CDL-INF(1996)006e
Strasbourg, 21 May 1996
OPINION
ON THE DRAFT CONSTITUTION OF UKRAINE
(Text
approved by the Constitutional Commission on 11 March 1996 (CDL(96)15)
adopted
at the 27th Meeting of the Venice Commission on 17-18 May 1996
on
the basis of contributions from:
Mr
Luis AGUIAR DE LUQUE, Spain
Mr
Sergio BARTOLE, Italy
Mr
Gérard BATLINER, Liechtenstein
Mr Ján KLU_KA, Slovakia
Ms Anna MILENKOVA, Bulgaria
Mr Helmut STEINBERGER, Germany
Mr
Cyril SVOBODA, Czech Republic
Introduction
The European Commission for Democracy through Law has
for a considerable period been actively involved in the process of drafting a new
Ukrainian Constitution. Already in 1993 members of the Commission submitted
written comments on the draft proposed at that time and held an exchange of
views with its authors. At its 24th meeting on 8-9 September 1995 the
Commission adopted an Opinion on the present constitutional situation in
Ukraine following the adoption of the Constitutional Agreement between the
Supreme Rada of Ukraine and the President of Ukraine on the basic principles of
the organisation and functioning of State power and local self-government
pending the adoption of the new Constitution of Ukraine.
Members of the Commission also commented on the
preliminary draft for a new Constitution submitted in 1995 and held two
exchanges of views with the group of legal experts entrusted by the
Constitutional Commission with the task of drawing up a revised draft. The
present draft therefore partly already reflects previous efforts of the
Commission.
This opinion was adopted by the Commission at its 27th
meeting in Venice on 17-18 May 1996. On this occasion the Commission
also endorsed the comments made by Ms Hanna Suchocka (Poland) in
documentCDL(96)25. These comments were received too late to be integrated
into the present opinion.
Section
I
General
Principles
General
Comments
The general principles are in line with international
standards and show the willingness of Ukraine to become a democratic European
State protecting Human Rights. The Constitution is the highest legal norm
(Article 8) and the bodies of legislative, executive and judicial power
exercise their functions within the limits established by the Constitution
(Article 6, paragraph 2).
A weakness of the draft, which does not specifically
concern the general provisions but may be mentioned here, is that there is no coherent
set of rules on the state of emergency. There are some provisions, in
particular Article 38, paragraph 3, Article 60, paragraph 3, Article 87, No 10,
Article 92, No 26, Article 105, paragraph 1, No 18 and Article 155, paragraph
2. The conditions for proclaiming a state of emergency are however not defined
in the Constitution itself and this task in entirely left to the ordinary
legislator (Article 92, No 26). It would also seem useful to expressly give to
the Constitutional Court control of the acts proclaiming the state of emergency
and its extent. On the other hand the list of rights and liberties which cannot
be restricted in a state of emergency is extremely long: eg. Articles 27, 30,
42, 51. This seems unrealistic.
Comments on specific articles
Article 6
Article 6 provides for a division of power between the
legislative, executive and judicial branches. This approach is however not
consistently maintained throughout the text. The Constitutional Court has a
separate section which is not even placed after the section on the system of
justice.
Article 3
The formulation of Article 3, paragraph 1 “the human
being ... is recognised in Ukraine as the highest social value” gives, at least
in translation, the impression that the individual is seen in function of
society and not in its inherent value and dignity, which precedes the state, is
unique, irreplaceable, and incomparable.
Article 9
International treaties ratified by Ukraine are incorporated
by this provision into the internal legal order, apparently at the level of
ordinary law. It would be logical to equally incorporate customary
international law and generally accepted principles of international law.
Section
II
Rights
and freedoms of the person and the citizen
General
Comments
General assessment
of the Section
This section of 49 Articles is very long. The catalogue
of rights and freedoms protected is vast and exhaustive and the text shows the
willingness to protect the full scope of rights guaranteed by the European
Convention on Human Rights and to ensure that these rights are implemented in
practice.
Nevertheless the Section has also a number of
weaknesses:
- there is a lack of structure within
the Section, which contains 49 Articles but no subdivisions;
- the very exhaustive character of the
list including rights of a social, economic and environmental character poses
problems for their guarantee by the courts;
- the possible restrictions and
limitations of fundamental rights often seem to go too far.
The lack of
structure in the Section
This question is not a purely theoretical and systematic
one but it may have repercussions on the level of implementation of the rights
guaranteed.
In effect, necessarily the 49 Articles of the Section
contain legal provisions of a varied character:
- some provisions have the character of
a programme for the Ukrainian legislature without guaranteeing specific rights,
like, for example, Article 48, paragraph 2: “basic secondary education is
compulsory.”
- certain provisions contain structural
principles for the functioning of the legal order which have to orient the
legal life in the future but which cannot be considered as individual rights in
a strict sense, inter alia the
principle that norms have to be published, the principle of non-retroactivity
of norms and the principle ne bis in idem
(Articles 52, 53 and 56);
- there are certain provisions
containing what has been defined in legal science as institutional guarantees
protecting certain institutions from future intervention of the ordinary
legislature, the definition of marriage in Articles 46 of the draft is an
example;
- certain provisions like Article 31 on
the freedom of association allow far-reaching restrictions putting into
question their character as individual rights;
- Article 61 to 64 contain duties;
- even though most Articles of the
Section are formulated as true subjective rights (has the right to....), these
rights have a different structure and content as some of them correspond to
traditional fundamental rights and liberties, whereas others have the character
of social rights where the active intervention of the State is indispensable to
fully realise the right (eg. the right to housing in Article 42) or are
new fundamental rights associated with new technological developments (eg
Article 27, paragraphs 2-4 concerning self-determination with respect to
information and the environmental rights in Article 45).
