- In the opinion on the amendments to the Constitution of Ukraine (8/12/2004) adopted in June 2004 the Venice Commission was expressed regret about so called ‘imperative mandate’. Now after the elections of 26^th March Ukraine will face these problems. What are the recommendations of Venice commission for the future actions of Ukrainian parliament, new elected (some day) government, President? What measures could undertake the Venice Commission to correct this situation in Ukraine?

- First of all I would like to say that, on the basis of the adopted constitutional amendments, we have less concerns with respect to the imperative mandate than before. Less concerns but still concerns. According to the original draft, if the parliamentarian was excluded from his party, he would also loose his mandate, now the parliamentarian looses his mandate only when he leaves his party – so, it’s less objectionable now. But we still can say that these rules are not the best rules on the problem of forming majority.

- And if Ukraine would not have a will to change anything more?

- Then it’s up to the Parliamentary Assembly and the Monitoring Committee to tell to Ukraineon what PACE insists or not. We provide advices but we do not oblige countries to follow the advices. I think Ukraine may be interested to revise its Constitutional reform.

- To make some extra amendments?

- I think the amendments were done a bit hastily, not in accordance to normal procedures and also in a very tense situation. Now after the elections people can sit together more easily and they may change some things. Because I think several details of the reform are not so good.

- What are the strong points in the Constitutional reform in Ukraine?

- We think that it’s good to move to a more parliamentary system – you know, most countries in Western and Central Europe have a mainly parliamentary system. But this move has to be done in more coherent manner.

- Now after the reform when the parliament is elected and the coalition will be formed, in Ukraine will appear some tensions between the government and a President. The matter is in overlapping of competences of these two powers – in forming of a foreign policy, in some economical spheres…

- We agree with this concern. This also was written in our Opinion that it will be better to define the respective competences more clearly. On another hand, of course, it’s also depend on the political orientation of the government. Since I think the party of a President will be a part of the government coalition the conflict will not be so severe. We certainly advice to reconsider the list of competences between President and government to define them more clearly.

- Maybe in the case of Ukraine President should be more powerful?

- I think the preference should be for the government which depends on parliament to be the stronger body. The president should be the head of state and represent the country.

- You told about the possible presence of the President’s party “Our Ukraine” in new Ukrainian government. But if we look on the mathematical results of the elections we will se that the winner (about 32% of voters) is the oppositional and non-European-oriented “Party of Regions of Ukraine”. Now we have a lot of talks about the forming of ‘Orange coalition’ of democratic parties, but if the “Regions” will be out of government, would it be really democratic?

- I said that the presidential party probably would be in government, I didn’t say that it would be the main government party. I think that every coalition needs “Our Ukraine” party. As regard to “Party of Regions” we must say that in Europeis completely normal that the strongest party can be in opposition – we have had such cases, for example, in Germany. It’s a normal acceptable procedure.

- What do you think generally about the new election system presented in Ukraine – pure proportional except of the mixed one? Don’t you think regarding the results of elections that Ukraine is not really ready to this? Party system in Ukraine is not well developed yet…

- I understand your question. But first of all I should say that all the electoral systems are acceptable – you can have pure proportional, pure majority or mixed system. And I can say also that Ukraine had good reasons to switch away from a majority system because there were abuses, use of administrative resources, there was some business people who tried to buy their seats…

- But now we also have business people who bye not seats but places in party lists…

- It’s difficult to say which system is the best for the present moment. I can say that now the number of parties represented in parliament is quite limited.

- Is it good?

- In principal this is good. What could of course be considered is that it would be better for Ukraineto give a regional dimension to the proportional system. The parties could present lists not for all of Ukraine as a single constituency, but for the different regions.

- But we already have regional parliaments – ‘Oblastna Rada’ – and there were different lists.

- I think one mistake had place – to have all elections (local and national) on the same time. And people who maybe were not very interested in local issues voted because of the national issues. It will certainly be good to separate these elections.

Generally, there is no perfect recipe for the electoral system in a democracy. Maybe the proportional system could be balanced by having in national elections also a regional element and not to have pure proportional system with one single constituency. The seats in parliament could be distributed proportionally among the regions of Ukraine, and every region could have different party lists with people that are better known locally.

- Could you give the examples of states that already have such a kind of electoral system?

- Germany, but it have more complicated system as it’s a federal country – the seats are distributed by federal lands. A list for which I’m voting is a list of a party in my land not a national list.

- I think that in case of my country the existence of regional lists may cause the regionalization of Ukraine, will make it more divided…

- There are many considerations, and I don’t think that the foreigners should tell you what to do.

- But you are an expert!

- Yes, but we can tell you what experience is elsewhere. It’s up to Ukrainians to decide.

- The Venice commission still didn’t give the official Opinion on Ukrainian election system?

- This is for each country to decide which electoral system to choose. If we are asked, we can give an advice, but not in the words ‘you should do this or that’. Ukrainecan ask us to give the opinion on election system and we will prepare it. We need a request not of political party, but of the state organ. For example we gave out Opinion on Constitutional reform on the request of the speaker of Ukrainian parliament Volodymyr Lytvyn.

