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Strasbourg, 21 June 2004
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CDL (2004) 048 fin
Or. Engl.
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Opinion no. 292/2004
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
comments on
the draft law
of the republic of ukraine
on the public prosecutor’s office
by
Ms Hanna SUCHOCKA (Member, Poland)
Endorsed by
the Venice Commission
at its 59th
Plenary Session
(Venice, 18-19
June 2004)
1. The submitted draft law constitutes
yet another attempt to fulfil the obligation imposed on Ukraine by Resolution
1244 (2001) of the Council of Europe’s Parliamentary Assembly (Honouring of
obligations and commitments by Ukraine). The resolution points directly to the
need to transform the role and functions of the prosecutor’s office; and it
clearly defines that obligation as a change in the role of the prosecutor’s
office in relation to the one it played in the former communist state. A
democratic state requires a different organisation and a different definition
of the mutual relations between the prosecutor’s office and other state organs
from what existed in the previous system. Every piece of draft legislation
pertaining to the prosecutor’s office must therefore be analysed in terms of
that obligation.
2. The draft legislation on which this opinion
is being given marks yet another attempt to prepare a new law on the
prosecutor’s office. The previous 2000 draft legislation, designed to amend the
then existing prosecutor’s office act, was also submitted for evaluation to the
Venice Commission. The expert opinions presented at that time included a number
of detailed critical remarks which indicated the general direction in which
changes to solutions pertaining to the prosecutor’s office were to go.
3. One gets the impression, however, that the
present draft fails to incorporate many of the basic recommendations made at
that time. The current draft in essence does not contain any fundamental
changes in relation to the aspects of the previous draft that evoked the most
doubts and criticism. In general terms, the changes introduced can best be
described as ‘cosmetic changes’, as they have left the basic model of the
prosecutor’s office essentially unchanged. As a result, the remarks made in
reference to the previous legislative draft are still fully pertinent. That
being the case, it is difficult to avoid repeating the same critical remarks
presented at that time (in 2001).
I. General Remarks
4. The questions posed at that time need to be
reiterated, namely to what extent does the model of prosecutor’s office
proposed by current legislation break with the model of “procuratura”
characteristic of the communist period? And, as required by the Council of
Europe, does it contain the principles characteristic of the way a prosecutor’s
office should function in a law-abiding state (democratic state ruled by law)?
5. Those queries give rise to many doubts. One
has the impression that the way certain general principles of the draft law are
described conforms to the principles characteristic of democratic states. This
includes such things as the strongly emphasised principle of independence
(Article 4, point 2 - independence and subordination only to the Constitution
and laws of Ukraine). Adoption of that principle clearly indicates the choice
of a model that does not link the prosecutor’s office with executive authority.
The chosen model separates the prosecutor’s office from executive authority
(the government), which is now a more common solution than combining the
function of prosecutor general and justice minister. However, the latter
solution is also encountered in certain democratic states (eg USA, Austria, Poland).
Therefore, it may be assumed that in principle that is the proper direction in
which to move.
6. At the same time, I wish to recall what I
wrote in my previous evaluation that simply separating the prosecutor’s office
from the executive authority alone is not a sufficient guarantee of an
efficient, effectively functioning prosecutor’s office meeting the challenges
of a law-abiding state. It should be emphasised that it was precisely in
communist states (taking into account all the many differences) that the
prosecutor’s office, became the state’s basic tool of repression as a result of
such separation, its broad scope of authority and its exemption from all
supervision. An analysis of the text of the law inevitably evokes the
impression that the model of an ‘omnipresent’, dominating prosecutor’s office
has persisted in the minds of the authors of the legislation now under review.
While invoking the terminology of an independent prosecution organ, they have
surrounded it with instruments characteristic of the former period. The role of
the prosecutor’s organ conceived in this manner does not fit the declared
principle of separation of power. Hence, the principle of independence alone is
no guarantee of a democratic prosecution model. On the contrary, it may lead to
the creation of an all-powerful prosecutor’s office, thereby becoming a threat
to the democratic functioning of other state organs, including courts of law.
An analysis of detailed provisions shows that such fears are not groundless.
