October 22, 2018
Back in 1995, before joining the Council of Europe, Ukraine committed to turn the prosecutor’s office from a punitive body into an institution that complies with European standards. However, only on October 14, 2014, a new Law “On the Prosecutor’s Office” was adopted, which was prepared taking into account most of the European recommendations. Experts admitted that it laid “a solid foundation in accordance with European standards and the needs of the modern criminal justice system”.
The Law provided, in particular for:
1) deprivation of the prosecutor’s office of supervisory powers;
2) liquidation of investigating units in the prosecutor’s office;
3) significant limitation of the area of responsibility of the prosecutor’s office;
4) establishment of new prosecutors’ self-government bodies – the Prosecutors Council and the Qualifications Disciplinary Commission of Prosecutors, which will allow implementation of the principle of the prosecutor’s independence through the introduction of transparency in the process of selection and bringing to disciplinary responsibility or dismissal of prosecutors.
Consequently, in 2016, in accordance with the amendments to the Constitution of Ukraine, the prosecutors were recognized as part of the justice system and finally got rid of its Soviet image at the level of the law. Instead of surveillance functions, the prosecutor’s office received the constitutional functions of procedural leadership in pre-trial investigation and public prosecution in the courts. The prosecutor’s office retained the function of the representation of the state interests in the court in exceptional cases, and representation of private individuals transferred into the system of free legal aid.
On paper, the Ukrainian prosecutor’s office looks like a European body. At the same time, four years is not enough to radically change the system that was built for decades.
Highlights of the changes in the Prosecutor’s Office in recent years
Frequent changes of the Prosecutors General. Four years after the Revolution of Dignity, we already have the fourth head of the Prosecutor’s Office. This is the first time in Ukrainian history (and possibly in the history of Europe) when the current head of the Prosecutor’s Office Yuriy Lutsenko is a professional politician who has no legal education.
In order to solve this problem and appoint Yuriy Lutsenko to this post, on May 12, 2016, the Parliament established a kind of “record” in terms of the speed of the legislative process. During one day the law has passed through the whole established procedure: from its submission to adoption as a basis and in general, signature of the Head of the Verkhovna Rada, signature of the President and the official promulgation.
Lack of stability in the management of the authority affects the work of prosecutors and the sequence of changes that are being implemented.
Contradiction of legislation. Although the Constitution defines the new functions of the prosecutor’s office, sectoral laws (Criminal Procedure Code, Code of Administrative Offenses, Law on Operative Investigation, etc.) are not brought into compliance with the Basic Law.
These laws provide for a broader range of prosecutors’ powers than they may have under the Constitution. To add this, the work of depriving the prosecutor’s office of the supervision function over the penitentiary institutions has not yet begun.
Execution of investigation functions. The prosecutor’s office still has investigative units, which must be liquidated on the basis of the provisions of the Constitution. Investigative powers from the prosecutor’s office should be transferred to the State Bureau of Investigations (SBI).
Since the adoption of the Law “On the State Bureau of Investigations” in 2015, the SBI has not yet begun its work. Only the leadership and dozens of employees were appointed. The next year should become the first year of actual operation of the SBI.
Complexity with the personnel renewal in the prosecutor’s office. The first attempt to reform the prosecutor’s office staff took place in 2015. The number of local units has been reduced by almost 5 times: from nearly 650 district prosecutor’s offices to 175 local prosecutor’s offices. This allowed for the reduction of about 3,000 prosecutors’ positions.
Such a consolidation of the prosecutor’s offices provided an opportunity to open competitions for the positions of the heads of the new local prosecutor’s offices. However, Viktor Shokin, the Prosecutor-General at that time, did not appoint any “external” candidate for leadership positions, despite the relevant recommendations of the competition commissions.
Although the law allows candidates to apply to the positions in the regional and the General Prosecutor’s Office if they have just relevant legal (not only prosecutorial) experience, such candidates are required to pass a one-year special training course at the Academy of Public Prosecutor’s Office. For example, this year, the Qualifications and Disciplinary Commission of Prosecutors selected the first 308 candidates who are currently undergoing annual training.
Having this practice in place, one should not expect a quick cleaning of the system from old staff.
Excessive number of prosecutors. Despite the substantially restricted powers of the prosecutor’s office, its leadership was not willing to comply with a strict legal requirement to reduce the number of prosecutors to 10,000 in 2018. That is why the Parliament cancelled this provision of the law on December 7, 2017. However, such a decision did not change the situation with the organization of the prosecutor’s work at the local level – they are still overloaded with work. After all, allocation of the number of prosecutors at the central, regional and local levels is disproportionate.
Ukraine continues to be the “leader” in Europe in the anti-rating of the number of prosecutors.
Illegal ways of influencing prosecutors. The Prosecutor General retains a “manual” way of determining the remuneration of prosecutors, by neglecting clear requirements of Article 81 of the law on the size and components of remuneration. Current salaries are 4 times lower than guaranteed by law. In general, three-quarters of the remuneration consist of additional payments, which depend on the decision of the management. At the same time, remuneration of the Prosecutor General and his deputies is three times larger than determined by the law.
The Prosecutor General has approved the procedure for official investigations, which is not envisaged by the law and duplicates disciplinary proceedings against prosecutors. Such investigations are nothing else than the mechanism for illegal collection and accumulation of information about “inconvenient” prosecutors, forcing them to execute instructions of the leaders.
The Prosecutor General introduced the practice of not informing the Qualifications Commission on vacant posts and appointing certain persons to these positions without a competition. In such a way, on July 2 of this year, the Prosecutor General appointed the prosecutors to the newly created department of managing criminal proceedings of the SBI.
Beginning of the work of the prosecutor’s self-government bodies. In 2017, the All-Ukrainian Conference of Prosecutors elected members to the Council of Prosecutors and the Qualifications and Disciplinary Commission of Prosecutors. Despite the contradiction to the process of appointment and political engagement of Yuriy Lutsenko, he did not block the formation of these self-government bodies, although the powers of the Prosecutor General were significantly limited.
Currently, the Council of Prosecutors approves all appointments of prosecutors to administrative positions, and the Qualifications Commission conducts contests for vacancies and disciplinary proceedings against prosecutors.
At the same time, the majority of the Commission members (6 out of 11) are not prosecutors, but lawyers and scientists. For a period of more than one year, the Commission has decided to dismiss 40 people from the prosecutor’s office. Moreover, 140 prosecutors have been subject to various disciplinary sanctions.
Despite this, the Commission did not dare to apply disciplinary sanctions to the leadership of the prosecutor’s office. While considering the cases against the Prosecutor General Yuriy Lutsenko and Chief Military Prosecutor Anatoliy Matios for violation of the principle of the presumption of innocence and against the Deputy Prosecutor General Dmytro Storozhuk for his participation in the congress of a political party, the Commission found no violations in their actions.
What is the outcome?
Next year Ukraine will receive a new Prosecutor General. In circumstances where many processes in the prosecutor’s office remain unfinished, there is a great risk of a rollback, when the new head of the prosecutor’s office would decide to nullify all previous achievements that were aimed at bringing the activity of this institution in line with European standards.
Author: Oleksandr Banchuk (Centre of Policy and Legal Reform)Author : Ukrainian Liaison Office in Brussels