Report | Doc. 13405 | 28 January 2014

The functioning of democratic institutions in Ukraine

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Co-rapporteur : Ms Mailis REPS, Estonia, ALDE

Co-rapporteur : Ms Marietta de POURBAIX-LUNDIN, Sweden, EPP/CD

Origin - Reference to committee: Reference 4011 of 27 January 2014. 2014 - First part-session

Summary

The Monitoring Committee expresses its deep concern about the political crisis that has ensued in Ukraine following the surprise decision of the Ukrainian authorities to suspend the procedure for the signing of an Association Agreement with the European Union. It strongly condemns the escalating violence by both sides at the Euromaidan protests, which has already resulted in at least three fatalities.

In this respect, the committee is concerned about both the violent provocations by far right-wing protesters, as well as the excessive and disproportionate use of violence by the police against protesters. The committee therefore calls on the authorities to refrain from any attempts to forcefully break up the protest rallies and camps and protesters to refrain from any violence or actions that are clearly aimed at provoking a violent reaction from the other side.

The committee regrets the adoption, in chaotic circumstances that undermine their legitimacy, of the so-called “anti-protest laws” package by the Verkhovna Rada on 16 January 2014 and their subsequent enactment by President Yanukovich on 18 January 2014, and calls for their immediate repeal.

The violence and human rights violations should be brought to an immediate halt and open and effective negotiations should be started to reach an agreement on a solution to the rapidly escalating crisis. In the view of the Monitoring Committee, such an agreement should be based on pledges by both sides not to use violence, the immediate repeal of the so-called anti-protest laws and the immediate start of an open, serious and effective dialogue between those in power and the political and civil forces united in the Euromaidan protests about the future democratic direction and geopolitical alignment of the country.

A. Draft resolution

(open)

1. The Parliamentary Assembly expresses its deep concern about the political crisis that has ensued in Ukraine following the surprise decision of the Ukrainian authorities to suspend the procedure for the signing of an association agreement, including a Deep and Comprehensive Free Trade Area agreement, with the European Union. It strongly condemns the escalating violence at the Euromaidan protests, which has already resulted in at least three fatalities.

2. As a sovereign nation, it is for the Ukrainian people – and only them – to decide, free from foreign interference, about the geopolitical orientation of the country and which international agreements and communities Ukraine should join. The question of whether or not to sign an association agreement with the European Union is for the Ukrainian people alone to answer. At the same time, the Assembly considers that such important decisions as the geopolitical direction of a country should be made on the basis of an as wide a political consensus as possible between the different political forces in the country and on the basis of extensive consultation with the population.

3. The Assembly recalls that, until 21 November 2013, the authorities, by both word and action, strongly supported the signing of the association agreement with the European Union at the Vilnius Summit in November 2013. It therefore regrets that the sudden change of policy was made without the required consultation of society and without any attempt to seek a nationwide consensus. This undermines the democratic legitimacy of the decision to suspend the signing of the agreements, which is also evident from the outbreak of nationwide mass protests that followed. The Assembly therefore urges the authorities to enter into open, honest and effective negotiations with the opposition and to promptly seek a wide consensus on the geopolitical alignment and further democratic development, as well as the constitutional order of the country.

4. The Assembly takes note of public statements by the Ukrainian leadership that the decision not to sign the association agreement was heavily influenced by pressure from the Russian Federation, and especially the threat by Russia to close its borders to goods coming from Ukraine if the association agreement was signed. Threats of sanctions and economic and political blackmail to influence political decisions in another country run counter to generally accepted diplomatic and democratic norms and are unacceptable. In this respect, the Assembly wishes to remind the Russian Federation of its accession commitment “to denounce as wrong the concept of two different categories of foreign countries, whereby some are treated as zone of special influence called ‘the near abroad’ and refrain from promoting the geographical doctrine of zones of ‘privileged interest’”.

5. The Ukrainian authorities have asserted that foreign criticism of their handling of the Euromaidan protests amounts to foreign interference in their internal affairs. In this respect, the Assembly wishes to underscore that, as a member of the Council of Europe, Ukraine is obliged to maintain the highest standards with regard to democracy, the protection of human rights and the rule of law. In addition, Ukraine is signatory to, inter alia, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Any violations of human rights and any developments that could undermine the proper functioning of democratic institutions can therefore not be considered domestic affairs stricto sensu and are legitimate areas for concern or criticism from other countries, especially from other Council of Europe member States.

6. The Assembly regrets, and is concerned about, the excessive and disproportionate use of violence by the police against protesters. In the view of the Assembly, the attempts by the authorities to forcefully break up the Euromaidan protests have only escalated the political crisis and galvanised the protesters. The right to freedom of manifestation and assembly should be fully respected. The Assembly therefore calls on the authorities to refrain from any attempts to forcefully break up the protest rallies and camps. At the same time, it calls on police and protesters to refrain from any violence or actions that are clearly aimed at provoking a violent reaction from the other side.

7. The Assembly is especially concerned about credible reports of torture and maltreatment of protesters by the police and security forces. Such behaviour, which has been transmitted on several television channels, is unacceptable and the perpetrators need to be punished to the full extent for the law. There cannot be any impunity for such actions. The Assembly is equally concerned about reports that journalists are specifically targeted by the security forces, in contradiction of the principle of freedom of the media.

8. The outbreaks of violence in December 2013 and January 2014, the excessive and disproportionate use of force by the police, and other alleged violations of human rights need to be fully and impartially investigated, addressed and remedied and the perpetrators brought to justice. The Assembly welcomes the initiative of the Secretary General of the Council of Europe to establish an independent advisory panel to investigate the violent incidents during the Euromaidan protests, and regrets that both the authorities and opposition have failed to nominate their representatives on this panel. In the view of the Assembly, a full, transparent and impartial investigation into the outbreaks of violence and the violations of human rights, is essential for a negotiated peaceful solution to the political crisis. It therefore urges both the authorities and opposition to nominate their representatives on the panel without further delay and to provide the panel with all the assistance and co-operation it requires for its work.