Since these rights have a different character it would
seem advisable to classify and systemise them in a way making it possible to
foresee different types of protection for each of them, the efficiency of which
may vary in function from the content of the right concerned. The lack of such
a structuring in the Section may be to the detriment of the traditional
fundamental rights and liberties which provide true individual subjective
rights and the protection of which has to appear clearly in the text of the
Constitution.
Section II should therefore be divided into different
subsections and varying rules for the protection by the courts should be
introduced into these subsections.
The range of the
rights protected
This issue is closely related to the preceding issue.
Article 150 of the draft enables the Constitutional Court to resolve issues of
the constitutionality of laws and other legal acts the constitutionality of
which will also depend on the respect for the fundamental freedoms contained in
this section. In addition, Article 50 gives the task to protect all human
rights and freedoms to the courts in general. However the catalogue of rights
is so rich and vast that this risks being unrealistic. As set out above, for
different categories of rights the same wording “every person has the right...”
is used, but for many of these rights it will be impossible for a court to
apply them directly. This concerns for instance Article 43 (“everyone has the
right to a standard of living sufficient for himself or herself and his or her
family, including sufficient nutrition, clothing and housing”) or Article 45,
paragraph 1 (“everyone has the right to an environment which is safe for life
and health, and to the recovery of damages inflicted through violation of this
right.”)
In some instances, for example in Article 27, paragraph
4, the right to judicial protection of a certain right is specifically
guaranteed. However this should not mean that judicial protection exists only
for the rights where this is expressly mentioned as this would exclude the main
part of traditional fundamental freedoms.
Therefore, a specific mention of the rights the
protection of which is ensured by the ordinary courts should be introduced into
the Constitution. The general formulation contained in Article 50, paragraph 1
is too wide and therefore insufficient.
The possible
restrictions of fundamental rights
It is appreciated that the Constitution protects
constitutional rights and freedoms from being abolished (Article 17, paragraph
2 and Article 155, paragraph 1, see below). The existence of the rights as such
is therefore protected and this might be reinforced by introducing a clause on
the protection of the essence of the right similar to Article 19, paragraph 2
of the German Grundgesetz: “in no case
may the essence of a basic right be encroached upon.”
As regards restrictions of fundamental rights, Article
60, paragraph 2, proclaims that “such restrictions shall be minimal and
correspond with the principles of the democratic state”. This means that all
legal restrictions may not go further than necessary (principle of
proportionality) but also that they should not lead to the abolishment of the
right (Article 17, paragraph 2 alone and together with Article 60 paragraph 2).
There is however a large number of articles containing specific conditions for
the restriction of rights by the legislature and the circumstances allowing the
legislature to restrict the rights are often extremely ambiguous and wide and
give him a free hand to interfere to a very large degree. This concerns in
particular Article 27, paragraph 2 where the link between the circumstances
allowing the restriction (interests of national security, economic well-being
and human rights) and the right itself (protection against the use of
confidential information concerning a person without his or her knowledge)
seems questionable, Article 28 where the restrictions are very general (for the
protection of national security, public order, health and morality of the
populations, or the rights and freedoms of others) and Article 31 (interests of
national and social security, the protection of health and morals of the
population or the protection of the rights and freedoms of other people).
To this vast array of possible restrictions concerning
specific articles, Article 60, paragraph 1 adds a general clause allowing
restrictions of rights and freedoms “in order to protect the rights and
freedoms of other persons, national security, and the protection of the health
and morality of the population”. It is not quite clear in the various
translations whether only the legislator or also the executive is empowered to
proceed to restrictions of fundamental rights by virtue of this provision.
In any case, such a provision is problematic since a
number of rights should be guaranteed without any restriction, in particular
those included in Articles 22, 23, 50, 53, 55, 56, 57.
It is therefore proposed to delete the last phrase of
Article 60 and to replace the provision by the following text: “constitutional
rights and freedoms may not be restricted except in cases prescribed by the
Constitution and laws adopted in accordance with it.” The circumstances
allowing restrictions should be spelled out in the various articles.
Legal persons
It would be useful to include in the text a provision on
the rights of legal persons. Such a provision might be inspired by Article 19,
paragraph 3, of the German Grundgesetz
- “The basic rights shall also apply to domestic legal persons to the extent
that the nature of such rights permits.”
Comments on specific Articles
Article 22
In this Article it should be expressly stated that the
death penalty is abolished.
Article 24
The last paragraph should be worded in more a precise way.
Article 5, paragraph 4, of the European Convention on Human Rights could
usefully serve as a model.
Article 25,
paragraph 2
The words “pursuant to the law” should be added at the
end (“in the basis of a court decision pursuant to the law”).
Article 28
The restrictions of the freedom of movement allowed by
this Article are excessively large and should in all cases be subject to a
previous judicial decision.
Article 29
The prohibition of censorship should be transferred from
Article 12 to this Article.
