Українською | In English
Viche 2011 №21

№21, 2011

"European" comments and none of suggestions that would not concern the constitutional amendments

Persistent attempts to establish European principles combined with the rapid reform of the basic principles of social development, which primarily should be based on rather transparent and fair regulatory and legal requirements, once again brought Ukraine to the experts of the European Commission for Democracy through the Law (Venice Commission), which during the Session # 88 (14-15th of October 2011) considered four Ukrainian laws by providing the leadership of our state with correspondent conclusions and recommendations
In principle, the basic set of remarks was directed to detail the separate articles, documents and to specify certain provisions or terms available in their articles. However, despite the generally positive assessment of the Ukrainian legal "sketches", both the Venice Commission (VC) and the Office for Democratic Institutions and Human Rights of OSCE (which is also joined to the examination of the certain layers of the Ukrainian legislation) had to say in favor of European legislation tradition, which projects, unfortunately, are not fully complied with the Ukrainian laws.

Taking into account the results of September visit to Ukraine of the Venice Commission representatives, the national heads were trying to consider the most of given recommendations of the experts, once again passing to the VC the draft of the document. However, due to the fact that political relations between pro-government forces and opposition as well as the importance of the civil society in our country to put it mildly do not meet “European standards”, the committee still contains recommendations for amendments to specific provisions of the law draft that have to reform the justice system. Moreover, the European experts proposed to official Kiev to change certain provisions of the Constitution to reconcile the key points of the new law with positions inherent to the European legislation.

 

Thus, in paragraph 1 of Article 9 of the law draft there is the right of the citizen to be elected as MP based on condition: living in Ukraine during the last five years. Experts believe that this requirement is "excessive and unnecessary", but, taking into account that this restriction is based on the provisions of Article 76 of the Constitution of Ukraine, they can only hope that this problem will be considered during the revision of the Basic Law. This includes provision which recommends for election candidates who are accused of committing secondary and minor crimes: due to experts' opinion, the elections shouldn’t allow those citizens who are accused of committing serious crimes only.

In case of appointment of the person for the judge position for the first time, the commission questioned the advisability of his staying in such status for five years. The recommendation to reduce this period by two years was given by the European experts in October 2010. It is proposed to amend Article 126 of the Constitution of Ukraine. Because, they say, the differences of the official position designated for permanent and temporary judges make the last dependent on the legislative and executive power. Note that the five-year term of being on the position for newly appointed judge is stated not in Article 126, but in Article 128 of the Constitution of Ukraine. As for the recommendation of the Venice Commission to deprive these judges of the possibility, do not say even the right, to consider political affairs, reported earlier: Ukraine has a system of automatic case assignment between judges. And besides, who and what criteria will determine whether it is a political issue or not? Because the criminal case can make a big politics ... So supposedly some recommendations of VC caused not due to special features or duration of the judges on their positions: the current political situation makes some corrections to any area of ​​international relations.

It is proposed to delete those provisions that establish the order of assembly on the premises of the prison, providing a sort of "statutory rights" of assembly members to accept decisions during its conduction; oblige the State to provide necessary material and technical support to peaceful assembly.


 Article 18, for example, contains provisions regarding mandatory notification of peaceful assembly, but these rules are quite contradictory. Thus, in paragraph 3 of this article it is requested to report about the future conduction of a peaceful assembly 3 days in advance, in paragraph 9 - 6 hours, in paragraph 10 - 24 hours, in paragraph 11 - 48 hours. As a result, during preparation for the meeting may occur not only differences related to time-frames of notification about it, but difficulties because of too short terms of event organization. Accordingly, the VC offers to choose a single deadline notification regarding assembly, defining it four days in advance as optimal.

Yulia Tsyrfa