9. The Assembly regrets the adoption, in chaotic circumstances that undermine their legitimacy, of the so-called “anti-protest laws” package by the Verkhovna Rada on 16 January 2014 and their subsequent enactment by President Yanukovich on 18 January 2014, despite the many calls not to sign these laws into force. These laws violate the principles of freedom of expression, freedom of assembly and manifestation, as well as the freedom of the media and freedom of information, and infringe on the right to a fair trial. Cumulatively, these laws are undemocratic and repressive and run counter to Ukraine’s obligations under the European Convention on Human Rights (ETS No. 5) and as a member of the Council of Europe. They should be repealed in their entirety by the Verkhovna Rada without delay.

10. The violence and human rights violations should be brought to an immediate halt and open and effective negotiations should be started to reach an agreement on a solution to the rapidly escalating crisis. In the view of the Assembly, such an agreement should be based on pledges by both sides not to use violence, the immediate repeal of the so-called anti-protest laws and the immediate start of an open, serious and effective dialogue between those in power and the political and civil forces united in the Euromaidan protests about the future democratic direction and geopolitical alignment of the country.

11. The Ukrainian authorities had previously announced several far-reaching reform packages, including constitutional reform, to meet its obligations and remaining accession commitments to the Council of Europe. The Assembly expects that the authorities will maintain their political will and commitment to implement these reforms, which would also address several underlying causes of the Euromaidan protests. It asks the authorities to provide its Monitoring Committee with an updated timetable for these reforms.

12. In the light of escalating violence and violations of European democratic and human rights standards, it cannot be “business as usual” as regards Ukraine. The Assembly regrets that it was the Verkhovna Rada that contributed to the violent escalation of the crisis when it adopted the controversial anti-protest laws. The Verkhovna Rada should take full responsibility for its role and use all the instruments at its disposal to help reach a peaceful negotiated solution to the crisis. Therefore, the Assembly should consider the possibility of suspending the voting rights of the Ukrainian delegation at the opening of the April 2014 part-session if the grave human rights violations continue, the authorities decide to break down the Maidan protests by force, or if the Verkhovna Rada has not repealed the anti-protests laws package by then.

13. The Assembly will continue to follow closely the situation in Ukraine on the basis of information provided by its Monitoring Committee, which it invites to suggest further action if the political developments so warrant.

B. Draft recommendation

(open)

1. The Parliamentary Assembly refers to its Resolution …. (2014) on the functioning of democratic institutions in Ukraine, in which it raises a number of concerns about the recent political crisis and outbreaks of violence in Ukraine.

2. The Assembly recalls in this respect the 1994 Declaration of the Committee of Ministers on compliance with commitments accepted by member States of the Council of Europe, which refers to the statutory responsibility incumbent on it for ensuring full respect of the commitments in all member States, without prejudice to other existing procedures, including activities of the Parliamentary Assembly and other conventional control bodies.

3. The Assembly therefore recommends that the Committee of Ministers:

3.1. give due consideration to the issues and concerns raised in Resolution …. (2014);

3.2. consider a reinforced and specific monitoring procedure by the Committee of Ministers in respect of Ukraine;

3.3. consider readjusting the co-operation programme with Ukraine with a view to ensuring that the underlying causes of the political crisis, as inter alia set out in Resolution.… (2014), are properly addressed;

3.4. give full support to the initiative of the Secretary General of the Council of Europe to establish an advisory panel to investigate the outbreaks of violence in relation to the protests in Kiev, and encourage the Ukrainian authorities, as well as the opposition parties in that country, to constructively co-operate with this panel and to appoint their representatives on it.

C. Explanatory memorandum by Ms Reps and Ms de Pourbaix-Lundin, co-rapporteurs

(open)

1. Introduction

1. On 21 November 2013, in a surprise statement, President Yanukovich announced that the Ukrainian authorities had suspended the preparations for the signing of the association agreement and Deep and Comprehensive Trade Area (DCFTA) Agreement with the European Union that was to be signed during the Vilnius Summit on 28 and 29 November 2013. These agreements had been under negotiation since 2008 and until then had had the strong support of the authorities.

2. The surprise U-turn of the authorities led to large-scale spontaneous protest by the Ukrainian population. Regular protest rallies on Kiev’s Independence Square – “Maidan” – drew reportedly in excess of 300 000 protesters and were the largest protests seen in Kiev since the “Orange Revolution”. Regrettably, on 1 December 2013, this protest, which became known as “Euromaidan”, degenerated into violence when the special force police, the so-called “Berkut”, used disproportionate violence to break up an otherwise peaceful protest camp on the Maidan Square. This unwarranted use of violence and the resulting escalation of tensions only seemed to galvanise the protesters. A permanent protest camp was set up on Maidan Square and protest rallies the following weekend saw the participation of increasing numbers.

3. Concerned about the political crisis and potential for escalation, the Monitoring Committee, meeting on 13 December 2013, decided to request the holding of an urgent debate on the developments in Ukraine and asked us, as the committee’s co-rapporteurs on Ukraine, to visit Kiev

in the week after the committee’s meeting.

4. This visit took place on 19 and 20 December 2014. During this visit, we held high-level meetings with, inter alia, President Yanukovich; Prime Minister Azarov; Verkhovna Rada Speaker Rybak; Mr Leonid Kozhara, Minister of Foreign Affairs; the Deputy Minister of the Interior; the leaders, or their representatives, of the ruling and main opposition parties; the Head of the Delegation of the European Union to Ukraine; former Minister of the Interior, Mr Yuriy Lutsenko, as well as Ms Eugenia Tymoshenko, Mr Hryhoriy Nemyrya and Mr Serhiy Vlasenko. We would like to thank the Verkhovna Rada, as well as the Head of the Council of Europe Office in Kiev and his staff, for the excellent programme and assistance given to our delegation, especially at such a short notice.

5. Over the Christmas period the situation was generally calm and there were few new developments. While the situation remained tense and the political standoff continued, an uneasy status quo seemed to have settled in. This status quo was shattered when, on 16 January 2014, the Verkhovna adopted, in chaotic circumstances, a series of “anti-protest” laws that seriously infringe on basic human freedoms such as the freedom of expression, freedom of assembly and manifestation as well as freedom of information and freedom of the media. The adoption of these laws escalated the already tense standoff and deepened the political crisis. The signing into force of these laws by President Yanukovich, on 18 January 2014, was followed by large-scale demonstrations on the Maidan Square. Regrettably, violence erupted when a number of protesters, reportedly a group of right-wing activists, tried to move towards the parliament and clashed with the police which was blocking access to the parliament buildings. This was reportedly met by the police with excessive and disproportional use of force. In the ensuing violence at least three persons died and several hundred have so far been wounded.

