Archive for August 4th, 2013

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Submitting your homework, knowing it’s wrong – Prosecutors Bill Ukraine

August 4, 2013

Well, it seems on Friday 2nd August, the presidential administration sent a proposed bill on the reform of the state prosecution authorities to the Venice Commission for its scrutiny and anticipated recommendations.

Should the perused bill with subsequent recommendations be returned to the presidential administration by September, it is said it will take a week to consider and incorporate the Venice Commission recommendations prior to submitting it to the RADA.

So, another one of the EU “must address” issues may well be progressed before Vilnius in November – although given the time scales of a September submission and possible passing at the first reading, the second reading in October, a presidential signature and subsequent publishing and enactment of the law cannot really happen until sometime in November – which is cutting matters fine to say the least.

Within the bill it is envisaged a total abolition of political supervision of the prosecutors office, a mass cull of prosecutors offices throughout Ukraine – completely removing 122 offices around the country – and a substantial curtailing of powers of the prosecutors office.

And yet whilst  the abolition of political oversight – read direct and consistent political interference – over the prosecutors office cannot be welcomed enough, complete independence from the political sphere simple cannot be achieved – yet anyway – due to the Constitution of Ukraine.

Constitution of Ukraine – Title VII
Public Prosecution

Article 121. The public prosecution of Ukraine shall constitute a single system entrusted with:

1) prosecution in court on behalf of the State;

2) representation of the interests of a citizen or of the State in court in cases determined by law;

3) supervision over the observance of laws by bodies that conduct operative-investigative activities, inquiry, and pre-trial investigations;

4) supervision over the observance of laws in the course of execution of court decisions in criminal cases and application of other measures of coercion in relation to the restraint of personal freedoms of citizens;

5) supervision over the observance of human and civil rights and freedoms and over the observance of laws regulating these issues by executive power bodies, by local self-government bodies, their officials, and officers.

Article 122. The public prosecution of Ukraine shall be headed by the Prosecutor General of Ukraine, appointed to or removed from the office by the President of Ukraine upon the consent of the Verkhovna Rada of Ukraine. The Verkhovna Rada of Ukraine may express the non-confidence in the Prosecutor General of Ukraine, which shall entail his resignation from the office.

The term of powers of the General Prosecutor of Ukraine shall be five years.

Article 123. The structure and operational procedures of the public prosecution bodies of Ukraine shall be determined by law.

Thus whether the Ukrainian authorities and Venice Commission like it or not – until Article 122 of the Constitution of Ukraine can be amended, the President of Ukraine is constitutionally obliged to appoint or sack – with the agreement of the RADA – The Prosecutor General of Ukraine – defeating the concept of a truly independent State prosecutor.

That will undoubtedly be raised as an issue by the Venice Commission – and rightly so – however, the Constitution is made deliberately difficult to change or amend to avoid political expediency by those in power at any given time.  Thus flawed as this Bill will obviously be, there is no realistic way to remove this particular flaw before November – or in the foreseeable future either.

Nevertheless, the rest of the Bill may get a favourable commentary from the Venice Commission – w will have to wait and see.

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