V. Muravyov Doctor of Law, Professor, Head of the Chair of Comparative and European Law Legal Reform in Ukraine icon

V. Muravyov Doctor of Law, Professor, Head of the Chair of Comparative and European Law Legal Reform in Ukraine




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НазваV. Muravyov Doctor of Law, Professor, Head of the Chair of Comparative and European Law Legal Reform in Ukraine
Дата28.12.2012
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V. Muravyov

Doctor of Law, Professor,

Head of the Chair of Comparative and European Law


Legal Reform in Ukraine


In Ukraine economic, political, legal and other reforms are delayed. Transition from command economy to market was not easy and the reformers themselves, including those involved in legal reforms, still struggle with the remnants of Soviet mentality.

Legal reforms are on the agenda for the past two decades since Ukraine’s independence, having become more urgent after the accession to the Council of Europe in 1995 and signature of Partnership and Cooperation Agreement in 1994 when the country moved closer to the EU.

Now the Association Agreement is due to be signed soon, but its signature will be hardly possible without prior completion of relevant reforms. Unfortunately all said above did not accelerate the reformation process whereas the efficiency of what has been and is being done is rather low.

So what are the factors that determine the course of legal reforms in the country?

Until recently legal reforms in Ukraine were aimed mostly at power consolidation in the hands of those who then had power. Democratization, human rights protection, and other country’s vital interests were not among the priorities of legal reformation. The main task was getting more power to control money flow. The reforms were made by few insiders without broad public debate.

Legal reforms had no reference to social and economic changes, without this relationship, however. any reform stalls. Factors shown above generated legal nihilism in the society and the Parliament itself has became a major offender enjoying virtually no support of the society. Strong evidences are a two-meter high fence and numerous militia units patrolling Parliament premises.

Unreformed law enforcement bodies violate human rights, which shows itself in the number of complaints brought to the European Court of Human Rights by the citizens of Ukraine. The country is the fourth among European countries, considerable share of pleas being against law enforcers.


^ Political reform


To overcome the crisis during Orange Revolution in December 2004 the Supreme Council adopted law No 2222-IV “On introducing changes into the Constitution” and (in one package) “On amendments to the law on presidential elections”. The package initiated political reform that introduced the transition from presidential-parliamentary to parliamentary-presidential republic, formation of the government by the coalition of parliament factions, and prolongation of the term of the Supreme Council to 5 years. After V. Yanukovsch and the Party of Regions came to power on October 1, 2010 the Constitutional Court of Ukraine recognized the law “On introducing changes into the Constitution” of December 8, 2004 such that contradicts the Constitution of Ukraine. The grounds for the ruling were violation of the hearing procedure during law discussion and adoption. The Constitutional Court of Ukraine re-enacted the Constitution of 1996 and instructed state bodies to bring the legislation of the country in compliance with June 28, 1996 wording of the Constitution.

In this way the powers of the president were considerably broadened and those of the Parliament diminished. However, one can hardly call it a reform.

Therefore another constitutional reform is on the agenda in Ukraine, although the authorities still have no clear vision of such reform. Recently aiming at the preparation for the constitutional reform The Commission on Democracy an Rule of Law has been formed. Unfortunately the Commission has insufficient representation of Ukrainian scholars and independent constitutional law experts. The National Constitutional Assembly is also said to be on the agenda. A separate task force was set up to work on election law.

It is vitally important to correlate the components of constitutional reform and accord the latter with social and economic reforms.

The Venice Commission advises that Ukraine should undertake a new constitutional reform. It is to be made by the Parliament as by a legislative body elected by popular vote: it is to specify a clearer mechanism of checks and balances as well as introduce judiciary reform and revise the powers of the Prosecutor General.


^ Administrative reform


Administrative reform must introduce gradual formation of rational mechanism of state governance which would allow to considerably strengthen and improve executive power, deepen its interaction with local self-government bodies, provide for civil participation in state policy formation.

The Constitution of Ukraine of June 28, 1996 became legal platform for administrative reform. Later on during 15-year period central government took certain steps to determine the goal and vectors of administrative reform.

On July 22, 1998 the President signed Decree No 810/98 “On measures to introduce the concept of administrative reform in Ukraine”. The Decree states that the reform will be based on the guidelines of the Concept of Administrative Reform developed by the State Commission on Realization of Administrative Reform in Ukraine.

Having analyzed the state of fulfillment of the above provisions one would observe that the tasks put had not been fulfilled and only some normative act had been adopted.

In 2010 the Law of Ukraine “On Civil Service” was adopted.

The functions of ministries and agencies were optimized, steps were made to avoid doubling and reduce the number of workers. In this context attention is to be paid first and most of all to Presidential Decrees No 1085/2010 “On optimizing the system of central executive bodies” of December 9, 2010 and No 370/2011 “On issues related to optimization of the system of central executive bodies” of April 6, 2011. However strange it may seem, the optimization also affected the Bureau of the Secretariat of the Cabinet of Ministers dealing with European integration.

The law “On the Cabinet of Ministers” was adopted in 2011. It stated that ministers’ posts were to be considered political and hence not covered by the law “On Civil Service”.

Also in 2011 the law “On Basics of Prevention and Fighting Corruption” was adopted. That initiated the formation of Single register of persons brought to responsibility for corruption.

Generally speaking, to the goals of administrative reform steps taken by the authorities must be systemic and mutually correlated.


^ Judiciary reform


1996 Constitution made judiciary an independent branch of power. As concerns judiciary reform the most important for it is the law of 2010 “On judiciary and judge status”.

According to this law the judiciary system is formed by courts of general jurisdiction and a court of constitutional jurisdiction. General jurisdiction courts consist of local courts, courts of appeals, high specialized courts and the Supreme Court.

According to the law the Supreme Court of Ukraine is regarded as the highest judiciary body in the system of general jurisdiction courts, whereas high specialized courts are regarded as the highest judiciary body in the system of specialized courts (Art. 17).

The principle of instances has been also changed. The Supreme Court being in the list of appellation instances together with courts of appeals and cassational courts allows to speak about the existence of the fourth instance. This, however, does not bring us closer to European standards since such an arrangement is virtually missing in Europe.

Judiciary reform has not resolved the issue of case hearing jurisdiction. After the reform there is no body designed to settle case jurisdiction disputes. Before the reform it was done by the Constitutional Court.

European institutions (Venice Commission, Parliamentary Assembly of the Council of Europe) made their comments on judiciary system, types of courts and prosecution procedure after new legislation. Their comments and recommendations unambiguously show that should they not be given due attention, the judiciary system of Ukraine will hardly be regarded as complying with democratic standards of European countries which may block the EU membership for Ukraine.

Thus, considering the importance of Ukraine adherence to European legal standards the acceleration of legal reform becomes top priority. The issue is really important for protection of human rights and rule of law in the country as well as for the national interests as a whole.




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