6. In this context, following a request of the Monitoring Committee, the Assembly decided, on 27 January 2014, to hold an urgent debate on the functioning of democratic institutions in Ukraine and seized the Monitoring Committee for report.

2. Background

7. After his election in 2010, President Yanukovich made closer European integration, and especially signing an association agreement, including a Deep and Comprehensive Free Trade Area (DCFTA),

a key priority for his administration. This confirmed promises made during his election campaign.

8. In March 2012, the association agreement, and in July 2012, the DCFTA, were initialled by Ukraine and the European Union. The European Union made the final signature of this agreement subject to Ukraine meeting a number of conditions. These conditions included, inter alia:

a. addressing all cases of politically motivated convictions and further reforming the judiciary to avoid any recurrence;

b. continuing judicial reform, especially the reform of the General Prosecutor’s Office, the Criminal Code and the High Council of Justice;

c. pursuing further judicial, electoral and constitutional reforms.

9. Following the initialling of these agreements, President Yanukovich and his Party of Regions, the main party in the governing coalition, stated publicly that they strongly supported the signing of both agreements during the third Eastern Partnership Summit on 28 and 29 November 2013 in Vilnius. The commitment to sign the association and DCFTA agreements was further confirmed during the 2012 parliamentary elections, when support for these agreements was a major plank of the election programme of President Yanukovich’s Party of Regions

10. Considerable public attention in Europe was given to the issue of the alleged political prosecutions and convictions, and in particular to the cases of former Prime Minister Yulia Timoshenko and former Minister of the Interior Yuriy Lutsenko.

Due to the complexity and political sensitivity of these cases, progress was regrettably limited and slow. However, marked progress was made with regard to meeting the other conditions set by the European Union for signing the association agreement. The role of the Council of Europe in that respect should be underscored, as the European Union conditions coincide with accession commitments and obligations that Ukraine voluntarily entered into when it joined the Council of Europe.

11. With regard to pursuing further democratic reforms, inter alia, following the 2012 parliamentary elections, the authorities prepared amendments to the Law on the Election of People’s Deputies of Ukraine as well as other laws that govern elections in the country. These draft amendments were sent to the European Commission for Democracy through Law (Venice Commission) in April 2013. Further amendments were made to respond to recommendations and concerns mentioned in the Venice Commission’s opinion on the original draft.

In its final opinion

on the revised amendments, the Venice Commission considered that, although key recommendations of the Venice Commission were left unaddressed, the amendments were overall a positive step towards the improvement of the electoral legislation. Moreover, in May 2012, a Constitutional Assembly was set up by the President of Ukraine, consisting of representatives of all factions in the Verkhovna Rada as well as civil society representatives and legal experts. This Constitutional Assembly, which is chaired by Ukraine’s first President, Mr Leonid Kravchuck, was formally tasked with preparing amendments to the Ukrainian Constitution with a view to bringing it fully into line with European democratic and legal standards. It was not expected that this Constitutional Assembly would be able to finalise its work, let alone the constitutional amendments to be passed, before the Vilnius Summit.

12. The justice system, especially with regard to the independence of the judiciary and guarantees for a fair trial, continues to be of serious concern in Ukraine. That notwithstanding, progress in this area has taken place, also with a view to addressing European Union conditions. As mentioned in our information note

on our visit to Kiev and Kharkiv, from 14 to 18 May 2012, the Verkhovna Rada adopted a new Criminal Procedure Code on 13 April 2012. This code, which was drafted in consultation with the Council of Europe, was welcomed by the international community and positively assessed by Council of Europe experts. A proposal for a new law on the Public Prosecutor’s Office was drafted by the presidential administration and sent to the Venice Commission. However, this draft, which was considered by the Venice Commission

to be a significant advance on previous proposals, has not yet been adopted by the parliament. Similarly, required changes to the Criminal Code have not yet been implemented. The authorities have made a start with the reform of the High Council of Justice. However, this reform, as well as other reforms needed to guarantee the independence of the judiciary, is intrinsically dependent upon the adoption of constitutional amendments. In order to address this, a group of 156 members of the Verkhovna Rada drafted a series of constitutional amendments “to strengthen the independence of judges of Ukraine”. Their proposals were transmitted to the Venice Commission by the presidential administration. In its opinion

, the Venice Commission gave a mixed assessment of the proposals, noting a number of welcome improvements but also some very critical elements that needed to be addressed for the proposals to be in line with European norms and standards. These amendments have not been discussed in parliament or, to our knowledge, been introduced in the Constitutional Assembly and we have no indications about when the Constitutional Assembly will finalise its work. However, it is and always has been clear that no constitutional changes would be adopted before the Vilnius Summit.

13. The most complex and sensitive area was the release of those former government leaders whose prosecution and conviction was generally deemed to have been politically motivated. Progress regarding these cases was limited and slow. On 14 August 2012, the Kiev Court of Appeal changed the five-year sentence handed down to Valeriy Ivashchenko by the Kiev District Court, to a one-year probationary sentence and released him from prison. On 7 April 2013, Yuriy Lutsenko was pardoned by President Yanukovich and released from prison. His three-year ban from holding any public function, including elected ones, was however not lifted. The possible release of Ms Timoshenko proved to be the most difficult. Among others, both European Union Enlargement Commissioner Štefan Füle and the European Parliament Envoys, Pat Cox, and Aleksander Kwasniewski – who were tasked by the European Parliament with seeking the release of the imprisoned former government members – spent considerable time and effort to secure the release of Ms Timoshenko before the Vilnius Summit. As President Yanukovich had ruled out a presidential pardon, a compromise agreement was found whereby Ms Timoshenko would be allowed to leave Ukraine for Germany

to receive medical treatment and recuperate from her chronic back condition, effectively freeing her from jail. Ms Timoshenko publicly accepted this deal and Mr Yanukovich publicly stated that he would immediately sign into law the necessary legislation that would allow prisoners to receive medical treatment abroad, as soon as it was adopted by parliament. However, despite these assurances, on 21 November 2013, the Party of Region MPs failed to back the necessary legislation that would have allowed Ms Timoshenko to receive treatment abroad. This first indication that the authorities were backing out of signing the association and DCFTA agreements was soon followed by the official announcement that the authorities were suspending the preparations for the signing of the agreements

14. A detailed discussion of the progress made, or not made, with regard to meeting the European Union conditions is beyond the scope of this report. However, in general, the apparent political willingness of the Ukrainian authorities to meet the conditions set by the European Union, and indeed the concrete progress made in that respect, considerably raised expectations, inside and outside Ukraine, that the Association and DCFTA Agreements would be signed during the Vilnius Summit.

