Department of European and International Law

MASTER THESIS

“Copenhagen Political Criteria and Ukraine’s Accession to European Union: Problems and Perspectives”

Submitted by: LLM International Public and European Union Law Student Iryna Vityuk ANR 718614

Supervised by: Junior Researcher S.J. Rombouts, Dr. Anna Meijknecht

Tilburg 2011 Content INTRODUCTION______p. 1 CHAPTER I. Copenhagen Political Criteria as the Main Guide to the Accession of the European Union 1. Insight into the Copenhagen political criteria______p. 2-3 2. Legal background of Copenhagen political requirements______p. 3 3. Structure of the Copenhagen Political Criteria: ______p. 3- 4 3.1. Concept of “Rule of law”______p. 4-6 3.2. Concept of “Democracy”______p. 6 3.3. Concepts of “Rule of Law” and “Democracy” in Copenhagen-related documents_ p.6-8 4. Issue of “human rights” in the meaning of Copenhagen political criteria______p.8-10 5. Respect and protection of minorities in the meaning of Copenhagen political criteria_ p.9-12 Conclusion to Chapter I______p. 13

CHAPTER II. Rule of Law and Democracy in Ukraine 1. Way of Ukraine to European Integration______p. 14-15 2. Concepts of “rule of law” and “democracy” in Ukrainian legal system: 2.1. Functioning of legislature in Ukraine as a part of rule of law/ democracy criteria_p. 16-17 2.2. Free and fair elections in Ukraine______p.17-18 2.3. Functioning of executive bodies in Ukraine and fight with corruption as the constituents of rule of law/ democracy criteria______p.18-20 2.4. Judiciary as the part of “rule of law” concept______p.20-22 Conclusion to Chapter II______p. 23

CHAPTER III. Protection of Human Rights and National Minorities in Ukraine 1. Legal framework of human rights protection in Ukraine______p. 24-25 2. Level of protection civil and political rights in the context of Copenhagen political criteria: 2.1. Torture, inhuman and degradation treatment of detainees by police______p. 25-27 2.2. Pre-trial detention and situations in prisons in Ukraine______p. 27 2.3. Freedom of expression in Ukraine______p. 28-29 2.4. Current stage of combating the trafficking of human beings______p. 29-30 2.5. Right to defense in Ukrainian legal system: 2.5.1. Access to a lawyer______p. 30 2.5.2. Functioning of Ombudsman______p.30-31 2.6. Ukraine’s legal attitude towards refugees______p. 31-32 3. Economic, social and cultural rights guaranteed by Ukraine: 3.1. Social-security rights:______p. 32-34 3.1.1. Right to medical care in respect to socially vulnerable people (HIV-positive people)______p. 34 3.2. Enforcement of the other social, economic and cultural rights prescribed in Copenhagen political requirements______p. 35 4. Protection of national minorities as the key component of Copenhagen political criteria 4.1. Meaning of “national minorities” in Ukraine______p.36 4.2. Overview of Ukrainian legal framework on national minorities______p. 36-37 4.3. Protection of national minorities in EU context: steps to and back ______p. 37-39 Conclusion to Chapter III______p.40

CHAPTER IV. Ukraine’s Perspectives to Comply with the Copenhagen Political Criteria 1. Positive steps of Ukraine towards European membership______p. 41-42 2. Adverse steps of Ukraine towards European Union membership______p.42-44 3. Summing up the trends______p. 44-45

CONCLUSION______p.46-47 LIST OF SOURCES______p. 48-57 - 0 - INTRODUCTION

The European Union’s (EU) economic and political incentives make its membership attractive for other countries. However, the process of EU accession is based upon certain requirements (particularly, geographical, political and economic) which are necessary to be satisfied by the country that declares its willingness to become EU member. These requirements, which are generally called “Copenhagen criteria” after the name of Copenhagen summit held by European Council in June 1993, were mainly introduced to anticipate a flood of applications for membership from post-communist countries which legal systems were far from being consistent with founding mission of European Union as a league of democratic states.1 Ineffective mechanism of human rights’ protection, outdated legislation, the lack of legal experience, bureaucracy can be identified as the common problems for all Post-Soviet countries. Thus, the Copenhagen political criteria stipulate that any candidate country must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities in order to access the European Union.2 Ukraine has been among those post-communist countries aiming at joining European Union since the day of independence in 1991 having proclaimed European integration as the key direction of its state policy.3 Notwithstanding that twenty years have passed, Ukraine has not enforced its incentives to become fully legitimate EU member yet. It remains unclear what obstacles are faced by Ukraine in fulfillment the Copenhagen political criteria on the way to EU as well as Ukraine’s chances to adjust its legal system to the European standards on the current level of development. Thus, this research will be devoted to the assessment of present legal situation in Ukraine regarding the fulfillment of Copenhagen political requirements. In Chapter I, the meaning of Copenhagen political criteria will be explored. The EU understanding of concepts “democracy”, “rule of law”, “human rights”, “national minorities” shall be put into the basis of further analysis to discover the Ukraine’s weaknesses as well as to delineate the future perspectives to comply with them. Chapter II will focus on the Copenhagen requirements concerning democracy and rule of law carried out by Ukraine. The functioning of state bodies (legislature, judiciary, executive apparatus), free and fair elections, corruption are among the main issues necessary to examine in order to make conclusions on Ukraine’s prospects to join the EU. Chapter III will deal with the current level of human rights and national minorities’ protection in Ukraine. Herein, the constitutional guarantees, Ukraine’s commitments to international and European standards in the field of human rights/national minorities will be contra posed to their practical enforcement and legislative flaws. This assessment will allow to identify the measures to be taken by Ukraine to comply with Copenhagen political criteria. Perspectives of Ukraine to satisfy the EU political demands will be the topic of Chapter IV. The positive and negative trends in guaranteeing democracy, rule of law, protection of human rights, respect for and protection of national minorities will be considered as well the likelihood for Ukraine to comply with the Copenhagen political criteria will be ascertained based on the research data.

1 Croatian Opinion and the EU’s Copenhagen criteria. Richard Rose.-University of Aberdeen.-December 2005. 2 Conclusion of Presidency in European Council in Copenhagen, 21-23 June, 1993. 3 Resolution of Supreme Council “On Core Concepts of Ukrainian Foreign Policy”, 02.08.1993. - 1 - Chapter I. Copenhagen Political Criteria as the Main Guide to the Accession of the European Union

1. Insight into the Copenhagen political criteria

The European Union can be defined as supranational, multicultural institution playing one of the most considerable roles in the international policy-making processes while representing twenty seven countries – its Member States with the common values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.4 Apparently, the EU candidate country has to share its common values along with the guarantying of their practical implementation. Apart from Lisbon Treaty, this vision was ascertained in the Copenhagen criteria which stipulate that any candidate country must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union, ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union in order to access it.5 The harmonization of enlargement practices existing before 1993 is set forward by the majority of criteria The European institutions - the European Council, the Commission, the Council of Ministers – have succeeded in building the complete enlargement regulation concerning the three Copenhagen requirements which were a priori on equal footing. Later on in 1997, the Presidency Conclusions of the Luxembourg European Council stated that ‘compliance with the Copenhagen political criteria is a prerequisite for opening of any accession negotiations’6, hence the political criteria concerning the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities has been given clearly priority over the economic and geographical ones being further developed in the Council and Commission secondary legislation. Moreover, the Lisbon Treaty provisions on enlargement, particularly Art.49 TEU as well as Article 4 of the Regulation 622/987 underpin the adequate Copenhagen political requirements thus introducing the criteria, previously mostly political in nature, into the field of legal regulation of enlargement processes. Accordingly, the political criteria incorporate four legal concepts – “democracy”, “rule of law”, “human rights” and “national minorities”- which can be rightly regarded as milestones of European integration. However, because of the vagueness of concepts and no further explanation of their meaning provided by the Council or Commission, it is far from being clear what kind of democracy, what kind of rule of law, which human rights and minorities protection the Union requires the candidate countries to adhere to. The meaning of the political criteria only started to become clear in 1997, upon the release of the Commission’s Opinions on the Application for Membership (allowed for by Art. 49 TEU) made by Central and East European countries and the Agenda 2000.8 In order to investigate the current stage of Ukraine’s compliance with the Copenhagen political criteria, it is of vital importance to explore the essence of the concepts meant by Commission and the Council in the light of enlargement process. One could argue that there is no need to focus on these concepts inasmuch as Ukraine is neither candidate country nor even observer since the Copenhagen political criteria are relevant only for the eligible countries that have already given the status of “candidate” as it can be derived from their wording. Nevertheless, the Commission, along with the European Council have reinvented the old and well arranged practice having introduced a deflexure from the original Copenhagen idea stating “to stress the absolute

4 Art.2 Lisbon Treaty. 5 Conclusion of Presidency in European Council in Copenhagen, 21-23 June, 1993. 6 Conclusions of European Council Meeting in Luxembourg 12-13 December. Document SN 400/97. 7 Council Regulation 622/98 OJ L 85/1, 1998. 8 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law”. European Integration online Papers (EIoP) Vol. 8 (2004) N° 10. - 2 - priority of the Copenhagen political criteria before beginning and continuing the accession negotiations with any candidate country”9. Thus, it becomes clear that Ukraine has to satisfy the conditionality requirements prior to be granted the status of “observer” or “candidate” as the EU is not ready to start the negotiations with a country if there are any doubts concerning the democratic conditions, the respect for human rights and the protection of minorities’10. This development made the criteria an important legal instrument of EU enlargement law.11

2. Legal background of Copenhagen political requirements

The 1993 Copenhagen European Council, when having set up the criteria, did not provide with the clarification how to assess the country’s progress of compliance or the principles to assess the conformity with them, stating only that “the European Council will continue to follow closely the progress in each associated country towards fulfilling the conditions of accession to the Union and draw the appropriate conclusions”.12 The Luxembourg European Council (12 – 13 December 1997) has introduced the “enhanced pre-accession strategy” that suggested to implement conditionality in the strict sense stating that all the candidate countries are ‘destined to join the European Union on the basis of the same criteria and […] on an equal footing’13. For these purposes, accession partnerships were introduced by the Commission and, further, adopted by the Council based on Council Regulation 622/98, 14 being formally designed to control the most important steps to be made by the candidate countries in order to achieve compliance with the Copenhagen requirements. Remarkably, a vast number of documents were drafted in relation with the implementation of the Copenhagen criteria, however no literature outlining the scope and structure of the Copenhagen political criteria in full exists to date. Only a complex analysis of all the documents can help with the discovery of the actual set of concrete developments necessary in order to meet the criteria. Russian scholar Kochenov suggests to classify the documents based on Copenhagen criteria into two main groups: general documents, dealing with a number of candidate countries and documents assessing the progress made and compliance with the criteria by single candidate countries. 15 Though Ukraine is not a candidate country to access the EU, it seems important to provide with the detailed analysis on progress documents of the past and present candidate countries in order to assess the meaning of Copenhagen political criteria. Hence, taking into the basis the Kochenov classification, it has to be admitted that the first group includes yearly Composite and Strategy papers, Comprehensive Monitoring Report, Agendas. The second group is composed of a much wider range of documents: Opinions, Comprehensive Country Monitoring Reports, Regular Reports by the Commission, and the Accession Partnerships. For the purpose of the research, the two groups of documents shall be called as “Copenhagen-related documents”.

3. Structure of the Copenhagen Political Criteria

Firstly, there is no absolute coincidence in the elements included into the Copenhagen political criteria and the ones addressed in the Copenhagen-related documents The Commission has united the assessment of democracy and the rule of law (included separately among the

9 2004 Composite Paper. 10 Verheugen, G. (2000), ‘The Enlargement of the European Union’, in 5 Eur. F. Aff. Rev. 11 D. Kochenov, “Why the promotion of Acquis is not the same as the promotion of democracy and what can be done in order to also promote democracy instead of just promoting the Acquis”. European Law, 2006. 12 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004. 13 Luxembourg European Council 1997, para 10. 14 Art. 4 of Regulation 622/98 [1998] OJ L 85/1. 15 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004. - 3 - Copenhagen political criteria) into one block of assessment16 i.e. sub-chapters B.1. ‘Political criteria’ of the Commission Opinions and Progress Reports follow a binary structure: B.1.1. ‘Democracy and the Rule of Law’ and B.1.2. ‘Human Rights and Protection of Minorities.’ The Accession Partnerships represent the same division. The main structure of the Copenhagen political criteria stemming from the texts of the Copenhagen-related documents is thus three-fold, including democracy and the rule of law; human rights protection and respect for and protection of minorities.17 The text of the sub-chapters of the Composite/ Strategy Papers is more consolidated. Kochenov argues that it is possible, however to make a distinction between the elements of the set of criteria, especially bearing in mind that these Papers represent a concise summary of the most important findings and conclusions made by the Commission in the individual country Progress Reports.18 Needless to say, if to compare the sub-chapters regarding political and economic conditions, the apparent pattern is the brevity of political clauses - approximately 2 pages, while the economic requirements occupy the a score of pages. Hence, the very deliberate analysis has to be done in order to explore the essence of Copenhagen political criteria as the set of issues included by the Commission among the components of the criteria is quite specific and does not usually coincide with the theoretical approaches to democracy, human rights and the rule of law.19

3.1. Concept of “Rule of law”

The concept of “rule of law” traces back to ancient times, particularly to Aristotle era when the famous Greek philosopher stated that “law should govern”.20 Nowadays, there are many scientific researches maintained upon this notion, however for the purposes of this paper, the main focus will be on the Union understanding of rule of law regarding the enlargement process. Lisbon Treaty mentions rule of law among its main principles, the Copenhagen political criteria stipulate the respect of rule of law as the pre-condition of entering the Union, the Accession Partnerships contain the clauses for each candidate country on measures to be taken to achieve the rule of law, however none of the documents gives the clear interpretation of the concept. Thus, the ascertainment of notion “rule of law” is essential in the context of Ukraine’s commitment to fulfil the Copenhagen requirements as it has to be aware of what is Union common understanding of rule of law in order to improve the current level of its respect and, accordingly to fulfil the definite criterion. Since the Lisbon Treaty doesn’t indicate what is meant by the “rule of law” in Union law context21, it is necessary to examine the quasi-legal instruments such as secondary legislation regarding the Copenhagen criteria as well to dwell on the scholarly input. Starting from the scientific analysis, it is essential to mention the British scholar Dicey who identified three fundamental characteristics of the rule of law which are now commonly used: (1) the supremacy of regular law as opposed to arbitrary power (2) equality before the law of all persons and classes, including governmental officials; and (3) the incorporation of constitutional principles.22 Another British scholar - Lord Mackenzie Stuart- described the rule of law as follows: ‘those who administer the Communities are themselves subject to limitations imposed by law and

16 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004. 17 Ibid. 18 Ibid. 19 Ibid. 20 Aristotle,Politics 3.16 21 Hoffmeister, F., ‘Changing Requirements for Membership’, in Ott, A. and Inglis, K. (eds.), Handbook on European Enlargement, The Hague: T. M. C. Asser Press, 2002a. 22A.V. Dicey, An Introduction to the Study of the Law of the Constitution 107–22 (Liberty Classics Reprint of 8th ed., 1915) ("Dicey, Study"); Lawrence B. Solum, The Law of Rules: A Critique and Reconstruction of Justice Scalia's View of the Rule of Law (Loyal Law School (Los Angeles) Public Law and Legal Theory, Research Paper No. 2002-5, March, 2002. - 4 - that those who are administered have rights in law which must be protected’ 23 According to Grote “ideal of rule of law is therefore dependent on the prevailing political and legal traditions for its implementation.”24 However, the reasonable question arises-can these definitions fit within the Copenhagen insight? Moreover, can the scientific understanding of rule of law be enough for the candidate country to adjust its legal system to its “true” meaning to guarantee its accession to the EU in case of compliance? Russian scholar Kochenov argues that the criteria addressed to the reforming candidate countries should definitely be understood in the light of the national concepts existing in the candidate countries and corresponding to the rule of law as being a document definitely belonging to the EU. Copenhagen criteria are aimed at outlining the necessary level of achievements in the field of the national reform required of the candidate countries in order to become members of the European Union. Thus, according to Kochenov, the Union definition, once formulated, will hardly be helpful in depicting of the rule of law requirement as part of the Copenhagen political criteria as the rule of law included into the Copenhagen criteria definitely belongs to the national legal systems of the candidate countries,25 which corresponds to the principle that the ‘Communities rest on the concept that Member States are free and democratic societies which share the belief that relations between citizen and the state should rest upon the rule of law’26.To ascertain whether institutions have a significant influence on any outcome variables, it is thus necessary to take their actual implementation and enforcement explicitly into account. Nevertheless, if each country has its own interpretation of rule of law, hence the monitoring of the level of its respect would be impossible for Commission as the elements of rule of law would differ from country to country and, as a result the concept of rule of law would have only declaratory character. To avoid this scenario, the Union has to define clearly what is meant by the rule of law leaving the national administration the discretion to implement and enforce it. The rule of law requires both the promulgation of prospective rules to apply to future cases and to maximize social coordination as well as the equal and general application of these rules.27 It is worth mentioning that the most forceful advocate towards the rule of law was F.A. Hayek28. Hayek identified several characteristics of the rule of law which are mainly accepted by the Union. First, the rule of law requires that government action be “bound by rules fixed and announced beforehand.”29Second, rules must be known and certain, so that individuals can conform their behaviour to those laws.30 Third, the rule of law requires equality in the sense that the law applies equally to all persons and does not prejudice some categories of people at the expense of others.31 According to Arnull, a modern vision of the concept in EU context usually includes the following characteristics: “Laws must be an effective guide to action; they must be publicised, reasonably clear and prospective, rather than retrospective in effect. There must in addition be an independent and impartial judiciary with responsibility for resolving disputes over precisely what the law requires and providing effective remedies where the law is breached. The judiciary must respect the rules of natural justice and be accessible to those who claim that their rights have been infringed. Judgements and the reasoning on which they are based must be made public so that they can guide future conduct and be the subject of critical scrutiny”. 32

23 Lord Mackenzie Stuart, “The European Communities and the Rule of Law“.29 Series, Hamilton Lectures, 1977. 24 Rainer Grote, Rule of Law, Rechtsstaat and État de Droit, in Constitualism, Universalism and democracy: a comparative analysis. 1999 25 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004 26 Lord Mackenzie Stuart, “The European Communities and the Rule of Law“.29 Series, Hamilton Lectures, 1977. 27 A. Mihr, “From reconciliation to the Rule of Law and Democracy”, Web Journal of Current Legal Issues, 2009 28 T.J.Zywicki, The rule of law, freedom and prosperity. Working paper № 27, 2002. 29 Friedrich A. Hayek, The Road to Serfdom 72. U Chicago, 1944. 30 Friedrich A. Hayek, The Constitution of Liberty 208.U Chicago, 1960. 31 Ibid at 209. 32 Arnull, A., ‘The Rule of Law in the European Union’, in Arnull, A. and Wincott, D. (eds.), Accountability and Legitimacy in the European Union, Oxford: Oxford University Press, 2002. - 5 - In fact, the scholarly opinions on deliberation of rule of law concept within the Union context are slightly broad, thus the Copenhagen-related documents have to be considered to figure out its main features.

