The Ukrainian Think Tanks Liaison Office is a non-profit organisation that unites 20 think tanks that focus on a wide array of EU – Ukraine critical issues and provide high-quality research and policy recommendations.
On May 14, for the first time in the history of independent Ukraine, the Constitutional Court of Ukraine dismissed from office Stanislav Shevchuk, a judge of the CCU who at that time was the Chairman of the Constitutional Court. The judge was dismissed for the commitment of material disciplinary offence, gross and systematic neglect of his duties, which is incompatible with the status of a judge of the CCU, and the Court revealed his inconsistency with the position on the basis of clause 3 of part two of Article 149-1 of the Constitution of Ukraine.
Fundamentally new and positive aspects of the adopted decision
Early dismissal of a judge of the Constitutional Court of Ukraine for the first time was grounded on the Conclusion of the Standing Committee on Rules and Ethics of the Constitutional Court of April 17, 2019. In fact, three judges of the CCU – S. Sas, I. Slidenko and M. Melnyk, took the liberty of starting the procedure for the dismissal of their colleague. On March 13 this year, they addressed the judges of the CCU with a substantiated letter on the need for the urgent application of strict legal measures in connection with the activities of the Chairman of the CCU, which are incompatible with the status of a CCU judge.
The previous practice of early dismissal of judges of the CCU for the oath breaking by the President of Ukraine and the Parliament was exclusively of a political nature and was used as a form of pressure on the judges of the CCU. Thus, the dismissal or threat of dismissal of judges was used as constant measures of pressure on the CCU. In order to influence the Constitutional Court and form a politically manageable structure, the Parliament and the President used their powers to dismiss the judges of the Constitutional Court, often exploiting the unsettled dismissal procedure for “violation of the oath” by a judge.
As noted in the analytical report of the Centre of Policy and Legal Reform and DRI of December 2017, “in numerous cases, the dismissal of judges of the CCU on the grounds of violation of the oath was carried out even without any explanations as to where exactly the subject of dismissal sees this violation.”
In order to understand the fundamentally new and positive character of the recent replacement of the CCU Chairman, it is worth recalling the dismissal of the CCU judges “on their own will” before the adoption of the Constitutional Court Decision of September 30, 2010, which amended the Constitution of Ukraine. In that situation, at the beginning of September 2010, within a few days, 4 judges of the CCU wrote a resignation application. In fact, this was due to political motives. Instead, the new judges of the CCU were quickly appointed, and Ukraine received an unconstitutional decision of the CCU of September 30, 2010, which changed the Constitution of Ukraine in the interests of the incumbent President Viktor Yanukovych, expanding his powers.
After the Revolution of Dignity and the escape of President Yanukovych to Russia on February 24, 2014, the Verkhovna Rada of Ukraine renewed the effect of the Constitution of Ukraine in the wording of 2004 and passed the Resolution “On Response to the Facts of Violation of the Oath by the Judges of the Constitutional Court of Ukraine”, whereby it dismissed the judges of the Constitutional Court of Ukraine A. Golovin, M Kolos, M. Markush, V. Ovcharenko, O. Pasenyuk, and offered the Acting President of Ukraine and the Council of Judges to release seven more judges of the CCU. The indicated grounds for dismissal was the violation of their oath by adopting the above-mentioned Decision No.20-рп/2010. However, the judges, whom the Verkhovna Rada of Ukraine proposed to dismiss, remained in their positions.
Moreover, yesterday, the Constitutional Court elected a new Chairman from those judges, who were not released for violation of the oath in 2014. It is also worth mentioning that today’s Chairman of the Constitutional Court voted for the abolition of criminal liability for illegal enrichment, which caused dissatisfaction of the Ukrainian society. Perhaps, in order for the CCU to realize that a CCU judge does not correspond to the position held, it should first elect her/him Chairman of the Court?
Consequently, in order to ensure the independence of judges of the Constitutional Court, the constitutional amendments of June 2, 2016, stipulated for the transfer of authority to dismiss the judges of the CCU from the subjects of appointment of the CCU judges (Parliament, President and Congress of Judges) to the CCU itself. Today it is worth noting that constitutional innovations worked out and for the first time the early dismissal of the CCU judge was motivated.
How should the CCU protect its independence?
However, we draw attention to the constitutional innovation about the new procedure for appointment of the CCU judges, namely the selection of candidates for the position of the CCU judge on a competitive basis (Part 3 of Article 148 of the Constitution of Ukraine), which is no less important for the formation of an independent and authoritative Constitutional Court. This provision does not work today. It was actually destroyed at the level of the Law of Ukraine “On the Constitutional Court of Ukraine” and the Rules of Procedure of the Verkhovna Rada, and the competitive selection was replaced by the political support of future judges.
Today, the Ukrainian Parliament should urgently undertake the task of ensuring the competitive selection of candidates for the position of the CCU judge by forming a single selection commission for all subjects of appointment of the CCU judges and abolish the mandatory political support of the future judges of the CCU.
Author: Julia Kyrychenko, project manager on constitutional law, Centre of Policy and Legal Reform
 Resolution of the Verkhovna Rada of Ukraine „On Response to the Facts of Violation of the Oath by the Judges of the Constitutional Court of Ukraine“ dated February 24,.2014 No. 775-VII: http://zakon2.rada.gov.ua/laws/show/775-18 (26.06.2017).
On February 26, the Constitutional Court of Ukraine adopted a decision, according to which the article of the Criminal Code of Ukraine that established liability for illegal enrichment for public servants, was recognized unconstitutional. There were quite a lot of discussions around this article, and, despite the decision of the CCU, many experts believe that its previous version was in accordance with the Constitution, although it had somewhat imperfect design.
Criminalization of illegal enrichment is not a Ukrainian invention. The UN Convention against Corruption contains a provision stipulating that Member States consider the possibility of a deliberate illegal enrichment being a crime. Undoubtedly, they do it subject to the constitution and the fundamental principles of the legal system of each country. This kind of responsibility exists in around fifty countries of the world.
