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28.04.2005 | Evhen Zakharov, the Kharkiv group for human rights protection

Will the prosecutor’s office be reformed?


This question was discussed at the round table “Reform of the constitutional status of prosecutor’s office and its role in the system of human rights protection”, which was conducted on 2 February 2005 by the Parliamentary committee in charge of human rights, national minorities and interethnic relations. People’s deputies, officers of law-enforcing organs, representatives of human rights protecting organizations took part in the round table. Some participants endorsed reforming of the prosecutor’s office, and some considered necessary to preserve the general supervision.

The round table was opened by Head of the Committee Gennadiy Udovenko. In his opinion, court reform cannot be completed without solution of the question concerning status and competences of prosecutor’s office. The PACE more than once told about the necessity of bringing Ukrainian prosecutor’s office in conformity with European standards. The adopted Constitutional reform excludes such reforming of prosecutor’s office. Mr. Udovenko pointed out that the changes, introduced into the Constitution, confirmed the wish of the state to keep the prosecutor’s institute unreformed. “Reanimating the functions of general supervision under the guise of protection of human rights and fundamental freedoms, we are returning to the old system of Soviet prosecutor’s office. Such system does not comply with European standards and European practice”.

Ex-General Prosecutor of Ukraine Mykhaylo Potebenko stated that reform of prosecutor’s office should be carried out in the direction of its deprivation of investigation functions: it is necessary to detach investigating subunits of prosecutor’s office, Ministry of Interior, tax militia, USS and to unite them into the Investigation committee, inside which the division into the units should be done again. And the general supervision should be kept untouched, since, in the opinion of M. Potebenko, the acts of prosecutor’s response are the most efficient method of human rights protection, which snaps into action at once after prosecutor’s interference. According to his words, in 2004 the prosecutor’s organs restored rights of 886000 Ukrainian citizens, and 45 officials were brought to responsibility. I reckon that the speech of Mr. Potebenko evidences that he confuses citizens’ rights with their interests.

The majority of the participants, in particular, Yuri Shemshuchenko, the director of the Institute of state and right of the National Academy of Sciences of Ukraine, Tetiana Korniakova, a deputy of the General Prosecutor, Oleksandr Gashitskiy, the first deputy of the head of the DSAU, and Tetiana Varfolomeeva, the rector of the Academy of advocacy, somehow or other expressed the same opinions about the necessity of preservation of general supervision for the protection of human rights and reforming of the investigation system. Only head of the Main investigation department of the Ministry of Interior Viktor Zakharov remarked that he did not know, how it was possible to create the united Investigation committee, when investigating organs of the Ministry of Interior were financed only by 36%, and one thousand out of 12 thousand workers of the organs of pre-trial investigation left the service every year. It is interesting that academician Shemshuchenko said that court system had turned into a “monster” and the people had been moved away from court.

The opposite viewpoint was expressed by representatives of the “monster”. Deputy head of the Constitutional Court Volodymir Shapoval said that there were two components of the problem: political and legal ones. The political component lies in the fact that prosecutor’s office is interpreted as a political tool, since the functions of general supervision are used just in that way. That is why this aspect attracts more attention than human rights protection. No Constitution in the world envisages political responsibility of General Prosecutor’s office before the Parliament, which responsibility exists in Ukraine, and this means, in fact, that prosecutor’s office has the political functions. Juridical side of the problem is that the Constitution gives the double standards of authorities of prosecutor’s office. According to item 9 of the Transitional provisions to the Constitution, “prosecutor’s office continues to execute the function of supervision over observance and application of law and the function of preliminary investigation until introduction of the laws regulating the activities of state organs concerning the control over law observance and until forming of the system of pre-trial investigation”. So, insertion of item 5 into Article 121 of the Constitution, in which prosecutor’s office gets the additional function – “supervision over the observance of human rights and freedoms of citizens, observance of laws concerning these questions by the organs of state power, organs of local self-government and their officials”, is absurd. The very formulation of this item is contradictory, it demands interpretation, not to mention the fact that the organs of state power do not observe laws, but execute them. In the opinion of Mr. Shapoval, the conception of reforming of prosecutor’s office does not exist today. And, instead of preservation of the general supervision, which contradicts the European standards, it is necessary to reinforce court protection of human rights, to realize the profound court reform, and then the supervision functions of prosecutor’s office would be needless.

Judge of the Supreme Court Viktor Panevin remarked that the Supreme Court had given the negative conclusion about draft 4180. Yet, since the draft of changes of Constitution was adopted, the present composition of the Parliament may not, according to Article 158 of the Constitution, introduce changes to Article 121: it would be possible to do that only after the parliamentary election-2006. Mr. Panevin pointed out that it was necessary to protect the General Prosecutor from the arbitrary actions of state officials, and, on the other hand, the relations between prosecutor’s office and courts should be based only on procedural principles. He gave very critical assessment of the work of investigation organs of the Ministry of Interior and prosecutor’s office, stating that every tenth case was sent for additional investigation. The investigation functions should be taken away from these agencies, and a special organ should be created.