3.2.Concept of “Democracy”

The concept of “democracy” as the concept of “rule of law” has Greek origin and initially means the “rule of people”.33 Democracy is a main basis for development of society, for effective activity of government and real citizens’ participation in it. Many publications have been produced to elaborate on the concept since its origination, therefore there is no common understanding among the scholars’ community. The same is true as for the Union insight in concept of democracy and as for the national approaches towards this issue. 34 According to majority publications, democratic systems are stable when political freedom rights are respected, elections and institutions are established and political actors adhere to them35. Dahl suggested a list of criteria for a democratic process36, which is instrumental in clarifying what democracy is about. Those criteria include effective citizens’ participation; voting equality at the decisive stage; enlightened understanding and control over the agenda. In the context of the Copenhagen criteria democracy is usually described in a much narrower way. Hoffmeister characterises the principle of Parliamentary Democracy as follows: “Parliamentary democracy means, in essence, that fair and free multiparty elections must be held on a regular basis for the creation of a free Parliament so that the people take part in the exercise of public power”37. However, as for the rule of law, in order to find out the specific meaning of democracy in regards to Copenhagen political criteria, the detailed assessment of Copenhagen- related documents must be done since the Union understanding of the concept is the only relevant for the proper fulfilment of the Copenhagen requirements by the candidate countries.

3.3. Concepts of “Rule of Law” and “Democracy” in Copenhagen-related documents

The structural analysis of Regular Reports, proposes that the Commission and the Council mostly focused on four main issues while addressing the criterion of democracy and the rule of law. These issues are: the functioning of the judiciary, the functioning of the legislature, the functioning of the executive and anti-corruption measures38. Besides that, the candidate countries have to prove the stability of institutions enabling the public authorities to function properly and democracy to be consolidated39 According to the Reports, the proper functioning of legislature is determined by national parliaments which should “carry out [their] duties in conditions which comply with the normal rules for the operation of democracy”40. The Commission expects that a Parliament satisfying the criterion of democracy and the rule of law should respect the scope of powers of other branches of power and be harmoniously integrated into the system of State organs41; be efficient42 and adopt

33 Demokratia, Henry George Liddell, Robert Scott, "A Greek-English Lexicon", at Perseus. 34 Cf.: Mancini 2000; Weiler 1997; 1995; Grimm 1995 and Höreth 1998. 35 Dahl, 1998; Linz/Stepan 1997, pp.14-33; Huntington 1991 36 Dahl, R.A., Democracy and Its Critics, New Heaven /London: Yale University Press, 1989. 37 Hoffmeister, F., ‘Changing Requirements for Membership’, in Ott, A. and Inglis, K. (eds.), Handbook on European Enlargement, The Hague: T. M. C. Asser Press, 2002a. 38 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004 39 1998 Paper; similar wording: 1999 paper; 2000 Paper. 40 Slovak Opinion,1997 41 1998 Slovak Report, at 9. 42 2000, Romanian Report, at 15; 2001 Slovenian Report, at 15. - 6 - legislation in a timely manner,43 without ever slowing down the tempo of adoption of legislation44 and providing at the same time a reasonable45amount of scrutiny of the legislative proposals. Notably, all the stages of the legislative process, including the proposal of legislative amendments should enjoy the highest degree of transparency, giving the public a possibility to follow the process in real time46. In analysing the well –functioned judiciary it can be concluded that in order to meet the criterion of democracy and the rule of law, the judiciary should be independent,47 well paid,48 well staffed49 and well trained, 50 respected, efficient, 51 and accessible to people. It should be self- governed de-facto with the elimination of all forms of interference from the other state bodies 52 in the work of their self-governing bodies53 and their appointment,54 together with the work of courts.55. Hence, the existence of the system of courts and adherence to the goals of independence and effectiveness of the judiciary and the rule of law make up the necessary threshold in order to meet the Copenhagen political criteria.56 Due functioning of executive apparatus in broadly outlined in the Commission’s Strategy Papers and Reports with the emphasis on the renewal of public administration and the set up of a legal basis for civil service.57 The reform of civil administration must be conducted in the candidate countries aiming at creation of “independent, efficient and professional civil service”.58 In addition, the legislative reform has to comprise the promotion of the civil servant’s status59 guaranteeing a strict division between the career civil servants and political appointees,60 which “foster political independence and reduce the scope of political interventions in the appointment of the officials”. 61 Notably, all the Regular Reports and Commission Papers62 single out anti-corruption measures as a distinct issue. According to the Commission, corruption is pervasive in the candidate countries in different spheres, including, in particular, customs service, medical services, municipalities, the police, taxation authorities and courts, thus the candidate countries have to take all the necessary measures to fight with it.63 Besides the proper functioning of judiciary, legislature, executive office and fight with corruption as the constituent parts of rule of law and democracy, every Composite /Strategy Paper refers to “free and fair elections” held in one or several candidate countries stating that “the elections were free and fair and in line with international standards and commitments on democratic elections”64. The Reports make obvious that in order to satisfy this part of the Copenhagen democracy and the rule of law criterion, regular elections without any severe irregularities must be conducted.65

43 Slovenian Opinion, at ‘Functioning of Parliament’, 1999 Czech Report, at 12; 2000 Slovenian Report, at 13. 44 2002, Polish Report; 45 2000, Slovenian Report, at 14; 2001 Slovenian Report, at 15; 2002 Romanian Report, at 21. 46 2005, Romanian Report. 47 1998 Bulgarian report, at 8; 1999 Bulgarian Report, at 12. 48 1998 Czech Report, at 8; 1998 Latvian Report, at 9; 2000 Romanian Report, at 18. 49 1998 Bulgarian Report, at 8; 1998 Romanian Report, at 9; 1998 Czech Report. 50 2001 Bulgarian Report, at 18; 1998 Czech Report, at 8; 1999 Czech Report, at 11. 51 1998 Bulgarian Report, at 8; 1999 Bulgarian Report, at 12. 52 2002 Czech Report, at 23; 1998 Romanian Report, at 9; 2000 Romanian Report, at 17. 53 2002 Czech Report, at 22; 2002 Estonian Report, at 23; 1998 Hungary Report, at 8; 2002 Lithuanian Report, at 23. 54 2001 Romanian Report, at 20 55 2001 Estonian Report, at 18; 2001 Latvian Report, at 19; 2002 Latvian Report, at 21 56 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004 57 2000, 2001 Reports. 58 1998 Bulgarian Report. 59 2001 Latvian Report, at 15. 60 2000 Lithuanian Report, at 16; 2000 Czech Report, at 18. 61 2000 Czech Report. 62 1998 Paper, 3; 1999 Paper, 15; 2000 Paper, 16; 2001 Paper, 10; 2002. 63 2005 Bulgarian Report. 64 2002, 2005 Latvian Reports. 65 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004 - 7 - Accordingly, to summarize the elements of democracy and rule of law, the next ones can be denoted:  Functioning of the executive, including administrative reform, decentralisation, effective consultation with the interested parties, the establishment of the unified system of civil service, accountability and transparency of the administration;  Functioning of the judiciary, including the guarantees of the judiciary independence, access to court, training of judges, efficient handling of cases, effective and correct enforcement of court decisions.  Functioning of the legislature, including the adequate operation of parliament, respecting the powers of parliament, the role played by the opposition in the parliament, timely conducting of legislative work;  Free and fair elections;  Evaluation of anti-corruption measures.66 The further elaboration on the rule of law and democracy constituents will be maintained in the next chapters of the research regarding their observation by Ukraine as potential candidate country to entry the European Union.

4. Issue of “human rights” in the meaning of Copenhagen political criteria.

Protection of human rights has been the crucial issue of international community since the end of World War II remaining still the main mirror of democratic keystones in the country. No wonder, the accession into such a strong human-oriented institution as EU requires the candidate country to fully assure the protection of human rights within its territory. The main basis for human rights protection in Europe could be found in European Convention of Human Rights enacted by Council of Europe in 1953. Clearly, the expertise of the Council of Europe in the field of human rights protection, and especially in the area of standard setting, is undisputed.67 Prior to Lisbon Treaty, the EU has no primary legislation regulated the extent of human rights68, thus the headship in establishment of benchmarks in human rights protection was given to Council of Europe as the international organization working towards the European integration. It is noteworthy, that the applicant countries often saw the membership of the Council of Europe as a necessary step towards the EU membership.69 The European Commission has explicitly shown that Council of Europe membership is an obligatory step towards joining the European Union. References to this organisation can be found in almost all the Copenhagen related documents adopted in the course of the preparation of the former enlargement. 2002 Commission’s Strategy Paper ‘Towards the Enlarged Union”, for instance, indicates the importance of adherence to international human rights standards, e.g. to those released by the Council of Europe. It stresses that “the Commission analyses the way in which the candidate countries respect and implement the provisions of the major human rights conventions”.70 Thus, while the ratification of the Convention is an explicit obligation for members of the Council of Europe, it is a de facto condition for EU membership.71 As in the assesstment of democracy and rule of law, the main emphasis should be put on the analysis of Copenhagen-related documents.

66 Ibid. 67 MC Kettemann, ‘A Soft Law Reality Check: Reflections on the Role and Influence of Council of Europe Expert Bodies on Standard1Setting in European Human Rights Law with Special Reference to Normative Impacts of the Czech Republic’, 2006. 68 Charter of Fundamental Rights in Europe has become the indispensable part of Lisbon Treaty only with its ratification in 2009. 69 Tucny, E., L’élargissement de l’union européenne aux pays d’Europe centrale et orientale: La conditionnalité politique, Paris /Montréal : L’Harmattan, 2000. 70 European Commission, 2002 Strategy Paper, at 9. 71 D.Kochenov, “EU Enlargement Law: History and Recent Developments: Treaty – Custom Concubinage?” 9(6) European Integration Online Papers, 2005. - 8 - A study of Association Partnerships, Conclusion and Regular Reports72 demonstrates that the Commission divided the issues of human rights and respect for and protection of minorities into three main parts, namely: Civil and Political Rights, Economic and Social Rights, and Minority Protection.73 The Copenhagen-related documents give accent to the most problematic issues in sphere of human rights protection meant by the EU, than to the assessment of the human rights stemming from the European Convention on Human Rights or the Charter of Fundamental Rights of the EU. For example, they do not contain separate scrutiny of dignity or the right to life.74 The rights, Commission have focused on, were quite broad and included: the freedom of expression and independence of the media; discrimination against homosexuals; human rights violations related to pre-trial detention and the situation in prisons; access to a lawyer; equality; freedom of religion.75 Remarkably, the Commission has demonstrated certain hesitation in the assessment of the right to freedom of worship: among civil and political or among economic social and cultural rights.76 Similar deviations from the main principles of evaluation can also be found inter alia among citizenship rights, children’ s rights.77 Hence, based on Copenhagen related documents, the protection of human rights in the meaning of Copenhagen political criteria require:  Ratification of necessary international instruments;  Civil and political rights, including, most significantly, freedom of expression and independence of the media; combating trafficking in human beings; combating police violence; problems related to pre-trial detention and situation in prisons; asylum and refugees; access to a lawyer; the establishment and effective functioning of an ombudsman’ s office; the assessment of the role played by the NGOs;78  Economic, social and cultural rights, including gender equality; trade unions; right to strike; integration of the disabled and socially vulnerable people’ s rights; child protection; social security rights.79

5. Respect and protection of minorities in the meaning of Copenhagen political criteria

Will Kymlicka argues an absolute necessity to have specific minority instruments, based on the assumption that no polity can be truly ethnically neutral80. The European Parliament has performed a showcasing role for the EU, in particular during the early 1990s, by passing numerous resolutions on human rights and minority protection, thereby reinforcing the internal discourse swell on minority rights.81 However, a definition of a ‘minority’

72 M.Zolkos, “The Copenhagen human rights criteria and the relevance in post-communist context”. Papeles del Este #7, 2003. 73 D. Kochenov, “An Argument for Closer Cooperation between the EU and the Council of Europe in the Field of EU Enlargement Regulation”, 2 Croatian Yearbook of European Law and Policy, 2006. 74 ECHR art 2; Charter art 2. 75 Ibid. 76 D.Kochenov, ‘Pre-accession, Naturalization, and “Due regard to Community Law” : The European Union’ s “ Steering” of National Citizenship Policies in Candidate Countries during the Fifth Enlargement’ , 2004 77 Ibid. 78 2004 Bulgarian Report,; 2001 Estonian Report; 2001 Latvian Report; 2002 Latvian Report; 2002 Czech Report; 79 79 2004 Bulgarian Report,; 2001 Estonian Report; 2001 Latvian Report; 2002 Latvian Report; 2002 Czech Report D. Kochenov, “Why the promotion of Acquis is not the same as the promotion of democracy and what can be done in order to also promote democracy instead of just promoting the Acquis”. European Law, 2006. 80 Kymlicka, W., ‘Western Political Theory and Ethnic Relations in Eastern Europe’, in Kymlicka, W. and Opalski, M. (eds.), Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Easter Europe, Oxford: OUP, 2001. 81 G.Sasse,”EU conditionality and minority rights: translating the Copenhagen criterion into policy”.EUI Working papers, RSCAS № 2005/16 - 9 - is nowhere to be found in the Copenhagen-related documents, leaving it up to the candidate countries to determine whom the Commission was asking them to respect and to protect.82 Needless to say, in analysing the Copenhagen-related documents, it is apparent that Commission uses the notion of ‘minority’ in the meaning of national minorities not focusing on other categories of minorities. The slightly different approach is taken by the Council of Europe which refers to national minorities without specifying them83 Several peculiar features of the Commission’s understanding of the term follow directly from the Opinions and Regular Reports which, in fact, illustrate the EU’s difficulties in measuring progress in the absence of clear benchmarks in the field of minority rights. i.e. no minimum amount of minority population which is needed in order for the country monitoring in this field to begin is specified. Moreover, there is certainly a bit of confusion in the way the Commission named the minorities whose situation it monitored.84 Nevertheless, EU conditionality in the area of minority protection is, thus, best understood as the cumulative effect of different international institutions. The actual policy leverage of the EU in minority protection has been anchored in the instruments and recommendations of the Council of Europe and the OSCE, and arange of other actors, including NGOs, have translated them into the domestic political context.85 The set up practice86 of Permanent Court of International Justice in the Advisory Opinion concerning minority schools in Albania87 holds that minority protection consists of two interrelated components: non discrimination on the one hand and special measures for minority protection on the other .88 . The Council of Europe legal system makes a rather successful attempt to combine both of them through the use of the Framework Convention for the Protection of National Minorities89and the European Charter for Regional and Minority Languages,90coupled with the non-discrimination provisions of the European Convention on Human Rights (ECHR).91 Next to Article 14 ECHR92 which has acquired new importance after the entry into force of Protocol 12 to the ECHR (making the self-standing use of the article possible),93 and the case-law of the European Court of Human Rights 94 the Framework Convention and the Charter form the most developed international minority protection system to-date, combining binding and non-binding

82 D.Kochenov, “EU numerous contradictory approaches to minority protection: internal- external paradox and mutually exclusive pre-accession standards ”. Paper presented at ‘Exchanging Ideas on Europe 2006: Visions of Europe: Key Problems, New Trajectories’ UACES 36th Annual Conference and 11th Research Conference, Limerick, Ireland. 83 Gilbert, G., ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’, 24 Human Rts. Quarterly 3, 2002. 84 D.Kochenov, “EU numerous contradictory approaches to minority protection: internal- external paradox and mutually exclusive pre-accession standards ”. Paper presented at ‘Exchanging Ideas on Europe 2006: Visions of Europe: Key Problems, New Trajectories’ UACES 36th Annual Conference and 11th Research Conference, Limerick, Ireland. 85 G.Sasse,”EU conditionality and minority rights: translating the Copenhagen criterion into policy”.EUI Working papers, RSCAS # 2005/16 86 United Nations, Report of the First Session of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/52, section V 87 PCIJ, Advisory Opinion regarding Minority Schools in Albania, 6 April 1935, PCIJ Reports, Series A/B No.64, 1935, 17. 88 Cf. Henrard (2000), 59 et seq. This position is defended by Kymlicka (1989, 1992, 1995) 89 Framework Convention for the Protection of National Minorities, ETS no. 157. 90 European Charter for Regional and Minority Languages , ETS no. 148. 91 Convention for the Protection of Human Rights and Fundamental Freedoms, ETS no. 5. 92 Art. 14 ECHR stipulates “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 93 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS no. 177. 94 On ECt.HR see e.g. Gilbert, G., ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’, 24 Human Rts. Quarterly 3, 2002. - 10 - legal documents aiming at the creation of a well-regulated minority-protection regime in Europe.95 In Commission Reports, the protection of minorities tracks the adoption and amendment of laws on citizenship, naturalisation, language and elections, the establishment of institutions that manage minority issues within the executive or legislative structures, and the launch of government.96 Notably, the issue of minority protection can not be equally found in Copenhagen-related documents based on specific country – the Commission has formulated a dualistic approach dealing with the candidate countries. In Bulgaria, Romania, Slovakia, Hungary, the Czech Republic, Croatia, the Copenhagen-related documents did not contain a special structure generally stressing on wider inclusion for the minority population, non-discrimination on the ground of belonging to an ethnic minority, respect and support for minority cultures, introduction of education in minority, languages and, in some cases, cultural autonomy. Therefore, in former candidate countries Estonia and Latvia the special structure was established characteristic by the Commission’s reliance on the findings of the Council of Europe97 and Organization for Security and Cooperation in (ECNM) Europe enshrined in a the Agreements with Estonia and Latvia98and in the Accession Partnerships,99making the ECNM’s recommendations de facto enforceable law in the context of enlargement. In structural analysis, the Commission, dealing with the second group of countries applies a specific “naturalisation-oriented” structure of the Reports, including sub-headings dedicated to the issuance of residence permits and granting citizenship to the members of the minority communities. Some Regular Reports also contained a sub-chapter on linguistic legislation.100 All in all, from the Regular Reports’ analysis, the main differences between the Commission’s approaches to the assessment of minority protection in the countries belonging to the first and the second group can be demonstrated: - Naming the minorities concerned; - Structural approach to minority rights assessment; - Different approaches to minority self-government in two groups of countries; - Different approaches to minority education in two groups of countries; - Different approaches to non-discrimination in two groups of countries; - Different approaches to the political rights enjoyed by minorities in two groups of countries; - Different approach to the link between belonging to a given minority and the citizenship of a country in question. 101 Apparently, the approach taken by the Commission is not in line with the principle of conditionality where all candidate countries have to be on equal footing in fulfilling the Copenhagen political requirements. Simply put, the Commission failed to formulate the single pre–accession minority protection standard that was supposed to lie at the core of the pre– accession assessment of the candidate countries, thus severely undermining the idea of assessment

95 D.Kochenov, “EU numerous contradictory approaches to minority protection: internal- external paradox and mutually exclusive pre-accession standards ”. Paper presented at ‘Exchanging Ideas on Europe 2006: Visions of Europe: Key Problems, New Trajectories’ UACES 36th Annual Conference and 11th Research Conference, Limerick, Ireland. 96Ibid. 97 Gilbert, G., ‘Minority Rights under the Council of Europe’, in Cumper, P. and Wheatley, S. (eds.), Minority Rights in the ‘New’ Europe, The Hague/ London/ Boston: Martinus Nijhoff Publishers, 1999; Aarnio, E. J., ‘Minority Rights in the Council of Europe’, in Phillips, A. and Rosas, A. (eds.), Universal Minority Rights, Turku /Åbo: Åbo Akademis tryckeri, 1995. 98 Preamble to the Europe Agreement with Latvia, OJ L 26/1998 99 Annex to Council Decision 2002/88/EC of 28 January 2002 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Latvia, OJ L 44/2002 and Annex to Council Decision 2002/86/EC of 28 January 2002 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Estonia, OJ L 44/2002. 100 1999 Estonian Report. 101 D.Kochenov, “EU numerous contradictory approaches to minority protection: internal- external paradox and mutually exclusive pre-accession standards ”. Paper presented at ‘Exchanging Ideas on Europe 2006: Visions of Europe: Key Problems, New Trajectories’ UACES 36th Annual Conference and 11th Research Conference, Limerick, Ireland - 11 - of the candidate countries’ progress based on the application of the same criteria as underlined by the Luxembourg European Council Presidency Conclusions.102 Thus, Commission’s approach to minority protection differs from country to country103 and, in order to assess what requirements Ukraine has to fulfil in sphere of minority protection, the particular Regular Reports have to be taken into account. The relevance of European Convention of Human Rights should no be underestimated as the membership in Council of Europe is the clear pre-condition to access the EU.

