Ukraine`s Prosecutor’s Office Has to Be Less Powerful Than It Has Been So Far
Mikael Lyngbo, Legal Expert for the Danish Helsinki Committee for Human Rights, former Chief of Police and prosecutor from Denmark, told The Ukrainian Week about the reforming of Ukrainian prosecution and the practical implementation of the new Criminal Procedure Code
On March 12, the Council of Europe launched a new project titled "Support for Criminal Justice Reform in Ukraine", which is aimed at assisting Kyiv in properly implementing the Criminal Procedure Code (CPC) that came into effect in November 2012. Leading Council of Europe experts recently met at the Ye Bookstore in Kyiv to share their opinions on how to reform criminal justice in Ukraine. The Ukrainian Week spoke with one of them, Mikael Lyngbo, Legal Expert for the Danish Helsinki Committee for Human Rights, former Chief of Police and prosecutor from Denmark, who was responsible for the preparation of a special report on criminal cases against Ukrainian top-officials in 2011-2012.
UW: What steps should now be taken to reform the Prosecutor’s Office and its investigative powers?
The reform of the Prosecutor General’s Office has been one of Ukraine's commitments since 1995 when it joined the Council of Europe. Furthermore, a number of draft laws from various circles have been submitted since that time. In Ukraine, a number of competing bodies send their drafts to the Venice Commission for comment – some of them are not supported by the government. Consequently, we have a series of comments on the situation in Ukraine and the Prosecutor General’s Office – and they are quite uniform. All of them point to the fact that the Prosecutor General’s Office in Ukraine still maintains all the functions of the old Soviet prokuratura (Prosecutor’s Office – Ed.) with a combination of big tasks within the criminal justice system, and a number of equally big tasks outside of it. It reminds one of the prokuratura which can be traced back to the system set up by Peter the Great to keep an eye on his administration. People involved in it were the prosecutors. Did they perform accordingly, fulfilling his orders? In that system, there was no separation of powers — the concept had not yet been invented. This type of prosecution serves the purpose of a strong state power. The Communist Party took it over directly, as it also supported the system of one power rather than separated powers. By contrast, European models are based on a system where each organization controls and balances the others. None of them becomes too powerful or too big individually. The prosecution has a certain role; the judiciary has a certain role controlling the prosecution, and the executive branch is controlled by others, but also has some power to control the others. So, this is an intertwined pattern of support. In Ukraine, the prosecution is one very strong organization in yet another incarnation of the prokuratura. It’s a special case not only because of its role within the system of criminal justice, but because it can use this role in the criminal justice system to support its function in the civilian area, and vice versa. For instance, it can use its functions to enter into any premises based on its inspection powers and request statements or search premises without being controlled by the judiciary. Therefore, in order to obtain the point of balance between the different components of the legal system, the Prosecutor’s Office has to be less powerful than it has been so far.
UW: What is your opinion on the concept of the State Investigation Bureau?
Ukraine has a problem of corruption, a tradition of corruption evident to anyone. One of the elements actually accepted in the Criminal Procedure Code (CPC) last year was the Investigation Bureau. Its function is to conduct independent investigations into cases of corruption. What has not been decided yet is the categories of corruption it should investigate. Should it look at any public official, from the very top to the very bottom, or only focus on the top level? Should it have other functions, such as the investigation of cases involving the police or prosecutors, which, as some argue, should be done by a body independent of either the police or the Prosecutor’s Office. None of this has been decided at all yet, but it is important that we start discussing these very elements and do so alongside a discussion on potential reforms of the Prosecutor General’s Office. This is important not only because they are interrelated, but because we should use the momentum to move in other areas if we start moving in one.
That is not undisputed, however, because the Investigation Bureau requirement should not come into force until 2017 under the new CPC. So, it has not been decided when that discussion will start, but the two discussions should take place at the same time.
UW: How much of an impact do you think the new CPC has theoretically and practically?