15. Russia had been following the deepening of relations between the European Union and Ukraine, as well as with other former Soviet States, with growing disquiet, as it feared that this would undermine its traditional influence in the region. Instead, Russia promoted the idea of these States joining the Eurasian Customs Union, with Russia, Belarus and Kazakhstan, which the Russian authorities see as a Russian-led alternative to the European Union in the region. For its part, the European Commission announced that, for legal reasons, it would be impossible to join the Eurasian Customs Union and also sign an Association and DCFTA Agreement with the European Union. This made these two alternatives mutually exclusive.

16. In the months leading up the Vilnius Summit, Russia became increasingly more vocal about its opposition to former Soviet bloc countries deepening and institutionalising their relations with the European Union and to either signing or initialling association agreements. In June 2013, ostensibly in reaction to Kiev’s support for the WTO in a dispute, Russia levied retaliatory custom fees on coal, chocolate and gas imports from Ukraine. On 29 June 2013, Russia banned the import of sweets and chocolates

from Ukraine, which was followed by threats to cut the gas supply to the Republic of Moldova and Ukraine. In addition, Russia announced that Ukraine would lose its special trade partner status with Russia, and that Russia would close its borders for Ukrainian products if it signed the association agreement with the European Union. On 11 September 2013, the President of the European Commission, Mr José Manuel Barroso, as well as Enlargement Commissioner Füle, strongly criticised the Russian pressure on Ukraine and other countries to prevent them from seeking closer ties with the European Union.

17. On 21 November 2013, following meetings between President Yanukovich and President Putin, as well as meetings between Ukrainian Prime Minister Azarov and his Russian counterpart Prime Minister Medvedev, President Yanukovich announced that his administration was suspending the signature of the Association Agreement and DCFTA, just a few weeks before they were supposed to be signed during the Vilnius Summit. This announcement came as a great surprise to the Ukrainian public, as well as to the country’s international partners

18. The main argument given for not signing the agreement was the fact that Ukraine would not be able cover the economic costs of the reforms needed to implement the trade agreement and, in a direct allusion to Russian pressure, that the Ukrainian economy would collapse if it lost its Russian market should the latter decide to close its borders to Ukrainian exports.

19. As previously mentioned, the surprise announcement of this political U-turn on the association agreement led to a spontaneous outbreak of large-scale protests. These protests mainly centred on Kiev but also sprang up in other parts of the country, both east and west, indicating a nationwide dissatisfaction with the decision.

20. While the protests initially focussed only on the decision of the authorities to suspend the signing of the Association Agreement, they soon broadened to include dissatisfaction with the governance style of the ruling majority, including the perceived lack of democratic decision-making and the high level of corruption among the leadership of the country. The change of nature of these protests was also underscored by the demands of the Euromaidan protesters that the government step down and the call for early parliamentary as well as presidential elections. The protests drew, and still draw, large numbers of participants from all over the country, especially during the weekends. A permanent protest camp was set up at Independence Square (Maidan) in Kiev, the site of the 2004 protests that heralded the Orange Revolution.

21. Regrettably, on 1 December 2013, violent clashes broke out between protesters and the police. The police, reportedly with excessive and disproportionate force, tried to break up a tent camp that protesters had set up on Maidan Square. While the attempt to clear the square by the police failed, this attempt, and the manner in which it happened, deepened the political crisis and galvanised the protest movement against the authorities.

22. The police action was widely condemned by the international community. The Secretary General of the Council of Europe, who visited Kiev on 4 December 2013, proposed the creation of an expert advisory panel to oversee the investigation of the violent clashes. According to his proposal, the panel would consist of one member nominated by the opposition, one member nominated by the government, and one member from the international community. This proposal was initially supported by both the opposition and authorities.

23. On 17 December 2013, President Yanukovich and President Putin signed an agreement in which Russia agreed to buy approximately 15 billion euro’s worth of Ukraine’s sovereign debt and agreed to slash its gas prices from more than $400 to $268 per cubic metre. It should be noted that, according to this agreement, the gas prices would be reassessed quarterly, which, in the view of many of our interlocutors, provides Russia with a permanent instrument to exert pressure on the Ukrainian authorities. Both the Russian and Ukrainian Presidents have emphasised that they did not discuss Ukraine joining the Eurasian Customs Union, which would have escalated the political situation in Ukraine. However, many in Ukraine are suspicious about Russia’s ulterior motives, or possible promises – in addition to giving GAZPROM privileged access to Ukraine’s gas distribution infrastructure – made by President Yanukovich in return for Russia’s assistance.

24. Initially talks continued between the Ukrainian authorities and the European Commission about the possibility of Ukraine signing the Association and DCFTA Agreements at a later date. However, stating that the authorities’ position had become unrealistic, the European Union broke off the negotiations on 14 December 2013. The European Council emphasised that the door remained open for Ukraine to sign the Association Agreement, as negotiated, at a later stage.

25. The protests initially subsided somewhat after the agreement between Russia and Ukraine was announced. However, a brutal attack during the Christmas period on an opposition-linked journalist by unknown assailants re-galvanised the protesters, who alleged the involvement of the authorities in this attack.