102 Ibid. 103 D.Kochenov, “Commission’s approach towards the minority protection during the preparation of EU’s Eastern enlargement: is 2 better then the promised 1?”, European diversity and autonomy papers, EDAP 02/2007. - 12 - Conclusion to Chapter I.

The Copenhagen criteria carry the leading role in the regulation of enlargement process being the basements for the country’s future EU membership. The concept of merit-based enlargement was constated focusing on political conditionality as its main instrument. Only the state of preparedness of the candidate countries, objectively assessed by the Commission could be the basis for the decisions to include an applicant among the candidate countries and to start the enlargement negotiations. 104Apparently, conditionality secures the compliance with the obligations under the Copenhagen criteria for the potential candidate countries. Surprisingly, the Union does not distinguish between the principles of democracy and the rule of law, uniting them in one integral notion. It is possible to observe that the Copenhagen related documents give priority to the assessment of the rule of law, without concentrating on the analysis of the democratic process in the candidate countries in necessary detail.105 The structure of the elements of the first Copenhagen political criterion “democracy and the rule of law” proposed by this research is based on the Copenhagen-related documents and include 1) functioning of the judiciary; 2) functioning of the executive; 3) functioning of the legislature; 4) evaluation of anti-corruption measures; 5) free and fair elections. Regarding the protection of human rights, it is clear from the Copenhagen-related documents that the narrow understanding of human rights should prevail in this context than the broad interpretation of international documents, such as European Convention of Human Rights and EU Charter of Fundamental Rights106, which is now primary source of the Union Law since its incorporation into the Lisbon Treaty in 2009. The protection of human rights from the perspective of Copenhagen political criteria require 1) the ratification of necessary international instruments; 2) the protection of civil and political rights, including freedom of expression and independence of the media; combating police violence; combating trafficking in human beings; problems related to pre-trial detention and situation in prisons; access to a lawyer; asylum and refugees; the establishment and effective functioning of an ombudsman’ s office; the assessment of the role played by the NGOs; 3) the protection of economic, social and cultural rights, including gender equality; trade unions; integration of the disabled and socially vulnerable people’ s rights; right to strike; child protection; social security rights. The most striking feature in Commission’s approach towards the Copenhagen political requirements is connected with the protection of national minorities. Though, the provision on national minorities has been included to the groundbreaking principles of the EU in the Art.2 TEU, the precise idea on its essence is far from clear because of Commission’s non-equal treatment of candidate countries in meeting the criterion. Thus, the assumption can be made to connect the protection and respect for national minorities to the most common for all the candidate countries Commission’s requirements, which are the adoption and amendment of laws on citizenship, naturalisation, language and elections, the establishment of institutions that manage minority issues within the executive or legislative structures, and the launch of government. Remarkably, there is no definite amount of population to be considered as “national minority”.107

104 D.Kochenov, “Commission’s approach towards the minority protection during the preparation of EU’s Eastern enlargement: is 2 better then the promised 1?”, European diversity and autonomy papers, EDAP 02/2007 105 Ibid. 106 D. Kochenov, “An Argument for Closer Cooperation between the EU and the Council of Europe in the Field of EU Enlargement Regulation”, 2 Croatian Yearbook of European Law and Policy, 2006. 107 D.Kochenov, “Commission’s approach towards the minority protection during the preparation of EU’s Eastern enlargement: is 2 better then the promised 1?”, European diversity and autonomy papers, EDAP 02/2007

- 13 - Chapter II. Rule of Law and Democracy in Ukraine

1. Way of Ukraine to European Integration

European integration has been on Ukraine’s agenda since it got independence in 1991 being declared as the priority direction of the state’s foreign policy. The basements of foreign policy lie in Constitution of Ukraine (Art.18), 28.06.1996; Resolution of Supreme Council “On Core Concepts of Ukrainian Foreign Policy”, 02.08.1993 stating that “"the ultimate goal of Ukrainian foreign policy is its membership in the European Community "108; EU-Ukraine Partnership and Cooperation Agreement ( PCA), 16.06.1994; Strategy of Ukraine’s Integration to EU adopted by the Presidential Decree in 11.06.1998, № 615/98; Program of Ukraine's integration into the EU, approved by Presidential Decree in 14.09.2000, № 1072/2000; Action Plan (AP), 2005; EU- Ukraine Association Agenda priorities 2009/2010. Besides that, a number of Regulations concerning the EU-Ukraine relations were passed by the President namely: "On the implementation of EU-Ukraine Partnership and Cooperation Agreement”, 24.02.1998, № 148/98; "On Approval of the Strategy of Ukraine's Integration to the EU”, 11.06.1998, № 615/98. Among other normative acts- the Governmental Resolutions "On Adjustment Mechanisms of Ukrainian Legislation to the EU Requirements ",12.06 1998, № 852; "On Set up of Inter-Institutional Coordination Council on Adjustment of Ukraine's Legislation to the EU Requirements ",12.11 1998, № 1773 and "On the Concept of Adjustment of Ukraine's Legislation to the Requirements of EU law”, 16.08 1999, № 1496. In fact, Ukraine was one of the first former Soviet Union countries to sign the main bilateral agreement and legal basis for cooperation - Partnership and Co-operation Agreement with the EU aiming at assisting the consolidation of the country’s democracy and the development of its economy. The PCA came into force in 1998 only, as it took the Member States’ parliaments almost four years to ratify the agreement. According to Clause 1, Article 51 of the PCA, the EU and Ukraine have recognized that "an important condition for strengthening economic relations between Ukraine and the Community is the approximation of current and future legislation of Ukraine with Community law”. Ukraine has taken steps to ensure that its legislation was gradually compatible with Community law.109 In Paragraph 2, Article 51 of the PCA the areas of approximation the Ukrainian Laws were regarded as follows: Customs Law, Company Law, Banking Law, Intellectual Property Law, Labour Law, Competition Law, Public Procurement, Environmental Law, Consumer Protection, Indirect Taxation, technical rules and standards, financial services, Laws and Regulations concerning nuclear energy, transport.110 However, the PCA did not help to facilitate the democratic transformation as it was almost unconditional. No specific dates of fulfilment the requirements of PCA we identified. Hence, it did not provide incentives for reform. The implementation has been monitored separately and the results of progress assessment differed dramatically.111 This has been a period identified as “integration without Europeanization”112, i.e. without “extensive change of domestic institutions and policies in line with EU’s more or less explicit targets”.113 Needless to say, given that Ukraine’s non- compliance with EU requirements bore no costs, the government failed to find incentives for the implementation of the PCA as well as for pushing

108 The Verkhovna Rada of Ukraine. - 1993. - № 35. - C.2. 109 Partnership and Cooperation between Ukraine and the European Community on 16 June 1994. - Kyiv, the European Commission in Ukraine, 1997. - S.27. 110 Ibid. 111 For instance, the European Union was accusing Ukraine of poor enforcement of PCA-related legislation; whereas the Ukrainian side reported the successful adoption of EU standards and norms in various spheres. 112 Wolczuk, W., Integration without Europeanization: Ukraine and its Policy towards the European Union, Working Paper, Robert Schumann Centre, Europe and University Institute, Florence, 2004 113Ibid. - 14 - domestic reform. The PCA has to be replaced by a New Enhanced Agreement, on which the EU started negotiations with Ukraine in March 2007.114 Besides the PCA, the European Neighborhood Policy (ENP) can be defined as the main negotiable instrument for the whole EU neighborhood, including Ukraine. The ENP is a rather vague, albeit flexible, framework that stretches beyond the existing relations and offers a possibility for deeper political relationship and economic integration. The major ‘carrot’ of the ENP is defined as a stake in the EU’s Internal Market in response to significant reform on the Ukrainian side. By and large, this ‘carrot’ should serve as an incentive for Ukraine’s compliance with the expensive EU acquis. Given the short time span of the ENP, it is difficult to assess the impact of its conditionality on Ukraine’s transformation. However, it holds true that the ENP laid the foundation for Ukraine’s deeper integration with the EU. Although an accession perspective was not offered, the ENP brought some positive developments, such as “light” conditionality attached to bilateral ENP Action Plans.115 During the Kuchma116 regime, such a bilateral Action Plan was adopted between Ukraine and the EU which clarified the incentives and conditions and linked them to each other in the ad hoc offered 10-point-plan to Ukraine.117 Remarkably, the Action Plan is the most relevant document to identify possible incentives and conditions for recent times. In this document, the democratic improvements being the basis of Copenhagen political criteria are explicitly named as the motivation to enhance and concretise the incentives: “[the] new commitment to democracy and reforms opened new prospects for EU- Ukraine relationship.”118 Thus, the inclusion of the political Copenhagen criterion into the AP paved the way for further democratization. In sum, these documents have put the basis for the harmonization of Ukrainian legal framework with the EU norms and standards building up a system which assures the drafting and implementing all the legislation in compliance with the EU legal standards.

2. Concepts of “rule of law” and “democracy” in Ukrainian legal system

Brief overview of the rule of law/ democracy in Ukraine

Being a Continental Law country, Ukraine has a clear hierarchy of legal norms headed by the Constitution adopted on the 28 of June in 1996. According to Constitution, Ukraine is a sovereign and independent, democratic, social and legal state. Art. 8 of the Main Document guarantees the recognition and enforcement of rule of law in Ukraine. However, no further explanation is provided regarding the meaning of the concepts “rule of law” and “democracy”. The first legal interpretation of “rule of law” notion was delivered by the Decision № 15 - rp/2004 of Constitutional Court of Ukraine which held that “rule of law is the dominance of law within the territory of the country”119. The rule of law requires its enforcement by the state into the legal practice, particularly into the laws pervaded by the ideas of social fairness, liberty, equality etc. The references to the rule of law can be found in almost all the codified acts delivered by the Parliament of Ukraine named “Supreme Council”. Thus, Criminal-Procedural Code states that the principle of “rule of law” must be put into the basis of judicial process. 120 Criminal Code ensures

114 Istyahina N., Kostyuk S., Adaption of Laws of Ukraine to the Law of the EU: status, prospects, 2008. 115 The EU -Ukraine Action Plan was signed in spring 2005 116 Kuchma had been the President of Ukraine since 1995 to 2004. 117 Council of Ministers, General Affairs and External Relations Council Meeting: Conclusions on Ukraine, Press Release 6420/05 (21 February 2005) 118 Ibid. 119 Decision of Constitution Court of Ukraine №15-rp/2004 “On the imposition of less severe punishment”. P.4.1. 2004 120 Art.18 of Criminal- Procedural Code of Ukraine , 28.12.1960 - 15 - the guarantee of all International principles recognized by Ukraine121, i.e. the rule of law; Administrative- Procedural Code stipulates that the rule of law has to be respected by the administrative bodies122; Commercial, Commercial Procedural, Civil and Civil Procedural Codes refer to the main principles of Constitution which they adhere to.123 Surprisingly, the meaning of “democracy” is not outlined in any legal acts. Only the Ukrainian scientific literature is the source of understanding the concept. The elaboration of the rule of law/ democracy in Ukraine in the meaning of Copenhagen political criteria will be done in turn.

2.1. Functioning of legislature in Ukraine as a part of rule of law/ democracy criteria

According to the gist of Copenhagen-related documents, Parliament is the main ‘distributor’ of democracy as it is the only body elected directly by the citizens. In earlier analysis, it was summarized that the Parliament in order to satisfy the criteria of democracy and rule of law, has to be independent from the other branches of power, efficient in its work and effective in the carried out tasks. Surprisingly, the Ukraine’s legislator has been set aside into the EU –Ukraine Association Agenda priorities for 2010 which envisages only the general norms on the further building of ‘constitutional system of effective checks and balances between state institutions’124 and ‘effectiveness of the electoral framework and environment so as to continue the conduct of presidential and parliamentary elections in accordance with international standards for democratic elections’125. However, the role of Parliament in democratic society can not be underestimated as, being the representative of citizens’ will, it conducts the activity of passing the Laws applicable for the whole country, thus it objectively determines the norms necessary to be observed by every person. According to Constitution, the Supreme Council of Ukraine (also known as the Verkhovna Rada) is the sole body of legislative power in Ukraine. The constitutional composition of the Verkhovna Rada of Ukraine is four hundred and fifty People's Deputies who are elected once in four years by way of a secret ballot on the basis of universal, equal and direct suffrage. 126 The Constitutional powers of Supreme Council comprise different areas starting from the amendments of the Main Law, exercising parliamentary control to the establishing and abolishing districts. Though, the most important function is the legislative power in adoption the Laws127, which, in the context of Copenhagen political criteria, outlines the level of democracy and rule of law. Ultimately, Ukraine’s Parliament serves the representative, legislative, control and organizational functions. Moreover, it predesignates the set up of the contemporary Parliament main features, i.e. the creation of perfect political and judicial arrangements to fulfil the basements of democratic constitutional order of Ukraine as well as to equalize the legal position of Supreme Council to these conditions. Despite the legal regulation of the Parliament’s competences prescribed by the Constitution (which can be considered as democratic and extended), the issue regarding the procedure of adopting the laws has arisen. The Resolutions of Supreme Council “On Rules of Procedure” have been changing almost every year which slowed down the effectiveness in the Parliamentary work. The measure which can guarantee the transparent and efficient functioning of Supreme Council in

121 Art.3 of Criminal Code of Ukraine, 05.04.2001 № 2341-III. 122 Art. 2 of Administrative-Procedural Code of Ukraine, 06.07.2005 123 Art. 5 of Commercial Code of Ukraine, 16.01.2003 № 436-IV.; Art. 4 of Commercial Procedural Code of Ukraine, 6.11.1991 № 1798-XII; Art. 4 of Civil Code of Ukraine 16.01.2003 № 435-IV; Art. 2 of Civil Procedural Court of Ukraine, 18.03.2004 № 1618-IV 124 EU-Ukraine Association Agenda priorities for 2010 125 Ibid. 126 Art. 76 of Constitution of Ukraine. 28.06.1996. 127 Article 91 The Verkhovna Rada of Ukraine adopts laws, resolutions and other acts by the majority of its constitutional composition, except in cases envisaged by this Constitution. - 16 - order to fulfil the Copenhagen political criteria is the enactment of the Law prescribing the formal procedural rules regulating its work. In February 2010 – the Law “On Rules of Procedure”128 was finally adopted which can be regarded the essential step in EU-Ukraine relations on the way to European integration. Despite the positive changes, there are still the substantive failures in the process of law- making. The lack of coherent legal framework challenges the convergence processes of Ukrainian legislation with the EU legal system. Consequently, the existing legal order is inconsistent, divergent and obscure. Yet, the Laws encompass only 4, 6%. 129 of more than thirty thousands legislative acts in force in Ukraine. However, the issue is not only in the quantitative indicators, but in the quality of the measures approved. The Council adopted a special decision on the rules of drafting the legal acts which stipulates that it should be: coherent, without excessive length; un- ambiguous, without excessive use of abbreviations, without slang expressions, extensive phrases, incomprehensible references to the texts, sophistications making the document hard to read.130 Ukraine still has to improve its legislative technique to the EU standards. One of the main Ukraine’s problems in the formation of effective legal system is the failure of effective mechanism for the implementation of legislation. The expert of Ukrainian-European Advice Centre on Legislative Issues V.Pyatnitsky stated that “Ukraine lacks in implementation of legislation while the drafting of new Laws is not the core of un-effective legal mechanism. We have a lot of good Laws that do not work in practice”.131 Thus, the current stage of Ukrainian legislature has to be consummated by the creation of effective law enforcement mechanisms in order to comply with the Copenhagen political criteria.

2.2. Free and fair elections in Ukraine

Undoubtedly, elections play a central role in democratic development of country not just because they ensure predetermined substantive outcomes but because they prove to be the best (and likely the only) mechanism for ensuring the consent of the governed. 132 The EU position regarding the standards of free and fair elections is quite vague in stating that there should not be any severe irregularities during the electoral process. 133 In the list of Association Agenda priorities for 2010, though, the considerable attention is put to the effectiveness of electoral framework according to the international standards in Ukraine. It will be remembered that the Orange Revolution134 has taken place in 2004 when the international community refused to recognise the results of Presidential elections having called it “the biggest election fraud in Ukraine's history".135 The successful national protests against the fraudulent elections have become the important step in the setting of democracy and rule of law in Ukraine. In fact, the Orange Revolution has paved the way to democratic parliamentary elections in spring 2006 and presidential elections in autumn 2010. Overall, fundamental civil and political rights were respected. This enabled voters to make informed choices between distinct alternatives and to freely and fairly express their will, concludes the International Election Observation Mission. Having traced back to the evolution of elections in Ukraine, it is worth now to provide with the legal framework for this democratic institute.

128 The Law “On Rules of Procedure” was adopted on the 10.02.2010 and came into force on the 9.03.2010 129 Panchenko A. old live by the law of Ukraine on 4,6% / day. - 7 October 1999. - C.2 130 See the Council Resolution of 8 June 1993. 131 Fundamental Reform for Future Integration / / The Day. - June 6, 2000. - № 18. - P.5. 132 Samuel Issacharoff, “Fragile democracies”, Harvard Law Review, Forthcoming, NYU Law School, Public Law Research Paper No. 06-34, 2006 133 D.Kochenov, “Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law ”. European Integration online Papers (EIoP) Vol. 8, N° 10, 2004 134 The Orange Revolution of 2004 was a bloodless civil uprising for rule of law, which resulted in the overthrow of a corrupt government, following fraudulent presidential elections. 135 Karatnycky A., “Ukraine's Orange Revolution” .From Foreign Affairs, March/April 2005. - 17 - Art.5 of Constitution envisages that people are the bearers of sovereignty and the only source of power in Ukraine exercising it “directly and through bodies of state power and bodies of local self-government”. The expression of the will of the people is exercised through elections, referendum and other forms of direct democracy. Elections to bodies of state power and bodies of local self-government are free and are held on the basis of universal, equal and direct suffrage, by secret ballot. Voters are guaranteed the free expression of their will. As it can be concluded from the Constitutional provisions, Ukraine respects the free and fair elections, however the process of practical enforcement of certain provisions still remains inadequate. The issue rises with the adoption of the Law "On Elections of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Local Councils and Village, Settlement and City Mayors".The Law includes numerous technical errors and confusing procedures. It limits the electo ral potential for a number of established parties, including some that are now represented in the parl iament, while creating apparent advantages for incumbent parties. Restrictions on new parties and independent candidates appear to be unreasonable in light of principles established by the Ukrainian constitution, as well as international obligations and commitments that Ukraine has undertaken.136 One of the main reasons for the low level of effectiveness of electoral legislation is the incomplete level of public control during election period. Particularly, more than 62 % of population doubt about their real influence on the decision-making process when only 21 % have answer positively on the issue according to the assessment made by the Fund of “Democratic initiative” in 2007. The data demonstrates that the participation of citizens in the process of preparation and adoption of main social decisions is limited during the election period. Based on the public view, the necessity to increase and strengthen the mechanisms of direct citizen’s influence on the political process during the elections is upraised. The Constitutional provisions on the direct right of citizens to be involved in the state affairs administration request to be supplemented and amended. Specifically, the guarantees of the right to legislative initiative to the citizens have to be provided, the fixation of the elaborate description of the direct democracy has to be made, the adjustment of administrative system to the new Laws on elections must be conducted as well as the transparency in all levels elections should be ensured.