Clearly, there is an impact. This deals with the gap we are trying to cover using this project of Council of Europe concentrating on the implementation. I’m not sure how much this is realized, but it brings forth dramatic change in basic principles in a number of areas, including the treatment of suspects, equality of arms, the role of the prosecutor and judge when compared to other components, and process of prosecution and so on. One can easily make amendments to laws and normative acts regarding prosecution and the police, but the real change must happen in the minds of the actors: they need to understand that they no longer serve a strong state on the condition that the protection of an individual is weak. That is how it was in tsarist times, and under Communism, and that has been the case until now. But it is necessary to change this balance. It is a mental process which will take years, but we can already see the effect after three months and it looks rather positive.
There has been a major decrease in the number of people in detention which is very important because abuse of pre-trial detention was one thing for which Ukraine was criticized. Some other statistics have decreased, too. We should not draw conclusions from this very short period based on these initial figures, but in my opinion they clearly indicate that, for the time being, judges respect the idea that they can no longer continue to do what they were doing before. The new statistics for people put in pre-trial detention I have seen show a dramatic decrease, down to nearly one-third of the previous figure. Another aspect is that, until now, the practice for putting suspects in pre-trial detention has been to look into the law and quote it in the court’s decision without any specific justification. That, however, has been criticized in a number of cases by the Human Rights Court in Strasbourg because judges need to assess the details of an individual case.
Now we suddenly see that either the prosecution do not request judges to put people in pre-trial detention as often, or they actually take their new task seriously and look into what kind of information the prosecution has to confirm that the suspect intends to escape. If they do not get the proper answer from the prosecutor, they should release suspects, and apparently they are doing that. Also, judges should ask prosecutors what kind of information the latter have to confirm that a suspect tried to influence the investigation by putting pressure on witnesses. If there is no proper answer to that, the suspect should be released as well. Apparently, there has been an effect, although I don’t know whether that was because they need to accommodate to the situation or they actually mean to change their basic attitude. So, yes, there are positive effects. But I’m still not certain that the actors realize how much pressure from outside – we are ready to continue it – and from the inside matters in establishing a dialogue with civil society, the media and public opinion.
UW: What should be done to reform law enforcement and break down its post-Soviet practices in Ukraine? Perhaps, there are some useful tips from the Danish experience regarding police and security?
You cannot take just one system. Europe has a number of them. If you compare the systems of different countries you will see how different they are. I have myself worked in Albania, South Africa, Iraq and Denmark – a number of countries with very different systems. The decisive factor for your system is to respect basic principles, such as equality of arms, protection of citizens and many more. These were described in the recommendation of the Council of Europe from 2000, and that is more or less what has been described in later opinions and recommendations regarding Ukraine ever since. You may be astonished to hear that the Danish legal system, prosecution and police offer very few formal guarantees compared to the Ukrainian system because they are evaluated by another element which is much more important, and that is the tradition public officials stick to. And that is why I mentioned this change of mindset as a very important process in Ukraine. It should be the tradition of public officials to not be corrupt and be interested in the suspect as someone who has rights and that they should be respected. They should be able to work without all these formal guarantees. The reason why we thought they should be part of the Ukrainian system is that they should be integrated into the mindset of its actors to finally switch from one system to another.
At some point, there was a suggestion that we should take some Ukrainian prosecutors to Denmark. I opposed it because the Danish system has so few formalities that they will learn nothing. They will see the system that operates successfully with respect for formalities but they will not find these formalities written in the Danish law. I recently discussed this with the Danish Prosecutor General at a meeting where he presented a number of the latest reforms. I could only say that, as we analyzed the formalities that should be part of Ukrainian legislation, I found none in the Danish system, and he agreed with me. The same thing concerns the Danish Constitution which dates to 1953. It has very few guarantees of civil liberties. So, you cannot take something from one system and implement it in another. If you ask the Constitutional Court in Denmark, how often they have found Danish laws unconstitutional, it will have to say once in a hundred years perhaps. The Danish system is so different from the Ukrainian that you cannot compare the two. Each national system is the result of a long history and tradition, as well as new history and the analysis of present problems.
UW: Does the Council of Europe have any tips on how to solve the problem of selective prosecution?