26. The uneasy status quo between protesters and authorities lasted until 16 January 2014, when the Verkhovna Rada, in a surprise move, adopted, in chaotic circumstances, a series of “anti-protest” laws. These laws aim not only to restrict demonstrations and the manner in which they take place, but also severely limit and undermine activities of non-governmental organisations (NGOs) and the media and give disproportionate and discretionary powers to the secret services and law enforcement agencies to investigate and prosecute protesters and political activists. The adoption of this package of “anti-Maidan” laws was widely decried by the international community, including by your rapporteurs. These laws violate the principles of freedom of expression, freedom of assembly and manifestation, as well as freedom of the media, and cumulatively are clearly undemocratic and repressive. We regret that despite the many appeals to the contrary, including by us, they were signed into law by President Yanukovich on 18 January 2014.

27. The enactment of the “anti-protest” laws was a clear escalation of the situation that unnecessarily increased the tensions between the authorities and protesters. As a result, a peaceful and democratic solution to the current political crisis seems further away than ever.

28. The adoption of these anti-protest laws led to a wave of new protests rallies on Maidan Square in defiance of the authorities. The negative impact of the adoption of these laws on the relations between the authorities and protesters became clear when, on 19 January 2014, the protests erupted into violence when a group of reportedly right-wing activist provoked clashes with the police that drew considerable support from the protesters who had until now remained peaceful.

29. At the time of writing, a tense stand-off and occasional violent clashes continue and a negotiated solution to this political crisis seems for the moment to be impossible. President Yanukovich and the main opposition leaders announced on 18 December 2014 that they would meet to find a negotiated solution for the ensuing crisis. However, these talks failed to achieve any results when both President Yanukovich and the opposition leaders announced that they would send their deputies to attend the meeting. New talks were set for 23 January 2014.

30. On 22 January 2014, police stormed barricades put up by protesters off Maidan Square. In the ensuing clashes at least two protesters were fatally shot by the police. We deeply regret and condemn this development and call on the police to show restraint and to refrain from using any means of potentially deadly force.

31. On 23 January 2014, the Verkhovna Rada Chairman, Volodymyr Rybak, announced an emergency session of the Verkhovna Rada to discuss the ongoing political crisis and reportedly to vote on a proposal by the government to repeal the controversial anti-Maidan laws. In response to the concerns expressed, Mr Rybak emphasised that the declaration of a state of emergency was not on the agenda of the Rada.

3. Legitimacy

32. In this report, as we did from the outset during our meetings in Kiev, we wish to emphasise that, irrespective of our personal opinions, the question of whether Ukraine should sign an association agreement or not – or on what terms – with the European Union, is not a question for the Assembly to deal with. Ukraine is a sovereign nation and only the Ukrainian people should decide, free from foreign interference, about the geopolitical orientation of the country and about which international agreements and communities they wish the country to join. However, in the context of Ukraine’s democratic commitments, the manner in which the decision was taken on such a crucial issue as the country’s geopolitical alignment, and the manner in which the public was consulted on this choice – in short, the democratic legitimacy of the decision – is of the Assembly’s remit, especially in the context of the ensuing political crisis.

33. As outlined above, the current authorities – both the President and the ruling majority in parliament – were elected on the basis of a clear promise to seek closer integration between Ukraine and the European Union and to sign Association and DCFTA Agreements with the European Union. In all its actions and discourse, until two weeks before the Vilnius Summit, the authorities confirmed their intention of, and support for, the signing of these agreements during the Vilnius Summit.

In addition, different opinion polls showed the continued strong support of the population for deeper alignment with the European Union economic and social space. The sudden U-turn, without proper public consultation, in the face of such a strong public mandate to sign the agreements, raises serious questions about the democratic legitimacy of the decision of the authorities to back away from signing these agreements.

34. In our view, it is this questionable democratic legitimacy of the decision made by the Ukrainian leadership that led to the mass protests by such a wide segment of society in Ukraine. The Ukrainian authorities should recognise the legitimacy of the questions raised in this respect by the protesters.

35. Democratic principles demand that such important issues as the geopolitical direction of a country are made on the basis of an as wide a political consensus as possible and on the basis of extensive consultations with society. In the context of the ensuing political crisis, such consensus and consultations are more necessary than ever. We call on the authorities, as well as the opposition, to come to an agreement on the manner in which the public will be consulted, and a proper political mandate obtained for any final decision on the geopolitical direction of the country. The fact that the Ukrainian people can express themselves on this crucial issue is of key importance. As to the manner in which this is achieved, via referenda or elections, early or regular, it is up to the authorities and opposition, united in the Euromaidan protests, to reach agreement.

4. Political environment

36. The political environment in Ukraine is extremely tense, polarised and fragmented, which has hindered the resolve for a negotiated solution of the continually deepening political crisis. Despite their outward demonstration of unity, both the authorities and the protesters seem to be internally divided on the manner in which the political stand-off can be resolved and the underlying causes addressed.

37. The internal divisions among the authorities are clear from, inter alia, the resignation of the influential Head of the Presidential Administration, Serhiy Lyovochkin, over the manner in which the protests are being handled.

In addition, key ministers, such as the Prime Minister and the Minister of the Interior, often seem to be not well informed about, or in control of, the actions of the security and law-enforcement agencies. The criminal investigation started by the Prosecutors Office of the Ministry of Foreign Affairs over its negotiations with the European Union, is another indication of the divisions within the ruling majority. In relation to this investigation, and taking into account the position taken by the Assembly in Resolution 1862 (2012)

and Resolution 1950 (2013)

, we wish to emphasise that any prosecution of Ministry of Foreign Affairs officials, and especially the Minister himself, for their role in negotiating the draft Association and DCFTA Agreements, could only be seen as politically motivated and another example of criminalisation of normal political decision-making, which would be unacceptable.

38. At the same time, the Euromaidan protest is about more than just discontent with the authorities’ abandoning of the European Union agreements. It is also driven by a general discontent with the governing style of the ruling majority, the endemic corruption and the perceived lack of democracy of the political class in general. The Euromaidan movement brings together protesters from a broad and diverse segment of Ukrainian society; many of them are not necessarily represented by the parliamentary opposition or traditional civil society organisations. As such, the parliamentary opposition parties cannot claim to fully represent the whole range of views united in the Euromaidan protest. Moreover, the different opposition parties seem not always to be on the same wavelength with regard to the strategy to be followed. A number of opposition representatives have questioned the wisdom of making the immediate resignation of the government and early presidential and parliamentary elections a precondition for ending the protests, as this, in their view, unnecessarily deepens the stand-off and makes a negotiated solution more difficult.