In Ukraine, responsibility for this crime was introduced in 2011, but the effective wording at that time had nothing to do with the act of illegal enrichment, except for the title of the article of the Criminal Code itself. Therefore, in February 2015, Ukrainian parliamentarians approved a new version of this article in order to bring it in line with the standard established by the Convention.
Starting from 2015, investigators and prosecutors have begun investigating crimes of illegal enrichment. Detectives of the National Anti-Corruption Bureau of Ukraine together with prosecutors of the Specialized Anti-Corruption Prosecutor’s Office were the most active in this area. During almost four years of investigations, the former prosecutor of the ATO, the head of the State Audit Service, the Minister of Infrastructure and one judge have been prosecuted for this crime. Their cases have already been submitted to the court, but due to the decision of the CCU, Ukrainian society could not see fair sentences against these officials – they simply escaped the punishment for this crime. Another 60 cases were at the investigation stage by the NABU and SAP, and the disclosed list of officials prosecuted in these cases strikes with its diversity. Unfortunately, all proceedings under this article are now closed. However, investigators and prosecutors should carefully investigate whether the actions of these officials have any other evidence of other crimes, such as tax evasion.
The Constitutional Court of Ukraine determined that the article about unlawful enrichment is unconstitutional because of non-compliance with the principle of legal certainty, alleged violation of the presumption of innocence of a person and the transfer of the burden of proof to the accused person, who allegedly had to prove his/her innocence. Each of these arguments can be refuted. In particular, the violation of the presumption of innocence and the transfer of the burden of proof simply could not take place, as the investigation procedure is determined by the provisions of the Criminal Procedure Code of Ukraine, which guarantee to any person the presumption of innocence, and the right to remain silent, while the obligation to prove beyond reasonable doubt the commission by a person of the crime relies exclusively on the prosecution side.
However, these discussions about the decision of the Constitutional Court of Ukraine, unfortunately, will not renew investigations into Ukrainian officials over the last four years. It is impossible to challenge this decision, only the CCU itself can develop and specify the legal position of the Court, modifying it in the event of a significant change in regulatory framework.
Now, the public, the legal community and international experts are interested in restoring criminal responsibility for illegal enrichment. Immediately after the decision of the CCU, 14 different draft laws were submitted to the Parliament for consideration – the President and the deputies demonstrated a remarkable speed, which, however, damaged the quality: analysis of the first submitted draft laws revealed their imperfection. At the moment, these draft laws are being finalized by a working group which includes deputies, scholars, lawyers, prosecutors and law enforcement officials, international experts. Basic version of the new draft law has become the output of its activity.
However, even despite the renewal of criminal liability for illegal enrichment, the Constitutional Court of Ukraine by its decision actually legalized all the corruption income of Ukrainian officials, which have been acquired over the last four years, since the new law on criminal liability will not have a retroactive effect in time.
It is now important to adopt such a wording of the article of the Criminal Code, which will not even allow to doubt its unconstitutionality, as well as create an effective mechanism for civil confiscation of unjustified assets of Ukrainian public servants.
While it is still possible to return the article on illegal enrichment to the Criminal Code of Ukraine in the new wording, renewal of prior investigations would not be possible. This means that in this issue Ukraine just lost four years and missed the chance to persuade the public that officials will bear responsibility for the acquisition of wealth received by them from obscure sources.
Authors: А. Marchuk, D. Kalmykov, M. Khavroniuk (Centre of Policy and Legal Reform)
On the 25th of February 2019, the Ukrainian Think Tanks Liaison Office in Brussels organised its fourth Brussels UkraineLab in the European Economic and Social Committee (EESC), which represents civil society in the system of EU institutions. The event was organised with the support of the Mission of Ukraine to the EU, Mission of Canada to the EU, US Mission to the EU, as well as the European Endowment for Democracy, the International Renaissance Foundation, and Civic Synergy Project, supported by the EU.
The Civil Society Fair launched the event with over 20 of the leading Ukrainian Think Tanks and NGOs presenting their projects to officials, NGOs representatives and media from the EU and Ukraine.
Main tasks for Ukraine, the EU and the international community in 2019
Dilyana Slavova, President of the REX Section at the EESC, opened the first of the panels, during which representatives from the EU, the Ukrainian and US governments outlined the main tasks for 2019 – an electoral year, whose importance for Ukraine and the EU was also underlined by Slavova.
“The EU policy to UA cannot be ambiguous, we need to encourage the successful and sustainable implementation of the Association Agreement and the DCFTA”.
Olena Carbou, Executive Director of the Ukrainian Think Tanks Liaison Office in Brussels, who moderated the first panel, welcomed participants and highlighted the contribution of the Brussels UkraineLab to bring together those involved in advancing a European Ukraine.
“Both Ukraine and the EU have entered a difficult electoral year, facing the same threats of disinformation, populism and Russian interference”.
H.E. Ivanna Klympush-Tsintsadze, Deputy Prime Minister of Ukraine for European and Euro-Atlantic Integration, commemorated the five years since the Revolution of Dignity, reminding the participants that Ukraine is still fighting to preserve its statehood and to leave the Soviet and imperial heritage behind. She called for a stronger response from the European and Euro-Atlantic community to Russian aggression and stressed that for Ukraine the European perspective is a clear goal. The Verkhovna Rada recently amended the Constitution to set EU and NATO membership as strategic goals for Ukraine. The country is now profoundly different from that of 2014 and has made impressive efforts, which has led to successful reforms and a stable macro-financial situation.
“The history of the European Union is the history of enlargement. This idea has to be revitalized. Ukraine is a vital part of Europe’s future”.
On behalf of the European Commission, Christian Danielsson, Director General of DG NEAR, stressed the substantial reforms already implemented in Ukraine despite the Russian occupation and aggression. Danielsson also reminded participants of the EU’s significant financial and political support to Ukraine, acknowledging that more political engagement and assistance to civil society is needed. He concluded expressing the need to focus on the key reforms, such as decentralisation and the fight against corruption.