II. Detailed remarks
7. Article 1 defines the tasks of the
prosecutor’s office. Since those definitions are crucial to further detailed
solutions, they raise serious doubts. The scope of functions performed by the
prosecutor in light of that article considerably exceeds the scope of functions
performed by a prosecutor in a democratic, law-abiding state. It would be
difficult to deal in a more detailed manner with points 1-4, since the
functions of the prosecutor’s office as defined by those points are little more
than a faithful repetition of article 121 of the Constitution. In that sense,
despite misgivings over the prosecutor’s excessively broad scope of power,
especially with regards to point 4, where he impinges on the authority of the
judiciary, those are executive regulations to the constitution.
8. Point 5, which does not constitute an
executive regulation to the Constitution, is wholly unacceptable. On the
contrary, the proposal to include such a provision in the Constitution evoked
the criticism of the Constitutional Court, which ruled that the scope of
authority granted to the prosecutor by that regulation far exceeds the
boundaries of the separation of power. That regulation, giving the prosecutor
the right to supervise the observance of human and citizens’ rights and
freedoms and the observance of laws pertaining thereto by bodies of state
power, local governments and their officials and functionaries, places the office of prosecutor within the
framework of the former model of “procuratura”. The prerogatives of the
prosecutor thus cross over into the scope of authority of other state organs.
The prosecutor’s office in a democratic state is not entitled to exercise
general supervision over the observance of human rights by other state organs
and functionaries. That provision should therefore not be included in the new
prosecution act, because, first of all, it is contrary to the legally binding
constitution and, secondly, by violating the principle of separation of power,
it lays the groundwork for creating an all-powerful prosecutor’s office within
the system of state organs.
9. Article 3 evokes similar misgivings. The
general protection of the rule of law is not the task of the prosecutor’s
office. That was characteristic of the previous system but does not fit the
framework of a prosecutor’s office functioning within a democratic state. That
regulation has been formulated in the exact same way as that contained in the
2000 draft law.
10. Article 5: This regulation states that
legitimate orders issued by the prosecutor shall be obligatory for all bodies,
enterprises, institutions, organisations, officials and citizens, and shall have
to be carried out (fulfilled) within the time limits specified by the law. That
is an extremely dangerous provision. The scope of instruments with which the
prosecutor’s office is entrusted is far too broad. Orders issued by the
prosecutor may not be binding on everyone in general and in every matter. Included as it is amongst the draft’s
general principles, that regulation is too general. It fails to specify in what
matters and in what proceedings such orders are binding. Such far-reaching
obligations should not be imposed on other organs, enterprises and citizens in
undefined and legislatively unspecified matters and situations. As a result of
being granted such powers, the prosecutor’s office becomes a super-authority.
It is my conviction that article 5 formulated the way it is should be removed
from the law on Prosecutor’s Office. Situations in which the prosecutor’s
decisions are binding should arise out of laws pertaining to concrete judicial
proceedings and not have such a sweeping character.
11. Article 7 regulates guarantees of the full
independence of the prosecutor. If one adopts a prosecution model which is
separate from the executive authority, guarantees of independence are
indispensable. In that situation, such a solution is justified. But this
article regulates various situations, each of which raises serious misgivings.
First of all, the guarantees are formulated too broadly. A cause for alarm is
the statement that ‘any interference by … the media … shall be prohibited’.
There exists the justified fear that such a formulation encroaches upon media
freedom. It can provide the basis for too broad an interpretation that could
prevent media coverage of matters with which the prosecutor’s office is
dealing. Undermining the principle of media freedom undermines one of the most
basic fundamentals of the democratic order. That formulation already raised
misgivings in the previous draft. It should therefore be changed.
12. Other solutions contained in article 7 are
also unacceptable. They not only guarantee the prosecutor’s independence but
allow him to encroach upon areas reserved in accordance with the separation of
power for other authorities. This regulation provides grounds to overstep that
separation. The prosecutor may at any time participate in sessions of various
bodies and commissions. (‘In cases the Prosecutor considers it expedient, he or
she shall participate in the meetings of these bodies’.) He or she may
participate not at the invitation of those bodies but solely on the basis of
his or her own will and prerogative. Such guarantees of independence serve to
build the prosecutor’s special power centre vis-à-vis other organs. In view of
the fragility of the democratic system, which has yet to develop properly, a
prosecutor’s power created as a kind of super-authority within the state is
very dangerous to the development of a democratic, law-abiding state.
