President signs repressive ‘anti-terrorist’ laws
On Aug 22 President Petro Poroshenko signed into law a bill reinstating the military prosecutors. This comes a day after he signed bills which human rights organizations warn are an unwarranted restriction on people’s rights. The increase they make to the prosecutor’s powers could lead to criminal proceedings being questioned, if not in Ukraine, then in Strasbourg.
The reinstatement of military prosecutors negates one of the very few steps Ukraine has taken over the last 19 years to fulfil the commitment it gave on joining the Council of Europe in 1995 to reform the Prosecutor’s Office.
Instead of reducing the Prosecutor’s powers in order to bring this institution into line with counterparts in other European countries, the new laws serious extend these powers.
The main two laws of concern which Poroshenko failed to veto give the prosecutor much broader powers under martial law, a state of emergency or in areas where an anti-terrorist operation [ATO] is underway and enable prevention detention of terrorism suspects of up to 30 days.
Draft law 4311a gives the Prosecutor power to authorize searches, wiretapping or even detention without a court order. The bill is in breach of a number of provisions in Ukraine’s Constitution (29; 30; 31) while Article 64 makes it clear that these rights may not be restricted even under martial law, etc.
In his damning analysis of the bill, Volodymyr Yavorsky points out that there is no country in Europe which allows arrest without a court order. He believes therefore that evidence obtained under such circumstances could not legally form the basis of a later conviction. Even if domestic courts allow the evidence, Ukraine would be unlikely to win a case over this at the European Court of HumThwan Rights.
The move, he says, is away from Europe to the role of the prosecutor in Soviet times [more details here khpg.org.ua].
Draft bill No. 4312a introduces amendments to the law on fighting terrorism that will enable people to be detained for up to 30 days without a court order.
The decision to carry out such detention on warranted suspicion that the person has committed terrorist acts would be taken by the head of the central division or a division of the SBU [Security Service] or Interior Ministry in the Crimea; the relevant oblast or Kyiv and Sevastopol. This would be with the agreement of the prosecutor but without a court order. A copy of the decision would be handed to the detainee, and immediately passed to the investigative judge, and court of the relevant jurisdiction together with an application for a preventive measure to be chosen. Preventive detention cannot continue after the investigative judge, court has considered the application.
The apparent safeguards that the latter details give are probably largely theoretical and would be unlikely to stop people being detained without the court’s OK for up to 30 days.
A further bill signed into force over recent days extends the powers of the police in the ATO region.
These laws, it should be remembered, have been adopted despite the lack of vital reforms to all law enforcement bodies.
Ukraine is unquestionably facing unprecedented aggression and firm measures are needed. Nonetheless, the attack on its sovereignty and territorial integrity was triggered by the EuroMaidan movement and Ukrainians’ insistence on their chosen path towards European integration. This choice must not be sabotaged through the adoption of retrograde laws.