Democratic initiatives foundation

Focus on September 27– October 1, 2010

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TABLE OF CONTENTS

І. Overviews of political events of the week…………………….…………..…………..…3

II. Analytical Reference………………………….……………………………………...….……….5

Legislation and human rights. Ruling of the Constitutional Court: correction of mistakes or a coup d’etat?…..…………………………..…….…..…...…...…..5

Foreign policy. Ukraine-NATO relations: a period of lost opportunities?………………….….….....…..7

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І. Overviews of political events of the week

Scholars and writers appealed to the and the speaker of September the parliament with a request to not approve the new version of the law “On 27 Language”. They are convinced that if the law is adopted, the Russian language will be granted the status of the second official state language, which contradicts the Constitution.

The organizers and participants of the the Haidamaka.UA festival of rebellious and patriotic songs held in Irpen on the outskirts of Kyiv this Sunday were assaulted by nearly two dozen youth with baseball bats. Furthermore, the local police in Irpen did not take any counteractions against the assailants. Leader of the “For Ukraine” party Vyacheslav Kyrylenko described the scuffle in Irpen an act of “political violence”.

Press Secretary of the Prosecutor General’s Office of Ukraine Yuriy Boichenko informed that the family of the former deceased Minister of Internal Affairs Yuriy Kravchenko, whom Oleksiy Pukach named the senior authority that ordered the murder of journalist Heorhiy Gongadze, insists that the court prove that Pukach is innocent.

Leaders of twelve opposition parties of Ukraine signed a letter to the September leadership of the Council of the European Union, the European Commission, 28 the European Parliament, the Parliamentary Assembly of the Council of Europe, the Organization of Security and Cooperation in Europe, foreign ambassadors in Ukraine and leaders of international organizations in which they expressed their concern about the possibility of non-democratic elections being held in Ukraine. The opposition affirms that the current government plans to apply different vote-rigging methods in the upcoming elections. Despite this, Chair of the Central Election Commission Volodymyr Shapoval resolutely denied the statement of the opposition.

A meeting of the Ukraine-NATO Commission at the level of ambassadors September headed by NATO Deputy Secretary General Claudio Bisonero was recently 29 held at the NATO headquarters in Brussels.

Head of the Mission of Ukraine to NATO Ihor Dolhov stressed that the Ukrainian side expects that the Alliance will clearly formulate the principles of partnership policies and the immediate expectations of NATO regarding the role and place of Ukraine in the system of Euro-Atlantic security in a new concept.

NATO Secretary General Anders Fogh Rasmussen invited Ukraine to participate in a summit in Lisbon within the framework of a summit of countries participating in operations in Afghanistan. Rasmussen also emphasized that the doors to the Alliance are open for Ukraine. Besides that, the secretary general said NATO is prepared to include Ukraine, Russia and other European countries in creating an anti-missile defense system.

The widow of Yuriy Kravchenko said in an interview for the Segodnya newspaper that she possesses facts that could clear suspicions of her husband’s complicity in the murder of journalist Heorhiy Gongadze. 3

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However, she refused to specify the facts she possesses.

U.S. Ambassador to Ukraine John Tefft said his country’s government is prepared to finance Ukrainian observers during the local elections, commenting on information that foreign observers of the OSCE and PACE will be present during the elections on October 31.

Several dozens of journalists held an act of protest in front of the building of the public reception of the SBU under the banner “Is the SBU gathering information on me?”, submitting inquests with a request to answer whether or not the special service has taken interest in them. A statement by Director of the Institute of Mass Information Viktoria Syumar that SBU officers are allegedly gathering information on her incited this act of protest. SBU Spokesperson Maryna Ostapenko denied any allegations of illegal acts on the part of the law enforcement body.

The press service of European Commission President Jose Barroso informed September that the EC will observe the upcoming local elections in Ukraine. 30 The Prosecutor General’s Office of Ukraine demanded an explanation from Editor-in-Chief of Ukrainska Pravda Olena Prytula for the publication of a resolution on bringing Oleksiy Pukach to criminal responsibility. The PGO was particularly interested the source from which Ukrainska Pravda received this document, in which Yuriy Kravchenko was named the individual who ordered the murder of Heorhiy Gongadze. The PGO is considering filing a criminal case for the disclosure of a secret investigation.