There are general principles of equality. You can look at the record of the Strasbourg Court of Human Rights and see that it assesses individual cases rather than judicial systems. You will find that cases where they could prove selective justice have been very rare. However, one of the few cases where they did find selective prosecution, i.e. the violation of Art. 18 of the European Convention on the use of a law provision in conflict to its purpose, was the Lutsenko case. Thus, there are protections against the misuse of legislation or unfair application of legislation to some people and not to others. That is another basic principle of equality.
UW: How can you comment on the practice of using electronic tags in European countries? Doesn't this violate human rights?
No, it doesn’t. Actually, it is currently used in Denmark and administered by the penitentiary service. The latter decides whether a charged person can serve his or her prison service at home. It is difficult for me to see this as a violation, especially given the fact that the alternative is to be in prison. We know that there are a number of negative consequences to being in jail. The person is involved with criminals and the risk of going back to prison at some point is immense; and very often a prison sentence is more of a punishment to the family than to the person charged. Prisoners have very few problems in jail as they are fed and entertained; they don’t have to make choices, while the really hard work falls on the wife back home and the children who are left without financial support and protection, without a father to take care of them. Seen from this angle, the idea of wearing electronic tags should be preferred, unless it violates and offends the public feeling of justice. That should be taken into account when a relevant decision is made. All in all though, this allows a convict to be with his family, yet restricts him from leaving. Also, he can receive education as part of his prison sentence, which is frequently used in Denmark. This helps prevent the person from returning to prison or getting involved with the criminal world. In that respect, I only see positive impact from electronic tags.
UW: Do you see any positive impact from training Ukrainian prosecutors in European countries? Is this really an effective way to change the legal system in Ukraine?
It should definitely not develop into any kind of tourist trips. But, to me personally, it was an eye opener that helped me understand how the international system administered by the Council of Europe and the Court works. As for your national system, understanding what is happening so far away should be an integral part of it. Other countries, too, have development experiences similar to that of Ukraine. If you go 25 years back, I can assure you that the problem of pre-trial detention not justified by court was a practice in Denmark, too. At that point, I was working as prosecutor with cases where we really detained people. In just my small branch of the Copenhagen prosecution office, we constantly had around 120 people in pre-trial detention. As soon as we said it was a narcotics case everyone knew that there was the risk of escape and of pressure on witnesses. So, we did not think we needed to justify to judges why we were putting people in pre-trial detention. Only gradually did we realize that we had to adapt the system to demands from Strasbourg. Still, we did not do that until 25 years ago. Ukraine is now in a similar situation. It has to understand the reasons behind the European Court’s decision on every individual case and the implications behind its decisions. Every judge and prosecutor has to understand that Strasbourg case law has an effect on their decisions in each and every case. And this should be made visible to them.
So, this training can have a positive effect. Yet, we cannot take 6,000 prosecutors to Strasbourg, so we’ll have to concentrate on certain levels and responsible officials. Then, training for trainers will be a very important element of the programme. We have no intention to train every individual prosecutor or judge. Instead, we are going to train people who will then train prosecutors. That is how we can cover this ambitious task. As far as I know, part of the project is to bring foreign prosecutors to Ukraine to give lectures and share their experience with Ukrainian colleagues. Over a year ago I managed to establish a dialogue with Ukraine’s Prosecutor General’s Office although I was here to monitor trials then. I had a number of meetings with Messrs. Kuzmin, Pshonka and others, and even though we were on different planets in many ways, we did establish a sort of colleagues' discussion because they realized that my background was also that of a prosecutor. So I could tell them that it is not that I don’t understand their tasks; to me it was not illegal to prosecute and run investigations; I saw it all as part of public service. So, I did understand their function. What we discussed was only how it should be performed. And they accepted the fact that I was not questioning their basic function in society. We are just discussing tools and methods and limits. On that, we definitely disagreed.
Last month I was in Turkey working with the local prosecutors, particularly on terrorism because I have background in that, too, when I worked in the security service. I do understand that Turkey has a problem of terrorism and accept that some organizations in Turkey and other countries are involved in terrorism. The question here is what tools can be used against it.