“Free and fair elections are crucial for Ukraine”.
Closing the first panel, Kami Witmer, Minister Counsellor for Political Affairs of the US Mission to the EU reiterated the continuous American support to build a stable, prosperous, democratic, and free Ukraine. She also expressed her concerns for the attacks on civil society activists and stressed the need for elections in the country to be free and fair.
“Regardless of the results of the elections, the US will remain a partner for Ukraine”.
Ivanna Klympush-Tsintsadze’s “Ukraine is a vital part of Europe’s future” became the leitmotif of this discussion panel. Participants also agreed that Europe and Ukraine face in 2019 the similar threats of populism and Russian-sponsored disinformation. Finally, it was emphasised that not only Ukraine has to reform and fight corruption, but also the EU and its Member States have an important role to play in fighting against corruption.
Challenges and opportunities of the 2019 electoral year
The second panel, moderated by Igor Burakovsky, Head of the Board of the Ukrainian Think Tanks Liaison Office in Brussels and Institute for Economic Research and Policy Consulting, provided participants with the expert’s views on the factors that will define the elections in Ukraine and the EU.
In her intervention, Iryna Bekeshkina, Director of the Ilko Kucheriv Democratic Initiatives Foundation, underlined the unpredictable nature of this year’s elections in Ukraine. Sociological studies show that 66% of Ukrainians see the need for a change in the political leadership of the country, while around 20% question the transparency of this process.
“The cleanliness of the elections will affect the legitimacy of the future president”.
Oleksander Kliuzhev, Analyst at the Civil Network OPORA, denounced cases of administrative resources for electoral campaign, the insufficient transparency of campaign funding and the distribution of illegal electoral material.
“The definition of what constitutes bribery has been conflictive, which is traditionally a problem during elections”.
Yuriy Yakymenko, Deputy Director General at the Razumkov Centre, presented an overview of what polls tell us about how Ukrainians see their country and the upcoming elections. EU and NATO membership and the preeminence of Ukrainian language in public sphere are supported by the voters of all main candidates, which also see the restoration of sovereignty and territorial integrity as a precondition for normalisation of relations with Russia.
“A market-oriented economy is supported by 62% of Poroshenko and Zelenskiy voters, while almost 70% of Yuriy Boyko’s prefer a greater state intervention in the economy”.
The second panel concluded with the intervention of Roland Freudenstein, Policy Director at the Wilfried Martens Centre for European Studies, who presented the impact that the upcoming European Parliament elections in May may have on EU-Ukraine relations. The “good news” is that Ukraine will not be the main topic of these elections so the populist will not use the Eastern enlargement as a topic of debate. However, there was evident Russian meddling and disinformation. In order to defend itself from populists and Russian trolls, Ukrainians should strengthen the independence of the judiciary and protect civil society.
“Ukraine’s contribution to a safer and more prosperous Europe should be the main talking point of Ukrainians towards Europeans”.
Through their interventions, the experts noted that the election year is marked by uncertainty and the constant threat of Russian interference. They also underlined that despite the divide on issues such as language or the role of the state in the economy, there is a strong cross-party consensus on topics such as the need for political regeneration of the country and the Euro-Atlantic vector of Ukraine.
The last of the UkraineLab’s panels, moderated by Oleksandr Sushko, Executive Director of the International Renaissance Foundation, brought together advisers to the five leading candidates in this year’s Presidential race in Ukraine to answer the question: “What should be expected if your candidate wins?”. After putting forward their candidates’ visions on the future of the country, they were asked to clarify stance of their candidates on EU and NATO membership.
Rostyslav Pavlenko, Director of the National Institute for Strategic Studies and External adviser to President Petro Poroshenko, noted that after the recent change the Constitution enshrines the European and Euro-Atlantic path for Ukraine and that visa-free regime, decentralisation reform, macro-financial stability or the Tomos (a decree of the head of the Orthodox church) on autonomy for the Ukrainian Orthodox Church are all steps already taken in that path.
“By 2023 Ukraine should be ready to apply to the EU”.
Hryhoriy Nemyria, Member of the Ukrainian Parliament and Foreign policy adviser to Yulia Tymoshenko stated three core ideas: Ukraine is Europe, Europe is still work in progress, and Ukraine wants and firmly believes in its right to participate in this process. He also warned against the vicious cycle of disillusionment and cynicism in the country.
“Without Ukraine whose territorial integrity is respected there will not be a Europe whole and free”.
Iryna Venediktova, Head of the Civil law department at Karazin University and Adviser to Volodymyr Zelenskiy denounced Ukraine’s neopatrimonial democracy and called for a more direct role of citizens against the power of oligarchs. The country requires decentralisation, a transparent liberalisation of the land market, a simplification of the tax system and the creation of an “economic passport” for Ukrainians.
“With a military conflict in the East, it is impossible to be a member of the EU and NATO”.
Oleg Voloshyn, Foreign policy adviser to Yuriy Boyko campaign described Europe as first and foremost a place of peace and tolerance to minorities, which he considered threatened by the radical nationalism of the ruling coalition. He recalled the idea of Ukraine as a bridge between the East and the West, and accused the ruling coalition of trying to turn it into a wall to “hide their corruption”.
“Europe is a standard bearer, not Russia, we always refer to Europe as the model”.
Finally, Svitlana Zalishchuk, Member of the Ukrainian Parliament and Foreign policy adviser to Anatoliy Hrytsenko emphasised that NATO and EU membership are acknowledged as the undeniable path for Ukraine. She then pointed to the fundamental challenge of security, which requires a stronger army and the convergence with NATO standards.
“In five years I would like to see people running for office who don’t come from spending decades in Ukrainian politics”.
