly broader way than was previously possible. In particular, we are better able to identify and understand the difficulties which the Ukrainian judiciary encountered from the first years of the nation’s independence. Everybody knows that Ukraine, from1991, faced the need for wide-reaching transformation of the courts from bodies “associated with the Soviet system of telephone justice” (B. Futey) into a justice system based on the rule of law. This theme was widely debated back in the time when the Declaration of Ukraine’s state sovereignty was adopted.  However it was only in the winter of 2004 that the world had the opportunity to see the first strategic movement in the Ukrainian judiciary. As we know the Supreme Court of Ukraine, under considerable international and internal political pressure, did nonetheless succeed in passing a law-based judgement in the case of Yushchenko versus the Central Election Commission. The high rating which the Supreme Court was then awarded was truly deserved.  Many saw in this Ruling the Ukrainian response to international criticism which had earlier been directed at another judgment, that of the Constitutional Court of Ukraine in granting Leonid Kuchma permission to run for a third term as President of the country.  The Judgment of the Supreme Court taken during the Orange Revolution also had a clear positive impact on public opinion in the country. Unfortunately soon after the revolutionary events, the positive attitude of the population to the judiciary was once again undermined.

On 23 January 2005 in his inaugural speech on Maidan Nezalezhnosti [Independence Square] in Kyiv, President Yushchenko said that although Ukraine had formally been independent since 1991, it had only truly succeeded in becoming free now. The President made special mention of the fact that an independent court is of vital importance in asserting the principle of the rule of law in a country, and also stressed its particular role in the creation of Ukrainian civic society.  The President’s speech focused on the fact that the judiciary is the most important safeguard of human rights and freedoms, and the main instrument for fighting corruption.  Later, President Yushchenko appointed one of his political supporters, Petro Poroshenko, Head of the Committee on Judicial Reform. Clearly the actualization of the issue of judicial reform was, in itself, necessary and important. However the actions of the President proved unsuccessful due to the specific candidate chosen for the post.  As B. Futey noted in his analysis of Ukraine’s situation with judges, after this appointment the reform process within the judiciary became less transparent.  There was sometimes the impression that this process had simply reinstated the former pressure from the President’s Administration on the court system.

Since the old Verkhovna Rada had still not appointed its quota of judges, and also blocked for a long time the swearing in of the remainder of the newly appointed or elected Constitutional Court judges, the Kharkiv Human Rights Protection Group (KHPG) deemed it necessary to present its recommendations for resolving the situation.  For example, in the Human Rights Organizations Report “Human Rights in Ukraine – 2004”, we already put forward critical arguments with regard to the political essence of the Ukrainian constitutional reform. During 2005 the issue of this reform took on new procedural and legal aspects. We are convinced that the most unacceptable aspect in this case was the vote by the Verkhovna Rada of Ukraine on 8 December 2004 on constitutional amendments as part of a package with norms of current legislation.

In our opinion, the fact of this package vote on the reform made the latter fundamentally inadmissible, first of all, from a purely juridical and legal point of view. In addition, the flagrant and “extremist” nature of the procedural violations in the course of introducing amendments to the Constitution of Ukraine crystallized the entire post-totalitarian politics of the old Verkhovna Rada and its Speaker, Volodymyr Lytvyn.  In full awareness of all of this, we are proposing as a possible way out of a crisis situation that a submission be presented to the Constitutional Court of Ukraine on behalf of the President of Ukraine or from 45 State Deputies on the need for an interpretation of Article 155 and Article 157 § 2 of the Main Law of Ukraine..

The need for an interpretation of these parts of the Constitution of Ukraine was called for, in our opinion, by the procedurally unlawful vote on 8 December 2004  in the Verkhovna Rada of Ukraine on the Law of Ukraine from 08.12.2004 No. 2222-IV “On introducing amendments to the Constitution of Ukraine” together (in a “package”) with the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004”.  We furthermore assert that the vote on amendments to the Constitution of Ukraine was held in conditions of revolutionary upheaval in the country. In our opinion, the joint vote on amendments to the Constitution and to an ordinary law of Ukraine, as well as in a situation of revolutionary upheaval, constitute an infringement of the rules for introducing amendments to the Constitution of Ukraine, laid down in Articles 155 and 157 § 2 of the Constitution of Ukraine.