39. The agreement between Presidents Putin and Yanukovich on 17 December 2013 had had a considerable impact on the political situation in Ukraine, and initially bolstered the authorities’ position with regard to signing the agreements with the European Union. However, this agreement did not lead to the disbanding of the anti-government protests or a substantial decrease in the number of protesters participating in them. This seems largely the result of a strong suspicion among the Ukrainian public about the agreement reached between President Putin and President Yanukovich. These suspicions were strengthened when the details of the agreement started to emerge, especially the fact that gas prices, a key component of the agreement, would be renegotiated every three months, which would potentially give Russia considerable influence over the policies and decisions of the Ukrainian Government.

40. The situation remained relatively calm, albeit tense, until mid-January 2014. Many interlocutors predicted that the Euromaidan protest movement was slowly developing into a civil movement that would focus on mobilising the public for the upcoming elections. In their view, which we support, this would have led sooner or later to the protests being peacefully disbanded, as long as the authorities did not crack down on the Euromaidan protest camp, or be seen as closing down permanently – without a wide consensus in society – the path to further alignment with the European Union, for instance by deciding to join the Eurasian Customs Union.

41. The controversial adoption of the set of so-called “anti-protest” laws considerably and unnecessarily escalated the tensions and political crisis. The outbreak of violence between police and certain groups of protesters is directly related to this. The positions of authorities and protesters became more entrenched, and a negotiated solution to the crisis further away than ever.

5. Violence and human rights violations

42. Firstly, we would like to express our deepest concern about the outbreaks of violence during the protest, both in December 2013 and recently after the adoption of the anti-protest laws. We strongly condemn the violent action of both the police in trying to break up the protests and of certain groups of protesters with the aim of provoking the police. We call on all sides to show the utmost constraint and to refrain from any violence or any action that may provoke it. The increased radicalisation of both sides could easily spin out of control and lead to massive rioting. A negotiated solution to the stand-off, including on how to establish an open and effective dialogue between the ruling majority and those parties and forces that have united themselves in the Euromaidan movement is the only acceptable way forward.

43. The violence that broke out between protesters and the police of Maidan Square seems to have been instigated by members of a small radical far-right group called Right Sector, which has aligned itself with the protest movement. In addition, some violent clashes are reportedly instigated by so-called “Titushky”, thugs and provocateurs who are alleged to have been paid by supporters of the authorities to start violent incidents in order discredit the protest movement. While the leaders of the protest movement have openly dissociated themselves from the rioters, these hardliners seem to receive increasing support, albeit until now only moral, from the protesters, who otherwise have remained peaceful. This radicalisation of the protesters is largely the result of dissatisfaction with the limited results achieved by the peaceful protests and the perceived absence of any willingness on the part of the authorities to engage in serious negotiations with the opposition. In order to avoid any further radicalisation and escalation of the protests, the authorities and opposition leaders should, without further delay, enter into open, honest and effective negotiations with the protest movement and opposition parties on the resolution of the ongoing crisis, as well as on the geopolitical alignment and democratic development of the country.

44. Before the Christmas break, the police and security forces attempted to break up the mass protests on Maidan Square on 30 November and on 1 and 11 December 2013. During these attempts, which were covered widely and in detail on national and international television networks, the police resorted to excessive and indiscriminate use of force, in contradiction to accepted European norms and principles regarding the use of force by law-enforcement personnel. On 23 December 2013, Amnesty International published a report “EuroMaidan: human rights violations during protests in Ukraine”, which details human rights violations during the Euromaidan protest, including the excessive and indiscriminate force used by the police and security forces when attempting to break up the protests.

45. The attempts to break up the protests, which alone raise questions with regard to the respect for the principle of freedom of peaceful demonstration, and the violent manner in which this was done, only hardened the resolve of the protesters and led to increased participation. The events on 30 November 2013, when the “Berkut” – special riot police – was filmed violently beating up otherwise peaceful protesters as well as innocent bystanders and journalists, especially led to a national and international outcry. The authorities distanced themselves from the police action and claimed that it had been ordered by senior law-enforcement personnel, without their having informed their political superiors. The head of the Kiev police force was dismissed and criminal investigations started against a number of high-level Ministry of the Interior officials.

46. We are especially concerned about reports and claims that journalists were purposely targeted during the exercise of their functions by the riot police, which would be in contradiction to the principle of freedom of the media.

47. The Secretary General of the Council of Europe, who visited Ukraine on 4 December 2013, proposed the creation of an expert advisory panel to oversee the investigation of the violent clashes on 1 December. According to his proposal, this panel should consist of one member nominated by the opposition, one member nominated by the government, and one member from the international community. This proposal was supported by both the opposition and the authorities. Sir Nicolas Bratza, former President of the European Court of Human Rights, was appointed as the representative of the Secretary General on this advisory panel. However, during our visit in December 2013, the authorities explicitly told us that no initiative could undermine, interfere or go against the investigation of the General Prosecutor into these violent incidents, effectively rendering the Secretary General’s initiative meaningless. Subsequently, both the opposition and the ruling authorities failed to appoint their representatives to this advisory panel. We regret this development as, in our opinion, an independent investigation into the use of violence is much needed, especially in the light of the recent fatalities. An independent and impartial inquiry into the violent clashes and the use of violence will also be a key precondition to ensuring a negotiated resolution to the political crisis. It is clear that the law enforcement agencies, as well as the Prosecutor General, are seen as being party to these clashes. Therefore, they will not be able to conduct an investigation that would be accepted as impartial by the Ukrainian population in general and by the Euromaidan protesters in particular.

48. On 19 December 2013, an agreement was reached between ruling majority and opposition parties in the Verkhovna Rada to adopt a general amnesty for anyone involved in the Euromaidan protests. It was also agreed between the ruling majority and opposition that any human rights violations committed by police officers, including excessive use of force, would not be covered by this amnesty. However, as part of the anti-protest laws adopted on 16 January 2014, this law was revised in such a manner that crimes committed by police officers in relation to the Euromaidan protest were also covered, in breach of the original agreement.