Article 32,
paragraph 4
As in Article 25, paragraph 2, the words “pursuant to
the law” should be added at the end.
Article 35
The rights granted by this Article seem too vast, in
particular the obligation to reply imposed on the public authorities.
Article 36
The second paragraph might be worded “every person has
the right to own, acquire, alienate, use...”.
The full reimbursement of value in paragraph 7 may lead
to financial problems.
It is proposed to reword paragraph 9 as follows: “the use
of property may only be restricted by law in order to protect the rights...”.
Article 37
The freedom to choose a profession should be included.
Proposal: “every person has the right freely to choose a profession or
occupation or to conduct entrepreneurial activity...” As regards paragraph 4:
“the State protects by law...”
Article 38,
paragraph 3
Again the words “pursuant to the law” should be added
after “verdict of a Court”.
Article 50,
paragraph 2
It is indispensable to also include the right to have
access to independent and impartial tribunals competent to render decisions in
civil and criminal cases. See also comments on Section VIII below.
Article 60
See the comments above. The first paragraph should read
“constitutional rights and freedoms may not be restricted except in cases
prescribed by the Constitution and laws adopted in accordance of it.”
Section
III
Elections.
Referendum
General
Comments
It is to be welcomed that the present text no longer contains
provisions inspired by too radical a concept of direct democracy, like for
example the possibility of dissolving Parliament or expressing non-confidence
in the President through a referendum. This shows that the text is moving in
the right direction by providing stability for the main institutions.
Comments on specific articles
Article 68, paragraph 1
According to this
provision both the National Assembly and the President can call a referendum. This
may lead to useless competition between both institutions and referendums may
become arms in the political struggle between them. It is recommended that only
one organ should have the right to organise referendums, and the most
appropriate organ seems to be the Head of State who, as a single person,
receives his powers directly from the people. The National Assembly being the
legislature, it seems unlikely that it will be disposed to submit questions to
a referendum which it might resolve within the limits of its own competence.
As regards the dates of the referendum, it might be
considered whether the President should have the sole authority to fix the
dates for referendums or whether he should be obliged to consult the government
and the Presidents of both Chambers of the National Assembly. If the President
alone calls the referendum and fixes its dates, it may easily assume an
authoritarian character within the framework of the so-called plebiscitarian
democracy.
Article 68,
paragraph 2
The so-called popular or people's initiative creates
many problems both from a pratical and theoretical point of view. The text does
not make it very clear under which circumstances such popular initiatives could
take place. It is in particular recommended to avoid the possibility of
amending the constitution through a referendum, since this apparently
democratic procedure may easily be abused for populist purposes. The possible
subject matters of a peopole's initiative should therefore be clearly defined
excluding the possibility of constitutional amendments.
A more restrictive alternative version of popular
initiative would be to provide for the possibility of submitting draft bills to
the National Assembly which would be obliged to discuss these bills and decide
on them. A popular initiative according to this model opens up to citizens the
possibility to participate in the legislative process while leaving the final
word to the legislature.
Section
IV
The
National Assembly of Ukraine
General
Comments
The balance of
powers
The present text clearly marks a step forward in the
development of the constitution making process in Ukraine. It provides for a
fairly good balance of power between the various State organs. Even though it
is clear that the drafters of the Constitution are oriented towards a
semi-presidential form of government, not all questions on the form of
government are clearly settled. In addition, it would seem appropriate to
strengthen the parliamentary element in the relations between the National
Assembly and the executive. The excessive strengthening of the executive power
can become self-defeating. If, on the one hand, a strong executive is necessary
for governing effectively and implementing reforms, on the other hand, if not
successful, the persons exercising these wide powers may lose all capacity for
effective action. It should also not be forgotten that the national
representative body also has purely political functions, in particular to
integrate political and social forces and to mobilise support and legitimise
the policy pursued in practice. Therefore it is recommended to provide for more
numerous and varied procedures of parliamentary control on the actions and
intentions of the government and the various ministries.
The introduction of
a second chamber
The setting up of a bicameral legislature - the National
Assembly is composed of the Chamber of Deputies and the Senate - divides the
legislature into two parts and provides an internal balance of powers. This
will without doubt contribute to the quality of legislative action and to a
more moderate political climate within the country. However it is necessary to define more precisely the tasks of
both chambers. Otherwise the result will be a simple duplication of their
functions, especially when the balance between the political forces is similar
in both chambers.
The hierarchy of
norms
The Constitution is the supreme norm (see last paragraph
of the preamble, Article 6, paragraph 2 and Article 8, paragraph 2). Below this
level the situation is less clear. The technique of enumerating the fields to
be determined by ordinary legislation (Article 92) raises several questions:
are matters not mentioned here outside the powers of the ordinary legislator
(Article 71 and Article 84, paragraph 1, No. 4)? Who is competent to legislate
in the field not covered: the president (Article 105, paragraph 1, No. 26 and
paragraph 2), the Cabinet of Ministers (Article 114) or nobody?
In the fields to be determined exclusively by the
ordinary legislator, may there be infralegal norms adopted by another organ?
What is the position of the universals, decrees and directives of the President
(Article 105, paragraph 2) in the hierarchy of norms? The President exercises
other powers provided by the Constitution (Article 105, paragraph 1 No. 26),
protects "rights and freedoms of citizens" (Article 103,
paragraph 3) and has extensive powers to organise the executive branch (see
Article 105, paragraph 1, No. 13, but also Article 118).