The event concluded with a Q&A session. When asked to share their candidate’s stance on EU and NATO membership, replies ranged from a definite “yes” to both organisations from Poroshenko and Hrytsenko’s representatives, through a “yes” with reservations – from Tymoshenko’s representative (who questioned the convenience of full implementation of the Association Agreement), and Zelenskiy’s representative (who considered that membership will not be possible while the war continues in Donbass), to a “no” to NATO from Boyko’s campaign representative, who was also ambiguous towards the EU.
In a modern law-governed state, legislative regulation of the relations between public administration bodies and private individuals is a mandatory element of the legal system. The laws on general administrative procedure primarily aim to protect a person from arbitrariness by public servants. They determine the actions of officials in terms of the procedure. This applies both to the consideration of applications and the provision of administrative services, and to the activities initiated by an administrative body (for example, in the course of inspection), or to the consideration of pre-trial appeals.
In Ukraine, unfortunately, the general administrative procedure is still not working. For more than 20 years, the attempts have been making to pass the relevant law, but so far, they were unsuccessful. The main reason for such a sad situation is the lack of understanding by the Ukrainian politicians, officials and most scholars of the essence of the general administrative procedure, the mechanism for its functioning and its significance for the state and society. Ukraine inherited such a problem from the USSR, where there was no law regulating relations between citizens and public administration and this law could not have existed. Due to the low level of knowledge, there is no socio-political demand for the relevant legislation. As a result, Ukrainians suffer from scandalous constructions, arbitrary inspections, unjustified reductions in social benefits, etc. Not so many people are aware of the “pill” which can cure such problems.
However, recently the Government of Ukraine has given rise to hope for progress in this area. In this context, in January 2018, a working group has been renewed under the Ministry of Justice to finalize the draft law on the administrative procedure. The revised draft law (based on the previous text, positively assessed by the SIGMA Program in 2014-2015) was approved by the Cabinet of Ministers of Ukraine and registered in the Parliament of Ukraine under the number 9456 at the end of December 2018. The draft law again received a positive conclusion from the SIGMA Program. It stipulates key rights for persons within the framework of their relationship with the administration: the right to be heard when adopting negative acts and the right to get acquainted with the case file; obligations of the administrative authorities to motivate their decisions and indicate the procedure for their appeal, etc.
Now Ukraine is facing the challenge not to lose another chance. The Ministry of Justice should play an important role in promoting the draft law. Last year the Ministry of Justice was very diligent at the expert and professional level, while at the political level, the situation was much worse. Minister of Justice Pavlo Petrenko did not show any public activity in relation to this draft law. Therefore, we place our hopes on the Minister of the Cabinet of Ministers Oleksandr Sayenko, who is very active and interested in the public administration reform, as well as on a special parliamentary committee.
It is worth emphasizing that for the successful advocacy of the draft law on administrative procedure, the support of the European Union is extremely important. Probably, such support is now having a decisive role. The EU should identify at all levels that this draft law is one of the key priorities for Ukraine and, whenever possible, call on the Ukrainian authorities to do everything necessary to pass the law on the administrative procedure. In view of the “election year” in Ukraine, it is necessary to adopt the draft law in the first reading until July. Otherwise, introduction of a general administrative procedure in Ukraine will be postponed again for many years. In addition, the resources already invested, including the resources of European taxpayers, may be wasted.
Authors: Victor Tymoshchuk, Yevhen Shkolnyi, experts of the Centre of Policy and Legal Reform
On February 7, 2019, the Verkhovna Rada voted for amending the Constitution of Ukraine (regarding the strategic course of the state on acquiring full-fledged membership of Ukraine in the European Union and the North Atlantic Treaty Organization). The purpose of the proposed amendments, as stated in the Explanatory Note, is the legislative consolidation in the Constitution of Ukraine of a civilizational choice, the European identity of the Ukrainian people and the irreversibility of the strategic course of the state towards Ukraine’s full membership in the European Union and the North Atlantic Treaty Organization.
This draft law was introduced by the President of Ukraine on September 3, 2018. On September 20, 2018, the Verkhovna Rada of Ukraine addressed the Constitutional Court of Ukraine with a request for an opinion on the compliance of the draft law on amending the Constitution of Ukraine (regarding the strategic course of the state on acquiring full-fledged membership of Ukraine in the European Union and the North Atlantic Treaty Organization) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. Introducing changes to the Constitution of Ukraine requires mandatory preliminary constitutional control by the Constitutional Court. On November 22, 2018, the Constitutional Court of Ukraine issued a positive Opinion on the compliance of the proposed amendments with the constitutional procedure as well as the absence of abolition or restriction of human rights and freedoms. It established that the proposed amendments are not aimed at the elimination of Ukraine’s independence and violations of the territorial integrity of the country. On the same day, the Parliament voted for these amendments (for the first time, as stipulated by the constitutional procedure), and already on February 7, 2019, the Verkhovna Rada held the second voting for such amendments and changed the Constitution of Ukraine accordingly.
Constitutional amendments came into force on February 21, 2019, the day after their official publication.
What has changed?
Principal amendments to the Constitution concerned the Preamble and the powers of the Verkhovna Rada, the President and the Cabinet of Ministers. Thus, the Preamble of the Constitution in the context of Euro-Atlantic integration should have the following wording: “The Verkhovna Rada of Ukraine on behalf of the Ukrainian people – … with a view of strengthening of civil accord in the land of Ukraine, and confirming the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine … adopts this Constitution as the Basic Law of Ukraine.”
The new power of the Verkhovna Rada has been added: “Definition of the principles of internal and foreign policy, implementation of the strategic course of the state on acquiring full-fledged membership of Ukraine in the European Union and the North Atlantic Treaty Organization” and new powers of the Cabinet of Ministers: “ensures implementation of the strategic course of the state on gaining full membership of Ukraine in the European Union and the North Atlantic Treaty Organization”. In accordance with the adopted amendments, the President of Ukraine became the guarantor of the implementation of the strategic course of the state on acquiring Ukraine’s full membership in the European Union and the North Atlantic Treaty Organization.