49. The Amnesty International report mentioned above also documents cases in which groups of individuals were prevented from participating in the protests or were harassed by the police and security forces about their participation. Reports were also received about police forces exerting pressure on protesters to withdraw complaints they had made against members of the law-enforcement and security forces. If proven, this would be a serious infringement of democratic principles and human rights. All these complaints and allegations therefore need to be fully and transparently investigated. Any substantiated violations should be properly addressed in line with European standards and Ukraine’s obligations as a member of the Council of Europe

50. During violent clashes between police and protesters in the morning of 22 January 2014, at least two protesters were shot dead by the police and one fell to his death from the roof of the Kiev Dynamo football stadium. One of the protesters killed by police bullets was reportedly shot four times in the head and abdomen, which would seem to be a clear indication of the use of excessive force by the police. All these fatalities should be fully and transparently investigated and the perpetrators brought to justice.

51. Another area of concern are indications that the authorities have used these protests as an excuse to clamp down on opposition activity. The most disturbing action in this respect was the raiding, on 8 December 2013, of the headquarters of the “Fatherland”, one of the opposition parties

by the secret services and the confiscation of their computer servers. Even a remote possibility that the protests would be used by the authorities for a crackdown on the opposition is of serious concern and should be closely followed by the Parliamentary Assembly.

6. External pressure and interference

52. In the sections above we have outlined the different forms of pressure and threats of sanctions that were applied by Russia on Ukraine in the run-up to the Vilnius Summit. Prime Minister Azarov publicly stated that one of the main reasons for suspending the signing process was that Ukraine’s economy would collapse if Russia closed its borders to Ukrainian goods when the association agreement was signed. Moreover, the authorities stressed that the signature of the association agreement would have damaged relations between Ukraine and the Russian Federation. This clearly indicates that Russian pressure was one of the main causes for the sudden U-turn of the authorities. This was also confirmed by several statements by European Union enlargement Commissioner Štefan Füle.

53. We wish to stress that all sovereign nations should be completely free in the choice of their international and geopolitical alignments and associations. It is logical, and to be expected, that both the European Union and Russia would try to convince Ukraine in favour of their respective positions and to entice it to join their preferred geopolitical arrangement. However, this should be within the limits of generally accepted diplomatic and democratic norms and principles. The threats of sanctions and economic and political blackmail, as was applied to Ukraine – as well as to other ex-Soviet States that wanted to sign association agreements with the European Union – transcends such norms and principles and can only be described as undue pressure. The use of such means to influence political decisions in another country is unacceptable and runs counter to Council of Europe membership obligations. In this respect, we wish to remind the Russian Federation of its accession commitment “to denounce as wrong the concept of two different categories of foreign countries, whereby some are treated as zone of special influence called ‘the near abroad’ and refrain from promoting the geographical doctrine of zones of ‘privileged interest’”, which was emphasised again in Resolution 1896 (2012) on the honouring of obligations and commitments by the Russian Federation, adopted by the Assembly on 2 October 2012.

54. The authorities have become increasingly sensitive about foreign criticism of their handling of the Euromaidan protests, which they perceive as foreign interference in their internal affairs. Following the agreement on financial assistance with Russia, the authorities issued an explicit warning to European Union members and international organisations – including the Council of Europe – not to attempt to get involved in the political crisis in the country. In this context, even the initiative of the Secretary General to establish an advisory panel was considered as foreign interference by the authorities. In all fairness, our work and concerns have until now not been questioned by the authorities and have been considered legitimate by them in the framework of the ongoing monitoring procedure for Ukraine.

55. In the previous paragraphs we have given our views on the limits of possible foreign influence. However, we also wish to emphasise that as a member of the Council of Europe, Ukraine is obliged to maintain the highest standards with regard to democracy, the protection of human rights and the rule of law. In addition, Ukraine is signatory to, inter alia, the Universal Declaration of Human Rights and the United Nations International Covenant on Civil and Political Rights. Any violations of human rights standards and any developments that could undermine the proper functioning of democratic institutions can therefore not be considered domestic affairs in stricto sensu, and are legitimate areas for concern or criticism from other countries, especially from other Council of Europe member States.

7. Anti-protest laws

56. On 16 January 2014, the Verkhovna Rada, in a surprise move, adopted a series of laws which are collectively known as the “anti-protest” or “anti-Maidan” laws. However, these laws not only place new restrictions on demonstrations and protests but also, inter alia, restrict NGOs and media organisations, re-criminalise defamation, criminalise broadly defined extremist propaganda, and change the Criminal Procedure code to allow for speedier proceedings by removing some safeguards against possible violations of the right to a fair trial.

57. A detailed analysis of the anti-Maidan laws is beyond the scope of this report. We understand that the Venice Commission has been asked by the Secretary General to provide a detailed analysis of this legal package, which we welcome. In this section we will outline some of the provisions that, after initial analysis of these laws, are of major concern.

58. First of all, it should be noted that the anti-protest laws were adopted in chaotic and controversial circumstances and in apparent violation of the rules of procedure of the Verkhovna Rada. This brings into doubt both the legality and legitimacy of their adoption. Most of the laws that were adopted as part of this package were tabled at the last moment and adopted without prior consideration in one of the committees of the Verkhovna Rada, which is against its rules of procedure. The laws were adopted by a show of hands, despite the fact that the rules of procedure reportedly only allow for this if electronic voting is not possible for technical reasons. The count of hands took only a few seconds and votes were counted on the basis of the strength of political groups, despite the fact that many MPs were not present.

59. With regard to restrictions on the right to manifestation, the blocking of the entrance of a private residence can be punished with three years’ imprisonment and the entrance of public buildings with five years. Driving in a column of more than five vehicles without prior police authorisation is forbidden, as is the installing of tents or stages, which can lead to arrest for up to 15 days. Demonstrators can also be arrested for up to 15 days for wearing helmets or masks or for violation of “established procedure” when holding assemblies.

60. The law also introduced a prohibition of “extremist activity” with a sentence of up to three years’ imprisonment. The definition of extremist activity in this law is overbroad and leaves excessive room for discretion on the part of the courts and prosecution. In addition, insulting policemen or judges, or the distribution of any personal data or data that shows disrespect to them, can be punished by between six months and three years of imprisonment.

