FOR THE RECORD: PACE resolution on developments in Ukraine (02/08/04)

FOR THE RECORD: PACE resolution on developments in Ukraine

Below is the text of Resolution 1364 (2004)[1], adopted by the Parliamentary Assembly of the Council of Europe in Strasbourg, Germany, on January 29, by a vote of 46 in favor and 13 against.

1. The Assembly is deeply troubled by the recent developments in Verkhovna Rada of Ukraine relating to the consideration of the draft law on amendments to the Constitution of Ukraine and in this context refers to its Resolutions 1179 (1999), 1239 (2001), 1244 (2001), 1346 (2003) and in particular to Recommendation 1451 (2000) on the institutional reform in Ukraine. It notes that recently a procedure has been initiated, which is not in compliance with the Rules of Procedure of the Verkhovna Rada or Article 19 of the Constitution of Ukraine.

2. The Assembly deeply regrets that the Ukrainian authorities, including the President of Ukraine and the Ministry of Foreign Affairs, consider the activities of the Council of Europe, namely the Assembly's monitoring procedure, the visits of the co-rapporteurs of the Monitoring Committee and their statements as "interference in the internal affairs of Ukraine."

In this regard, it recalls that Ukraine has voluntarily accepted the obligations arising from its membership according to the Statute of the Council of Europe. Therefore, the Assembly finds such a stand of the Ukrainian authorities groundless and unjustified.

3. The Assembly supports any sincere aspirations by both the executive and the legislative authorities of Ukraine to pursue democratic reforms that would aim at substantially strengthening the legislative power and enhancing the independence of the judiciary, thus contributing to a greater separation of powers and an improved system of checks and balances as required by the standards of the Council of Europe.

4. The nature of the reforms as well as the system of governance chosen is an internal affair of any sovereign state, but only as long as they are carried out with due respect to the fundamental law of the country.

5. In this respect, the Assembly reiterates that the current Constitution in force since 1996 constitutes the main domestic legal instrument on the basis of which the country can develop a genuine democracy and insists on strict respect of its provisions, in particular as regards amendments to the Constitution, whatever their necessity and appropriateness.

6. Within this context, the Assembly is convinced that any decision reforming the constitutional election rules taken on the eve of presidential elections is likely to be biased and divisive and therefore considers the timing of the current debate on constitutional reform highly inappropriate.

7. The Assembly strongly regrets the fact that the crisis in the Verkhovna Rada has been sparked by lack of discussion of the officially registered draft amendments to the Constitution. The Assembly finds that such practices are inappropriate in a democratic state guided by the principles of the rule of law.

8. At the same time, it deplores the means the opposition has resorted to in retaliation in order to block the regular work of Parliament.

9. The Assembly refers to the opinion of the European Commission for Democracy through Law ("Venice Commission") adopted on December 13, 2003, which welcomed the efforts made for the reforming of the system of government to bring the Ukrainian system closer to European democratic standards but concluded that "the precise solutions chosen in the various drafts do not yet seem to have attained that aim and introduce other amendments to the Constitution that would appear to be a step backwards."

10. The Assembly deplores the fact that none of the recommendations of the Venice Commission have been taken into account in the course of the revision of the three Draft Laws (Nos. 3207-1, 4105 and 4180) by the Constitutional Court of Ukraine nor by the ad hoc parliamentary Constitutional Committee before submitting the Draft Law No. 4105 for discussion in the Verkhovna Rada. The Assembly therefore urges the relevant Ukrainian authorities to take into account all recommendations made so far by the Venice Commission and to continue to hold an open and effective dialogue with the Commission with a view to further improving the draft laws currently under debate.