The Sessions of the
National Assembly
Articles 81 and 82 of the draft provide for a working of
the National Assembly on a sessional basis with two regular sessions of
undefined length and extraordinary sessions held upon request. This seems not
the best way to organise the functioning of the national legislature during a
period of political instability and radical reform of the legal system.
Sessions of short duration were typical of the Soviet system of government. The
effect is well known: it deprived the national representative body of real
power and influence in the political life of the country. Therefore it is
preferable to clearly define the length of the sessions of the National
Assembly by fixing the duration of the two ordinary sessions or even accepting
one longer session (for example nine months), as envisaged in the French reform
of 5 August 1995. On the other hand, the extreme alternative adopted in
Bulgaria in 1991, to foresee one permanent session should also be avoided since
continuous political activity leads to a bad quality of parliamentary work.
Comments on specific articles
Article 74, paragraph 2
According to this provision Senators are elected through
direct elections in multi-member constituencies. This leads to the assumption
that a system of proportional representation, pehaps based on party lists, is
envisaged. As a result the strength of the political forces in the Senate might
be equivalent to their strength in the Chamber of Deputies and therefore both
Chambers might in a certain way duplicate each other. Therefore the alternative
of providing for one member constituencies merits consideration. The advantage
would be to establish a more distinct basis for territorial representation of
the regions and to make the Senators themselves more independent from the
political forces having proposed them as candidates and supported them during
the election campaign.
Article 80,
paragraph 3 and 4
The text provides that the respective chamber may
terminate the mandate of a Parliamentarian if he violates the provisions on
incompatibility and that such a decision will be subject to appeal in court. It
is however difficult to accept that the decisions of a chamber of the National
Assembly should be subject to control by an ordinary court and it its
preferable to provide for judicial review by the Constitutional Court.
Article 81,
paragraph 4
The role of the dean of age should be defined more
precisely. It should be provided that under his chairmanship the deputies swear
their oath and elect the presidents of the two chambers.
Article 82
paragraph 1
As mentioned above, it should be constitutionally
guaranteed that parliamentary sessions are long enough to enable the
legislature to function well.
Article 83,
paragraph 1
According to this provision a majority of at least two
thirds of deputies or senators present at the meeting is required if the public
is to be excluded from a session of the chamber. This requirement seems
excessive. A simple majority would seem sufficient, accompanied by an
obligation to publish the decisions taken at the session in camera.
Article 84,
paragraph 1, No 2
As mentioned above, it would be preferable to reserve
the possibility to call a referendum to the President, with the exception of
the referendums on issues of altering Ukraine's territory as foreseen under
Article 69.
Article 84,
paragraph 1, No 9
It would be preferable to give a decisive role in
impeachment procedures to the Consitutional Court. See the remarks below
concerning Article 109.
Article 85, No 1
and 2 in conjunction with Article 90, paragraph 2
Under Article 85, No 1, the Chamber of Deputies has the
power to ratify the appointment of the Prime Minister. Under Article 85, No 2,
it has the power to consider and adopt decisions on the programme of activity
of the Cabinet of Ministers. The appointment of the Prime Minister and the
approval of the government programme are closely linked and therefore it would
be preferable to have one sole procedure combining both decisions. This would
also influence the scope of Article 90, paragraph 2, which provides that the
Chamber of Deputies may be dismissed by the President if it rejects twice the
government programme.
Article 86
Article 86 concerns the parliamentary control of government.
Under present circumstances this control has to be continuous and comprise a
number of different forms. In the draft it is foreseen that a simple enquiry
may be transformed after discussion of the response into a vote of
no-confidence. This entails a danger of artificial escalation of conflicts and
it would be preferable to separate the various procedures.
Article 93,
paragraph 1
This article gives the right of legislative initiative also
to the President. This should be avoided since the President is not politically
responsible before Parliament and since laws are legal means to implement
concrete policy. Therefore the right of legislative iniative, as concerns the
executive, should be reserved to the government and not be given to the
President. If the government presents a bill, it thereby expresses its wish to
implement its programme.
Article 94
The requirement of a two-thirds majority in the
Chamber of Deputies in the event of contradictions between it and the Senate
concerning a draft law is excessive. Such a high requirement may hamper the
legislative process in a period of dramatic political and economic reforms.
Article 95,
paragraph 4
The required majority of two-thirds of the members of
both chambers to overcome a suspensive veto of the President is again excessive
and may hamper legislative activity. The absolute majority of members of both
chambers would seem sufficient.
Section
V
President
of Ukraine
General
remarks
As far as this section is concerned, the draft provides
for considerable improvements as compared to earlier texts.
In particular it is to be welcomed that the provision
requiring a quorum of at least 50% of electors participating in the election of
the President in order that the election shall be deemed valid, has been
dropped in the present draft. This avoids unforseeable prolongations in the
election of the President.
It is a further improvement that the present draft no
longer provides for a vote of no-confidence in the President by popular
referendum (see also the remarks above concerning Section 3) or parliamentary
vote. This would have introduced a serious permanent element of instability
into the system of government.
It has already been set out in the comments on Article
95, that the majority of two-thirds of the members of each Chamber required to
overrule the President's veto against a law passed by the National Assembly
appears rather high.
