Deepening EU-Ukrainian Relations

What, Why and How?

Michael Emerson, Veronika Movchan

• Publisher: Centre for European Policy Studies
• Year: 2018
• ISBN:
  9781786607980
• Edition: 2
• Topic: Politik & Internationale Beziehungen
• Subtopic: Internationale Beziehungen

For Ukraine, the signing of the Association Agreement and the DCFTA with the European Union in 2014 was an act of strategic geopolitical significance. Emblematic of the struggle to replace the Yanukovych regime at home and to resist attempts by Russia to deny its ‘European choice’, the Association Agreement is a defiant statement of Ukraine’s determination to become an independent democratic state. The purpose of this Handbook is to make the complex political, economic and legal content of the Association Agreement readily understandable. This second edition, published two years into the Agreement’s implementation, adds new value, charting Ukraine’s progress in putting the Agreement into effect. Two teams of researchers from leading independent think tanks, CEPS in Brussels and the Institute for Economic Research and Policy Consulting (IER) in Kyiv, collaborated on this project, with the support of the Swedish International Development Agency (Sida). This Handbook is one of a trilogy examining similar Association Agreements made by the EU with Georgia and Moldova

PART I. POLITICAL PRINCIPLES, RULE OF LAW AND FOREIGN POLICY

1. POLITICAL PRINCIPLES

Provisions of the Association Agreement

The Association Agreement is premised on a commitment to pursue and respect:

…the common values on which the European Union is built – namely democracy, respect for human rights and fundamental freedoms and the rule of law – [which] are essential elements of this Agreement.

The phrase “essential elements” links to Art. 478 of the Agreement, which provides that in the case of abuse of these principles the Agreement may be suspended.

Art. 6 provides for “dialogue and cooperation on domestic reform”. This political dialogue is conducted through regular meetings at different levels, including at summit, ministerial and senior official levels.

On the substantive implementation of the basic principles, the jointly agreed Association Agenda of 16 March 2015 is more explicit.² Priority matters for short-term action include constitutional reform, election reform, judicial reform, human rights and public administration reform. These challenges are addressed in considerable detail.

Constitutional reform. The Ukrainian government is urged to embark on a transparent process of constitutional reform that aims to develop effective checks and balances between state institutions. The functioning of local and regional governments should be strengthened, including through decentralisation, in line with the European Charter on Local Self-Government and with the delegation of substantial competences and related financial allocations.

Electoral reform. Electoral legislation should be improved and harmonised, including the laws on referenda, on the Central Electoral Commission and the financing of political parties.

Human rights and fundamental freedoms. Ukraine has committed itself to a swift implementation of the judgments of the European Court of Human Rights. The Association Agenda outlines measures regarding freedom of expression, assembly and association... Regarding the freedom of association, the Agenda pays particular attention to ensuring the rights of minorities; the equal treatment of men and women; children’s rights; and combating torture and inhuman treatment.

The issues of judicial reform and corruption are taken up in chapter 2.

Implementation perspectives

The Constitution. According to its Constitution, Ukraine is a democratic state that adheres to the principles of the rule of law, human rights and fundamental freedoms. Ensuring respect for these principles, however, has proved to be problematic. Ukraine has been an unstable democracy so far. After gaining independence in 1991, the country experienced two periods of disguised authoritarianism (1995-2004 and 2010-14), which were ended only by massive public protest. After the last wave of protests, known as Euromaidan, Ukraine embarked on a path of democratic development, but the reform process has been slow.

An overview of democratic governance. The most resilient component of the democratic system in Ukraine has been the ballot box. Although many of the elections in the 1990s and 2000s were not considered to be completely free and fair, they were still able to ensure a sizeable representation of the political opposition in the Parliament. They even produced electoral victories for the opposition in 1994, 2005, 2006, 2007 and 2010. After the Euromaidan, the election process improved substantially. Despite a number of problems, most observers considered the elections in 2014 and 2015 to be generally compliant with international standards. Problems remain with the non-transparent financing of election campaigns, which allows wealthy businessmen and corrupt politicians to improperly influence the results with vote-buying and the abuse of power by officials.

Other components of the democratic system are weaker, however. After gaining independence, there was a power struggle between representatives of the executive and legislative branches of Ukraine’s government. The Constitution of 1996 established Ukraine as a semi-presidential republic, with a strong role for the president. But in the Constitution of 2004, adopted after the pro-democratic protests known as the Orange Revolution, the balance of power shifted towards a parliamentary system. Yet the new political system was flawed. A fierce struggle for power between President Viktor Yushchenko and Prime Minister Yulia Tymoshenko in 2007-09 reversed the gains of the Orange Revolution and caused the country’s democracy to backslide in the subsequent years. In 2014, the Constitution of 2004 was reinstated, but once again power imbalances posed risks to democracy.

For most of Ukraine’s independence period, the principle of the separation of powers has not been implemented properly. The judiciary and the prosecutor’s office were prone to political influence by the executive and the legislative branches of government.

Ukraine’s system of government is highly centralised, but with three levels of administrative, territorial entities: oblasts, rayons and towns/villages, each of which has elected representative bodies (councils). In reality the powers of these bodies are minuscule. Oblasts and rayons are governed by executives that are directly appointed by central government. This system is currently under review.

