report3 monitoring pda 2010 full eng

8/6/2019 Report3 Monitoring PDA 2010 FULL ENG

1/97

1

The 3 rd interim report

by the civil societys monitoring

of implementation of EU-Ukraine Association Agenda priorities

in 2010


2/97

2

Table of contents:

EXECUTIVE SUMMARY...........................................................................................................................31. Introduction .......................................................................................................................................5

2. Results of the monitoring ..................................................................................................................8

3. Implementation of AA priorities in the field of political dialogue: election law, constitutionalreform, judiciary reform, reform of the criminal process, national minorities, fight againstcorruption, human rights.....................................................................................................................12

4. Implementation of AA priorities in 2010 in foreign and security policy .........................................15

5. Implementation of AA priorities in 2010 in the field of the border management..........................16

6. Implementation of AA priorities in the field of trade and trade-related issues .............................17

7. Implementation of AA priorities in energy cooperation, including nuclear issues.........................18

8. Implementation of AA priorities in the public procurement...........................................................20

9. Implementation of AA priorities in other fields of cooperation: state internal control and externalaudit and control; reform of the tax service, statistics, transport, social co-operation, public health..............................................................................................................................................................21

10. Implementation of AA priorities in 2010 in the field of environment ..........................................23

11. Conclusions....................................................................................................................................25

Detailed priority by priority overview (outcomes of 2010).................................................................26

Annex 1. Generalized evaluation of implementation of the Association Agenda priorities: results of 2010 .....................................................................................................................................................94

Annex 2: Experts of the monitoring.....................................................................................................96


3/97

3

EXECUTIVE SUMMARY

In 2010, Ukraine implemented only 8 out of 70 analyzed reform priorities, outlined in the EU-UkraineAssociation Agenda (AA), the key document regulating EU-Ukraine relations. Trends during thereporting period showed that progress in the reforms agenda is too slow, and a clear regress exists ina number of fields.

These are the major conclusions of the third interim monitoring report, prepared by a civil societysmonitoring of the implementation of the EU-Ukraine Association Agenda and presented on March 17 th ,2011 in Kyiv. The project is supported by the International Renaissance Foundation (OSI Network) .

Experts conclude that in 2010 only 8 priorities of the EU-Ukraine Association Agenda have been fullyimplemented by the Ukrainian government. 57 priorities are still at the implementation stage; 5priorities have not been implemented at all.

For example, in 2010 Ukraines President, the Verkhovna Rada (the Ukrainian parliament) orthe Constitutional Court have done no steps to execute an inclusive constitutional reform . On thecontrary, measures taken by these authorities pushed Ukraine further away from an efficientconstitutional system of checks and balances.

Administrative reform , according to experts, must be assessed negatively , since it does not settleexisting problems and in some cases creates new ones. Adopted measures are in fact aimed atcentralization of the power vertical and enhancement of the Presidents competences.

Adoption of Ukraines law On access to public information can be seen as a significant positive step .Adoption of this procedural law was one of the EU requirements, set to encourage transparency of theactivities of public authorities. In order to ensure efficient application of this law there is a need todevelop additional regulatory acts.

Public administrations measures to ensure efficiency of the election system at parliamentary and localelections do not fully correspond to principles of the OSCE and Council of Europe, and sometimes evencreate conditions for violating election rights.

Ukraines law On Judicial Order and the Status of the Judges increased threats to the independenceof the judges . First, it established too short deadlines for examination of cases, and the judges risk to bedismissed if they fail to meet them. The new law does not establish any competition-based principles of promotion of the judges, and does not define any criteria of appointing the judges of the higher levels.

The authorities have not shown any proper enthusiasm in the field of the criminal procedure reform .The justice system (especially in criminal and administrative cases) has become controlled andadministrated by public authorities and used by it as an instrument to ban peaceful assemblies, toorganize criminal persecutions of the opposition or other persons posing political menace to the newadministration.

Some progress has been made in 2010 in the field of administrative permissions . Abolishment of 22types of licensed economic activities and implementation of a system of electronic state registration of economic operators has been the most important results in the field.

In the field of the fight against corruption the time of entry into force of Ukraines anti-corruption laws

was delayed twice. Finally, in late December these laws lost their effect without even entering intoforce. But the draft law proposed by the President has only technical differences compared to theprevious laws.


4/97

4

he pace of adoption and implementation of the technical regulations remains far from optimal. heprocess of renewing standards has been slowed down due to lack of budget funds, as well as delays in theadoption of a National standardization plan for 2010, adopted only on August 16 th , 2010.

In the field of a reform of the national system of sanitary and phyto-sanitary control efficiency of bringing standards and practices closer to the EU remained low in 2010.

In the energy field , the Ukraines official accession to the Treaty establishing the Energy Community of theEuropean Union and South-East Europe has been the most important achievement. Ukraines accessionto the EUs internal energy market will give a start to Ukraines sectoral integration into the EU, one of the elements of the future Association Agreement. At the same time, if the reform pace remains as low,as it is now, Ukraine will not be able to use bulk of benefits open within the Energy Community.

Ukraines biggest achievement in the energy co-operation with the EU in 2010 consists in adoption of the law On foundations of functioning of the natural gas market . The law provides legal foundationsfor reforming the Ukrainian gas market, based upon relevant EU directives. It sets up Ukraines concretecommitments to ensure non-discriminated access of companies and consumers to different segments of the gas market, which will create conditions for competition in the sector.

Adoption of Ukraines public procurement law in 2010 was a positive step to improve state regulation of the field and its approximation to the European standards. However, in six months after the adoption of the law Ukraine brought a number of amendments having a negative impact on the laws efficiency andlimiting the scope of goods and services to which the law is applied. This provoked sharp criticism fromthe EU side, and even suspension of the EUs budget support program.

In the environmental field , low level of implementation of the Framework convention on climatechange and Kyoto protocol is related to Ukraines lack of political will to fight against climate change.Lack of proper control in the field is also a negative factor.

Background

The third stage of the civil societys monitoring is a part of a project Implementation of the EU-UkraineAssociation Agenda: experts view performed in December 2010 February 2011. The project isimplemented by a consortium of Ukrainian think tanks, including The Ukrainian Centre for IndependentPolitical Research, The Institute for Economic Research and Policy Consulting and The Centre forPolitical and Legal Reforms . The media support is provided by the international NGO "InternewsUkraine".

The project is supported by the International Renaissance Foundation .

It is implemented in co-operation with the Civil Society Expert Council under the Ukrainian section of the EU-Ukraine Cooperation Committee, as well as with the working group on Environmental EUintegration, that has monitored and analyzed the Environment segment of AAs priorities. Themonitoring involved in total more than 30 experts of the Ukrainian NGO think tanks.

Contacts: Director of the project Yulia Tyshchenko, [email protected] ; Coordinator of the project Svitlana Horobchyshyna, [email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]


5/97

5

1. Introduction

In 2010 EU-Ukraine bilateral relations saw some positive trends: progress in negotiations on theAssociation Agreement, adoption (within the visa-free dialogue) of the Action plan on visa liberalization;accession to the European Energy Community. However, the year also brought in slowdown of

implementation of the Association Agenda priorities in political dialogue, human rights and fundamentalfreedoms, states internal control and external audit and control, information society, and environment.

Ukraine lacks co-ordination of the EU integration policy both on the systemic level and within individualcentral executive bodies. There is no government body charged with competences and capacities tocomprehensively assess and prevent risks related to the European integration, in the field of freedom,

justice and security and other areas. A so-called optimization of the central executive bodies initiatedby the President Victor Yanukovych in December 2010 1 lacked steps or measures to tackle thischallenge.

In 2010, a project Implementation of the EU-Ukraine Association Agenda (hereafter AA): expertsview has conducted civil societys monitoring 2 and analysis of actions taken by the Ukrainiangovernment aimed to implement priorities of the EU-Ukraine Association Agenda .

The project is implemented by a consortium of Ukrainian think tanks, namely The Ukrainian Center forIndependent Political Research 3, The Institute for Economic Research and Policy Consulting 4 and TheCenter for Political and Legal Reforms 5. The media support is provided by the international NGO"Internews Ukraine" 6. The project is implemented in cooperation with the Civil Societys ExpertsCouncil under the Ukrainian part of the EU-Ukraine Cooperation Committee 7, as with the workinggroup on Environmental EU integration that has monitored and analyzed the Environment segment of AA priorities. The monitoring involved in total more than 40 experts of the Ukrainian NGO think tanks

(see Annex). Internews-Ukraine has provided a monitoring of Ukrainian media publications related topublic policy measures linked to implementation of the Association Agenda.

