EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
EXPLANATORY NOTE
TO THE DRAFT LAW
ON AMENDING THE CONSTITUTION OF UKRAINE
1. Basis
for adoption of the draft
The draft Law of
Ukraine On Amending the Constitution of Ukraine is aimed at a system
‘refreshment’ of the constitutional regulation of social relations.
Amendments to the Basic
Law of the State are proposed to be set out in the form of a new edition of the
Constitution of Ukraine.
Initiation of these
amendments has been caused by the condition of the modern Ukrainian society and
political processes in Ukraine which really need improvements in the
constitutional regulation of social relations. These amendments have to
facilitate achievement of the goals set forth in the Constitution of Ukraine in
force, which particularly aimed at willingness to developing and strengthening
democratic, social State, governed by the rule of law and, last but not the
least, necessity to secure continuance in the constitutional framework.
These complex changes to
the Constitution are also evoked by practical implementation of its provisions,
uncovering certain omissions and their elimination, in particular these are
insufficient guarantees concerning rights and freedoms of the human being,
handicaps in organization and functioning of the State mechanisms,
imperfections of the checks and balances system which should have been securing
balance and integrity of this mechanism.
Moreover, at different
stages of the modern constitutional process a number of important comments of
the European Commission for Democracy through Law known as the Venice
Commission and the Parliament Assembly of the Council of Europe. In this regard
the proposed amendments are aimed at taking into account positions and
recommendations of international experts and specialists in the sphere of
constitutional law.
2. Goals and
tasks of the draft
The draft is aimed at
introduction of amendments to the Constitution of Ukraine through comprehensive
and substantial approach, and they must be implemented by passing the new
edition of the Basic Law in due course, as stipulated by the Verkhovna Rada of Ukraine.
An adequate method of
constitutional reforms is implementation of a system refreshment/improvement of
the Constitution of Ukraine directed namely to:
– Systematization and
facilitation of the constitutional rights of human being and their efficient
securing, especially in the Court;
– Provision of
realization of the efficient State power on the basis of a distinctive division
of functions, improvement of the general deterrence system, avoidance of
dualism in the executive branch and finally a global balancing of the whole
State mechanism;
– Extension of the
constitutional regulation of democratic institutes;
– Optimization of
territorial organization of the State power in Ukraine;
– Development in local
governments;
– Creation of
preconditions for judicial reform and reform in legal enforcing bodies;
– Establishing
constitutional grounds for Ukraine’s participation in the process of
international and European integration;
– Elimination of existing
lacks of coordination between certain provisions of the Constitution.
Proceeding from the
stable grounds for the modern constitutionalism, analysis of the provisions of
the Constitution in force has been carried out. Both international and domestic
experience of constitutional framework, international standards and regulations
of international legal instruments in the sphere of Human Rights where
elaborated. We took into account conclusions and recommendations of the Venice
Commission and PACE, decrees and judgements of the Constitutional Court of
Ukraine.
The draft was mostly
prepared basing on a draft Concept of system refreshment of regulation of
social relations in Ukraine developed by the National Constitutional Council of
Ukraine. There were taken into account drafts of a new edition of the
Constitution of Ukraine those which were drafted by academic circles, political
forces, National Commission for Strengthening Democracy and the rule of law,
Foundation for Support of Local Governments of Ukraine, public organizations,
scientists opinions, first of all specialists in the field of constitutional
and administrative law, certain proposals taken from the media sources.
3. General
summary and basic provisions of the draft
Amendments are based on
the provisions of the Constitution of Ukraine in force and subsequently develop
them, aiming at stable realization of the principles of the sovereignty of
Ukraine, as a State governed by the Law, democracy, and as a social State
following principles of social equity that will be developing civil society in
Ukraine.
As far as human being is
the top value of the society and the State, special attention has been paid to
system, comprehensive setting out of legal norms concerning rights and freedoms
of human being, strengthening of guarantees for realization of such rights and
freedoms.
An originating point in
the legal framework was that Ukraine at the moment has a combined republican
form of public organization of the State power. The amendments are proposed for
elimination of problems that arose from a counter-reform imposed by the Law of
Ukraine “On introduction of amendments to the Constitution of Ukraine” dated 8
December 2004 No 2222-IV, the one that changed the State mechanism, and for
creation of conditions for balanced and effective functioning of a mixed
organization of the State power on the grounds of distinction between functions
and powers of the State bodies, improvement in the checks and balances system.
A model of local governments has been substantially democratized.
As far as the
Constitution is an act whose norms correlate within the system integrity, the
comprehensive nature of the proposed amendments has determined necessity to
amend simultaneously nearly the whole text of the Basic Law, affecting each
section and, therefore, creating a new wording of the Constitution.
The structure of the new
Constitution and its stipulations provide succession in the constitutional
regulation of social relations and determine the general logics for reforming
the legal sources.
The draft Law of Ukraine “On introduction of amendments to the Constitution of Ukraine” consists of Section
I which incorporates the new wording of the Constitution and Section II, the
one that regulates the scheme of entry into force of the Law.
It is necessary to name
Section I of the new draft Constitution as “Grounds for the Constitutional
Organization,” Section III as “Popular Vote,” to merge in one section the
provisions on organization of the judicial branch and prosecution bodies
setting them in Section VII “Courts and Public Prosecution Bodies.” Another
section will combine the provisions on local governments, the constitutional
status of the Autonomous Republic of Crimea, organization of executive power in
the regions of Ukraine.
Structure of the new
Constitution of Ukraine
Preamble
Section
I “Grounds for the Constitutional Organization” (Articles 1 – 23);
Section
II “Rights, freedoms and obligations of human being” (Articles 24 – 73)
Section III “Popular
Vote” (Articles 74 – 84);
Section IV “National
Assembly of Ukraine” (Articles
85 – 111);
Section V “President of Ukraine” (Articles 112 – 125);
Section VI “Cabinet of
Ministers of Ukraine” (Articles
126 – 133);
Section VII “Courts and
Public Prosecution Bodies” (Articles 134 – 145);
Section VIII “Constitutional
Court of Ukraine” (Articles 146 – 154)
Section IX “Local
Government and Territorial Organization of the Power” (Articles 155 – 166);
Section X “Amendments to
the Constitution of Ukraine” (Articles 167 – 170)
Section XI “Final
Provisions” (Article 171);
Section XII “Transitional
Provisions” (14 paragraphs).
