UKRAINIAN STATE AND LAW AT THE TURN OF THE 21st CENTURY

V. TATSIY Doctor of Legal Sciences, Professor, Member of the National Academy of Sciences of Ukraine, Rector of the National University of the Yaroslav Mudriy Law Academy of Ukraine, President of the Academy of Legal Sciences of Ukraine яяяяяявшяшяжшж kraine gained its independence legal one, since it is related to the state's and formed as a state amid exac- accession to a number of necessary inter- Uerbation of the global problems national treaties and agreements, the of the modern age. In the early 1970s, the provisions of which would need to be world entered the phase of a systematic implemented within the state. crisis on the very grounds of the exacer- The legal uncertainty of its territory bation of global problems: food crisis, the remains an extraordinary problem for problem of global ocean use and the use Ukraine. Ukraine is one of the few coun- of substantial territorial areas, unprece- ties with partially non delimitated fron- dented flows of migration, environmen- tiers. The legal uncertainty of the border tal and energy problems, etc. The year also means the legal uncertainty of sub- 2009 was remarkable in terms of the stantial territorial areas, such as the largest economic crisis since the end of Azov Sea and the Kerch Strait. The legal World War II, which led to a number of uncertainty and transparency of thou- negative phenomena in public and social sands of kilometres along the Russian- life — a significant drop in industrial pro- Ukrainian border in the North East and duction, an increase in inflation, unem- East contributes to Ukraine's transfor- ployment and crime rates, etc. Without mation into a transit state for illegal resolving state-legal problems, it is migration flows to Central and Western doubtful whether it is possible to expect Europe, according to the assessments of the successful resolution of other social- influential international organizations. economic tasks. Therefore, this is not an abstract chal- Ukraine is faced with the priority lenge for Ukraine and the State must task to find and occupy its place in the respond adequately. modern world. It should be noted that Of the acutest problems that have the issue of foreign policy priorities is arisen for the State of Ukraine is the not merely a political issue, but also a problem of its place in the geopolitical © V. Tatsiy, 2011

234 • LAW OF UKRAINE • 2011 • Ns 3~4 • UKRAINIAN STATE AND LAW AT THE TURN OF THE 21" CENTURY distribution of roles in Eurasia. Ukraine lators who, during the adoption of a new is practically the only state in Europe Constitution in 1999, suggested enhanc- that is geographically located close to a ing the parliament's role by strengthen- number of politically unstable regimes — ing its control and foreign policy func- in Transdnistria and Abkhazia. Ukraine's tions. active participation in separatist conflict The constitutional process initiated resolution processes should not only be in Ukraine has led to the inclusion of a construed as the interest of world number of other urgent issues of state democracies in liquidating the roots of formation on the agenda. The experience instability, but also as its own state inter- of western constitutionalism and nation- ests. A state's ability to lead in the exe- al state formation practice demonstrate cution of such functions demonstrates the need to take into consideration two such state's capacity to guarantee con- such important fundamentals as profes- tinued stability, at least on its own bor- sionalism and legitimacy, as well as to ders. consolidate the above in the mechanism The world long discussed such an of developing and adopting amendments acute problem as the crisis of the parlia- to the Constitution of Ukraine currently mentary system, which has become char- in force or to a new constitution of acteristic for the European system of Ukraine. The first fundamental should government at just the time when politi- be ensured through the development and cians and scholars perceived the insuffi- preliminary approval of a new constitu- cient capacity of the collegiate represen- tion by experts and/or members of par- tative institution to efficiently resolve liament (members of the constituent outstanding issues related to state assembly). A leading role in this process administration. Hence, another phenom- should be assigned to legal science and enon typical for the modern European key academic institutions of Ukraine. constitutionalism — delegated law-mak- With regard to the second fundamental, ing. any amendments to the current or new One of the well-recognized methods Constitution of Ukraine must be of resolving the problem under contem- approved by a national public referen- porary conditions is so-called «rational- dum. ized parliamentarism», when a govern- One of the significant issues at the ment not only adopts desisions instead of current stage is the range of problems parliament, but also determines the pertaining to the order of state institu- agenda for the latter (entrenched for the tions, first and foremost of the national first time in the Constitution of France representative institution — the in 1958). However, does such model Verkhovna Rada of Ukraine. One should resolve all the problems affecting the distinguish between both the positive effectiveness of the parliament? Probab- potential and certain threats to a young ly not. French scholars have repeatedly democracy in the parliamentary system. complained that in the pursuit to Therefore, the crisis of the national par- improve the state's administrative effi- liamentary system lies caused not in the ciency, parliament's leading role in the fallibility of the idea of the parliamentary state mechanism as a national represen- system, but in the inadequacy of tative institution and its authority in approaches to the structure of the parlia- society have gradually diminished. A ment itself and the means for its forma- solution was proposed by Finnish legis- tion, as well as in the weakness and lack

