U.W.: The Ukrainian Parliament has approved the draft decree in which it has counted the measures and steps Ukraine will take to meet PACE requirements. This does not include decriminalization of Articles 364 and 365 of the criminal code. What is your assessment of this draft decree?
We have seen various commissions set up to meet all the obligations taken by Ukraine when joining the Council of Europe. It is a good sign that all the resolutions and recommendations for achieving full commitment are being taken seriously, but we also see that political reality is too often different. Some reforms stay behind because of political disagreements; or need significant funding; or are too difficult for the public to understand. Thus, we want to see clear steps forward, and not only decrees and working groups.
Decriminalization of Articles 364 and 365 of the criminal code met a different reaction — many experts were concerned that it would free many serious criminals. Mr Lutsenko pointed out that he does not want to see Gongadze's killer-policemen freed because of his unfair and illegal imprisonment. Mr Lutsenko emphasized that when he was a minister of interior he helped to put these people in prison using these very articles. Decriminalization would free them and he found that unacceptable. Mr Lutsenko and many other experts see two solutions: first, appeal or cassation courts in Ukraine send the judgments for reexamination or European Court of Human Rights declares the cases illegal and Ukrainian courts change their judgments. Or secondly, the opposition leaders will be given amnesty by the Ukrainian parliament due to many controversies and injustices in the procedure.
U.W.: Did you talk with Mr Pshonka about the reform of the Public Prosecutor’s office?
The reform of the whole prosecution system in Ukraine is one of the most important requirements. First of all prosecutors must lose their general oversight function. Prosecutors also should lose their general investigation function and be equal to defence lawyers in the court. Many steps in the pre-trial stage need to be changed in order to give the defence more rights and room for their work. Prosecutors must not decide whether the case will go to court: it should be up to the courts to decide. The whole reform of the implementation and change in the mentality should take place.
Yes, we discussed it with Mr Pshonka, and he and his team recognise that the new criminal procedure code will change a lot. He said that is institution does and will act in accordance with the law and if the law is changed, they will change, too. The minister of justice and the presidential administration showed their interest in changing the whole system of prosecution.
U.W.: You have dealt with this office in applying for a permit to visit Mr Lutsenko. Does it correspond with PACE standards that the Public Prosecutor could be in charge of such issues?
The Public Prosecutor very clearly declared that it is not in their hands, but added they will forward our request to the relevant authorities. According to Mr Pshonka, they can and will facilitate our request. Mr Lutsenko believed that the request could have been more positively assessed also because his case is not any more on the level of lowest court but on the appellate stage. In any case, we are happy that we have finally got access to prisons and we will be looking forward to seeing Ms Tymoshenko in May.
U.W.: How would you assess the right to justice being guaranteed to Mr Lutsenko when his appeal is judged at the appeals court? I mean what could be considered by PACE to be evidence that this court hearing might be just or not?
We will not interfere in the substance of the case as that is up to the European Court of Human Rights. As you are very well aware, it will be under preliminary examination very soon in the Strasbourg court. Then we will react according to this judgment in April and in full later on. If the ECHR declares the detention unjust and illegal, we will demand that Mr Lutsenko get a fair trial. And possibly be freed. We can hope from the appeals court that Mr Lutsenko's case will be reexamined as many experts (at the Danish Helisnki Committee) found that he did not receive a fair trial and that his sentence was out of proportion.Today, our immediate concern is that Mr Lutsenko (and Ms Tymoshenko) receive medical attention that is objective and professional.
U.W.: Has Ukraine move closer to possible sanctions from PACE during the last two-three months? What dynamics did you notice in Ukraine this time?
Ukraine made some positive progress but many plans and drafts need to come to force before we can positively conclude. The Criminal Procedure Code, which has been one of the obstacles, and efforts to adopt a new code that takes into consideration international expertise is a big step. Secondly, law on NGOs, peaceful assembly. The other positive improvements are the amendments to judicial reform in order to make appointment of judiciary more objective and the efforts to set up the Constitutional Assembly. The important step forward was the willingness to achieve dialogue, particularly the visit to Mr Lutsenko, new legislation, etc. One negative trend is still the lack of positive progress in all fields related to the imprisonment of the leaders of the opposition, a trend that seems to continue. Selective justice, the lack of a fair trial, etc., are also of a great concern. A negative was the attitude of denial from the Foreign Minister and lack of the chance to meet the president. Sanctions are in no-one's interest and they are applied only in case there is no dialogue. This time we saw some movement, but we will still wait and see. We will be back shortly and see how the promises are being fulfilled.
U.W.: What could be the red line for PACE after which sanctions could be passed? And what kind of sanctions might be possible?
The biggest activator is international reputation. Being such a big country Ukraine is not interested in having a negative reputation. First of all, the imprisonment of opposition leaders has overshadowed all other efforts and dominates most of the conversations Ukraine can have in Europe or in US. Secondly, the EU is looking in details at what the Council of Europe finds in the fields of democracy, rule of law and human rights. Thus, it affects further cooperation with the EU, different programmes and financial support. Lastly, if no interest in dialogue is found, PACE itself can also stop cooperating with Ukraine.
U.W.: If Tymoshenko, Lutsenko and Ivashchenko stay in jail but the overall competition in the field at the parliamentary elections 2012 were free, how might PACE assess such an election?
It is too early to start declaring how the elections will be conducted. We have different observations on what can put the elections into jeopardy and will examine the developments very thoroughly: the appointment of election commissions, drawing up voters lists, declaring some candidates unable to run, etc. These are all very serious issues. Mr Lutsenko found the only possible way for him to run the election to be if parliament adopts a law on amnesty. We will study this possibility from all sides. Our last resolution asked that all possible ways be found.
U.W.: Did you hear any concrete promises from Ukrainian officials on changing the five-year period of probation for judges, the 5 per cent election barrier or a ban on blocs in parliamentary elections?
We discussed possible changes to legislation after the Constitutional Court ruling with the Justice Minister and the presidential administration. We are concerned that the broad consensus could now change. Furthermore, re-opening the electoral law so close to an election can cause serious concerns.The presidential administration declared that the authorities are planning very soon to change substantially the way judges are appointed and how they are to serve their first five years.
U.W.: Foreign Minister Hrytsenko once said we have to distinguish between recommendations and obligations when it comes to PACE resolutions. Is guaranteeing the participation of former government officials and opposition leaders in elections a recommendation or an obligation?
In many countries politicians, including those from the opposition, have faced trials. The concern is not that politicians face trials in Ukraine, but that these trials were not fair and not in accordance with the European Convention on Human Rights. Many deficiencies were noted by international legal experts. If opposition leaders get fair trials, that is another matter, as no-one is above the law. Our demand is that opposition leaders would receive a fair trial and immediately receive the medical attention needed. As we have serious doubts about the fairness of these trials, we try to find ways to free opposition leaders and according to Mr Lutsenko the most feasible one is amnesty.
