Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

“The blitz leap of 1995”

Ukraine was solemnly admitted to the Council of Europe 22 years ago. Why have we slowed down and why have our commitments not been fulfilled yet?
9 November, 2017 - 12:54

The already distant year 1995 was a very important and significant one for Ukraine. On November 9, an official ceremony of Ukraine’s accession to the Council of Europe (CE) took place in Strasbourg (France), where the headquarters of this organization is located. Let us look back a bit. On July 14, 1992, Ukraine declared its desire to join the CE. After that, cooperation between this country and the CE on the government and parliamentary levels grew considerably more active, since the main statutory condition for a country’s accession to the CE is the recognition by the candidate nation of the rule of law principle, its commitment to ensure the rights and fundamental freedoms of all persons under its jurisdiction and to cooperate effectively with other nations in order to achieve the objectives of the CE.

Even before becoming a member of the CE, Ukraine became a party to several conventions of this organization. Already on September 16, 1992, the Verkhovna Rada of Ukraine was granted the status of a “specially invited guest’ in the body’s Parliamentary Assembly (PACE). The assembly was to prepare, on the instructions of the CE’s Committee of Ministers, an opinion on the degree of Ukraine’s preparedness to join the CE. Accordingly, the European Commission for Democracy through Law conducted a legal examination of draft articles of the new Constitution of Ukraine, the drafts of the Family and Administrative Codes, and the draft Law “On Local Councils of People’s Deputies.” On September 15, 1995, the Information and Documentation Center of the CE was opened in Kyiv. On that occasion, Secretary General of the CE Daniel Tarschys visited Ukraine.

And on September 26, 1995, during the September term of the session of 1995, the PACE adopted a positive opinion on Ukraine’s application to join the CE. Our country has been allocated 12 seats in the assembly. The final stage of the procedure for Ukraine’s accession to the CE came with the meeting of the body’s Committee of Ministers, which unanimously adopted a resolution that invited Ukraine to become the 37th member of the organization and to accede to its Statute. On October 31, 1995, the Verkhovna Rada adopted the Law of Ukraine “On Accession to the Statute of the Council of Europe.”

On November 9, 1995, the national flag of Ukraine was raised during a solemn ceremony on the square in front of the Palace of Europe. The ceremony was attended by Secretary General Tarschys and members of the Ukrainian delegation headed by Prime Minister Yevhen Marchuk. Addressing the participants of the ceremony, Marchuk stated that “the admission of Ukraine to the Council of Europe testifies to the recognition of the progressive transformations that our country has achieved in a relatively short time, to the support of the European community for democratic processes that are taking place in our country, as well as to the significance which Europe ascribes to political and economic reforms in independent Ukraine.”

The then prime minister stressed that the admission of Ukraine to the CE symbolized “the return of Ukraine to the European family of nations, of which we have always felt ourselves a member.” “The country that is located in the geographical center of the continent, which, at the same time, was artificially isolated from European affairs for centuries, will finally take its rightful place in the European home. Ukraine’s membership in the Council of Europe is a guarantee of the security and sovereignty of Ukraine, its further progress on the path of market reforms and democratic transformations,” Marchuk emphasized.

Pay attention, please, to the words about “the return of Ukraine to the European family of nations.” This was said in 1995. Now, do you remember how many times this phrase was repeated afterwards, even by the current leadership in recent years? This shows that Ukraine had a chance to regain its rightful place in the European home as early as in the 1990s. However, then, the national leadership which was headed by Leonid Kuchma was not very concerned about the Euro-Atlantic integration of Ukraine, and it was indifferent about some breakthroughs such as the accession to the CE. Politicians of that time have said off-record that Kuchma did not want Ukraine to join the CE because it involved extra monitoring and scrutiny of the state of human rights in this country. But he agreed, because he needed it mostly to create a certain cover as he toyed with the so-called multi-vector foreign policy in order to build a clan-oligarchic system inside the country, where Kuchma acted as the supreme arbiter, thus retaining power and enriching himself. Actually, the “Kuchma system” is still alive, because it has turned out that Ukraine has not yet fulfilled commitments undertaken when joining the CE: it failed to comply with them under Kuchma, and then under Viktor Yushchenko and Viktor Yanukovych, and is failing to do so now, under Petro Poroshenko.

How did Ukraine’s accession to the CE come about, and what has been the reason for this country’s failure to fulfill its commitments?


Serhii HOLOVATYI, former Minister of Justice of Ukraine:

“November 9, 1995 was a very exciting day. Most people, including most members of the political class, were not sure what exactly this Council of Europe was. But the main thing was that it was no longer the Soviet Union. The Council of Europe attracted us due to it being associated with the West. Although I do not think that at that time, we all were fully aware of what it all was about, especially when we made commitments. Some implications we were aware of, but with others, we were not. For example, regarding the language charter, it was unlikely that anyone could understand at the time where it could end for our state, because its consequences included the adoption of the Kivalov-Kolesnichenko law, and ultimately the Russian aggression.

