Background

By letter dated 2 August 2013, the Head of the Presidential Administration of Ukraine, Mr Lyovochkin, requested an opinion on the draft law on the Public Prosecutors Office of Ukraine (CDL-REF(2013)041 and comparative table CDL-REF(2013)043, hereinafter, the “Draft Law”) from the Venice Commission and the Directorate General for Human Rights and the Rule of Law of the Council of Europe. In view of the urgency of this matter, the Bureau of the Venice Commission authorised the transmission of a draft of this opinion to the Ukrainian authorities in advance of its discussion at the October plenary session.

The draft law, if adopted, would replace the Law of Ukraine On the Public Prosecution Service that entered into effect on 5 November 1991 ('the Law of 5 November 1991'), which has been amended on many occasions since then - particular extensively in 2010 and 2012 - resulting in 'the Existing Law'.

 The draft law on the Public Prosecutor’s Office of Ukraine is one of several laws that was prepared over the years on the prosecutor’s office in Ukraine, for which the Venice Commission has provided opinions[1].

 The standards of the Council of Europe of relevance to legislation dealing with a public prosecution service can be found in a synthesised form in the Thematic Directory of Principles for a Draft Law on the Public Prosecution Office of Ukraine prepared as part of the Project "Support to Criminal Justice Reform in Ukraine".

 This opinion first briefly reviews the concerns expressed in previous opinions about the existing Law. It then outlines the significant advances made by the Draft Law towards fulfilling the requirement of Council of Europe standards and identifies the main aspects of the draft Law that are still problematic in that regard. The opinion then provides an article by article analysis of the draft Law, dealing with those provisions that need amendment, clarification, further consideration or deletion. It concludes with a summary of the recommendations made and an overall assessment of the acceptability of the draft Law.

Conclusions

1.      The provisions of the draft Law on the Public Prosecutor’s Office of Ukraine, submitted for Opinion in August 2013 - in terms both of what has been included and even more what has been omitted - constitute a very significant advance on previous proposals to replace the Existing Law. They have thus clearly laid some very firm foundations for a public prosecution service in compliance with European standards and that will meet the needs of a modern criminal justice system.

2.      The Venice Commission welcomes that the Draft Law embodies some very significant advances towards fulfilling the requirements of Council of Europe standards. These include:

-  the exclusion of the general supervision function from the functions of the Public Prosecutor's Office[2];

-  the exclusion of the right of any public prosecutors to participate in the proceedings of the Verkhovna Rada, boards of ministries, central executive agencies, local councils and other administrative bodies;

-  the enhanced statement of principles of operation of the Public Prosecutor's Office[3];

-  the introduction of a statement of general rights and duties of a public prosecutor[4];

-  the improvement in the provisions to secure the independence of public prosecutors[5];

-  the elimination of investigators from public prosecutor's offices[6];

-  the establishment of more specific criteria and processes for the appointment of public prosecutors[7];

-  the improvement in the criteria and processes used for disciplinary action against public prosecutors[8];

-  fuller provision regarding the grounds for dismissal of public prosecutors[9];

-  the introduction of arrangements to secure self-governance within the Public Prosecution Service[10]; and

-  the reinforcement of the provisions of the new Code of Criminal Procedure on the admissibility in criminal proceedings of evidence obtained by coercion outside of pre-trial investigation[11].

-  the establishment of centres for free legal aid, which should be able to take over from the prosecutor’s office the representation of the interests of individuals [12]

-  the deletion of the article on the official uniform for prosecutors[13].

3.      Some key issues can be settled only in the framework of the ongoing process of constitutional revision. These are:

·Article 106.11 of the Constitution should be amended to provide that the President can dismiss the Prosecutor General only for specific grounds, following a fair hearing.

·Article 121 of the Constitution should be amended to remove the function of representation of the interests of individuals.

·Article 122 of the Constitution should be amended to remove the no-confidence vote in the Prosecutor General.

However, the preparation of such amendments should not preclude the adoption of the Draft Law under the current constitutional provisions.

4.      In general the Draft Law is a good basis for completing the reform of the prosecution service. Nonetheless, there are five key issues of concern, which remain particularly serious obstacles to full compliance with European standards, which can be settled by amending the Draft Law.