The general provisions of
the new draft Constitution contain the following.
Preamble
We propose to state in
the Preamble that the People of Ukraine is the creator of the Constitution of
Ukraine. Such approach correlates to the constitutional principle of public
sovereignty and mechanism of amending the Constitution of Ukraine as it is
provided by the Basic Law of the State.
It is necessary to
generally save objectives and tasks incorporated in the preamble of the
existing Constitution.
Along with this, taking
into account that the preamble is an integral part of the Basic Law of the
State, it seems to be helpful to extend the list of social and political
objectives with the provisions connected to strengthening unity of Ukraine and ascertaining the geopolitical location of Ukraine as a member of the European community.
Deriving from social and legal nature of the Ukrainian State it seems to be
possible to declare such a constitutional goal as improvement of social equity
and justice.
Section I “Grounds for the
Constitutional Organisation”
Section I “Grounds for
the Constitutional Organization” is a substantial core of the Basic Law which
determines the general regulation and establishes general conditions for the
whole institutional complex of Ukraine.
The main provisions here
are those which consider sovereignty of Ukraine over its territory, unitary
state organization, basic principles of its administrative and territorial
organization, reflect first of all the principles of unity and integrity of Ukraine.
Thus, the system of
administrative and territorial organization of Ukraine consists of cities,
towns, villages or unified dwelled areas; districts, oblasts and the Autonomous
Republic of Crimea that constitute and inalienable parts of Ukraine. Cities
with the population defined in the legislation may be equated to oblast or
district in its status. The Capital of Ukraine is the City of Kyiv.
The new wording of the
Constitution recognizes human being, its life and health, dignity and moral,
freedom, safety and personal immunity as the highest value not only as a social
value as this mentioned in the Constitution.
The provisions on forming
the principles of organization and realization of the power in the State,
particularly those which concern the principle of the popular sovereignty and
the principle of implementation of the State power through its division into
legislative, executive and judicial branches, where set forth in more clear
way.
The core specifications
of the local self-governments where substantively extended and precisely
defined.
The principle of the rule
of law was distinguished and this will fortify its application in all the
spheres of social life.
At the same time, the
provision on the highest legal power of the Constitution is set out in its new
wording, as well as the principle of lawfulness. Hence the laws those which are
introduced on the basis of the Constitution of Ukraine have to correspond to
it, and other acts of legislation have to face the same conditions.
Proceeding from
recognition of the priority of the international treaties of Ukraine over acts of domestic legislation, the new edition of the Constitution provides
that when an international treaty duly and legally authenticated at national
level contains different rules comparing to those which are contained in the
national legislation, then the provisions of an international treaty will
apply.
The provisions on
inalienability of the right of citizenship and the right to change it where
transferred to this Section, as well as that the citizen of Ukraine shall not
be expelled from the territory of Ukraine or extradited to another state.
Bearing in mind the
necessity of further stabilization and development of the institutes of the
civil society, the new wording of the Constitution of Ukraine provides
mechanisms of its correlation with the state, and relevant articles
particularly set out that the State shall facilitate consolidation and
development of the civil society.
A particular article sets
forth basic guarantees of the political activity, namely that violence shall
not be an instrument for defending political interests, that activity of the
political parties is based on free competition, respect to democratic values
etc. The right to be in opposition and carry out relevant activities is fully
recognized in Ukraine.
Proceeding from the
conceptual principles concerning restriction of the rights and freedoms of
human being, it would be necessary to state that grounds for prohibition of
political activity must be defined only by the Constitution of Ukraine.
The draft provides that Ukraine independently decides on whether or not to join international organizations,
political and economic international formations and decides on cancellation of
its membership in them.
With regard to the
necessity of elimination of undefined state symbols of Ukraine, the provisions contain norms on existing State Flag, State Coat of Arms and State Anthem of
Ukraine together with the Spiritual Anthem of Ukraine “My Lord, the Almighty,
the One Save our Ukraine” added.
Section I also contains
the provisions on assigning hryvnia as the national currency of Ukraine.
Section II “Citizens’ and
human being Rights, freedoms and obligations”
Constitutional
regulation of the social relations in Ukraine is based on rights and
freedoms of human being which determine and aim the State’s activity. The State
is responsible for its activity before person. Assertion and insuring of the
rights and freedoms of human being are the principal goal of the State.
In this way so called “humancentrism”
of the Basic Law of Ukraine that is common for new European constitutions.
However, insufficient
level of practical implementation of the rights and freedoms of human being and
citizen, their legal guarantee, tendency to make pronouncements for effect of the
some regulations of the part II of the current Constitution of Ukraine require
optimisation of their legal regulation.
Consistency of the
constitutional regulation of the civil, political, social, economic, cultural,
ecological rights, guarantee of these rights and also liabilities of the
citizens have been simultaneously reserved.
Particularly, the
principle which stipulates that all the humans since the moment of birth are
free and equal in dignity and rights and principle of equity before the Law and
trial are stipulated.
Amended Part II consists
regulation regarding restrictions of the rights and freedom of the human and
citizen with mentioning directly in Constitution of Ukraine the aim of their
implementation (principal of proportionality). The constitutional rights and
freedom of the human and citizen may not be restricted, excluding cases
stipulated by the Constitution of Ukraine; such a restrictions should be
proportional to the aim established by the Law and necessary in democratic
society.
Amongst civil rights
particularly stipulated rights of each individuals to have a family and respect
to a family relation.