Additionally, the provisions of paragraph 14 of the Transitional Provisions, which stipulate the use of existing military bases on the territory of Ukraine for the temporary stay of foreign military formations under the lease terms in accordance with international agreements, have been eliminated from the Constitution of Ukraine.
So today, the European and Euro-Atlantic courses of Ukraine are incorporated at the level of the Constitution and become mandatory for the authorities.
Starting from now, mandatory amendments to the Constitution will be necessary in order to change the Euro-Atlantic state course of Ukraine, since the higher authorities are limited by constitutional powers that directly established the European and Euro-Atlantic courses of Ukraine. It should be reminded that this year Ukraine is having both presidential and parliamentary elections.
Actual effect of the new European integration provisions depends on the legal activities of public authorities. Therefore, the practice will show how the new powers will be exercised and how the European and Euro-Atlantic courses of Ukraine will be implemented.
Author: Julia Kyrychenko, Head of Constitutional Law Projects, Centre of Policy and Legal Reform
The Ukrainian Think Tanks Liaison Office in Brussels is happy to announce its fourth Brussels UkraineLab. It will take place on Tuesday, 25th February 2019, from 12.00 to 18.00, hosted by the European Economic and Social Committee (Atrium 6 & Room JDE 62).
This year we will focus on how the upcoming 2019 electoral cycle in Ukraine and the EU can impact the future of the country and bilateral relations. This edition will provide participants with a unique opportunity to meet and discuss with representatives of the leading candidates in Ukraine’s presidential race.
Ukraine Civil Society’s Ideas Fair will open the event at Atrium 6 at 12:30. While enjoying lunch, participants will have an opportunity to meet and network with various actors of the vibrant civil society of Ukraine to exchange ideas and launch new partnerships. After the Fair, three discussion panels will approach this year’s topic from different perspectives. National and international public officials will share their views on the main tasks for Ukraine, the EU and the international community for 2019. The expert panel will guide us through the constraints and opportunities of the 2019 electoral year. Finally, Ukrainianpresidential candidates’ representatives will put forward their respective visions on the future of the country.
What are the key concepts and crucial changes appearing in the Ukrainian legislation due to the implementation of European food standards? On December 6, 2018, another eurointegrational law “On information for consumers about food products” was added to the Ukrainian food legislation. It obliges food producers and caterers to indicate on the wrapping materials ingredients that are hazardous or potentially harmful to health. This law concludes (so far) the chain of basic food legislation in Ukraine.
The new food legislation is not really that new to the Ukrainian food market. The main novelty is that the number of important concepts are simply better articulated and approved at the highest level. For example, traditionally, in everyday life, we are talking more about quality: ingredients, calories, benefits, while forgetting about the much more important issue – the safety. But new Ukrainian food legislation differentiates and explains these concepts.
Safety and quality
Safe product is one that will not harm the consumer, provided that it is properly consumed. When producer manufactures a product, he must assess the risks of a particular hazard and how these risks will affect the safety of the product. Taking into account these risks, he chooses the form and method of consumption of the product, which is later printed on the wrapping material. After that, the consumer takes responsibility, which means that he now decides to follow or not to follow the manufacturer’s instructions. Not following the rules of consumption of certain product – is one of the main reasons for the product to become dangerous.
On the other hand, quality is the capacity of a product to comply certain established and predictable requirements, acceptable to consumers. The law has set requirements not only to safety, but also to the quality of products, and it regulates these categories.
What are the quality requirements? For example, the weight, appearance, common name. According to the law, butter consists of no fat except milk fat. If the manufacturer writes “butter” on the wrap, it means that there should not be any vegetable oil. If to talk about juice – then this product should be manufactured according to the technology, without the addition of other ingredients. A popular example is also cheese and cheese products.
European legislation is keeping under control the use of appropriate definitions – like butter and margarine or butter substitute. And it is still the question of quality. Margarine can also be safe. It just will not be butter anymore. It will not have certain taste, certain amount of calories, flavour, health benefits. Similarly, if on the chocolate is written that its weight is 100 grams, but the scales show 90 grams – this is a matter of quality. It is considered according to the law as a violation on the point of misleading the consumer.
The law “On information for consumers about food products” has a requirement for manufacturers not to attribute any therapeutic or other magical qualities to the product. If the manufacturer produces a product for certain social groups, or for certain purposes, for example, baby food, or nutrition for athletes, containing a special set of trace elements, he has the right to label it on the wrap. However, he is also responsible (according to the law) for the presence of such characteristics in each piece of this product.
Therefore, when the consumer sees the inscription “natural”, “bio”, etc. he must understand what is behind this inscription. Now the law regulates and limits such unwarranted information on healing powers or some other special qualities of the product. Those characteristics of quality that are on the packaging materials should be checked in the process of state control.
If some characteristic cannot be checked and verified, and not specified in the legislation – then it is pure fantasy, misleading buyers. This is one of the most significant violations of the law, which coincides with the release of dangerous products. Products can be safe, but at the same time, the information about quality characteristics can mislead consumers. For example, the product has the inscription “this yogurt cures your dysbiosis”, the consumer believes in the inscription and does not go to the doctor, but simply drinks yogurt instead, and thereby causes harm to his own health.
The state now has mechanisms for verifying that what is written on the label is actually true. There is a concept of the recipe, specific technological processes. During the state inspections both the recipe and the labelling are the subjects of the checking and the conformity to one another according to the legislation is necessarily checked.
As to the size of the font on the package, the availability of information – these issues are foreseen in the new legislation and certainly not this very moment, but with time (the law established a transitional framework from 6 months to 3 years), all manufacturers will come to these basic labelling rules. All the features that are not specific to the product will disappear from the wrapping, the ingredients will be more clearly indicated, the labelling of allergens will correspond the requirements and will be understandable to the consumers. Not only at the stores, but also at the menu of the restaurants.