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of development in the party system. In the status of local self-governance. The our opinion, a strategic direction for constitutional basis of local self-gover- improving the national parliamentary nance has started to lag behind the actu- system could be a movement towards a al state of this subsystem of public gov- bicameralism, which, on one hand, would ernment, impeding its further develop- ensure the proper representation of ment and arousing the completely justi- Ukraine's regional interests in the fied discontent of local communities. Verkhovna Rada of Ukraine, and, on the Thus, the reform of the existing system other, the specialization of chambers in of local self-governance in Ukraine parliamentary activities and increased appears to be an entirely natural and law-making professionalism. objectively determined component of Establishing the foundation for an constitutional reform. effective mechanism of constitutional The reforms being introduced, envis- and legal responsibility is a significant age the further strengthening of local issue that should be addressed in the self-government and enhancement of its process of constitutional reform. Ano- independence in the solution of a much ther is the issue of the proper interaction broader range of issues and the fullest of various branches of power, which possible use of its democratic potential, should ensure the principle of cohesion to ensure the rights, freedoms and legiti- in the exercise of government authority. mate interests of local community mem- In this context, attention should be paid bers. No less important direction of to the issue of assigning a number of con- municipal reform should also be the trol functions to a specific branch of restoration of the regional (interim) power. First and foremost, these are the level of local self-government, the forma- Prosecutor's Office, the Authorized tion of executive bodies of oblast and Human Rights Representative of the regional councils, and assignment of rel- Verkhovna Rada of Ukraine and the evant powers and necessary material- Chamber of Accounting. We believe that financial resources to them, as required the first step should be the consolidation by the European Charter of Local Self- of issues pertaining to the operation of Government. these institutions in one chapter of the Another problem that has emerged in Constitution. the 21st century is that of the preserva- Local self-governance is a relatively tion of the national identity and sover- new object of constitutional regulation. eignty of the people. First and foremost, Constitutions adopted after World War European integration processes pose a II (so-called third generation constitu- threat to people's sovereignty. Currently, tions) must contain chapters devoted to it appears that on one side of the scale is the fundamentals of local self-govern- people's sovereignty, while on the other - ment. The Constitution of Ukraine of an association of states under the banner 1996 is not an exception. However, at of one federal (or confederate) state. A the time of its adoption, essential issues reliable safety device against the dissolu- related to the organization and activities tion of people's sovereignty in global of municipal authorities in Ukraine integration processes should be the remained unresolved. Since the adoption determination on the constitutional of the Constitution of Ukraine that is level and in international treaties and currently in force, a number of events agreements, of an explicit list of issues have occurred, significantly changing with regard to which powers are granted

