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Current requirements and recommendations on constitutional reform in Ukraine of the Parliamentary Assembly and Venice Commission

23.06.2014
Constitutional order /
Constitutional reform

Current requirements and recommendations on constitutional reform in Ukraine of the Parliamentary Assembly and Venice Commission


 

 

 

 

 

 

 

within the project 
“The speedometer “Ukraine – EU”:
Constitutional and Judicial Reform”,
financed by European Union

Current requirements and recommendations

on constitutional reform in Ukraine

of the Parliamentary Assembly

and Venice Commission

Recommendation

Source

Carry out a genuine and comprehensive constitutional reform, adhering to the procedure set forth by the Constitution and based on democratic participation by all parts of the society.

p. 10 of the PACE Resolution1755 (2010) "Functioning of democratic institutions in Ukraine"

Opinion "On the constitutional situation in Ukraine"CDL-AD(2010)044

Introduce constitutional amendments that would establish a clear separation of powers, as well as introduce an adequate system of checks and balances amongst and within the executive, legislative, and judicial branches of government.

p. 2 of the PACE Resolution1755 (2010) "Functioning of democratic institutions in Ukraine"

p. 66 of Opinion on the constitutional situation in Ukraine CDL-AD(2010)044

p. 8 of the PACE Resolution 1549 (2007) "Functioning of democratic institutions in Ukraine"

Selected system of governance should be as clear and comprehensible as possible, while constitutional provisions should not create preconditions for unnecessary difficulties. If the presidential system in chosen, certain minimal requirements for parliamentary influence and control should be ensured. Under the parliamentary system, in turn, key requirements that follow from the principle of separation of powers should be complied with.

p. 14 of Opinion on the three drafts law proposing amendments to the Constitution of Ukraine CDL-AD(2003) 19

Ensure adequate mechanisms of parliamentary control over actions of the executive branch.

p. 27 of Opinion of the Venice Commission on constitutional situation in Ukraine following the adoption of the Constitutional Agreement between the Supreme Rada of Ukraine and the President of Ukraine CDL(1995)040-e

p. 66, 74 of Opinion on the constitutional situation in Ukraine CDL-AD(2010)044

Election legislation should be reformed. Problems in the parliamentary elections system are one of the reasons for political system’s weakness. A proportional system for parliamentary election should be adopted, to be based on open electoral lists and regional electoral districts.

p.12 of the PACE Resolution 1549 (2007) "Functioning of democratic institutions in Ukraine"

p.7.1.2. of the PACE Resolution1755 (2010) "Functioning of democratic institutions in Ukraine"

p. 32 of Opinion on the draft law amending the law on election of people’s deputies of Ukraine presented by people’s deputies Lavrynovych and Portnov  CDL-AD(2009)019

Free and independent mandate of the parliament members should be guaranteed. Constitutional provisions allowing the recall of people’s representatives by political parties (so-called imperative mandate) should be repealed.

1) p. 13 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

2) PACE Resolution 1549 (2007) "Functioning of democratic institutions in Ukraine"

3) p.7.1.3. of the PACE Resolution1755 (2010) "Functioning of democratic institutions in Ukraine"

Provisions concerning the establishment of parliamentary coalition should be eliminated from the Constitution.

p. 20 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Requirements concerning incompatibility of the parliamentary mandate with other types of activity need to be reviewed.

p. 17,18 of Opinion on the three drafts law proposing amendments to the Constitution of Ukraine CDL-AD(2003) 19

Procedure for initiating the issue of government’s responsibility needs to be reviewed. A requirement of 1/3 of members of Parliament’s constitutional composition appears too high; while provision prohibiting consideration of the Cabinet’s responsibility within a year following the approval of the Government’s Action Program appears unjustified.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 87)

A procedure for formation of the Cabinet of Ministers should ensure cohesion of this body.

p. 25 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

A constructive vote of no confidence in the Government should be introduced.

p.18 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Allocate responsibilities between the President and the Government in such a way as to avoid overlaps that could become a source of conflict between these two institutions.

p. 21-30 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Provisions granting the right to initiate legislation to both the Cabinet of Ministers and the President should be reviewed. This could lead to unnecessary political conflicts.

1) p.17 of Opinion of the Venice Commission on constitutional situation in Ukraine following the adoption of the Constitutional Agreement between the Supreme Rada of Ukraine and the President of Ukraine CDL(1995)040-e

2) Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 93)

3) p.29 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Procedure for countersigning should be improved.

p. 33, 34, 45 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Introduce a rule under which appointments by Parliament to offices that are characterized by political neutrality of their functions should be done by a simple majority vote.

1) p. 32 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

2) p.35 of Opinion on the three drafts law proposing amendments to the Constitution of Ukraine CDL-AD(2003) 19

The number of votes needed to overcome the President’s veto should be reduced. The requirement of 2/3 vote of the Parliament’s constitutional composition is excessive.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 94)

Ombudsman’s role should be strengthened.

p. 51 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

The President’s status should not include a provision that the President serves as the guarantor of human rights and freedoms. Guaranteeing human rights is the province of the courts.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 102)

Procuracy should not have a separate dedicated chapter in the Constitution.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on Chapter VII)

Introduce the requirement of supermajority for the appointment of Constitutional Court justices by the Parliament and the congress of judges.

p. 43, 44 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

A special requirement should be introduced, under which a preliminary decision on the removal of a Constitutional Court justice should be adopted by the Constitutional Court itself.

p. 46 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

Provide by the Constitution that the regulations concerning internal organization and functioning of the Constitutional Court should be adopted by the Court itself. The distinction between matters regulated by law and those reserved for regulation by the Court’s internal rules should be preserved.

p. 47 of Opinion on the amendments to the Constitution of Ukraine adopted on December 8, 2004 CDL-AD(2005)015

The guarantees of continuity in the work of the Constitutional Court should be enhanced.

1) Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 148)

2) Opinion on possible Constitutional and Legislative Improvements to ensure the uninterrupted functioning of the Constitutional Court of Ukraine CDL-AD(2006)016

Different approaches to the formulation of fundamental human rights and freedoms and social, economic, cultural, and environmental rights should be introduced. Fundamental rights should be fully ensured by court in the event of being violated. Social, economic, cultural, and environmental rights may not be directly ensured by court.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(general comments on Chapter ІІ)

Death penalty should be clearly outlawed by the Constitution. A formulation that “no one may be arbitrarily deprived of life” is ambiguous as far as the possibility of death penalty in Ukraine is concerned.

1)Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 27)

2) Opinion on the constitutional aspects of the death penalty in Ukraine CDL-INF(1998)001rev-e

When considering restrictions on constitutional human and civic rights and freedoms, the principle of proportionality should be introduced.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(general comments on Chapter ІІ)

The listing of rights that could be restricted under martial law or state of emergency should be reviewed. It is currently too long. The reasons for inclusion of right to housing and right to compensation of damages caused by the state are unclear.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(comments on article 64)

Provisions on the rights of legal entities should be introduced.

Opinion on the Constitution of Ukraine CDL-INF(1997)002(general comments on Chapter ІІ)