In the Draft of the
Constitution of Ukraine it is enforced constitutional protection of the
children, particularly by means of direct prohibition to involve a child in
activity which is harmful for morality and regular development.
Principally new thing in
part II is establishment of the regulation regarding liability of the State to
create conditions for efficient realisation of the rights of disabled
individuals for independence, social integration and entire participation in
social life. In case of adoption of amended Constitution of Ukraine this
article will become crucial constitutional guarantee for disabled individuals
and development of appropriate legislation.
Constitutional grantees
on realisation and protection of the constitutional rights and freedoms
including relief in the court is increased. In particular, stipulated the right
of each individual for just and public hearing of his/her case in reasonable
period of time by independent and impartial court.
Enforcement of the
constitutional guarantee of rights and freedoms of human and citizen have to
facilitate the realisation of the regulation regarding impossibility of capital
(death) punishment, decreasing to 24 hours instead of 72 hours the period of
court’s verification of the validity of application of commitment (detain under
arrest).
Regulation of the
protection of private life was also made specific, particularly stipulated that
every individual has a guarantee, excluding earlier stipulated secrecies, of
electronic and other correspondence.
Significant that at the
constitutional level determined restrictions that may be established by the Law
in terms of intended for realisation of the rights for free movement and free
choice of the place of residence, rights to leave free territory of the
counter. Particularly, these rights may be restricted only for the reason
(that) of national security, public order, crime prevention or solution of
crime, healthcare, morality of the population or protection of the rights and
freedom of other individuals.
It is stipulated at the
constitutional level that founders and members of the political parties may be
the citizens of Ukraine.
Wider list of other
political rights of the citizens of Ukraine, particularly, stipulated the
citizens’ right to participate in governing not only the state affairs and the
local affairs and also stipulated in addition the right to carry out public and
local initiative.
Stipulated that in case
of improvement of the individual’s condition the legal norm may be retroactive,
not only in case of mitigation or cancellation of legal responsibility.
Stipulated also that
regulation of this Part apply to the legal entity, that is registered in Ukraine, in case when the rights and freedoms and theirs juridical guarantees may be apply.
Section III “Popular Vote”
The
content of this Section directed to realization of the principle of national
sovereignty which particularly constitutes the legal basis for the power of
people, including forming representative state bodies and local
self-governments, and stipulates principles of functioning of the state
mechanism.
The existing wording of
this Section of the Constitution needs substantial changes aimed at elimination
of drawbacks in constitutional regulation of democratic institutes,
particularly concerning forms of popular vote, specification of the principles
of realization of electoral rights and of the right to participate in the
referenda, concerning active and passive right to vote at national and local
elections, realization of people and local initiatives etc.
The existing list of forms
of popular vote was extended. In this regard institutes of people and local
initiatives are to be established.
The content of the
principles of electoral right aimed at strengthening the guarantees of
realization and protection of constitutional electoral rights of the citizens
of Ukraine was sufficiently broadened and specified.
Elections are direct and
take place on the basis of common and equal electoral right through the secret
ballot. All the voters have equal number of votes at the elections and vote on
their own.
Elections are free.
Electorate independently makes a decision on whether or not to participate in
elections. The conditions for expressing their will freely is guaranteed during
elections.
Elections are periodic
and are held according to the terms defined by the Constitution and in
accordance with the law.
The issue of arrangement
of Presidential and parliamentary and local elections in time has been resolved
through prohibition of their simultaneous conduction.
The provisions on specific
treats of realization of a common and equal electoral right at local elections
are proposed to be set out in this Section stipulating, in particular, that the
right to vote at local elections and referendums have only those citizens of Ukraine who belong to relevant local communities.
The Section was
accomplished by the provisions on impossibility to stand for an election to
certain public posts of certain civil servants, as judges, prosecutors,
military servants and other whose activity has to be out of politics.
The issue of referendums
(both national and local) was set forth at constitutional level, taking into
account that the decisions following realization of such form of popular vote
must be legally binding.
It was defined that
decisions at Ukrainian national or local referendum are proved by the vast
majority of votes under a condition that majority of those who have this right
took part in the elections.
A scope of issues on
which referendums are obligatory was specified, and issues where referendums
are not applicable are specified as well.
Thus, it was stipulated
that exclusively the national referendum in Ukraine has the right to finally
decide on changes of the territory of Ukraine, transfer by Ukraine of a part of its rights to international formations.
The topic of a local
referendum, which may be held by a community (or communities) as the major
subject of local self-government, is taking decisions, according to the
Constitution of Ukraine and legislation in force, on the issues of local
concern.
An institute of people
initiative is drafted separately, it was defined that draft acts of legislation
may be submitted to the Parliament (and urgently considered) on demand of not
less than one hundred thousand citizens of Ukraine who have the right to vote.
According to people initiative, on demand of not less than 1.5 billion citizens
of Ukraine who have the right to vote, a draft act of legislation on amendments
to the Constitution or a new version of the Constitution may be submitted to
the National Assembly of Ukraine.
This was stipulated that
during war or emergency the popular vote does not exercises.
Section IV “National
assembly of Ukraine”
National Assembly of Ukraine – the Parliament of Ukraine is a separate body of legislative power.
National Assembly of
Ukraine consists of two Chambers, the Chamber of Deputies and the Senate.
The total composition of
the Chamber of Deputies is three hundred people's deputies who are elected for
the four-year term.
The Senate consists of three
senators who are elected for a four-year term in the Autonomous Republic of
Crimea, each region (oblast), the City of Kyiv, and at the communities that has
the same status as oblast. The Senate also consists of former Presidents of
Ukraine except those who were moved from the post via the procedure of
impeachment.
The citizen of Ukraine who has the right to vote may be elected a Deputy. The citizen of Ukraine who has the right to vote and reached the age of 35 years may be elected a senator.
People's deputies and senators are elected by the citizens of Ukraine, who have the right to vote on the basis of universal, equal and direct suffrage,
by secret ballot.