The Constitutional Court cancelled the political reforms of 2004. The judges October deemed that the poltical reforms of implemented six years ago violated the 1 procedures of approval. Henceforth, Ukraine will return from a parliamentary- presidential system to a presidential-parliamentary system of governance. This means that the existence of a coalition is no longer compulsory and all decisions will be approved by a standard majority of votes. Now the president, not the coalition, will put forth candidates for the posts of premier and ministers for approval by the parliament.

In his address to the Ukrainian people, President called for improving the Constitution. The president said one of the main mechanisms for achieving this goal is holding a referendum and implementing National Constitutional Reform.

Yulia Tymoshenko criticized the decision of the Constitutional Court on the legitimacy of political reforms implemented in 2004. She said this is usurpation of state power. The leader of the BYuT called for holding snap elections of the president and parliament as they were elected under a different Constitution and did not have the powers that the new decision of the CC vests in them.

Head of the Our Ukraine Political Council Valentyn Nalyvaichenko informed that his party is launching an active campaign against the adoption of the law on language. He said the passing of the aforementioned law is effectively the start of a war against the Ukrainian people.

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EU Commissioner Stefan Fule told the newspaper Den in an interview that the EU is concerned about the reversal of democracy in Ukraine. The politician said incidents testifying to the worsening of the situation with freedom of speech and political demonstrations have become more frequent.

II. Analytical Reference

 Legislation and human rights

RULING OF THE CONSTITUTIONAL COURT: CORRECTION OF MISTAKES OR A COUP D’ETAT?

On October 1, the Constitutional Court of Ukraine approved a decision in the constitutional matter filed by 252 members of parliament. In its ruling the CC satisfied the demands of the MPs and deemed the Law of Ukraine № 2222-IV “On Amendments to the Constitution of Ukraine” of December 8, 2004 unconstitutional. This ruling did not come as a surprise to the majority of Ukrainian political analysts, who even before it was passed down warned of the constitutional and legal repercussions of such a ruling.

How legally correct was the ruling of the Constitutional Court? What repercussions will the ruling have on the functioning of the Ukrainian system of power?

Contents of the ruling

The ruling of the Constitutional Court of After this date the provisions in the law Ukraine (CCU) decreed on October 1, 2010 became provisions of the Constitution and contains three main provisions. First of all, were no longer subject to review by the the CCU deemed law № 2222-IV CCU. In other words, the latter can only unconstitutional in connection with the review the compliance of simple laws to the violation of procedural requirements of the Constitution. The CCU stuck to this Verkhovna Rada during its consideration. principle in its ruling of February 5, 2008 in Secondly, the CCU decreed that the which it rejected constitutional based on aforementioned law will lose its effect from such submissions. the day the corresponding ruling was passed In turn, experts believe the provisions that down, meaning October 1. In the end, the law № 2222-IV will lose effect after the CCU obligated bodies of state government corresponding ruling of the CCU contradicts to bring normative and legal acts in simple legal logic. Indeed, if the law is accordance with the 1996 edition of the deemed unconstitutional due to breech of Constitution of Ukraine. procedure in its adoption, it loses its effect All three of the points in the ruling of the from the date it was passed. CCU were harshly criticized by Ukrainian By passing down such a ruling, the CCU legal and political experts. The majority of considerably facilitated the work of the them agree that law № 2222-IV was bodies of state government, seeing as if law approved in breech of procedures, while at № 2222-IV was deemed invalid from the the same time are convinced that this law time it was adopted, all of the most could only have been deemed important institutions of power would have unconstitutional before it took effect, been stripped of their legitimacy and meaning before January 1, 2006. normative basis of their functioning. 5

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The third point of the CCU ruling elicited bring normative-legal acts into conformity the most heated disputes between political with the Constitution of 1996. analysts and politicians. Political analysts Aside from that, the text in the ruling of the say the CCU went beyond the limits of its CCU remains open to interpretation – does it authority by assuming the functions of the imply the automatic reinstatement of the Verkhovna Rada, which is the only body effect of the Constitution of 1996 or does it that has the right to define the content of the require corresponding amendments to the Constitution, and obligating state bodies to Constitution of the Verkhovna Rada.

