The European Commission for Democracy through Law (the Venice Commission) gave a preliminary positive opinion of the law “On Prosecutor’s Office” prepared by the task force under the president of Ukraine. Discussions are held about two issues. Journalists were informed about this by Thomas Markert, Secretary of the Venice Commission, and Jeremy McBride, advisor for the Council of Europe and former chair of the Scientific Committee of the European Union’s Agency for Fundamental Rights. Europeans reminded that Ukraine undertook obligations on Prosecutor’s Office reforming back in 1995, when it joined the Council of Europe. A year later, a provision on reformatting of this institution was included into the Constitution of Ukraine. And finally, significant changes in the system of prosecution bodies functioning are foreseen by the new Criminal Procedure Code, adopted during the last parliamentary session of the previous convocation. During almost 20 years, several editions of the law on Prosecutor’s Office were prepared, but neither of them was certified by the Venice Commission. Now, finally, the government shows readiness to implement the necessary changes.
“The created draft law is a nice basis for further reform,” Markert noted. “Of course, the text is still not perfect, and some points are still being discussed.” The Europeans’ remarks refer to Article 24, according to which the Prosecutor’s Office preserves the right to represent minors and incapacitated people in court. According to the Venice Commission representative, such authority is still very wide, since Europe’s main requirement is the cancellation of the Prosecutor’s Office’s right to general supervision. “These functions must be performed by the ombudsman and representatives of free defense,” experts said.
In particular, Article 17, which refers to prosecutors’ subordination, caused some preconception. Also, Europeans insist that a discussion and selection of several possible candidates is carried out before electing an Attorney General.
And finally, the European experts said that the reform process in Ukraine is definitely a positive phenomenon. As for the draft law, they noted the government’s readiness to conduct a constructive discussion and expressed a belief that all contradictions will be settled. “On October 11 or 12, the Venice Commission will provide an official conclusion on the final version of the draft law. It will be possible to adopt it before the Vilnius summit, if the government has political will for it,” summed up Markert.
Let us remind that reforming the Prosecutor’s Office is one of the main requirements of the European Union on the eve of signing the Association Agreement in Vilnius. However, despite the optimistic forecasts of EU representatives, it will not be that easy to pass the bill considered by the Venice Commission. “The collision is following: the law on the Prosecutor’s Office was not simply registered at the Verkhovna Rada, but it was passed in the first reading by the previous convocation of the parliament. This does not allow to register any similar laws, until a final decision is made about this bill, which is ready for the second reading,” Serhii Sas, MP for Batkivshchyna, member of the Committee on Legislative Support of Law Enforcement of the Verkhovna Rada, explained to The Day.
The Day talked about the advantages and drawbacks of the government-proposed project and the prospects of its passing by the parliament with MPs, representative of the Committee Volodymyr OLIINYK and expert of the Center for Political and Legal Reforms Oleksandr BANCHUK.
“IF THE OPPOSITION PROPOSES RATIONAL AMENDMENTS BEFORE THE SECOND READING, I SEE NO REASONS WHY WE SHOULD NOT IMPLEMENT THEM”
Volodymyr OLIINYK, MP, Party of Regions:
“If the preliminary conclusions are ready in September and the final ones in October, as it was promised by the Venice Commission, and the bill is registered in the meantime, it could pass two readings by November. That is, if the president deems this draft law urgent (and I think he will), it will be approved before the summit.
“Firstly, the existing draft law was not made by the opposition. It was written and rewritten six or seven times, as far as I can recall. This is nothing new. But I tried to convince Kozhemiakin [representative of Batkivshchyna, chair of the Committee on Legislative Support of Law Enforcement of the Verkhovna Rada. – Ed.] that systemic changes in the country are usually proposed by representatives of the government. The main institution of legislative initiative in such cases is the president and parliament. At first, a concept must be created, a law must be passed, and organizational and financial resources for its implementation must be provided.
“Transitional and final clauses will be the most complicated in this draft law. We must avoid a situation when the old system, no matter how bad it is, is destroyed, but a new one is not created in its place. Thus, a reform in the country must be initiated by the government, despite political affiliations. I can give an example in order to get rid of any political implication: during the last parliamentary convocation, Party of Regions MPs registered a bill on the police, but we did not support it.
“As for arguments with the opposition, it is one thing when they oppose our projects, and absolutely different one when it comes to projects that were approved by the Venice Commission. Last week we discussed constitutional changes on consolidating the independence of judges. The opposition pointed out a number of shortcomings in that bill. However, the Venice Commission made a conclusion that the proposed amendments fully correspond to European standards. As a result, everyone voted for it. The opposition cannot oppose Europe. At the same time, if the opposition offers rational amendments to a project they have been working on before the second reading, I see no reasons why we should not implement them.
