Strasbourg, 14 October 2013 CDL-AD(2013)025 Opinion no. 735 / 2013 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) DIRECTORATE FOR HUMAN RIGHTS (DHR), DIRECTORATE GENERAL FOR HUMAN RIGHTS AND THE RULE OF LAW JOINT OPINION ON THE DRAFT LAW ON THE PUBLIC PROSECUTOR’S OFFICE OF UKRAINE Endorsed by the Venice Commission at its 96th Plenary Session (Venice, 11-12 October 2013) on the basis of comments by Mr Nicolae ESANU (Member, Moldova) Mr Peter PACZOLAY (Member, Hungary) Ms Hanna SUCHOCKA (Member, Poland) Mr Kaarlo TUORI (Member, Finland) Mr Jeremy McBRIDE (DHR consultant, United Kingdom) Mr Eric SVANIDZE (DHR consultant, Georgia) Ms Lorena BACHMAIER WINTER (DHR consultant, Spain) Mr Mikael LYNGBO (DHR consultant, Denmark) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2013)025 - 2 - Contents I. Introduction......................................................................................................................... 3 II. General remarks ................................................................................................................. 3 III. Main criticism expressed in previous opinions ............................................................... 4 A. Excessive centralisation combined with the dependence of the Prosecutor General on the confidence of Parliament. .................................................................. 5 B. Prosecutors’ role outside the criminal justice system ........................................ 5 C. Other problems ...................................................................................................... 8 IV. Article by article analysis ............................................................................................... 8 A. Section 1. The Principles of Organisation and Operation of Public Prosecutor's Offices ........................................................................................................................... 8 B. Section 2. Organisational Principles of the Public Prosecutor's Office .......... 10 C. Section 3. The Status of Public Prosecutors ..................................................... 11 D. Section 4. Exercise of Public Prosecutors' Powers .......................................... 14 E. Section 5. Procedures for Taking Public Prosecutor's Office .......................... 19 F. Section 6. Disciplinary Liability of a Public Prosecutor .................................... 21 G. Section 7. Dismissal of Public Prosecutors, Suspension and Termination of Their Powers .............................................................................................................. 23 H. Section 8. Prosecutorial Self-Governance and Bodies Supporting the Prosecution Service ................................................................................................... 24 I. Section 9. Material and Social Support for the Public Prosecutor and other Prosecution Officers .................................................................................................. 28 J. Section 10. Organisational Support to the Public Prosecutor’s Office ............ 28 K. Section 11. International Cooperation ................................................................ 28 L. Section 12. Final provisions................................................................................ 29 M. Section 13. Transitional provisions .................................................................... 29 V. Conclusion ........................................................................................................................ 30 - 3 - CDL-AD(2013)025 I. Introduction 1. By letter dated 2 August 2013, the Head of the Presidential Administration of Ukraine, Mr Lyovochkin, requested an opinion on the Draft Law on the Public Prosecutors Office of Ukraine (CDL-REF(2013)041 and comparative table CDL-REF(2013)043, hereinafter, the “Draft Law”) from the Venice Commission and the Directorate General for Human Rights and the Rule of Law of the Council of Europe. 2. The Venice Commission invited Mr Nicolae Esanu, Mr Peter Paczolay, Ms Hanna Suchocka and Mr Kaarlo Tuori to act as rapporteurs for this opinion. 