One senator elected in
the Autonomous Republic of Crimea, each region (oblast), the city of Kyiv and at the community with the status of region are re-elected each two years.
The Chamber of
Deputies adopts the decision with regard to the approval of the members of the
Cabinet of Ministers of Ukraine and the Program of its Activity; adopts the
decision in regard to the no-confidence vote to the Cabinet of Ministers of
Ukraine, dismisses from office the Prime-minister of Ukraine, other members of
the Cabinet of Ministers of Ukraine; exercises control over the activity of the
Cabinet of Ministers of Ukraine in accordance with the Constitution of Ukraine,
controls the implementation of the State Budget of Ukraine.
The Chamber of
Deputies confirms decisions on granting loans and economic aid by Ukraine to
foreign states and international organisations and also decisions on Ukraine
receiving loans not envisaged by the State Budget of Ukraine from foreign
states, banks and international financial organisations, exercising control
over their use; appoints to office and dismisses from office the half of the staff
of the Chamber of Accounting (on a par with the Senate), including the Chairman
of the Chamber of Accounting; appoints to office and dismisses from office the
Authorised Human Rights Representative of the National Assembly of Ukraine;
establishes its territorial representations; establishes and changes by law the
boundaries of administrative-territorial subdivisions, establishes and
abolishes regions and districts; equates the communities with the status of
region or district; confirms by law the list of objects of the right of state
property that are not subject to privatisation; annual programs of
privatisation of the objects of the right of state property; determines by law
the principles for the expropriation of objects of the right of private property.
The Senate:
designates elections of the President of Ukraine, the elections of the Deputies
to the Verkhovna Rada of the Autonomous Republic of Crimea, the Deputies of the
region, Kyiv city, district councils, community councils, heads of communities;
upon the submission of the President of Ukraine terminates prior to the
expiration of the term of authority of the Verkhovna Rada of the Autonomous
Republic of Crimea, based on the opinion of the Constitutional Court of Ukraine
that the Constitution of Ukraine has been violated by the Verkhovna Rada of the
Autonomous Republic of Crimea; terminates prior to the expiration of the term
of authority of the region, district councils, community councils, heads of
community in the cases determined by the Constitution of Ukraine and by law.
The Senate upon
the submission of the President of Ukraine confirms his decisions that deals
with the defence and the security of the state and decides other issues
including personnel issues that mustn’t have unnecessary politicization. On the
submission of the President of Ukraine the Senate appoints to office and
dismisses from office the Chairman and other members of the Central Electoral
Commission of Ukraine, the Chairman of the National Bank of Ukraine, the
Chairman and state delegates of the Antimonopoly Committee of Ukraine, heads
and members of other bodies of government regulation; grants consent for the
appointment to office by the President of Ukraine of the Procurator General of
Ukraine, Head of Security Service of Ukraine, Head of Foreign Intelligence
Service of Ukraine, Head of National Bureau of Investigations of Ukraine, heads
of other state bodies, that provide prejudicial inquiry; appoints and dismisses
one-half of the composition of the Council of the National Bank of Ukraine (on
a par with the President of Ukraine), the National Council of Ukraine on
Television and Radio Broadcasting.
The Chambers
exercise other powers ascribed to their competence in accordance with the
Constitution of Ukraine.
Each Chamber
makes all the decision during the sessions that are holding separately. There’s
a quorum for the sessions of the Chambers – not less than their general
composition, the decisions are adopted by the majority of constitutional
composition of the Chamber, except in cases envisaged by the Constitution of
Ukraine.
Procedure rules of the
Chambers of the National Assembly of Ukraine are determined by the Constitution
of Ukraine and by the regulations of the Chambers.
The authority of
the Chamber of Deputies is terminated on the day of the opening the first
session of the Chamber of Deputies of a new convocation.
The authority of
the Chamber of Deputies is terminated prior to the expiration of term on the
day of the Decree of the President of Ukraine about its dissolution.
The Chamber of
Deputies may be dissolved by the President of Ukraine. To adopt such a decision
the President announces consultations with the Chairmen of both Chambers and
the Heads of Fractions from the Chamber of Deputies.
The right of legislative
initiative in the National Assembly of Ukraine belongs to the people's
deputies, the senators, the Cabinet of Ministers of Ukraine, the President of
Ukraine, no less than one hundred thousand citizens of Ukraine who have the right to vote.
Draft laws are presented
for consideration to the Chamber of Deputies. Consideration of draft law by the
Chamber of Deputies envisages the adoption of its main dispositions
article-by-article and the adoption of the law in a whole. The law adopted by
the Chamber of Deputies is forwarded by the Chairman of the Chamber of Deputies
to the Senate within five days.
After the receipt of a
law within fifteen days of the session the Senate adopts a law or rejects it.
If the Senate within the set time doesn’t make the decision concerning a law,
it is considered to be adopted by the Senate. If the Senate adopted the
decision to reject a law, the Chamber of Deputies may adopt it again by the
majority of its general composition.
The Chairman of the
Senate signs a law adopted by the Senate or repeatedly adopted by the Chamber
of Deputies and forwards it without delay to the President of Ukraine.
Within fifteen days of
the receipt of a law, the President of Ukraine signs it or uses the right of
veto and returns it to the Chamber of Deputies with formulated proposals for
repeat consideration.
In the event
that the President of Ukraine has not returned a law for repeat consideration
within the established term, the law is to be signed by the President of
Ukraine.
If a law returned
by the President of Ukraine with his proposals, during its repeat
consideration, is again adopted by the Chamber of Deputies by no less than
two-thirds of its general composition, the President of Ukraine is obliged to
sign it within ten days.
A law signed by
the President of Ukraine must be officially published without delay. A law
enters into force in ten days from the day of its official promulgation, unless
otherwise envisaged by the law itself, but not prior to the day of its
publication.