We are deliberately leaving aside the question of the interpretation of the relevant norms of the Regulations of the Verkhovna Rada of Ukraine (Bulletin of the Verkhovna Rada of Ukraine, 1994, No. 35, p. 338), since the Regulations have the juridical status of a Resolution of the Verkhovna Rada and on that basis do not form part of the list of normative legal acts which the Constitutional Court of Ukraine provides interpretation of on the basis of Point 4 of Article 13 § 1 of the Law of Ukraine “On the  Constitutional Court of Ukraine”.

The actual state of the matter hinges on the fact that on 8 December 2004 with the country in a truly revolutionary situation, the Verkhovna Rada voted all together (as a “package vote”) for the Law of Ukraine from 08.12.2004 No. 2222-IV “On introducing amendments to the Constitution of Ukraine” and the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004”.

We know that a vote on introducing amendments to the Constitution of Ukraine from 1996 can be held on the sole basis of the rules and procedure allowed for in Articles 154 – 159 of the Constitution of Ukraine.  These rules make up Section XIII of the Constitution of Ukraine and are under the protection of the entire national constitutional and legal system. Suffice it to note that on the basis of Article 156 of the Constitution any modification of Articles 154 – 159 have the mandatory requirement of approval by an All-Ukrainian referendum.  Such procedure in the purely juridical sense is evidence of the absolutism of the relevant constitutional procedure, and the general inviolability of the juridical procedural form.

  One should also note that similar procedure is standard and envisaged by the best existing constitutional models. A constitution is a document which, besides liberty, ensures the stability of the legal system as a whole, and this system in turn starts with the principle of the inviolability of the constitutional form, of the material and procedural norms of its content.  Inviolability of the form of the constitution is a necessary component part, the condition of its legal content, while the procedural norms of the Constitution are the main juridical guarantees of the values enshrined in its basis. In recognition of this, we would stress that a joint (“package”) vote on a draft law on introducing amendments to the current Constitution was legally inadmissible.

The possibility of voting fir amendments to the Constitution in a “package” with amendments to any other documents of domestic legislation is not mentioned either in the Constitution of Ukraine, or in Ukrainian legislation as a whole.  

Nor is this any accident, since after all, joint voting “as a package” is a classic example of linked voting or voting on condition. It is not by chance that in referendums it is forbidden to merge in one point of the formula of the referendum two questions. This means that the will of the people with regard to one normative legal act in the “package” variant is strictly linked with an analogous (in the sense of a choice “for” or “against”) vote on another normative legal act. From the psychological point of view this means a direct intrusion into the motivational part or phase of the individual act of will. More simply, each voting State Deputy, under the obligation to determine their position and think about the fate of one normative legal act, must in parallel take into consideration the fate of another, unrelated in its content with the first act. It is clear that such procedure can only have to negative consequences.

In the case of the Ukrainian  vote on amendments to the Constitution, the situation is exacerbated by the fact that the “package” contained draft laws with different juridical force, that is, there were acts belonging to fundamentally different legal registers. As a result, a change in several norms of current legislation were contingent upon a change in a whole constitutional legal complex of amendments (in particular, on changes in the form of government in Ukraine), while the change in a group of norms at the constitutional level depended upon amendments to provisions of ordinary law.  It must be stated that in this case a procedural act was carried out which falls within the category of a legally prohibited reverse situation, where the fate of a norm of current legislation determines the fact of a norm of the Constitution of Ukraine. This means that the content of a norm of a lower juridical level potentially (before the actual vote) and kinetically (during the vote) acted upon the content of a norm at a considerably higher juridical level.

In the formal logical sense this means that the attitude of parliamentarians to a norm of lower juridical force not only had an optional influence, but also directly influenced their attitude to a norm of the highest juridical force. The opposite side of the coin was also present, but since this in the juridical sense was acceptable (correct), it can be left without commentary. In this way something unacceptable in any organic legal system of government took place: a norm of current legislation (an amendment to electoral legislation) a priori defined the content at the same time of many constitutional norms.  This means that the normative power of an ordinary, operational level governed a normative axiomatic system of law (in the legal sense the Constitution is a collection of juridical axioms) through structural changes to its general meaning and content. From the point of view of the theory of management, this can be compared with the artificial creation of information noise when adopting responsible managerial decisions. As a result, the joint “package” vote did not elucidate, as the principles of constitutional procedure demand, but rather blurred the awareness of State Deputies in voting on issues of general state significance and substance.

