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