Comments on specific Articles
Article 105, paragraph 2
It is to be appreciated that the power of the President
to issue universals, decrees and directives that are mandatory for execution in
the territory of Ukraine must have a basis in the constitution or laws and must
serve the purpose of implementing the Constitution and laws. While it is rather
rare to provide for normative powers of a President in the constitution itself,
his powers in the draft Constitution of Ukraine are very broad, which in a
difficult period of transition may be acceptable. It is, nevertheless, worth
discussing whether normative acts of the President under Article 105 should be
binding only on the executive branch, while normative acts touching upon the
rights or duties of private individuals should only be issued in the form of a
law or in the form of decrees authorised by a specific law providing expressly
for the issue of such decrees, and determining their purpose and limits. In US
American, German and other legal orders, it is a constitutional principle
contained in the principle of the functional separation of powers, that
essential normative determinations over a subject matter must be made by the
legislature itself and must not be left to the implementing normative power of
an executive organ.
Article 109
It has already been pointed out in the comments
concerning Article 84, paragraph 1, No 9 that the procedure of impeachment has
a largely legal and constitutional character making it appropriate to give
decision making power to the Constitutional Court. Nevertheless it has to be
acknowledged that the procedure has been considerably improved with respect to
previous drafts by providing, prior to the decision of the National Assembly,
for an examination of the case by the Constitutional Court and receipt of its
conclusion about the observance of the procedure of investigation and
consideration provided for by the Constitution, as well as for a prior decision
of the Supreme Court of Ukraine whether the charges brought constitute a
serious crime.
Section
VI
The
Cabinet of Ministers of Ukraine and other bodies of the executive branch.
General
Comments
It is an improvement that the present draft no longer
provides for "approving the personal membership of the government of
Ukraine" by the Supreme Rada, as the prior draft did, but only provides
for the power of the Chamber of Deputies to ratify the appointment of the Prime
Minister of Ukraine on the proposal of the President of Ukraine. The former
draft might have seriously paralysed the President in forming a Cabinet of
Ministers composed of persons he considers to be the most competent in carrying
out his political programme.
The present draft leaves open what the consequences
would be if the Chamber of Deputies (whose majority may well be in political
opposition to the President) repeatedly refuses to ratify the President's
proposals for appointment of the Prime Minister. Therefore the danger of a
stalemate between President and Chamber of Deputies cannot be excluded. A
solution might be, as suggested in the comments on Articles 85 No 1 and 2 and
90, paragraph 2, to establish a link between the decisions of the Chamber of
Deputies on the person of the Prime Minister and on the programme of the
government. The power of the President to dissolve the Chamber of Deputies
would then also exist in the case of its repeated refusal to approve the
appointment of the Prime Minister.
Comments on specific articles
Article 114, paragraph 2
The power of the Cabinet of Ministers to pass binding
orders provided for by Article 114, paragraph 2, of the draft should be subject
to certain express limitations: their binding force should be restricted to
executive authorities or if going beyond, for instance touching upon rights and
obligations of private individuals, should require an authorisation by a law
determining the essential contents and scope of such orders. Otherwise the
normative powers of the legislature might be circumvented or undermined.
Section
VII
The
Procuracy
General
Comments
The draft is encouraging, especially by contrast to
previous drafts. The powers and competences of the procuracy are defined in a
way indicating a fundamental transformation of the former so-called
prokuratura. This is a crucial step towards democracy in Ukraine. The procuracy
acts on behalf of the State in court and plays a dominant role in pre-trial
investigations.
Comments
on specific articles
Article 119, No 5
According to this provision the procuracy has to
represent the interests of the State or a citizen in court in cases that are
determined by law. It is recommended that this representation should be limited
to cases where the public interest is involved and where there is no conflict
with the fundamental rights and freedoms of the individual. It is up to the
individual himself to decide whether to ask for State assistance or not.
Article 121
The Law on the organisation and procedure of the Office
of Procurator should define the procuracy as a system of relatively independent
authorities preferably organised in correspondence to the court system. It
would be for the higher authority to control the level immediately below.
However, the highest authority should not directly control the lowest one. In
this way, the system of prosecution would be protected against direct political
intervention or influence.
Section
VIII
The
System of Justice
General
Comments
This section should be examined in the light of Article
50 of the draft Constitution. Article 50, paragraph 1, provides that all human
rights and freedoms shall be protected by the courts and paragraph 4 gives the
right to everyone to appeal for the protection of his or her rights and
freedoms to judicial and other institutions of the United Nations and the
Council of Europe.
Article 50, paragraph 2, guarantees everyone the right
of appeal to a court against decisions, actions or inactions of the bodies of
state power, bodies of local self-government or public officials. It is to be
welcomed that in this way the judicial control of administrative authorities is
established and a constitutional basis for administrative jurisdiction is
provided. In civil and partly in criminal matters, there will, however, be no
such previous decisions of a public body. It is nevertheless indispensable to
provide also for civil and criminal matters a constitutional right to have
access to independent and impartial tribunals, in accordance with
Article 6 of the European Convention of Human Rights.
It does not seem necessary to get rid of the inquisitory
principle completely but the stress should be put on the adversarial principle.
