середа, 2 жовтня 2013 р.

Civic monitoring: At the moment there is no guarantee that the Association Agreement with the EU will be signed

Yesterday, experts of the Civic monitoring of benchmarks implementation for signing EU-Ukraine Association Agreement presented their second comprehensive report. The full text in English is available here.
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As of 1 October 2013, the monitoring confirms that Ukraine has achieved certain progress with regard to most of the 11 benchmarks since the first comprehensive monitoring report released on 18 June this year. Over the last few months, to a large degree as a reaction to the unconstructive pressure from Russia, the consensus among the political elite developed regarding the priority of implementing measures for Ukraine signing the Association Agreement with the EU. As a result, a positive trend emerged, in particular in adopting some necessary laws by Ukrainian parliament.

Notwithstanding, as of today there is no confidence that this trend and present achievements are sufficient to guarantee the signing of the Agreement this November. There might be different interpretations of the current situation as to how “tangible” the progress is and whether the glass is half empty or half full. In political discourse, interpretation currently prevails over facts. In the end, the institution that sets such criteria – the Council of the European Union, made up of representatives of all EU member countries - will assess the progress. A working group has been active since the end of September and on 21 October the Council of the EU will review the issue of signing the Agreement with Ukraine. If a consensus is not reached, the decision to sign the agreement could be made at the next meeting of the Council on 18 November (10 days prior to the Vilnius summit).

While the government of Ukraine and EU Commissioner for Enlargement and Neighbourhood Policy Stefan Fule express great optimism and positive assessments, much of it is based on what still is expected (like adoption of the new law on prosecutor’s office, which has yet to be submitted to the parliament). At the same time, the European Parliament once again postponed the report of the Cox-Kwasniewski mission to 15 October. On the one hand, this means that the EU is not removing the principle issue of Yulia Tymoshenko as a condition for signing the agreement, and on the other hand, there is still time to resolve this issue.

As far as the elections are concerned, the parties hereto have finally begun open discussion of reform of electoral laws (upon the initiative of the EU), though there are so far no concrete results. The most positive sign in this sphere is that by-elections have been set for 15 December 2013 in 5 single mandate districts where no results were established in last year’s parliamentary elections. However, the case of two MPs elected in single mandate districts whose mandates were revoked by questionable rulings of the court has not been resolved; moreover, one more such case occurred. The local elections in Kyiv were postponed by a controversial ruling of the Constitutional Court.

Progress was made in the execution of the pilot judgment of the European Court of Human Rights in the case of Yuriy Mykhaylovych Ivanov v. Ukraine. The corresponding amendments were made to the legislation on the execution of rulings by Ukrainian courts regarding the arrears of state social benefits payments. Still, several important judgments of the European Court of Human Rights have not been executed – in particular, in the cases of Yuriy Lutsenko, Yulia Tymoshenko, Oleksandr Volkov and Oleksiy Verentsov.

There are several positive results from the introduction of the new Criminal Procedure Code (in particular, the considerable decline in the number of individuals held in pre-trial detention centres), as well as the introduction of a system of free legal aid and a national preventive mechanism against torture. Also, some improvements have been made to the Penal Code as it applies to the detention of the imprisoned.

Constitutional amendments regarding the reform of the judicial system that received positive opinions from the Venice Commission and the Constitutional Court have been submitted to the parliament of Ukraine for consideration. However, there has been blatant disregard of the need for parallel introduction of fundamental changes to the law on the judiciary, without which these constitutional amendments may only strengthen the political dependence of the courts, particularly on the president.

A new draft law regarding the prosecutor’s office, which in October should receive the opinion of the Venice Commission, is currently being prepared for submission to the parliament. At the same time, the establishment of a State Investigation Bureau and reform of the police is on hold. Although a number of important laws in the fight against corruption were adopted, they still need improvement.

It is anticipated that the Concept of Amendments to the Constitution will be drafted by mid-October and submitted for a second consideration by the Constitutional Assembly. The critical opinion of the Venice Commission published back in June regarding the current law on national referenda in Ukraine, which allows for unconstitutional introduction of amendments to the Constitution, was completely ignored by the Ukrainian government.