2.3. Functioning of executive bodies in Ukraine and fight with corruption as the constituents of rule of law/ democracy criteria

The EU-Ukraine Association Agenda priorities for the 2010 urges Ukraine to work closely together in reforming and enhancing the capacity of the public administration system, including an effective fight against corruption. In the other Copenhagen-related documents, the emphasis is made on the reforming of civil administration, i.e. to create a uniform system of civil service137, to decentralize administrative bodies as well as to foster accountability among the civil servants. 138 State administrative reforms are directed to the flexibility, innovation and enhancing of the civil servants’ performance and accountability. Constitutionally, Ukraine has a broad system of executive bodies. The highest executive body is the Cabinet of Ministers of Ukraine. The Cabinet of Ministers of Ukraine is responsible to the President of Ukraine and is subordinated to and supervised by the Supreme Council of Ukraine.139 Executive power in regions is exercised by local state administrations. The composition of local state administrations is formed by Heads of local state administrations. While implementing

136 Ukraine Local Elections law Analysis. National Democratic Institute for Foreign Affairs, 2010. 137 Civil service in Ukraine shall be understood as the professional occupation of persons holding positions at State organs and civil service employees practically implementing tasks and functions of the State in return for pay from government funds. –Art.1 Law of Ukraine “On Civil Service”,1993 138 1998 Bulgarian Report. Croatian Report 2009 139 Arts. 113-116 ,Constitution of Ukraine, 28.06.1996 - 18 - their authorities, Heads of local state administration are accountable to the President of Ukraine and the Cabinet of Ministers of Ukraine, are subordinated to and supervised by bodies of executive power at a higher level. Local state administrations are subordinated to and supervised by bodies of executive power at a higher level. Thus, there is a well structured executive system enshrined by the Main Document. Besides that, the Decree of President “On the Concept of Adjustment the Institute of State Administration in Ukraine to European Union Standards”, 05.03.2004 underlines the core priorities in the building up of the effective state administrative system directed to the granting of services for the people needs as well as to the professionally assistance on the efficiency of state policy. Protection of rights and freedoms; creation of conditions for economic and political liberties, general welfare of citizens; development of open civil society are among the democratic values put into the basis of Decree. The institute of state administration has to guarantee the rule of law, strengthen the operative mechanisms of public control over the state. Cabinet of Ministers has enacted the Regulation №528, 2008 concerning the set up of Centre of adjustment of state administration to the standards of European Union to facilitate the administrative reforms in various state sectors. Noteworthy, no legal document regarding the functioning of state administration contains provisions on language skills of civil servants, though it is apparent that having announced the way to European integration, the state administrative bodies have to be aware of at least, one of the official Union languages. In addition to state administration, the local self-government in Ukraine has to be mentioned as the main important form of local democracy. The basic laws which regulate the realization of local self-government in the country, are the Laws of Ukraine “On Local Self-Government in Ukraine” (21.05.1997), “On the Bodies of Self-Organization of Citizens” (11.07.2001) and “On Local State Administrations” (09.04.1999).The local self-government bodies of Ukraine have some power in the process of local decision-making, but they do not have real independence to make their own decisions as independently forming their organizational structure, create additional services for public for additional sources of revenues to local budgets, exercise their initiative with regard to any matter which is not excluded from their competence. The mechanisms of realization of independence and autonomy of local self-government, particularly in the process of decision- making are not precisely defined. Duplication of powers between local state administrations and bodies of local self- government, for today, is one of major problem that needs the most rapid solution. Already about five or six years in Ukraine goes a talk about the necessity of clear division of powers, jurisdiction and responsibility between foregoing bodies, but the real steps, which finally would decide the noted issue are not realized yet140. Moreover, the issue of accountability rises very crucially, as in the absence of clear division of powers between the state administrative bodies and bodies of local self government, it is extremely difficult to figure out which body (or civil servant) is responsible for particular tasks. In this situation, the corruption mechanism prosper in the activity of state bodies, thus the reformation of administration is the clue in combating the corruption, which is determined as the necessary measure to satisfy the Copenhagen political criteria. The fight with corruption is among the Ukraine’s core priorities on the way to the EU. Corruption pervades all levels of Ukraine's government. President's Administration has organized the presidential Committee on the Fight against Corruption and Organized Crime on 14 February 1997. Needless to say, civil servants are prohibited to pursue economic activity while performing the state duties141, however, de-facto, the low wages force them to find the alternative ways of earning money, that is to go into the corruption. The state is obliged to guarantee the adequate salaries to its executives, that is to argue, the issue of corruption may be eradicated if the state ensures the relevant financial assistance to its civil servants.

140 Babinova O. ,“Local self-government in Ukraine: strategic priorities and problems of realization”. National Academe of Public Administration Office of the President of Ukraine,2009. 141 Law of Ukraine “On State Administration”, 16.12.1993 № 3723-XII - 19 - Corruption is inherent not only in the activities of state administrative bodies, but in the functioning of the judicial bodies as well. The corruption pressure on a judge may take the form of a bribe, or it may come in the form of improper political pressure, at all levels of the judicial system. Financial corruption is not as dangerous as connections with relatives, and that even if a party pays a bribe, he may still lose because of the judge’s connection.142 Consequently, the weaknesses in the current legal regulation of executive bodies which impede the fulfilment of EU “rule of law” criterion may be outlined as follows:  Inadequate system of state administration (i.e. no evaluative mechanisms of the civil servant’s performance; no identified career prospects after reaching of maximum age etc.);  Inadequate classification of civil servants’ positions;  Inadequate system of work compensation;143  Lack of a clear definition of functions and responsibilities of local self-government and local executive bodies as well as between local and regional authorities;  High level of corruption. As a result, Ukraine is unable to satisfy the EU legal principles and norms regarding the improvement the institute of state administration responsible for the enforcement of legislation and state policy. However, among the positive changes is the newly adopted Law “On State Administration”, 2010 which declares the introduction of unified system of evaluation and planning the civil servants’ tasks aiming at the fostering their effectiveness and work incentives. 144 Summing up, Ukraine has taken measures to adjust the institute of state administration to the standards of the EU (the special bodies are set up, the Concept of adjustment has been approved etc.), though the legislative loopholes and corruption are still the main deterrents to its future accession.

2.4. Judiciary as the part of “rule of law” concept

The effectiveness of judiciary is one of the core elements of concepts of “rule of law” and “democracy” in meeting the Copenhagen political criteria as it is mentioned in all the Reports of former and present candidate countries. It has to be admitted that, the rule of law is defined as the main principle in the functioning of Ukraine’s judiciary – Constitutional Court and Courts of General Jurisdiction.145 Obviously, the judiciary has to be independent146. According to Art.6 of Ukrainian Constitution, the political power is divided into three branches: executive, legislative and judicial. Article 124 stipulates that justice in Ukraine is administered exclusively by the courts as well as it is not allowed to delegate functions of a court, as well as to appropriate these functions by other bodies or officials. Hence, the basis for independence of courts is enshrined into the Main Law of a country which has to be respected by everyone. However, the scientific data shows that, perhaps, the most crucial issue in the functioning of judiciary in Ukraine which prevents it from the fulfillment of EU Copenhagen political criteria is the question of its independence from the legislative and executive authorities de facto. As a matter of fact, in Ukraine, the issue of judicial independence is composed of two parts. The first one deals with the outside intervention into the professional work of judges in order to persuade them to make the contested decisions, while the other lies in the inner judicial functioning – to wit, in the deliberate rendering of unlawful decisions, verdicts or rulings by the judges.

142 Neill B., Brooke H. “Rule of law in Ukraine”. Report for the Ukraine Business Council, 2008. 143 Avedyan L., Rudenko Y., “The necessity and problems in adjustment the institute of state administration to the stands of European Union”. Theory and practice of state administration. Edition II(25), 2009. 144 Law of Ukraine “On State Administration” ,16.12.1993 № 3723-XII 145 Art.4 of Law of Ukraine “On Constitutional Court of Ukraine”, 16.10.1996 № 422/96-ВР; Art. 2 Law of Ukraine “On judiciary and status of judges”, 07.07.2010 № 2453-VI.” 146EU-Ukraine Association Agenda priorities for 2010; 1998 Bulgarian report, at 8; 1999 Bulgarian Report, at 12. - 20 - Since judiciary is one of the core elements of the rule of law, thus it has to be a legal standard of rendering the court decision (ruling) while guaranteeing impartiality of judges as well as their attempts to renew the justice. 147 Besides the issue of “independence”, the judiciary has to be easy accessible for people148, thus there should not be any obstacles to protect the man’s breached, unrecognized of challenged rights in courts, efficient, respected149, well-staffed150, well-trained151 and well paid152. How do these requirements comply with the Ukrainian practical application? What are the main particularities of Ukraine’s judiciary? Hereby, it is of vital importance to assess these issues to determine its main problems as well as to explore the possible ways of their solving. Noteworthy, the jurisdiction of courts applies to all legal relations arising within the state. Legal proceedings are conducted by the Constitutional Court of Ukraine and courts of general jurisdiction. According to the Law of Ukraine “On Judiciary and Status of Judges”, 07.07.2010 № 2453-VI, the courts have to comply with the principle of legal certainty meaning the legal documents to be coherent, accurate and precise. Furthermore, the outside pressure of state bodies is prohibited unless they are parties or interested persons in the court proceedings. 153 Yet, European Court of Human Rights (ECHR) underlined in case “Klass and others v. Germany“, 1978 that the intervention of executive bodies into the rights of persons has to be strictly limited and effectively supervised by the judiciary, as the guarantees of judicial protection include the right to fair trial, access to justice, equality of parties, cohesion of civil and other rights as well as their social evolution etc. 154 The key factor creating the main impediments in the effective judiciary in Ukraine on the way to European integration is the excessive workload of courts which causes the legally incorrect decisions, thus contrary to concept of “rule of law” necessary to be respected by all the courts. The problem can be resolved by the set up of uniform Chambers in court structure responsible for the maintaining the particular part of judicial scrutiny despite the conjunction of criminal and civil elements. Having analyzed the effectiveness of Ukraine’s judiciary, it also seems significant to gradually withdraw the enactment of Supreme Court’s Rulings on the application of legislation in the process of considering the case in order to adjust Ukraine’s legal system to European standards. The existence of these Rulings which are de-facto mandatory for lower courts, is the hold-over of Soviet Union and, as a matter of fact, it is not consistent with the fundamental doctrine of the division of powers in democratic society: the question arises whether the judicial body has competence to substitute the legislative body while providing with the obligatory instructions on the application of Laws? There are many controversial views on this issue. It is suggested to introduce the institute of “preliminary reference” when it is up to the discretion of the lower level judge to send the reference to the Supreme Court in case of unclear law enforcement. The judicial system can not be considered efficient as long as it restricts the rights of interested persons to appeal the court decisions since the Appeal Court acts as the Court of First Instance in some categories of cases. 155 The other characteristic of court system is the high amount of judicial bodies for general and specialized courts while one person seeking for the fair trial can pass along three judicial authorities, when the other person – can pass along four. Such legal provisions are contrary to the

147 Shevchuk S. Bases constitutional jurisprudence. - H.: Konsum, 2002. - 292 148 See Chapter 1. 149 EU-Ukraine Association Agenda priorities for 2010; 1998 Bulgarian Report, at 8; 1999 Bulgarian Report, at 12. 150 EU-Ukraine Association Agenda priorities for 2010; 1998 Bulgarian Report, at 8; 1998 Romanian Report, at 9; 1998 Czech Report. 151 EU-Ukraine Association Agenda priorities for 2010; 2001 Bulgarian Report, at 18; 1998 Czech Report, at 8; 1999 Czech Report, at 11. 152 EU-Ukraine Association Agenda priorities for 2010; 1998 Czech Report, at 8; 1998 Latvian Report, at 9; 2000 Romanian Report, at 18. 153Averyanov V. Bondarenko I., Dolya L.Gega P., “The increase in EU-Ukraine Co-operation on the rule of law in Ukraine”. –Kyiv, 2006. p.71 154 Klass and others vs Germany(A/28): (1978) 2 ECHR 214 155 Criminal- Procedural Code of Ukraine , 28.12.1960. - 21 - “rule of law” principle in part of easy access courts by people. The draft law “On Judicial Administration” foresaw the establishment of four –level general court competency, i.e. in addition to the High Administrative and High Commercial Courts, to set up the High Civil and Criminal Courts. It is directed to the harmonization of case scrutiny in all judicial authorities. The real step toward the judicial changes was made with the earlier adoption and coming into force the Law “On Judiciary and Status of Judges”, which fixes the four-level specialized courts’ structure.156 As the recent practice clearly demonstrates, the set up of High Administrative and High Commercial Courts has facilitated in unloading the Supreme Court of Ukraine, Appeal and Regional Courts. In this case, the competence of Supreme Court has to be reviewed in order to transfer the cassation claims under the authority of specialized High Courts. The enforcement mechanism is still pending, however the composition of two more High Specialized Courts is the considerable step in EU-Ukrainian relations regarding the enhancing of democratic elements and rule of law in the system of judiciary. The other factor which will approach Ukraine’s judiciary to the EU democratic standards is the involvement of lower level judges to the upper-level courts work, i.e. the pre-trial scrutiny, consultation tasks, delivering the verdicts etc. Besides that, there are the obstacles of procedural character which postpone the adjustment of Ukrainian legal system to the EU i.e. Art. 347 of Criminal-Procedural Code157 holds that the verdicts came into legal force can not be appealed by the parties. Thus, according to the EU democratic rules, this provision of Ukrainian legislation challenges the right to fair trial which is among the ground-breaking rights of the Union legal system. Surprisingly, there is no legislative initiative registered in the Supreme Council to amend the procedural rules. In Ukraine, criminal justice reform presents many challenges, including the need to balance European values of protecting human rights and liberties with national traditions while building upon legislative achievements. Apparently, the current level of judiciary in Ukraine is not compatible with the required Copenhagen political criteria, and, as long, as it is unregulated by the state – the chances to enter EU are very low. However, Ukraine has made the attempt to adjust its judiciary to the Copenhagen requirements with the adoption of new laws, drafting the codes and negotiating on the better decision-making process with the EU. Nevertheless, having explored the main inconsistencies of Ukraine’s judicial system with the EU standards, the necessary changes can be outlined. The most essential step to foster the EU accession is to practically implement the newly adopted Law “On Judiciary and Status of Judges” in order to unload the Supreme Court, to wit to gain efficiency and specialty of judicial process to fully protect rights of persons and strengthen the democracy and rule of law in Ukraine. In sum, Ukraine has to do the following tasks in order to make judiciary function better:  To resolve the issues of contradictory legislation;  To finalize the adoption of procedural codes;  To pass and enforce the subsequent laws;  To improve the judges’ training, finance the courts properly in order to eliminate the corruption among the judges.

156 Law of Ukraine “On judiciary and status of judges” ,07.07.2010 № 2453-VI 157 Art.347 of Criminal- Procedural Code of Ukraine , 28.12.1960 - 22 - Conclusion to Chapter II.

The reforms in judiciary, legislature have enhanced the democratic incentives and thus can be regarded as the major steps in the future Ukraine membership in the European Union, though they have not been completed yet. Only after the solving the problems of contradictory legislation, finalizing the adoption of procedural codes, passing and enforcement of the subsequent laws, improvement the judges’ training, the criteria of rule of law and democracy can be satisfied in the field of judiciary. The administrative reform must be held based on 1) the practical implementation of Law “On State Administration”, 2010; 2) the fixation of the division of powers between the state executive bodies and bodies of local self-government; 3) the creation of adequate work compensation for civil servants in order to eliminate the corruption; 4) the enhancing of accountability of state administrative bodies. Besides that, Ukraine has to involve public into the legislative processes to guarantee the right of legislative initiative as well as to enhance the transparency by increasing public control. The Laws enacted by the Supreme Council have to be coherent and non-conflicting with each other. Moreover, the law-enforcement mechanisms must be strengthened. The concepts of “rule of law” and “democracy” contemplate the free and fair elections as their indicators. Ukraine has passed along an extended way to comply with this criterion; however the changes in the election system have still to be conducted. Among the priorities – the adjustment of Law "On Elections of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Local Councils and Village, Settlement and City Mayors" to the administrative system; the enhance involvement of public into the election processes etc. Consequently, the Ukrainians have proven to adhere to democratic values, which remain the core issue in Europe. If the EU wants to maintain in its role as an important global player and see the impact of its ‘transforming power’, it will have to find forms of co -operation with Ukraine. The Orange Revolution resulted in the election of leadership more committed to common European values, and the European Neighborhood Policy and the EU-Ukraine action plan created a framework for the EU to be a more active and efficient player in promoting democracy in Ukraine.158

158 Solonenko I. “The European Union as Democracy Promoter: The Case of Ukraine”. Vol 5 - No 2 - 2005 // Europe As a Democracy Promoter - 23 - Chapter III. Protection of Human Rights and National Minorities in Ukraine

1. Legal framework of human rights protection in Ukraine

The level of human rights protection is the key characteristic of legal state which defines its place in the international arena. Ukraine, as a newly independent country, has to completely guarantee its citizens with all the universally recognized rights and freedoms in order to participate in the international community and, consequently, to become a fully legitimate member of the European Union. The Declaration of State Independence of Ukraine has proclaimed "the requirement of all- round maintenance of human rights and freedoms”159, the Constitution stipulates that a “human being, his or her life and health, honour and dignity, inviolability and security are recognized as the highest social value in Ukraine”160 while “citizens shall have equal constitutional rights and freedoms and shall be equal before the law”161. Notably, Chapter II of Ukrainian Constitution contains 48 articles concerning the rights and freedoms of human beings, which prior to the adoption of Lisbon Treaty could be estimated as the most extensive in Europe. In order to assess how Ukraine has fulfilled the Copenhagen political criteria in the field of human rights, it is necessary to consider the international documents regarding this issue ratified by the Supreme Council. Article 9 of the Constitution establishes a principle, providing for those international treaties that are in force, agreed to be binding by the Supreme Council, and are part of the national legislation of Ukraine. Implementation of this principle in practice means real incorporation of the rules of international law into the national legislation of Ukraine as well as their superior legal force over the national Laws. The Universal Declaration of Human Rights, 1948; European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953 together with 14 Protocols; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,1956; International Convention on the Elimination of All Forms of Racial Discrimination, 1965; International Covenant on Civil and Political Rights,1966; International Covenant on Economic, Social and Cultural Rights,1966; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968; Convention on the Elimination of All Forms of Discrimination against Women,1979; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,1984; Convention on the Rights of the Child, 1989; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987; European Social Charter, 1996; European Convention on the Exercise of Children's Rights, 1996; European Convention on Nationality, 1997; International Convention on the Rights of Persons with Disabilities, 2006; European Convention on Trans-frontier Television, 2009 are among the international legally –binding documents ratified by Ukraine to guarantee the protection of human rights within its territory. In fact, the general monitoring over fulfillment of the international treaties of Ukraine is carried out by the Ministry of Foreign Affairs of Ukraine and the Ministry of Justice of Ukraine.162 Serious work on adaptation of the current legislation to principles and norms of the international legislation is carried out. Complementary to the international human rights standards, Ukraine has adopted the national legislation to protect civil, political, social, economic and cultural rights and freedoms of its citizens. Hence, taking into account the focus on Copenhagen political requirements regarding human rights163, it must be admitted that Ukraine has adopted the Law “On Freedom of Conscience and Religious Organizations”, 23.04.1991; Law “On Social Protection of Disabled People in

159 Preamble, the Declaration of State Independence of Ukraine adopted by the Supreme Council on 16.07.1990 № 55- XII. 160 Constitution of Ukraine, 28.06.1996 161 Art. 21 – Constitution of Ukraine, 28.06.1996 162 Special Report of the Ukrainian Parliament Commissioner for Human Rights “The Status of Observance of the International Standards of Human Rights and Freedoms in Ukraine”, Kyiv: Ombudsmen in Ukraine, 2008. 163 See Chapter 1. (4. The issue of “human rights” in the meaning of Copenhagen political criteria) - 24 - Ukraine”, 21.03.1991; Law “On Prevention of HVI, Legal and Social Defense of HVI- People ”, 12.12.1991; Law “On National Minorities in Ukraine”, 25.06.1992; Law “On Mass-Media in Ukraine”, 16.11.1992; Law “On the Legal Status of Foreign Nationals and Stateless Persons”, 04.02.1994; Law “On Trade Unions, the Guarantees of Their Functioning”, 15.09.1999; Law “On Equal Opportunities of Women and Men”, 08.09.2005 and many others to exercise the constitutional guarantees. Positive step in the EU-Ukraine relations has been the adoption of the Law on “Execution of Judgments and Application of Case-Law of the European Court of Human Rights”, 23.02.2006. This Law provides for a comprehensive mechanism to enforce the judgments of the European Court of Human Rights through individual and general measures. To implement the Law, the government amended its own acts in May 2006 and introduced mandatory verification of draft legal acts considered by the government as to their compliance with the Convention and the case-law of European Court of Human Rights. But it will be an error to overestimate the first shifts in the right-defence sphere. Despite all the achievements in this sphere the situation of the person in Ukraine remains hard and unprotected. There are a lot of reasons and there are a great number of explanations of this fact which will be considered in turn.