Comments on specific articles
Article 122
To avoid any ambiguity concerning the relationship
between the judiciary and the executive, one might add in the first sentence of
Article 122 the words “and exclusively”.
Article 124,
paragraph 3
According to this fundamental provision, the first
appointment of a judge shall be for a term of five years. The process of the
transformation of the judiciary means that people with very limited
professional experience will be appointed.
Section
IX
Territorial
Structure of Ukraine
Article 130
Article 130 looks like a kind of political programme and
its normative content is very poor. The relationship between centralisation and
decentralisation is not clearly determined and it is left to the legislator to
establish a balance between these two different purposes in the absence of
clear criteria for this balance, especially whether one or the other purpose
should prevail.
Article 131
This article shows a preference for decentralisation
when it states that the system of administrative and territorial structure of
Ukraine “is composed” of the Crimean Autonomy, oblasts, raions, cities,
municipalities and villages. But Articles 116 and 117 imply the existence of a
local organisation of the state executive power, chaired by the heads of the
appropriate state administrations who obviously are accountable to the central
state bodies.
As regards the methods of decentralisation, it has to be
borne in mind that it can be implemented in two different ways: either in the
form of autonomous self-governing communities or in the form of decentralised
state bodies. Although both of these solutions are mentioned in the
Constitution, the question of co-existence of decentralisation and
centralisation is not clearly settled in the same way as it is settled, for
instance, in Article 5 of the Italian Constitution where the preference
for local self-government is evident.
It could be advisable to transfer Article 130 to Section
I of the draft and connect it to Article 7, while Section IX could be
enriched with more precise and clear provisions.
Section
X
The
Crimean Autonomy
Section X of the draft Constitution does not offer a
clear blueprint of the Crimean Autonomy.
The Statute of the
Crimean Autonomy
According to Article 132, paragraph 2, the Statute of
the Crimean Autonomy shall be approved by the National Assembly of Ukraine in
accordance with the order determined for the adoption of the laws of Ukraine.
It results from press releases, but the text of the decision is not available
to the Commission, that the Parliament of Ukraine has in principle approved a
Constitution of the Autonomous Republic of Crimea but has sent back certain
provisions to the Verkhovna Rada of
Crimea for reconsideration. It is therefore not quite clear whether this text
has really entered into force. In addition, it seems that the text was approved
by a simple majority of the deputies and not by the majority required for
constitutional laws. It would therefore seem that this Constitution of the
Autonomous Republic of Crimea corresponds to the Statute of Crimean Autonomy
provided for in Article 132 of the draft Constitution.
The only formal constitutional basis of the Crimean
Autonomy is therefore the text of the Ukrainian Constitution itself, which does
not have many provisions on the matter and leaves a large space of discretion
to the Ukrainian legislator. Since approval of the Statute is given in
accordance with the order determined for the adoption of ordinary laws, the
Ukrainian legislator will have a free hand dealing with the implementation of
the provisions of the Ukrainian Constitution concerning the Crimean Autonomy
and it will be able to modify the Crimean Constitution at any time, extending
or curtailing the content of the Crimean Autonomy without the participation of
the Crimean institutions.
The protection of
the competences of the Crimean institutions
According to Article 150 of the draft, the Verkhovna Rada of the Crimean Autonomy
can ask the Constitutional Court of Ukraine to review the constitutionality of
laws and legal acts of the National Assembly, acts of the President of Ukraine
and acts of the Cabinet of Ministers. This is a very important provision
because it provides for a jurisdictional guarantee of the Crimean Autonomy,
entrusting its most important body with the power of asking for a decision of
the Constitutional Court when acts of the Ukrainian institutions conflict with
the Ukrainian Constitution and - specifically - with the constitutional
provisions concerning the Crimean Autonomy.
But a constitutional judgment requires the existence of
a fixed yardstick according to which the constitutionality of the acts
submitted to the review by the Constitutional Court has to be evaluated. In
respect to the Crimean Autonomy the Constitutional Court only disposes of a
very poor yardstick, because only a few relevant elements of the Crimean
Autonomy are provided for in the Ukrainian Constitution and a review by the
Court is obviously restricted to the observance of the Ukrainian Constitution
by the Ukrainian governing bodies. When the Constitution leaves the hands of
the legislator free, the judicial review of legislation is a very limited
guarantee. Therefore the Crimean Verkhovna
Rada could not complain about possible restrictions of the Crimean Autonomy
adopted - for instance - by the Ukrainian legislator in exercise of his freedom
of choice.
On the other side, according to Article 133 of the
draft, “Normative legal acts of the Crimean Autonomy shall not contradict the
Constitution and the laws of Ukraine”. This provision implies that Crimean
normative acts do not have a previously fixed field of competence with respect
to the authority of the Ukrainian legislator. The borders between Ukrainian
legislation and Crimean normative acts can always be changed at the discretion
of the Ukrainian legislature who will be free to change the competences of the
Crimean “legislator” and overruling the decisions of the Constitutional Court
adopted on the basis of the previous Ukrainian legislation.
The mentioned flaws are especially evident if it is kept
in mind that the draft does not provide a list of the items or matters which
are given to the competence of the Crimean institutions: the Ukrainian
legislator is entrusted with the task of providing for that list and may enrich
or curtail it on the basis of his own discretion. There is a danger that the
Ukrainian legislator will act to promote his own interest, if it is true that,
when enriching the competence of the Crimean institutions, he has to curtail
his own competence and the other way round.
