MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1377/H46-43

4 June 2020

1377th meeting, 4 June 2020 (DH) (written procedure) Human rights   H46-43 Lutsenko (Application No. 6492/11) and Tymoshenko (Application No. 49872/11) v. Ukraine Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)308, CM/Del/Dec(2013)1172/27, CM/Del/Dec(2014)1193/25

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
6492/11	LUTSENKO	03/07/2012	19/11/2012	Complex problem
49872/11	TYMOSHENKO	30/04/2013	30/07/2013

Case description

The applicants were, at the relevant time, opposition politicians who were the subject of criminal proceedings the purposes of which, as established by the European Court, were other than those indicated in the Convention. Mr Lutsenko was one of the leaders of the opposition party and former Minister of the Interior. Ms Tymoshenko was the leader of the opposition party and former Prime Minister. The Court found violations of Article 18 taken in conjunction with Article 5, related to their arrest and detention in 2010 and 2011 respectively.

In the case of Lutsenko, the Court noted that the prosecuting authorities explicitly referred to the applicant’s communication with the media as one of the grounds for his arrest. They accused him of distorting public opinion about crimes committed by him as well as of discrediting the prosecuting authorities and influencing the upcoming trial in order to avoid criminal liability. In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrated their attempt to punish the applicant for publicly disagreeing with accusations against him and asserting his innocence, which he had the right to do. The Court thus found that the applicant’s liberty was restricted also for other reasons than those permissible under Article 5.

In the case of Tymoshenko, the Court noted the overall similarity of the circumstances to those examined in Lutsenko and held that although the applicant’s detention was formally effected for the purposes envisaged by Article 5 § 1(c) of the Convention, both the factual context and the reasoning advanced by the authorities suggested that the actual purpose was to punish her for alleged lack of respect towards the court.

In both cases, the Court also found a number of other violations of Article 5 related to failure to provide reasons for arrest (Article 5 § 2); other aspects of detention on remand (Article 5 § 3); inadequate judicial review of the lawfulness of detention (Article 5 § 4); and lack of enforceable right to compensation (violation of Article 5 § 5).

Status of execution

The violations of Article 18 taken in conjunction with Article 5 relate to undue influence on both the prosecutors and the judiciary for political motives. The measures taken to strengthen the independence of the judiciary are being examined in detail by the Committee in the context of the Oleksandr Volkov group of cases. The Committee’s focus in the present group of cases is thus the reform and the independence of the public prosecution service (PPS).

The Ukrainian authorities submitted two action reports on 19 November 2018 (DH-DD(2018)1163) and on 3 April 2020 (DH-DD(2020)308), the most relevant parts of which are summarised below. They consider that the problems reflected in the two cases are not systemic and request that the Committee of Ministers closes its supervision in light of the developments set out below.

Individual measures:

In the Lutsenko case, the Court awarded the applicant 15,000 euros in respect of non-pecuniary damage, which was paid in full. On 7 April 2013, the President of Ukraine pardoned the applicant. The applicant was released on the same day. In March 2014, a domestic court quashed the applicants’ convictions and the applicant was fully rehabilitated. He was elected as a Member of Parliament later in 2014. Between 2016 and 2019 he served as the Prosecutor General of Ukraine (PG).

In the Tymoshenko case, the applicant did not submit a claim for just satisfaction so none was awarded. She was released from detention and fully rehabilitated in early 2014 and then elected as a Member of Parliament.

 

General measures:

The authorities have provided detailed information about the general measures aimed at preventing the circumvention of legislation by prosecutors and judges for undue purposes. The measures which respond to the violation of Article 18 taken in conjunction with Article 5, focus on the major reforms of both the prosecution service and the judiciary.

Independence of judiciary

Referring to the information submitted in the Oleksandr Volkov group of cases, the authorities recall that following the constitutional amendments of 2016, Parliament is excluded from the mechanism of appointment and dismissal of judges, which ensures political neutrality. Furthermore, the establishment of the High Council of Justice removes the political component from the judiciary and, in their view, ensures the independence of criminal proceedings. Under the 2016 constitutional amendments the public prosecution service became a constituent part of the justice system.

Independence of the public prosecution service (PPS)

I.          Developments between 2014 and 2019

1.  Independence of the PPS from external influence

The constitutional amendments of 2016 make the following changes:

-      the provisions governing the operation of the PPS are included in the section “Justice” of the Constitution, thus emphasising the independence of this institution from the other branches of power and making it part of the justice system;

-      the PPS functions are limited to prosecution in court, organisation and procedural management of investigations and representation of state interests in court, thus the PPS is stripped of the general oversight function;

-      the method of appointment of the PG provides for greater independence from political influence due to the involvement of two institutions (the President and the Parliament) in appointment and dismissal; and the PG can only be dismissed in circumstances established by law.