2. Level of protection civil and political rights in the context of Copenhagen political criteria

In this sub-chapter, it is necessary to focus on the current level of Ukrainian guarantees of those civil and political rights determined by the Copenhagen-related documents, particularly on the freedom of expression and independence of the media; combating trafficking in human beings; combating police violence; problems related to pre-trial detention and situation in prisons; access to a lawyer; asylum and refugees; the establishment and effective functioning of an ombudsman’ s office.164

2.1. Torture, inhuman and degradation treatment of detainees by police Torture, according to the United Nations Convention Against Torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions”.165 According to the Ukrainian-American Human Rights Bureau, about 80 percent of detainees are subjected to torture to extract confessions. 166 The data of Kharkiv Institute for Social Research demonstrate that from 100 to 120 thousand people suffer from torture at law enforcement agencies.167 No wonder, the list of the EU-Ukraine Association Agenda priorities for 2010 underlines the combating of police violence as the pre-condition to enter the European Union. Article 29 of Constitution holds that “no one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law”.168 The other constitutional guarantee empowers the person to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-

164 See Chapter I ( 4. The issue of “human rights” in the meaning of Copenhagen political criteria). 165 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, 10 December 1984. 166 Bureau of Democracy, Human Rights, and Labour, 2008 Country Reports on Human Rights Practices, 25.02. 2009 167 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 168 Art.29 Constitution of Ukraine, 28.06.1996 - 25 - government, officials and officers.169 Apart from the Main Law, Article 127 of the Criminal Code concerning torture made it possible to charge state officials with this crime. Nevertheless, the reports of torture and other forms of unlawful violence by the police, some with a fatal outcome, have recently become more frequent. Thus, during 2010 there were about 50 reports on deaths as a result of police action (in 2009 – 21 reports). According to monitoring carried out by the Kharkiv Institute for Social Research and the Kharkiv Human Rights Protection Group, around 780-790 thousand people are estimated to have suffered from such violence in 2010 (in 2009 – 604 thousand people). The concerned practice is related to the beating detainees and prisoners170 as well as maltreatment and torture of detainees in police171. Hence, the statistic clearly demonstrates the crucial importance of taking the measures against the police violence in custodies in order to guarantee the persons their civil rights defined in international documents, Constitution and national Laws. According to the rulings of European Court of Human Rights, the two main reasons of police tortures and other forms of maltreatment are the absence of effective investigation by the office of public prosecutor (increasingly, the European Court finds a violation of procedural aspect of Article 3 concerning ineffective investigations172) and the lack of proper judicial control of the methods of inquiry and sufficient powers of courts for exclusion of evidence. The legislation flaws (law does not clearly prohibit statements made under torture from being introduced as evidence in court proceedings), detainees' lack of access to defense lawyers and doctors,173 un-adequate traineeships on gathering the evidence, the existence of a system of indicators and reporting, which makes police to browbeat detainees into confessions, may be also marked as the reasons of police violence. In fact, the criminal responsibility under Article 127 of Criminal Code of Ukraine on torturing is not usually the case when the police officers are the subjects of crime. Mostly, the prosecutors qualify the police violence as “the exceeding of professional duties” under Article 365 of Criminal Code. Thus, the formal substitution of crimes takes place which increases the police impunity and foster to continue the practice of torturing the detainees. One of the negative trends in the prevention of violence among Ukrainian police is the liquidation of Department for Human Rights Monitoring established in 2008 as "a new stage in relations between human rights organizations and the State174. There is an apparent incomprehension of this step taken by the Ministry of Interior Affaires, since it serves the opposite function delaying the fulfillment of Agenda priorities to comply with the Copenhagen political criteria. It can be assumed, that the situation regarding police violence will be improved with: 1) adoption at legislative level a strategy framework for creating a system of prevention and protection from torture and ill-treatment; 2) promoting the creation of effective mechanisms of public control over investigations into allegations of torture and ill-treatment;

169 Art.55 Constitution of Ukraine, 28.06.1996 170 The applicants were brutally beaten during training of a special unit of the Department of execution of the punishment and received no medical care afterwards. See original text on the official website of the Court: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=davydov&sessionid=59634 646&skin=hudoc-en. The same decision in Russian wording: http://hr-lawyers.org/index.php?id=1265741384. 171 http://maidan.org.ua/special/pk/ 172 Vergelsky v. Ukraine (No 19312/06, March 12, 2009); Lotarev v. Ukraine (No. 29447/04, April 8, 2010); Olexandr Mykhailovych Zakharkin v. Ukraine (No. 1727/04, June 24, 2010); Davydov and Others v. Ukraine (Nos. 17674/02 and 39081/02, July 1, 2010); Lohvynenko v. Ukraine (No. 13448/07, October 14, 2010); Petukhov v. Ukraine (No. 43 374 / 2002, October 21, 2010); Kovalchuk v. Ukraine (No. 21958/05, November 4, 2010); Samardak v. Ukraine (No. 43109/05, November 4, 2010). 173 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 174 100 днів нового керівництва МВС/ 100 days of new President. – Харків/ Kharkiv: Права людини/ Human Rights, 2010. – 100 с. Internet address: http://library.khpg.org/files/docs/1277206750.pdf - 26 - 3) consistent establishment of national preventive mechanisms.175 4) the enforcement of police criminal responsibility under the Article 127 (“Tortures”) instead of Article 365 (“Exceeding of professional duties”) of Criminal Code of Ukraine; 5) setting up the video-recording in the premises of police to eliminate the cases of human rights breaches; 6) making up the appropriate conditions for the citizens’ freedom of expression, composing a claim, grievances to the actions of law-enforcement bodies through the confidentiality of information about the person; 7) enhancing the supervision over the conformity of judicial orders and decisions; 8) deepening the cooperation among the three branches of power to exclude the unlawful seizure of power.

2.2. Pre-trial detention and situations in prisons in Ukraine

In Copenhagen-related documents, the improvement of the detention conditions for all prisoners is defined among the key-priorities in protection of human rights and freedoms. According to the Constitution, the detention must be made by a court ruling, and only as an exception without sanctions. The Law “On Pre-Trial Detention”, 30.06.1993 stipulates that pre-trial detention must be enforced conformably with the Constitution, Universal Declaration of Human Rights, International norms and standards in the sphere of detention and should not be combined with the deliberate actions aiming at physical or moral suffering or humiliation of human dignity.176 Similar provisions are included in the Criminal-Procedural and Criminal –Executive Codes of Ukraine. Notwithstanding the formal adherence to guaranteeing the rights of detainees, the conditions of pre-trial detention in Ukraine are quite poor, the fact being emphasized by the Agenda priorities, 2010. As such, the prison and detention center conditions generally did not meet international standards: overcrowding at detention facilities remained a problem, particularly in police temporary holding facilities; most of the temporary holding facilities of the Ministry of the Interior dated from the 19th century or earlier and were not equipped with adequate sanitary facilities, ventilation or exercise yards, thus the poor conditions in pretrial detention have exacerbated the problem of tuberculosis among prisoners; detainees are in practice deprived of writing complains because of censorship or discouragement by the prison officials.177 Although prison conditions remained unsatisfactory, they continued to improve slowly as a result of reforms in the penal system and the establishment of mobile monitoring groups, operation of Civil Society Councils on Human Rights (which have an advisory role and operate at national level and regional levels).178The Ministry of Interior’s Department on Human Rights Monitoring undertook monitoring of respect for human rights in the police force as well as conducting educational activities in this regard. A National Preventive Mechanism has yet to be established which was negotiated upon ratification by Ukraine of the Optional Protocol to the UN Convention against Torture in 2006. 179 Thus, despite the certain level of Ukrainian progress in the field of pre-trial detention, the ultimate conclusions on the enforcement of detainees’/prisoners rights are still early to make. In general, Ukraine is on the way to fulfill the requirements concerning the improvement of pre-trial detention.

175 Andriy Kristenko, legal expert of the Kharkiv Human Rights Group, Member of the Administrative Board of the Institute for Legal Research and Strategies. Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 176 Art. 1 of Law of Ukraine “On Pre-Trial Detention”, 30.06.1993 № 3352-XII 177 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 178 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 179 Ibid. - 27 - 2.3. Freedom of expression in Ukraine

International Covenant on Civil and Political Rights recognizes the right to freedom of expression as "the right to hold opinions without interference. Everyone shall have the right to freedom of expression."180 The right to freedom of expression is envisaged by the Constitution, Laws “On Access to Public Information”, 13.01.2011; “On Access to Judicial Decisions”, 16.04.2009; “On Basics of Development the Information Society in Ukraine during 2007-2015”, 09.01.2007; “On Protection of Public Morality”, 20.11.2003 etc. Respectively, individuals could criticize the government publicly and privately without reprisal and the government doesn’t have to impede such criticism. According to the data of NGO’s, Ukraine’s media sector is mostly free at the national level, but local and regional sectors still lack independence and need restructuring. The launch of the 2010 presidential election campaign brought into focus widespread and growing corruption in media as indicated by a large number of “written-to-order,” biased stories on political competitors. A lack of political will continues to prevent the creation of public television.181 Both the independent and government‑owned media continued to demonstrate a tendency toward self‑censorship on matters that the government deemed sensitive. Although private newspapers are free to function on a purely commercial basis, they often depended on political patrons who could facilitate financial support from the State Press Support Fund and received close scrutiny from government officials, particularly at the local level.182 Besides that, the implementation of The European Convention on Trans-frontier Television which entered into force in 2009 is still in its initial stage. No effective steps were taken to establish a public service broadcaster in line with international standards. It is worth mentioning, that some negative trends in the enforcing the right to freedom of expression have occurred, namely the adoption of Law “ On Personal Data Protection”, 2011 and preparation of Law “ Journalism Code”, 2010. The Law “On Personal Data Protection” determines that the law does not apply to the activity of journalist on creation and processing of personal databases. But it applies to the full concerning rules of personal data distribution of the person absent from any databases or present in databases, for example state-owned. Is also applies to the full to mass media. Thus, in practice it means that starting from the day of this Law coming into force it prohibits mass media distribution for any personal data of a person without his/her consent if he/she does not belong to the first category of state employees. The draft Law “Journalism Code” contains provisions which fail to protect the rights of journalists in basic respects as it makes a mockery of the concept of freedom of expression, and instead creates a legal framework for censorship to be practiced in the Ukrainian media183. Thus, to comply with the Copenhagen political criteria, the former draft law has to be re-considered. In order to improve the right to freedom of expression in Ukraine, the following measures can be taken:  to prohibit the sponsorship for the news on the level of law;  to provide fast and transparent investigation of all the declarations concerning facts of violence and death of journalists and also in cases of preventing them from journalistic activity.184  to adjust Laws “On Journalism Code ”, “On Personal Data Protection” in correspondence to international standards;

180 International Covenant on Civil and Political Rights, 16 December 1966, entered into force on 23 March 1976, ratified by 152 states as of 9 June 2004. 999 UNTS 171. 181 Oleksandr Sushko and Olena Prystayko, “Ukraine, Nations in Transit ,2010 182 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 183 Rudzitsky A . Media in Ukraine: An Overview of current obstacles to media freedom and independence , 2010 184 Volodymyr Yavorskyy, UHHRU Executive Director. Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009- 2010”, 2011 - 28 - Hence, the close look into the practical guaranteeing of the right to freedom of expression showed some inconsistencies with the international and European standards. Ukraine has to further promote the inviolable right to express the thoughts freely without political pressure.

2.4. Current stage of combating the trafficking of human beings

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children attached to the United Nations Convention against Transnational Organized Crime 185 defines human trafficking as: [...] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.186 According to the data of NGO’s, Ukraine continued to be a major source of men, women and children trafficked abroad, despite government efforts to address the problem. Germany, Spain and Poland remain the main EU destination countries for trafficking networks alongside Russia, Turkey, Israel, Lebanon and the United Arab Emirates.187 Approval of the draft concept of the Law of Ukraine “About fighting against trafficking in persons”, ratification of CE Convention about fighting against trafficking in persons, preliminaries for the new program of counteraction to trafficking in persons, re-approval of the order about creation of the Council of Experts for consideration of complaints about sex discrimination are among the measures taken by Ukraine to deal with the problem. Moreover, there is a criminal responsibility for trafficking of people prescribed by the Art. 149 of Criminal Code, as well as in 2007 the Cabinet of Ministers of Ukraine approved the Government Program of Counteraction to Trafficking in persons which had lasted until 2010. Ukraine continues cooperation with civil society and international organizations to tackle trafficking. It cooperates closely with EU Member States and Interpol on personnel and technical information exchanges, funds a television-based awareness campaign. A Strategic Agreement with Europol was signed in December 2009. Despite the positive steps toward combating trafficking, there are still flaws in the measures taken. Particularly, Ukraine didn’t ratify the Council of Europe Convention on Action against Trafficking in Human Beings; the new program of counteraction to trafficking in persons up to 2015 has not been signed yet. Further attention is needed to combat trafficking and to develop prevention, protection and rehabilitation measures in an integrated manner in cooperation with civil society.188 The necessary steps in trafficking-in-persons can be assessed as follows: 1) to work out indemnification system for the victims of trafficking; 2) the effective strategy of control of trafficking in persons should combine legal measures and law- enforcement activity with prevention, coordination and aid to the victims; 3) to design and implement indicators representing the domestic distribution of trafficking in persons, database the statistics of victims;

185 "Convention on Transnational Organized Crime". Unodc.org. Retrieved 2011-03-22. 186 "United Nations Convention against Transnational Organized Crime", Annex II, Section I, Article 3 (pg. 42–43). Retrieved on 15 June 2010. 187 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 188 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 - 29 - 4) to improve cooperation and coordination of efforts of government and public concerning trafficking in persons, at local, regional, national, and international levels.189 Hence, combating trafficking of human beings is among the key-priorities for Ukraine affirmed by the international obligations taken by the country in order to solve the problem.

2.5. Right to defense in Ukrainian legal system

2.5.1. Access to a lawyer

The law stipulates that a defense attorney must be provided without charge to an indigent detainee from the moment of detention or the filing of charges, whichever comes first. However, in practice this often did not occur, which, legal observers said provided police time to coerce confessions. Thus, numerous problems related to the right to defense are still waiting to be resolved. They are caused, on the one hand, by an obsolete procedural legislation, and by virtual non- existence of pro bono legal services system, on the other. Noteworthy, the violations of right to defense are characteristic by the manipulating charge to deny the right to mandatory defense190; inaccessibility of defense attorneys at the beginning of investigation191; right to choose an attorney 192.The problem also arises when the attorneys often refused to defend indigents for the low payments the government provided.193 The European Court of Human Rights pays more and more attention to this issue. Alongside with decisions of the European Court, which established some violations of the right to defense, the cases, transferred to the Ukrainian Government for communication, confirm the seriousness of the problem. In view of the European Court of Human Rights’ judgments, that revealed a systemic problem, i.e. violation of right to defense in criminal proceedings, and also in anticipating the decisions on the cases submitted to the Government. The draft Law “On Free Legal Aid” was passed in the first Parliamentary hearing, which is a considerable step towards the guaranteeing the right to defense. Besides the adoption of the Law “On Free Legal Aid”, it seems vital for Ukraine to destroy any waive of legal assistance, claimed in the absence of an attorney together with the Amendment of the entrapment concept, taking into consideration the practice of the European Court of Human Rights.194

2.5.2. Functioning of Ombudsman

An important element of the constitutional system of parliamentary control over the observance of constitutional human and citizens’ rights and freedoms, including implementation of international standards in this field, was the establishment of the position of the Ukrainian Parliament Commissioner for Human Rights (Ombudsman) according to Article 101 of the Constitution of Ukraine. Hence, everyone has the right to appeal for the protection of his or her rights to the Ukrainian Parliament Commissioner for Human Rights which are envisaged both in Constitution and the Law “On Ukrainian Parliament Commissioner for Human Rights”, 23.12.1997. The ombudsman is authorized to deliver constitutional application to Constitutional Court of

189 The experts of the International Women’s Rights Center La Strada Ukraine; gen. ed. by K. Levchenko 190 Balystky v. Ukraine, application no. 12793/03; Bortnik v. Ukraine, application no. 39582/0426; 191 Bondarenko v. Ukraine, application no. 27892/05; Zadorozhny v. Ukraine, application no. 37949/05; Bandaletov v. Ukraine, application no. 23180/06; Nechyporuk and Yonkalo v. Ukraine, application no. 42310/04; Pascal v. Ukraine, application no. 24652/04 and Тodorov v. Ukraine, application no. 16717/05; Vasylenko v. Ukraine, application no. 36136/05; Przhevalskyy v. Ukraine, application no. 12203/04 192 Zagorodniy v. Ukraine, application no. 27004/06; Iglin v. Ukraine, application no. 39908/05 and Dovzhenko v. Ukraine, application no. 36650/03 193 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 194 Ardadiy Buschcnenko, attorney, Head of UHHRU Board, Volodymyr Yavorsky, UHHRU Executive Director, Gennady Tokarev, attorney, expert of the Free legal assistance offices in Ukraine. Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 - 30 - Ukraine and application to state bodies, bodies of local self-government, legal entities in case of breach the rights and freedoms guaranteed by Constitution, Laws or International Treaties.195 Remarkably, the Ombudsman doesn’t have the duty to oversee on the exercising the equal rights and opportunities for women and men, thus the present Law shall introduce amendments to Article 13 of the Law of Ukraine “On Ukrainian Parliament Commissioner for Human Rights” conferring the right to carry out oversight of how equal rights and opportunities for women and men are ensured.196 Concerning the gaps in functioning of the Ukrainian Parliament Commissioner for Human Rights, it can be mentioned that the human rights organizations criticized the office of the human rights ombudsman for inadequate responses to claims of human rights violations and for not cooperating with human rights groups. The president issued a decree to establish a presidential representative on human rights and individual freedoms at the presidential secretariat. Critics expressed doubt about its independence because it will not include NGO participation and as of the end of the year, no appointments had been made.197 Consequently, the functioning of Ombudsmen in Ukraine should be improved by the legislative amendments and public participation, so that the guarantees to address the Ombudsman in case of breach the rights and freedoms of human beings can be enforced in practice.