Finally, the participation of Ukrainian citizens in politics and civic life is not effective. Although the share of Ukrainians who work in political parties or action groups is higher than in most EU countries, activists have little influence over their parties’ decisions. Ukrainian parties typically lack coherent ideologies and are just vehicles for their leaders and financial patrons. As a result, political parties do not adequately represent large strata of society. Public trust in political parties, which grew in the 1990s and the first half of the 2000s, has fallen to 19% in recent years and has not really improved after the Euromaidan.³ In December 2017, only about 12-13% of the population trusted political parties.⁴ The share of Ukrainians working in civil society organisations was lower than in EU countries,⁵ although volunteer activities have accelerated since the Euromaidan.⁶

Reform of democratic governance. The scope of reforms since Euromaidan has been limited, and their pace slow. The reforms focused primarily on the decentralisation and independence of the judiciary, and less on contentious issues such as electoral rules.

In March 2015, President Poroshenko established a Constitutional Commission with a mandate to draft amendments to the Constitution. The Commission, which was composed of legal experts and politicians, decided not to prepare a comprehensive bill to amend the Constitution. Instead, it began to draft separate bills aimed at resolving particular issues. In 2015, the Commission prepared three bills. The first one dealt with decentralisation, the second concerned the judiciary and the third revised the chapter of the Constitution on human rights.

The bill creating a framework for the decentralisation of power was completed by the Constitutional Commission in June 2015. It made provision for the establishment of local governments (executive committees) subordinated to the councils at the rayon and oblast levels. The local governments were intended to replace centrally directed local state administrations, which had to be dissolved. The bill also established a framework for the modification of the administrative division of Ukraine, namely for the consolidation of the lowest-level administrative units.

The proposed amendments regarding decentralisation sparked two serious controversies, however. First, the bill determined that local self-government in the occupied areas of Donetsk and Lugansk regions might have special features, which was a requirement of the Minsk II agreement aimed at settling the conflict in the Donbas. A number of MPs and political activists vigorously opposed that provision, fearing that it might undermine Ukraine’s sovereignty. Second, the bill expanded the powers of the president, who would have the right to terminate the powers of locally elected officials and bodies if their decisions posed a threat to the national security or territorial integrity of Ukraine. Certain MPs deemed that this posed a risk of usurpation by the president. As a result, the bill remains idle in the Parliament.

However, the decentralisation reform has progressed in the areas where the constitutional changes were not required. The fiscal decentralisation was conducted. Administrative consolidation began with the voluntary formation of amalgamated communities.⁷ As of December 2017, about 700⁸ were created, uniting about one-third of 11,000 of the lowest-level administrative units (villages, towns, and cities), while higher-level units, rayons and oblasts, would be still preserved.

With respect to the reform of electoral legislation, the authorities have so far fallen short of implementing the plans called for in the 2014 coalition agreement, although some progress has been made. In July 2015, the Parliament introduced a proportional system for local elections but it was not an open-list system and did not resolve campaign financing issues. In 2015, the Parliament also took a step to govern party financing by passing laws that allow for public (budget) financing of parties that win elections. In November 2017, the Verkhovna Rada voted a new Electoral Code in the first reading.⁹ The bill envisages an open-list proportional electoral system as a replacement of the current mixed proportional-majoritarian electoral system.

Progress on another topical issue – the removal of parliamentary immunity – has been slow as well. In October 2017, the President submitted to the Parliament a new draft law, which has been referred to the Constitutional Court for its conclusion.¹⁰

Human rights. The Constitution of Ukraine proclaims that the main duty of the state is to affirm and ensure human rights and fundamental freedoms. The list of respected civil and political rights mentioned in the Constitution is consistent with international human rights norms. In practice, the majority of those rights and freedoms are generally protected. Notable exceptions concern the right to an effective remedy before a national authority, the right to a fair trial and the prohibition of torture.

The Constitutional Commission has drafted a bill that revised the chapter of the Constitution on human rights. It is intended to align the contents of the chapter with the Charter of Fundamental Rights of the European Union, and to extend the protection of human rights. Specifically, it reduces the term for judicial approval for taking a person into custody from 72 hours to 48 hours and explicitly prohibits the death penalty. However, the bill was not submitted to the Parliament. As a member of the Council of Europe alongside all EU member states, Ukraine adheres to the European Convention on Human Rights (ECHR) and Fundamental Freedoms and is bound by the rulings of the European Court of Human Rights (ECtHR). Statistics from the European Court of Human Rights indicate an improvement in human rights protection in Ukraine. In particular, the number of applications allocated to a judicial formation declined from 14,181 in 2014 to 4,387 in 2017.¹¹ Altogether, the Strasbourg-based Court rendered 1,213 judgments in cases against Ukraine,¹² including 87 judgements in 2017.¹³ Historically most violations were over the right to a fair trial (45%), followed by the length of proceedings (30%) and the protection of property (29%). In 2017, the most common infractions exposed by the Court were the right to an effective remedy (49%) and the length of proceedings (45%), while the right to a fair trial violation was exposed only in 24% of cases.

Open issues regarding Ukraine’s record are set out in detail...