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27 January, 2012  ▪  Спілкувалася: Alina Pastukhova

The Presumption of Guilt

Thomas Hammarberg, the Commissioner for Human Rights at the Council of Europe, talks about his mission in Ukraine, the local judiciary system and the Tymoshenko case

Thomas Hammarberg visited Ukraine to monitor the work of the courts and prison facilities, based on which, he will draft a report on the situation in Ukraine. He has also promised to focus on other issues, including the freedom of peaceful assembly. While monitoring the situation with human rights in Ukraine, Mr. Hammarberg talked to several officials. At a meeting arranged by The Ukrainian Week and Ye Bookstore, the Commissioner talked to NGOs and heard their complaints on human rights violations in Ukraine.

I spent a week in Ukraine to get a better idea about how the judiciary system works. I’ve met virtually all crucial parties to the process, including the Ministers of Justice and Foreign Affairs, the Prosecutor General, the Head of the SBU, judges of the Constitutional Court, Supreme Court and High Special Court for Criminal Affairs, as well as MPs from the party in power and opposition. I also talked to NGOs, the mass media and lawyers. My plan is as follows: my colleagues and I will go back to Strasburg and start working on the report, based on what we’ve seen in Ukraine. It will be disclosed early next year.  

My report will largely focus on the role of the Prosecutor in the judiciary. Its domination comes from the soviet model, I guess. The function of the Prosecutor’s Office in Ukraine is still to supervise the system. This mechanism is totally obsolete and unacceptable in a democratic society. We’ve found that acquittals account for less than 1% of all verdicts in your country. In most other cases, the verdicts mostly correspond with the demands of the prosecutor. Needless to say, this is a big red flag: something’s being done wrong.

The protection of the independent powers of judges is a fairly important priority in justice. This is the need for a strong barrier to separate politicians from judges. I’ve heard from many people I spoke to, that judges are under significant pressure from politicians. This will also be mentioned in my report.

The police, as a law enforcement agency, are the first link in the judicial chain. What I heard about this link from many, is associated with the continued brutal and inappropriate treatment of people that are arrested. I’ve heard many complaints about corrupt police officers. These problems must be solved as well.

The presumption of innocence should be the principle guiding preliminary detention.  International standards are extremely strict in this respect: a person is deemed innocent as long as his or her guilt is not proven. Until that happens, a person cannot stay under arrest. Sometimes, a pre-trial investigation reveals the need for exceptions from the rule. However, these exceptions should be rare and applied in a very limited range of cases, when there are substantiated concerns that the suspect can escape, is likely to destroy evidence or exert pressure on witnesses. This is very important for the international community in cases as important as those against Tymoshenko, Lutsenko and Ivashchenko. None of them contain circumstances that justify their detention until the court announces its verdict.

The presumption of innocence also means that the conditions under which people are detained should be humane. I discussed this with Nina Karpachova, the Ombudswoman, who had visited the biggest detention center before our meeting. She told me that the place was so overcrowded, that suspects had to take turns sleeping; they are simply short of beds. This is a big problem from the human rights perspective. People under preliminary detention also have the right to medical aid. All these problems with temporary detention centers are the reason for the increasing number of complaints filed to the European Court of Human Rights, which has ruled decisions on this many times.

Another important issue that has caused a lot of people to apply to the European Court, was the length of proceedings. The judiciary must be both independent and objective. It should also work effectively. The non-enforcement of verdicts is another problem of the inefficiency of courts.  

I know that the government is in the process of drafting new laws aimed at improving the situation in Ukraine. One important aspect in legislation is how it will be enforced once in effect. Some view this with cynicism. They say it doesn’t matter whether the laws are good or bad, because they’re never implemented anyway. I don’t agree with this. I think it’s important that laws meet international standards. This allows lawyers, NGOs and everyone involved in the implementation of democratic principles in Ukraine to rely on international standards in their work.

I truly hope that all politicians will unite to support our recommendations when we submit them, and implement them through laws and the everyday work of courts and enforcement agencies.Needless to say, I want to believe that they won’t do this simply to please Brussels. I believe their true goal will be to set up the foundation for protecting the rights and freedoms of their nation.  At our meetings, government representatives said they were looking forward to seeing our report as soon as possible.

The EU will read our report on Ukraine. They will take our recommendations into account. This could affect relations between Kyiv and the EU. I say this based on my experience in other countries. The value of the Council of Europe is in building our analysis out of real facts without tackling political aspects.  

Many NGOs in Ukraine complain about the pressure from the government, which interferes with their work. Their right to peaceful assembly are violated. I don’t want to give all the details of everything that will be written in my report, but we’ll definitely focus on these problems.

Civil society plays a crucial role in any country, including Ukraine. I was impressed by the representatives I met from human rights NGOs. They act constructively; they know what to do to change the situation. Just like us, they are doing their best to avoid politicization. They campaign for what I do too, in other words, for authorities to listen more carefully to the recommendations of NGOs and get involved in an active dialogue with them. I think groups like these will save democracy where political parties fail.

I feel there is a need to pass a very specific law to prevent corruption, with the real liability of ministers and top officials in law enforcement agencies. We will provide recommendations on issues related to fighting corruption, particularly in the judiciary.

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