Ukraine’s Permanent Representative to the Council of Europe: “Expert Proposals on Amendments to Election Legislation Should Be Ready by May”

8 April 2013, 15:42

U.W.: Mr Tochytskyi, Prosecutor General of Ukraine Viktor Pshonka recently visited the Council of Europe. How would you sum up the results of his visit?

Let me first specify that Pshonka was accompanied on his visit to Strasbourg by First Deputy Speaker of the Verkhovna Rada Ihor Kaletnyk and Head of the Presidential Administration’s Chief Directorate for Justice Andriy Portnov. They held consultations on ways to reform the Prosecutor’s Office in Ukraine.

U.W.: It appears that these consultations have just started, even though the Council of Europe has insisted on reforming the Prosecutor’s Office in Ukraine since 1995…

Not exactly. They are a continuation of our work. One cannot say that nothing has been done. It is the same as saying that we had the Criminal Procedure Code from 1960 all the way until 2012. Instead, by the time the new code was adopted, the old one contained perhaps some 20 per cent of Soviet articles, because it had been constantly amended. That we didn’t have a new coherent code was another matter… The same goes for the Prosecutor’s Office. It has been virtually changing ever since Ukraine joined the Council of Europe. The new Criminal Procedure Code also envisages changes in how the Prosecutor’s Office operate. It entered into force last November and now we have gathered at a high level in order to consider what changes should come next. We have talked about the local bodies of the Prosecutor’s Office, their institutional and structural organization, authority, status, functions, guarantees of the accountability of prosecutors and so on. Participating in the consultations were Secretary General of the Council of Europe Thornbjorn Jagland, Director General of the Council of Europe’s Directorate General of Human Rights and Rule of Law Philippe Boillat, Chief of Directorate for Independence and Efficiency of Justice Stéphane Leyenberger and Secretary of the Venice Commission Thomas Markert.

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U.W.: Is there progress in separating oversight and investigation as two distinct functions of the Prosecutor’s Office in Ukraine? This is something Ukraine undertook to do back when it joined the Council of Europe. Is there a chance that this requirement will be fulfilled by November when the Eastern Partnership summit is scheduled to take place in Vilnius?

The very fact of consultations at such a high level and the participation of top representatives of the Council of Europe point to the fact that this international organization is ready to support Ukraine in rapid implementation of this reform.

U.W.: But there is little time left until November…

We are doing everything we can to make it on time. First, the conference on reforming the Prosecutor’s Office led to a certain timeframe being agreed upon. At this stage, we exchanged opinions and experience with representatives of the countries from which experts came to us, like Denmark, and Spain and others. The experts heard each other and our continued cooperation should lead to proposals. The Council of Europe has promised to present its proposals by May.

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U.W.: Did the discussion in Strasbourg touch upon separating political responsibility from criminal liability, something experts of the Council of Europe are working on now, also with Ukraine? The Venice Commission recently published its own study on the topic. Rapporteur Pieter Omtzigt recently visited Ukraine, a state in which political decisions, in fact, furnish grounds for criminal persecution…

I can say that the position of the diplomatic corps – not only Ukrainian but also that of other Council of Europe members – does not have the defining force. Today, there is no clear understanding of separation between political responsibility and criminal liability or a definite legal framework on this issue in all member states. The Parliamentary Assembly started working on this topic following reports that there is no unified legal framework. Considering the conclusions reached by the Venice Commission, experts in various departments are now studying existing practices and standards in 47 countries. At this stage, the task of developing a standard has only been set.

U.W.: When will this document be ready?

According to preliminary information that we have, specialists from the Law Department are to submit an action plan by the summer.

U.W.: Are you talking about the report by Dutch Christian Democrat Pieter Omtzigt?

His report will be part of the Council of Europe’s overall effort on the way to precisely this kind of separation. Omtzigt has to look at all countries. I know that he recently visited Iceland, a country experiencing similar problems. The Venice Commission concluded that problems like this occur not only in Eastern Europe but in the majority of countries. The rapporteur has to offer an algorithm that will permit developing a common standard. Proposals will be passed to the working bodies, the Committee of Ministers, the Directorate General of Human Rights and Rule of Law, etc.

U.W.: PACE President Jean-Claude Mignon has just returned from Ukraine. Have you already seen him?

