A prosecutor’s office like in Europe: are there any successes in Ukraine and what needs to be changed?
A prosecutor’s office like in Europe: are there any successes in Ukraine and what needs to be changed?
Specially prepared for EUROPEAN PRAVDA
Eugene Krapyvin, expert of the CPLR, specially for “Tomorrow’s Lawyer”
Daria Pysarenko, CEO, “Tomorrow’s Lawyer”
Ukraine’s European integration is inconceivable without reforms in the justice sector.
However, in the public consciousness, this is usually mistakenly limited to the work of the courts. Meanwhile, the prosecutor’s office is also a part of the justice system, representing the public prosecution in court, i.e. all the ‘achievements’ of law enforcement agencies.
The situation with prosecution reform in Ukraine is paradoxical. In fact, most of the European standards have been implemented over the past 9 years of reforms and even before 2014. This being said, at least at the legislative level, we can say that we already have a ‘European-style prosecution service’.
But has it become effective and truly ‘European’? And what are the changes that have already been implemented and those that are still pending?
It is worth starting with the fact that the EU does not voice clear requirements or wishes as to the direction in which the prosecution service should move in the future. This is primarily due to the fact that within the EU itself, the principles of formation and day-to-day operation of the prosecution service differ from country to country; this is largely a matter of national rather than common EU standards.
For the EU, it is important what the outcome of the reforms would be: in European Ukraine, as in all EU states, the prosecutor’s office must be independent, effective, etc., and it is these general democratic parameters that will be tested during the negotiations on Ukraine’s accession to the EU.
The decision on how to implement these reforms is largely up to Kyiv.
The prosecutor’s office reform haven’t found its place among those 7 criteria Ukraine received in June of this year, although it is indirectly addressed within criterion 4, which refers to the need to adopt an ‘overarching strategic plan for the reform of the entire law enforcement sector as part of Ukraine’s security environment’. On 12 May, the President of Ukraine finally approved this document, and its substance was agreed with Europeans (and therefore immediately received a positive feedback from the EU ambassador and other officials).
The overarching strategic plan is a framework document and speaks purely of the principles by which changes should be made. In any case, this is a long-term plan, designed to be implemented by 2027.
Ukraine is not being pushed to implement urgent reforms in this area, as is the case with other elements of the justice system.
The EU recognises that the decision to undertake a large-scale, comprehensive reform in this area is a matter of national policy, especially in times of war, when the rule of law system faces new challenges due to a strong public demand for justice through punishment for international crimes and crimes against the national security (collaboration, treason, etc.).
However, the question is already relevant: what does the ‘European prosecutor’s office’ look like? And what do we need to do to become one? Or perhaps we can already claim this ‘title’?
Reforms that have already taken place
In general, if we look at the UN standards, such as the Guidelines on the Role of Prosecutors (1990) or the Council of Europe standards, including the conclusions of the Venice Commission on Ukraine and other states, we can say that over the past 9 years, Ukraine has adapted its legislation to European standards.
This includes the adoption of the new Law of Ukraine “On the Prosecutor’s Office” (2014), which clearly defined the structure of the prosecutor’s office, separated administrative and prosecutorial positions, etc.; amendments to the Constitution that deprived the prosecutor’s office of the function of general surveillance (2015), defining the constitutional functions of the prosecutor’s office by abolishing a separate Section VII of the Constitution of Ukraine and including the prosecutor’s office in the justice system (2016); establishment of prosecutorial self-government bodies (All-Ukrainian Conference of Prosecutors, Council of Prosecutors) and bodies that ensure the activities of the prosecutor’s office.
At the same time, there were also unsuccessful political decisions in these processes.
Think about the unsuccessful certification of local prosecutors under Shokin (2015), the exclusion from the law of the requirement for the Prosecutor General to have a legal education for the ‘right person’, namely Yuriy Lutsenko (2016-2019) and ignoring the results of the first All-Ukrainian Conference of Prosecutors (2016), the large-scale reform of prosecutors under Ruslan Ryaboshapka (2019), which was declared unconstitutional in terms of dismissal warnings (2023), and the results are still being challenged in administrative courts.
In fact, the reforms of 2014-2019 contained a number of controversial decisions, but at the same time, they brought our prosecution system closer to European standards.
A significant achievement of both civil society and Ukraine’s international partners is that the framework of political reforms – narrowing the functions of the prosecutor’s office, strengthening guarantees of independence and deprivation of unnecessary powers – has been preserved behind the layers of political reforms, which has largely been implemented.
The recommendations for reforming this area from GRECO (the Council of Europe’s Group of States against Corruption) are mostly being implemented by Ukraine in a satisfactory manner.
However, there are some shortcomings – for example, in the 4th round of GRECO’s assessment of the organisation of the prosecution system, a number of recommendations remain unimplemented or partially implemented, such as the introduction of a system of random distribution of proceedings among prosecutors (as is the case in the courts), a more precise definition of disciplinary offences related to the conduct of prosecutors and compliance with ethical standards, an expansion of the range of available disciplinary sanctions to ensure greater proportionality and effectiveness, and an extension of the time limit for appealing against a decision. This list is not exhaustive.
