CoE/EU PCF “Fight against Corruption and Fostering Good Governance/
Fight against Money-Laundering” (EaP- 2)
29 May 2015
JOINT COMMENTS OF THE DIRECTORATE GENERAL HUMAN RIGHTS AND RULEOF LAW ON THE LAW OF UKRAINE "ON AMENDING SOME REGULATORY ACTS OF UKRAINE AS TO THE ACTIVITYOF THE NATIONAL ANTI-CORRUPTION BUREAU OF UKRAINE"
vested with prevention, detection, suppression, investigation and solving of corruption offenses under its competence, as well as prevention of committing the new ones.
In particular, its objective is to
counter criminal corruption offenses committed by senior officials authorized to perform the functions of the state or local self-government and which threaten national security.
The amendments thus seek to reinforce the role of the Bureau in a profound fight against corruption in general. There is full appreciation in the present comments of the challenges, special needs, contemporary methods and tools required to combating corruption both in general and in Ukraine, in particular, where, reportedly, it is of pervasive character and has gained a global scale.
Provision by provision analysis
B. The Criminal Procedure Code
Article 3. Definitions of the Code's principal terms
a division of detectives, a unit of internal control of the National Anti-Corruption Bureau of Ukraine.
These insertions reflect the functions of investigation and solving corruption offences given to the Bureau by Article 1 of the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine".
Article 31. Composition of court
Article 38. Pre-trial investigation agency
Article 41. Operational units
a division of detectives, an operational and technical unit and a unit of internal control of the National Anti-Corruption Bureau of Ukraine
in addition to the other operational units given these functions. However, whereas the latter can only do so upon the written assignment of the investigator, public prosecutor, those connected to the Bureau are able to do so upon their own initiative or upon the written assignment of a public prosecutor seconded to the Bureau.
Article 52. Mandatory participation of a defence counsel
Article 100. Storage of material evidence and documents and making a decision on special attachment
resolves that there are no legitimate grounds for acquisition of title to any portion of the property, such portion of the convicted person’s property (...) or the value thereof if such portion cannot be separated. If it is not possible to confiscate the property the legitimacy of title to which has not been acknowledged, the convicted person shall be bound to pay the value of such property.
The language of the amendment is also unclear as to why property restricted to just money ‘or any other property’ (what about services, payments towards a child’s education, which is never given directly to a suspect), and why related persons’ are just restricted to legal entities, as well as to the meaning of 'related income'. Furthermore, it is also unclear as to why the income obtained only relates to money laundering in addition to corruption offences; this restriction could curtail the ability of investigators and prosecutors to consider a broader list of potential suspects.
In short, the amendment is far too restrictive and does not follow increased international efforts to improve the performance of states in the confiscation of the proceeds of crime.
Article 159. General provisions for provisional access to objects and documents
upon adoption of the appropriate ruling by investigating judge, court
from Part 1. This deletion is not, however, problematic since Part 2 remains with its stipulation that
Provisional access to objects and documents shall be executed based on a ruling of investigating judge, court.
Thus, this is not a case of removing a requirement that provisional access to objects and documents must be judicially authorised - which would potentially result in a violation of Article 1 of the Protocol No. 1 - but it is simply one involving the deletion of the first of the two iterations in this provision of such a requirement. Part 1 remains a simple explanation of what provisional access means and its exercise continues to be subject to the requirement of judicial authorisation in Part 2.
Article 170. Grounds for attachment of property
In urgent cases and exclusively in order to preserve evidence or ensure possible confiscation or special confiscation of property in criminal proceedings in connection with regard to a grave or especially grave criminal offence.
Article 208-2. Apprehension by a competent official
if there are reasonable grounds to believe that the person suspected of a grave or especially grave corruption crime that under law is within the jurisdiction of the National Anti-Corruption Bureau of Ukraine may escape aiming at evading criminal responsibility.
Article 216. Investigative jurisdiction (competence)
investigation of alleged misconduct potentially engaging the responsibility of a public authority and its officers was carried out by those agents’ colleagues, employed by the same public authority.
Article 246. Grounds for covert investigative (detective) actions
Article 269-1. Monitoring of bank accounts
Article 469. Initiation and conclusion of an agreement
Article 472. Content of a Plea Agreement
conditions of partial release of liability of the suspect, the accused in the form of reimbursement of damages to the state caused as a result of committing a criminal offence
to what must be indicated in the plea agreement. This can only contribute to ensuring that, as required by the European Court, a plea agreement is a consequence of a conscious and voluntary decision by the suspect, the accused and has not resulted from any duress or false promises made by the prosecution. This addition is not problematic. Nonetheless, in the context of such serious offences as corruption, this would require some careful monitoring by the courts. In particular, the decision- making as to when the offer is made to, or accepted on behalf of, the suspect should be made explicit within a carefully drafted legal framework to avoid inconsistencies and to ensure that whenever a plea bargain is accepted it is in accordance with law. By way of example, in the Netherlands, prosecutors openly treat with defence lawyers in heavy cases of white-collar or organized crime because they acknowledge that they are opposed by well-resourced adversaries. Similarly, in England, the Serious Fraud Office resorts to such a practice in cases of serious or complex fraud. Indeed, the SFO has been compelled to go further and adopt a model similar to that used in the USA to moderate the cost of prosecuting huge multi-national companies.
