On 15 December, the PACE Monitoring Committee unanimously approved a Draft Resolution entitled “The Functioning of Democratic Institutions in Ukraine" available at http://ukrainianweek.com/Politics/38273 or http://assembly.coe.int/Communication/16122011_UkraineInstitutions_E.pdf . On 26 January, the Draft Resolution will be presented for approval at the Palace of Europe. In his interview for The Ukrianian Week, Hryhoriy Nemyria, ex-Vice Premier of Ukraine for European Integration, talks about PACE’s priorities.
U.W.: Do you find the Draft Resolution well-balanced? Does it reflect all the important aspects of our political life?
The PACE Resolution on the situation as perains democracy in Ukraine is long overdue, in light of the catastrophic situation with respect to democratic values, human rights and rule of law principles, which were established in Ukraine after President Yanukovych came to power. In my opinion, PACE should have conducted an urgent debate on these matters a long time ago. Such a discussion in the Assembly last year or early this year, could have significantly influenced the situation and stopped clearly negative tendencies. Therefore, the consideration of this topic during the January session is obviously welcome. However, in my opinion, it should have been a comprehensive report on Ukraine honoring its obligations and commitments to the Council of Europe.
The Draft Resolution covers many extremely important issues of a political and legal nature. Its main flaw is the lack of effective instruments to force the current administration to implement this resolution after its adoption. In other words, there is no threat of sanctions, without which this resolution will remain another list of recommendations on reforms. Such recommendations were mentioned many times in previous PACE resolutions on Ukraine, which covered all the systemic problems which Ukraine is once more reminded of in the new document. Only the threat of sanctions and strict time limits for implementation can force the current Ukrainian authorities to make tangible changes. Otherwise the response will again be some other action plan, and that will be that. In October last year, the Assembly already passed a resolution with the same title – almost all of its provisions remained unheeded and the Assembly should strongly react to this.
U.W.: Several paragraphs of the recommendations are dedicated to the prosecution of former government officials in Ukraine…
As to the prosecution of former government officials, in my opinion, the Draft Resolution misses the fact that systemic legislative and practical shortcomings, which are indeed present in the Ukrainian legal system, are not the main reason for all the flagrant violations of the right to a fair trial and other human rights, which are evident in relevant cases. Legal shortcomings do not explain the lack of legal grounds for prosecuting Tymoshenko, Lutsenko, Ivashchenko, Korniychuk and others; do not explain the use of absolutely unjustified restrictive measures, including the repeated detention of a person who had already been imprisoned; do not explain the denial of proper medical assistance and treatment; do not explain the blatant violation of privacy in the form of the unauthorized publication of photos and videos of the person who has been detained; do not explain the violation of the presumption of innocence in statements made by the President and leaders of the Prosecutor’s Office; and many other things. If the current, albeit imperfect Constitution and laws of Ukraine had been observed, this would not have happened. But all this is a result of the targeted terrorization of the opposition and its leaders. And this should be mentioned in the resolution. The opposition is an important institution in a democratic society and facts of its severe oppression should be debated in the Parliamentary Assembly.
U.W.: The Draft Resolution suggests that the mechanisms and tems of detention are defined in laws, Ukraine resorts to the excessive use of detention on remand. Can relevant legislative changes be expected from the current parliament? What real mechanisms exist to change this practice, which runs counter to European standards?
The Draft Resolution mentions a number of flaws in the pre-trial detention system. The resolution of this systemic problem requires both legislative changes (in particular, a new CCP) and the due enforcement of existing laws, as well as of the case-law of the European Court of Human Rights, the judgments of which, including in cases against Ukraine, set clear requirements regarding the use of detention on remand. A lot can be done by training and raising awareness among judges and prosecutors. As to prosecutors, should the current leadership of the State and of the General Prosecutor’s Office make use of at least a fraction of the efforts they direct towards suppressing the opposition to convey to prosecutors the need to use alternative restrictive measures or, let’s say, to prosecute cases of torture or ill-treatment in police custody, these problems would have been partly solved without any legislative amendments. But they are simply not a priority for the political leadership and heads of law enforcement agencies – their main task is to retain the monopoly of the current regime’s power by all possible means.
U.W.: The Draft Resolution states that there is a lack of equality between the prosecution and defence in Ukrainian courts. What should be done to bring to life a genuine adversarial trial between the defence and the prosecution?
Changes must be made to procedural codes, but it is also necessary to ensure genuine guarantees of the independence of judges from prosecutors. What independence can there be if the three chief prosecutors from the General Prosecutor’s Office sit on the High Council of Justice and can at any time initiate disciplinary proceedings against judges who deliver independent decisions and do not follow directions from prosecutors? When a Deputy Prosecutor General announces at a press-conference that the whole chamber of the Supreme Court may be prosecuted for their illegal decisions? No matter how perfect the new Code of Criminal Procedure will be, there can be no adversarial trial in a system, where courts are dependent on prosecutors through disciplinary liability and from executive authorities – through lack of sufficient funding.
COMMENTARY
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.