The project is supported by the International Renaissance Foundation (OSI Network) 8.

The experts of the monitoring have analyzed implementation of 70 priorities of the AssociationAgenda, including 3 additional priorities

9.

They focused their analysis on priorities in the following segments, as defined in the following EU-Ukraine Association Agenda chapters:

Strengthen the stability, independence and effectiveness of institutions guaranteeing democracyand the rule of law;

1 Ukraines Presidents Decree No 1085/2010, "On optimization of the system of central executive bodies", URL :http://www.president.gov.ua/documents/12584.html

2 The goal of the civil society monitoring is to evaluate implementation by Ukrainian and European parties of EU-Ukraine AssociationAgenda priorities, identified by the Senior officials committee for 2010, as well as to influence implementation of the AA prioritiesthrough communicating results of the monitoring to Ukraines government and the European Commission.

3 http://www.ucipr.kiev.ua/4 http://www.ier.com.ua/ua/5 http://www.pravo.org.ua/6 http://www.internews.ua/7 http://www.eu.prostir.ua/themes/rada.html/8 http://www.irf.ua/9 "Administrative and procedural reform in public administration" and "Development of local self-governance and administrative and

territorial reform "
http://www.president.gov.ua/documents/12584.htmlhttp://www.ucipr.kiev.ua/http://www.ier.com.ua/ua/http://www.pravo.org.ua/http://www.internews.ua/http://www.eu.prostir.ua/themes/rada.html/http://www.irf.ua/http://www.irf.ua/http://www.eu.prostir.ua/themes/rada.html/http://www.internews.ua/http://www.pravo.org.ua/http://www.ier.com.ua/ua/http://www.ucipr.kiev.ua/http://www.president.gov.ua/documents/12584.html


6/97

6

Ensure respect for human rights and fundamental freedoms by comprehensive cooperation onthe protection of human rights and fundamental freedoms, covering both individual cases andissues concerning international law instruments on human rights;

Combating Corruption;

Further strengthen convergence on regional and international issues, conflict prevention andcrisis management;

Work jointly to make multilateral institutions and conventions more effective, so as to reinforceglobal governance, strengthen coordination in combating security threats and addressdevelopment related issues;

Further develop co-operation in addressing common security threats, including combatingterrorism, non-proliferation of weapons of mass destruction and illegal arms exports;

Development, adoption and implementation by Ukraine of the National Environment Strategy forthe period till 2020 and the National Environment Action Plan for 2009-2012 in order to be ableto take measures to implement budgetary support;

Further development and implementation of Ukrainian environmental legislation, strategies andplans, in particular on environmental impact assessment, strategic environmental assessment,access to environmental information, and public participation;

Development of national implementation instruments in line with multilateral environmentagreements signed and ratified by Ukraine and the European Community, as enlisted in theAnnex;

Promoting the implementation of the Bucharest Convention and its Protocols and workingtogether with the Parties of this Convention to promote the accession of the EuropeanCommunity to the Convention;

Exploring the participation of Ukraine in selected European Environment Agency activities oninformation collection and dissemination;

Establishing the REC-Ukraine , inter alia, to raise environmental awareness and promote the roleof the civil society on environmental matters.

Co-operation on Justice, Freedom and Security issues;

Trade and trade-related matters. Technical regulations on industrial policy;

Public procurement;

Intellectual property; Trade facilitation and customs.

The monitoring research was based upon open sources. Experts analyzed legal acts related to Association Agendas priorities, concepts, draft laws, information and analytical data reflecting actionstaken by the government and related to AA implementation.

The monitoring also included a media monitoring component in which Internews-Ukraine, a Ukrainianmedia NGO, analyzed media publications on public policies related to the Association Agenda.


7/97

7

Experts have focused their analysis on the following key issues:

General assessment of public authorities actions in implementing AA priorities;

Sufficiency or insufficiency of measures identified in governments action plans aimed to implementspecific priorities of the Association Agenda;

Public policy process aimed to implement the AAs priorities ;

Impact assessment of the relevant actions taken by public authorities aimed to implement AApriorities;

Transparency and openness of the public administration bodies on issues related to AAimplementation;

Recommendations as to prolong or not to prolong implementation of specific AA priorities in 2011.


8/97

8

2. Results of the monitoringDuring the third stage (December 2010 February 2011) of the Civil societys monitoring of the AAimplementation the experts analyzed implementation of 70 AA priorities.

In total, experts conclude that only 8 priorities of the EU-Ukraine Association Agenda have been fullyimplemented by the Ukrainian government. 57 priorities are still at the implementation stage; 5

priorities have not been implemented at all.

Figure 1. General evaluation of the public authorities measures taken to implement AssociationAgendas priorities

Implemented, 8

Under implementation, 57

Not implemented, 5

Source: Results of the Civil Societys monitoring of the AA implementation

The experts assessed the following priorities as implemented : support in developing a Ukrainian system of Protection of Personal Data upon ratification of the

Council of Europe 1981 Convention on Protection of Personal Data and the Additional Protocolthereto and its implementation. This should serve as one of the prerequisites for concludingagreements with Europol and Eurojust, including exchange of operational information.

work towards the establishment of an independent review body in line with Directive 89/665 asamended by Directive 2007/66 and ensure that it has sufficient administrative capacity toprovide effective remedies;

work towards rapid accession of Ukraine to the Energy Community Treaty. work towards further harmonization of the Ukrainian public procurement legislation with the EU

acquis as set out in Directives 2004/17 and 2004/18 10 ;

take all necessary steps for the entry into force of the law of Ukraine on the Principles of theFunctioning of the Market in Natural Gas which should be in line with the relevant EC norms(Directive 2003/55/EC, Regulation EC 1775/2005);

continue cooperation on the EC-IAEA-Ukraine Joint Project on nuclear safety evaluation of Ukrainian nuclear power plants.

Development, adoption and implementation by Ukraine of the National Environment Strategy forthe period till 2020 and the National Environment Action Plan for 2009-2012 in order to be ableto take measures to implement budgetary support

Access to public information

10 However, amendments introduced into the public procurement law in early 2011 question the positive assessment given toimplementation of this priority. The amendments significantly narrowed the scope of application of the law.


9/97

9

Experts concluded that the following priorities have not been implemented :

promoting an inclusive constitutional reform process designed to further develop aconstitutional system of effective checks and balances between state institutions, in the light of the relevant recommendations of the Venice Commission;

further strengthening of efforts to improve the legal basis and practice in the area of detention,

in particular as regards pre-trial and administrative detention in order to address effectively theissue of arbitrary detention;

Consider the establishing of an independent police complaints mechanism.

Further development and implementation of Ukrainian environmental legislation, strategies andplans, in particular on environmental impact assessment, strategic environmental assessment,access to environmental information, and public participation;

development of national implementation instruments in line with multilateral environmentagreements signed and ratified by Ukraine and the European Community, in particular Convention on Environmental Impact Assessment in a Transboundary context (UN- ECE) (The EIAEspoo Convention).

Ukraines implementation of AA priorities has been mostly focused on economic aspects. This biastowards economy can be traced in the way how Ukraine reported about partial implementation of thefirst part of the so-called Fueles Matrix 11 , a plan of specific measures set to open the way for EUsmacro-financial assistance and improvement of access of Ukrainian goods to the European markets. Inparticular, Ukraine has renewed cooperation with the IMF, adopted an internal gas market law, ratifieda number of international conventions and programs, and kicked off their implementation. Ukraine hasalso been implementing measures aimed at reaching progress in visa-free dialogue 12 and adopted apublic procurement law 13 .

However, even these successes were not the end of the story. For example, after Ukraine adopted thepublic procurement law, it introduced amendments that diminished its efficiency, restricting the rangeof goods and services subject to public procurement tender procedures. Moreover, the Ukrainianadministration has also planned further changes, which already provoked a negative reaction by theEuropean Commission and the World Bank. In particular, in a response to the amendments brought intothe law, the European Union frozen its budget support to Ukraine. When we are preparing this report,Ukraine and the EU are holding an active dialogue aimed at renewing application scope of the publicprocurement law, which would re-open the way for the European financial support.

The civil society monitoring showed that there is a lack of transparency and openness of the publicauthorities in AA implementation. The administration also does not provide comprehensive andsystematic information to the public about measures taken to implement AA, about policyimplementation strategies and their consequences. During the year situation in this field has notimproved, and information provided by the public authorities on AA implementation remains generallyfragmented.