Powers of the Deputies
terminate simultaneously with the termination of the powers of the Chamber of
Deputies, powers of a senator terminate on the day of termination of the term
he was elected for. An institute of so called “imperative mandate” is not
stipulated.
Immunities of the
deputies are constitutionally restricted, and a deputy or a senator shall not
be detained or arrested. However bringing to the criminal action takes place in
common way, till the moment of entry into force of a verdict proving guilty,
and this pulls terminations of the deputy’s or senator’s powers.
Immunities of the
Ombudsman of the National Assembly of Ukraine are stipulated at the same level
and this shall additionally contribute to his activity in the sphere of
protection of the rights. He shall not be detained or arrested without consent
of the Chamber of Deputies unless the legal verdict against him enters into
force.
Section V “President of Ukraine”
The President of Ukraine
is the Head of State. The President of Ukraine represents the State and secures
its legal succession.
The President of Ukraine
is the guarantor of the state sovereignty, territorial indivisibility and
security of Ukraine, the observance of the Constitution of Ukraine and human
and citizens' rights and freedoms.
President also
contributes to cooperation of state bodies and local self-government bodies.
The President of Ukraine
is elected directly by the citizens of Ukraine for a five-year term. The same
person shall not be the President of Ukraine for more than two consecutive
terms.
The President provides
the governance in the spheres of foreign policy, security. The President is the
Commander-in-Chief of the Armed Forces of Ukraine, heads the Council of
National Security and Defence of Ukraine and has the proper authority.
Thus, the President:
adopts the decision on recognition of foreign states, concludes international
treaties of Ukraine; entrusts for the conclusion of international treaties on
behalf of Ukraine; appoints and dismisses heads of diplomatic missions of
Ukraine to other states and to international organisations; accepts credentials
and letters of recall of diplomatic representatives of foreign states; appoints
to office and dismisses from office the high command of the Armed Forces of Ukraine
and other military formations; adopts a decision on the general or partial
mobilisation and the introduction of martial law in Ukraine or in its
particular areas, adopts a decision on the introduction of a state of emergency
in Ukraine or in its particular areas, declares certain areas of Ukraine as
zones of an ecological emergency situation, adopts a decision on rendering
military assistance to foreign states, on sending military units of Ukraine to
other countries and on access of foreign military units to the territory of
Ukraine, along with the confirmation of these decisions by the Senate of
Ukraine; appoints to office with subsequent confirmation of these decisions by
the Senate of Ukraine and dismisses from office the Procurator General of Ukraine,
Head of the Security Service of Ukraine, Head of national bureau for
investigations, chief officers of other bodies of power which conduct
pre-trial investigation, the Foreign Intelligence Service of Ukraine,
terminates acts of the Cabinet of Ministers of Ukraine on foreign policy,
defence and security issues after consultations with Prime-minister of Ukraine.
The President of Ukraine
designates all-Ukrainian referendum in accordance with the Constitution,
addresses the people with messages and the National Assembly of Ukraine with
annual and special messages on the domestic and foreign situation of Ukraine;
designates elections to the National Assembly of Ukraine within the terms
established by this Constitution; establishes courts by the procedure determined
by law and establishes judicial districts, exercises other powers determined by
the Constitution of Ukraine.
The Council of National
Security and Defence of Ukraine is expected to be the co-ordinating body with
the President of Ukraine on the Head on issues of national security and
defence. The Council of National Security and Defence of Ukraine coordinates
and controls central bodies of executive power in these spheres.
Ex officio members of the
Council of National Security and Defence of Ukraine are: the Prime Minister of
Ukraine, the Minister of Foreign Affairs of Ukraine, the Minister of Defence of
Ukraine, the Minister of Internal Affairs of Ukraine, the Minister of Justice,
the Head of the Security Service of Ukraine, the Head of the Intelligence
Service of Ukraine and other officials, defined by the President of Ukraine.
The Heads of National Assembly Houses may participate in the Council of
National Security and Defence of Ukraine meetings.
Decisions of the Council
of National Security and Defence of Ukraine are put into effect by decrees of
the President of Ukraine
As a result of transition
to a bi-chamber model of parliament, the procedure of impeachment will be
gaining a classical appearance when the decisions accusing of the President of
have to be approved by the lower chamber, and the decisions on termination of
his powers by the Senate.
Section VI “Cabinet of Ministers of Ukraine”
The Cabinet of Ministers
of Ukraine is the highest body in the system of bodies of executive power
The Cabinet of Ministers
of Ukraine is guided in its internal and external activities by the
Constitution and the laws of Ukraine and by the acts of the President of
Ukraine.
The Cabinet of Ministers
of Ukraine is composed of the Prime Minister of Ukraine, the Vice Prime
Minister and the Ministers.
There is a right to
combine the mandate of People’s Deputy with the position of member of the
Cabinet of Ministers of Ukraine
The composition of the
Cabinet of Ministers is made in parliamentary way – by the House of Deputies,
which has broad powers as to control the Government activity. The Cabinet of
Ministers is under the control of House of Deputies.
To compose the Cabinet of
Ministers the President of Ukraine obliges the candidate to the position of
Prime-minister, authorized by the political party with the majority of votes
according to the elections results, to form and introduce in 20-days period for
the consideration of House of Deputies the proposals as to personal composition
of the Cabinet of Ministers together with the Action Program of the Cabinet of
Ministers of Ukraine. The House of Deputies in 10-days term starting from the
date of introduction of the proposals on personal composition of the Cabinet
and Action Program of the Cabinet of Ministers adopts the decision on approval
of the personal composition of the Cabinet of Ministers of Ukraine and its
Action Program.
If during the defined
term the House of Deputies has not approved the personal composition of the
Cabinet of Ministers and its Action Program, the President in 3-days term
obliges the candidate to the position of Prime Minister of Ukraine, authorized
by the political party second by majority of votes according to the elections
results to compose and to introduce in 20-days term for the consideration of
the House of Deputies the proposals on personal composition of the Cabinet and
Action Program of the Cabinet of Ministers of Ukraine. The House of Deputies in
10-days term starting from the date of introduction of the proposals on
personal composition of the Cabinet and Action Program of the Cabinet of
Ministers adopts the decision on approval of the personal composition of the
Cabinet of Ministers of Ukraine and its Action Program.
