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Strasbourg, 21 June 2004
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CDL (2004) 060 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
Mr James HAMILTON (Substitute Member,
Ireland)
Endorsed by
the Venice Commission
at its 59th
Plenary Session
(Venice, 18-19
June 2004)
GENERAL
1.
I have been
asked to write an opinion on a draft law amending the Law of Ukraine on the
Public Prosecutors Office. The existing law, together with amendments proposed
at the time which were not proceeded with, were the subject of earlier opinions
by the present writer (7 December 2001) and Ms H Suchocka (11 December 2001),
which were adopted by the Venice Commission.
THE PRESENT LAW
2.
The existing Law on the Public Prosecutor’s Office in Ukraine
establishes a very powerful institution. In effect it provides for a
Soviet-style “prokuratura”. Its functions as described in Article 121 of the
Constitution adopted in 1996 are as follows:
a.
Prosecution in court on behalf of the State;
b.
Representation of the interests of a citizen or of the State in court in
cases determined by law;
c.
Supervision of the observance of laws by bodies that conduct detective
and search activity, inquiry and pre-trial investigation;
d.
Supervision of the observance of laws in the execution of judicial
decisions in criminal cases, and also in the application of other measures of
coercion related to the restraint of personal liberty of citizens
3.
The 1996 Constitution also contains a transitional provision in the
following terms:
“The procuracy
continues to exercise, in accordance with the laws in force, the function of
supervision over observance and application of laws and the function of
preliminary investigation, until the laws regulating the activity of state
bodies in regard to the control over the observance of laws are put into force,
and until the system of pre-trial investigation is formed and the laws
regulating its operation are put into effect”. (Chapter XV, para.9)
It was intended,
therefore, when the 1996 Constitution was enacted, that the functions of
supervision over observance and application of the laws generally (apart from the
cases referred to in Article 121 (c) and (d) of the Constitution) and the
function of preliminary investigation would only remain with the procuracy in
the short term. Since the Transitional Provisions preserved the current
procedures for arrest, holding in custody and detention of suspects and for
examination and search of a dwelling place or other possessions for a five year
period (Chapter XV.13) it would seem that these powers were not intended to
remain with the procuracy for more than five years.
4.
The principal
conclusions concerning the existing law in the writer’s opinion of 7 December
2001 were as follows:
(i)
The law
centralises too much executive power in the hands of one institution and even,
because of the hierarchical organisation of the Procuracy, in one individual,
the Public Prosecutor of Ukraine.
(ii)
The law
infringes the principle of the separation of powers. The Prosecutor-General’s
powers appear to be closely intertwined with the powers of the judicial,
executive and legislative branch.
(iii)
The law
appears, in some respects, to confer powers on the Procuracy which ought to
more appropriately be exercised by the judicial branch and even in some cases
enables the Procuracy to set aside judicial decisions.
(iv)
The
relationship between the Prosecutor-General and the executive is not
transparent nor is it clear that the Prosecutor is independent of the
executive.
(v)
The conditions
of tenure of prosecutors do not give them appropriate guarantees of
independence of the executive and legislative branches of government.
(vi)
The power to
represent the citizens’ interests is too widely drawn.
(vii)
Article 7
represents a potential threat to press freedom.
I.
THE PROPOSED DRAFT LAW
5.
The basis of
the new draft law remains Article 121 of the Constitution. However, in addition
to the four functions set out above in paragraph 2, those of prosecution,
representation of the citizen or state, supervision of pre-trial investigation
and supervision of criminal judgement and measures restricting liberty, is
added a fifth, as follows:
“to supervise over the observance of human and citizens’ rights and
freedoms, and the observance [of] laws on these matters by bodies of state
power, local self-governments, their officials and functionaries.”
(Article 1(5))
6.
This new
function reflects a proposal to amend the Constitution which was put before the
Verkhovna Rada of Ukraine in 2003 but rejected. It seems that despite this
rejection, it is proposed in the draft law to confer this function on the
Prosecutor’s Office. If this is done it will represent the making permanent of
a considerable element of the Prosecutor’s function which, according to the
transitional provisions of the Constitution, was intended to be temporary only.
Furthermore, while the transitional provisions envisaged that the Prosecutor-General
would no longer carry-out pre-trial investigation but merely supervise it, the
provisions of the new draft envisage a control by the Prosecutor’s Office over
pre-trial investigation which goes far beyond mere supervision. Under Articles
37-39 it is clear that the Prosecutor-General can given binding instructions to
the bodies of pre-trial investigation.
7.
The new draft
law therefore fails to address the central problem identified previously in
relation to the Prosecutor’s Office, that of an over-centralization of power in
the hands of the Chief Prosecutor and his Office. In addition to the
prosecution power, the power to represent the interests of a citizen or of the
State in certain cases, the supervision of observance of laws by investigative
bodies and supervision over the execution of judicial decisions and over the
restraint of the personal liberty of the citizen, the Public Prosecutor’s
Office continues to exercise powers of general supervision and the effective
control over function of preliminary investigation which, under the terms of
the 1996 Constitution, were intended to remain with the Prosecutor’s Office
only until laws regarding the activity of state bodies in regard to the control
over the observance of laws were put into force and the system of pre-trial
investigation was formed.
