Background

In the spring 2014, the Venice Commission was asked by the Verkhovna Rada of Ukraine to assist in the preparation of amendments to the constitution of Ukraine. On 25 May 2014, presidential elections were held in Ukraine, which resulted in Mr Petro Poroshenko becoming President of Ukraine.

At its June 2014 Plenary Session, following the announcement by the Ukrainian authorities that they would seek the Commission’s assessment of the draft amendments to the constitution before the summer recess, the Venice Commission gave mandate to the rapporteurs to transmit the preliminary opinion based on their assessment to the Ukrainian authorities prior to its submission at the Plenary of October 2014.

President Poroshenko prepared a set of constitutional amendments, which he submitted to the Verkhovna Rada on 2 July 2014 (CDL-REF(2014)027). No public discussion of these amendments took place. By a letter of the same date, transmitted to the Secretary General of the Council of Europe on 7 July 2014, President Poroshenko requested the Venice Commission to prepare an opinion on these draft amendments “in the shortest time possible, in view of the need to consider this document during the current session of the Verkhovna Rada of Ukraine”.

The present preliminary opinion was sent to the Ukrainian authorities on 24 July 2014. It was subsequently endorsed by the Venice Commission at its 100th Plenary Session (Rome, 10-11 October 2014).

Conclusions

The draft constitutional amendments under consideration follow in some respects previous recommendations of the Venice Commission; the envisaged abolition of the imperative mandate and of the general supervisory powers of the Public Prosecutor’s Office are long awaited and are to be welcomed. The abrogation of the supervisory powers of the Public Prosecutor’s Office is a particularly important step forward, finally complying with a commitment undertaken by Ukraine when joining the CoE.

The envisaged shift towards decentralisation is also to be commended. The territorial structure of Ukraine will be based no more on “the combination of centralisation and decentralisation” as is now the case, but only on “decentralisation in the exercise of state power”. Regional and district councils will elect independently their own executive bodies, chaired by their president and accountable to them. State administrations at the regional and district level will be removed. Thanks to the new definition of “community”, the territory of Ukraine should be totally divided into communities. The principle of subsidiarity is duly introduced. These are positive elements, which should be welcomed. This reform might enable the establishment of a modern municipal government in accordance with the principles and the spirit of the European Charter of Local Self-Government. Certain amendments and improvements are nevertheless necessary.

The draft constitutional amendments bring about a shift of power from the parliament towards the President. The latter is notably granted the competence to appoint and dismiss certain key high state officials without the involvement of any other State organs. Regrettably, the constitution does not lay down the grounds for dismissal, nor does it defer to the law on this point (this is true also as regards Constitutional Court judges). The President will appoint representatives in regions and raions with the task of supervising local government and co-ordinating the state administration. The President’s powers are therefore, overall, considerably strengthened.

The draft amendments under consideration do not address the judiciary. The Ukrainian authorities have explained that the President was barred from submitting amendments to the provisions on the judiciary because a set of proposed amendments to these provisions was already pending before the Verkhovna Rada. The first set of amendments has now been rejected, so that it is again possible to address this area. The Venice Commission has repeatedly urged the Ukrainian authorities to amend the constitutional provisions on the judiciary. The Commission had also supported the drat amendments which have just been rejected by the Verkhovna Rada, and regrets that this long-awaited and extremely urgent reform has not yet taken place. The Commission urges once again the Ukrainian authorities to proceed swiftly to the reform of the judiciary in conformity with the applicable standards of independence.

To the knowledge of the Venice Commission, the Ukrainian civil society has neither been informed nor consulted on the amendments under consideration. If the exceptional circumstances prevailing in Ukraine today may have justified an exceptionally speedy preparation of the amendments, the Venice Commission wishes to reiterate that it is essential in order for a constitutional reform to succeed that it should be prepared in an inclusive manner, notably through broad public consultations. The draft amendments under consideration will therefore have to be submitted to public discussion in the course of the subsequent procedure and before their final adoption.

The need for constitutional reform in Ukraine is obvious and urgent. A constitution, however, is not only a temporary political act: it is the legal foundation of the state. Amendments to the constitution should be sustainable and the constitution should be stable also in the longer perspective.

The Venice Commission has been informed that the President of Ukraine intends to revise the draft constitutional amendments, on the basis not only on the principles and standards of the Council of Europe in the field of constitutional development, but also on broad political and public consensus. The Venice Commission welcomes this intention; it hopes that this preliminary opinion will assist the President of Ukraine and stands ready to continue to co-operate in this endeavour.