Possible consequences the court’s decisions

The legal and political repercussions of the doubtful. In other words, will all he ruling of the CCU and its content incited necessary amendments to the legislation be heated discussions among government made or just those that are convenient for officials, political opposition forces and the ruling power. expert circles, which give different Moreover, the fate of these laws that came assessments. into effect upon the signature of the VR Firstly, politicians and commentators have speaker is unclear as such a mechanism is different opinions as to whether the ruling of not stipulated in the 1996 Constitution and the CCU implies the automatic the ruling of the CCU gave grounds to speak reinstatement of the effect of the about the legitimacy of the most important Constitution of 1996. While certain political institutions of power that were formed under analysts and representatives of the the 1996 Constitution. opposition government say revival of the The situation remains complicated as the 1996 Constitution is impossible, the current CCU failed to envisage any transitional ruling power long ago made it clear that it provisions regarding the authorities and the interprets this ruling as such. term of cadence of the main bodies of state If there is no constitutional majority power. In particular, experts believe the controlled by the Party of Regions, ruling of the CCU must make the re- representatives of the government will not appointment of the Cabinet of Ministers in propose amendments to the Constitution accordance with the norms of the 1996 understanding that the position of the CCU Constitution compulsory. Representatives of has been exhausted and no longer requires the ruling coalition beg to differ. further intervention of the parliament. The Finally, the holding of future elections is statements of members of the Party of simply a matter of time. Expert political Regions and President Viktor Yanukovych, analysts are convinced that in accordance which consider the ruling an automatic with the ruling of the CCU the term of revival of the 1996 Constitution, confirmed power of the existing Verkhovna Rada this fact. should be four instead of five years and the At the same time, the parliament will be next parliamentary elections should be held forced to make amendments to a number of in 2011. However, there are serious doubts laws adopted on the basis of constitutional as to whether or not the members of the changes made in 2004 in order to bring them ruling power will agree to this as the date of into conformity with the Constitution of the next elections depends solely on its 1996. Be that as it may, whether such decision. legislative changes will be consistent is

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Conclusions and recommendations

The ruling of the Constitutional Court of October 1, 2010 confirmed for many the degree of its political engagement and lack of qualification. All the main points of its ruling were severely criticized by expert political analysts, who agree that this will lead to constitutional-legal chaos. The fact that this decision violates the most fundamental principles of Ukrainian legislation and transcends the boundaries of the institution of power ruling may serve as a precedent for further exploitation of bodies of power for political aims is quite alarming Under such circumstances, much depends on how the representatives of the main bodies of state power carry themselves. If the ruling power does not change its position and interprets the ruling of the CCU as an automatic return to the 1996 Constitution, its representatives should gradually conform to the new edition of the Constitution, in particular, bring all of the most important laws in conformity with it, form a Cabinet of Ministers according to the new rules and change the dates of holding the next presidential and parliamentary elections. However, the more effective and legitimate solution to the problem would be if the Verkhovna Rada form a Constitutional Commission and draft and submit amendments to the Constitution taking into account the opinions of experts and representatives of the opposition in compliance with all procedural requirements.

 Foreign policy

UKRAINE-NATO RELATIONS: A PERIOD OF LOST OPPORTUNITIES?

On September 29 the Ukraine-NATO Commission held a meeting in Brussels at the level of ambassadors. The same day, NATO Secretary General Anders Fogh Rasmussen gave an interview to Ukrainian information agencies. Answering journalists’ questions, he pointed out that NATO will continue to conduct an “open door” policy for Ukraine, promised to invite Ukraine to participate in creating an anti-missile defense system and informed of the invitation of the Ukrainian leadership to attend the future NATO summit in Lisbon scheduled for November 19-20 of this year.

What prompted the NATO secretary general to announce an “open door” policy for Ukraine? What changes can there be in Ukraine-NATO relations in the foreseeable future?

Discussion of cooperation

The main topic on the agenda of the meeting meeting the Ukrainian side assured it will of the Ukraine-NATO Commission held on conduct construction cooperation and September 29 was the priorities of political dialog with NATO and hoped that development of the two sides. During the the latter would include the principles of 7

Democratic initiatives foundation partnership with Ukraine and envisions Both these events may testify to a revival of Ukraine’s place in the Euro-Atlantic system Ukraine-NATO relations, moreover that the of security in the new Strategic Concept of need for cooperation with the North Atlantic NATO currently being devised. Alliance is obvious to most Ukrainian In their turn, representatives of NATO gave political forces. Nevertheless, the fact that a high assessment of Ukraine’s contribution the conversation Viktor Yanukovych held to guaranteeing a collective system of with the secretary general of NATO was security, in particular its participation in practically not covered in the news is quite peacekeeping operations in Afghanistan. telling. This can be explained by the fact President Viktor Yanukovych discussed the that the team of President Yanukovych fears issue of bilateral cooperation with NATO raising the sensitive topic of NATO on the Secretary General Anders Fogh Rasmussen eve of the local elections in order to not at the meeting of the Ukraine-NATO annoy its supporters. Commission, which was held a week after the Ukrainian president’s visit to the U.S.