2.6. Ukraine’s legal attitude towards refugees

The Copenhagen-related documents clearly demonstrate the necessity to have developed legislation and practical enforcement of the refugees rights within the territory of potential candidate country. Under the United Nations Convention Relating to the Status of Refugees of 1951, a refugee is regarded as a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country". 198 In Ukraine, the legal background of the refugees rights is enshrined in the Constitution, international agreements e.g. European Union-Ukraine readmission agreement, 2010; the Law “On Refugees”, 21.06.2001 and secondary legislation e.g. in a Presidential Decree, 2006 which established mechanisms allowing any foreign national residing legally in the country to register their child born in Ukraine as a Ukrainian citizen within three months of submission of an application. The law provides for the granting of asylum or refugee status in accordance with the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol, and the government has established a system for providing protection to refugees. The government provides temporary protection for up to one year to persons who may not qualify as refugees under the 1951 convention and the 1967 protocol. Apart from temporary protection, the government provides some protection against refoulement, the return of persons to a country when there is reason to believe they feared persecution. In practice, however, the lack of a clearly defined asylum authority after the reorganization of the State Committee for Nationalities and Migration into the State Committee of Nationalities and Religion (SCNR) in November 2006 impedes the granting of asylum and refugee status. A number of cases of violations of the rights of refugees and asylum-seekers were reported, including instances of forced deportation and denial of access to asylum seekers by NGO’s

195 Art.15 Law of Ukraine “Ukrainian Parliament Commissioner for Human Rights”, 23.12.1997. 196 Law of Ukraine “On Amendments to Some Legislative Documents of Ukraine in Connection with the Adoption of the Law of Ukraine ‘On Ensuring Equal Rights and Opportunities for Women and Men”, 15.04.2008 № 274-VI 197 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 198 Convention relating to the Status of Refugees, adopted on 28 July 1951, entered into force on 22 April 1954. 189 U.N.T.S. 150

- 31 - representatives.199 It is worth underlining that the human rights organizations note that, although the Law “On Refugees” has some provisions for asylum seekers, there was no state migration policy and five government agencies are responsible for migration, including the Ministry of Justice, the Ministry of Labor and Social Policy, the Ministry of Foreign Affairs, the and State Border Guard Service. This situation resulted in refusals to grant refugee status at various stages of the process, and corruption. The International Organization for Migration expressed concern about the lack of transparency in the process of returning migrants to their country of origin.200 Moreover, human rights groups noted the current Law “On Refugees” does not provide for protection for war refugees, victims of indiscriminate violence, and failed asylum seekers who could face the threat of torture, or loss of life or freedom, if deported. The European Union-Ukraine readmission agreement that provides for the return of third- country nationals who enter the EU from Ukraine came into force in January 2010, but implementing protocols has not yet gone into effect at this writing. As a consequence, asylum seekers with pending cases, or those in the process of appealing refugee status rejections, remain vulnerable to arbitrary detention, police harassment, and extortion. NGO’s on human rights protection issued a memorandum on the situation of asylum seekers in Ukraine in which it stated that the it is strongly advised states contemplating returns of third- country asylum seekers to Ukraine to refrain from doing so, as no assurances could be given that the asylum seekers would be readmitted, would have access to a fair and efficient refugee status determination procedure, would be treated in accordance with international refugee standards or that there would be effective protection against refoulement.201 Hence, the current level of respect of the refugees’ rights has to be increased in order to fulfill the Copenhagen criteria concerning the rights and freedoms of human beings.

3. Economic, social and cultural rights guaranteed by Ukraine

In this sub-chapter, the analysis of the economic, social and cultural rights guaranteed by Ukraine will be assessed in regards to the requirements of Copenhagen political criteria, namely: rights of trade unions; gender equality; integration of the disabled and socially vulnerable people’ s rights; right to strike; child protection; social security rights.202

3.1. Social-security rights

The Constitution declares Ukraine as social state. According to article 43, the State creates conditions for citizens to fully realize their right to labour, guarantees equal opportunities in the choice of profession and of types of labour activity, implements programmes of vocational education, training and retraining of personnel according to the needs of society.203 Art. 46 holds that citizens have the right to social protection that includes the right to provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control and also in old age, and in other cases established by law. This right is guaranteed by general mandatory state social insurance on account of the insurance payments of citizens, enterprises, institutions and organizations, and also from budgetary and other sources of social security; by the establishment of a network of state, communal and private institutions to care for persons incapable of work. Moreover, the pensions and other types of social

199 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 200 Bureau of Democracy, Human Rights, and Labor. Country Reports on Human Rights Practices – 2006. 06.03. 2007 201 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 202 D. Kochenov, “Why the promotion of Acquis is not the same as the promotion of democracy and what can be done in order to also promote democracy instead of just promoting the Acquis”. European Law, 2006 203 Art.43, Constitution of Ukraine, 28.06.1996 - 32 - payments and assistance that are the principal sources of subsistence shall ensure a standard of living not lower than the minimum living standard established by law.204 But the current economic situation in Ukraine, the lack of balance and not sufficient development of the present system of social protection do not allow making the entire enforcement of social-security rights a reality. The majority of constitutional social standards remain mere declarations because of and non effectiveness of current mechanisms for social protection, leveling character and non correspondence with the real needs of Ukrainian society of the current social protection and social security system and also due to non effectiveness and non transparency of the system for budget financing of state social payments.205 A considerable problem in implementing of the constitutional right to social protection and other social rights of citizens is an absence of the unique codified act. Instead, the bulk of Soviet Union’s secondary legislation (Regulations, Norms, and Standards etc.) enforced by Ukraine is operated in social security sphere which places the citizens in apparent disadvantage in comparison to EU because of its obsolescence. In addition to the absence of unified codified act, the serious problem is the implementation of international legal commitments of Ukraine in national legislation. In most cases the laws on ratification of international agreements are adopted without simultaneous amendments to the laws of Ukraine, adoption of new or cancellation of valid laws not corresponding to the international commitments of the state. In Ukraine there is still in use such an index as “a guaranteed level of subsistence minimum” which contradicts Ukrainian legislation, illegally restricts the level of social assistance payments as well as serves as un-proportionate indicator of poverty level in the country. In fact, the issue of poverty remains one of the crucial problems to be solved in the nearest future to seek for membership in European Union. There have been elaborated and implemented certain measures to overcome and prevent poverty among the population. It is proved by a range of legal documents adopted by the Supreme Council of Ukraine and the Cabinet of Ministers of Ukraine. One of them is the long-term Poverty Reduction Strategy (approved by the Decree of the President of Ukraine dated August 15, 2001 р. № 637) determining principal directions of politics of struggle against poverty by means of the creation of economic and legal conditions for raising household incomes; enhanced economic activity of working citizens; enhanced efficiency of social assistance by reforming the social security system.206 All the above mentioned proves actuality and severity of the poverty issue, the Decree of the President of Ukraine “On Urgent Measures to Overcome Poverty” № 274/2010 dated February 26, 2010 is an official recognition of it. To implement this Decree, the Draft Law of Ukraine “On Adoption of the State Poverty Reduction and Prevention Program 2010-2015 in Ukraine” has been elaborated. Among goals of this Program are the following: to develop a system of measures aimed at poverty reduction, overcoming chronic poverty, poverty among those who work and among households with children, in particular, with many children. In regards the pensions, it can be mentioned that the rate of substitutability, i.e. the relation of average pension to average wages, according to the norms of the International Organization of Labor should be no less than 55%. For the last several years the rate in Ukraine was increasing in general and reached for example in 2009 49 %. To compare: in Italy and Spain it is 90 %, in Sweden and Germany – 65, in France, Japan and The USA – 50%. In other words, although Ukraine has a lower rate index, but it is absolutely comparable to other’s rate.207

204 Art.46, Constitution of Ukraine, 28.06.1996 205 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 206 Syvak A. D. “Realities and perspectives to overcome poverty in Ukraine//Centre for Perspective Social Research http://cpsr.org.ua/index.php?option=com_content&view=article&id=108:2010-06-24-05-27-39&catid=26:2010-06-13- 21-43-34&Itemid=31 207 Pension reform through the eyes of an interested party. Koval O. // Dzerkalo tyzhnia (Дзеркало тижня) № 33 (813) September 11 — 17, 2010 http://www.dt.ua/2000/2650/70348/ - 33 - Consequently, there is a strong necessity to adopt the unified code which will incorporate the social-security rights, freedoms and set out the procedure of their enforcement; to remove the obsolete Soviet Union legislation adopting the new Laws on social protection; to practically exercise the State Poverty Reduction and Prevention Program 2010-2015; to enhance the coherence of state social measures by allowing public to monitor them.

3.1.1. Right to medical care in respect to socially vulnerable people (HIV-positive people)

Ukraine has one of the fastest growing HIV/AIDS epidemics in the world. 208Experts estimated in August 2010 that 1.3 percent of the adult population of Ukraine was infected with HIV, the highest in all of Europe.209 Hence, it is vital importance to assess the measures Ukraine takes in order to protect the rights of HIV positive people. The Constitution of Ukraine guarantees all Ukrainian citizens right to medical care, including the right to accessible health care and right to receive adequate medical help.210 According to the reports of NGOs, there are widespread violations of the right which include failure to inform persons who were voluntarily hospitalized, of the overall duration of their stay; failure to inform patients of their diagnosis or what medications they were given; lack of knowledge concerning patients' rights in psychiatric hospitals; humiliation by hospital staff; and violation of patients' rights to free medical assistance. 211 Apart from the claimed violations of the right to medical care, the critical situation is observed in the sphere of HIV-positive people’s protection. The HIV infection rate among adult Ukrainian population is one of the highest in Europe. Under the criteria, formulated by World Health Organization, the HIV/AIDS spread in Ukraine is classified as concentrated epidemics.212 The Law “On Prevention of HIV, Legal and Social Defense of HIV- Positive People”, 12.12.1991 serves a low state guarantee to cope with high level of HIV within the territory of the country as well as to protect HVI-positive people. Main challenges, encountered in medical institutions by people living with HIV can be stated as follows: - violation of voluntary HIV testing – right to freely make decisions on HIV testing and further treatment; -economic constraints– some medical institutions demand payment for their services and extort money from the patients; - discrimination – people living with HIV are limited in their access to medical care; they are often refused admittance to medical institutions, surgical interventions, and dental services; cannot obtain information concerning their condition. Hence, the significant measures to prevent the spread of HIV infection and to guarantee the HIV- positive people their rights should be taken, such as the prescribing the civil/administrative/ labour liability for the breach of rights of HIV-positive people by medical institutions or employers; enhancing the protection of HIV-positive people by updating the current Law “On Prevention of HIV, Legal and Social Defense of HIV- Positive People”; initiating the system of checks and control over the medical intuitions by law-enforcement bodies, in order to reach the high social standards of European Union.

208 HIV/AIDS menaces progress in Ukraine, UNICEF (11 May 2004); Ukraine: End Human Rights Abuses Fueling HIV/AIDS; Human Rights Watch. 23 October 2006 ^ Elton John gives AIDS charity concert in Ukraine, independent.co.uk .18 June 2007 209 HIV infection rate, lack of spending worry Ukraine public health professionals, Kyiv Post, 10 August 2010. 210 Art.49, Constitution of Ukraine, 28.06.1996 211 Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices 2007: Ukraine, March 11, 2008 212 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 - 34 - 3.2. Enforcement of the other social, economic and cultural rights prescribed in Copenhagen political requirements

The Copenhagen-related documents underline the necessity to guarantee children rights by the state that seeks the membership in European Union. According to the Ukrainian legislation children reach their full-age at 18. Since this age they possess all civil rights: vote at elections, commit any transactions, contract marriage without parents’ permission. Juvenile labor is under legislation ban in Ukraine. However, children 16-18 years old have right to be employed, but only if they provide him/her with such conditions as shortened working day and annual vacation longer than usual according to the Code of Labour Laws, 1971. Juvenile labor at hard, dangerous and harmful factories is banned. Employers breaking this norm are the subject to criminal responsibility Considerable progress was made on children’s rights with the adoption by the Supreme Council in March 009 of a National Plan of Action for Children to Implement the UN Convention on the Rights of the Child 2010 – 2016 and of an implementing programme by the Cabinet of Ministers.213 Free school education is provided free to children under the Constitution of Ukraine, regardless citizenship and parents’ income. 214 The Law of Ukraine “On Higher Education”, 17.01.2002 stipulates the right to higher education which can be exercised in two forms – state and private. Remarkably, there are some recent threats to the right of higher education by the announcement of educational reform concerning the preparatory courses and the possibility of entrance exams to higher educational institutions along the old grounds which mean an effective cancellation of independent external assessment, the loss of equal access to higher education and a restoration of the corruption in higher education.215 The equality of men and women and the right to strike are also underlined in the Copenhagen-related documents. Labour laws establish the legal equality of men and women, including equal pay for equal work. However, industries dominated by female workers had the lowest relative wages and were the ones most likely to be affected by wage arrears. The Code of Labour Laws sets the retirement age for women at 55 and for men at 60. Women also received lower salaries and had limited opportunity for career advancement. Few women held top managerial positions in the government or in state- owned or private industry.216 The important economic guarantee is the right to strike for the protection of economic and social interests envisaged by article 44 of Constitution. The enforcement of the right is restricted by the law which determines the necessity of state security, health protection, and protection of rights and freedoms of other people as the conditions to constrain the right. This provision can be interpreted as “the political strikes are prohibited”. The problem arises since the state property exists in Ukraine, thus the political strikes are unavoidable and Ukraine has left no guarantee for its citizens working for the state (e.g. teachers, doctors, minors etc.) to protects their interests via exercising the right to strike.217 Therefore, Ukraine has prescribed the essential guarantees for the protection of children, respect of gender equality, right to education, right to strike, however the measures to improve the certain legal flaws have to be taken.

213 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 214 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 215 Ibid. 216 Ibid. 217 Zacharov E., Rechitskiy V.“The Human Rights in Constituion of Ukraine”, 15.05.04 - 35 - 4. Protection of national minorities as the key component of Copenhagen political criteria

Ensuring respect for the rights of persons belonging to minorities is the essential pre- condition to enter the European Union as it is stated in all the Copenhagen-related documents. As it is assessed earlier, the European Commission has had a dualistic approach towards the meaning of the rights of the national minorities imposing extra obligations on the former candidate countries Latvia and Estonia.218 In regards to Ukraine, the List of the EU-Ukraine Association Agenda priorities for 2010 stipulates its necessity to eliminate discrimination, to develop “modern legal framework” based on the international and European standards as well as to foster dialogue and cooperation with the national minorities.219 Based on the analysis of EU requirements to be fulfilled by Ukraine, it is possible to refer Ukraine to the first group of countries that had to exercise the general obligations, particularity to respect and support for minority cultures, to introduce of education in minority, to guarantee the usage of languages by the national minority and, in some cases, cultural autonomy.

4.1. Meaning of “national minorities” in Ukraine

In order to assess the current level of national minorities’ protection, it is important, at first, to define what is meant by “national minority” in the context of Ukraine. Ukraine has not established a list of national minorities. The State implies that all 130 “nationalities” residing in Ukraine which constitute 27.3 % of all the population220, except the Ukrainians belong to national minorities. Interestingly, the State Report of Ukraine to Council of Europe, 2002 employs the term “ethnographic (sub-ethnic) groups of the Ukrainian people” - a term that is not defined in any legislation pertaining to national minorities - to describe e.g. the Boikos, Hutsuls and Rusyns, without giving comprehensive information on their situation and without indicating whether it considers those persons belonging to national minorities.221 Rusyns have made extensive efforts to obtain from the Government a fuller recognition of, and support for, their specific identity. Despite the including of Rusyns as separate category to the census of December 2001222, Rusyns and the other seven “sub-ethnic groups” were not considered a separate “nationality” category in the census but a part of the Ukrainian “nationality” Hence, according to 2001 Census of Ukraine, the number of the people who identify themselves as Russians is 8.334.100 with a percentage of 17.58.223 , who are the largest national minority living predominantly in the south and east of the country. The areas with high Russian population are the city of Sevastopol (71.6%), the Autonomous Republic of Crimea (58.3%), Donetsk Oblast (50.8%), Dnepropetrovsk (52.9%) and Luhansk Oblast (61.1%)224 Smaller national minorities include: Belarusians (275,800/0.6%), Moldovans (258,600/0.5%), Crimean Tatars (248.200/05%), Bulgarians 204,600/0.4%), Romanians (157,000/0.3%) and Jews (103,600/02%).

4.2.Overview of Ukrainian legal framework on national minorities

There are several documents regarding to the minorities in Ukraine. The Constitution in the Articles 11, 24 and 92 envisages the legal status of national minorities. Article 11 proclaims that the

218 See Chapter I. (1.4.4. The issue of “human rights” in the meaning of Copenhagen political criteria). 219 P.7, List of the EU-Ukraine Association Agenda priorities for 2010, Agreed by the Joint Committee at Senior Official’s Level of EU-Ukraine Association Agenda. 26.02. 2010 220 According to the 2001 Census of Ukraine. 221 Advisory Committee on the Framework Convention for the Protection of National Minorities. Opinion of Ukraine. 2002 222 Ukrainian Republic has only one census after the last Soviet Census in 1989. 223 http://www.ukrcensus.gov.ua/rus/results/general/nationality 224 Minorities at Risk (MAR) Project, University of Maryland, 2004, http://www.cidcm.umd.edu/mar/assessment.asp?groupId=36902 - 36 - state guarantees “ethnic, cultural, language and religious development of Ukraine’s indigenous peoples and national minorities”225. Article 24 prohibits race, ethnic, nationality, language etc. discrimination. “There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics”226. Article 92 proclaims that the human and citizens’ rights and freedoms of indigenous peoples and national minorities are defined exclusively by the laws of Ukraine. Together with Constitution, the Declaration of the Rights of Nationalities of Ukraine, 1991 deals with the guarantees for national minorities. Article 1 of Ukraine’s Declaration of Nationality Rights guarantees equal rights for the nationalities and forbids discrimination based on nationality. Article 2 says that the state takes on itself the creation of circumstances necessary for development of language and culture of national minorities. Article 4 permits the use of national symbols.227 In addition, Ukraine has joined the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages in order to guarantee the rights of people belonging to national minorities. Another key document, The Law of Ukraine “On National Minorities”, 25.06.1992 declares that human rights and nationality rights are inseparable notions. Article 1 of the Law admits citizens to be equal irrespective of their nationality, and status that the rights of people belonging to national minorities are part of generally accepted human rights. Article 3 says: “Those citizens of Ukraine who are not of Ukrainian nationality and declare their national identity, belong to national minorities”.228 Article 11 makes it possible for the citizens to freely choose their nationality or its re-establishment. The Law forbids discrimination on a nationality basis, provides the right of nominating candidates for Parliament and for national organizations, and states that separate sums of money are allocated in the state budget for developing the national minorities.229 The Criminal Code of Ukraine in Article 161 prescribes sentencing enhancements for violent crimes where racial, national, ethnic, or religious hatred is an aggravating circumstance. The Law “On Printed Mass Communication Media”, 16.11.1992 allows for the suspension of publications for inciting ethnic hostility. Hence, there is an extensive legal basis for the guaranteeing the rights of persons belonging to national minorities by Ukraine. The practical enforcement of the legal provisions by the Ukrainian authorities will be considered in turn.