One of the principle features of the Ukrainian constitutional legal system lies in the lack of recognition of the possibility of discretionary powers of state executive bodies and bodies of local self-government.  As Article 6 § 2 of the Constitution of Ukraine states: “Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”.  In Article 19 § 2 of the Constitution this requirement  is specified by a particular norm which stipulates: “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”. 

The general level and specific limits of freedom of choice in any particular actions (variants of behaviour) of state executive bodies and bodies of local self-government, as well as of their officials, are defined directly by norms of the Constitution and laws of Ukraine, and are not subject to broadened application. From this, in turn, the ban automatically follows on the highest body of legislative power – the Verkhovna Rada of Ukraine – attempting any free modifications of strict constitutional procedures, as well as of any others envisaged in Ukrainian law.  Unfortunately the “package” vote of 8 December 2004 was just such a modification (a spontaneous reconstruction) of constitutional procedure.

We know that before the vote on 8 December 2004, Ukrainian State Deputies arranged, that is, they made an agreement to vote on a “package”. However we would stress that the constitutional law of Ukraine is an area not of private (or civil), but of public law in which “freedom to make agreements” with regard to the highest state bodies of Ukraine is not recognized. In the juridical sense this means that in Ukrainian constitutional law free agreements within bodies of state power have no legal basis. Thus a mutually linked vote on constitutional amendments and common law is a flagrant breach of the requirements of the Constitution of Ukraine and a serious distortion of its procedural norms.

Here we consider it necessary to stress that the “package” vote devalues the highest juridical force of the norms of the Constitution, but cannot devalue the ordinary law.  The latter’s very dependence, after all, on the Constitution is a component of the asumption of the said Constitution’s higher force. There is also the formal aspect: in the constitutional list of powers of the Verkhovna Rada (Article 85 of the Constitution) there is no mention of the possibility of making free agreements with regard to the procedure for introducing amendments to the Main Law.. Nor is there any mention of the possibility of interconnected voting in a “package” of constitutional and ordinary amendments in the Regulations of the Verkhovna Rada of Ukraine.

Furthermore, as is stipulated in Article 157 § 2 of the Constitution of Ukraine: “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. A teleological interpretation (on the intended purpose and functional role) of the given norm shows that the Constitution of Ukraine may not be changed (even given compliance with formal procedure) in conditions of excessively heightened emotions, partisan and politically galvanized public opinion. The prohibition on introducing amendments to the Constitution of Ukraine in such a period should in no way be understood as a formality. The given ban is defined not only by the letter, but also by the spirit of the Constitution of Ukraine. Thus, in order to introduce constitutional amendments, relative social harmony, balance and civic rest are required.  The “package” vote instead took place at the peak point of civic confrontation, in conditions of, albeit bloodless, nonetheless real revolution.

All of the above convinces us that the joint  (“”package”) vote on introducing amendments to the Constitution of Ukraine was a grave violation of the Constitution’s own norms, for example, Article 155 and Article 157 § 2 of the Constitution. Organic constitutions are legal documents which foresee possible threats of political challenges which are tempting for the political elite of any country.  It is clear that political ambitions are unbounded and can corrupt even the strongest character.  Exceptions in the given case are possible, but they only serve to confirm the rule. Thus, the temptation to make changes to the established order of things is one of the typical features of any political establishment. It is precisely such temptation that the constitutional order, protected by guarantees of stability, is designed to withstand.  Any other attitude would in our view be a betrayal of the universal principles of constitutionalism.

Ukraine is a young democracy, and is therefore especially easily swayed towards disruption of political balance. The newly-elected President of Ukraine declared Ukraine’s political objective to be becoming part of a united Europe.  Ukraine’s European choice was supported in December 2004 by the people on Maidan Nezalezhnosti [Independence Square] in Kyiv. However the modern European way of thinking envisages a very highly-developed legal awareness. It would be better to understand this fully ourselves, rather than reading it between the lines of the latest opinion from the Venice Commission. Unfortunately, the juridical style of introducing the “political reform” in Ukraine does not yet bring us closer, but rather significantly distances us from Europe.

