The Parliamentary Assembly welcomes the first achievements of the new leadership but notes that a lot remains to be done to ensure the success of the reforms which Ukraine badly needs. The post-revolutionary situation should not become an alibi for hasty decisions, infighting and neglect for democratic and human rights standards. The fight against corruption and the strengthening of the rule of law should be a priority for Ukraine in order to build solid and lasting foundations for a stable, prosperous and democratic future.
The Assembly commends the authorities for the progress made since its previous report in 2003 and welcomes the broad reform agenda. However, it reminds the country's leaders that a number ofimportant specific commitments still remain unfulfilled, in particular the adoption of the new Criminal Procedure Code, the reform of the prosecutor's office, the establishment of a truly professional bar association and the ratification of the European Charter for Regional or Minority Languages.
The draft resolution also lists a number of other recommendations, the implementation of which will show whether Ukraine truly adheres to the principles of pluralistic democracy, the rule of law and respect of human rights.
The Assembly proposes to pursue its monitoring and to return to the assessment of Ukraine's compliance with its obligations and commitments after the March 2006 parliamentary and local elections. The preparation and conduct of these elections, in line with Council of Europe standards, will be a major test for the new authorities. The Assembly will also assess the functioning of democratic institutions and the progress in the implementation of significant reforms in the country by using the concrete benchmark recommendations which are proposed in the draft resolution.
To live up to the high expectations generated by the Orange Revolution, the new leadership has pledged sweeping political, legal, social, and economic reforms. In the first nine post-revolution months, it has nonetheless encountered numerous difficulties originating in particular from the years of rule of the previous regime as well as from internal conflicts within the new administration.
The Parliamentary Assembly welcomes the positive evolution in Ukraine and the first achievements of the new President and Government. It hopes that the new leaders will manage to preserve their steadfast resolve and to succeed in the crucial reforms which Ukraine badly needs. In this regard, the preparation and conduct of the 2006 parliamentary and local elections, in line with Council of Europe standards, will be a major test for the new authorities. The 2006 elections will show whether Ukraine has passed the point of no return on its road to becoming a truly democratic European state governed by the rule of law. In this respect, the Assembly declares its readiness to send a pre-electoral mission to Ukraine to follow the preparations for the elections and subsequently to deploy a large-scale observer mission to follow their conduct.
The Assembly is pleased to note that Ukraine has since made further significant progress:
1. A new Civil Procedure Code entered into force on 1 September 2005;
2. A Code of Administrative Justice was adopted in July 2005 and put into effect on 1 September 2005, enabling the operation of administrative courts;
5. Publication of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) report was authorised;
6. A law on public financing of political parties came into effect on 1 January 2005;
7. A law that reinforced prosecution of torture and the protection of the rights of detained and arrested persons was adopted in January 2005;
8. A law strengthening the State service for enforcement of non-criminal judicial decisions was adopted in June 2005;
9. The draft law on the establishment of the system of public television and radio in Ukraine was adopted in the first reading as well as a new version of the law on TV and radio broadcasting; a new law on the national council on broadcasting was enacted;
10. The Convention on the Prevention of Terrorism were signed respectively in May 2005;
11. The European Agreement relating to persons participating in proceedings of the European Court of Human Rights and the Civil Law Convention on Corruption were ratified respectively in November 2004 and March 2005.
The Assembly also commends the new authorities for eliminating the previously widespread censorship practices with regard to mass media and ensuring freedom of expression and freedom of assembly throughout the country. The new leadership has furthermore embarked on comprehensive measures aimed at curbing rampant corruption and committed itself to fighting human trafficking.
Whilst welcoming the zeal of the new authorities with regard to the prosecution of previous election frauds, the Assembly underlines that it is of utmost importance to bring to justice not only those who executed illegal orders but also the masterminds behind the massive election fraud, those who instigated violence or bribed voters, in order to prevent future infringements and to instil the principles of the rule of law.
The Assembly notes that the new wording of the Law on the Elections of People's Deputies, adopted in July 2005, has significantly enhanced the election procedures and taken account of the recommendations of international observers issued after the last presidential elections. However, the new law introduces the possibility to suspend the activities of media outlets, including without a prior court decision, which is highly susceptible to abuse. The Assembly, therefore, urges the Ukrainian authorities to amend this provision as soon as possible and to enact legislation on the state registry of voters. Legal liability for election violations listed in the new law should be established as well.
The Assembly deeply regrets that the constitutional amendments of 8 December 2004, adopted as part of a package deal to halt the political turmoil, contained provisions which the European Commission for Democracy through Law (Venice Commission) has repeatedly found incompatible with the principles of democracy and the rule of law, in particular with regard to the imperative mandate of people's deputies and the powers of the prosecutor's office. These provisions should be brought in line with the Venice Commission opinion as soon as possible.
Whilst welcoming the broad reform agenda of the new authorities, the Assembly considers that the following specific measures need to be taken in order to accelerate the reforms that will transform Ukraine into a stable and prosperous European democracy.