4.3. Protection of national minorities in EU context: steps to and back. According to current Law “On National Minorities in Ukraine”, Law “On Languages ”, 28.10.1989, Law “On Education”, 23.05.1991, there are the following guarantees of the national minorities rights in regards the non-discrimination: the multiculturalism and mutual respect among ethnic groups is one of the bases of the educational system; the right to use the surnames and first names in a minority language and the right of official recognition of them; the right to use of certain minority languages, such as Russian, Hungarian and Romanian; 230 the right to receive instruction in their language or to study their language; the right of persons belonging to national minorities to participate in public affairs.231 In addition, the establishment of the new post of special ambassador to combat racism, xenophobia, and discrimination as well as the set up of the Council of Representatives of Public Organisations of National Minorities by the President of Ukraine is the essential achievement of Ukraine to enhance the protection of national minorities. Ukraine tries to give increased attention to the situation of persons belonging to the group of previously deported on the basis of their ethnic origin. For the purpose of legal maintenance of

225 Art.11 of Constitution of Ukraine, 28.06.1996. 226 The Constitution of Ukraine, p. 12. 227 Law of Ukraine № 2494-XII “On National Minorities”, 25.06.1992 228 Ibid. 229 Arts.14, 18 of Law of Ukraine “On National Minorities”, 25.06.1992 230It is accepted in contacts with administrative authorities in a number of municipalities inhabited by a substantial number of persons belonging to the national minorities concerned. 231 Law “On National Minorities In Ukraine”, Law “On Languages ”, 28.10.1989, Law “On Education”, 23.05.1991 - 37 - the process of their repatriation the State Committee of Ukraine on Nationalities and Religions has elaborated a new wording of the Law of Ukraine “On Restoration of Rights of Persons Formerly Deported on the basis of Ethnic Origin” which defines the status of these persons, establishes the state guarantees of the renewal of their rights, principles of public policy and powers of the governmental bodies and local authorities in relation to the renewal of the rights of this category of citizens.232 Furthermore, Ukraine has taken obligation to comply with the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages while ensuring non-discrimination. The Report of Advisory Committee on the Framework Convention for the Protection of National Minorities (further- Report) claims that its implementation has not been fully successful as regards Crimean Tatars, Roma and other formerly deported people in terms of their participation in cultural, social and economic life and in public affairs.233 Particularly, Crimean Tatars and Roma face discrimination and problems with integrating into society, including lack of education in their native language, employment and housing .234 Social intolerance is greater toward Roma than toward any other ethnic group.235 A groundless detention and conducting of the personal search, bringing over to district police departments and detainment there for an ungroundedly long time, searches of homes and cars, copying of information from cell phones and dactyloscopy, collecting information on persons’ ethnicity – these are the measures of «prevention» that the police have been widely practicing towards Roma with no regard to the law that directly forbids conducting such procedures of coercion without the appropriate grounds.236 Another issue arises with the enforcement of the Law “On National Minorities”. The Law applies only to citizens of Ukraine putting the limitations on persons belonging to national minorities in exercising their rights (e.g. freedom of expression, right to use the language of national minority orally and in writing etc.) and, moreover, it doesn’t take into consideration the difficulties that the formerly deported people have had in obtaining the citizenship of Ukraine. The reasonable solution is to consider the inclusion of persons belonging to these groups, including non-citizens as appropriate under the state protection as well as involve them into consultation process. Separatist and secessionist movements237 that are based on ethnic or racial cleavages,238 racial profiling, and non-violent harassment by police, and hate crimes against ethnic minorities continue to be a serious concern. Although is punishable by Article 161 of the Criminal Code, the prosecutors preferred to deal with ethnically-motivated crimes by calling them hooliganism or other simpler offenses in order to press charges. There are no detailed and comprehensive civil and/or administrative law provisions pertaining to discrimination in specific fields. Thus, it would be desirable to develop such legislation in order to protect, in a comprehensive manner, individuals from discrimination by both public authorities and private entities. Therefore, the essential changes into the Ukrainian legislation such as the prescribing civil/ administrative liability for the discrimination of national minorities; enactment of the new Law “On

232 Activities of the State Committee of Ukraine on Nationalities and Religions on the Protection of National Minorities’ Rights. Delegation of Ukraine. HDIM.DEL/116/08 1 October 2008 233 Report of Advisory Committee on the Framework Convention for the Protection of National Minorities. Opinion of Ukraine, 2002 234 Human Rights Watch. World Report 2011: Ukraine. January 2011 235 United States Department of State, Bureau of Democracy, Human Rights and Labour, Country Report on Human Rights Practices 2005: Ukraine, http://www.state.gov/g/drl/rls/hrrpt/2005/61682.htm 236 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 237 The author means frequent pro-Russian calls in Crimea peninsula. 238 Doh Shin. 'On the Third Wave of Democratization'. Worhi Politk.%. Vol.47, No. I (1994), pp.1.15-69. For a reviewof" the literature on post-consolidation regime paths and a comprehensive typology of democratic regime types see l,eonardo Morlino. 'Democratic Consolidation and Convergence in Southern Europe: The Italian Case', Democratization, Vol.3, N0.3(1996). pp. 189-2 M.

- 38 - National Minorities” which will envisage the protection of non-citizens; enhancing cooperation with the representatives of national minorities and national/local authorities, should be made in order to guarantee the protection of minorities within its territory to comply with the international and European standards and, consequently, to seek for the membership in the European Union.

- 39 - Conclusion to Chapter III.

Since 20 years of independence, Ukraine has exercised considerable work to comply with the international and European standards in the field of human rights protection by constitutionally guaranteeing the enforcement of civil, political, social, economic and cultural rights; by ratifying the International Documents dealing with the protection of human rights (e.g. the Universal Declaration of Human Rights,1948; European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953; International Covenant on Civil and Political Rights,1966; International Covenant on Economic, Social and Cultural Rights etc.) as well as granting them supremacy over the national legislation; and, by passing a significant amount of primary and secondary legislation on the issue. Though, despite the Ukraine’s affords to entire guarantee the respect of human rights and freedoms, there are severe flaws and irregularities which impede its compliance with the Copenhagen political criteria. The current level of enforcement the civil and political rights remains a serious concern. The adoption at legislative level a strategy framework for creating a system of prevention and protection from torture and ill-treatment; promoting the creation of effective mechanisms of public control over investigations into allegations of torture and ill-treatment; consistent establishment of national preventive mechanisms239; making up the appropriate conditions for the citizens’ freedom of expression, composing a claim, grievances to the actions of law-enforcement bodies through the confidentiality of information about the person; deepening the cooperation among the three branches of power to exclude the unlawful seizure of power; amending the migration laws regarding the asylum- seekers; adoption of Law “On Free Legal Aid”; enhancing cooperation of Ombudsman with the public organization are among the key priorities necessary to put into practice by Ukraine. Unfortunately, Ukraine is still far enough from the conditions under which everyone could implement their socio-economic rights in full. European standards in the field of socio-economic rights provision remain inaccessible for Ukraine so far. The adoption of the unified code which will incorporate the social-security rights, freedoms and set out the procedure of their enforcement along with the adoption of the new laws on social protection; the removal of the obsolete Soviet Union legislation; de-facto exercising of the State Poverty Reduction and Prevention Program 2010-2015, National Plan of Action for Children; enhancing the coherence of state social measures by allowing public to monitor them; prescribing the civil/administrative/ labour liability for the breach of rights of HVI-positive people by medical institutions or employers; initiating the system of checks and control over the medical intuitions by law-enforcement bodies, may be regarded as the important steps to guarantee the social-economic and cultural rights. In regards the national minorities, it can be stated that the spirit of tolerance and inter-ethnic dialogue generally prevails in Ukraine240, but there are still problems which may be overcome by the prescribing civil/ administrative liability for the discrimination of national minorities; enactment of the new Law “On National Minorities” which will envisage the protection of non-citizens; enhancing cooperation with the representatives of national minorities and national/local authorities. Therefore, Ukraine still has to take essential steps to deal with the issue of human rights protection in order to comply with the Copenhagen political requirements.

239 Andriy Kristenko.Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 240 Advisory Committee on the Framework Convention for the Protection of National Minorities. Opinion of Ukraine. 2002 - 40 - CHAPTER IV. Ukraine’s Perspectives to Comply with the Copenhagen Political Criteria

In this chapter, the perspectives of Ukraine’s membership in the European Union will be assessed based on the analysis of positive and negative trends in fulfillment the Copenhagen political criteria not taking into account the current level of compliance with the other Copenhagen requirements ( particularly, economic ones).

1. Positive steps of Ukraine towards European membership

Eight years have been passed since the time when former President of European Commission Romano Prodi assured that Ukraine’s future includes membership in European Union.241 During this time, the substantial changes of Ukrainian legal system have taken place to comply with the Copenhagen political criteria which, in the opinion of Ambassador Extraordinary and Plenipotentiary of the Republic of Hungary, are quite successful to lead to the future joining of the EU242. Among the strong points, it can be stressed the consistency of Ukraine’s foreign policy towards the European integration. Since 1991, the access to EU was announced as the main state priority, thus the EU and Ukraine maintained regular political dialogue during the years, notably at the EU- Ukraine Summits, the Cooperation Councils and the Cooperation Committees. In addition, political dialogue meetings took place between the Ukrainian government and the EU Political and Security Committee, the Council Working Group on Eastern Europe and Central Asia and EU Foreign Ministers and EU Political Directors etc.243 EU-Ukraine Partnership and Cooperation Agreement, Action Plan, 2005, EU-Ukraine Association Agenda priorities 2009, 2010 were signed by the two sides to declare the willingness for further cooperation in rapprochement. In 2010-2011, the EU-Ukraine political dialogue has turned into the progressive negotiations on the Association Agreement, which will outline the long-expected result of the enhanced collaboration with the European Union. The positive step on the way to European integration is the adoption on 22 November 2010 of the Action plan on visa liberalization during the EU-Ukraine summit. It is the first time that Ukraine has succeeded in obtaining a definition of the conditions and criteria whose fulfilment will enable Ukraine to apply for the lifting of EU visas for its citizens.244The document singles out the requirements related to the introduction of relevant legal changes and the preparation of reforms on one hand, and the requirements related to the actual implementation of these reforms on the other. According to the reports of Commission, Ukraine, NGO’s,245 the successful implementation of Copenhagen political criteria can be observed by the following measures:

Strengthening the stability, independence and effectiveness of institutions guaranteeing democracy and the rule of law:

 adoption of Ukraine’s Law “On access to public information”, 2011;

241 Woronowycz R. ,“ Ukraine gets assurances that its future includes membership in European Union”, The Ukrainian Weekly, 2003 242 http://www.realt5000.com.ua/news/utf/en/1386778/ 243 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 244 Liberalisation: an assessment of Ukraine’s readiness .2011-01-17 | Marta Jaroszewicz 245 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP); Report Ukraine, Civil society, Ashton; Statement by EU High Representative Catherine Ashton and European Commissioner for Enlargement and Neighbourhood Policy Štefan Füle on Ukraine before the European Parliament. EU, Brussels, 2010; The 3rd interim report by the civil society’s monitoring of implementation of EU-Ukraine Association Agenda priorities in 2010, 2010. - 41 - The Law which aims at encouragement of transparency of the public authorities’ activities, must become an efficient instrument to implement a right on access to information, facilitate openness of the authorities and enhance fight against corruption;  adoption of Ukraine’s Law “On Judiciary and the Status of the Judges” , 2010; The Law which transforms the Ukraine’s judiciary by setting four High specialized courts – Administrative, Commercial, Criminal and General (Civil) instead of two already existed, allows to increase the capacity of judges in appeal cases by reducing the workload of Supreme Court and thus, to provide with the effective judicial protection.  adoption of Ukraine’s Law “On Rules of Procedure”246, 2010 which has to facilitate the legislative function of Supreme Council;  enactment of Decree of President “On the concept of adjustment the institute of state administration in Ukraine to European Union standards”, 2004, Regulation of Cabinet of Ministers №528, 2008 concerning the set up of Centre of adjustment of state administration to the standards of European Union to determine the basis for administrative reform;  establishment of the presidential Committee on the Fight against Corruption and Organized Crime, 1997;  conducting of internationally recognized elections which met most OSCE and Council of Europe (CoE) standards for democratic elections.247

Ensuring the protection of human rights, respect for and protection of minorities:

 establishment of mobile monitoring groups, operation of Civil Society Councils on Human Rights;248  the implementation of The European Convention on Trans-frontier Television, 2009;  approval of the draft concept of the Law of Ukraine “About fighting against trafficking in persons”, ratification of CE Convention about fighting against trafficking in persons;  enforcement of Government Program of Counteraction to Trafficking in persons;  developing a Ukrainian system of Protection of Personal Data upon ratification of the Council of Europe 1981 Convention on Protection of Personal Data;  enactment of draft law “On Free Legal Aid”, which is a considerable step towards the guaranteeing the right to defense;  constitutional guarantees to the functioning of ombudsman;  the adoption of a National Plan of Action for Children to Implement the UN Convention on the Rights of the Child 2010 – 2016, 2009.  establishment of the new post of special ambassador to combat racism, xenophobia, and discrimination as well as the set up of the Council of Representatives of Public Organisations of National Minorities by the President of Ukraine which is the essential step to enhance the protection of national minorities. Besides that, Ukraine has made the commitment to comply with the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages while ensuring non-discrimination.

2. Adverse steps of Ukraine towards European Union membership

Despite the progress in implementation of the Copenhagen political requirements, the European Union is still reluctant to grant Ukraine even the status of candidate country because of its essential inconsistencies with the European legal standards. This idea can be extracted from the statements of current European Commission President Jose Manuel Barroso who estimated

246 The Law “On Rules of Procedure” was adopted on the 10.02.2010 and came into force on the 9.03.2010 247 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 248 Ibid. - 42 - Ukraine's efforts to modify its laws in accordance with those of the European Union as very low. The EU High Representative Catherine Ashton and European Commissioner for Enlargement and Neighbourhood Policy Štefan Füle claimed in their statements on Ukraine before the European Parliament that consistent and wide-spread reports of deterioration in respect for fundamental freedoms and democratic principles in Ukraine impede its joining the European Union.249 To make the picture of Ukraine’s real level of compliance with the Copenhagen criteria complete, it should be emphasised that according to the experts’ conclusions250 in 2010 only 8 priorities out of 65 were fulfilled by Ukraine. As regards the political criteria, the poor conditions of fulfilment may be noticed in the next fields:

Strengthening the stability, independence and effectiveness of institutions guaranteeing democracy and the rule of law:

 corruption; Corruption remains the main barrier to Ukraine's development and modernisation. In 2010, in the Corruption Perception Index by the Transparency International, Ukraine ranked 134th among the 179 countries surveyed. So far, there does not seem to be enough political will to prove the government's intention to battle this phenomenon. Ukraine is failing to meet its obligations to its membership in the Group of States Against Corruption (GRECO);251  administrative reform; According to data of Ukrainian Helsinki Human Rights Union, the reform must be assessed negatively, since it does not settle existing problems and in some cases creates new ones. For example, the Government loses its status of the highest executive body, executing public policies and administrating other executive bodies. An excessively big number of the central executive bodies worsens co-ordination in the decision-making process. Re-organization of the public bodies does not take into account earlier doctrinal or legislative achievements, and lacks a political and programming vision of the reforms.252  the authorities have not shown any proper enthusiasm in the field of the criminal procedure reform.   Elections; Public administration’s measures to ensure efficiency of the election system at parliamentary and local elections do not fully correspond to principles of the OSCE and Council of Europe, and sometimes even create conditions for violating election rights.253  Judiciary; Judiciary is not entirely independent from President, legislative and executive bodies and the new Law “On Judiciary and Legal Status of Judges” doesn’t deal with the issue. Moreover, poor enforcement mechanisms of legislation are still characteristic feature of Ukrainian legal system.

Ensuring the protection of human rights, respect for and protection of minorities:

The evaluative mark of human rights protection in Ukraine is rather low according to the expert data. The average expert mark in 2010 was 2.20 out of 5.00. The general level of law- enforcement in the field of human rights is equal to 1.90 out of 5.00. The protection of personal,

249 Statement by EU High Representative Catherine Ashton and European Commissioner for Enlargement and Neighbourhood Policy Štefan Füle on Ukraine before the European Parliament. EUROPEAN UNION Brussels, 2010 250 Progress Report Ukraine “Implementation of the European Neighbourhood Policy in 2009”.Communication from the Commission to the European Parliament and Council taking stock of the European Neighbourhood Policy (ENP), 12.05.2010 251 Bertelsmann Stiftung, BTI 2010 — Ukraine Country Report. Gütersloh: Bertelsmann Stiftung, 2009 252 The 3rd interim report by the civil society’s monitoring of implementation of EU-Ukraine Association Agenda priorities in 2010, 2010. 253 Ibid. - 43 - cultural, economic rights places the lowest stand – 1.77 out of 5.00, the guarantying of political rights – freedom of association, the right to participate in administration, the right to elect and to be elected – 2.80. The critical situation may be assessed in the protection of the specially vulnerable social groups (disabled, mentally- ill, drug-addicted and HIV- infected persons etc.) – 2.00.254  Ukraine has not acceded to the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on Migrant Workers and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data have yet to be ratified;  the allegations of state pressure on freedom of assembly and media have been increased in 2010-2011;255  the gender inequality and women's rights violations in Ukraine continue;256  Ukraine doesn’t deal sufficiently with the trafficking in women and girls in the country;257  Lack of transparency in all levels elections;  liquidation of Department for Human Rights Monitoring established in 2008 as a new stage in relations between human rights organizations and the State is a step back from the effective protection of human rights;  Ukraine didn’t ratify the Council of Europe Convention on Action against Trafficking in Human Beings;  the new program of counteraction to trafficking in persons up to 2015 has not been signed yet.  Ukraine doesn’t have the unique codified act in sphere of social security rights which has to substitute the obsolete Soviet Union’s Norms and Regulations; Finally, Ukrainian authorities have taken no measures to modernize legislation related to national minorities. In the field of inter-ethnical relations legal norms on ensuring national minorities’ rights against ethnic and racial discrimination remain declarative. The same is valid for settling problems of integration of migrants, as well as inter-ethnic co-operation.