11 The "Fuele Matrix" is a document presented by the EU Commissioner Stefan Fuele in Kyiv on April 22nd, 2010. The plan previewsimplementation of concrete measures, aimed at attracting macro-financial assistance from the EU, improving access of the Ukrainiangoods to the European markets, reforming the technical regulation system, sanitary and phyto-sanitary control, public procurement,improvement of legislative and institutional basis in customs, fiscal, banking, energy fields, in combating corruption and facilitating visaregime between Ukraine and the EU.

12 On September, 21st, the Ukrainian Parliament adopted a draft law ratifying the Council of Europes Convention on actions againsttrafficking in human beings. On October 27 th , 2010, the Cabinet of Ministers approved a concept of integrated border management.Projects of migration legislation are being discussed in the government and in the parliament.

13 Ukraines law No 2289, adopted on June 1st, 2010.


10/97

10

The experts say that information disclosed by the public authorities is sufficient to evaluateimplementation of 5 priorities, partially sufficient for 51 priorities , and not sufficient for 9 priorities. Theinformation has not been made public at all concerning 5 priorities.

Transparency and openness of the public authorities concerning implementation of the EU-UkraineAssociation Agenda priorities

Information fullysufficient, 5

Informationpartially sufficient,51

Informationinsufficient, 9

No informationmade public, 5

Source: Results of the Civil Societys monitoring of AA implementation

Within the monitoring the experts also evaluated sufficiency of measures previewed by the relevantgovernments plans to implement the Association Agendas priorities .

The analysis showed that the measures proposed by the public bodies enable partial implementation of the 37 priorities and full implementation of 4 14 priorities. Instead, the proposed measures are fullyinsufficient to implement 11 priorities. The evaluation is difficult to make on 18 priorities, as nosufficient information has been disclosed by the public authorities. It is also important to note that it ismethodologically difficult to evaluate the impact of the political measures on the European integrationdevelopments, and to evaluate long-term political effects during the implementation of the relevantdecisions.

Sufficiency of measures previewed by relevant plans to implement Association Agendas priorities

Fully sufficient, 4

Enables partial

implementation of apriority, 37

Fully insufficient, 11

Difficult to say, 18

Source: Results of the Civil Societys monitoring of the AA implementation

14 The following priorities: Work towards the establishment of an independent review body in line with Directive 89/665 as amended byDirective 2007/66 and ensure that it has sufficient administrative capacity to provide effective remedies; Work towards further

harmonisation of the Ukrainian public procurement legislation with the EU acquis as set out in Directives 2004/17 and 2004/18; Take allnecessary steps for the entry into force of the law of Ukraine on the Principles of the Functioning of the Market in Natural Gas which shouldbe in line with the relevant EC norms (Directive 2003/55/EC, Regulation EC 1775/2005); Continue cooperation on the EC-IAEA-Ukraine JointProject on nuclear safety evaluation of Ukrainian nuclear power plants.


11/97

11

Impact of measures taken by relevant public authorities to achieve AA priorities

The experts have also given their assessment of the impact of measures taken by relevant publicauthorities to achieve AA priorities. Experts point at significant impact of public authorities measuresto achieve 9 AA priorities 15 in the fields of security, energy and justice. Experts also believe that thisimpact is satisfactory for 28 AA priorities. The impact is low for 30 priorities; no actions have been takento achieve 2 priorities 16 . More time is needed to evaluate impact of the newly adopted laws and legalacts on the reforms process, democratization of the society, analysis of their short- and long-termoutcomes during the political process.

Assessment of impact of relevant public authorities actions to achieve AA priorities

Maximal, 1

Significant, 9

Satisfactory, 28

Low, 30

No actions taken,2

Source: Results of the Civil Societys monitoring of the Association Agenda implementation

Recommendations as to continue nor not to continue implementation of specific priorities in 2011.

Experts believe that Ukraine should continue implementing 61 AA priorities for 2010 in 2011.

To continueimplementation,61

Not to continue,4

Difficult toassess, 5

15 The following priorities : continue the practice of jointly identifying opportunities for Ukraine to participate in future ESDP operations, building

on the good experience of Ukraines participation in EU operations in the Balkans, as well as the current discussionsrelating to Ukraine's possible participation in EU naval operation Atalanta;

continue cooperation on the EC-IAEA-Ukraine Joint Project on nuclear safety evaluation of Ukrainian nuclear powerplants;

take all necessary steps for the entry into force of the law of Ukraine on the Principles of the Functioning of theMarket in Natural Gas which should be in line with the relevant EC norms (Directive 2003/55/EC, Regulation EC1775/2005) ;

development of an appropriate legislative and institutional framework related to migration management with the aimof fighting illegal migration, smuggling and

trafficking in human beings, with the support of the EU ( in the part related to creation of a legal basis ); actively pursue the visa dialogue, developing the relevant conditions, with the long-term perspective of establishing a visa-free

regime between the EU and Ukraine, as agreed at the EU-Ukraine Paris Summit of September 2008 with special attention toissues such as document security, illegal migration including readmission, public order and security, and external relations (Inthe part of deepening co-operation between Ukraines and EU member states law enforcement services in exchange of experience on combating illegal migration, smuggling and trafficking in human beings).

16 The following priorities : Promoting an inclusive constitutional reform process designed to further develop a constitutional system of effective checks and

balances between state institutions, in the light of the relevant recommendations of the Venice Commission. consider the establishing of an independent police complaints mechanism


12/97

12

3. Implementation of AA priorities in the field of political dialogue: election law,constitutional reform, judiciary reform, reform of the criminal process, nationalminorities, fight against corruption, human rights

Despite declared European integration as a priority for Ukraines internal political changes,

developments throughout 2010 had a negative impact on democratic liberties of Ukraines citizens. In2010 Ukraines President, the Verkhovna Rada (the Ukrainian parliament) or the Constitutional Courthave done no steps to execute an inclusive constitutional reform . On the contrary, measures taken bythese authorities pushed Ukraine further away from an efficient constitutional system of checks andbalances. On March 9 th , 2010, Ukrainian parliament amended Ukraines law On Verkhovna Radasprocedure rules setting that individual members of the parliament can also enter the coalition formedinitially by the MPs factions. On September, 30 th , Ukraines Constitutional Court has ruled that a Law"On amending Ukraines Constitution voted on December 8th, 2004 17, had violated UkrainianConstitution. With this decision the Court renewed the Constitution in its 1996 version and redesignedUkrainian political system. The ruling of the Constitutional court potentially significantly increases

competences of the President, particularly in the field of the foreign policy, and facilitates return to acentralized public administration headed by the President. Measures taken by the administration have,as a result, worsened democracy and the rule of law in Ukraine.

The new administration has also reshaped the state mechanism, as well as balance of competences of high-level public authorities, including in the field of the executive. In December, 2010, in a decree No1085, Ukraines President reorganized a system of executive public authorities, decreasing the numberof ministries and liquidating some government bodies. Instead, all other executive bodies have receiveda status of central public institutions. Generally, this administrative reform , according to experts,must be assessed negatively , since it does not settle existing problems and in some cases creates newones. For example, the Government loses its status of the highest executive body, executing publicpolicies and administrating other executive bodies. An excessively big number of the central executivebodies (their number, jointly with ministries, exceeds 70) worsens co-ordination in the decision-makingprocess. Differentiation between political and administrative functions in the ministries is generally onlydeclarative. Re-organization of the public bodies does not take into account earlier doctrinal orlegislative achievements, and lacks a political and programming vision of the reforms.

Adopted measures are in fact aimed at centralizing the power vertical and enhancing the Presidentspowers. Taking this into account, the reforms can not be considered as success stories for enhancingefficiency of the public administration. Moreover, in some of the components these reforms annulprogress made in the previous years (this concerns, particularly, a proposal to liquidate government

committees and government bodies).

Adoption of Ukraines law On access to public information can be seen as a significant positive step .Adoption of this procedural law was one of the EU requirements, set to encourage transparency of theactivities of public authorities. The law must become an efficient instrument to implement a right onaccess to information, facilitate openness of the authorities and enhance fight against corruption. Inorder to ensure further efficient application of this law there is a need to develop a number of additional regulatory acts. These acts need to regulate handing of information requests and theirexamination. They also need to amend existing acts on procedures and deadlines for disclosing public

17 Decision of Ukraines Constitutional Court : 252 () " " 8 2004 2222-IV ( ), 1-45/2010, : http://www.ccu.gov.ua/uk/doccatalog/list?currDir=122407


13/97

13

information. They must also establish special departments in the public bodies dealing with informationrequests and disclosing public information.