If after this the House
of Deputies has not approved the personal composition of the Cabinet of
Ministers of Ukraine and its Action Program after introduction of such proposal
the President of Ukraine nominates candidate for the position of Prime Minister
and obliges the candidate in 30-days term to introduce to the House of Deputies
the proposals on personal composition of the Cabinet of Ministers of Ukraine
and its Action Program.
In case of disapproval of
the personal composition of the Cabinet of Ministers of Ukraine and its Action
Program by the House of Deputies in 10-days term upon the introduction of such
proposals, the President of Ukraine terminates the authority of the House of
Deputies and designates a special election.
The Cabinet of Ministers
of Ukraine tenders its resignation to the newly-elected President of Ukraine
The adoption of a
resolution of no confidence in the Cabinet of Ministers of Ukraine by the House
of Deputies of Ukraine results in the resignation of the Cabinet of Ministers
of Ukraine.
The Prime Minister of
Ukraine has the right to announce the resignation to the House of Deputies. In
this case the decision on resignation of the Prime Minister is approved by the
House of Commons. The resignation of the Prime Minister of Ukraine results in
the resignation of the entire Cabinet of Ministers of Ukraine
In case of resignation,
the Cabinet of Ministers continues to exercise its powers until a newly-formed
Cabinet of Ministers of Ukraine commences its operation.
The Cabinet of Ministers
establishes, reorganizes and liquidates according to the Law the ministries and
other central bodies of executive power, appoints and dismisses on the
submission of the Prime Minister of Ukraine the chief officers of central
bodies of executive power which are not members of the Cabinet; revokes acts of
the Cabinet of Ministers of Ukraine, other central bodies of executive power,
exercises other powers determined by the Constitution of Ukraine and Laws.
It is regulated that the
Cabinet of Ukraine adopts its decisions on the meetings by the majority of its
personal composition by voting.
The
organisation, authority and operational procedure of the Cabinet of Ministers
of Ukraine, and other bodies of executive power, are determined by the
Constitution and the laws of Ukraine.
Section VII “Courts and Justice”
The new version of the Constitution of Ukraine is to
provide constitutional basis for the reform of the legal system. With the most
of provisions of the Constitution currently in force retained the Section needs
relevant additions and clarifications in order to reflect more fully the
substance of such institutions as the court and justice.
Furthermore, considering changes in definition of
functions of the offices of public prosecutors it is regarded necessary to
expound in a single Section provisions related to the organization of the
judiciary system and public prosecutors’ offices.
Jurisdiction of courts is extended to all legal
relations that emerge in Ukraine. Courts may not rule to fulfil the duties of
other authorities or officials, unless it is envisaged by law.
The system of general jurisdiction courts in Ukraine is built according to the principles of specialization, territoriality and
instance.
The High Court of Ukraine is the highest judicial
authority that ensures uniform application of the legal norms by all courts of
general jurisdiction. Higher Specialized Courts are the Courts of Appeal in the
system of general jurisdiction courts. The law envisages functioning of the
Courts of Appeal and Local Courts provided that a court may not combine
functions of different instances in a case consideration.
The law defines principles and procedure of courts’
formation and setting of judicial districts’ boundaries. The President of
Ukraine sets up courts and determines boundaries of judicial districts.
In cases and in compliance with the procedure
envisaged by law justice is carried out in communities by elected Justices of
the Peace. The law determines requirement to be met by a Justice of the Peace,
procedure of his election, dismissal and rules of his practice.
The judge is appointed for an unlimited time period.
A Ukrainian citizen that has reached twenty-seven year old limit, has higher
legal education, knows official language (has fluent Ukrainian), was trained
for judge qualification at special judge courses and passed an exam may be
appointed as a judge according to competition results. The law determines
additional requirements for certain categories of judges related to their
working experience and qualification levels.
The Senate appoints and dismisses judges of the High
Court of Ukraine and Higher Specialized Courts on proposal of the Higher
Justice Council. The President of Ukraine appoints and dismisses judges of
other courts on proposal of the Higher Justice Council according to the procedure
determined by law.
Assembly of judges of a court appoints from its
members as well as dismisses the head of the court by a secret ballot.
Immunity of judges is guaranteed to extend that is
defined in the Constitution of Ukraine. A judge may not be detained or
imprisoned without consent of the Senate.
Judge credentials may be terminated by the Higher
Justice Council of Ukraine if a judge is accused of committing a crime or to
avoid violation of norms regarding incompatibility of duties.
The Higher Justice Council of Ukraine puts forward proposals on dismissing and terminates credentials of judges in cases
envisaged by the Constitution of Ukraine. The Higher Justice Council of Ukraine decides on calling judges to account on disciplinary liability matters.
The Higher Justice Council of Ukraine is comprised of sixteen members. Assemblies of Judges of Ukraine appoint eight
members of the Higher Justice Council of Ukraine, the President of Ukraine and
the Senate appoints four High Justice Council members each from retired judges.
Members of the High Justice Council of Ukraine carry on their duties on
permanent basis and may not embrace the judge of public prosecutor office or
devote themselves to advocacy.
Issues that belong to the competence of the Higher
Justice Council of Ukraine are considered at its plenary sessions, meetings of
the Judges Qualification Commission and Judges Disciplinary Commission that are
formed in the Higher Justice Council from its members. The Head of the
Constitutional Court of Ukraine, the Minister of Justice of Ukraine and the
Prosecutor General may participate in these gatherings.
The Prosecutor General of Ukraine is appointed by the
President of Ukraine with the concern of the Senate and dismissed from his
office by the President of Ukraine on grounds determined by law.
