Call to veto unconstitutional bill extending Prosecutor’s powers


A draft bill passed on Aug 12 will, if signed by the President, allow the Prosecutor to authorize searches, detention, wiretapping and other activities linked with criminal investigation.  Draft law 4311a proposes amendments to the criminal code regarding a special regime of pre-trial investigation “under martial law or a state of emergency and in an area where an anti-terrorist operation is underway”.

The bill envisages that in an area [administrative territory] where a state of emergency or of martial law is in force, or where an anti-terrorist operation is underway, if it is impossible for a judge to carry out the powers envisaged by the relevant articles of the criminal code [163-164, 234-235, 247-248], and also with respect to remanding a person in custody for 30 days on suspicion of the offences set down in articles  109-114-1, 258-258-5, 260-263-1, 294, 348-349, 377-379, 437-444 of the criminal code, that these powers can be carried out by the prosecutor.

This means that in an area where an ATO is underway, a prosecutor will be able to consider an application for temporary access to a person’s documents and possessions; will be able to issue a search warrant; and to consider applications to carry out illicit investigative activities.

Such broad powers are in breach of articles 29, 30, 31 of the Constitution which clearly stipulate that any such warrants can only be issued by a court.  It also breaches the European Convention on Human Rights for the Prosecutor and is a flagrant infringement of human rights which is unacceptable in a democratic country.

Article 64 clearly stipulates which rights may not be restricted even under such exceptional circumstances:

Under conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be established with the indication of the period of effectiveness of these restrictions. The rights and freedoms envisaged in Articles 24, 25, 2 7, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of this Constitution shall not be restricted.

As well as permitting restrictions which article 64 specifically prohibits, the bill is also in breach of this provision in not providing any time frame for the restrictions on rights and freedoms.   It is therefore in breach of both the Constitution and fundamental principles of criminal procedure.

Both the European Convention and European Court of Human Rights case-law require that any detention, search or other investigative activity which infringes a person’s rights must be carried out solely on the authority of an independent body, as a rule, a court.  This requirement is also set out in the UN Convention on Civil and Political Rights.

While such international agreements do allow for observance of the strict standards to be waived during a state of war or under other exceptional circumstances, the Secretary of the Council of Europe must be informed that Ukraine is temporarily restricting the particular rights.  Such restrictions must be needed, and can only be for a short and clearly defined period.

This does not apply to the given draft bill since it is justified on the grounds that the courts are simply not fulfilling their functions.  A person’s rights and freedoms cannot be restricted as a result of the state’s problems with the functioning of its judiciary bodies.  

Volodymyr Yavorsky who has subjected the bill to close scrutiny notes that in the entire history of the Council of Europe not one country has restricted the force of a particular right or freedom on their territory.  This shows, he says, how extraordinary such measures are for the international community.

The Prosecutor is a body responsible for public prosecution.  Its functions lie in organizing and investigating crimes and presenting the case for the opposition in court.  The requirement that the most severe restrictions of rights during criminal proceedings are imposed solely by the courts is specifically in order to prevent abuse and unwarranted restrictions of rights by the investigation bodies and Prosecutor’s office.  The amendments which the draft bill in question proposes will destroy this mechanism of control.

The bill breaches fundamental human rights safeguards and would return Ukraine to Soviet times when such sanctions were provided by the Prosecutor.

One can say with certainty that any evidence gathered under such procedure will be illegal and could not be used to convict a person.  The bill, if signed into law, will thus lead to a situation where the courts should find the evidence inadmissible. If a Ukrainian court fails to do so, one can say with a high level of certainty that it will be forced to after the European Court of Human Rights finds this to be in breach of the Convention.  The person convicted on such evidence will therefore have to be released.

No European practice in fighting terrorism gives such broad powers to the prosecutor.  All the activities of investigative bodies, including the Prosecutor, are controlled by the court.  The absence of control always leads to such bodies exceeding their powers which leads in turn to widespread human rights abuse.

Yavorsky is scathing of the argument that the law is needed because Luhansk regional judges are refusing to carry out their duties. The explanatory note on the draft bill mentions the fact that the Luhansk regional court of appeal is refusing to hold hearings outside the courtroom.  There are possible venues for such hearings, and alternative places have been used by the Luhansk regional administration; relevant departments of the Interior Ministry, the SBU and the regional prosecutor.  It is obvious that a judge who refuses to carry out his or her functions at such a critical time for the country should not be holding that position.  Following the same logic, a prosecutor could be given the power to hand down sentences.

Another problem lies in the fact that the area where the ATO is underway is not clearly demarcated.  This makes It impossible to stipulate on which territory the law would apply. This will lead to even more rights violations.

In order to defend human rights and Ukraine’s Constitution, President Petro Poroshenko should use his power of veto and propose that the draft law be rejected. Measures should be taken as a matter of urgency with respect to judges who fail to fulfil their duty as enshrined by law.

Based on the analysis carried out by Volodymyr Yavorsky

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