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to national bodies, along with a justifica- new economic system and an exhaustive tion for the need to specifically grant set of measures for the legal regulation of such scope of competence, ensuring the innovation relations in Ukraine. broad participation of national represen- The main thing, without which one tative bodies in the development and cannot expect fundamental social and adoption of decisions on the relevant economic changes, is the realization that integration level, and the introduction of a key figure in this process is an intellec- the exclusivity of the application the ref- tual, productive of new ideas, around erendum institute when resolving para- which an infrastructure is formed. The mount issues pertaining to the activities impetus for the involvement of intellec- of similar supranational subjects of inter- tual resources should be competition, the national interaction. The Treaty of environment of which will dictate the Lisbon, which took effect on 1 December need for diverse innovative changes in 2009, has raised new legal issues pertain- goods, works and services. An intellectu- ing to integration processes in Europe. al should not be raised and educated on a The need arises to reconsider the con- parochial level, but exposed to the ceptual basis of Ukraine's innovation achievements of European and world sci- policy, with due legal provision for such ences. There should be a demand for policy. The movement towards the euro- his/her knowledge both at home and pean community and the wish for drastic abroad. For this reason, the system of changes cannot be successful in a legal education, scientific-technical activities environment, in which outdated schemes and intellectual property institutions from the Soviet era continue to exist must undergo radical change. alongside the modern progressive The current condition of the environ- approach to the introduction of new ment both globally and in Ukraine is legal models. National science has made cause for grave concern. A specific fea- very little research on the issue of the ture of the current environmental situa- development of an innovation policy and tion lies in the increasing number of cri- its legal regulation. Therefore, the sis spots both in Ukraine and abroad. Academy of Legal Sciences of Ukraine Consequently, this results in the emer- considers this theme to be a top priority gence of actual environmental tension, for scientific research. As early as in creating a direct threat to the existence 2006, we held a large all-Ukrainian con- of humanity as such. When natural ference titled: «The Innovative De- processes can no longer support the velopment of Ukraine: Scientific, dynamic operation of the «society- Economic and Legal Provision», which nature» system, only society itself will be resulted in the development of many able to execute relevant regulatory func- practical recommendations regarding tion. This should be a decisive factor in the reformation of the national economy, the conservation of the Earth's biosphere the implementation of which, unfortu- and the Planet Earth as a whole. The nately, was barely implemented. More state, being the personification of public specifically, the participants supported interests and performing the environ- the idea of establishing an Institute on mental function, should conduct the the State and Legal problems of legal regulation of the use and regenera- Innovative Development, the main task tion of nature and environmental protec- of which would be to develop a concept tion, as well as ensure environmental and program for the development of a safety.

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The Concept of the Ukraine's tion related to criminal matters. A top National Environmental Policy for the priority is the forging of relations with Period Ended 2020 considers ensuring European law enforcement structures — the adoption of the Environmental Code Europol and Eurojust and to enter into of Ukraine and compliance with its relevant co-operation agreements with major requirements to be a key instru- them. It is also important to approximate ment of the national environmental poli- criminal and criminal procedure legisla- cy. The finalization of the codification of tion to European standards. Taking into Ukraine's environmental legislation will account the absence of legal regulation of permit to the establishment of necessary Ukraine's relations with European conditions for its sustainable develop- supranational law enforcement struc- ment and participation in international tures, it would be expedient to develop a co-operation in the sphere of environ- draft Law of Ukraine «On Organiza- mental protection. It is also necessary to tional and Legal Principles for Ukraine's improve national environmental admin- Participation in European Law En- istration and environmental safety, not forcement Structures». It is possible to to mention bringing it in line with develop and adopt an International European standards. Criminal Code, which would formulate The globalization era also influences indications of acts and liability for the national criminal doctrines as well. The intent to commit the most dangerous, international community is challenged global international crimes. by trans-national crime and terrorist The criminal law aspect of the devel- groups. Human trafficking, drug-related opment of legal doctrine gives rise to cer- crimes, smuggling and other types of tain discussions. First and foremost, the crime have crossed national borders and state and society are interested in ensur- present a danger not only to individual ing the stability of criminal legislation, states, but to all of mankind. which conveys a firm and predictable EU states are making assertive meas- criminal-legal policy of the state. Its sta- ures to counteract such negative phe- bility is based upon the quality of crimi- nomena. Ukraine's intents regarding nal law, which is ensured by the Criminal European integration require the stan- Code, which, according to it substance dardization of the forms and methods for and legal form, corresponds with the cur- counteracting organized crime in accor- rent needs and requirements of society dance with the approaches of the regarding the fight against crime using European Union and the Council of criminal-law means. Europe, adopting general procedures to At the same time, some instability can counteract organized crime and other be seen in criminal legislation regarding dangerous crimes. Counteracting organ- the solution of the problem of the pro- ized crime is one of the lines of Ukraine's tection of citizens' property rights. In co-operation with the countries of the 2004, as the Law of Ukraine on European Union, pursuant to the new Individual Income Tax dated 22 May EU-Ukraine Action Plan adopted on 2 2003 took effect, there was movement February 2005. towards the artificial decriminalization One should also mention that of publicly dangerous intent regarding presently, it is necessary to develop a property rights. As follows from the pro- legal framework for Ukraine's accession visions of this Law and the Code of to new forms of international co-opera- Ukraine on Administrative Offences,

