At the end of October, Kyiv hosted the International Conference for the first year anniversary of the new Code of Criminal Procedure. Initially, the government presented the Code as a huge success in the improvement of law enforcement in Ukraine. Andriy Portnov, Advisor to President and the key man behind the Code, insisted that the new Code would eliminate torture in the police. The conference was attended by representatives of European institutions and EU Ambassador Jan Tombinski.
However, the discussion of the Code and the results of its implementation did not go all that well. The Ukrainian government’s key message, coming from Portnov, was that the opposition “blocks” European integration and hampers the adoption of the pro-government majority-sponsored bill to send Yulia Tymoshenko for medical treatment abroad. Christos Giakoumopolous, Director of Human Rights in the Council of Europe (CoE) and a conference participant, talked to The Ukrainian Week about Strasbourg’s opinion on reforms in Ukraine on October 30.
UW: The CoE monitors law enforcement reforms taking place in Ukraine. When will the CoE assess Ukraine’s “level of progress” in ensuring the rule of law and reforming its judiciary and law enforcement authorities based on the Füle List for the Eastern Partnership Summit in Vilnius?
— The CoE does not take decisions on how far Ukraine gets with the Füle requirements you have mentioned. We can comment on specific areas where the CoE works – on whether they are compatible with European standards. These areas include the Code of Criminal Procedure, the new draft law on Public Prosecutor’s Office, the law on the bar, the future law on the State Bureau of Investigation, and the law on the police eventually, as well as general issues such as legal framework and guarantees concerning the independence of the judiciary and rules to guarantee its impartiality. That something the CoE has the competence to comment on either through its assistance projects or through the monitoring process, the European Court of Human Rights, the Committee for the Prevention of Torture, the Committee on Human Rights and other bodies that are regularly in contact with the Ukrainian authorities.
UW: In March, the CoE launched a project to support the reform of criminal justice in Ukraine. How far has it got in terms of cooperation with the Ukrainian government, prosecutors and judges? Are they ready for the changes?
— In my opinion, this is about two things. The first one is the work that needs to be done to create a legal framework that is compatible with European standards, and the legal environment to facilitate respect for human rights, the rule of law, the rights of victims and respect for democracy in general in the context of criminal justice.
I must say that the Ukrainian government has been under certain pressure lately. This was not because this came as a surprise – there have been delays in taking the necessary steps for years. Since 2010, we have seen several rapid moves towards the adoption of this legal framework. They have relied on the previous work of the CoE and opinions of the Venice Commission as far as the Prosecutor’s Office is concerned. An important part of the work carried out had been done by these institutions together with the Ukrainian authorities, as well as PACE earlier. The basis was already there.
Over the past few years, all this work has intensified enormously. The attitude of Ukrainian authorities has been positive so far.
Another thing that is still to be done today is the implementation. The biggest focus should be at that. To implement the reforms, positive reaction of the top authorities will not suffice. Successful implementation takes people involved in everyday practices, including prosecutors, judges, lawyers and the police, to play by the established rules. The response of the hierarchy is important but not enough. So, the second phase of this project should focus on everyday implementation of these principles by legal professionals who deal with these matters, not only in the political sphere.
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UW: How critical is the current stage in the reform of the Prosecutor General’s Office? A new version of the respective bill is currently being considered by parliament. Have the Ukrainian authorities informed you that they integrated all recommendations of European experts and institutions to the bill? What does the CoE recommend in terms of reforming the Prosecutor’s Office in Ukraine?
— The reform of the Prosecutor’s Office is probably the most important part of the criminal justice reform because it will transform the Prosecutor’s Office from a Soviet-type prokuratura into a modern European institution. We have worked with the Ukrainian authorities intensely on this.
The law is very important because it will provide a framework for the exercise of the prosecution function in the future. The initial draft law was assessed positively by the Venice Commission and the Directorate of Human Rights. It is a very important step that already brings transformation to the Prosecutor’s Office. However, some issues still need to be addressed and the Venice Commission has identified these points clearly in its Joint Opinion.
These concerned the functions outside the criminal justice area which partially remained within the competence of the Prosecutor’s Office. In this respect both the experts of the Directorate of Human Rights and the Venice Commission had some questions. Another series of points concerned provisions on independence of prosecutors and particular issues in relation to disciplinary proceedings. These points had to be addressed in the bill submitted to the Parliament. But the main conclusion can be summarised as follows: “First and foremost, the provisions of the draft law constitute a significant step forward; they have clearly laid a firm foundation for transformation of the public prosecution service into the institution that meets the needs of a modern criminal justice system”.
The bill is now to be considered in the Verkhovna Rada. For this moment neither our experts, nor the Venice Commission have seen the final draft law prepared into which the CoE recommendations were incorporated. Hence, I encourage the Ukrainian authorities to duly take into consideration the recommendations outlined in the Joint Opinion, with a view to improving the Draft Law and fulfilling the commitments undertaken in the light of Ukraine’s European integration. We are looking forward to the prompt adoption and implementation of the new Law on the Prosecutor’s Office of Ukraine in full compliance with European standards. Let me reassure you that the Council of Europe stands ready to continue supporting Ukraine in its future endeavours aimed at effective implementation of the justice sector reforms.
UW: Constitutional amendments that have recently passed the first reading make the president in charge of appointing Prosecutor General and judges of all levels. Does the CoE really see this as a perfect way to eliminate political influence on the judiciary? What is the European recipe to protect judges from political influence?
— It is not correct to say that what the Venice Commission has supported was a mere transfer of powers from parliament to president. It is a much more comprehensive reform covering the powers of self-governing judiciary bodies. The idea is to depoliticize the judiciary. The objective is to give more self-governing powers to the judiciary, including the prosecution. This is what the reform is about. From this perspective, it does reduce powers of political debates and limits the possibility for interference in justice dramatically. That is why the Venice Commission supported the reform.
Once the Constitution is changed, a series of other laws will have to be amended . These include the provisions on statute of judges, the l powers of the Supreme Court. All these have to be seen in a package. Otherwise, the laws will not be in accordance with the Constitution. As a result, the judiciary should gain more power to govern itself without interference from politicians.
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UW: This question concerns the Yulia Tymoshenko case: Do European countries have laws and earlier practices of letting inmates go for medical treatment abroad and returning them to prison after the treatment is over?
— I don’t think there are any specific rules to regulate or prohibit such things. They should be approached in a very pragmatic way. If there is a need for medical treatment abroad, I don’t see why it should not be satisfied. There are certainly precedents of medical treatment offered to persons in another country in the European practice. But the existence of precedents is a secondary issue in my opinion. If the person concerned needs medical treatment abroad to preserve life or health, the European Convention on Human Rights demands that such need is satisfied. Whether this treatment is provided by ad hoc rules or existing legal framework it is up to the state to decide.
With regard to the treatment for Tymoshenko, there are certainly precedents like that in the European practice
The reform of the Prosecutor’s Office aims at transforming the Prosecutor’s Office from a Soviet-type prokuratura into amodern European institution
Successful implementation of the criminal justice reform takes people involved in everyday practices to play by theestablished rules
Christos Giakoumopoulos has been Director of Human Rights in the Council of Europe's Directorate General Human Rights and Rule of Law since 2011. Previously, he served as Director of Monitoring in the same Directorate General since 2006.Before joining the Directorate General of Human Rights, he was General Counsel and General Director for Legal and Administrative Affairs at the Paris-based Council of Europe Development Bank . Since joining the CoE in 1987, he had served in the Registry of the European Court of Human Rights, the Venice Commission and the Office of the Commissioner for Human Rights A. Gill Robles.