“Regarding the comments made by Europeans on this project, I must say that they look at Ukraine through European eyes, while we look at it through Ukrainian eyes. The essence of reforms is to both adhere to European standards and take our specifics into account. People go to the Prosecutor’s Office today to complain about the labor law, ecology, etc. Try to tell them now that general supervision of the Prosecutor’s Office is canceled and there is no point in going there anymore. Be it a disabled person, former soldier or a child of war, the Prosecutor’s Office will not be able to file a lawsuit and represent interests of such individuals. According to the draft law, the representative function of the prosecution in court, when it comes to protecting the rights of citizens and state, will apply only to minors and incapacitated persons. The rest must follow the principle of free protection. Perhaps, this issue must be regulated mildly, even in transitional provisions, in order to avoid hurting people. In Europe, the Prosecutor’s Office is involved only in supervision and investigation of cases and support of charges. We are not used to this yet, and this must be taken into consideration.
“In general, I do not think the EU experts will define this draft law as a bad one only because of two articles. When we adopted the Constitution, they also assessed it positively. We noted in transitional clauses that we were going to cancel general supervision through a corresponding law. Indeed, we have been moving in this direction long enough, but every positive change requires some time. A compromise will be found here.”
“THE DRAFT LAW IN QUESTION IS A DOCUMENT FOR A TRANSITIONAL PERIOD, WHICH LEAVES ROOM FOR WORK ON IT IN THE FUTURE”
Oleksandr BANCHUK, Ph.D. in Legal Studies, expert on administrative and tort law and criminal justice, Center for Political and Legal Reforms:
“This draft law has a number of advantages and drawbacks. As for the pros, this project finally eliminates the powers of the Prosecutor’s Office which had to be canceled back in 1996, I mean general supervision. This norm was enabled back in the Soviet times, when the Prosecutor’s Office oversaw abidance by law in all spheres of life. But in the current situation, every sphere has its own inspection, to which the prosecution’s supervision is added, thus we receive double control. In many cases, this leads to additional risks of corruption. However, from the point of view of the state body functioning, there is no need of this.
“The transparency of prosecutors’ selection procedure will considerably increase. At the moment, the process is unclear, there is place for protectionism and other negative phenomena. But according to the law, a qualification commission will be created, which will open access for those who want to take prosecutorial office.
“It is no less important that a disciplinary procedure is opened for prosecutors as well as citizens who consider their rights to be violated. It is important for prosecutors, because if they do not wish to execute orders of their supervisors, the latter will not be able to fire them, a disciplinary procedure will have to be enabled, a commission for the application of reprimand or dismissal will be involved. It is useful for citizens, because if they complain about actions or inactivity of a specific prosecutor, this issue will be solved not by his supervisor, who he might have good relations with, but a commission, which will include absolutely different people.
“Positive aspects of the optimization of the Prosecutor’s Office must be pointed out, too. Here belong the reduction of specialized prosecutor’s offices (military, environmental, transport) and merging of city and district prosecutor’s offices. This is important in terms of state finances, since in recent years prosecutor’s offices have considerably expanded.
“As for negative aspects, there are enough of them. One of the main shortcomings is in Article 24 in which Paragraph 7 was left, which states that the Prosecutor’s Office can submit warnings to a state government agency or local government, if it thinks that the latter inefficiently or incorrectly executes powers foreseen by law. Firstly, this is a latent form of the former general supervision. Even though it is significantly limited and is applied to public figures, there still is a certain number of prosecutors who will engage solely in general supervisory activity. We have about 110 administrative bodies, and a prosecutor will be assigned to each of them. From the standpoint of the Council of Europe, this paragraph seems rather unnecessary.
“Also, the Venice Commission may draw attention to a very large number of disciplinary committees. There are only 50 percent more prosecutors than judges, but if judges have only one committee of this kind, it was decided to create not only a higher qualification committee for prosecutors, but regional committees as well. A question about the rationality of such entities arises. By the way, the established mechanisms of choosing members of these committees do not fully correspond to European standards. In order to have a transparent selection of future prosecutors, committees must include representatives of other legal professions, for example, defense counselors. But according to the draft law, committees will only include representatives of the Prosecutor’s Office and higher legal educational institutions. The presence of the latter, I think, will just be a formality, and even if they oppose a certain candidate, prosecutors will have an absolute majority and be able to promote their guy. Thus, the principle of representation is not reflected in the commissions. As a result, the process will become more open, but the influence on it will remain minimal.
“Considering the fact that the Prosecutor’s Office reform is one of the EU requirements, and this draft must be adopted this fall, the chances of its successful passing through the Verkhovna Rada are high. Compared to the current law, this is a very good document, it will lead to positive changes. However, this is a document for a transitional period, it will not completely correspond to the Western European standards on prosecution bodies, that is, the Prosecutor’s Office. The majority of recommendations were implemented in this project indeed, but separate issues still must be settled, and this work should be done in the future.”