8.
Furthermore,
the draft law continues to envisage a Prosecutors office closely bound up with
both the executive and the legislative branches of government and exercising
powers which should more appropriately be reserved to the judicial branch.
9.
The draft law,
in Article 10, continues to provide for participation by the Prosecutor-General
in meetings of the legislature, the executive and judicial bodies. So far as
the legislature is concerned this participation is to be at the invitation of
the Verkhovna Rada or its committees, but it would nevertheless be desirable to
define the limits in which such participation may be exercised, for example, in
order to present reports or answer questions, if this is the case. It would,
however, be undesirable that a Prosecutor-General should have power to initiate
legislation or participate in parliamentary debates. Similarly, the nature of
participation in the plenary sessions of courts should be defined so as to make
it clear that the Prosecutor-General is not exercising any judicial function,
assuming this is in fact the case.
10.
The
relationship between the executive and the procuracy remains a problem. The
Prosecutor-General is to participate in the Cabinet of Ministries and in local
self-government bodies. While in principle it is possible within a democratic
system to have public prosecution subordinate to the executive, nevertheless
where this is the case adequate safeguards must be in place to ensure the
transparency of any exercise by the Government of prosecution powers. Paragraph
13 of the Committee of Ministers of the Council of Europe’s Recommendation Rec
(2000) 19
sets out certain conditions which should be met where this is the case. Paragraph
14 deals with the situation where the prosecution is independent of the
Government. It is not, however, clear that the conditions of either paragraph
are met. In particular, the Prosecutor-General’s participation in meetings of
the Cabinet of Ministers of Ukraine combined with his power to issue
instructions to more junior prosecutors leads to a situation which is neither
transparent nor is it clear that the Prosecutor is acting in an independent
way, notwithstanding the guarantees for the independence of the Public Prosecutor’s
Office contained in Article 4 of the draft law.
11.
It is worth
noting that the Parliamentary Assembly of the Council of Europe, in
Recommendation 1604 (2003) on the role of the Public Prosecutor’s office in a
democratic society governed by the rule of law, had the following to say about
non-penal law responsibilities of public prosecutors
“as to non-penal law responsibilities, it is essential:
a.
that any role
for the prosecutors in the general protection of human rights does not give
rise to any conflict of interests or act as a deterrent to individuals seeking
state protection of their rights;
b.
that an
effective separation of state power between branches of government is respected
in the allocation of additional functions to prosecutors, with complete
independence of the public prosecution from intervention on the level of
individual cases by any branch of government; and
c.
that the powers
and responsibilities of prosecutors are limited to the prosecution of criminal
offences and a general role in defending public interest through the criminal
justice system, with separate, appropriately located and effective bodies
established to discharge any other function.”
12.
The draft law
envisages that the Procuracy will retain a considerable number of extensive powers
which in a modern democratic system one would expect to be exercisable by a
court rather than a prosecutor, or if exercised by a prosecutor to be subject
to the supervision and control of a court. These include the following:
(i)
The power to issue orders to all bodies or persons within the state,
including an order to appear before the Prosecutor-General to present
explanations in relation to any matter the subject of the Prosecutor’s
supervision or investigation. The Prosecutor has the power to order the militia
to enforce such an order (Article 5).
(ii)
The power to examine applications and complaints about violation of
rights of any individual or legal person and to issue a decision. (Article 9).
(iii)
Powers to supervise the observance and application of laws. These
supervisory powers extend to the compliance of all acts issued by all organs,
enterprises, institutions, organisations and officials with the Constitution
and laws of Ukraine (Article 45 and 46). The wide scope of these powers would
appear to be in contradiction of paragraph 12 of Recommendation Rec (2000) 19
which provides that public prosecutors should not interfere with the competence
of the legislative and the executive powers.
(iv)
In conducting supervision over the observance and application of law the
Prosecutor-General has the right to enter the premises of any state organ,
union of citizens, enterprise, institution or organisation, irrespective of its
ownership. The Prosecutor can have access to all documents and materials,
including bank documents, can demand that managers conduct checks and
inspections, and can summon officials and citizens and demand oral and written
explanations concerning violations of the law. (Article 46).
(v)
In conducting supervision the Prosecutor-General can demand the termination
of an illegal act (Article 47). It does not appear that any intervention by a
court is required to give effect to this.
(vi)
The Prosecutor also has powers of supervision over the observance of
laws in the course of enforcement of judgments in criminal cases and in the
course of application of other compulsory measures imposed by a court. The
prosecutor can, amongst other powers, study documents that underlie detention,
arrest, or conviction, and is obliged to release persons detained illegally
(Article 44). These provisions appear to give scope to the Prosecutor in effect
to set aside the decision of a court in a criminal matter.
13.