It would be advisable to list in the Constitution or in
a special law, which could not be abrogated by the Ukrainian legislator “with
the order determined for the adoption of the laws of Ukraine”, the items or
matters which are given to the competence of the Crimean institutions.
Moreover, Article 133 could be modified preventing Crimean normative legal acts
only from contradicting the Ukrainian Constitution and the principles of the
Ukrainian laws. It would be advisable to have a stronger constitutional
guarantee of the Crimean Autonomy: this result could be achieved through a
clear constitutional division of the relevant functions between the Ukrainian
State and the Crimean Autonomy, binding both on the Ukrainian legislator and
the Crimean legislator.
The legal acts of
the Crimean Autonomy
The draft does not speak of laws of the Crimean
Autonomy, it only mentions “normative legal acts of the Crimean Autonomy” in
Article 133. But these acts can be submitted for judicial review by the
Constitutional Court of Ukraine like other Ukrainian laws or legal acts
(Article 150).
Article 136 provides that the President of Ukraine may
suspend decisions and resolutions of the Verkhovna
Rada of the Crimean Autonomy which contradict the Constitution while
simultaneously applying to the Constitutional Court of Ukraine. The question
now is whether the decisions and resolutions mentioned in this Article include
normative legal acts of the Crimean institutions. In this case the President's
power to suspend would be inappropriate and violate the presumption of constitutionality
of legal norms. It might be argued that Article 133 and Article 134 distinguish
between normative legal acts on the one hand and decisions and resolutions on
the other and that Article 136 therefore does not concern the normative legal
acts under Article 133. But in the section on the Constitutional Court Article
150 again uses the term “normative legal acts of the Crimean Autonomy” and this
provision should correspond to Article 136. There is also no positive
attribution of competence to any Crimean body to adopt normative legal acts
other than the decisions and resolutions mentioned in Article 134. One may
therefore come to the conclusion that Article 136 indeed also refers to
normative legal acts.
This should be clarified and the possibility for the
President to suspend legal acts should be restricted to acts not having a
normative character.
Section
XI
Local
Self-Government
General
Comments
This section has been substantially revised in respect
to earlier drafts. The text now appears sufficiently clear and precise.
Article 139
According to Article 139, paragraph 3, the Raion and
Oblast Councils are formed indirectly, the Raion Council from the village, the
municipality and city councils of the raion, and the Oblast Council from the
raion and the city (cities of oblast importance) councils of the oblast. This
has to be seen in connection with Article 138 which distinguishes between
territorial communities (the residents of villages, municipalities and cities)
having the right of local self-government and Raion and Oblast Councils
representing the common interest of the citizenry of villages, municipalities
and cities. It is therefore possible to adopt different electoral systems for
both levels requiring direct elections for the territorial communities and
indirect elections for the Raion and Oblast Councils which are envisaged as the
assemblies of the representatives of the Councils of the territorial
communities. Apparently, the Raion and Oblast Councils have under Article 141
no executive functions but only deliberative functions and the implementation
of their decisions might be entrusted to the bodies of the territorial
communities.
Section
XII
The
Constitutional Court
General
comments
Section XII of the draft sets a permanent Constitutional
Court. This fully corresponds to the prevailing practice in new democracies to
protect the constitutionality of their own legal order by a specific, permanent
and independent judicial body.
Comments on specific articles
Article 146
This Article provides that both the President and the
Senate appoint one half of the judges of the Constitutional Court (see also
Article 87, no. 1 and Article 105, paragraph 1, no. 19). Could the functioning
of the Constitutional Court be blocked in practice by the non-appointment of
judges?
Article 147
The independence of the Constitutional Court also
depends on the existence of its own budget. It is important that the Court may
administrate its own budget without any interference. It would be appropriate
to introduce in Article 147 a provision similar to Article 129 of the
draft.
Article 149
It should be confirmed expressis verbis in the Constitution that the decision on pre-term
cessation of office of a judge of the Constitutional Court falls into the
exclusive competence of the Court itself. One of the reasons for
pre-termination of office being oathbreaking, it would seem useful to insert
the text of the oath of the Constitutional Court judges into the Constitution
(cf Article 103 for the President).
Article 150
The power to interpret officially
One of the competences entrusted to the Constitutional
Court is “the official interpretation of the Constitution and the laws”. While
it is obvious that the Constitutional Court has to interpret the Constitution
to arrive at its decisions, it seems outside the usual functions of a judicial
body to adopt an official interpretation of the Constitution. What may be
provided for is that the Constitutional Court can give advisory opinions,
interpreting constitutional provisions with respect to certain specific
problems.
For the Constitutional Court to give official
interpretations of ordinary laws seems outside the scope of competences of a
constitutional court. In order to determine the constitutionality of a law, the
Constitutional Court will often have to interpret it. This should, however, not
be a specific competence of the Court.
Lack of a provision on concrete norm control
According to Article 50 of the draft, all human rights
and freedoms shall be protected by the courts. From the specific competences of
the Constitutional Court, it follows per
argumentum e contrario that the constitutional rights and freedoms have to
be guaranteed and applied also by all ordinary courts. Practice in other
countries shows that human rights violations are often the consequence of a
simple application of laws or other norms which themselves are contrary to the
Constitution. If such a violation appears, ordinary courts (which would have to
respect the law until it is declared void by the Constitutional Court) should
have the power to have the constitutionality of the norm reviewed by the
Constitutional Court (concrete norm control, incidental norm control). Article
150, paragraph 2, limits the possibility to seize the Constitutional Court to
the Supreme Court. This procedural obstacle would considerably delay and hamper
the effective defence of human rights.
