Thomas Markert is a German lawyer who joined the Council of Europe in 1989 and has worked for the Venice Commission since 1992. He was appointed deputy head of the secretariat of the Venice Commission in 2002. In February 2010 he was appointed the commission's secretary. He spoke to Georgi Gotev, EurActiv Senior Editor.
You just came back from a visit to Ukraine, where I understand that you had talks on many issues, but probably mostly on push by the country's authorities to adopt a new election law, ahead of the parliamentary elections due in October 2012. Can you be more specific?
Of course we have other issues with Ukraine but the most topical one at the moment is the election law.
The Venice Commission together with OSCE-ODIHR [the OSCE's Office for Democratic Institutions and Human Rights] adopted in our last session an opinion on the draft election law of Ukraine as prepared by a working group under the minister of justice.
Now in Ukraine several draft laws have been put before parliament. One of them is based on the results of this working group, but there are some significant changes.
Why do you think the government is rushing this election law? There will be elections next year and perhaps there isn't enough time to put in place such legislation.
Indeed, our principle is that one should try to avoid amending the election law one year before the next election. So we are already fairly late.
In the Verkhovna Rada [the Ukrainian parliament] there was a committee working on a comprehensive election code for all elections. We would have liked this work to continue in the Rada instead of this new process of having a new election law just for the parliamentary elections being prepared.
The Ukrainian authorities decided otherwise but our original recommendation remains to prepare an overall election code based on broad consensus. Work in the Rada on this was already quite advanced. And we regret that this effort was not continued.
What are your areas of concern in the draft which did not take into account of the Venice Commission's positions?
I think our major concern with this draft is that there are three changes in the electoral system that are imposed unilaterally by the majority against the wishes of the opposition parties.
The electoral system establishes the rules of the game and should not be to the advantage of one or the other side. Therefore, any change in the election system should be based on a broad consensus.
By contrast, the draft would move from the present proportional system back to the mixed system which Ukraine had in the past, it raises the threshold from 3 to 5%, and it prohibits election blocs.
All three changes reflect only the wishes of the majority and not of the opposition and therefore this will not increase confidence in the elections. This is by far our most important concern.
Have you been able to signal your concerns to the highest Ukrainian authorities?
They are very well aware of them. In fact, last week on Monday [24 October] I was in a hearing in the competent committee of the Rada on the election code and I made this concern very clear. This was reflected in the media and there were also representatives of the executive present.
So they know this very well. There may also be one positive sign because yesterday [3 November] it was decided by the Rada to send the draft legislation to a committee to try to have a consensual solution instead of simply voting on the majority draft.
When do you think there will be an outcome? When do you expect the Ukrainian parliament to vote a new election law?
I think it will probably be done before Christmas.
And that's too close to the elections…
Of course the twelve months is not an absolutely strict rule. The farther away from the elections the better but it's not too dramatic. I think the more important thing is that the changes should indeed be neutral and not one-sided.
Does the draft election law provide for open lists? There was a system previously where people voted on parties but didn't know who the candidates were.
In fact the draft does not provide for open lists. We would be in favour of open lists. The present draft keeps the closed lists at the national level but in addition there are single-member constituencies.
Our recommendation would be to move towards open lists on a regional basis instead of national lists and not to have the majoritarian part of the elections as in the past.
Are you optimistic the proposal to have open lists will make its way through?
Well at the moment I am quite sceptical as to whether open lists will be introduced. But the major issue is rather the decision between mixed and proportional system than the issue of the open lists.
Can you explain the essence of the problem of the election law? In what way does this represent a concern?
One aspect of concern I have already indicated: It is a change which is wished by one side of the political spectrum against the wishes of the other. So it's not a neutral change.
The substantive concern is that, though in principle this is a perfectly acceptable election system that functions in other countries, in Ukraine we have seen in the past, especially in 2002, that there was a lot of abuse of so-called 'administrative resources' in the single-member constituency elections.
The local administration tries to push through its candidate. There is a lot of money involved. Local businessmen spent a lot in order to win the local seat. 'Fake independent' candidates were elected who then immediately joined the governing majority.
The result was that in 2002 the opposition did win the proportional elections but in the end [then-president Leonid] Kuchma kept the majority thanks to the single-member constituencies. So people didn't quite know what they were voting for.
Do you think that the present political situation in Ukraine is conducive to normal legislative work on the election law? There tensions and protests by Chernobyl rescue workers and veterans of the Afghan War. Even President Viktor Yanukovych hinted that there was a risk of a coup d'état. How do you assess the political situation?
Well, in Ukraine it is difficult to think of a very calm period when there have been no tensions. A major issue creating tension is also the trials of opposition politicians. This may be more important than the protests of the Chernobyl rescue workers or the Afghan veterans.
The issue of the election law has to be addressed but it's also possible to stick to the current election law, which after all made it possible to hold free and fair elections last time.
Do you think the Council of Europe is an institution which the Ukrainian authorities are willing to listen to? Or are they too focussed now on their EU agenda?
I think both go hand in hand. For example, the European Parliament has referred to the Venice Commission's recommendations. The European Union in its contacts with the Ukrainian side never talks about "our recommendations" on the election law but says, "We expect you to follow the recommendations of the Venice Commission."
In fact the EU is very much strengthening our position.
The UEFA Euro 2012 football championship will be held in Ukraine in June. There is word that the event has been instrumentalised by the authorities for their own purposes. Do you think this will make the situation more complicated?
I think the football championship cannot be a reason not to hold elections that are due. It is natural that the authorities will try to use the football championship, if they are successfully organised, as proof that they govern effectively.
On the other hand the opposition could point to problems during the organisation of the event. I think this is part of the legitimate political game in a country.
Do you expect any regional problems? We know that the country is to a certain extent divided along linguistic lines. What kind of problems could emerge from this?
The divisions are bit more complicated than just linguistic lines but it is true that the government is probably quite popular in the east and fairly unpopular in the west.
If the political atmosphere is very confrontational, as is the case at the moment, this is not good for the position of the country. On the other hand I do not believe that one will see a breakup of Ukraine.
Opposition leaders, including former Prime Minister Yulia Tymoshenko herself who has been sentenced to seven years in jail, have called on the European Union not to freeze relations with Ukraine. Is this genuine expression of the wishes of Ukrainians?
I think indeed Ukraine has made a decision to move towards Europe. It is obvious that the opposition considers itself pro-European but I think the government wants closer relations with Europe as well.
In this regard the problem is that they do not necessarily wish to draw all the consequences of this choice at the domestic level.