Ukraine now has what in Europe is called a risk-oriented approach to control the capacities of food business operators. This means that there are manufactures that are riskier and less risky. For example, it is indeed riskier to produce a product with complex technology. It is much more difficult to make yogurt than to transport it from point A to point B because it creates more possibilities to spoil the food while manufacturing. Also, companies with high risk include manufacturing sensitive products. For example, dairy products are more susceptible to contamination than sugar. And of course, the same list (high risk) includes those larger enterprises: manufacturing 20 kilograms of cheese per day – this is a question of 40-50 consumers, manufacturing 20 tons – this is already the question of 50 thousand consumers. The bigger enterprise is, the better it has to be in establishing processes because the price of the mistake is much higher. So the inspectors, of course, are visiting this kind of enterprises more often.
With the law “On information for consumers about food products”, Ukraine has now a real human food rights triad: the law on control, the law on safety and the law on information for consumers. These laws reflect the three main participants in the process of food chain “from farm to fork” – the manufacturer, the consumer, the state control body. Now, when Ukraine has these three basic laws, the system of basic food legislation is so far complete.
Author: Kateryna Potapenko, NGO Ukrainian Centre for European Policy
While Ukraine is wrapping up its New Year and Orthodox Christmas celebrations, there is one more thing worth celebrating. On 1.1.2019, Ukraine took a big leap towards liberalizing its retail electricity market towards European standards. As of this date, consumers are free to choose their electricity supplier. Well, almost all consumers. Households and the SME segments will, by default, continue to be served by incumbent suppliers (which at the moment of receiving the license were part of vertically integrated companies) that have been tasked to perform the so-called “universal service obligation” up to mid-2020. In theory, household and SME consumers can opt for a commercial supplier (other than their universal service supplier) but since the maximum price that a universal supplier can charge to consumers is set administratively on the basis of a tariff approved by the Ukrainian regulator, no mass switch away from universal suppliers is expected. After all, this was the intention of the legislation. The government was keen to ensure that no household or small business would be left without a supplier once this reform kicks in. The length of the period during which universal service suppliers will maintain a de facto monopoly is debatable, of course.
Competition in the retail market is, therefore, likely to happen mainly in the segment of larger consumers, at least in the first phase. Industrial consumers can negotiate a supply contract with whichever supplier they choose and switch their supplier rather frequently (several times per year). Up till now, as many as 179 suppliers have signed a contract with Energorynok, the Ukrainian Market Operator who is the only entitled entity to purchase and sell electricity at the wholesale market until July 2019. The fact that Energorynok will maintain this monopoly for the next six months and will continue to administratively set wholesale market price until July seriously limits the competition at the retail market level. It is not clear on what basis the retail suppliers will compete if the electricity they buy at the wholesale market is the same for everybody and no competitive advantage can be gained. Because of this, real competition even in the larger consumer segment is likely to take off only after July 2019 when the wholesale market fully opens up.
However, even after the wholesale market opening there might be new problems. Implementation of processes that are key for the proper functioning of the wholesale market are lagging behind (such as the balancing settlement process or the central administration of metered data). Lack of competition between the electricity producers is an even more serious obstacle to achieving a liquid and healthy wholesale market. There are a few large generators present at the market (basically the state-owned conventional power plants and DTEK-owned power plants) and the possibilities for cross-border trade is limited. Only a relatively small part of Ukraine (the Burshtyn island) is linked to liquid EU markets. Interconnectors with Russia and Belarus are not used for trading purposes and possible market coupling with Moldova is likely to have a relatively limited impact on Ukrainian electricity market liquidity and will not seriously disrupt the current oligopoly-like market structure. Rapid physical integration with the ENTSO-E area and the further liberalisation of electricity export and import (currently subject to prior Governmental approval) have the potential to considerably increase the liquidity of Ukrainian electricity market.
Having listed all these caveats, is there really anything to celebrate? Definitely yes. A lot has been done during 2018 to make the launch of the retail market a reality. In particular, NEURC, the Ukrainian energy market regulator, has drafted and adopted all the necessary secondary legislation in record-short time. This is all the more impressive because the first half of 2019 was marked by a loss of the quorum required to take decisions, and the institution was paralysed. In March 2018, the Market Rules, Retail Market Rules, Distribution System Code, and a Commercial Metering Code were adopted. As a result, the architecture of contractual relations between market participants and other key processes such as switching rules, dispute resolution procedures, or data metering were established. During the early autumn of 2018, NEURC adopted tariffs for DSOs, tariffs for universal service supplier and tariffs for the supplier of last resort. The establishment of a tariff methodology and a predictable tariff structure for each of these market participants is a precondition for the unbundling and termination of the cross-subsidised system. Universal service suppliers must be able to function independently from the DSO within the same holding structure; DSOs must receive enough funds to finance the maintenance and development of the grid. Towards the end of the year, NEURC approved contracts between Energorynok, the universal service suppliers, and the suppliers of last resort. In the last days of 2018 the Government decided to establish the state-owned company Ukrinterenergo (responsible for electricity imports/exports) as supplier of last resort for the entire territory of Ukraine until January 2021.
These steps required considerable efforts and some aspects remain controversial and/or unsolved. For example, the date of the transition towards incentive based regulation for DSOs (using the regulated asset base as a basis for tariff calculation) has been postponed. Compensation model for universal service providers to cushion the effects of possible wholesale market volatility post July 2019 is far from clear. The situation of protected customers and the issue of finding the appropriate balance between payment discipline and protection from supply interruption (as evidenced by state owned water transportation companies) remains unsolved. An efficient support system for vulnerable consumers who have difficulties covering utility bills will need to be introduced. At the same time, as already mentioned, Ukrenergo has made little progress in establishing an IT system for the centralized balancing settlement administrator and so far, Government has not selected the authorized bank that will handle the trading collaterals and the imbalance clearing. It is difficult to assess market participants’ readiness for the new market (although, based on surveys undertaken by the Project Office during 2018, some progress could be noted). Some market players (such as Energoatom) have taken concrete steps and have for example already procured IT systems that will enable them to purchase and sell the electricity through OTC and at DAM/IDM market. Others are still struggling with tailoring the appropriate strategy and may lag behind with IT system procurement and the implementation of other organisational measures (setting up call centres, efficient billing systems, etc.). However, there are experienced companies that are already active in Ukraine and are able to offer ready-made solutions for market participants. The Slovak company Sfera, a.s. is successfully implementing an IT solution for the day-ahead and intra-day market for Energorynok (and has also systems for trading and distribution companies). Other foreign companies are assisting Ukrenergo and other Ukrainian market participants.