Article 480. Individuals subject to special procedure of criminal proceedings
Article 481. Notification of suspicion
Article 545. Central authority of Ukraine
C. The Laws "On the Public Prosecutor's Office"
The 1991 Prosecution Law
The 2014 Prosecution Law
worked (served), regardless of length, in a specially authorized units to combat corruption in the prosecution authorities, the Ministry of Internal Affairs of Ukraine, the Tax Police, the Security Service of Ukraine, the Military Service of Law and Order of the Armed Forces of Ukraine and customs authorities may not be admitted to service.
Such a bar is undoubtedly designed to ensure a fresh start in efforts to tackle corruption and, given past difficulties in this regard, does not seem to be disproportionate, notwithstanding that not everyone who had so worked in such units may be the legitimate object of suspicion.
The comments do not include any analysis of the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine" but it has been reviewed as background material.
 There were already some amendments to the Criminal Procedure Code in the Final Provisions of this Law.
Part 1 of Article 1 of the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine"
 It should be noted that there are also some provisions in the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine" that do not correlate with ones in the Criminal Procedure Code or with arrangements already appropriately regulated by other laws. Thus, paragraph 2 of Part 1 of Article 17 provides for obtaining [by means of a prosecutor] materials of criminal proceedings concerning criminal offenses referred by law to the investigative jurisdiction of the Bureau. Furthermore, paragraph 3 of Part 1 of the same article can be interpreted as suggesting that, albeit under the general and vague mention of the personal data protection legislation, the head of the Bureau is entitled to regulate access to information and data available in other institutions and bodies.
 Para 11.
 See Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001, in which it was stated that "the proceedings for the application of preventive measures were conducted in the presence of both parties in three successive courts – the District Court, the Court of Appeal and the Court of Cassation. In particular, the applicants, instructing the lawyer of their choice, were able to raise the objections and adduce the evidence which they considered necessary to protect their interests, which shows that the rights of the defence were respected. In addition, the Court observes that the Italian courts were debarred from basing their decisions on mere suspicions. They had to establish and assess objectively the facts submitted by the parties and there is nothing in the file which suggests that they assessed the evidence put before them arbitrarily. On the contrary, the Italian courts based their decision on the evidence adduced against the first applicant, which showed that he was in regular contact with members of criminal organisations and that there was a considerable discrepancy between his financial resources and his income. The domestic courts also carefully analysed the financial situation of the other applicants and the nature of their relationship with the first applicant and concluded that all the confiscated assets could only have been purchased by virtue of the reinvestment of Mr Rocco Acuri’s unlawful profits and were de facto managed by him, with the official attribution of legal title to the last three applicants being merely a legal dodge designed to circumvent the application of the law to the assets in question (see, mutatis mutandis, Autorino v. Italy, application no. , Commission decision of 21 May 1998, unreported).
 Progress Report , page 73.
 , Anti-Corruption Reforms in UKRAINE, Round 3 Monitoring of the Istanbul Anti-Corruption Action Plan, March 2015, page 61.
 See the EU Directive, 2014/42/EU, on extended confiscation - .
 The full text of the unamended provision states: "Provisional access to objects and documents consists in providing a party in criminal proceedings by the person who owns such objects and documents, with the opportunity to examine such objects and documents, make copies thereof and, upon adoption of the appropriate ruling by investigating judge, court, seize them (execute seizure)".
See, e.g., G, S and M v. Austria (dec.), no. 9614/81, 12 October 1983.
See, e.g., Grifhorst v. France, no. 28336/02, 26 February 2009.
Article 29 provides: "No one shall be arrested or held in custody other than pursuant to a substantiated court
decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody"..
 Such a possibility was raised Korneykova v. Ukraine, no. 39884/05, 19 January 2012, at para. 34. but did not need to be resolved in the particular circumstances of that case.