The election legislation is being developed in a constantly changing political environment. Despite thefact that a prepared Election code 18 waits for examination in the Parliaments plenary, a Working groupunder the leadership of the Justice Minister is developing alternative election legislation, in line with the

guidelines received from the President. A draft law On Pan-Ukrainian referendum 19 does not fullymeet the task of ensuring rights of Ukraines citizens to participate in the governance. It also includesmechanisms to abuse the referendums and break the frameworks of parliamentary procedures inlegislation and constitutional issues. For instance, the draft law opens a possibility to bring a number of issues to a referendum, and to adopt a new Constitution (or a new version of the Constitution) at areferendum. Public administrations measures to ensure efficiency of the election system atparliamentary and local elections do not fully correspond to principles of the OSCE and Council of Europe, and sometimes even create conditions for violating election rights.

Ukraines law On Judicial Order and the Status of the Judges 20 increased threats to the independence

of the judges. First, it established too short deadlines for examination of cases, and if the judges do notmeet the deadlines, they risk to be dismissed. The new law does not establish any competition-basedprinciples for promotion of the judges, and does not define any criteria for appointing the judges of thehigher levels. There is only a requirement that a judge must have a relevant professional experience andthat he or she must pass an interview at the Higher Judges Qualifications Commission. A system of primary education of judges defined by the law does not correspond to the European standards, as itmay not be provided by the education institutions dependent on the Education Ministry 21 .

The authorities have not shown any proper enthusiasm in the field of the criminal procedure reform . OnAugust, 17 th , 2010, Ukraines president has created a Task Force on the reform of the criminal justice.The aim of the Task Force is to prepare, within 3 months, a new draft Criminal procedural code. Nomeeting of the Task Force has been held during the reporting period, however. Declared reforming of the criminal justice has been delayed indefinitely. The justice system (especially in criminal andadministrative cases) has become controlled and administrated by public authorities and used by it asan instrument to ban peaceful assemblies, to start criminal persecutions of the opposition and of otherpersons posing political risk to the new administration.

Some progress has been made in 2010 in the field of administrative permissions . Abolishment of 22types of licensed economic activities 22 and launch of an electronic state registration system foreconomic operators 23 have been the most important results in the field. The number of actorsempowered to exercise state supervision (control) in the field of economic activities 24 has been limited.

During the 2nd

part of the year the authorities have also limited the application scope of the law Onfoundations of the state supervision (control) of economic activity 25 , taking telecommunications,transit of natural and oil gas, architecture and construction control and supervision out of its scope 26.

18 Draft law No 4234-1 registered on March 23th, 201019 Draft law No 6278 registered on April, 29th, 201020 Ukraines law No 2453 adopted on July 7th, 201021 Article 66 of the Conclusions No 10 (2007) of the Consultative council of European judges "The council for the judiciary at the service of

the society".22 Law No 2608-VI adopted on October 10th, 2010.23 Law No 2608-VI adopted on October 10th, 2010. It will take effect on August 14 th , 2011.24 Law No 2399-VI adopted on July 1st, 201025 Law No 877-V adopted on April 5th, 2007.26 The exact list of relations brought out of the scope of the law, includes : control for cash register operations, national architecture and

construction control and supervision, te lecommunications, post services, Ukraines radio frequencies resource, national supervision
http://www.ccu.gov.ua/uk/doccatalog/listhttp://www.ccu.gov.ua/uk/doccatalog/list


14/97

14

The leadership is motionless on issues related to a key document a draft of the Administrative-procedural code which is again kept on the stage of repetitive improvement and harmonization.As a result, an important gap appears in proper regulation of relations between public administrationand private persons.

According to experts, throughout 2010 the practice of detention and arrests by the law enforcement

services and courts has become more widespread. Citizens more frequently face tortures and degradingtreatment. Unjustified detention remains a widespread practice applied by law enforcement services.

Throughout 2010 Ukrainian authorities have taken no measures to modernize legislation related tonational minorities . While the President tried to optimize the structure of the executive bodies, heliquidated the State committee on nationalities and religion, an institution co-ordinating policy of protecting national minorities, administrating resources aimed to implement state-wide programs of returning and settling deported Crimean Tatars, as well as people with other nationalities who returnedto Ukraine. But even earlier these programs were not always financed according to their needs. In thefield of inter-ethnical relations legal norms on ensuring national minorities rights against ethnic and

racial discrimination remain declarative. The same is valid for settling problems of integration of migrants, as well as inter-ethnic co-operation. Ukraine also failed so far to develop a comprehensive,systematic and long-term program of Roma integration. Ukraine also needs to teach tolerance andinternational dialogue at schools and universities.

During the reporting period, the Justice Ministry was preparing a new version of the anti-corruptionlaw . However, in 2010 the moment of entry into force of Ukraines laws On foundations of preventingand combating corruption 27 , On amending some Ukrainian legislative acts about responsibility forcorruption violations 28 , On responsibility of legal persons for committing corruption violations 29 wasdelayed twice. Finally, in late December these laws have lost their effect without entering into force.National Strategy of combating corruption in Ukraine, which needs to replace a Concept of combatingcorruption On the way to virtue adopted on September 11, 2006, has not been prepared and did notbecome a topic for public debate. Authorities (in particular, the Justice Minister) explained delay inentry into force of the anticorruption legal package with serious deficiencies present in the law. But thedraft law proposed by the President has only technical differences compared to the previous laws.

(control) over observation of license conditions for transporting natural and oil gas via gas pipelines, natural gas dis tribution, natural gas

supplies, storage of gas in volumes exceeding the level set by license agreements for economic activities related to natural gas storage.27 Ukraines Law No 1506-VI adopted on June, 11th, 2009, lost effect according to the Law No 2808-VI adopted on December, 21st, 2010.28 Ukraines Law No 1508-VI adopted on June, 11th, 2009, lost effect according to the Law No 2808-VI adopted on December, 21st, 2010.29 Ukraines Law No 1507-VI adopted on June, 11th, 2009, lost effect according to the Law No 2808-VI adopted on December, 21st, 2010.


15/97

15

4. Implementation of AA priorities in 2010 in foreign and security policy

In general, military cooperation with the EU develops according to AA priorities relevant to theDefense Ministry competences, as well as to the Working Cooperation Plan between Ukraines militaryforces and the EU Council Secretariat (in the field of the European security and defense policy) for 2010.This plan previewed 15 measures.

Ukraines involvement into the EUs operation Atalanta can be assessed as rather efficient andsufficiently supported by the government both on the legislative and institutional level. Besides, this jointaction is implemented against the background of a wider cooperation through a number of vectors,previewed by the Working cooperation plan between Ukraines Military forces and the EU CouncilSecretariat.

However, in 2010 cooperation with the EU on Ukraines possible participation in the future ESDPoperations required more consistency and co-ordination of efforts by different institutions.

One of the elements of Ukraines European integration policy consists in its integration into the EUssecurity dimension. Ukraine is trying to achieve this goal through involving its operation and militarycapacities into the European security and defense policy operations. Throughout 2010 Ukraine hascontinued joining the EUs foreign and security policy statements and common positions . In 2010Ukraine signed under 423 EU statements.

However, the major trends show that actions taken by the relevant ministries were insufficient toimplement the given priority. There is also lack of resources, which impedes more activity in this direction.


16/97

16

5. Implementation of AA priorities in 2010 in the field of the border management

Ukraine has adopted an Action Plan aimed at implementing the Concept of integrated bordermanagement. The document identifies institutions responsible for taking relevant measures, as well asdeadlines for these actions. However, a part of these measures need detailed definition of how they willbe practically implemented. There is the whole range of co-operation instruments between EU andUkraine aimed to implement the integrated border management, and the level of this cooperation issatisfactory. However, taking into account the importance of implementation of the priority for progressin EU-Ukraine relations in the fields of trade, customs cooperation and visa policy, as well as for theprogress in the field of mobility, the priority was not implemented with proper dynamism, necessarymeasures were often replaced by conferences or trainings for limited number of the workers of theNational border guards service.