Despite all these deficiencies and imminent challenges, there are reasons to applaud Ukraine for the efforts to liberalize its energy markets. Except for the Baltic states and Georgia, Ukraine is the only post-Soviet country to take such a path. Obviously, it will take some time for the retail and wholesale electricity markets to stabilize, but at the end of the road lies a reward of a more competitive and secure power market with the perspective of joining the EU-wide electricity market on equal terms, to the benefit of the Ukrainian electricity consumer.
Author: Kristian Takac, Head of the Electricity Retail Market Working Group at Project Office (Coordination Centre for Electricity Market Implementation, Ukraine), for DiXi Group
In the spring of 2018, the President of Ukraine Petro Poroshenko announced his intention to initiate consolidation at the level of the Constitution of the Euro-Atlantic course of Ukraine. In September 2018, the President introduced to the Parliament a draft law No. 9037. On the Strategic Course of the State towards Ukraine’s Full Membership in the European Union and the North Atlantic Treaty Organization. Soon afterwards, on September 20, in accordance with the constitutional procedure for amending the Constitution, the Parliament voted to submit the presidential draft law to the Constitutional Court.
In Ukraine, the procedure for amending the Constitution of Ukraine provides for mandatory prior constitutional control by the Constitutional Court. On November 22, the Constitutional Court adopted a positive Conclusion on the compliance of the draft law No. 9037 On the Strategic Course of the State Towards Ukraine’s Full Membership in the European Union and in the North Atlantic Treaty Organization with Articles 157, 158 of the Constitution. At the same time, six judges of the Constitutional Court expressed individual opinions, indicating the shortcomings of the proposed constitutional changes. However, the positive conclusion of the Constitutional Court gave “green light” for consideration and adoption by the Parliament of the constitutional changes as proposed by the Head of State. On the same day, the Parliament preliminary approved this draft law. In the Parliament, as many as 311 people’s deputies supported the constitutional changes to incorporate the Euro-Atlantic course (support by a simple majority, at least 226 votes of parliamentarians, was required). Under the constitutional procedure, amendments to the Constitution will be approved if at least 300 deputies will vote for them at the next session of the Ukrainian Parliament, which will begin in February this year.
Let’s consider in more detail the possible constitutional changes in Ukraine. Consolidation of the Euro-Atlantic course of the state at the level of its Constitution is a non-standard step for the states, especially in the absence of a real process of acquiring the state’s membership in the EU. However, in the case of Ukraine, an explanation can be found in its historical development, current situation, in particular, the need for European integration in order to preserve its independence. In addition, we should not miss the subjective factor of the presidential initiative, namely, the votes of the pro-European electoral base in the presidential elections to be held in March 2019. It should be reminded that in Ukraine on December 31, 2018, the election campaign of the next presidential election has begun.
What do constitutional changes suggest regarding the Euro-Atlantic course of Ukraine?
At the Preamble level, declare the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine.
Include the Euro-Atlantic course of the state in the powers of the Parliament as well as the President and the Government. In particular, the Parliament will be authorized to determine the implementation of the strategic course of Ukraine to become a member of the EU and the North Atlantic Treaty Organization, the Government will ensure the implementation of this course, and the President will act as the guarantor of its implementation.
It is proposed to exclude from the Constitution of Ukraine a provision that stipulates the use of existing military bases on the territory of Ukraine for the temporary stay of foreign military formations under lease conditions in accordance with international treaties.
While supporting in general the expediency of declaring the European course of Ukraine in the preamble of the Constitution, the experts of the Centre of Policy and Legal Reform indicate a number of reservations about the proposed initiative. Unfortunately, this could not be done during the preparation of constitutional changes.
It is true that again the constitutional changes in Ukraine were prepared by the head of state in a closed way outside the scope of the inclusive process. Expert community, as well as the society first, saw consolidated constitutional changes already on the website of the Parliament in the form of a registered draft law. At the same time, an advisory body has been set up with the President of Ukraine for the development of constitutional changes, which is the Constitutional Commission. However, this draft law passed by the Commission, it was neither developed, nor discussed there. A referendum on the Euro-Atlantic course of Ukraine was not conducted, and it is not possible to hold it today in Ukraine. Since the current Law “On All-Ukrainian Referendum” in the spring of 2018 was declared unconstitutional by the Constitutional Court, it became invalid accordingly. The Parliament has not yet managed to pass a new law and establish the procedure for referenda in Ukraine.
In our opinion, the very closed procedure for the preparation of constitutional changes once again was the cause of a series of wrong and questionable proposals.
Therefore, we would like to highlight the following shortcomings:
The text of the draft law uses the term “full membership” of Ukraine in the European Union and the North Atlantic Treaty Organization. The statutory documents of these organizations do not provide for the concept of “full membership”, which raises doubts about the correctness of the use of the proposed term in the text of the Constitution of Ukraine.
The draft law proposes the following wording to paragraph five of part one of Article 85 of the Constitution of Ukraine: “Powers of the Verkhovna Rada of Ukraine include … determination of the principles of internal and foreign policy, implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization”. In our opinion, the proposed wording of paragraph 5 of part one of Article 85 of the Constitution of Ukraine raises the problem of ambiguous interpretation of these powers of the Parliament, and therefore does not correspond to the principle of legal certainty. In particular, it is not clear how to read the powers of the Parliament: “Powers of the Verkhovna Rada include determination of the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and the North Atlantic Treaty Organization” or “Powers of the Verkhovna Rada include determination of the principles for the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization.” At the same time, unclearness of the implementation of the proposed powers of Parliament is aggravated by today’s parliamentary practice of the implementation of paragraph 5 of part one of Article 85 of the Constitution of Ukraine through the development and adoption of a separate Law “On the Principles of Internal and Foreign Policy”, which, incidentally, also stipulates the Euro-Atlantic course of Ukraine. Therefore, a question arises whether the Parliament should adopt a separate law on the principles of implementing the state’s strategic course towards Ukraine’s full membership in the European Union and the North Atlantic Treaty Organization or to take into account the need to implement the strategic course of the state in every single law.