238 • LAW OF UKRAINE • 2011 • № 3~4 • UKRAINIAN STATE AND LAW AT THE TURN OF THE 21" CENTURY theft is a crime if the value of the stolen ever, give grounds for complacency, due property exceeds three times the to the transformation of quantitative untaxed minimum wages (UAH 907.50). changes in crime figures into qualitative- For comparison: in 2003 the minimal ly new forms of criminal activity, such as amount of criminally stolen property «raids», illegal migration, human traf- constituted anything valued at more ficking, smuggling, and corruption. The than UAH 51; in 2006 - UAH 525, in increase in «background» phenomena 2007 - UAH 600; in 2008 - UAH has resulted in an increase in the illegal 772.50. In other words, within a period drug trade. of six years, the threshold for such crimi- The current legislative regulation of nal intent increased 20 times, which led the fight against corruption does not to the decriminalization of causing prop- permit Ukraine to rid itself of its nega- erty damage with the value of such dam- tive image as one of the most corrupt age below the established threshold. states in the world. By providing for Members of the Academy of Legal administrative responsibility for corrup- Sciences of Ukraine did not agree with tion in the Law of Ukraine «On the such a situation and provided justified Fight against Corruption», without tak- proposals to reduce such amount from ing into consideration that international three times the minimum untaxed wage, law recognizes such corrupt actions as to one (in 2009 this amounted to UAH criminally punishable, the legislator thus 302.50 instead of UAH 907.50). reduced the danger of corruption as a However, Members of Parliament did not social-public phenomenon. New anti- agree with such approach and on 4 June corruption legislation, which takes effect 2009 took a legislative step to maximally on 1 January 2010, raises a lot of com- criminalize the theft of property by ments on the part of both academicians reducing the threshold for such criminal- and practitioners. This undoubtedly nec- ization from 3 to 0.2 times the untaxed essary step towards strengthening minimum wage of citizens, i.e. by 15 responsibility for corruption requires times. After the law took effect on 26 significant improvement. June 2009, stealing property the value of Having ratified the International which amounts to UAH 60.51 is suffi- Convention on the Elimination of All cient for the theft to be qualified as a Forms of Racial Discrimination, Ukraine crime with relevant consequences, specif- undertook to declare the offence «all dis- ically being brought to the most severe semination of ideas based on racial supe- responsibility of a repressive nature and riority or hatred, incitement to racial such negative human «acquisition» as a discrimination, as well as all acts of vio- conviction, which leaves a life-long mark lence or incitement to such acts against on the guilty party. We believe that such any race or group of persons of another decision does not improve the protection colour or ethnic origin,» to be punishable of human property rights, but rather cre- by law, also to declare illegal and prohib- ates conditions for abuse on the part of it any organizations promoting and law enforcement and judicial authorities inciting racial discrimination. Therefore, as well as for bribery, during the qualifi- the legislative detailed regulation of cation of such actions. responsibility for race-related offences Even though modern trends of crime and improvement of legislation in order in Ukraine demonstrate a decrease in the to prevent such manifestations must be level of such activities, they do not, how- conducted. Furthermore, the adminis-

• LAW OF UKRAINE • 2011 • № 3~4 •. .239 V. Tatsiy trative and disciplinary responsibility of entities, permits an improvement of law officials for acts of racism and racial dis- enforcement activities, as the main direc- crimination that have been caused by tion of work of enforcement bodies and their actions or inaction should also be entities, to take notice of the substantia- provided for. tion for the implementation of legal Drug addiction is directly related to restrictions intrinsic to punishments, crime. At present, about 175,000 drug which will eventually contribute to a addicts have been registered in Ukraine, more comprehensive understanding of 90 % of them being under the age of 30. enforcement processes. For instance, 63,838 crimes related to An in-depth research into the prob- the trade in drugs, psychotropic sub- lems of the criminal enforcement service stances, their analogues or precursors will not only allow the characterization were registered in Ukraine in 2007 alone, of various directions of its activities, but with 21,712 belonging to the category of also the identification of the means that hard and particularly hard drugs. may assist in the execution of the tasks Therefore, the urgent task of criminal assigned to such service. This requires law science is to develop effective means improving the valid legislative frame- and mechanisms to combat and prevent work, also continuing the extension of drug addiction, as a factor of a range of the reformation of organizational and criminal acts. legal groundwork for the activities of the The scope of research in criminal pro- criminal enforcement service. At the cedure law includes the following: same time, the key objective of such research into the expansion of court reform should be high-quality changes, jurisdiction in pre-trial proceedings in a the increased effectiveness of the activi- criminal matter to enforce the constitu- ties of enforcement bodies and entities. tional right of every man/woman to A world-renown should be more con- court protection; differentiation of the cerned about preventive, rather than criminal procedure form; introduction of punitive activities remains relevant, also simplified procedures, capable of effec- in Ukraine. Counteracting crime is the tively ensuring the execution of the tasks urgent task of structural divisions of all of criminal proceedings within reason- branches of power and society. able time; and improvement of the sys- Preventing crime should be viewed as an tem for the review of court decisions and indispensable element of social and legal correction of court errors. It is also polices. The above should be facilitated important to introduce law enforcement by criminology, which is not only a total- mechanisms that would assist the parties ity of strategies and measures, but also, involved in criminal proceedings to figuratively speaking, an ideology gener- effectively protect their legitimate inter- ator that increases the preventive «pres- ests. sure» in society, forms social tolerance Scientific research in criminal and respect for social values, accumu- enforcement law must be fundamental lates «social capital» without which it is and directed towards the identification impossible to build a democratic, law- of the effectiveness of criminal enforce- based state with a market economy. ment norms. A comparison of theoretical Preventing crime consists of broad provisions tested by existing practice of and complex directions of activities, enforcement of punishments align with which require systematic strategies and the activities of enforcement bodies and differentiated concepts which take into