5.      First, and most significantly, the Draft Law - through Articles 2.1.2, 24 - still provides for the retention of functions that go beyond the criminal justice sphere relating to the representation of the interests of the individual and the state that go beyond the criminal justice sphere. Pending the revision referred to above, the Draft Law should mitigate the scope of the retained functions. Therefore, the relevant provisions of the Draft Law should be amended in such a fashion that reduces their more extreme reach, which gives the impression that much of the function of general supervision is in fact being retained. Specific recommendations to that effect are:

·Article 24.2 should be amended to provide that the role of the prosecutor in representing the individual should be only subsidiary and both the individual and any person entitled to represent the individual should be able object against such representation in court.

·Article 24.2 and 24.3 should explicitly provide that a public prosecutor can represent the interests of an individual or the state only after having presented justification for his or her intervention and after the acceptance of these grounds by the court.

·In order to avoid an overbroad interpretation, Article 24.3 should define interests of the State, which can be the basis for representation by the prosecutor, as “legal rights of the State”.

·The wide powers in Article 24.5, which are not required for establishing the grounds for representation, especially the free access to premises and access to databases should be removed.

• Article 24.6 should be amended to confer to the public prosecutor only the powers of the individual or state body, which he or she represents.

6.      A second concern is that the provisions to protect the independence of public prosecutors omit standards and procedures for ensuring the internal independence of public prosecutors other than Prosecutor General, specifically:

• Article 17 should be amended to provide that instructions to an inferior prosecutor should be given in writing, and upon request any oral instructions should be confirmed in writing (or be withdrawn).
• In case of an allegation that an instruction is illegal a court or an independent body like a prosecutorial council should decide on the legality of the instruction
• All general instructions and policy guidelines issued to public prosecutors should be published.

7.      The third concern relates to the position of the Prosecutor General in that there continues to be a threat to his or her independence from the relative shortness of the term of office when coupled with the power of reappointment, as well as from the absence of adequate guarantees against dismissal[14]. In addition no provision has been made for input by a technical, non-political body in the appointment process for the Prosecutor General[15]. Specifically the Draft Law should be amended to:

• Article 41 should be amended to provide that an advisory body, possibly the High Qualifications and Disciplinary Commission of Public Prosecutors, give non-binding advice on the candidates before the President and the Verkhovna Rada take their decision on appointment.
• Article 43 should be amended to provide for a preliminary procedure before the High Qualifications and Disciplinary Commission of Prosecutors in order to provide non-binding advice to the President and the Verkhovna Rada on possible violations of professional responsibilities of the Prosecutor General.

8.      The fourth concern is that the important provisions to protect the independence of public prosecutors in Article 16 nonetheless continue to have the potential to restrict unjustifiably investigation and reporting by the media through its prohibition on 'interference' with their functions[16]. Specifically:

• Article 16 should be amended to clearly define liability for ‘disrespect’ as excluding legitimate criticism according to the European Convention on Human Rights and the case-law of the European Court of Human Rights.

9.      The fifth concern relates to the disciplinary procedure, which requires further guarantees for the prosecutor, a reduction of the powers of the investigating body and a clear regulation for an appeal against disciplinary sanction:

• Article 44 should explicitly rule out that an acquittal of a person accused by a prosecutor can result in disciplinary proceedings against the prosecutor or regarded as a negative performance indicator unless the charges were brought due to gross negligence or maliciously.
• Article 47 should ensure respect for the privilege against self-incrimination and legal professional privilege, as well as the exercise of human rights and fundamental freedoms. Only the non-respect of a court warrant should entail liability set out in Article 47.7.
• Article 51 should provide that the appeal against a disciplinary sanction adopted by the High Qualification and Disciplinary Commission should lie with a court only.

10.    In addition to these main shortcomings, there are many important points of detail concerning individual provisions for which amendments and/or clarifications are required.

11.    Finally, given the importance of having the law entering into force as soon as possible, a fixed deadline should be introduced for the entry into force.

12.    Although there is a fair amount of work still to be done, the changes that are required for the Draft Law can be accomplished without great difficulty within the framework that it has already set. These changes will bring about the transformation of the Public Prosecution Service that Ukraine undertook to secure when it joined the Council of Europe.

13.    The Venice Commission and the Directorate for Human Rights remain at the disposal of the Ukrainian authorities for further assistance in this respect.

   Text of the opinion CDL-AD(2013)025