The draft law proposes to supplement Article 102 with part three in the following wording: “The President of Ukraine is the guarantor of the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and the North Atlantic Treaty Organization.” In the context of the Ukrainian constitutional mechanism of the distribution of power, a question arises as to which instruments the President will use to ensure the implementation of the specified state course. This can create conflicts between the Parliament and the President, the President and the Government and even lead to constitutional crises. A number of judges of the Constitutional Court, in particular, M. Gultai, in their individual opinions pointed out the possibilities for disbalancing the state power mechanism.
Incorporation in the text of the Constitution of Ukraine of the names of international organizations, namely the European Union and the North Atlantic Treaty Organization (subject to the adoption of proposed constitutional changes), may lead to uncertainty about the state’s strategic course, if one of these organizations or two of them at once will change the name, which is something Ukraine can not influence. A judge M. Melnyk draws attention to this fact in his individual opinion, pointing out that incorporation of the names of international organizations in the Constitution is not well-grounded and justified.
There are controversial issues regarding the amendment of the preamble of the Constitution, both in terms of the procedure for amending it (Chapter XIII of the Constitution does not regulate this issue), and in terms of changing the content of the preamble as part of the Constitution, which reflected a certain historical moment of the adoption of the Constitution of Ukraine. As much as five judges of the CCU in their individual opinions draw attention to this fact.
Taking into account the reservations expressed by the expert and 6 individual opinions of the Constitutional Court judges, we recommend the Parliament not to rush with the constitutional changes proposed by the President. It is advisable to hold a professional discussion of the comments made, finalize the draft law, re-send it to the Constitutional Court, and then return to its preliminary approval and final adoption. The proposed procedure will also address the issue of the impossibility of changing the Constitution during the martial law that was in force in Ukraine from November 28 until December 26, 2018.
Information spreads via Internet not only by means of big online media and social networks. There is a huge ramified ecosystem of “junk websites”. “News” shared by such “media” is often of very low quality or even complete fake. Still, it reaches millions of visitors per month.
Such websites also generate information flow that brings traffic. And it is a mix of faked news, real news slightly changed news and misinterpreted news as well as exotic recipes and celebrities’ tempting photos. There are the titles like “Streets are overloaded with dead bodies” used for the news item about poisoning of 6 dogs in Berdyansk, Ukrainian city on Azov sea.
Hundreds of thousands of Ukrainian people read such “junk news” daily. Hearing some conspirology from a taxi driver or accidental travel companion you could hear that they have just “read it from the Internet”.
With the aim to detect the scale and spread of manipulations Data Journalism Agency TEXTY has examined more than a million of texts published on “junk websites” within a year. Objects of our investigation were Internet media that serve as news sources for the readers who do not care much about the quality of information and facts.
During 2017 we’ve compiled a list of relatively little-known websites where we noticed anti-Ukrainian or pro-Russian propaganda. We have collected about 150 such websites – and it is not their full number, of course. These sites have become the subject of our thorough study. Some of them got closed during this year, some have changed their addresses. There are websites that duplicate each other.
Then, during 2018 we have trained the algorithm to detect two types of manipulations: wrong arguments and emotional bias. Other types of manipulative content, such as conspiracy theories or bold fakes were not common in our sample. The accuracy of deep learning model was sufficient to assess the share of manipulative content on the website. We have excluded 36 websites from the original list because the algorithm defined less than 25% of the news in their feed as manipulative.
As a result, we’ve got 80 websites which spread the manipulations online. These sites attract around 50 million visits from Ukraine per month (source: SimilarWeb, October 17, 2018). This is a huge coverage for Ukrainian media sphere. For comparison, one Ukrainian well-known online media gets about 5-15 million visits from Ukraine monthly.
Here’s what we have found out. There were 22 sites of Russian propaganda in the final ranking. Other 58 news outlets disseminated distrust in public institutions, disorientation, and fear.
We tried to discover the working routines of such websites. They publish either clickbait content without regard to journalistic standards, or paid advertising articles pretending to be regular content. Usually, manipulative outlets pervert news from credible sources to attract clicks or to manipulate public opinion. But we found some cases when information from “junk news” made its way to mainstream media (one example is shown in the project).
There is a number of ways to “legitimize” fakes and sometimes unproven information from the very bottom of Ukrainian Internet manages to make its way into the news feeds of mainstream media.
All this together with political dependence of a large part of Ukrainian media and wide presence of Russian and pro-Russian Internet media make the informational space of Ukrainian Internet very susceptible to manipulations of public opinion.
Working in extremely polluted informational space exposes even the most fastidious media to the risk of sharing false or manipulative news. And sometimes it happens. Nor should we exclude a deliberate work of Russian special services and propagandists when they plant messages into an informational space – both into the Internet in general and into leading media websites.
In a situation like this, the mainstream media should lift up the “admission line” for the news to be published. The level to what it should be lifted taking into account the costs and estimated profits is the subject of another discussion. What we can state right now is that the refusal to publish the quotes and comments of “political experts” or “opinion leaders” known for promoting prepaid theses will significantly refresh the whole informational atmosphere. “Ban” should also be imposed on making news out of Facebook posts with exceptions for verified accounts only.
And of course, it’s a huge role for Government and security services – to focus on disinformation and propaganda that threats national security, as well for NGOs and civil society – to promote media literacy and keep conducting independent media monitoring.
Author: Data Journalism Agency TEXTY (Kyiv, Ukraine)