14 October, 2013 18:40 ▪
Venice Commission recommends correcting five flaws in the draft law on the prosecution
In the opinion, the experts describe the draft law as the best one of all Ukrainian draft laws on the Prosecutor’s Office ever considered at the Council of Europe.
The provisions in this draft law are much more advanced compared to the previous (draft laws – Ed.). It lays a solid foundation that meets European standards and needs of the modern criminal justice system. The draft law is a good foundation for the completion of the prosecution reform, the opinion claims.
Among other things, the Venice Commission experts welcome the innovations whereby the Prosecutor’s Office will no longer carry out general supervision or participate in the work of ministries, executive authorities, local governments and other administrative bodies. Another positive change the Venice Commission noted was the improvement of mechanisms guaranteeing independence of prosecutors; new detailed procedures for the appointment and discharging of prosecutors; the introduction of self-governance mechanisms and bodies, as well as new procedures for disciplinary proceedings against prosecutors.
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Meanwhile, the Venice Commission experts noted five flaws in the draft law. Their correction is critical. Art. 24 was pointed out as the major one. It refers to the right of the prosecutor to represent minors and incapacitated adults as well as government authorities in courts. Earlier, the Venice Commission claimed that these are not typical functions of prosecutors and they have to be removed from the draft law completely. The final opinion, however, offers several amendments to this article.
The second correction concerns guarantees of the prosecutors’ independence from top officials which the experts see as insufficient. The third point is that the draft law does not rule out the risk of replacing Prosecutor General for political reasons. If unchanged, it leaves room for indirect influence of the parliament and president on Prosecutor General.
The fourth problem the experts noticed in the section on guarantees of the prosecutors’ independence is the hidden threat for journalists and activists covering the work of the prosecution. The current version of the draft law says that “any influence on the prosecutor” and “disrespect for the prosecutor” lead to “liability set forth by the law.”
This liability can be used as a tool in crushing freedom of speech and public criticism, the Venice Commission’s opinion notes. European experts offered a number of amendments to solve this.
The fifth bloc of recommendations covers the procedure for disciplinary liability for prosecutors.
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Separately, the Venice Commission insists that the Verkhovna Rada should amend the section of the Constitution on the Prosecutor’s Office in the future: it should remove the right of the prosecutor to represent individuals, restrict the president’s authority to dismiss Prosecutor General and take away the right of the parliament to impeach Prosecutor General.