This is, for example, effectively confirmed by the Opinion regarding observance of procedure during the introduction of amendments to the Constitution provided by the National Commission for the Strengthening of Democracy and the Rule of Law[15], which specially mentions the inadmissibility of adopting amendments to the Constitution as a “package” vote. Moreover, the Commission noted that the Law passed on 8 December 2004 No. 2222-VI in its content differed from the draft law which the Constitutional Court had previously given a positive assessment of, this breaching Article 159 of the Constitution of Ukraine. Nor did it comply with the Judgment of the Constitutional Court from 9 June 1998 regarding an official interpretation of Article 158 § 2 and Article 159 of the Constitution of Ukraine.  The Commission reached the general conclusion that the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 should be viewed as an actum nullum ab initio [an act which is invalid from the outset] and could therefore not be considered a component part of the current Constitution of Ukraine.

  In our opinion, all of these circumstances demand the involvement of the Constitutional Court in an analysis of the situation. We are therefore proposing that a petition be addressed to the Constitutional Court asking for an interpretation of Article 155, Article 157 § 2 of the Constitution of Ukraine, that is, asking the Court whether the possibility of the interconnected “package” vote held on 8 December 2004 by the Verkhovna Rada can be deemed to constitute correct legal procedure for introducing amendments to the Constitution of Ukraine.

In particular, elucidation in the form of an official interpretation of Article 155 and Article 157 § 2 of the Constitution of Ukraine is needed, in our opinion, to clarify the following legal questions:

a) whether the procedure for introducing constitutional amendments in accordance with the rules of Article 155 of the Constitution of Ukraine allows for the possibility of a joint  “package” vote on both introducing amendments to the Constitution of Ukraine and making amendments to an ordinary law of Ukraine;

b) whether  it follows from the use by the Verkhovna Rada of Ukraine on 8 December 2004 of a joint “package” vote on the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, together with the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004” that the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, cannot enter into effect;

  c) whether  it follows from the fact that, in conditions of a basically revolutionary situation, the Verkhovna Rada of Ukraine held a vote on passing the No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, that the given Law cannot have legal force since it was adopted with infringements of the requirements foreseen in Article 157 § 2 of the Constitution of Ukraine;

  d) whether it is possible at all to introduce amendments to the Constitution of Ukraine by means of a joint “package” vote on those amendments together with amendments to current Ukrainian legislation.

  In concluding our analysis of the level of compliance with the requirements of constitutional legality in Ukraine in 2005, we would also like to express certain reservations regarding the fact that in accordance with the “political reform”, the Verkhovna Rada of Ukraine and the President of the country have the opportunity not only to appoint, as before, but also to dismiss those judges of the Constitutional Court whom they appointed (point 26 of Article 85 § 1, point 22 of Article 106 § 1 of the Constitution of Ukraine). Although a comprehensive list of grounds (procedural guarantees) for the early dismissal from office of constitutional judges is provided in the Law “On the  Constitutional Court” of Ukraine from 1996 р., practice in reality suggests that the norms of the ordinary (as opposed to constitutional) legislative level are far from always taken into account by high-ranking Ukrainian state officials.  In particular, the norms of precisely this juridical level were ignored by President Yushchenko in 2005 when dismissing Sviatislav Piskun from his post as Prosecutor General of Ukraine.  Nor was the precedent created in the vote in the Ukrainian parliament in 2006 on the dismissal of Yury Yekhanurov’s government any better.  At that time Ukrainian State Deputies under the leadership of Speaker V. Lytvyn ignored procedural norms at already a constitutional level.

We are firmly convinced that the maintaining of full influence of the Ukrainian parliament and President on the professional fate of judges of the Constitutional Court, who are highly-paid and therefore sharply distinguished from the state apparatus, will lead to their effectively being transformed from judges to puppets of the executive or legislative branches of power in the state. And this, in light of the constitutional principle of the division of power and of the rule of law, is absolutely inadmissible.