The Strategy for Reforming the Judiciary and Related Legal Institutions for 2015–2020, adopted by the President of Ukraine in May 2015 includes provisions about the independence of the PPS.

The Law on Public Prosecution Service (PPS Law) of 2014, positively assessed by the Council of Europe,[1], amongst other things, provides for the principle of political neutrality and independence of public prosecutors, shielding them from illegal political, financial or other influence when performing official duties.

The Criminal Procedure Code (CPC) of 2012 inter alia,

-      underlines that a prosecutor in the course of performing his/her duties is independent in his/her procedural activities, and that any interference by persons who have no legitimate authority is prohibited;

-      sets forth the delineation of competence of different agencies involved in criminal proceedings and of investigative jurisdictions.

The loss of investigative functions by the PPS was completed when the newly established State Bureau of Investigations became operational in late 2018.

The Code of Professional Ethics and Conduct of Prosecutors approved in 2017 further enhances the principle of political neutrality and sets out a wide range of standards regulating a prosecutor’s conduct while exercising his/her powers.

2. Individual autonomy of prosecutors

2.1. Regulatory framework

The PPS Law provides for:

-      guarantees of individual prosecutorial autonomy, such as the level of salaries and remuneration; and strict subordination rules with regard to the instructions of higher-level prosecutors;

-      a system of prosecutorial self-governance, tasked with the protection of the independence of prosecutors;

-      a framework for disciplinary proceedings including procedural guarantees; and career-related issues.

The CPC lays down the principle of the independent prosecutor in criminal proceedings and limitations on replacement of prosecutors to avoid undue influence.

2.2.      Prosecutorial self-governance and support bodies

The authorities indicate that the prosecutorial self-governance (All Ukrainian Conference of Prosecutors, Council of Prosecutors) and support bodies (Qualification and Disciplinary Commission of Prosecutors, QDCP) established in 2017 played a key role in securing independence, professionalism, integrity and effectiveness of the prosecution by, for example, reacting to threats to the independence of prosecutors, and ensuring merit based recruitment and promotion and transparent disciplinary proceedings based on procedural guarantees.

2.3.      The Internal security department within the Prosecutor General’s Office conducts integrity checks of prosecutors.

 

II.         Developments since September 2019

The authorities explain that, on 19 September 2019, the PPS Law was significantly amended:

-      the number of prosecutors was reduced; prosecutor’s offices were entirely restructured; all prosecutors were subject to re-evaluation to be able to remain in office, which included an assessment of their professional competence, professional ethics and integrity; employment possibilities were opened to external candidates; 

-      the activities of the QDCP were suspended and the QDCP itself dissolved, the functions of the prosecutorial self-governance bodies were limited and the Council of Prosecutors’ was to be dissolved early;

-      the role of the PG in disciplinary and career management matters was reinforced: s/he adopts the relevant procedures, establishes special committees competent in these areas and makes appointments to managerial positions;

-      the other powers of the PG were reinforced (for example to liquidate and reorganise prosecutor’s offices, to establish specialised prosecutor’s offices); the PG approves the strategy for the development of the service, performance evaluation system, and the procedure for assessing and regulating the workload of prosecutors;

-      an increase of salaries and limits on the proportion of bonuses in the remuneration of prosecutors;

-      a temporary simplified procedure for the President to initiate the proceedings for the dismissal of the PG before the Parliament was introduced.

Some of the amendments were introduced to only have effect until September 2021.

The authorities set out a plan for the implementation of the reform and explain the ongoing evaluation of prosecutors and recruitment for vacant positions.

As to the disciplinary responsibility of prosecutors following the amendments of 2019, the authorities set out a temporary procedure applicable only until September 2021. The consideration of complaints is entrusted to staffing committees, who act in accordance with the procedure set forth by an Order of the PG. The decisions of the staffing committees are subject to appeal to the High Council of Justice or to a court. The procedure after September 2021 is not yet clear.

The Inspectorate General within the Office of the PG acts in accordance with a Regulation adopted by the PG in February 2020. It is tasked, among other things, with following criminal offences committed by prosecutors; the organisation and procedural supervision of those investigations as well their prosecution in courts; and the prosecution of other cases upon instructions of the PG. It prevents and detects violations by prosecutors of their oath or of ethics, as well as corruption-related offences, or other actions that may raise doubts about a prosecutor’s impartiality and independence. It conducts integrity checks of prosecutors. The Inspectorate General also has a role in disciplinary proceedings, conducting internal investigations into the circumstances of the case, upon the instructions of the staffing committees. It is also entitled to be present at the committees’ hearings and to get acquainted with the case files.

III.        Draft legislation.

A draft Law introducing amendments to the PPS Law aimed at increasing the efficiency of the service was registered at the Parliament in February 2020. The authorities also mention a number of draft laws developed previously to reinforce prosecutorial independence, but it is unclear whether or not they are being pursued.