17/97

17

6. Implementation of AA priorities in the field of trade and trade-related issues

Adoption of laws On states market supervision and control over inedible products 30 and On generalsafety of inedible products 31 can be considered as Ukraines biggest achievements in this field. Theselaws are extremely important for successful implementation of technical regulation reforms as theycomplement initiated transition to obligatory technical regulations and voluntary standards by a systemof inedible products safety control in retail trade. Today, the most important issue is if these laws,expected to enter into force in July, 2011, are properly implemented.

In May 2010, the Ukrainian government adopted a Plan of priority measures aimed to reform thesystem of technical regulations 32, fully in line with a relevant AA priority. The plan included developmentof laws about market supervision and inedible product safety. However, in 2010, Ukraine failed to adoptother laws needed to enhance the efficiency of the technical regulation system. For example, no lawwas adopted abolishing registration of producers technical compliance declarations. This requirementimpedes transition to technical regulations, since the registration process is lengthy and full of red tape.Ukraine also failed to adopt a law making the supplier responsible for supplying low-quality goods.

Representatives of the Derzhspozhyvstandard (Ukraines standardization body) admit that the pace of adoption and implementation of the technical regulations remains far from optimal. For example, theprocess of renewing standards has been slowed down due to lack of budget funds, as well as delays in theadoption of a National standardization plan for 2010, adopted only on August 16 th , 2010. At the sametime, adoption and implementation of technical regulations on some goods, developed according to theEuropean directives, is a key element in a transition from the obligatory certification of goods toevaluation of their capacity to meet relevant standards, according to international and Europeanpractice.

Similarly to the reform of the technical regulation system, in May 2010 the Government has adopted aPlan of priority measures aimed to reform the national system of sanitary and phyto-sanitary control 33 . However, efficiency of implementing this priority, aimed to approximate Ukrainian legislationand sanitary and phyto-sanitary practices related to food, forage and animal welfare, remained low in2010. Full-scale implementation of the priority, which is also in line with Ukraines WTO commitments,requires a comprehensive analysis and establishment of the special working group, engaging specialistsof the Economy Ministry, Public Health Ministry, Agricultural Policy Ministry, National Committee onTechnical Regulations and Consumer Policy ( Derzhspozhyvstandard ), as well as entrepreneurassociations. This working group must be involved into developing of a comprehensive strategy toreform Ukrainian SPS policy, aimed to implement this AA priority.

One could also point at low pace, in the first half of 2010, of implementing priority of facilitating tradeand customs affairs . But in the 2 nd half of the year the government has taken actions that changed thesituation. A concept of reforming Ukraines customs service Face to people was adopted in October.As a result of these reforms, business is expected to get clear, transparent and understandable rules inthis field.

30 Law No 2735-VI adopted on December, 2 nd , 2011.31 Law No 2736-VI adopted on December, 2 nd , 2011.32 Directive of the Cabinet of Ministers No 1070- adopted on May 19th, 2010.33 Directive of the Cabinet of Ministers No 1077- adopted on May 19th, 2010.


18/97

18

7. Implementation of AA priorities in energy cooperation, including nuclear issues

On December 15 th , 2010, after the Ukrainian parliament ratified the relevant law, Ukraine officiallyfinalized the process of joining the Treaty establishing the Energy Community of the European Union andSouth-East Europe 34 . Throughout the year the governments major efforts were focused on enhancingnuclear safety standards of the Ukrainian nuclear power plants in line with the IAEA requirements, andon harmonizing Ukraines gas market legislation with relevant EU directives. Experts of this monitoringargue that Ukraines accession to the EUs internal energy market will give a start to Ukraines sectorintegration into the EU, one of the elements of the future Association Agreement. At the same time, if the reforms are implemented as slowly as they are now, Ukraine will not be able to use bulk of benefitsopen within the Energy Community.

In general, Ukraines accession to the Energy Community will push the government to complex reformsof the energy sector, which opens the opportunity to develop a modern energy market model,modernize existing gas transit and electricity networks, develop renewable energy, as well as use moreefficiently Ukraines export and transit potential.

A number of draft laws have been brought into the Ukrainian parliament in the past years, aiming atensuring public regulation of the energy field and at enhancing independence of the national energyregulator. In particular, MPs prepared draft laws On National Electricity Regulatory Commission 35 andOn State Regulation of Ukraines Energy 36 . The first of them was removed from examination at theend of the year; the second has not been examined at all.

Ukraines biggest achievement in the field of energy co-operation with the EU in 2010 consists inadoption of the law On foundations of functioning of the natural gas market 37. The law provideslegal foundation for reforming the Ukrainian gas market, based upon relevant EU directives. It definesUkraines concrete commitments to ensure non-discriminated access of companies and consumers todifferent segments of the gas market. This, in turn, will create conditions for competition on the market,restrict the role of the state (limiting it only to tariff regulation executed by an independent body) andcreate conditions for attracting private investment into the gas sector.

One of the innovations brought in by the law consists in a clear recognition of the National EnergyRegulation Commission (NERC) as one of the regulators of the gas market. It was for the first time thatthe status of the Commission has been defined by the law, while earlier the NERCs activities were basedupon the so-called under-law regulatory acts, opening the way for the executive to directly interferewith its work. However, Ukraine still lacks necessary regulatory acts defining clear competences of theNERC. As a result, today the NERC continues to be fully dependent on the government in its decision-making related to regulating energy tariffs. All NERCs actions to create a new system of price regulationon key energy markets, therefore, are now taken in the frameworks of the relevant governmentsmeasures.

In general, reforms of the electricit y and gas pricing mechanisms need to be implemented in two majordimensions . The first one concerns enhancing the relevant regulatory body (National Energy RegulationCommission), responsible for tariff setting; due to todays status, it does not have full autonomy tomake an economically justified tariff policy. The second dimension is related to establishment of thegenuinely competitive markets of electricity and natural gas in Ukraine, seen by experts as an

34 Ukraines law No 2787-VI adopted on December, 15th, 2010.35 Draft law No 1372, adopted on January 18th, 2008, has been removed from examination on December 23rd, 2010.36 Draft law 0889 adopted on November 23rd, 2007.37 Law No 2467-VI adopted on July 8th, 2010.


19/97

19

indispensable factors for enhancing economic ground for the tariff policy. Both reforms vectors need therelevant legal basis.

During the year, the government achieved modest success in attracting funds from the EU andinternational financial institutions to finance modernization of Ukraines gas transportation system ,according to an international donors conference held in Brussels in March, 2009. As Ukraine received

some guarantees from Russia on transit of the natural gas for the next 5 years, it succeeded to reachagreement with the World Bank and the EBRD to get the loans first installment (USD 308 million) tomodernize the Ukrainian GTS in the first half of 2011. On the other hand, the government hassignificantly increased Naftogaz investment budgets, which is a sign of its attempt to minimize theexternal financial assistance to modernize the GTS.


20/97

20

8. Implementation of AA priorities in the public procurement

Adoption of Ukraines public procurement law in 2010 38 was a positive step to improve public regulationof the field and bring it closer to the European standards. However, in six months after the adoption of the law Ukraine brought a number of amendments having a negative impact on the efficiency of the lawand limiting the scope of goods and services to which it is applied.

For example, it was decided in July 2010 that procurement aimed to hold the Euro-2012 footballchampionship will be regulated with a separate law 39 . A decision taken on January 2011 excludedmajority of the natural monopolies (electricity, heat supply, water supply, drainage, heating,operations with natural and oil gas) out of the scope of the law 40.

It is possible that the administration will in the future introduce new amendments to the law. Forexample, already in January, 2011, the Ministry for economic development and trade proposed draftamendments to Public procurement law. The amendment suggested giving a right to state-ownedenterprises purchase goods and services at their own funds without tender procedures.

The European Commission and the World Bank have already expressed their concern about this

proposal. In February the Commission announced its decision to freeze financing of budgetary supportprograms during the period when the consequences of this legal act are fully examined. EU officials andUkraines government are currently having dialogue on these issues.

38 Ukraines law No 2289 adopted on June, 1st, 2010.39 Ukraines law No 2462 adopted on July, 8th, 2010.40 Ukraines law No 2889 adopted on January 11th, 2011, and Ukraines law No 2900 adopted on January 11th, 2011.


21/97

21

9. Implementation of AA priorities in other fields of cooperation: state internalcontrol and external audit and control; reform of the tax service, statistics,transport, social co-operation, public health.

During the year no proper attention was paid to issues of financial discipline, legal and efficient use of public finances by the government. Ukraine still lacks proper conditions for efficient internal control,including not only financial control, but also general efficiency and moral values in the public sector.