- And you still had no requests to examine our electoral system?

- We had an Opinion on electoral law of Ukraine. But we did not have concentrated on electoral system because as I have said all the electoral systems are legitimate. Ukraine chooses one system and it’s not for us to say ‘you shouldn’t do so’.

- I’d like to mention the electoral barrier. Now we have 3% barrier and from more than 40 parties (of course a lot of them were artificial) this barrier have passed only 5 parties. Maybe the 3% is very high point?

- Very high or very low?

- High. Only 3% for such a big country as Ukraine is.

- I could say that the 3% barrier is low. The task for Ukraine should be now to concentrate the party system. The result of elections is not bad – you have only 5 parties in parliament and not more. It’s much easier to govern a country and to form coalition if you have not that many parties. So, the task would now be that those 3 blocks that have the strongest results in elections become real parties that probably they are not at a moment. It’s a task for them to consolidate in real parties .

You need a threshold, but, of course, it’s impossible to say it should be 3% or 4% or 5%. I think you should not have lower threshold than now because there will be too many parties in parliament.

- President Yuschenko recently has told that maybe Ukraine should be back to 4% threshold.

- It would be okay. The aim is not to have the multitude of parties in parliament which make it very difficult to govern and form coalitions. In Germany this threshold is 5%. So, 3% is normal.

- But how many parties in Germany are in voting list on a day of elections?

- Now we have 5 parties represented in parliament which go beyond this 5%.

- Then to reach the parliament Ukrainian parties should form coalition and – it’s obvious – to give up some of their values, maybe to reject some significant things…

- Parties are about compromise. And they have to find the majority in parliament. So, compromise should be from the beginning. There have to be Parties with different opinions but it is also desirable to have a consolidation of the party system. Maybe after the elections for some parties which are not in Ukrainian parliament – for example, ‘Pora’, other orange parties – it will be important to conclude alliances with other parties.

- Imagine, if you were a leader of Ukrainian parliamentarian coalition, what would you change in our electoral process? Maybe you would change something in electoral law, electoral system, maybe some new Constitutional amendments have to be done?

- About electoral law we had already discussed the problem issues. I could say much more about the Constitutional reform. It would be good to thoroughly reexamine all chapters concerning President, parliament and government trying to make them more coherent. And I think the government must be strengthened. For example what is bad in Ukraine now is that parliament can vote for the office of every individual minister.

It’s normally in the parliamentary system to elect prime-minister, who is responsible for the government as a whole. If the parliament is not satisfied than they vote for a prime-minister to be out of office. But parliament should not say: ‘we don’t like minister ‘X’ and, so, we vote against minister ‘X’’ – this creates too much instability.

- What else?

- Of course, the distribution of powers between state bodies. And also to solve the problem of Prokuratura…...

- And now what you can tell about the finishing of monitoring process of Ukraine by Council of Europe? After free and fair elections they are talking about to stop this process in April or maybe even in January. But if Ukraine still have problems with electoral system, maybe COE’ monitoring should be prolonged?

- I can not say if monitoring should stop or not – it’s the decision of Parliamentary Assembly. But the monitoring process is good and useful for Ukraine, and it’s important to have such a dialog between Council of Europe and Ukraine. Maybe for Ukraineis not the best feeling to be monitored, but I think on the whole it is important that this dialog will be continued.

- If they finish monitoring about the obligations and commitments that Ukraine gave before it entered the Council of Europe, is it a possibility to launch a new monitoring – concerning, for example, the Constitutional reform? Because if COE will stop monitoring of Ukraine it would mean as if it declare ‘Ukraine is democratic country, everything is good in Ukraine, thank you’, but we still have problems…

- I pretty agree with you. The Parliamentary Assembly has some other procedure called the post-monitoring dialog, but of course it may be less effective as monitoring. I think in general the Council of Europe should not stop the monitoring too early – it’s good for a country, for a people of country. It’s a good process but of course it can be regarded as an offence of national dignity, I understand that. You in Ukrainedon’t want have a feeling that you are bad pupils and are under monitoring. On the other hand it’s a useful process.

- Do they usually ask the Venice commission about some resolution – to stop monitoring or not?

- They can ask us for the opinion on specific issues – Constitutional, legal problems. But to decide whether to stop monitoring, it’s up to the Parliamentary Assembly.

- One technical question: can Venice commission make some motions for resolution of Parliamentary Assemble of Council of Europe?

- No. We are neutral lawyers and experts. The Parliamentary Assembly is very familiar with VeniceCommission and they usually want to have our advice and ask us for it.

- The last question. Despite of all the aforementioned problems, could you call the recent Ukrainian elections democratic?

- I was not the election observer, I have not been in Ukraine on this occasion, but I think from the whole there is no doubt that the elections in Ukraine reflected the will of the Ukrainian people.