Lack of a provision on conflicts of competence
The Constitution contains detailed catalogues of
competences of the various State organs which risk not to be always precise and
entail conflicts between them. It seems therefore necessary to give to the
Constitutional Court a competence to decide in such cases.
Article 151
Article 151 introduces an element of preventive norm
control into the draft (see also Article 159 for amendments to the
Constitution). It should be clarified in the text of the Constitution if the
conclusions adopted by the Constitutional Court under these procedures are
legally binding or not.
Article 152,
paragraph 2
According to this provision, laws and other legal acts
declared to be unconstitutional by the Constitutional Court lose their force
and effect from the day the decision about their unconstitutionality was
adopted. It would be appropriate to provide that such a decision should be
published in the Official Journal.
Section
XIII
Introduction
of Amendments to the Constitution
General
Comments
The procedure for amending the Constitution looks very
complex. This impression may be partly due to the fact that the wording of the
relevant provisions is sometimes very clumsy.
Comments on specific articles
Article 155
This provision guarantees the acquis in the Human Rights
field by providing that the constitutional rights and freedoms may not be
abolished or restricted through amendments to the Constitution but may only be
improved, enlarged or reinforced. This is in accordance with the principles
enshrined in Article 3, paragraph 2, Article 16, paragraph 2 and Article 17 of
the Constitution.
The wording seems appropriate since it also covers the
rights guaranteed in Section I and not only the rights guaranteed in Section
III.
Article 157
It is extremely restrictive to entrust the President of
Ukraine alone with the power to introduce draft laws to amend Sections I, III,
and XIII of the Constitution. This contradicts the principles of democracy and
gives a lot of discretion to the President in shaping - for instance - the
elections and the referendums. It is true that the draft does not mention the
electoral systems which have to be adopted for implementing the Constitution.
Article 157 would nevertheless inhibit a change in Section III without the
initiative of the President even if the political parties agreed to
“constitutionalise” the choice of an electoral system.
Section XV
Transitional provisions
Article 1
Does Article 1 of the transitional provisions imply the
abrogation of the previous laws and normative acts which contradict the
Constitution? Or does it allow the Constitutional Court to review the
constitutionality of legal acts “adopted prior to the coming of this
constitution into force”? Both solutions are possible, but the question arises
whether the issue of the constitutionality of old laws and normative acts can
be submitted to the Constitutional Court. Since under Article 150 there is no
convenient procedure for this purpose, the alternative of abrogation may look
preferable. But abrogation may entail problems when the previous law
contradicts a principle of the Constitution and this principle is too vague to
take the place of that law in providing a legal solution for the problem
concerned.
Article 4
Article 4 of the transitional provisions follows a
contradictory line dealing with the judiciary. It seems advisable to elect or
appoint new judges when “the judicial system of Ukraine pursuant to Article 123
of this Constitution is formed”, instead of waiting for “the end of the term
for which they were elected or appointed”. Such a solution would guarantee a
coherence to the overall functioning of the judicial system.
Conclusions
Having been actively involved in the work leading to the
establishment of the present draft, the Commission is pleased to note that this
text constitutes a substantive progress with respect to previous drafts, and,
on the whole, seems a good basis for establishing Ukraine as a pluralistic and
democratic State protecting human rights.
The Commission is aware that any Constitution is a
political document and that it will always be the fruit of political
compromise. It is therefore natural that such a text contains provisions,
partly inspired by previous traditions, which are not satisfactory for a, in
particular foreign, lawyer. In respect to the present draft, this is true of
the human rights section with its vast and undifferentiated catalogue of social
and environmental rights. The institutional sections reflect Ukraine's choice
of a semi-presidential system and in general the provisions would seem to
contribute to the establishment and functioning of stable democratic
institutions though the President's powers in some respects may be regarded as
excessive. It is also particularly encouraging that the procuracy has no longer
the task of general legal supervision it enjoyed under the Soviet model.
The section of the draft on the Crimean Autonomy
provides only little protection of this autonomy. It may have to be adapted in
order to meet the aspirations of the Crimean population and may have to be
brought in line with the recent decisions concerning a Crimean Constitution.
On the whole the Commission however considers that this
draft is a good basis for the good
basis for the adoption of the Constitution. This task seems urgent since the
consolidation of Ukrainian statehood requires the adoption of the Constitution
of the independent Ukrainian State. The Constitutional Agreement between
President and Supreme Rada signed on 8 June 1995 provides “To recognize as
necessary the creation of adequate conditions for acceleration and successful
completion of the constitutional process in Ukraine in order to adopt the new
Constitution of Ukraine not later than one year after the date of signature of
this Constitutional Agreement.” The rapid adoption of the Constitution on the
basis of the present text seems therefore desirable.
As to the method of adoption, an adoption by referendum should
not be excluded. The people as the sovereign could thereby express their
opinion and the danger that certain political forces could afterwards try to
unilaterally change “the rules of the game” would be reduced.