Monitoring of activities of Ukraines national fiscal administration in 2010 showed insufficiency (as to itsgoals) of implementation of tasks under Development and Implementation of the ComprehensiveStrategic Plan for Ukraines Tax Service, including structures, procedures, resources and informationsupport. Analysis of implementation of the strategic plan shows that the measures identified in thedocument have not been fully implemented. The plan also lacks provisions of increasing accountabilityof the Tax Service bodies to the tax payers.

Moreover, in 2011, after the adoption of the Tax code, Ukraines fiscal bodies and fiscal police were

given additional rights on checks and controls. These measures have not been balanced by thesymmetric enhancement of the tax payers rights, which made the Tax administration stronger vis--visUkrainian tax payers.

Ukraine has showed progress in implementing AA priority aimed at making the SMIS+ fully operationalfor Ukraine. The National Statistic Committee (Derzhkomstat) has prepared a detailed description of Ukraines statistic system on a level of statistic sectors (topics level) in the SMIS+ format. Thesematerials have been handed over to Eurostat.

In general, activities by Derzhkomstat, in co-operation with the EUs Twinning projects, facilitateimplementation of the relevant priority. The pace of measures in 2010 was satisfactory. However, lackof the full information about the activities, aimed at implementation of this priority, does not open apossibility to assess its efficiency fully.

In the transport field , Ukraines transport ministry, jointly with the EU representatives, developedUkraines Transport Strategy until 2020. The strategy was adopted at the sitting of the Cabinet of Ministerson October, 20th, 2010. The fact that the government has adopted a strategic document for the transportsector, is a positive symptom; however its questionable quality shows that the government lacks actionsand will to implement it and to change the situation in the field.

Throughout 2010 the Ministry of social policy has been actively developing a legal basis necessary to

implement priorities in the field of the social policy . At the same time absence of a unified vision of thenational qualifications system between the Social Policy Ministry and the Education Ministry puts the veryadoption and implementation of the relevant legal acts at risk.

In 2010 Ukraine failed to adopt a Labor code that could significantly stimulate improvement of the workconditions. Adopted law on the single social contribution 41 failed to decrease pressure on labor cost. As aresult no real conditions for enterprise and worker transition from non-formal sector to official economywere created.

Throughout 2010 no important changes happened in the field of social services. Majority of measuresaimed at improving access to social services, have been implemented on the local level, which is the

41 Ukraines law No 2464-VI adopted on July, 8th, 2010


22/97

22

reason why the level of access to services for the disabled is different in different regions. Access of thedisabled to the majority of services is limited because of the lack of the relevant infrastructure.

Implementation of Ukraines law "On foundations of social protection of people with disabilities inUkraine" 42 (Article 19 of the law establishes rules governing the number of places reserved foremployment of the people with disabilities) remains disappointing.

There is some progress in implementing a priority to prevent and control infectious diseases, includingHIV/AIDS, tuberculosis, veneral infections, hepatitis C and B. For example, throughout 2010 Ukraine wasinvolved into implementation of a pan-European project AIV RezNet. According to the Public HealthMinistrys data (December, 2010), 179,674 people in Ukraine are HIV-positive, 36,393 people are ill withAIDS, and 29,555 people died from AIDS. Ukraine has a national program aimed at ensuring preventionof HIV-infection, treatment, cure and support to the HIV-positive people and people ill with AIDS for2009-2013.

AIDS remains a serious challenge for the Ukrainian public health system. Treatment of HIV/AIDS stillremains a costly process. Due to implementation of the wide-scope antiretroviral therapy, in 2007, for thefirst time, Ukraine showed modest decrease of the number of people ill with AIDS. In the last three yearsthe number of people diagnosed with the HIV/AIDS remains practically the same.

However, for the moment access to the antiretroviral therapy in Ukraine does not correspond to thepatients needs. In late 2010 the Verkhovna Rada adopted amendments to Ukraines law On preventingAIDS and on social protection of the population 43, according to which the state guarantees preventionagainst dissemination of HIV, with its harm reduction programs, which, inter alia, includes substitutionmaintenance therapy for people, suffering from drug abuse, and establishment of conditions forchanging used injection needles and syringes for sterile ones, with their further utilization. However,implementation of the provisions of this law remains questionable. During the second half of 2010 law

enforcement services put pressure on the substitution maintenance therapy programs and HIV-servicingorganizations, involved into harm reduction initiatives in the frameworks of the Global fund program.

42 Ukraines law No 875 adopted on March, 21st, 199143 Ukraines law " On amending Ukraines law On prevention AIDS disease and social protection of the population ", No 2861 adopted on

December, 23th, 2010


23/97

23

10. Implementation of AA priorities in 2010 in the field of environment

A Ukraines law On basics (strategy) of Ukraines state environmental policy until 2020 44 , adopted bythe Ukrainian parliament in December, 2010, entered into force on January 14 th , 2011. It means thatUkraine has met its key 2010 environmental commitment under the EU-Ukraine Association Agenda. Inlate 2010 Ukraine also prepared a first draft of the National Action Plan (NAP). According to the law,Ukraines Cabinet of Ministers needs to develop and adopt the NAP no later than March 31 st , 2011.

In other AA environment priorities progress is not that visible. Most experts draw attention to thecontent of the Strategy and the NAP, which contains provisions and measures aimed to implement therelevant AA priorities.

For example, Ukraine has not still ratified the Protocol on Strategic Environmental Assessment (SEA) tothe Convention on Environmental Impact Assessment in a Transboundary context (The EIA EspooConvention). At the same time, a list of measures identified in the NAP to implement the SEA contains,inter alia, ratification of the Protocol.

Another fundamental instrument of developing horizontal environmental legislation according to an AApriority on environmental impact assessment is under threat after Ukraine adopted an urbanconstruction law 45. The new law annuls provisions of the law On protection of the environment 46 andthe law On environmental expertise 47 concerning obligatory environmental expertise of investment,economic and other activities, that has or can have an impact on the environment.

For many years (since 2006) Ukraine has been preparing for adoption a National Implementation Plan(NIP) of the Stockholm UN Convention on Persistent Organic Pollutants (POP). In 2010 the content of thePlan was renewed and submitted to the Cabinet of Ministers, but still was not approved. Ukraine islosing opportunities to get international financial and technical assistance from international funds,including the Global Environmental Fund (GEF).

As far as implementation of the Aarhus convention is concerned, the existence of drarft Regulationabout taking into account civil societys opinion during decision-making in environmental matters is abig achievement by itself. This is perhaps the only professional document developed to ensureimplementation of the Aarhus convention in Ukraine. If the Ukrainian government adopts thisRegulation until the 4 th Meeting of Parties (MoP) of the Aarhus convention to be held in June 2011, it isquite probable that the Aarhus convention MoP will underline a serious progress from the Ukrainianside a progress which lacked since 2005. If the regulation is not adopted, the MoP will reconfirm, forthe third time already, that Ukraine does not implement its commitments under the convention, and

can again impose non-compliance sanction on Ukraine.

Ukraine starts its presidency in the International Commission on Protecting the Danube River (ICPDR),which will push it to more dynamic work in the Commission. It will also open ways for getting assistancein order to solve priority problems in Danube delta, rivers Tisa, Szeret and Prut, within the work onpreparing a Plan of Danube delta management in the frameworks of the Environment and SecurityInitiative (ENVSEC).

44 Ukraines law No 2818 adopted on December 21st, 201045 Ukraines law No 3038 adopted on February 17th, 2011.46 Ukraines law No 1264-XII adopted on June, 25th, 1991 .

47 Ukraines law No 45/ 95 adopted on 9 February 1995.


24/97

24

Ukraines implementation of the UN Framework Convention on Climate Change and its Kyoto Protocolremains disappointing, since Kyiv lacks political will to fight climate change, and this problem is not apriority for the government. There is lack of proper control in the field, which is also a negative factor.Practice has shown that improper use of funds under emissions trading quotas under Kyoto protocol ispossible. And even if lately Ukraine started implementing green investments scheme, procedures of project selection for funds under Kyoto protocol remain unclear. It is also unclear what bodies,organizations and enterprises submit their project applications to get these funds. Positive prospectscan be seen in the integration of measures aimed to the adaptation to climate change, mitigation of anthropogenic impact on climate change, as well as in scientific research in this field (for example,concerning forecasting climate change and its consequences), to the NAP.

