[Ohio UZO News] Resolution of the International Forum of Law and Democracy for Ukraine

[Andrew J. Futey]

RESOLUTION

of the II International Forum "Law and Democracy for Ukraine" 

Kyiv						8 December 2006

          Aiming at building up a democratic law-based state capable of ensuring the comprehensive development of personality,
         
         Based on the priority of the principle of the rule of law and international standards,
     
         Realizing the need in forming an effective system of organization of the state power in Ukraine,
         
        FORUM  PAYS ATTENTION TO THE FOLLOWING IMPORTANT SOCIAL PROBLEMS AND DECIDES:  
         1. Constitutional reform. The issue of reforming the Constitution of Ukraine through adoption of the Law of Ukraine "On making amendments to the Constitution of Ukraine" of 8 December 2004 proves to be no less relevant. The opinion that the Constitutional reform in Ukraine was incomplete is still prevalent. The European Council Parliamentary Assembly and the Venetian Commission, recommendations of which should be applied to resolution of political and legal conflicts have also pointed out the flaws of constitutional changes.    
         Failure to take into account recommendations of competent international establishments, the inappropriate level of development of the draft law on making amendments to the Constitution of Ukraine and the conditions of adoption thereof have resulted in the situation, when today's functioning system of organization of power in Ukraine has in its foundation grounds for conflicts and confrontation between the superior governmental bodies.
         This provokes emergence of a political crisis in the state, which has had its impact on all spheres of vital activities of the community. 

        In this regard we believe:
- That it is important to have the dispute regarding the legitimacy of making amendments to the Constitution of Ukraine and the possibility or impossibility of their reconsideration by the Constitutional Court of Ukraine resolved.   
- We draw your attention that according to the ruling of the Constitutional Court of Ukraine of 5 October 2005 the Law of Ukraine "On making amendments to the Constitution of Ukraine", considering that it concerns changing the constitutional system, should be brought to approval by an all-Ukrainian referendum.   
- The issue of reforming the Constitution will not loose its actuality even in the case of hypothetical adoption of the decision of the Constitutional Court of Ukraine to disaffirm the constitutional reform, since neither the current version of the Constitution of Ukraine, nor the wording that existed before the changes were incorporated, are appropriate.   
- In this regard it is necessary to continue the constitutional reform taking into account the democratic principles and international standards, identifying and eliminating the deficiencies of practical application of the current Basic Law. 



- Our state needs a well balanced and harmonious Constitution that would be based on the consensus of all political forces and the civil society. 
- The constitutional reform is not restricted to just the issue of making amendments to the Constitution of Ukraine, but also, requires adoption of the laws targeting at the development and detailing of its provisions. At this, such laws should be based on the norms of the Constitution of Ukraine and by no means be in conflict therewith. 
- We believe it is necessary to review the issue of changing the electoral system within the context of the constitutional reform, both at the general national and local levels. The electoral law must be aligned with the model of the political system as determined in the Constitution 
        2. Judicial reform.
         In order to have independent and fair courts in Ukraine, the following should be accomplished on the legislative level:
         1) ultimately determine the judicial system and structure and jurisdiction of courts - distribution of cases between the courts of general, economic and administrative jurisdiction;
         2) introduce competitive selection of applicants for the judge's office. The main criteria of adequacy for the judge's office are as follows: excellent knowledge of the profession and morality of an applicant, efficiency, ability to make decisions promptly, ability to set out ideas, good writing skills, analytical competence, and ability to work in a team. Make the Judges' Qualification Commission and the High Council of Justice, the constitutional authorities, exclusively responsible for the selection of candidates for the judge's office. The High Council of Justice should include at least 50 per cent judges in accordance with the European standards;
         3) provide the courts with the appropriate funding, premises and equipment, establish such level of salaries to judges that would enable them to perform their professional duties in an unbiased and independent manner;
         4) specifically determine the grounds, based on which the judge will bear responsibility, and the responsibility itself;
         5) establish judicial inspections at the High Council of Justice and the Judges' Qualification Commissions to verify compliance of judges with the requirements of the law and professional ethics;
         6) the Supreme Court of Ukraine should become the body ensuring the uniformity of judicial practices;
         7) alter the existing procedure of distribution of cases between judges in the order of receipt thereof taking into account the level of work load of judges based on the complexity of cases;
         8)  transfer the issues of internal activities of courts to judicial self-government bodies; develop the mechanisms of independent financing of each court. The judicial self-government bodies of the national level should consist of judges of all levels, rather than solely of presiding judges;
         9) make the Ministry of Justice of Ukraine responsible for the development of proposals regarding the legal policy in the sphere of justice. In order to ensure independence of judges the Ministry of Justice of Ukraine should not be involved in the elaboration of policy in the sphere of justice;
         10) judicial administration should be kept under control by the judicial branch of power.
         11) citizens have the right to appeal against violation of the judicial ethics to the Qualification Commission and the High Council of Justice;
         12) all decisions concerning the discipline of judges should be publicized.







                     3. Corporate wars and formation of the institute of ownership in Ukraine.

         Illegal takeover (raidership) has become a sore problem for Ukraine, and which can jeopardize the national security of Ukraine. This phenomenon has become possible due to imperfection of the legal system of Ukraine. 
         
         In order to prevent the raidership from progressing in Ukraine the section participants propose the following:
         
* Draw the legislators' attention to the problem of raidership and protection of the rights of ownership. Support the draft laws establishing, besides anything else, an exclusive territorial jurisdiction for such categories of cases, the institute of security to serve as a preventive measure in economic and civil cases, compensation of damage to defendants by "raiders", higher responsibility for illegal actions, decisions, etc. to be borne by judges, officers of justice and law enforcement officers. 

* Propose that the Judge Qualification Commission, the Council of Judges, and the High Council of Justice publicize all statements issued by the Judge Qualification Commission with regard to the judges, whose cases have been reviewed in connection with the illegal court decisions used by raiders for unfriendly takeovers.   

* Address the Supreme Court of Ukraine with the proposal to adopt a Decree of the Plenary session of the SCU consolidating all problems related to the review of raidership related cases in courts.

* Address the journalists' community with the requirement to provide no support to raiders' actions and raiders.  
	 
         


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