On 15 December 2011, the PACE Monitoring Committee unanimously approved the Draft Resolution titled The Functioning of Democratic Institutions in Ukraine. The Ukrainian Week has interviewed Ukrainian and European experts, lawyers and political analysts to learn their opinion on the developments PACE finds disturbing in Ukraine
Volodymyr Tolstenko, Secretary of the Verkhovna Rada’s Committee for Legal Policy, the Party of Regions:
I’m in two minds about the Resolution that PACE has approved. It has a somewhat offensive and humiliating tone, particularly in the first items. It contains words like‘immediately’ or ‘flaws’. Even the most respected organization cannot talk to an independent country involved in European policy-making in such a manner. If it weren’t for this tone, I would readily accept the recommendations and the evaluation of our actions. As a rule, in our country, people stay at temporary detention facilities during investigations until investigators forward their documents to the court. Sometimes, they take unreasonably long to do so. However, we are drafting a new Criminal Code, which has already been analyzed and discussed by NGOs, and have given a favorable response. The current practice with temporary detention centers has been in place since soviet times. The new Code will remove it. It entails significant amendments that comply with European standards, such as reasonable case analysis deadlines and emphasis on the presumption of innocence.
As for the demands to cancel Articles 364 and 365 of the Criminal Code concerning the abuse of office and exceeding of powers, the Party of Regions believes that legal provisions cannot be changed to fit a specific individual, despite the harsh comments from the highly respected PACE. We will reform criminal justice in its entirety. We’ll improve the work of law enforcement agencies and criminal justice. I’m sure political and criminal liabilities will be segregated. The issue of the Constitution and the proposal to summon the Constitutional Assembly to amend it, is very complex and sensitive. In many countries constitutions have remained unchanged for decades. We’re trying to amend ours. However, it’s better to wait with such issues rather than rush them, as the government did in 2004 under Western pressure. At that time, the Constitution was amended, fuelling conflicts between the President and the Premier. We will reform the Constitution. That’s clear. But we need time. The new Constitution should not simply reflect the demands of the West. It shouldn’t be amended to suit PACE alone.
Leonid Tarasenko, President of the Public Defenders Center and Professor at Lviv University, comments on the Draft PACE Resolution
Mr. Tarasenko claims that the way in which Ukrainian lawyers work does not meet the terms envisaged by European standards. “In many cases, the defense does not have the opportunity to study their clients’ case materials” he explains. “But lawyers have no real leverage to change the basics of criminal proceedings, hence the great importance of cooperation with international organizations, such as the Council of Europe and the Venice Commission.”
Mr. Tarasenko believes that some changes should indeed be introduced to legislation. However, courts could already apply appropriate norms if only they wished to do so.“ One court in the Kharkiv Oblast released a suspect and replaced the arrest with a pledge that he stays in town while his case is being investigated,” says Mr. Tarasenko. “The General Prosecutor’s Office ruled so out of respect for human right for personal freedom. Therefore, avoiding abuse of preventive detention is possible even in Ukraine, provided that the authorities are willing to do so. The example of the Lutsenko case is something totally different. They put him in jail for the alleged misappropriation of public funds in the amount of UAH 40,000. No one is put behind bars till the trial for this type of violation in Europe, particularly when there are no grounds to assume that the suspect will avoid investigation.”
“Most comments in the Draft PACE Resolution really reflect violations that occur in the Ukrainian judiciary, but not all of them,” Mr. Tarasenko believes. More specifically, he thinks there is no need “to change the Constitution of Ukraine as proposed in the Draft Resolution, since the current Constitution guarantees a vast array of rights. The fact that the requirements of the Constitution are not complied with in Ukraine, is a different matter.
Volodymyr Horbach, political analyst at the Institute for Euro-Atlantic Cooperation.
The legal approach of the Draft Resolution’s authors is totally relevant, however it did not take into account the socio-political context of the changes and reforms we are being offered. Take the recommendation to cancel some articles of the Criminal Code. It has its purpose, yet misses the initial problem, i.e. the incorrect application of these articles by Ukrainian courts. It’s not the articles that are to blame for our problems; it’s those who apply them. Judiciary reform which would be useful for society cannot be implemented by the very people who openly mock the law.
However, there is no mention of this in the PACE Draft Resolution, because such conclusions would be regarded as interference in internal affairs. Moreover, the only way to integrate the amendments offered by PACE Draft Resolution to the Constitution is to convene the Constitutional Assembly to approve them. This can only be done by an authority which the public trusts and supports. At this point, there is none in Ukraine. Therefore, this proposal is impossible to implement practically under the current socio-political background, even if reasonable and technologically accurate. The key message of the Draft Resolution is the preparedness of PACE MPs to take part in international observation of the 2012 parliamentary election. Meanwhile, people in Ukraine want a change of government, not Constitution at this point. The latter could be the next step.
Taras Chornovil, First Deputy Head of the VR Committee for Foreign Affairs and member of the Reform for the Future group of MP's
The government must have expected this very reaction of European institutions to the arrests of Tymoshenko and Lutsenko. Ukrainian authorities never managed or tried to prove the international community these cases were not politically motivated. That’s why even the first paragraph of the Draft Resolution is the result of the policy that was unfortunately implemented in this direction by Ukrainian government, judiciary and prosecution, all of them. As to the recommendations to remove Art. 364 and 365 from the Criminal Code, I must say similar provisions are in virtually all criminal codes of EU member-states. Therefore, this proposal is somewhat nonconstructive. The Draft Resolution does not say clearly why these articles in the Criminal Code are inadequate and how they should be changed.
Obviously, we need to fully support the part of the Draft Resolution that criticizes harshly Ukrainian procedure for choosing pretrial arrests as a preventive measure, no question about that. Sadly, pretrial arrests have been abused more and more heavily lately in Ukraine.
Also, I agree that the Uniform Election Code should be passed. But I don't think it will be there any time before the upcoming parliamentary election. The best option would be for the current parliament to start drafting the Code and transfer it to its successor to pass.