11. The Assembly launches an urgent appeal to the parties and blocs, to parliamentary factions and groups represented in the Verkhovna Rada to resolve their problems in a peaceful manner through an open dialogue and full respect for parliamentary rules and regulations by means of:

i. securing the legitimacy of any constitutional reform by admitting that, in this instance, the Rules of Procedure of the Verkhovna Rada failed to be respected by all parties concerned, taking into account that "voting by raising hands" in Parliament is not provided for by law, including the Rules of Procedure;

ii. proceeding to an open debate on all three Draft Laws (Nos. 3207-1, 4105 and 4180) on constitutional amendments which would involve a proper public information and a nationwide popular discussion on these issues, especially pluralistic political debates on national TV and Radio channels;

iii. fully taking into account the recommendations of the Venice Commission while amending the Constitution and in particular reconsidering their position regarding the imperative mandate of national deputies, the limitation to 10 years of the judges' tenure and the extension of the mandate of the prosecutor general, which all conflict with the principles of democracy and the rule of law;

iv. ensuring that the next presidential election be held as scheduled and for the term prescribed in the current Constitution, in view of the fact that changing the election modalities immediately before the elections are due can only but confuse the electorate;

v. agreeing to submit any constitutional changes relating to the term and mode of election of a president to a nationwide referendum as provided in Article 156 of the Constitution in force.

12. The recent rulings of the Constitu-tional Court have once again shown the vulnerability of the independence of the judiciary in Ukraine. In the earnest belief that only a fully independent judiciary can provide the stability that is necessary to establish the rule of law, the Assembly is concerned by the ruling of the Constitutional Court of Ukraine of December 25, 2003, (Nos. 22-rp) as it corresponds neither to the present nor to the previous Constitution of Ukraine in force when President Kuchma was first elected in 1994.

The Assembly still hopes that the President of Ukraine will demonstrate democratic responsibility by stepping down at the end of his second term as foreseen by the Constitution of Ukraine.

13. With regard to the forthcoming Presidential elections in October 2004, the Assembly shares the concern of many Ukrainian citizens that the election may not be truly free, fair, open and transparent. It maintains that any form of authoritarian practices like intimidation of voters, pressures on elections commissioners, curtailing the freedom of expression or bias of the media in favor of some candidates of the ruling political forces is clearly unacceptable. When full respect has been given to all these elements, the outcome of the elections also has to be respected.

14. The Assembly calls upon the president of Ukraine to submit in the nearest future the proposed candidates to fill the seats in the Central Electoral Commission which are vacant since the expire of the mandate of the former incumbents.

15. In the light of the above findings, the Assembly calls upon the Secretary General of the Council of Europe to urgently appoint a Special Representative in Ukraine whose mandate should be to follow current political developments in Ukraine, to provide advice and Council of Europe expertise if and when needed and generally to enhance and co-ordinate the ongoing co-operation with Ukrainian authorities.

16. It also considers that the activities relating to the Council of Europe media action plan agreed with Ukraine should be stepped up in order to achieve a noticeable improvement of the general framework in which media operate and to promote substantial changes in the media culture in view of the forthcoming election campaign.

17. The Assembly is also concerned about the recent events in the town of Mukachevo [Mukachiv] concerning elections of the mayor and urges to resolve this problem in accordance with the legislation of Ukraine. The Assembly recommends that the Congress of Local and Regional Authorities of the Council of Europe undertake the monitoring mission over the future elections of mayor in the town of Mukachevo aiming at free and impartial elections.

18. The Assembly is of the opinion that the recent infringements of the voting procedures in the Verkhovna Rada violate Ukraine's obligations under Article 3 of the Statute of the Council of Europe. If any further attempts should be made to push through political reforms by amending the Constitution in a manner which is not prescribed by law and by unconstitutional means, or if Ukraine should fail to guarantee free and fair elections on October 31, 2004, the Assembly may decide to challenge the credentials of the Ukrainian Delegation in accordance with Rule 9 of the Assembly's Rules of Procedure and subsequently may decide to request the Committee of Ministers to suspend the membership of Ukraine in the Council of Europe in accordance with Article 8 of the Statute of the Council of Europe.

19. The Assembly will continue to closely follow the developments in Ukraine and stands ready to contribute to an effective dialogue between the political forces represented in the Verkhovna Rada.

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