Ukraines legal basis makes it possible to implement Conventions on biodiversity, on protection of theEuropean environment, and on migratory species of wild anymals. At the same time, Ukraine lacksimplementing program documents. For example, a Program on developing nature reserves until 2020has not been adopted so far; Ukraine adopted action plans to protect only 2 rare species.

Adoption of the NAP can enlarge frameworks of the budgetary support to air protection andimprovement of the implementation instruments for UN Convention on transboundary air pollution,which (instruments) were remaining inefficient for long time before, according to experts.

In general, it is uneasy to assess if AAs priorities in the environment field were implemented efficientlyin 2010, since the government did not produce direct reports about implementation of the AAprovisions. A document disclosed by the Environment Ministry, entitled Information about the state of implementation of a chapter Environment of the EU-Ukraine Association Agenda in 2010, andagreements adopted on the 14 th meeting of the EU-Ukraine Parliamentary cooperation committeebetween Ukraine and the EU is a short review of some activities that does not include analytics anddoesnt reflect the real picture. This is the only disclosed source of information on implementation of the AA priorities in 2010 in the environment field.

Besides, Ukraine does not publish reports about implementation of the relevant conventions. TheEnvironment Ministry has not adopted a Plan of implementing AA priorities for 2010. Reacting to theCabinet of Ministrys assignment on implementation of the Association Agenda in 2010 48, theEnvironment Ministry adopted a decree On implementation of provisions of the EU-UkraineAssociation agenda in 2010 49 , identifying structural departments responsible for some provisions butnot mentioning any action plan or deadlines. According to the decree, the Environment ministry mustsubmit quarterly reports until the 5 th day after ending the quarter month, however no such report hasbeen made public.

48 Assignment of the Cabinet of Ministers No 66758/147/1-09 adopted on February 4th, 2010.49 Decree of the Environment ministry No 102, adopted on February 25th, 2010.


25/97

25

11. Conclusions

Implementation of the AAs priorities compels the public bodies to improve the way how itcommunicates its actions to the society. It also requires involvement of the civil society institutions topublic policy making and policy implementation in the fields of political dialogue; environmentprotection; enhancing stability, independence and efficiency of the institutions, responsible for ensuringrespect for principles of democracy and the rule of law, human rights and fundamental freedoms,covering both individual cases and issues concerning international law instruments on human rights;combating corruption and adoption of the legislation on access to public information.

Ukraines administration pays minor attention to the issues of democratization and relations betweenthe government and the society, focusing instead on economic and technological components of the EUintegration priorities. This diminishes the role of the EU-Ukraine Association Agenda as a catalyst of internal reforms, as well as its role to enhance stability, independence and efficiency of publicinstitutions, ensuring democracy and the rule of law, human rights and fundamental freedoms throughinclusive cooperation on protecting human rights and fundamental freedoms.

Implementation of the AA priorities must be based not so much on the quantitative, but more oncontent-based approach, prioritizing real content of actions taken by the authorities. The monitoring of AA implementation would be more efficient and comprehensive if it included analysis of an impact of the administrations decisions on social, political and economic developments. Priorities are often toowide and unspecific, which does not give an opportunity to make a comprehensive analysis of theirefficiency.

There is a need to establish an efficient co-ordination mechanism to implement the EU integrationpolicy, and to introduce more coherence in its implementation.

Implementation of majority of priorities in political dialogue, human rights, trade, environment policymust be prolonged, since these policy vectors have not been fully implemented and still remain underimplementation stage. Assessment of results of their implementation and correction of the process of changes is an important element of these policies.


26/97

26

Detailed priority by priority overview (outcomes of 2010)

Political Dialogue

Strengthen the stability, independence and effectiveness of institutions guaranteeing democracy and the rule of law and inparticular:

Promoting an inclusiveconstitutional reformprocess designed to furtherdevelop a constitutionalsystem of effective checksand balances betweenstate institutions, in thelight of the relevantrecommendations of theVenice Commission.

Not implemented Neither Ukraines President, nor the Verkhovna Rada (the Ukrainianparliament) or the Constitutional Court have made any steps on the wayof implementing an inclusive constitutional reform. Measures taken bythese authorities, on the contrary, pushed Ukraine further away from anefficient constitutional system based on the principle of checks andbalances. This trend was evidenced by a number of decisions taken byrelevant public administration bodies, especially the following:

1) Ukraines law On amending Ukraines law On VerkhovnaRadas procedure rules, adopted on March 9 th , 2010. Contraryto the Constitution, the law says that individual members of theparliament can also enter the coalition formed initially by theMPs factions;

2) Ruling of the Constitutional Court, adopted on April, 6 th , 2010,saying, contrary to the Courts previous decisions, that changesto the Parliaments procedure rules have been adoptedaccording to the Ukrainian Constitution;

3) Ruling of the Constitutional Court adopted on September, 30 th ,2010, on a case concerning observance of the procedures of constitutional amendments. With its ruling the ConstitutionalCourt, without having competences necessary to take thisdecision, changed the Constitution by restoring its pastprovisions that already lost their effect. This decisionsubstantially weakened the Ukrainian constitutionalism;

4) A Ukraines law On the Cabinet of Ministers, adopted onOctober 7 th with the aim to bring Ukrainian norms in line withthe new constitutional provisions. The law, contrary to theConstitution, gives new competences to the President,significantly increasing his influence on the executive anddiminishing the role of both the Cabinet of Ministers and theindividual ministers. This measure destroyed a checks andbalances mechanism initially set by the Constitution;

5) On November, 19 th , the Verkhovna Rada provisionally adopteda draft law amending Ukraines Constitution concerningelections of the Members of the Ukrainian Parliament,Ukraines president, members of the Crimean parliament, localcouncils, as well as village, town and city heads. On February 1 st ,2011, despite violation of the voting procedures, this documentbecame a law. Opposition MPs addressed the ConstitutionalCourt saying these changes contradict the Ukrainianconstitution. Parliamentary election which, according to currentconstitutional provisions, had to be held in March, 2011, wasdelayed (through changes brought to the Constitutionstransitional provisions!) to October 2012.

A conclusion can be drawn that authorities actions in this segmentweaken the state of democracy and the rule of law in Ukraine.

The measures taken by Ukraines authorities led to concentration of the


27/97

27

Presidents power, evidenced the full institutional incapacity of theParliament and the Constitutional Court, and the deepening legalnihilism.

These actions have a negative effect on stability, independence andefficiency of the work of the institutions responsible for promotingdemocracy and the rule of law in Ukraine.

Work closely together inreforming and enhancingthe capacity of the publicadministration system inUkraine on the basis of anassessment by SIGMA,including an effective fightagainst corruption.

Under implementation

The new Ukrainian administration which came to power in February-March 2010 has reshaped the state mechanism, as well as balance of competences in the high-level public authorities, including in theexecutive bodies. Throughout 2010 beginning of 2011 Ukraine haschanged the structure of executive bodies.

The reshaping of the whole state mechanism and the system of thecentral executive bodies was achieved with the help of theConstitutional Court. For example, the Courts decision taken onSeptember 30 th , 2010, No 20-/2010, renewed the 1996 Constitution,which also implied the governments political and functional dependencyon the President. The new version of the Law On Ukraines Cabinet of Ministers had systemic deficiencies (it abolished an oath procedure of the members of the government and deadlines for appointing the PrimeMinister ; it has given rights to the President to appoint or dismissdeputy ministers and heads of other central executive bodies ; it madePresidents assignments obligatory for implementation bygovernment, etc). In short, the law increased the Governmentsdependency on the President.

In December, 2010, in a decree No 1085, Ukraines Presidentreorganized a system of executive public bodies, decreasing the numberof ministries and closing some government bodies. Instead, all otherexecutive bodies were transformed into central public institutions.

On February, 2 nd , 2011, the President brought a draft law On centralexecutive bodies, as well as amendments to the Law on the Cabinet of Ministers, to the Parliament. Due to these norms the Government lost itsstatus of the highest executive body. The decisions have also legitimizeda number of non-constitutional and destructive norms (for example,concerning Presidents assignments considered as obligatory forimplementation by the central executive bodies), as well as the systemof central executive bodies proposed by the President.