Certainly, and I can even give you the date and time. He is satisfied with his visit. Mignon had meetings with the top leadership of Ukraine, was able to discuss progress on the Council of Europe’s Action Plan for Ukraine 2011-2014, held negotiations on cooperation between the Council of Europe and the OSCE, in which Ukraine currently presides, on resolving the Transdnistr crisis and so on. Incidentally, while Mignon was in Ukraine and Prosecutor General Pshonka in Strasbourg, the Council of Europe’s Action Plan for Ukraine was presented in the European Commission in Brussels. Ukraine’s leadership said it was prepared to satisfy decisions by the European Court of Human Rights, and Mignon advocated signing the Association Agreement between Ukraine and the EU.

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U.W.: Speaking to Ukrainian journalists in Kyiv, Mignon said he would like to see Ukraine abandon the practice of selective justice which it has been using, in the opinion of many European leaders, against former Prime Minister Yulia Tymoshenko and former Minister of the Interior Yuriy Lutsenko. Judging from your experience of interaction with high European officials, if the Court of Cassation released Lutsenko from prison on 2 April, could this help sign the Association Agreement with the EU?

As far as the appeal by the former Interior Minister is concerned, it is not the job of a diplomat to offer predictions. The adjudication of an appeal in the highest specialized court for civil and criminal cases is a matter that is considered by a court of the highest national position. In this case, like both PACE President Mignon and Secretary General of the Council of Europe Jagland say, the matter lies on the legal plane. As long as it remains on this plane, I would not venture any estimates.

U.W.: Ukraine is among the top five countries in terms of the number of appeals submitted to the European Court of Human Rights. Judging from the pilot case of Ivanov v Ukraine, Ukraine apparently is the only Council of Europe member that fails to satisfy the court’s decisions. Can you confirm this information?

I think I can. I am not inclined to say that Ukraine holds a record here. There are two approaches to estimating the number of appeals. One is based on the overall count, and here we are among the top five or six countries. The other one determines the proportion of cases relative to the size of the population. On this count, Ukraine ranks 17th. Now about satisfying court decisions. Ukraine started fulfilling them as a matter of principle last year. As of today, Ukraine has paid over €13 million in damages under the Law “On the Decisions of the European Court”. The number of appeals has dwindled significantly thanks to the adoption of a new form of appeal submission available to citizens of Ukraine through the adoption of the new Criminal Procedure Code. In the past year, 13,000 persons were released from pre-trial detention units in prisons. As far as the case Ivanov v. Ukraine is concerned, the Ukrainian parliament passed the Law “On Guarantees of Satisfying the Decisions of the European Court of Human Rights” on 5 June 2012. This law permits solving problems with satisfying court decisions depending on the financial capacity of the state. Payment of damages depends on the financial receipts of the budget. This is one of the most complicated issues. According to its Constitution, Ukraine is a social state. But when the Constitution was adopted, the real capabilities of the country were not recognized in all aspects. This is why situations like the Ivanov case, in which a person was due compensation but was not paid for a long time, have piled up in such proportions that this case was chosen as a pilot one. The situation was recently considered at a meeting of the Council of Europe’s Committee of Ministers. We submitted our plan for paying damages under court decisions. We have the legal framework for that. At this stage, our plan was found satisfactory. Now we need to find the financial resources. Let me tell you that this issue was hardly addressed by anyone earlier. Many cases have accumulated.

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U.W.: How much progress is Ukraine making in drafting an Election Code? Both the Venice Commission and the chiefs of the foreign affairs office of the European Union have long been insisting on this.

Indeed, recommendations on adopting one Election Code have been voiced multiple times both in the Council of Europe and other European institutions. In March 2013, a working group was formed to address this task. The Cabinet of Ministers of Ukraine issued a regulation which sets a firm deadline of 30 April 2013 by which time all members of the group must submit their proposals regarding amendments to election legislation with due consideration for comments made by the last OSCE mission to Ukraine and other observers. In other words, in developing new laws, Ukraine will be relying on classification principles which will permit bringing together all regulations on elections in one code. The Council of Europe’s Action Plan for Ukraine contains points along this line as well.

U.W.: So, if everything goes according to the plan, Ukraine may come up with new, unified expert proposals concerning amendments to election legislation by May?

Experts are working, but I don’t know if all the proposals will be put together by then. Many institutions are involved. It is hard to know with certainly how rapid the progress will be. Then, the Venice Commission is to join in the analysis of expert proposals. Evidently, we will have to show our results by November when the summit is scheduled to be held in Vilnius so that the Association Agreement with the European Union can be signed. This is a priority.

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