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At its session on 11-12 October, the European Commission for Democracy through Law (the Venice Commission) adopted its Joint Opinion with the Council of Europe’s Directorate for Human Rights on the draft Law of Ukraine on the Public Prosecutor’s Office.
This draft Law will abolish the function of general supervision that currently allows the Public Prosecutor’s Office an extensive ability both to intrude into the functioning of the executive and to interfere with the interests and activities of private individuals and organisations. This capacity is compounded by the entitlement of the Prosecutor General and other public prosecutors to participate in the proceedings of the Ukrainian Parliament, boards of ministries, central executive agencies, local councils and other administrative bodies.[1] These powers and rights individually and cumulatively run counter to the appropriate separation of powers in a democracy, as well as posing a threat to rights and freedoms that are supposedly safeguarded by the Constitution.
Although welcoming this reform, the Joint Opinion identified five major areas of concern regarding the provisions relating to the powers of representation of the interests of the citizen and the state in non-criminal matters, the protection of the independence of public prosecutors, the appointment and dismissal of the Prosecutor General, the potential of certain provisions to restrict unjustifiably investigation and reporting by the media and the disciplinary procedures for public prosecutors. In addition to these main shortcomings, the Joint Opinion noted many important points of detail concerning individual provisions for which amendments and/or clarifications are required.
The enactment of a Law that satisfactorily addresses the points made in the Joint Opinion is one of the conditions for the conclusion of the EU-Ukraine Association Agreement at the EU’s Eastern Partnership summit in Vilnius in November.
The Joint Opinion was adopted on the basis of comments prepared by Jeremy McBride, acting as an expert for the Council of Europe, together with members of the Venice Commission and other Council of Europe experts.
Jeremy McBride is continuing to advise the Council of Europe on the steps needed to adopt a Law that meets European standards. Previously he advised the Council of Europe on the preparation of a new Code of Criminal Procedure in Ukraine to replace the one adopted during the Soviet era.
To read the Joint Opinion in full, please click here