“The main thing that was very memorable and significant at that time is that Ukraine became a member of the Council of Europe ahead of Russia. This was a very important sign and was the first significant victory in the coexistence of Ukraine and the Russian Federation, the first time we outdid Russia. Let us recall that 1995 was a major anniversary year of the victory in the Second World War. Till May 1995, there was a political consensus in the Council of Europe itself that held that Russia would be accepted in April. Ukraine was not on the agenda at all. But an event that took Russia out of the agenda happened: in January that year, Boris Yeltsin began the First Chechen War. At the time, Europe was very hostile regarding this act of aggression. Thus, the loss of life and destruction in Chechnya made them abandon their plans regarding Russia, but Ukraine was not ready either, as passing a new post-totalitarian constitution was an essential requirement for any nation aspiring to join the Council of Europe, this club of liberal democracies. Russia had such a constitution since 1993. Unfortunately, Ukraine still operated under a Soviet constitution then, only with ‘Ukraine’ substituted for ‘the Ukrainian SSR’ and the institution of the presidency introduced.

“There was a conflict then between Leonid Kuchma, as president, and Oleksandr Moroz, as speaker of the Verkhovna Rada. Kuchma still had no vertical power structure of his own, there was no separation of powers and thus the parliament had its own vertical power structure. Then a bill on the organization of government and local self-government was introduced to the Verkhovna Rada, where the idea of the state administrations appeared. But the Red-dominated Rada, of course, rejected it, because it controlled the local councils and had no need for any Kuchma-appointed administrations. Kuchma did not want to share power with the Communists. In December 1994, I put forward an idea to overcome this crisis through a constitutional treaty between the president and the parliament, which was to stay in force for one transitional year. Then we prepared the text of the Constitutional Treaty and sent it to the Venice Commission. Finally, in June, the Venice Commission concluded that such a constitutional treaty could be seen as a small constitution for a transitional period, since it introduced the separation of powers for the first time in Ukraine. All executive power under this treaty was held by Kuchma as president. In addition, he received the right to issue decrees on economic reform. This treaty was concluded on June 6, 1995. But it did not say anything about human rights, which is fundamental to European legislation, as it was determined that a full constitution was to be adopted in a year. Thanks to this, the Parliamentary Assembly of the Council of Europe recommended on September 26, 1995 that Ukraine be accepted as a member of the Council of Europe. Ukraine was unique in that it was the only country that joined the Council of Europe without a new democratic constitution. They saw our movement forward, our potential, and on the basis of the existence of only a constitutional treaty, made their recommendation and we were accepted.

“Today, the fact that Ukraine is still under monitoring means that this country is moving quite slowly on the way to fulfilling its commitments. And this is despite the fact that we did a blitz leap in 1995. Now we are in the same category as the Russian Federation, Georgia, Moldova, Azerbaijan, etc., that is, those countries that have not yet been able to comply with their commitments and were identified as such in the Opinion No. 190 of September 26, 1995.”

Yevhen MARCHUK, former Prime Minister of Ukraine (1995-96):

“Everything connected with reformation of Ukraine in general evokes a very sensitive response now. I, a newly-appointed prime minister at the time, remember very well how many efforts we had to make to reach the abovementioned final procedure. Ukraine had applied for Council of Europe membership as far back as 1992. No serious efforts were made to this end thereafter. Of course, something was done, but there were no major efforts – unfortunately, not all wanted this membership. When I became the acting premier, the then Minister of Justice, Serhii Holovatyi, and I began to work rather actively in this direction. Holovatyi was taking quite an active and constructive part in this.

“To kick-start the process of entry, the Parliamentary Assembly (PACE) was to pass a positive resolution on Ukraine’s membership application. As soon as late September 1995 the PACE did so. Frankly speaking, it was a great joy for us. But, let me say it again, not for all because Ukraine’s entry into the Council of Europe meant taking on huge responsibilities. This positive result was based not on abstract things but on the work Ukraine had begun to do. There were public plans and governmental decisions. The vast majority of those in the know knew about serious obligations to reform the judicial system and, above all, to observe human rights and the rule of law.

“The Verkhovna Rada passed a law on Ukraine’s adherence to the Statute of the Council of Europe. The Council of Europe in turn resolved to invite Ukraine to enter on November 9. It is they who fixed the date. We were being admitted together with Macedonia. After this, Ukraine took on an enormous program of meeting European standards through legislation. Ukraine was supposed to become a social rule-of-law state, where all human rights must be observed strictly. But we can see how difficult the reformation of our judicial system is. We are accustomed today to being a member of the Parliamentary Assembly of the Council of Europe. The Council of Europe has defended us with its decisions and identified Russia as aggressor. It is being taken for granted now, but it cost a great deal of hard work. And human rights were the pivotal point of this work. We have a lot of problems with this in practice, starting with social rights of man (for the social aspect – insurance, education, and medicine – is very important) and ending with the freedom of speech. For example, Gongadze was killed not because he owed somebody money but because he strove to realize himself as journalist. Therefore, we will still have to do very much, especially taking into account that Ukraine is in the state of a rather specific war with Russia.”

By Ivan KAPSAMUN, Valentyn TORBA, The Day