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consideration the social and economic, substance abuse, vagrancy, parasitic political and cultural conditions in the mode of life, victimization and victim society in which they are implemented behaviour, alcohol addiction, prostitu- and society's development stage, with tion, legal nihilism, a criminal subcul- particular focus on the changes that are ture, sectarianism, begging, etc.). presently occurring in society and may The introduction of technical means occur in the future. to counteract crime is becoming widely- Often, society generates criminal used in world practice. New scientific behaviour or increases criminogenic and technical achievements should be potential by different means: lack of used in. the interest of the people and security, the poverty of some and the thus, in the interest of effective crime absence of control and greed in others, prevention. At the same time, it should lack of real concern about «problem» be remembered that new technology families and deprived children, etc. may facilitate the emergence of new Clearly, these shortcomings and imper- types of crime. Such consequences must fections can be corrected with the help of be foreseen and eliminated in advance, in the proper organization of public life and order to avoid fighting against them in the use of modern scientific knowledge, the future. Qualitative changes in crime, including in the sphere of the fight its transformation into a professional, against crime. organized and more sophisticated one Government programs must be devel- challenges criminal science with tasks oped on the basis of a global, integrated aimed at developing the latest methods and co-ordinated approach, recognizing and means of counteracting crime. short-term or immediate, medium-term In this regard, the following should be and long-term (permanent) tasks. When recognized as relevant: more active and developing specific strategies, one creative use of such technical and natu- should be guided by the criminogenic ral sciences by criminology according to situation, the crime status, the crimino- its tasks; the introduction of such inno- genic potential of members of society vative developments in investigations as (part thereof), the development level of digital photo and video equipment, mul- the theory of crime prevention, the level timedia means, remote surveillance, and of resources and mechanism for their dis- internet technology. tribution and utilization, etc. In our There is an urgent need to develop opinion, criminological policy can have new, and modernize existing scientific the following conceptual strategies: recommendations related to the identifi- reducing opportunities to commit cation and investigation of individual crimes; resolving complex adaptation types of crime (first and foremost — new tasks; educational and informational types of crimes). Analyzing the factors activities among the population; inter- obstructing the active introduction of vening in crisis situations; engaging the criminology developments in judicial community in preventive activities; and investigative practice, one should counteracting the so-called «back- note not only an insufficient level of sci- ground» phenomena entailing the social entific developments, but also conserva- degradation and de-socialization of not tive stereotypes that have formed in this only individuals, but also the morals and practical activity, as well as a certain culture of society as a whole (neglect of reluctance by practitioners to be «guided children and teenagers, drug addiction, by science». The indicated stereotypes

• LAW OF UKRAINE • 2011 • № 3~4 •. . 241 16-11-725 V. Tatsiy should be eliminated and the most signif- crime prevention. At the current stage of icant step in this direction should be the fight against crime, it is necessary to made by researchers. It is they, who will renew the activities of previously exist- have to review the recommendations ing Co-ordination Committee for the proposed by science, since it is doubtful Fight against Crime, which would be that some of the latter will serve as a professionally responsible for the plan- practical instrument. ning, control and co-ordination of the The co-ordination and planning of activities of all government authorities such activities is an important step in this sphere. towards increasing the effectiveness of

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