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1 April, 2013

The Law and Reality

Georgian ex-Deputy Minister of Justice talks about the implementation of the new Criminal Procedure Code in Ukraine and Georgia’s criminal justice reform experience

Democratization and adjustment to European standards in transition countries, including former USSR republics, is impossible without profound changes in the justice system. This is particularly true for criminal justice that contains the most mechanisms for abuse at various levels. The Ukrainian Week talks to Eric Svanidze, former prosecutor and former Deputy Minister of Justice in Georgia, and a long-term consultant on Council of Europe Projects, about how the new Criminal Procedure Code (CPC) in Ukraine, which was implemented in November 2012, can improve the situation locally and separate the powers and responsibility of prosecutors, investigators, lawyers and judges.

UWThe new Code implements “covert investigative actions”. How do you assess this provision in terms of human rights? Do you think that the authorities could use this provision to plant fake incriminating evidence not only against suspects, but also against anyone the government dislikes?

— You have sufficient protection from the abuse of this provision. One is judicial review. The other is the Law “On Investigation Techniques” which is beyond the jurisdiction of the new Code. The biggest accomplishment of the Code is that these processes have been entered into the system of checks and balances. Thus, in addition to judicial review, most covert investigative or interrogation actions are subject to judicial supervision. What this means is that there is a special procedure, requiring prosecutors or investigators to prove that the actions are necessary. This is completely in line with the Article 8 of the European Convention on Human Rights regarding the legitimacy of certain actions in investigations. In this sense, Ukraine has implemented legislation that is similar to that in most European countries. However, I’m talking about laws. It will take some time to see how they are implemented.

A text without implementation and enforcement is just a text. We are working on the implementation of this new Code in local practice and are communicating not only with the government, but also with representatives of civil society. It is currently too early to talk about any significant results, but I believe that there are already some promising signals, including the significant decline in the number of covert investigative actions. In general, people who abuse the law are pretty inventive. They often find gaps in the law. In this respect, the Ukrainian Code is as resistant as other similar European codes regulating criminal justice.

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UWWhich procedures in the new Code carry the biggest corruption risks?

— The implementation of any legislation leads to this question and carries a certain risk. Even if there is no discussion on which law to apply, if there is no compliance control and the law is easy to abuse, even the best laws can ultimately be used for corruption purposes. Still, such possibilities are limited. One risk is of keeping a suspect in a pre-trial detention centre when arrested instead of releasing him on bail. The new Code has detailed provisions that minimize this risk. However, any law can be violated. A law on its own does not solve the problem, yet it is a significant factor in minimizing the risks of corruption.

Georgia is sort of a success story in this respect. It managed to change the social mindset, not just legislation, which took strong political will and a comprehensive approach. It also implemented specific laws, and a CPC, similar to the new Ukrainian Code, which was actively applied against those involved in corruption scams. The anti-corruption campaign is pretty powerful and comprehensive in Georgia. However, the overall approach to eliminating corruption should include not just the law, but a series of other necessary elements. In my opinion, Georgia has more or less succeeded in implementing comprehensive changes which made it possible to minimize the risk of new corruption scams.

UWThe new Code changes the role and powers of prosecutors. What specifically does it change in the operation of the prosecution?

— The new Code implements the latest model of the way prosecutors operate within the framework of criminal justice. The concept of procedural leadership in investigations is key here. This is a very pragmatic approach, based on simple logic: the prosecutor is the ultimate user of the outcome of an investigation. In this case, the prosecutor leads the case and acts as accuser in court. Investigation bodies do not have the powers of the prosecutor. They only investigate.

In post-Soviet countries, including Ukraine and Georgia, a better approach is to separate prosecutors and investigators. The new Code is the legislative platform on which this separation can be based. Ukraine still has 5 transition years during which the Prosecutor’s Office will gradually be stripped of its power to investigate criminal offences on its own. Its current function of leading cases in court as the prosecution and supervising investigative bodies in the process of collecting evidence and investigating, already makes it powerful enough. The separation is necessary to prevent the rise of a super-powerful entity that can abuse its authorities.

READ ALSO: Georgia Dreaming

UW: What is Georgia’s experience in democratizing the prosecutor’s office?  

Selective procedures are already in place. As an outsider, I can say that there are consistent statements proving that there is still some abuse after the democratization of the prosecutor’s office. The prosecutor is still a dominant figure in court proceedings. Again, it’s a question of implementation rather than the legislation itself: a law can be great but the practice and implementation leads to violations. Therefore, it’s necessary to look at the process rather than the text or formal enforcement.

UWWhat should the State Bureau of Investigations change in investigation and judiciary procedures?

It is important that Ukraine does not end up with yet another “monster” institution. The allocation of functions and powers in leading criminal cases and trials should be transparent. The scale of pre-trial actions is another important and controversial issue. I do not support the idea of all investigation bodies in Ukraine being under the roof of the State Bureau of Investigations alone. It’s better to separate these powers and functions between three or four different investigative institutions as is now the case in Ukraine. It is very possible that the State Bureau of Investigations will deal with economic corruption and abuse of office by top officials, especially human rights related offences. The case law used by the European Court of Human Rights requires a country to have a separate independent investigative body to deal with such offences. Georgia does not yet have a separate body for this. 

READ ALSO: Giorgi Baramidze: “Russia believes that the Georgian factor should be eliminated”

Interviewed by Hanna Trehub


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