Amendments have been made to the Constitution expanding the powers of the Accounting Chamber of the Verkhovna Rada to control not only expenditures but also revenues to the national budget. At the same time, the chamber’s authorities do not apply to local budgets. The government approved, but has not yet made public, the Public Finance Management Strategy. There seems to be no progress in the drafting of a programme for the implementation of the Association Agreement with the EU and eliminating the concerns of the EU in the sphere of trade regarding the protectionist measures of Ukraine.

The monitoring experts formulated a package of proposals (European integration package) with 20 recommendations to be as soon as possible fulfilled in order to strengthen confidence in the positive decision of the EU regarding the signing of the Association Agreement with Ukraine:
  1. To find a mutually acceptable mechanism for resolving the Tymoshenko case via mechanisms discussed with the Ukrainian leadership and Yulia Tymoshenko by the Cox-Kwasniewski mission;
  2. To pass a new Law on the election of people’s deputies taking into account the conclusions of the Venice Commission and the positions of civil society organisations;
  3. To create a working group in the relevant parliamentary committee to draft and get approval of the Election Code no later than March 2014;
  4. Verkhovna Rada to adopt a decision on holding local elections in Kyiv;
  5. To safeguard free and fair by-elections in 5 single mandate districts on 15 December 2013;
  6. To resolve the conflict over revocation (by questionable court rulings) of mandates of several MPs;
  7. To adopt the Laws on public television and radio (draft No.1076, taking into account the expertise of the Council of Europe) and on reform (“denationalisation”) of print media (draft No.2600);
  8. To adopt amendments to the Penal Code of Ukraine to improve the conditions of detention of prisoners (draft No.3200);
  9. To stipulate the appropriate financing of the system of free legal aid in the 2014 State Budget;
  10. To make amendments to the Law on national referenda according to the opinion of the Venice Commission from June 2013;
  11. To adopt the new Law on the prosecutor’s office taking into account the soon expected recommendations of the Venice Commission;
  12. To adjust the proposed amendments to the Constitution regarding the strengthening of guarantees of the independence of judges – as to reduce the role of the president in the resolution of staffing issues and to introduce genuine judicial self-governance;
  13. To initiate changes to the Law on the judiciary and the status of judges in accordance with the judgments of the European Court of Human Rights and the recommendations of the Venice Commission;
  14. To adopt the Law on peaceful gatherings (draft No.2508-a) to fulfil the judgment of the European Court of Human Rights in the Verentsov case;
  15. To complete the drafting of the Concept for the Reform of the Police, with involvement of expertise of NGOs and European institutions;
  16. To adopt the Law on amendments to certain legislative acts in the sphere of the state anti-corruption policy (draft No.3312) and fulfil the recommendations of GRECO, OECD and European Commission in the realm of anti-corruption legislation and institutions;
  17. To make amendments to the new Law on public service based on the recommendations of the SIGMA programme;
  18. To make changes to the Law on public procurement to improve the transparency of purchases of state-owned enterprises (draft No.2207);
  19. To adopt the Law on state aid (draft No.2749) taking into consideration the clauses of the future EU-Ukraine Association Agreement;
  20. To resolve the issues identified within the Informal Dialogue between Ukraine and the EU on Business Climate (in particular, to cancel the recycling duty on cars and other protectionist measures and to develop an action plan to remedy the situation of VAT refund and advanced payments of income tax).

Notwithstanding all the critical assessments of Ukrainian realities, the monitoring experts believe that the EU would make a strategically right decision if it signed the Association Agreement with Ukraine – and at the same time preserved certain controlling mechanism so that concrete benchmarks on democracy and monitoring of their achievement by the government are further maintained.

Also, the EU should more actively stimulate a broad and structured dialogue between all stakeholders (government, opposition and civil society), particularly in the sphere of electoral legislation and judicial reform. To be more specific, the Informal Dialogue between Ukraine and the EU in the sphere of Judicial Reform should be expanded (for the time being, only the Presidential Administration and the Cabinet of Ministers are represented from Ukrainian side).

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