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UHHRU condemns overt Interference by the Prosecutor General in Court Work

28.07.2011    source:
On 7 June the Deputy Prosecutor General M. Havrylyuk, who is at the same time a member of the High Council of Justice, asked the latter to dismiss three judges of the Kyiv Court of Appeal. The judges had passed a ruling entirely in accord with the Constitution and European Convention on Human Rights


The Ukrainian Helsinki Human Rights Union has issued an open letter expressing concern over interference by the Prosecutor General’s Office in the work of the courts.  As reported, and from documents which UHHRU has received, it is clear that on 7 June 2011 the Deputy Prosecutor General Mykhailo Havrylyuk, who is at the same time a member of the High Council of Justice, wrote to the High Council of Justice suggesting that it dismiss three judges of the Kyiv Court of Appeal – Ihor Moroz, Valery. Pashkevych and Ludmila Bartashchuk.

The grounds for this was a ruling by a panel made up of these judges on 24 May 2011 which released a person from remand in custody.

UHHRU considers it absolutely unacceptable when one of the parties in court proceedings, unhappy with the result of the court examination, is given the right to influence the court using administrative pressure. This case yet against demonstrates that there were grounds for the fears expressed by many experts that the High Council of Justice would after the judicial reforms in 2010 turn into something like a judge “Gestapo”, and that judges would be forced to act as the authorities wanted.  In this instance the High Council of Justice has been asked to dismiss judges because their ruling did not suit the Prosecutor.

The Deputy Prosecutor General is accusing the judges of no more no less than of grave violation of criminal procedural norms, of lack of objectivity, bias, unfairness, engagement and infringement of their oath. Such accusations from a party to court proceedings compel one to examine the court ruling.

One can say that the panel of judges ruling, while not mentioning the Constitution and the European Convention on Human Rights, is fully in accord with the spirit and letter of these documents.

It is effectively proposed to dismiss the judges for trying not to shame the country for the nth time and to judge in a case guided by the principle of the rule of law in awareness of international obligations and the inalienability of human rights.

Mr Havrylyuk is accusing the judges of releasing the accused “in the absence of groups for a change in the measure of restraint”.  Yet as can be seen from the court ruling, the judges considered that the lack of grounds for extending remand in custody constituted sufficient grounds for releasing him.

This ruling is fully in line with Article 29 of Ukraine’s Constitution and with Article 5 of the European Convention which establishes the right to liberty as an inalienable human right meaning that nobody has to prove that he is justified in being at liberty. This is also confirmed by the case law of the European Court of Human Rights which has on a number of occasions reiterated that there must be a presumption in favour of release, and that under a verdict is issued, a person must be deemed innocent.  The European Court also considers that “it is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases” (European Court of Human Rights Judgement in the Case of Khayredinov v. Ukraine, № 38717/04, § 39-40, 14 October 2010).

The Deputy Prosecutor General is blaming the panel of judges for releasing the accused since the Prosecutor did not cope with the burden of proof. It would appear that the prosecution indeed failed to provide the court with specific facts which could justify continued detention since the Deputy Prosecutor General in his submission does not once refer to any such “specific facts”. His text mentions that the accused could influence the witnesses but does not give a single specific fact on the basis of which an unbiased person could conclude that he would influence them or at least had the intention of trying to do so, and also why by that time the investigators had not excluded the possibility of influence, for example, by interrogating these witnesses. It is mentioned that the accused was on the wanted list. However there are no specific facts at all which could indicate his intention to try to evade the investigation in the future.

Finally, Mr Havrylyuk makes the entirely false assertion that if the accused can be sentenced to more than 10 years imprisonment, Article 155 of the Criminal Procedure Code envisages remand in custody. Article 155 envisages only the possibility of applying detention in certain cases, and does not oblige the court to use it. If one interpreted Article 155 the way that the Deputy Prosecutor General does, this would run counter to Article 5 of the Convention in the interpretation of the European Court which has many times reiterated that any system of compulsory detention is by definition incompatible with Article 5 § 3 of the Convention (see, for example, the ECHR Judgement in the Case of Ilijkov v. Bulgaria, № 33977/96, § 84, 26 July 2001.).

The judges are thus “accused” of interpreting criminal procedure legislation in the light of Ukraine’s Constitution and the Convention and of avoiding a new violation by Ukraine of its international obligations. This is such a systemic violation that it has already elicited a response from the European Court of Human Rights in the Case of Kharchenko v. Ukraine (№ 40107/02, 10 February 2011).  Furthermore, the judges had the duty to act in this manner in view of the provisions of Ukraine’s Law on Implementing Judgements and Applying the Case Law of the European Court of Human Rights.

The Deputy Prosecutor General has accused the judges of interfering in the course of the pre-trial investigation since they calculated the number of investigative actions while the accused was in custody. Yet according to Article 29 of the Constitution and Article 5 of the Convention it is the court’s duty to determine whether the authorities acting with due diligence.  In order to ascertain this, the judges were obliged to at very least take into account those actions which had been carried out. How this influences the investigation Mr Havrylyuk does not explain. Yet he notes that the “pre-trial investigation body chooses the order for carrying out investigative actions”.

This is true and nobody may interfere in the investigators’ tactics. Yet the actual tactics of the investigation should take into account the inalienable rights of the accused and avoid violation of these rights. It is the court’s duty to remove such violations and of the investigator to envisage that the court may remove them and act accordingly. In this case one can say that the investigation tactics, if these existed, did not take into consideration the possibility that the court would not allow the investigator’s application and would release the accused. This was a miscalculation of the investigators and not the fault of the court which acted on the side of legislation and the rule of law.

UHHRU considers it unacceptable for the Prosecutor to exert pressure on judges solely because they did not heed the Prosecutor Office’s position. We feel it necessary to remind them that the passing of a judgement in favour of the side backed by the law, even if this side is opposed by the Prosecutor’s Office, is not evidence of dependence.

In accordance with European standards of judge independence, judges “should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner.” (Recommendations R 94 (12) of the Council of Europe Committee of Ministers on the Independence, Efficiency and Role of Judges).

UHHRU believes that the Prosecutor’s Office which is allocated enormous funding for “defence of human rights” should direct its energies towards eradicating those violations, including in the work of the courts, which have already been identified by the European Court of Human Rights, and not try to punish judges for endeavouring to break the pernicious practice of obliging the Prosecutor’s Office and for making demands on State bodies representing the prosecution.

We demand that

the High Council of Justice reject the proposal from the Prosecutor’s Office on 7 June 2011 on passing a submission to dismiss judges of the Kyiv Court of Appeal Ihor Moroz, Valery. Pashkevych and Ludmila Bartashchuk;

Parliament and those with authority to take legislative initiatives introduce amendments to legislation in order to prohibit representatives of the Prosecutor’s Office from using their membership of the High Council of Justice to suggest dismissing judges, and to bring the makeup of the High Council of Justice into line with European standards for ensuring judge independence.

Arkady Bushchenko,

Head of the UHHRU Board

 Volodymyr Yavorsky

UHHRU Executive Director

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