With respect to the improvement of the conditions for the functioning of pluralist democracy in the country, the Assembly calls on the Ukrainian authorities to:
- adopt the laws on the functioning of the branches of power, as required by the Constitution, in particular to enact as soon as possible the laws on the President of Ukraine and on the Cabinet of Ministers of Ukraine;
- strengthen the oversight function of the Parliament, in particular to adopt the law on the Verkhovna Rada's temporary special and investigatory commissions; establish legislative guarantees and conditions for the functioning of parliamentary opposition; streamline the Parliament's internal activity by adopting a law on the new Rules of Procedure;
- continue the reform of local self-government in order to implement the provisions of the European Charter of Local Self-Government;
- transform the State broadcasters into public service broadcasting channels in line with relevant Council of Europe standards; exclude the control of public authorities over any other mass media outlets; guarantee the transparency of media ownership; create equal conditions for the functioning of all media by revising the 1997 law on governmental support for the media and social protection of journalists; ratify the European Convention on Transfrontier Television.
With regard to the respect for the rule of law and protection of human rights, the Assembly calls on the Ukrainian authorities to:
- continue the reform of the judiciary in order to ensure its independence and effectiveness. To this end, in particular, to subordinate the State Judicial Administration to the judiciary; to transfer to the latter the authority to appoint presidents of courts; to allocate to it all necessary resources, notably for the functioning of administrative courts vested with the adjudication of election disputes and to guarantee by law the level of remuneration of judges;
- ensure that the composition of the Constitutional Court of Ukraine is renewed without undue delay after the expiration of the term of office of its justices;
- establish a professional Bar association, by adopting a new law on the Bar without further delay, as required by the Assembly's Opinion No. 190 (paragraph 11.ix.) and in compliance with the principles of the Council of Europe and the case-law of the European Court of Human Rights;
- regretting the step back in the reform of the Prosecutor's Office marked by the December 2004 constitutional amendments, modify the role and functions of this institution as required by the Assembly's Opinion of the transitory provisions of the 1996 Constitution of Ukraine and in line with the Assembly's Recommendation on the role of the public prosecutor's office in a democratic society governed by the rule of law;
- continue to reform the Security Service of Ukraine in line with Council of Europe standards;
- finalise the new version of the draft Criminal Procedure Code and adopt it without further delay to comply with the commitment for which the initial deadline expired in November 1996. The final version of the draft Code should be debated in the Parliament only after the opinion of Council of Europe experts on the final text is obtained and taken into account;
- further improve conditions of detention and medical treatment in the penitentiary establishments in line with CPT standards and recommendations; finalise the transfer of the State Department for the Execution of Punishments to the Ministry of Justice as required by Opinion; continue the commendable practice of authorising the publication of CPT reports with respect to Ukraine;
- continue efforts aimed at fighting corruption and make sure that economic reforms do not simply lead to the redistribution of power among oligarchs; take full advantage of Ukraine's participation in the Group of States against Corruption (GRECO) and ratify the Criminal Law Convention on Corruption;
- step up the activities in the field of combating trafficking in human beings, allocate sufficient resources for this purpose and ratify the Council of Europe Convention on action against trafficking in human beings;
- improve the democratic control over the law enforcement bodies, continue to apply a zero tolerance policy and to secure prompt, impartial and full investigation into all allegations of torture and other ill-treatment, including prosecution and punishment of those responsible of these acts;
- guarantee the protection against arbitrary or illegal detention; secure strict compliance by law enforcement bodies with the principles of due criminal procedure, in particular whilst investigating election and corruption related offences; abrogate provisions banning an attorney from the representation of his/her clients if a criminal case was instituted against him/her;
- improve the conditions of access to court by establishing a system of free legal aid in line with Council of Europe standards and the case-law of the European Court of Human Rights;
- establish effective control over the interception of communications by law enforcement bodies and to this end adopt special legislation, which would comply with the democratic standards on the protection of privacy and national security;
- with regard to the Gongadze case and following the promise of the new leadership to solve the case and the indictment of the alleged perpetrators, consider the case solved only after those who ordered, organised and executed the murder are brought to justice, i.e. subjected to a fair trial before a criminal court; investigate and if necessary prosecute the officials responsible for the shortcomings of the previous investigation;
- referring to the Assembly's Resolutions, conduct a credible examination of the recordings allegedly made by Mykola Melnychenko and obtain his testimony; launch a new investigation into the case of MrYeliashkevych and other high-profile cases allegedly documented on the Melnychenko recordings; allow the Verkhovna Rada's ad hoc inquiry commission on the Gongadze and other high-profile cases to present its findings to the parliament's plenary meeting;
- enhance the legal framework for access to information, strictly adhere to Article 34 of the Ukrainian Constitution on freedom of information while classifying documents and declassify all official documents which were closed to the public contrary to the law;
- introduce clear rules on the restitution of church property as required by Opinion;
- conclude the ratification procedure with regard to the European Charter for Regional or Minority Languages without further delay and thus comply with the commitment for which the initial deadline expired in November 1996;
- implement in good faith the Framework Convention for the Protection of National Minorities, especially in the field of education, and revise the 1992 Law on national minorities in Ukraine taking into account the recommendations of the Venice Commission and the Advisory Committee on National Minorities;
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