13. Article 10 raises similar misgivings. The
Prosecutor General takes part in sittings of the Supreme Court and those of
other specialised higher courts. This regulation is very general in nature and
is not a right connected to concrete court proceedings. This once again
unilaterally empowers the prosecutor to participate in the meetings of another
independent organ, the judiciary.
14. A consequence of thus formulated general
principles contained in Section I are the provisions contained in the
subsequent chapters of the law. They seem to be the logical development of
provisions that accord the prosecutor’s office the role of a super-authority.
15. Section II regulates the system and
organisation of the Prosecutor’s offices’ activity. That chapter contains
regulations constituting the development of the principle of unity and
centralisation contained in article 4. The structure of prosecutor’s organs
separated from other organs is strictly centralised and thereby modelled on the
former “procuratura”. The prerogatives of the Prosecutor General, who heads
such a centralised structure, are exceptionally broad (art.15). In fact, it is
extremely difficult even to compare it to the model existing in democratic
states, since the prerogatives of the Prosecutor General and his offices
greatly transcend the scope of powers which prosecution organs have at their
disposal in democratic, law-abiding states.
16. A separate military prosecution organ, which
has evoked criticism, has been retained.
17. In accordance with the Constitution, the
Prosecutor General is appointed to a five-year term. The Constitution however
contains no indication that other prosecutors are to be appointed for a limited
period and limits only the Prosecutor General’s term to five years. But the law
clearly mentions grounds in which the Prosecutor General may be recalled before
his/her term in office has elapsed (article 16). Those grounds are methodically
enumerated and should be positively evaluated, because they could preclude a
recall for political reasons. Also clearly enumerated (article 17) are reasons
in which Verhovna Rada of Ukraine may express a vote of no-confidence in the
Prosecutor General, as a result of which he/she must step down.
18. The law does not precisely specify the
length of the period in which other prosecutors are appointed to serve.
Article 22 contains no concrete formulation on the subject. One may assume they
are appointed for an indefinite (unlimited) period of service, since in listing
the reasons for which (any) prosecutor may be dismissed, article 22 states that
‘the prosecutor could be dismissed from his or her post…’ whereas with regard
to the Prosecutor General, article 16 makes use of the term ‘pre-term
dismissal’.
19. The scope of prerogatives contained in
subsequent articles also raises serious misgivings. The Prosecutor retains all
his hitherto supervisory powers (articles 36-46). The scope of that supervision
is unacceptable. The Prosecutor has been granted too many prerogatives
empowering him or her to undertake preventive activity not connected to
concrete proceedings. This is the case with articles 43 and 45. Such issues in
a democratic state are dealt with by the ombudsman. Article 45 constitutes a
development of the unconstitutional point 5 of article 1 (mentioned above). It
should not be included in this law at all. Similarly, the range of instruments
available to the prosecutor in exercising supervision, which are extremely
broad and varied, is unacceptable (article 46). The Prosecutor has the right to
intervene anywhere, including the right to violate bank secrecy - not in
concrete criminal proceedings but as part of his right to exercise general
supervision. The catalogue of prerogatives contained in article 46 exceeds the
bounds of prosecution empowerment granted by democratic, law-abiding states.
20. To conclude, it must be stated that the
submitted draft does not fulfil the requirements imposed on Ukraine with
regards to changes in the scope and functioning of its prosecution organs. All
the prerogatives of the prosecutor, which were to have been transitional in
nature, have been enshrined in this draft as prerogatives the prosecutor is to
permanently enjoy. The submitted draft has effectively petrified the old model
of procuratura dating from another era. Hence, any discussion of detailed
principles and resolutions is secondary, since the system of primary
principles, according to which the prosecutor’s office is to function, first
needs to be changed. The prosecutor’s office must be enshrined in such a way so
as to respect the principle of division of power and the resulting obligations.
The prosecution model of the previous era cannot simply be imbedded in a system
based on new and different political principles.