Recommendations

1  that the newly-elected Verkhovna Rada of Ukraine must, as soon as the possibility arises, ensure the immediate swearing-in of the judges of the Constitutional Court already appointed by the President of Ukraine and the Congress of Judges of Ukraine;

2  that the newly-elected Verkhovna Rada of Ukraine must, as soon as the possibility arises, appoint the remaining judges of the Constitutional Court in accordance with their quota, and that it then also swears in their judges;

3  that those authorized (the President of Ukraine, 45 State Deputies of Ukraine, etc) should present a submission to the Constitutional Court of Ukraine asking for an interpretation of Article 155 and Article 157 § 2 of the Constitution of Ukraine, the results of which could legally and finally decide the fate of the Ukrainian “political reform”;

4  Regardless of whether the Judgment of the Constitutional Court of Ukraine be positive or negative with regard to the fate of the “political reform”, it is necessary to abolish the procedure according to which (point 26 of Article 85 § 1, point 22 of Article 106 § 1 of the Constitution of Ukraine in the version updated in accordance with the “reform”) the President of Ukraine and the Verkhovna Rada of Ukraine are empowered not only to appoint, but also to dismiss judges of the Constitutional Court

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[1]  Prepared by Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Protection Group and Chairperson of the Ukrainian Helsinki Human Rights Union

[2]  Here and hereafter in this text ‘constitutional reform’ refers specifically to the constitutional amendments passed in a ‘package vote’ also including crucial electoral law reforms on 8 December 2004.  The amendments reduce the powers of the President and create a situation where some Ministers answer to the President, while others directly to the Prime Minister. They also make it possible to deprive State Deputies of their mandate if they oppose or leave their faction, and give greater power to the Prosecutor’s office. The constitutional changes came into force on 1 January 2006. (translator’s note)

[3]  Individuals (or groups) are presently not able to directly submit submissions or motions  to the Constitutional Court  (translator’s note)

[4]  Hannah Arendt (1906 – 1975) Political philosopher and author of “The Origins of Totalitarianism” and “On Revolution”  (translator’s note)

[5]  Oleksandr Yelyashkevych was a Member of the Verkhovna Rada  from 1994 to 2002.  He attempted to have the Melnychenko tapes, and the Gongadze case in general investigated.  After an attempt on his life, he left the country, and was granted political asylum in the USA in 2002 (translator’s note)

[6]  The 10-point “Memorandum of Understanding between the Authorities and the Opposition”, signed in late September 2005, just before the second vote in Parliament to have Yushchenko’s choice of Prime Minister, Yekhanurov, accepted. (translator’s note)

[7]  These Articles cover crimes involving preventing people exercising their electoral rights, vote rigging and machinations with vote counts. (translator’s note)

[8]  The text of the Concept is available on the Ministry of Justice website (in Ukrainian) : http://minjust.gov.ua/?do=d&did=7306

[9]  It is the Orthodox Church under the Moscow Patriarchate which has been strongly opposed to the introduction of individual identification numbers (translator’s note)

[10]  Ukrainians have two ‘passports’ – one is effectively the person’s identity document which everybody must have, while people may or may not have a ‘foreign passport’ needed for travelling abroad. (translator’s note)

[11]  For this review we used information regarding the implementation in 2005 of the Ukraine – EU Action Plan (Instruction of the Cabinet of Ministers of Ukraine from 22 April 2005 No. 117), provided as material from bodies of power (as of 13 February 2006).  The information is available (in Ukrainian) at: http://kmu.gov.ua/document/31423693/мониторинг_укр%2013.02.06%20-2.doc

[12]  Prepared by the legal expert of the Kharkiv Human Rights Group, Vsevolod Rechytsky

[13]  The data, for example, given in this article were simply taken from the Internet

[14]  Prepared by Vsevolod Rechytsky, constitutional specialist for the Kharkiv Human Rights Protection Group

[15]  Opinion regarding observance of procedure during the introduction of amendments to the Constitution of Ukraine of 1996 through the adoption of the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV and on the conformity of its provisions with the general principles of the Constitution of Ukraine of 1996 and with European standards”, passed at the third plenary session of the Commission on 27 December 2005. Available (in Ukrainian) on the Ministry of Justice’s website:: www.minjust.gov.ua.