 It now provides that "Investigators from units of the State Bureau of Investigations of Ukraine shall, save for the cases specified by Part Five of this Article, engage in pre-trial investigation of the crimes committed by officials holding a particularly responsible status pursuant to Part One of Article 9 of the Law of Ukraine On Public Service and the persons whose posts in the public service refer to categories one-three, judges and law enforcement personnel" instead of "Investigators from units of the State Bureau of Investigations of Ukraine shall engage in pre-trial investigation of the crimes committed by officials holding a particularly responsible status pursuant to Part One of Article 9 of the Law of Ukraine On Civil Service and the persons whose positions refer to categories 1-3, judges and law enforcement personnel, save for the cases specified by Part Five of this Article"
Najafli v. Azerbaijan, no. 2594/07, 2 October 2012, para. 51. See also Taraburca v. Moldova, no. 18919/10, 6 December 2011, para. 54.
Namely, the receiving of illegal benefits by an employee of a state enterprise, institution or organisation, forgery in office, taking a bribe, giving a bribe and provocation of bribery.
 Namely, abuse of authority or office, excess of authority or official powers and neglect of official duty.
 Thus, the European Court stated in Najafli v. Azerbaijan, no. 2594/07, 2 October 2012 that it found " it of no real significance that, while the alleged perpetrators were officers of the Riot Police Regiment of the Baku Police Department, it was another police department which was requested to carry out the investigation. What is important is that the investigation of alleged misconduct potentially engaging the responsibility of a public authority and its officers was carried out by those agents’ colleagues, employed by the same public authority. In the Court’s view, in such circumstances an investigation by the police force of an allegation of misconduct by its own officers could not be independent in the present case" (para. 52).
E.g., the UK’s Independent Police Complaints Commission ('IPCC') (https://www.ipcc.gov.uk/) oversees the police complaints system in England and Wales and sets the standards by which the police should handle complaints. It is independent, making its decisions entirely independently of the police and government. Its primary statutory purpose is to secure and maintain public confidence in the police complaints system in England and Wales. Police forces deal with the majority of complaints against police officers and police staff. The IPCC considers some appeals from people who are dissatisfied with the way a police force has dealt with their complaint. Since November 2012, the responsibility for determining appeals is shared with local police forces. In addition, police forces must refer the most serious cases – whether or not someone has made a complaint – to the IPCC.
 As to the scope of serious human rights violations see Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, adopted on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies.
 On account of their close functional interrelationship, these two bodies cannot be regarded as being independent from each other in terms of the standards on investigation of serious human rights violations; see. Barbu Anghelescu v. Romania, 5 October 2004, no. 46430/99, para. 67.
 Introduced by the Final Provisions to the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine".
 Thus, it provides that the agency conducting a pre-trial investigation is to have responsibility for a pre-trial investigation into other crimes - whether committed by the suspect or someone else - where it is not possible to separate the proceedings, notwithstanding that the agency concerned would not normally have jurisdiction to undertake a pre-trial investigation into those crimes.
See, e.g., Kennedy v. United Kingdom, no. 26839/05, 18 May 2010.
 See Natsvlishvili and Togonidze v. Georgia, no. 9043/05, 29 April 2014, at para. 97.
 In this connection, it is worth noting that the European Court in the Natsvlishvili and Togonidze case also considered that "a further guarantee of the adequacy of the judicial review of the plea bargain ... [was] the fact that the Kutaisi City Court was not, according to applicable domestic law, bound by the agreement reached between the first applicant and the prosecutor. On the contrary, the City Court was entitled to reject that agreement depending upon its own assessment of the fairness of the terms contained in it and the process by which it had been entered into. Not only did the court have the right to assess the appropriateness of the sentence recommended by the prosecutor in relation to the offences charged, it had the power to lessen it" (para 95.)
 , See:
 Those already on the list are people’s deputies of Ukraine; judges of the Constitutional Court of Ukraine, professional judges, as well as jurors, and people’s assessors at the time when they administer justice; candidates for the office of the President of Ukraine; the Commissioner of the Verkhovna Rada of Ukraine for human rights; the Head of the Chamber of Accounts, his first deputy, deputy, Chief Comptroller and secretary of the Chamber of Accounts; deputies of local councils; defence attorneys; the Prosecutor-General of Ukraine and his or her deputy; and the Director and officials of the Bureau.
 These are: members of the Parliament of Ukraine; candidates for the President of Ukraine; the Human Rights Commissioner of the Verkhovna Rada; the Chairman of the Accounting Chamber of Ukraine; the First Deputy Chairman; the Deputy Chairman, Inspector General, the Secretary of the Accounting Chamber; and deputies of the Prosecutor General of Ukraine.
 See Comments of the Directorate General Human Rights and Rule of Law (Directorate of Human Rights) of the Council of Europe on the Law of Ukraine on the Public Prosecution Service of 14 October 2014 (DGI(2014)30), paras. 25-30 and 76-92.