Deputy of the Ministry of Justice Inna Emelyanova commented that one should understand the difference between the agency control and the protection of human rights, which protection should be realized in court. She pointed out that in 2004 courts had considered about 3 millions of civil cases. Court system must be changed, it is abnormal that more than 30 thousand cassations has accumulated in the Civil chamber of the Supreme Court. It is necessary to solve the problem with financing: now courts are financed only for 30%. She believes that court protection is much more efficient by all characteristics except cost.

I, in my speech, turned the attention to the fact that Ukraine had voluntarily assumed the obligation to reform the institute of prosecutor’s office in accordance with the European standards. And from this viewpoint the adoption of the constitutional norm contradicting this obligation looks rather strange. This was already stated by the Venetian commission, which wrote about the repeated reminding in the PACE resolutions about the necessity of fulfillment of the obligation of Ukrainian power organs to change the role and functions of prosecutor’s office and that the widening of functions of prosecutor’s office might be regarded as a step backwards, but not towards the observance of historical functions of prosecutor’s office in a law-abiding state. In the opinion of the Venetian commission, the proposed changes concerning widening of the role of General Prosecutor taking into account part 1 of Article 156 of the Constitution demands the organization of all-Ukrainian referendum for its adoption. On the another hand, the entire course of the discussion shows that the conception of reforming of prosecutor’s office does not exist at all, so it is necessary to make a step backwards for elaboration of such conception, and then to create the law draft “On prosecutor’s office” again. As to the widespread idea that the constitutional reform, which was adopted on 8 December, must be realized, I reckon that one should not think that the changes to the Constitution have been approved finally. Draft No. 4180 was essentially changed, and these were not only editing changes, but the substantial ones, so the draft of 8 December would demand new consideration by the Constitutional Court and new voting in the Parliament.

I also pointed out that the suggested changes were extremely contradictory because of the following reasons. Prosecutor’s office has, in particular, the functions of maintenance of state accusation in court and representation in court of other state interests according to laws. And who is the violator of human rights? The state – state organs and their officials. So, how prosecutor’s office can simultaneously defend both human rights and interests of the state? It cannot bifurcate, and it cannot be independent and unbiased. In general, if to consider attentively the formulation of Article 45 of the law draft “Realization of supervision”, one can see that the authors of the draft do not distinguish rights and interests, do not understand that human rights are violated by the state and, in fact, the old good Soviet supervision is returning under the mask of human rights protection. One can draw this conclusion reading the last part of Article 45: “Control over the observance of laws is carried out after the complaints and information about violations of laws, which demand prosecutor’s reaction, and, if there are sufficient grounds, on personal initiative of a prosecutor. Prosecutor’s office does not replace the organs of departmental administration and control and does not interfere into the economic activities, if such activities do not contradict the operating laws”.

In the end of my speech I turned the attention to the special place of prosecutor’s office in the system of power organs. It is not a part of executive or court power – more than once prosecutor’s organs did not answer informational requests just by this reason. The General Prosecutor’s office does not register its normative-legal acts in the Ministry of Justice. Finally, it illegally classifies the information about its activities. As an example I told about General Prosecutor’s order No. 89 of 28 December 2002 and tried to read out some items from this order. Yet, prosecutor’s officers began to cry indignantly: “From where did you take that?”, “It is incredible!”, etc. In order to confirm my words I gave everybody bulletin “SviP” No. 2 for 2004, where this order had been published (in what follows we are printing its text).

In the end of the discussion Gennadiy Udovenko stated that the reform of court system could not be completed until the questions of status and functions of prosecutor’s office would be solved. I believe, nothing can be said against it.

List of the documents, created in the course of activities of prosecutor’s organs of Ukraine, which contain confidential information and to which classification “for service use only” is given

Approved by order of the General Prosecutor of Ukraine No. 89 of 28 December 2002

1.  Organizational-administrative documents (orders, instructions, directions) of governing bodies of the General Prosecutor’s office of Ukraine, prosecutor’s offices of the Crimean Autonomous republic, regions, cities of Kyiv and Sevastopol, regional military prosecutor’s offices and prosecutor’s office of the Naval forces of Ukraine (by proposition of the initiator).

2.  Stuff documents (personal records of prosecutor’s officers of Ukraine).

3.  Memorandums, references, informational letters, methodical recommendations concerning prosecutor’s supervision over the observance of laws during realization of the ODA (if do not disclose the information regarded as state secrets).

4.  Conclusions, analyses, reviews (by proposition of the initiator).

5.  Documents of prosecutor’s response (by proposition of the initiator).

6.  Special informational messages about the catastrophes, accidents and other extraordinary events, which entailed deaths of people or inflicted noticeable material damage.

7.  Index cards of individuals for rendering the access to state secrets (after completion).

8.  Correspondence with the organs of the Security Service of Ukraine concerning rendering the access to state secrets to prosecutor’s officers.

9.  Orders on rendering the access to state secrets to prosecutor’s officers.

10.  Nomenclatures of the posts of workers, who get the access to state secrets (if do not disclose the information regarded as state secrets).

11.  Other documents, for creation of which confidential information is used.

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