3. In the framework of the Project Support to Criminal Justice Reform in Ukraine, funded by the Danish Government, the Directorate for Human Rights (DHR) of the Directorate General for Human Rights and the Rule of Law of the Council of Europe invited Mr Jeremy McBride, Mr Eric Svanidze, Ms Lorena Bachmaier Winter and Mr Mikael Lyngbo to provide an expertise of the draft Law. 4. On 6 September a delegation of the Venice Commission and DRH1, composed of Mr Esanu, Mr McBride, Mr Paczolay, Ms Suchocka, Mr Svanidze and Mr Tuori accompanied by Mr Markert and Mr Dürr from the Venice Commission’s Secretariat and Mr Ristovski for the Council of Europe Office in Kyiv and Ms Tskhomelidze for the DRH Project visited Kyiv for meetings with the various stakeholders. The delegation met with (in chronological order): Mr Igor Kaletnik the Deputy Chairman of the Verkhovna Rada, Mr Serhiy Kivalov, the Head of the Parliamentary Committee on the Rule of Law and Justice, Mr Andriy Kozhemiakin, Head of the Parliamentary Committee on Legislative Support of Law Enforcement and other members of this Committee, Mr Oleksandr Lavrynovych, Chairman of the High Council of Justice, Mr Viktor Pshonka, Prosecutor General, Mr Andriy Portnov, Advisor to the President, Mr Pavlo Petrenko, Member of the Parliamentary Faction All-Ukrainian Union Batkivshchyna, Mr Valeriy Karpuntsov, Member of the Parliamentary Faction Political Party UDAR, Mr Oleg Makhnytskiy, Head of the Parliamentary Faction of All-Ukrainian Union Svoboda, as well as with NGO representatives. This opinion also reflects the results of these meetings. 5. In view of the urgency of this matter, the Bureau of the Venice Commission authorised the transmission of a draft of this opinion to the Ukrainian authorities in advance of its discussion at the plenary session. Following an exchange of views with Mr Vitaly Bilous, Deputy Prosecutor General, and Mr Andriy Kozhemiakin, Head of the Parliamentary Committee on Legislative Support of Law Enforcement, the present opinion was endorsed by the Venice Commission at its 96th Plenary Session (Venice, 11-12 October 2013). II. General remarks 6. The Draft Law, if adopted, would replace the Law of Ukraine On the Public Prosecution Service that entered into effect on 5 November 1991 ('the Law of 5 November 1991'), which has been amended on many occasions since then - particular extensively in 2010 and 2012 - resulting in 'the Existing Law'. 7. The draft Law on the Public Prosecutor’s Office of Ukraine is one of several laws that was prepared over the years on the prosecutor’s office in Ukraine, for which the Venice Commission has provided opinions2. 1 When this opinion makes recommendations to the Ukrainian authorities it is understood that these are recommendations by the Venice Commission and the Directorate for Human Rights. 2 Opinion on the present law and on the draft law of Ukraine on the Public Prosecutor's Office by Mr James. Hamilton (CDL (2001) 128, 7 December 2001; Opinion on the present law and on the draft law of Ukraine on the CDL-AD(2013)025 - 4 - 8. The standards of the Council of Europe of relevance to legislation dealing with a public prosecution service are to be found in: the European Convention on Human Rights (hereinafter European Convention) and the related case law of the European Court of Human Rights; Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system3; Recommendation CM/Rec(2012)11 of the Committee of Ministers to member states on the role of public prosecutors outside the criminal justice system4; Recommendation 1604 (2003) on the Role of the Public Prosecutor’s Office in a Democratic Society Governed by the Rule of Law of the Parliamentary Assembly of the Council of Europe5; the Venice Commission opinions; the Venice Commission's Report on European Standards as regards the Independence of the Judicial System: Part II The Prosecution Service6; the European Guidelines on Ethics and Conduct for Public Prosecutors ('the Budapest Guidelines') adopted by the Conference of Prosecutors General of Europe7; Opinion No. 3(2008) of the Consultative Council of European Prosecutors on 'The Role of Prosecution Services Outside the Criminal Law Field'8; and Opinion No.12 (2009) of the Consultative Council of European Judges (CCJE) and Opinion No.4 (2009) of the Consultative Council of European Prosecutors (CCPE) on "Judges and prosecutors in a democratic society" ('the Bordeaux Declaration')9. 9. These standards can be found in a synthesised form in the Thematic Directory of Principles for a Draft Law on the Public Prosecution Office of Ukraine prepared as part of the Project "Support to Criminal Justice Reform in Ukraine". 10. This opinion first briefly reviews the concerns expressed in previous opinions about the Existing Law. It then outlines the significant advances made by the Draft Law towards fulfilling the requirement of Council of Europe standards and identifies the main aspects of the Draft Law that are still problematic in that regard. The opinion then provides an Article by Article analysis of the Draft Law, dealing with those provisions that need amendment, clarification, further consideration or deletion. It concludes with a summary of the recommendations made and an overall