Supervision of
human and citizen’s rights and freedoms observation, obedience of relevant
legislation by executive authorities, local self-government bodies and their
officials as well as conduction of pre-trial investigations were excluded from
the powers of the prosecutor’s office.
Section VIII “The Constitutional Court of Ukraine”
Provisions of this Section have been changed in
regard of the procedure of the Constitutional Court of Ukraine forming and definition
of the scope of its powers.
The judge of the Constitutional Court of Ukraine is
appointed for a nine year period on proposal of the President of Ukraine by the
decision of the Senate adopted with no less than two third majority vote from
its entire composition without the right of re-appointment for another term.
The judge of the Constitutional Court of Ukraine is
dismissed by the Senate on proposal of the President of Ukraine. Decision on
demission from office of the judge of the Constitutional Court of Ukraine on
the basis of incompatibility of duties requirement violation by the judge,
violation of the oath by the judge is adopted by the Senate by no less than two
third majority vote of its entire composition.
The text of the oath of the judge of the
Constitutional Court of Ukraine is formalized. The judge is empowered by taking
it at the plenary session of the Constitutional Court of Ukraine.
Issues that belong to the competence of the
Constitutional Court of Ukraine are considered at plenary sessions of the
Constitutional Court of Ukraine and during meetings of its Chambers. Both
Chambers of the Constitutional Court of Ukraine are formed by the plenary
session of the Constitutional Court of Ukraine. Each of them is comprised of
nine judges of the Constitutional Court of Ukraine. Constitutional appeals of
persons are considered at meetings of the Chambers of the Constitutional Court
of Ukraine.
According to a constitutional appeal of a person the
Constitutional Court of Ukraine rules on compliance with the Constitution of
Ukraine (constitutionality) of a law, whereby a court of general jurisdiction
has made its ultimate judgment related to constitutional rights and freedoms of
the person, if that person believes that the law, on which the decision is
based, contradicts the Constitution of Ukraine.
The Constitutional Court of Ukraine rules on the
official interpretation of the Constitution of Ukraine and compliance of the
laws of Ukraine, acts of the Chambers of the National Assembly of Ukraine, acts
of the President of Ukraine and acts of the Cabinet of Ministers of Ukraine
with the Constitution of Ukraine (constitutionality).
The Constitutional Court of Ukraine draws conclusions
on the following: on compliance with the Constitution of Ukraine
(constitutionality) of international treaties submitted to the National
Assembly of Ukraine for receiving consent to their binding powers, on
compliance with the Constitution of Ukraine (constitutionality) of issues that
are brought forward to a national referendum, on consistency of the procedure
of investigation and consideration of the case the President of Ukraine powers
termination by the way of impeachment with its definition in the Constitution
of Ukraine, regarding violations of the Constitution of Ukraine by the
Verkhovna Rada (Verkhovna Rada, Parliament) of the Autonomous Republic of
Crimea.
Judgments of the Constitutional Court of Ukraine are
ultimate and may not be appealed.
Laws, other acts or their provisions that are
declared to be unconstitutional, become null and void from the date when
judgments of the Constitutional Court of Ukraine on their unconstitutionality
are officially announced.
Section IX “Local
Self-Government and Territorial Organisation of Power”
Local self-government shall
be defined as a right and possibility of community members to effect, in the
interests of the local population and within the limits set by the Constitution
of Ukraine and its laws, the regulation and management of social matters of
local importance.
Community shall mean the
administrative and territorial unit and a totality of citizens of Ukraine residing on its territory. Other communities cannot form a part of this community.
Local self-government
shall be effected by the community members both directly and through the local
self-government bodies, i.e. their own representative local self-government
bodies, communities’ chairmen, and representative self-government bodies that
represent common interests of communities and their executive bodies.
Community council shall
be the representative self-government body. Representatives (deputies) to the
community council shall be elected for the term of four years by the community
members having voting rights. A community member having voting rights may be elected
deputy to the community council.
The community chairman
shall preside at the community council meetings and head the community
council’s executive body that shall be formed by the community council at his
submission. The community chairman shall be elected for the term of powers of
the community council by the community members having voting rights. A
community member having voting rights may be elected chairman of the community
council.
Communities shall, both
directly and through the local self-government bodies created by them in
accordance with the law, approve the community statutes; manage property owned
by the community; approve programs of socioeconomic and cultural development
and control their implementation; approve local budgets and control their
implementation; establish local taxes, charges, and mandatory payments; provide
for holding local referendums and implementation of their results; establish,
reorganise and abolish municipal enterprises, organisations and institutions as
well as control their activities; make decisions, within their terms of
reference, on other matters that are not excluded from their terms of reference
and whose decision is not vested with other bodies.
Communities shall, both
directly and through the councils established by them, make common decisions
within their terms of reference for their more efficient implementation.
The community council
shall have the right, according to the procedure established by law, to
delegate by contract its certain powers to other councils.
The local self-government
bodies representing common interests of communities shall be district, oblast
councils, and their executive committees. Deputies to these councils shall be
elected for the term of four years by community members having voting rights,
within the limits of the district or oblast. A community member having voting
powers within the limits of district or oblast correspondingly may be elected
deputy of a district or oblast council.
District, oblast council
shall approve: district or oblast budget; district or oblast programs of
socioeconomic and cultural development; rational use of natural resources,
environment protection, and control their implementation; in accordance with
the law, manage the objects that are collectively owned by the community make
decisions, in accordance with the law, on the use of natural resources of local
importance; approve decisions on the organisation of territories and objects of
natural reserves of local importance and other territories subject to special
protection; make decisions on the issues of the educational, cultural, and
health protection establishments; make decisions on providing for law
enforcement and public safety; initiate introduction of emergency situation and
establishing zones of environmental emergency in corresponding localities;
decides on other issues within its terms of reference stipulated by law.
District, oblast council
also shall exercise powers delegated to it under the contract by the community
council according to the procedure stipulated by law.