Prospects of relations

On the day of the meeting of the Ukraine- the same time, correctly making the NATO Commission Rasmussen gave an prospects of Ukraine’s membership in the interview to Ukrainian information agencies. Alliance dependent on its achievements. His most sensational statement was the Speaking with journalists Rasmussen also assurance that the doors to NATO remain promised to invite Ukraine to participate in open for Ukraine provided it wants this and the anti-missile defense system (AMD), meets the corresponding criteria. Such a which is intended to defend the peaceful statement to a certain degree surprised population. In the opinion of Ukrainian Ukrainian journalists and commentators, experts, the participation of Ukraine in the given that in July 2010 the Verkhovna Rada AMD system has not only been realized of Ukraine passed the law “On the from the technical aspect. Indeed, all Principles of Domestic and Foreign Policy”, existing observation stations can be used to which included a provision on the neutrality its advantage. of Ukraine. On the one hand, this would allow Ukraine Some political experts are convinced that to more successfully control its own such a move by NATO sent a signal that it airspace. On the other hand, it would serve perceives Ukraine as a sovereign state as a strategic counterbalance to the influence capable of independently defining its own of Russia and demonstrate Ukraine’s ability security policy and also does not equate it to make its own decisions in the sphere of with the current ruling power, thereby security. leaving it a chance to review its foreign At the same time, the glaringly obvious policy priorities in the event of changes in dependence of Ukraine on Russia in this its political upper echelon. sphere will more likely cast doubt on Other analysts interpret the statement of the Ukraine’s participation in an AMD system. NATO secretary general as a pure formality To what extent the Ukrainian government dictated by the limitations of diplomatic counteracts Russian influence will largely protocol. They believe this was the reaction define the course and results of the next of NATO to the change in Ukraine’s foreign NATO summit in Lisbon on November 19- policy course, thus maintaining its 20 to which Anders Fogh Rasmussen invited principled position of enlargement and, at Viktor Yanukovych.

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Conclusions and recommendations

The latest developments in Ukraine-NATO relations led to their revival and simultaneously proved that there are serious gaps in such relations. At the meeting of the Ukraine-NATO Commission both sides discussed further prospects of cooperation on a general level, but at the same time maintained their closing positions. At the same time, the statements of NATO Secretary General Anders Fogh Rasmussen attested to the existence of a “window of opportunities” for Ukraine. Whether it will take advantage of them depends first and foremost on the will of the Ukrainian government and its ability to counteract the powerful influence of Russia on foreign policy. Under such circumstances, the activation of cooperation with NATO, including within the AMD system, may serve as a guarantee of balancing the foreign policy of Ukraine and limitation of its dependence on Russia. Cooperation with NATO should be the priority of Ukraine’s foreign policy, regardless of whether it sets for itself the goal of membership in this organization. In other words, this will guarantee Ukraine’s inclusion in the system of Euro-Atlantic security and new NATO operations and initiatives and demonstrate the independent nature of Ukraine’s foreign policy, regardless of any position that Russia may take.

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“Focus on Ukraine” – a weekly publication of the Democratic Initiatives Foundation that offers insight into the main political events in Ukraine, as well as commentary and recommendations of experts in a narrow field.

Experts: Volodymyr Gorbach Ihor Kogut Ihor Koliushko Oleksandr Paliy Mykola Sungurovskiy Yurij Yakimenko

Аnalysts: Maksym Pobokin Oleksij Sydorchuk Natalya Yakymchuk (Project Coordinator)

Editor-in-chief: Iryna Filipchuk

The “Focus on Ukraine” is published by the Ilko Kucheriv Democratic Initiatives Foundation (DIF) as part of its project implemented under Ukraine National Initiatives to Enhance Reforms (UNITER) program, which is funded by the United States Agency for International Development (USAID) and implemented by Pact Inc. This information product is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents of the publication are the responsibility of DIF and do not necessarily reflect the views of USAID, Pact Inc. or the United States Government. No part of this report may be reproduced or transferred in any form or by any means, graphic, electronic, or including photocopying or by any information storage retrieval system, without the proper reference to the original source.

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