Nevertheless, it is safe to say that compared to the Soviet prosecutor’s office, which was the ‘controller of the entire sphere of public law’, progress has already been incredible.
Before that, the prosecutor was a kind of ‘personification of the state’ and a means of punishment in one person. They could come and ‘punish a house maintenance office’, just as they could come to an enterprise, i.e. a business, and do some inspections, issue orders and otherwise block its activities. For this purpose, concerned citizens could submit complaints about everything that was illegal and seemed to be so (although some still do).
From that system we moved to the system of administrative justice – any issues with the authorities are resolved in courts, where you can also lose to the state – but with judicial oversight, superior prosecutors, etc.
The former functions of the prosecutor’s office to represent the interests of citizens, especially socially vulnerable groups, in court were successfully taken over by the system of free legal aid established in 2012-2016, for which this function, unlike the prosecutor’s office, is inherent and fundamental. After all, the prosecutor’s office is about representing the public interest. The protection of the rights and interests of citizens is the responsibility of the FLA system, which unites thousands of lawyers in Ukraine.
Starting from 2014, guarantees of independence were added.
Previously, honest prosecutors were dismissed by their supervisors without any guarantees or proper disciplinary procedures, but now the system has lost this arbitrariness.
The system of appointments has also changed, from arbitrary to competitive.
In addition, the prosecutor’s office has been deprived of powers outside of criminal proceedings, for example, in terms of overseeing the penitentiary system.
The general supervision, lack of guarantees of independence and other norms that have been changed over the past decade have allowed dishonest prosecutors to take too much liberty in their relations with business, law enforcement agencies, politicians, etc. This significantly distorted the justice system.
In short, we have indeed created the basis for a European-style prosecutor’s office, where prosecutors are truly procedurally independent, protected from arbitrary dismissal, and possess a single status as an officer of justice.
All of this is already provided for in the legislation and partly works in practice.
Unfortunately, there is still a tradition of each new prosecutor seeking to ‘re-certify all bad prosecutors’, change the heads of prosecutor’s offices at all levels ‘from bad to good’, etc., which greatly undermines this independence. This time, the only way to stop the tide of such decisions was through a full-scale war, putting on hold all drastic personnel changes. But the next change of political power, which happens sooner or later, will once again launch large-scale reforms of the prosecutor’s office totally contradicting European standards.
In the meantime, it is time to stop rewriting legislation, rather learn how to implement it and build new institutional practices. The role of the prosecutor in criminal proceedings should be respected, and the Prosecutor General should finally be appointed and dismissed on professional criteria, not by a political decision or a ‘vote of no confidence’ without justification and lacking professional assessment by self-governing prosecutorial bodies.
And finally, has the prosecutor’s office become more effective over the nine years of reforms?
There are reasons to believe that it has, especially if we look at military justice or combating white-collar crime, including the work of the Specialised Anti-Corruption Prosecutor’s Office.
However, the awareness of their role in criminal proceedings, real coordination of law enforcement agencies, the ability to speak to society not in terms of statistical indicators of success and abstract public trust, but in terms of real impact on crime – all these things leave much to be desired.
Moreover, the desire of each political power to implement a new large-scale reform of the prosecutor’s office, primarily to appoint a ‘good Prosecutor General’, has not vanished.
We have to realise that even the coveted EU membership will not automatically eliminate these problems.
This is not a problem of the prosecutor’s office as such, but of the entire criminal justice system and the system of government. Yuriy Lutsenko with the ‘big fish’ or Anatolii Matios with the ‘helicopter tax officers’ case’ are not unique phenomena and are not separated from the overall development of democracy.
What about prosecution in the European Union itself?
Each prosecutor’s office in the EU is formed according to the national legislation, thus being different from each other. Some prosecutors’ offices are part of the Supreme Court, some are part of the executive branch (the Ministry of Justice), and some are separate independent bodies (like in Ukraine). Likewise, the Prosecutor General is appointed by different bodies – governments, presidents, ministers in consultation with governments, etc.
What unites all these models, and what is a attributed to a European prosecutor’s office, is respect for professionalism through integrity and independence of the prosecutor, strong prosecutorial self-government bodies, and effective coordination of efforts of various law enforcement agencies at the national level.
These cannot be achieved through changes to legislation, but by building institutions within the prosecution service, adherence to professional ethics, awareness of their professional role, respect for the prosecution service and the court by participants in criminal proceedings, etc.
At this point, have we built a European-style prosecutor’s office already? Rather the answer is no, we have only created some pre-conditions for this.
But since Yanukovych’s time, the prosecutor’s office has definitely become more effective. There is a visible progress. But true change comes in a slow pace.
This text was prepared within the framework of the EU-funded project “Civil Society for Ukraine’s Post-war Recovery and EU-Readiness”. The views expressed in this article do not reflect the official position of the EU.