District, oblast council
shall elect, out of its composition, the chairman of a corresponding council;
form the council’s executive committee headed by the executive committee
chairman appointed by the council.
The local self-government
bodies shall have the right to interact while performing their duties and, on a
voluntary basis, to establish associations of local self-government bodies, the
status of which shall be defined by the law, for the implementation of common tasks.
On the terms and
conditions stipulated by the law, the local self-government bodies shall have
the right to engage in trans-border cooperation with the local self-government
bodies of other countries.
The local self-government
bodies may, in accordance with the law, be delegated certain powers of the
executive power bodies. The delegation of local self-government bodies’ powers
to the executive power bodies is not envisaged.
The status of the
Autonomous Republic of Crimea established by the Constitution in force in Ukraine shall be generally preserved.
The Autonomous Republic
of Crimea shall have the Constitution of the Autonomous Republic of Crimea that
is adopted by the Verkhovna Rada of the Autonomous Republic of Crimea and
approved by the law.
The Verkhovna Rada of the
Autonomous Republic of Crimea shall be the representative body of the
Autonomous Republic of Crimea. The deputies of the Verkhovna Rada of the
Autonomous Republic of Crimea shall be elected by the community members, having
the voting rights, within the boundaries of the Autonomous Republic of Crimea
for the term of four years. A member of the corresponding community having the
voting rights may be elected deputy of the Verkhovna Rada of the Autonomous
Republic of Crimea.
The Council of Ministers
of the Autonomous Republic of Crimea shall be the Government of the Autonomous
Republic of Crimea. The Chairman of the Council of Ministers of the Autonomous
Republic of Crimea shall be appointed to and dismissed from his office by the Verkhovna
Rada of the Autonomous Republic of Crimea.
In the Autonomous
Republic of Crimea, oblasts, city of Kyiv, in cities whose status is equalled
to oblasts, there function the heads of state administrations who are appointed
to and dismissed from their office by the President of Ukraine.
The head of the state
administration within the boundaries of the corresponding administrative and
territorial unit shall: control the observance of the Constitution of Ukraine,
acts of the President of Ukraine, the Cabinet of Ministers of Ukraine by the
territorial divisions of ministries, other central bodies of executive power
and local self-government bodies, their officials; provide for the interaction
between the territorial divisions of ministries, other central bodies of
executive power and local self-government bodies.
The head of the state
administration in the Autonomous Republic of Crimea shall exercise
corresponding powers also with regard to the Verkhovna Rada of the Autonomous
Republic of Crimea, Council of Ministers of the Autonomous Republic of Crimea,
and their acts.
The heads of state
administrations may, for exercising their powers, establish representative
offices in districts and towns.
Section X “Amendments to
the Constitution of Ukraine”
A draft law amending the
Constitution of Ukraine or proposing a new wording of the Constitution of
Ukraine may be submitted to the National Assembly of Ukraine by a collective
submission of deputies and senators who account for not less than one third of
the total number of each chamber, or by the people’s initiative at the request
of not less than a million and a half of citizens of Ukraine having voting
rights.
The draft law amending
the Constitution of Ukraine or proposing a new version of the Constitution of Ukraine
shall be considered by the Chamber of Deputies and preliminarily adopted by no
less than two thirds of its total composition. In case of adoption
article-by-article and in general by not less than two thirds of the Chamber of
Deputies’ total composition, the draft law shall be forwarded to the Senate.
In case the draft law is
approved within ninety days by the Senate (by not less than two thirds of its
total composition) the President of Ukraine shall make a decision on organising
the all-Ukrainian referendum for the adoption of a corresponding constitutional
law. Such a referendum may be held not earlier than ninety days and not later
than one year after the Senate has adopted the draft law.
The constitutional law
shall, within three days of its adoption according to the procedure stipulated
by the Constitution of Ukraine, be signed and officially published by the
President of Ukraine. The constitutional law shall come into force within
fifteen days of its official publication if not otherwise provided in the law
itself, but not earlier than the day of its publication.
The Constitution of
Ukraine may not be amended if such amendments stipulate the abolishment or
limitation of the human and citizens’ constitutional rights and freedoms.
Section XI “Final
Provisions”
28 June is a state
holiday, the Day of the Constitution of Ukraine.
Section XII “Transitional
Provisions”
The transitional
provisions shall, in particular, include the issues of time frames for the
establishment of state bodies and local self-government bodies; it is envisaged
that within five years after this Constitution takes effect the existing
oblasts cannot be abolished.
4. Other
Information Necessary for the Consideration of the Draft Law
The draft Law corresponds
to the requirements of part one of Article 157 of the Constitution of Ukraine.
In particular, the Draft Law does not contain the provisions (or those similar
to them) which previously had been found, by conclusions and decisions of the
Constitutional Court of Ukraine, as those that abolish or limit human and
citizens’ rights and freedoms, or aimed at the abolishment or violation of
territorial integrity of Ukraine.
The proposed amendments
do not envisage abolishment or limitation of human and citizens’ rights and freedoms,
but expand their constitutional affirmation, and strengthen the guarantees for
the protection of these rights and freedoms.
The amendments are aimed
at further development of Ukraine’s statehood, strengthening independence and
territorial integrity of Ukraine. Besides, they will not lead to the violation
of international commitments of Ukraine.
The submission of this
draft Law corresponds to part two of Article 156, and Article 158 of the
Constitution of Ukraine.
The draft requires
approval by the all-Ukrainian referendum (part one of Article 156 of the
Constitution of Ukraine).
Adoption and confirmation
of the draft Law in the version submitted shall provide for the systemic,
all-round, clear and undisputed nature of the Constitutional regulation of
social relations. With a view to the stage-by-stage implementation of changes
in the regulation of civic relations at the constitutional level, transitional
provisions are included, with it all having positive legal consequences for the
subjects of relevant legal relations.
The draft Law
implementation will not directly affect the expenditure and revenues parts of
the State Budget of Ukraine and local budgets for 2009.