Articles 33-35
of the Law confers on the Public Prosecutor the right to represent the
interests of the citizens or the State in court. The basis for this is very
widely drawn: as well as minors and incapable citizens are included all persons
“who, for some reason, cannot protect their rights themselves”. On foot of this
the Prosecutor appears to have a right to participate in any legal proceedings
where such an interest arises, and to apply to court where necessary and appeal
court decisions, as well as to summon persons, demand explanations, seize
documents, and charge persons.
14.
It is, of
course, essential that any legal system has a mechanism to protect the
interests of the state, public interests and the interests of persons under a
disability such as minors or persons with a mental disability. However,
Articles 33-36 appear to go well beyond this. As the Venice Commission commented
in its opinion on the Draft Constitution of Ukraine adopted on 17-18 May 1996:
“It is recommended
that this representation should be limited to cases where the public interest
is involved and where there is no conflict with the fundamental rights and freedoms
of the individual. It is up to the individual himself to decide whether to ask
for State assistance or not.”
15.
Article 7,
which deals with the independence of the Prosecutor, prohibits “any
interference of the … media … with the prosecutor’s activity”. This seems to
the writer to be a potentially dangerous provision. Care must be taken to
protect the media’s right to criticize the prosecutor; where this oversteps
what is lawful by, for example, causing prejudice to a forthcoming trial, it
should be dealt with only by way of a judicial decision.
16.
Despite general
statements of principles the provisions in the new draft do not represent an
adequate guarantee for the independence of the Prosecutor’s Office. Article 4
states that the Office is independent and subordinate only to the Constitution
and laws. The Office is to carry out its activities independently of other
bodies of state power (notwithstanding the close links to other bodies which
links are the subject of adverse comment above. The prosecutor is not to be
involved in politics (Article 4 and Article 8).
17.
Appointment and
dismissal of the Prosecutor-General are to be by the President with the consent
of the Verkhovna Rada. The grounds on which a prosecutor may be dismissed are
now set out exhaustively in Articles 16 and 17. This represents a better
guarantee than the existing law under which the Verkhovna Rada can dismiss for
any reason. But there is still no independent and impartial review of the
proceedings to remove the Prosecutor-General, as recommended by Recommendation
Rec (2000) 19 of the Council of Europe. The five-year term of Office of the
Prosecutor-General, together with the possibility he or she will seek
reappointment, has the potential to undermine independence.
Some subordinate prosecutors are also appointed for five years terms and are
dismissible by the Prosecutor-General (Article 15) for a number of stated
grounds (Article 22) but it is not clear if these grounds are exhaustive. Again
there is no provision for independent review which would be important if regard
were sought due to alleged non-performance of duties, incompetence,
misbehaviour, state of health or the results of an attestation. The combination
of a hierarchical system with the short five-year term and the power to appoint
and dismiss centralises a great deal of power with the Prosecutor-General and
leaves no independence in the hands of the individual prosecutor. Proposals
which appeared in the earlier 2001 draft law to give some degree of
independence to individual prosecutors do not appear in the new draft law.
18.
Prosecutors
cannot be held criminally responsible or arrested without the consent of the
Prosecutor-General (Article 7). While some protection of prosecutors from
arbitrary or abusive process emanating from another organ such as the police
might be desirable, it would be preferable if any limitation on the power to
commence a criminal process was subject to judicial control. It is not clear
whether or how criminal proceedings against the Prosecutor-General can be
initiated as the draft law makes no provision for such an eventuality.
19.
The draft law
does not provide for any independent check on the operation or management of
the Public Prosecutor’s Office. Article 26 establishes advisory boards but they
are staffed entirely from within the Prosecutor’s Office and their function
appears to be to consider violation of legislation by other state authorities.
CONCLUSION
20.
In summary, I
have the following conclusions concerning the draft law:
(i)
Despite some marginal improvement over the existing law, the draft law
cannot be regarded as a fundamental reform of the existing Procuracy.
(ii)
The draft law continues to centralise too much power in the hands of the
Procuracy and the Prosecutor-General, and in particular has failed to divest
the procuracy of functions intended only to be transitional.
(iii)
The draft law continues to infringe the principle of the separation of
powers. The Prosecutor’s powers remain entwined with those of the legislative,
executive and judicial branches.
(iv)
The draft law appears to confer powers on the Procuracy which would more
appropriately be exercised by the judicial branch.
(v)
The relationship between the Prosecutor and the executive remains
entangled and is neither transparent nor can the prosecutor be regarded as
independent of the executive.
(vi)
The provisions of Article 7 represent a potential threat to press
freedom.
(vii)
The powers to represent the public and assert rights on their behalf are
too widely drawn.
(viii)
The draft law continues to confer powers and responsibilities on the
Prosecutor which go beyond the function of prosecuting criminal offences and
defending the pubic interest through the criminal justice system, and which are
inappropriate to confer on the Public Prosecutor.
(ix)
The guarantees for the independence of the Prosecutor are inadequate and
not in conformity with Recommendation Rec (2000) 19.
(x)
There is no independent check on the operation and management of the
Prosecutor’s Office