61. To our great concern, defamation has been re-criminalised. Defamation in the mass media or on the Internet can be punished by one year of correctional work and in the case of an unproven accusation of a serious crime up to two years of restriction of liberty. It should be noted that corruption is considered a serious crime, which means that any accusation of corruption by an official without it being proven in court could potentially lead to imprisonment. This will undoubtedly have a chilling effect on journalists and anti-corruption activists.

62. In a clear restriction of the principles of freedom of expression and freedom of the media, Internet media will now need to be registered. The National Commission on Communications – consisting of seven members appointed by the President – can order Internet providers to block unregistered Internet media as well as any website that disseminates “illegal information”.

63. In a clear move to limit NGO activity, and in clear violation of the right to freedom of assembly, the Ukrainian legislator introduced a law on “foreign agents”. We wish to highlight that a similar law on “foreign agents” introduced by the Russian Duma led to an international outcry and was severely criticised by our Assembly. The Russian authorities have reportedly indicated that they are willing to revise this legislation to address concerns expressed by the international community. According to the newly adopted law, NGOs in Ukraine who receive foreign funding, and who are engaged in political activity, will be considered as “foreign agents”. They will lose their tax exemption status and will have to reregister with the authorities. NGOs that are considered to be “foreign agents” will have to mention this on all information material and reports they produce.

64. From an initial assessment of the laws, it is clear that they violate the right to freedom of expression, freedom of assembly and manifestation, as well as freedom of the media, and undermine the right to a fair trial. While some of the provisions, such as those on “foreign agents” and “extremist propaganda” also exist in some other countries – and are also heavily criticised there by the Council of Europe and its Parliamentary Assembly – the extent and cumulative effect of this package of anti-protest laws, as well as the political context in which they were adopted, sets them apart. These laws are undemocratic and repressive and run counter to the Ukraine’s obligations under the European Convention on Human Rights and as a member of the Council of Europe.

65. The enactment of these laws only entrenched the Euromaidan protesters and escalated the tension between authorities and opposition, making a peaceful and democratic solution to the current political crisis more remote in the short term. This result was easy to predict and the reason for our call on 17 January 2014 to President Yanukovich not to sign these laws into force. Regrettably, our warning and request was not heeded and the laws were enacted on 18 January 2014. The adoption and enactment of these laws are the direct cause of the escalating violence and rioting that followed.

66. Given the questionable nature of these laws, and the deteriorating effect they have had on the political situation in Ukraine, we call on the authorities, and especially the Verkhovna Rada to repeal these laws without further delay.

8. Concluding remarks

67. In the run-up to the Vilnius Summit, a major focus of attention was the continued imprisonment, on very questionable grounds, of former Prime Minister Yulia Timoshenko. The sudden U-turn by the authorities and the developments that followed have sidelined her case and given the impression that her plight is no longer on the political agenda. While we have always questioned linking her case to the signing of the association agreement, we wish to stress that her continued imprisonment, on questionable and seemingly politically motivated grounds, continues to be of major concern to us and we will continue our efforts to seek her release.

68. The political crisis in Ukraine is also rooted in the institutional imbalance of powers envisaged in the 1996 Constitution that came back into force with the controversial Constitutional Court judgment of 2010, which in the view of the Venice Commission raised some questions with regard to the legitimacy of the new constitutional order. We therefore reiterate our recommendation that constitutional reform be implemented promptly, also with a view to securing full legitimacy of the constitutional order among the Ukrainian public.

69. In the framework of the monitoring procedure, the Ukrainian authorities announced several far-reaching reform packages, including constitutional reform, to meet the remaining accession commitments and obligations to the Council of Europe. In the current political environment, it is unclear what the state of affairs is with regard to these reform packages. Given the prominent role of the Prosecutor General in the recent events, some interlocutors have expressed their doubt that the draft law on the Prosecutor’s Office will be discussed in parliament in its current form. This, in turn, could undermine the implementation of the new Criminal Procedure Code, the adoption of which was welcomed by the Council of Europe. We ask the authorities to provide us with updated information on the timeline and priorities for the announced reforms. We hope that the decision not to sign the association agreement will not result in a diminished political will on behalf of the authorities to implement the promised reforms.

70. The Council of Europe is implementing an ambitious co-operation programme with Ukraine. This co-operation programme, which is instrumental for the country to honour its membership obligations and accession commitments should, where necessary and relevant, be adapted in the light of the recent political developments.

71. The violence and human rights violations should be brought to an immediate halt and open and effective negotiations should be started to reach an agreement on the solution to the rapidly escalating crisis. Such an agreement should be based on pledges by both sides not to use violence, the immediate repeal of the so-called anti-protest laws – which were the cause of the escalation – and the immediate start of an open, serious and effective dialogue between those in power and the political and civil forces united in the Euromaidan protests about the future democratic direction and geopolitical alignment of the country.

72. It is important that the circumstances behind any fatality are fully and transparently investigated and the perpetrators brought to justice. Transparent and impartial investigations are also needed into the violent incidents, including the excessive and disproportional use of force by the police on 30 November and 1 and 11 December 2013, as well as into the escalating violence that erupted on 18 January 2014. The expert advisory panel to oversee the investigations, proposed by the Secretary General of the Council of Europe, could provide an excellent mechanism to ensure the impartiality of these investigations and the acceptance of their outcome by the Ukrainian public. The ruling majority, as well as the opposition, should reconsider their apparent unwillingness to co-operate with this initiative.

73. In the light of escalating violence and the violations of European democratic and human rights standards that are taking place, it cannot be “business as usual” as regards Ukraine. In that respect, we deeply regret that it was the Verkhovna Rada – our own colleagues – that caused the violent escalation of the crisis when it adopted the set of anti-Maidan laws that are both undemocratic and repressive in nature. The Verkhovna Rada should take full responsibility for this. We therefore propose that the Ukrainian delegation to the Parliamentary Assembly be deprived of its voting rights in April 2014, if the grave human rights violations continue, the authorities decide to break down the Maidan protests by force or if the Verkhovna has not repealed the anti-protests laws package by then. In addition, the Assembly should consider the possibility of additional measures if the political crisis further escalates.