Therefore, unfortunately, the reform of the executive bodies deservesmostly negative assessment. It does not settle existing problems and insome cases creates new ones. The Government has lost a status of thehighest executive body, which would execute public policies andadministrate other executive bodies. An excessively big number of thecentral executive bodies (their number, jointly with ministries, exceeds70) worsens co-ordination in the decision-making process.Differentiation between political and administrative functions in theministries is mostly declarative. Re-organization of the public bodies isnot based upon earlier doctrinal or legislative achievements, and lacks apolitical and programming vision of the reforms. Adopted measures arein fact aimed at centralizing the power vertical and enhancing thePresidents dominating role. Taking this into account, the reforms in thisfield can not be considered as success stories for enhancing efficiency of the public administration. Moreover, in some of the components these

reforms annul progress made in the previous years (this concerns,particularly, a proposal to liquidate government committees andgovernment bodies).


28/97

28

Ensuring the effectivenessof the electoral frameworkand environment so as tocontinue the conduct of presidential andparliamentary elections inaccordance withinternational standards fordemocratic elections andthe recommendationsmade by OSCE/ODIHR.


Governments activity planning in the context of implementation of theAssociation Agenda remains unsatisfactory. While in 2010 theGovernment had a Plan of Priority EU Integration Measures for 2010,adopted on May 19th, 2010, (the Plan, however, was focused primarilyon absorption of the EUs macro-financial assistance), no similarGovernments action plan was prepared for 2011. This lack of a planningmechanism makes it difficult to preview the content of decisions to betaken, and a policy vector to be adopted by the Government. Therefore,experts of this monitoring could only assess measures taken by thepublic authorities de-facto. We cannot assess planned measuresaccording to any pre-defined goal, objectives, tasks or deadlines, but canonly assess proposals and factual decisions taken by the President, theGovernment or the Parliament.

Development of the Ukrainian election legislation has been taking placein a constantly changing political environment. On February, 1 st , 2011,the Ukrainian parliament adopted changes to the 1996 Constitution,imposing uniform five-year terms of office of all representative publicbodies, i.e. of the national parliament, the Parliament of the Crimean

autonomy, local councils, village, town and city heads, as well as of thePresident. The decision has extended competences of the parliamentfrom 4 to 5 years and set a date of the next parliamentary elections (lastSunday of October of the 5 th year of the parliaments competences).Accordingly, next parliamentary elections will be held on October, 28 th ,2012. It would be necessary to have efficient and transparentdemocratic election procedures at least one year before this date.

Decision-making headquarters responsible for policy making on theelection law are now located at the Presidents administration. Althougha prepared Election code (Draft law No 4234-1 registered on March 23th,2010) waits for examination in the Parliaments plenary, a Workinggroup under the leadership of the Justice Minister is elaborating

alternative election legislation, in line with the guidelines received fromthe President. The Government, of course, has necessary right toprepare draft laws, but in a situation when public political activities of the Parliament and parliamentary groups are weakening, these activitiescould lead to adoption of decisions favoring specific power groups. Whilethe election law is a field of the public interest, the closed and non-transparent activities of the working groups, as well as lack of clearlydefined procedures and deadlines, raise serious concern.

A draft law On Pan-Ukrainian referendum (Draft law No 6278registered on April, 29th, 2010) has been handed in to the parliament forthe second reading. The draft law does not fully meet the task of ensuring rights of Ukraines citizens to participate in the governanceprocess. It also includes mechanisms to abuse the referenda and breakthe frameworks of parliamentary procedures in legislation andconstitutional issues. For instance, the draft law opens a possibility tobring a number of issues to a referendum, and to adopt a newConstitution (or a new version of the Constitution) at a referendum.

Measures taken by the authorities to ensure efficiency of the electionsystem at parliamentary and local elections do not fully correspond toprinciples of the OSCE and Council of Europe, and sometimes createconditions for violating election rights.

To conclude, it can be said that Ukraine continues developing legislationto ensure citizens voting rights. However, interests of the political and

business groups currently in power, instead of the real implementationof the citizens rights and instead of promoting efficient central and localpublic authorities, appear to be the key factors influencing the process.


29/97

29

Politically motivated legislation on election and referendum law can leadto devaluation of the basic democratic institutions and deficit of trust tothe parliament as a body representing the society.

In order to ensure election rights of the citizens, the public institutionsshould base their activities upon a pre-defined plan. This must be donein order to minimize influence of the political interests, ensurepredictability of the public policy and early development of the agreeddraft decisions. The pre-defined action plan will help avoid politicallymotivated spontaneous changes of the election and referendumlegislation. The public authorities need also to be more open andtransparent, and observe the parliamentary procedures in their decision-making.

Due to the re-establishment of the presidential form of governance, theorganization of the political and administrative process was exclusivelyaimed at ensuring stability of the administration itself. When policystakeholders motivate their actions exclusively with their particularpower and business interests, it puts the very political competition atrisk. In these conditions closed and non-transparent work on the election

law can multiply risks for representative and advisory democracy andgovernance, which are themselves based upon the institutions of elections and referenda.

Continuing reform of the judiciary and of the courtsystem so as to furtherstrengthen theindependence, impartiality,and professionalism of the judiciary and courts,notably by enhancing thetraining of judges, courtofficials and prosecutors aswell as support staff andlaw enforcement agenciesstaff.


The President established, in March, 2010, a working group on judicialreform. The aim of the new institution was to prepare a new concept of the judicial reform and to develop a new draft law. The draft law wasprepared outside the Working group and presented to its members onMay 31 st . Immediately afterwards the President proposed the draft tothe parliament. Consequently, Ukraines law On Judicial Order and theStatus of the Judges was adopted on July 7 th , 2010.

The law provided for a two-phase special training program for the future judges. During a six-month training course a judge candidate would keephis or her workplace and would have a special scholarship. First, acandidate will be given a theoretical training in a specialized law-focusedhigher education institution (4 th accreditation level). After the successfultraining the prospective judge must also go through a practical trainingat the National Judges School (earlier named Judges Academy).

On December, 21 st , 2010, Ukraines Higher Qualification Commission of Judges established a National Judges School. However, instead of re-organizing the Judges Academy, the School was created practically fromthe scratch. The first graduates, therefore, can be expected not earlierthan in the first half of 2012. At the same time, according to theSupreme Justice Council, about 2,000-2,500 judge vacancies will openduring this period. On February, 3 rd , 2011, the Verkhovna Rada (thenational parliament) adopted a law delaying application of a normrequiring from a judge candidate to take a special training program.Therefore, until 2012 the Commission will appoint persons lackingspecial training or those that had passed a qualification exam before theentry into force of the Law On Judiciary Order and Status of theJudges, but had not taken their jobs because of the lack of vacancies.

The new law does not establish any competition-based principles of promoting the judges, and does not set any criteria for appointing the

judges of the higher levels. There is only a requirement that a judge musthave a relevant professional experience and that he or she must pass an


30/97

30

interview at the Higher Qualification Commission of the Judges.

A system of specialized training of the judges has been practically ruined.The Academy of the Judges was closed; instead, a newly createdNational Judges School is under the establishment process, and so far isunable to ensure the relevant specialized training.

A system of primary education of judges does not fully correspond to the

European standards. This education must not be provided by highereducation institutions dependent on the education ministry, particularlyin the accreditation (see article No 66 of the Conclusion No 10 (2007) of the Consultative Council of European Judges "The Council of theJudiciary in the Service of Society). Therefore, only the National JudgesSchool, and not the Education Ministry institutions, would have toperform this training; however, today the School has been practicallyremoved from this process. The previous training system has beendestroyed, the new one was not put in place so far, but even this newsystem does not meet the European standards.

Personal protection remains the only way for a judge to make a career.

The new law On Judicial Order and the Status of the Judges increasedthreats to independence of the judges. It established excessively shortdeadlines for examination of cases; if the judge fails to meet thedeadline, he or she risks to be dismissed.

Effective implementationand enforcement of thecivil, criminal andadministrative codes andtheir correspondingprocedural codes, based onEuropean standards.


On March 3 rd , 2010, the President signed a law On amending someUkraines legal acts on jurisdiction of social allowances cases (adoptedon February, 18th , 2010 by the parliament that overcame veto of theprevious President). The law brought pension or social allowanceslitigations, initially and by nature administrative, under the civil justicerules.

However, on July 7 th , 2010, the Parliament adopted a law On Judicial

Order and the Status of the Judges, which brought social allowanceslitigations back to the administrative courts. The law also amended allprocedural codes.

On November, 5 th , 2010, in order to bring the law in accordance with theEuropean standards, the President re-established the Commission onenhancing democracy and promoting rule of law, which he pulled downin March.

The authorities have not shown proper enthusiasm

report3 monitoring pda 2010 full eng

Documents