IV.        Capacity-building activities.

Numerous capacity-building and awareness raising activities related to prosecutorial independence were carried out in 2014-2019, including in cooperation with the Council of Europe, and in particular the project “Continued Support to the Criminal Justice Reform in Ukraine”. Cooperation is continuing with the new project “Human Rights Compliant Criminal Justice System in Ukraine”.[2]

V.         Use of pre-trial detention

The authorities set out details of the relevant provisions of the CPC and provide statistical data concerning the use of pre-trial detention in 2017. They recall that the general measures in response to the broader violations of Articles 5 relating to detention on remand are examined in the context of the Ignatov group of cases.

Analysis by the Secretariat

Individual measures:

There are no ongoing negative consequences of the violations for either applicant; all necessary individual measures have been taken.

General measures:

Significant progress has been achieved in the strengthening of the independence of the PPS since the Committee’s last examination of these cases, further to close co-operation and engagement with the Council of Europe. There remain, nevertheless, some outstanding issues that require clarification. The impact on prosecutorial independence of the major legislative amendments of September 2019 and the ongoing reform remain unclear. There also appears to be a lack of a holistic strategic approach towards the reform of the PPS. Those uncertainties mean it is not possible to have a clear understanding of the situation and it would therefore appear premature to close the Committee’s supervision of this group at this stage.

External independence of the PPS

The constitutional amendments of 2016 were a significant achievement which had been strongly encouraged by the Venice Commission.[3] GRECO also welcomed the amendments, underlining that by abolishing the general supervisory function of the PPS, Ukraine had “honoured one of its remaining accession commitments to the Council of Europe”.[4] However, the constitutional reform did not remove one important obstacle to the prosecution service’s external independence: the Parliament retained the competence to dismiss the Prosecutor General through a no-confidence vote.[5] Furthermore, while both the Parliament and the President participate in appointment, there is no procedure which would allow for professional non-political expertise to be involved.[6]

Moreover, the PPS Law of 2014 has not been brought fully into compliance with the Constitution further to the constitutional amendments in 2016. Several draft laws amending the PPS Law to this aim were developed but have never been adopted. For example, the wording of the PPS’ functions in the Law differs from that of the Constitution, which might lead to confusion detrimental to the efficiency of the service and a possible lack of clarity of delineation of competences with other bodies.

Individual autonomy of prosecutors

The PPS Law of 2014 was also a positive development, establishing a set of institutional, procedural and other instruments designed to safeguard the principle of independence of individual public prosecutors and of the PPS in general. Nevertheless, there remained certain outstanding issues, both on the regulatory level and in practice.

For instance, the prosecutorial self-governance bodies and QDCP lacked full independence. Moreover, they were only established in 2017, which makes it difficult to fully assess their effectiveness. There was also room for improvement of the disciplinary framework which was underlined by GRECO.[7] The wording of disciplinary offences remained vague, and the range of disciplinary sanctions was limited, which raised issues regarding the proportionality of punishments.

Concerns also remained about practical compliance with the principle of internal autonomy of prosecutors and decentralisation of the service. For instance, it was broadly reported that prosecutors in criminal proceedings lacked actual independence from their superiors.[8] There was no performance evaluation system in place.[9]

Ongoing changes to the PPS since September 2019

Major changes were introduced to the PPS Law in September 2019, the impacts of which do not appear to have been fully analysed at the domestic level. The amendments were adopted without prior in-depth consultations with national stakeholders or international expertise.

The legislative process from the registration of the draft Law to its adoption took less than one month and no clear justification for the significant changes proposed was made public. Some of the amendments will apply only until 1 September 2021 and there are no indications as to what the plan is for permanent arrangements after this date.

The suspension of the prosecutorial self-governance and support bodies as well as the elimination of the procedures for the disciplinary proceedings and career management requires explanation, as they were considered as important safeguards for prosecutorial autonomy.[10] Furthermore, the PG appears to now have broader competence in disciplinary matters and career management, including on establishing the relevant bodies and procedures. Recruitment and career of prosecutors, including promotion, mobility, disciplinary action and dismissal, should be regulated by law, and not left to the PG’s discretion.^[11] Whilst the increase of salaries is a positive development, bonuses still constitute up to 30% of remuneration. Thus, an important part of prosecutors’ income might depend on their superiors taking discretionary decisions concerning bonuses. Practical implementation of the positive provisions in the Law regarding the need to approve the strategy for the development of the PPS, performance evaluation system, and the procedure for assessing and regulating the workload of prosecutors remains to be seen.

To conclude, although major progress has been made since the facts of the cases, a reform is ongoing. A number of measures have only very recently been taken, the full impact of which on overall prosecutorial independence is not yet clear.

Financing assured: YES