3. Summing up the trends

As it can be apparent from the expert reports, Ukraine has not fulfilled significant amount of EU requirements to approach its accession. On the one hand, the successful transformation of its legal system (e.g. adoption of new Laws, restructuring executive, judicial bodies in line with the EU standards, conducting democratic elections etc.) puts a solid start in seeking the EU membership, but on the other – mostly all the reforms outlined in the Agenda priorities for 2010 are still incomplete, the level of human rights protection remains very low, the corruption pierced in all the state bodies has not been rooted out despite the state measures taken to deal with the issue. Thus, the question “What do Ukraine have to expect for?” is very difficult to answer. The positive steps toward the concluding of Association Agreement may be regarded as Ukraine’s achievements together with the adoption of Action plan on visa liberalization. Nevertheless, these steps are not finalized as there exist neither Association Agreement no liberalized visa regime and what is more important – there are no fixed terms which could define the possible frames of Ukraine’s expectations to get it. Clearly, the current stage of EU-Ukraine relations is based on PCA and EU-Ukraine Association Agenda priorities, 2010 (which have not been fully implemented by Ukrainian side), to wit there are no official documents dealing with Ukraine’s integration to EU which state that Ukraine is recognized as the potential candidate country. Only political remarks and conclusions contain the information about integration of Ukraine, though the political statements have lack of formality to be put into the basis of entire

254 Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 255 Hryschenko: Ukraine to strengthen human rights protection next year. Interfax-Ukraine, 2010. 256 Report of the UN Committee on Elimination of Discrimination against Women, 2010 257 Human Rights Watch. World Report 2011: Ukraine, 2011 - 44 - transformation of country’s legal system. And Ukraine, so far, despite the 20 years of its priority direction to EU integration, has not demonstrated the practical willingness to comply with the Copenhagen political criteria. Thus, it can be assumed that Ukraine’s incitements to comply with Copenhagen political requirements are equal to EU’s will expression to accept Ukraine as the full fledged Member State. The Association Agreement is supposed to become the connecting link between the EU and Ukraine which will incentivize the later to adjust its legal system to EU standards in order to join the EU and, which will allow the EU to put clear goals before Ukraine and control their achievements. In her Statement before the European Parliament, C. Ashton concluded that for the European Union and its Member States respect for human rights, democratic principles and the rule of law are fundamental principles that bind them together. They are principles that cannot be compromised - so too for their relations with key partners such as Ukraine. The pace and depth of the rapprochement with Ukraine will be determined by full respect for these values.258

258 Statement by EU High Representative Catherine Ashton and European Commissioner for Enlargement and Neighbourhood Policy Štefan Füle on Ukraine before the European Parliament. EUROPEAN UNION Brussels, 2010

- 45 - CONCLUSION

Copenhagen political criteria remain the key tool in the process of EU enlargement. Every country willing to join the EU has to comply with the four conditions: to achieve stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. The Copenhagen-related documents demonstrate that the EU has its own understanding of these requirements different from the scientific opinions, national and international approaches. In fact, the concepts of “rule of law” and “democracy” are bound together as well as the concepts of “human rights” and “national minorities”. In the research, it was explored that Copenhagen political criterion “democracy and the rule of law” include 1) free and fair elections; 2) functioning of the judiciary; 3) functioning of the executive;4) functioning of the legislature; and 5) assessment of effectiveness of anti-corruption measures. The protection of human rights require: 1) the ratification of necessary international instruments; 2) the protection of civil and political rights, including freedom of expression and independence of the media; combating police violence; combating trafficking in human beings; problems related to pre-trial detention and situation in prisons; access to a lawyer; asylum and refugees; discrimination on the grounds of sexual orientation; the establishment and effective functioning of an ombudsman’ s office; the assessment of the role played by the NGOs; 3) the protection of economic, social and cultural rights, including gender equality; trade unions; right to strike; integration of the disabled and socially vulnerable people’ s rights; child protection; social security rights. Putting into the basis the EU understanding of four conditions, the level of their fulfilment by Ukraine was analysed. The positive steps in transformation its legal system to the demands of EU were taken by the adoption of Laws “On Access to Public Information”, “On Judiciary and the Status of the Judges”, “On Rules of Procedure”; establishment of the presidential Committee on the Fight against Corruption and Organized Crime; enactment of Decree of President “On the concept of adjustment the institute of state administration in Ukraine to European Union standards”; set up of Centre of adjustment of state administration to the standards of European Union; conducting of internationally recognized elections; operation of Civil Society Councils on Human Rights; implementation of The European Convention on Trans-frontier Television; ratification of CE Convention about fighting against trafficking in persons; enactment of draft law “On Free Legal Aid”; adoption of a National Plan of Action for Children to Implement the UN Convention on the Rights of the Child 2010 – 2016; establishment of the new post of special ambassador to combat racism, xenophobia, and discrimination; set up of the Council of Representatives of Public Organisations of National Minorities. Despite the positive changes, the research has shown that Ukraine has significant problems in implementation and enforcement the EU standards into its legal system. The contradictory legislation, lack of update procedural codes, unclear division of powers among the state institutions of different levels, poor enforcement mechanisms, corruption, deficit of accountability and transparency are the core obstacles on its way to European integration. A number of possible solutions to the existing problems were presented. In order to satisfy the criterion democracy/rule of law, Ukraine has to involve public into the legislative processes to guarantee the right of legislative initiative. The adjustment of the Law "On Elections of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Local Councils and Village, Settle ment and City Mayors" to the administrative state order is among the top priorities together with the enhancement of public control over the election process. Specific Laws on legal status of judges must be adopted to safeguard their independence and impartiality. State must guarantee the adequate salaries to its civil servants in order to reduce corruption. Furthermore, Ukraine should take up the measures to practically implement Law “On State Administration” within its territory. Suggestions regarding the improvement of the human rights/ national minorities’ situation were also delivered. Strategy framework for creating a system of prevention and protection from torture and ill-treatment may become the basement for its termination in case being adopted at - 46 - legislative level. To make the enforcement efforts complete in protection of the right to personal inevitability, Ukraine has to promote the creation of effective public control mechanisms over investigations into allegations of torture and ill-treatment, gradually establish the national preventive mechanisms.259 Ukraine is under obligation to make up the appropriate conditions for the citizens’ freedom of expression. Guarantees to confidentiality of information about the person would foster the composition of claims, grievances to the actions of law-enforcement bodies. Consistent amendments to migration laws would be worthwhile for asylum- seekers to feel secured on Ukraine’s territory. In the field of legal aid, the adoption of particular Law “On Free Legal Aid” together with the boosting of Ombudsman’s cooperation with the public organizations will be regarded as positive steps to European integration. To further guarantee the social-security rights, Ukraine needs the adoption of unified code which will incorporate the social-security rights, freedoms and set out the procedure of their enforcement along with the adoption of the new laws on social protection. Likewise, the obsolete Soviet Union legislation has to be removed. Ukraine must give the real life to the State Poverty Reduction and Prevention Program 2010-2015, National Plan of Action for Children; enhance the coherence of state social measures by allowing public to monitor them. The crucial importance lies in prescribing of the civil/administrative/ labour liability for the breach of rights of HVI-positive people by medical institutions or employers as well as in initiating the system of checks and control over the medical intuitions by law-enforcement bodies. Furthermore, the civil/ administrative liability should also find its application in Ukrainian legislation for the discrimination of national minorities. The enactment of the new Law “On National Minorities” or, alternatively, the alteration of the existing one is consequential for the protection of non-citizens. Also, Ukraine necessitates to foster the cooperation with the representatives of national minorities and national/local authorities. Clearly, the prospect of EU membership is still a very long way away for Ukraine, even though discussions are now proceeding with the EU over some form of associated status. Ukraine has yet to find a model for transformation its legal system to the European standards.260 Until this time, as the research demonstrates, there was very slow progress in compliance with the EU membership requirements, thus only the resolution of existing problems will be the pre-condition to join the EU. Hence, notwithstanding the positive trends, there are still a great number of un-solved problems which are stumbling stones to Ukraine’s integration into the European Union.

259 Andriy Kristenko.Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Protection Group “Prava Ludyny”. Human Rights Organization’s Report “Human Rights in Ukraine 2009-2010”, 2011 260 O.Shumylo “The Debate on the EU Membership Prospect of Ukraine,” European Working Paper (2007). - 47 - LIST OF SOURCES

I. TABLE OF TREATIES, EUROPEAN LEGISLATIVE INSTRUMENTS AND NATIONAL LEGISLATION

Treaties and Conventions

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2010] OJ C 83 (“Lisbon Treaty”)

European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome 4 November 1950, entered into force 3 September1953, ratified by 45 States as of 8 January 2005. CETS No: 005.

European Social Charter, signed on 18 October 1961, entered into force on 26 February 1965, ratified by 36 States as of 12 November 2004. CETS No: 035

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, ratified by 152 states as of 9 June 2004. 999 UNTS 171.

International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 3 January 1976, ratified by 149 states as of 9 June 2004. 993 UNTS 3.

Convention relating to the Status of Refugees, adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950, entered into force on 22 April 1954. 189 U.N.T.S. 150

Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine [1998] OJ L 49

Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4 November 2000, entered into force on 1 April 2005, ratified by 10 states. ETS no. 177

Framework Convention for the Protection of Minorities, Strasbourg signed on 1 February 1995, entered into force on 1 February 1998, ratified by 39 states. ETS no. 157.

European Charter for Regional and Minority Languages signed on 5 November 1992, entered into force 1 March 1998, ratified by 5 states. ETS no. 148

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, signed on 26 November 1987, entered into force on 1 March 2002, ratified by 47 states. ETS No. 126

EC Regulations/Decisions

Council Resolution on the quality of drafting of Community legislation [1993] OJ C 166, 17.6.1993.

- 48 - Council Regulation 622/98 on assistance to the applicant States in the framework of the pre- accession strategy, and in particular on the establishment of Accession Partnerships [1998] OJ L 85/1

Council Decision 2002/88/EC on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Latvia [2002] OJ L 44/2002

Council Decision 2002/86/EC on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Estonia [2002] OJ L 44/2002

Other EU documents

Presidency Conclusions, Copenhagen European Council, 21-22 June 1993, SN 180/1/93 rev 1, [1993] 6 Bull. EC 13.

Presidency Conclusions, Luxembourg European Council, 12-13 December 1997, SN 400/97, DOC/97/24

Documents Adopted by the European Commission

Communication from the Commission to the Council and the European Parliament on “Strategy Paper of the European Commission on progress in the enlargement process”, Brussels, 6 October 2004, COM(2004) 657 final

Communication from the Commission on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, Brussels, 23 May 1995, COM (95) 216 final.

Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries, COM (2002) 700 final.

Communication from the Commission. Opinion on Croatia’s Application for Membership of the European Union, Brussels, 20 April 2004, COM (2004) 257 final

Communication from the Commission on Composite Paper Reports on Progress towards Accession by Each of the Candidate Countries, 2004, Brussels, COM (2004) 657 final, Brussels

Commission Staff Working Document accompanying Communication from the Commission to the Council and the European Parliament on “Implementation of the European Neighborhood Policy in 2009”. Progress Report Ukraine, Brussels, 12 May 2010 SEC (2010) 524

List of the EU-Ukraine Association Agenda priorities for 2010, 2010, issued by the European Commission External Relations DG.

Regular Report from the Commission on Czech Republic’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Estonia’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Hungary’s Progress towards Accession 1998, dated 4 November 1998.

- 49 - Regular Report from the Commission on Latvia’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Lithuania’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Poland’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Romania’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Slovakia’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Slovenia’s Progress towards Accession 1998, dated 4 November 1998.

Regular Report from the Commission on Bulgaria’s Progress towards Accession, dated 8 November 2000.

Regular Report from the Commission on Romania’s Progress towards Accession 2000, dated 8 November 2000.

Regular Report from the Commission on Slovakia’s Progress towards Accession 2000, dated 8 November 2000.

Regular Report from the Commission on Slovenia’s Progress towards Accession 2000, dated 8 November 2000.

Regular Report from the Commission on the Czech Republic’s Progress towards Accession, dated 8 November 2000.

Regular Report from the Commission on Estonia’s Progress towards Accession 2001, Brussels, SEC (2001) 1747.

Regular Report from the Commission on Hungary’s Progress towards Accession 2001, Brussels, SEC (2001) 1748.

Regular Report from the Commission on Latvia’s Progress towards Accession 2001, Brussels, SEC(2001) 1749.

Regular Report from the Commission on Lithuania’s Progress towards Accession 2001, Brussels, SEC(2001) 1750.

Regular Report from the Commission on Slovakia’s Progress towards Accession 2002, Brussels, SEC(2002) 1410.

Regular Report from the Commission on Slovenia’s Progress towards Accession2002, Brussels, SEC(2002) 1411.

Regular Report from the Commission on the Czech Republic’s Progress towards Accession 2002, SEC(2002) 1402.

- 50 - Regular Report from the Commission on Estonia’s Progress towards Accession 2002, Brussels, SEC(2002) 1402.

Regular Report from the Commission on Hungary’s Progress towards Accession 2002, Brussels, SEC(2002) 1404.

Regular Report from the Commission on Latvia’s Progress towards Accession 2002, Brussels, SEC(2002) 1405.

Regular Report from the Commission on Lithuania’s Progress towards Accession 2002, Brussels, SEC(2002) 1406.

Regular Report from the Commission on Poland’s Progress towards Accession 2002, Brussels, SEC(2002) 1408.

Regular Report from the Commission on Romania’s Progress towards Accession 2002, Brussels, SEC(2002) 1409.

Regular Report from the Commission on Romania’s Progress towards Accession 2003, Brussels, SEC (2003) 1744 Regular Report from the Commission on Bulgaria’s Progress towards Accession, 2004, Brussels COM (2004) 657

Regular Report from the Commission on Romania’s Progress towards Accession, 2004, Brussels, COM (2004) 657

Communication from the Commission to the Council and the European Parliament – Strategy Paper of the European Commission on Progress in the Enlargement Process, COM (2004) 657 final, Brussels.

Comprehensive Monitoring Report from the European Commission on Bulgaria, 2005, Brussels COM (2005) 534 final

Comprehensive Monitoring Report from the European Commission on Romania, 2005, Brussels COM (2005) 534 final

Comprehensive Monitoring Report from the European Commission on Bulgaria, 2006, Brussels COM (2006) 214 final

Comprehensive Monitoring Report from the European Commission on Romania, 2006, Brussels COM (2006) 214 final

Comprehensive Monitoring Report from the European Commission on Croatia, 2009, Brussels, COM (2009) 533 final

Miscellaneous EU Documents

4-th Joint Progress Report - Negotiation on the EU-Ukraine Association Agreement, Brussels/Kyiv, 8 November 2010

Preamble to the Europe Agreement with Latvia establishing an association between the European Communities and their Member States, and the Republic of Latvia, OJ L 26/1998

- 51 - Catherine Ashton, EU High Representative, Štefan Füle, European Commissioner for Enlargement and Neighbourhood Policy. A 213/10 Statement on Ukraine before the European Parliament, Brussels, 20 October 2010.

National Legislation

Ukraine

A. Primary Legislation

Constitution of Ukraine № 254к/96-ВР , 28. 06.1996.

Code of Labour Laws adopted by Law of Ukraine № 322-VIII ,10.12.1971.

Commercial Procedural Code of Ukraine adopted by Law № 1798-XII, 6.11.1991.

Criminal Code of Ukraine adopted by Law of Ukraine № 2341-III, 05.04.2001.

Commercial Code of Ukraine adopted by Law № 436-IV, 16.01.2003.

Civil Code of Ukraine adopted by Law № 435-IV, 16.01.2003.

Civil Procedural Court of Ukraine adopted by Law № 1618-IV, 18.03.2004.

Declaration of State Independence of Ukraine adopted by Law № 55-XII,16.07.1990

Law № 1060-XII “On Education”, 23.05.1991

Law of Ukraine № 987-XII “On Freedom of Conscience and Religious Organizations”, 23.04.1991

Law of Ukraine № 875-XII “On Social Protection of Disabled People in Ukraine”, 21.03.1991;

Law of Ukraine № 1972-XII “On Prevention of HVI, Legal and Social Defense of HVI- People ”, 12.12.1991;

Law of Ukraine № 2782-XII “On Mass-Media in Ukraine”, 16.11.1992;

Law of Ukraine № 2494-XII “On National Minorities”, 25.06.1992.

Law of Ukraine № 3352-XII “On Pre-Trial Detention”, 30.06.1993

Law of Ukraine № 3723-XII “On State Administration”, 16.12.1993.

Law of Ukraine № 3929-XII “On the Legal Status of Foreign Nationals and Stateless Persons”, 04.02.1994.

Law of Ukraine № 422/96-ВР “On Constitutional Court of Ukraine, 16.10.1996.

Law of Ukraine № 776/97-ВР “Ukrainian Parliament Commissioner for Human Rights”, 23.12.1997.

Law of Ukraine № 1045-XIV “On Trade Unions, the Guarantees of Their Functioning”, 15.09. 1999.

- 52 - Law of Ukraine № 2557-III “On Refugees”, 21.06.2001

Law of Ukraine № 2984-III “On Higher Education”, 17.01.2002.

Law of Ukraine № 3262-IV “On Protection of Public Morality”, 20.11.2003

Law of Ukraine № 2866-IV “On Equal Opportunities of Women and Men”, 08.09.2005.

Law of Ukraine № 3477-IV “On Execution of Judgments and Application of Case-Law of the European Court of Human Rights”, 23.02.2006.

Law of Ukraine № 537-V “On Basics of Development the Information Society in Ukraine during 2007-2015”, 09.01.2007;

Law of Ukraine № 274-V “On Amendments to Some Legislative Documents of Ukraine in Connection with the Adoption of the Law of Ukraine ‘On Ensuring Equal Rights and Opportunities for Women and Men”, 15.04.2008

Law of Ukraine № 1861-VI “On Rules of Procedure of Supreme Council of Ukraine” ,10.02.2010.

Law of Ukraine № 2297-VI “On Personal Data Protection”, 01.06.2010

Law of Ukraine № 2453-VI “On Judiciary and Status of Judges”, 07.07.2010.

Law of Ukraine № 2939-VI “On Access to Public Information”, 13.01.2011.

B. Secondary Legislation

Resolution of Supreme Council № 3360-XII “On Core Concepts of Ukrainian Foreign Policy”, 02.08.1993;

Decree of President № 148/98; "On the implementation of EU-Ukraine Partnership and Cooperation Agreement”, 24.02.1998.

Decree of President № 615/98 "On Approval of the Strategy of Ukraine's Integration to the EU”, 11.06.1998.

Decree of President № 852 “On Adjustment Mechanisms of Ukrainian Legislation to the EU Requirements ",12.06 1998".

Decree of President № 1773 “On Set up of Inter-Institutional Coordination Council on Adjustment of Ukraine's Legislation to the EU Requirements ", 12.11 1998.

Decree of President № 1496 "On the Concept of Adjustment of Ukraine's Legislation to the Requirements of EU law”, 16.08 1999.

Decree of President № 637 “On Poverty Reduction Strategy”, 15.07.2001

Decree of the President of Ukraine № 274/2010 “On Urgent Measures to Overcome Poverty”, 26.02.2010

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II. UNITED NATION DOCUMENTS

Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, UN DOC A/810

United Nations, Report of the First Session of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/52, section V

III. CASE LAW

European Court of Human Rights

Klass and others v Germany (A/28): (1978) 2 ECHR 214.

Vergelsky v. Ukraine (No 19312/06, March 12, 2009).

Lotarev v. Ukraine (No. 29447/04, April 8, 2010).

Olexandr Mykhailovych Zakharkin v. Ukraine (No. 1727/04, June 24, 2010).

Davydov and Others v. Ukraine (Nos. 17674/02 and 39081/02, July 1, 2010).

Lohvynenko v. Ukraine (No. 13448/07, October 14, 2010).

Petukhov v. Ukraine (No. 43 374 / 2002, October 21, 2010).

Kovalchuk v. Ukraine (No. 21958/05, November 4, 2010).

Samardak v. Ukraine (No. 43109/05, November 4, 2010).

IV. BIBLIOGRAPHY

Book Chapters, Articles and Working Papers

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- 56 - Special Report of the Ukrainian Parliament Commissioner for Human Rights “The Status of Observance of the International Standards of Human Rights and Freedoms in Ukraine”, Kyiv: Ombudsmen in Ukraine, 2008.

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