Reforming the prosecutor’s office: a new wave of changes, an old personnel problem

Oksana04.09.2024

0 70 13 minutes read

In our country, law enforcement reforms have long become a common phenomenon, something like a national sport, where each new government competes to see which of them will propose the next “revolutionary” change. This endless marathon of reformation has every chance to go down in the history books as the longest process that never reaches its goal. It would seem that these structures have already been turned upside down so many times that one could expect that at the exit we will get law enforcement officers of the future – none other than “robocops” with inexhaustible energy to fight crime. But the reality, unfortunately, turns out to be completely different.

The paradox is that the more reforms are carried out, the worse the work of those who are supposed to protect us. The prosecutor’s office is a vivid example of this “progress”. Each new attempt at reform seems aimed not so much at improvement, but at another redistribution of positions and influence, without a real desire to change the situation for the better. In the end, people are more and more convinced: the more we “reform”, the less we believe that these reforms will one day bring real results.

Another reformation of the prosecutor’s office

On August 27, during the “Ukraine 2024. Independence” forum, Prosecutor General Andriy Kostin presented an ambitious plan for a new reform of the prosecutor’s office, which should become a landmark for the country’s law enforcement system. The announced changes are part of a three-level strategy that should transform the work of the prosecutor’s office, increase its effectiveness and public trust. This project, which has the status of a pilot, is aimed at solving systemic problems that have long troubled both the prosecutor’s office and society as a whole.

The first key stage of the reform will be the creation of a permanent personnel commission in the Office of the Prosecutor General. This innovation is designed to ensure a more organized and transparent approach to the formation of the leadership of regional and district prosecutor’s offices. The commission will be responsible for the creation of a personnel reserve, which will include candidates for groups of positions, and not for specific vacancies.

“The idea of this project is that the competition is held not for a specific position that is being vacated, but for a group of positions. So that we have a choice from a number of applicants who have been tested for competence and integrity.” – explained the Prosecutor General.

As Kostin noted, such an approach will not only avoid the rush of appointments, but also ensure the presence of proven and qualified candidates ready to take up management positions in the event of vacancies. This will significantly reduce the risks of political influence and random appointments, which often become the causes of inefficiency in the work of the prosecutor’s office.

The second innovation concerns the reform of the Qualification and Disciplinary Commission of Prosecutors, which is responsible for checking the competence and ethical behavior of prosecutors. Currently, a draft law is being prepared, which aims to implement the recommendations of the Group of States Against Corruption (GRECO). These changes are aimed at strengthening control over compliance by prosecutors with professional standards and preventing corruption risks. The commission will become an important tool in ensuring high requirements for prosecutors, which, in turn, will increase the quality of prosecutorial investigations and decisions.

The third and final stage of the reform is devoted to the system of internal control. Within the framework of this stage, it is planned to radically strengthen the role of the General Inspectorate, which should not only detect offenses, but also prevent them. The inspectorate will have wider powers in the field of preventive measures, which will reduce the risks of corruption and other abuses within the prosecutor’s office. This should be an important step on the way to creating an effective control system that will promote professional ethics and responsibility among prosecutors.

Previous reforms of the prosecutor’s office

During the last decades, the Prosecutor’s Office of Ukraine underwent numerous reforms, which were carried out under each new Prosecutor General. Here are some examples. One of the key moments was the year 2001, when during the so-called “Small Judicial Reform” the prosecutor’s office was deprived of a number of important powers. In particular, it lost the right to independently authorize arrests and searches, monitor the legality of court decisions, and initiate disciplinary proceedings against judges. In 2003, prosecutors were also deprived of the right to supervise enforcement proceedings, which significantly limited their role in the legal system. However, three times Prosecutor General Svyatoslav Piskun (2002-2003, 2004-2005, 2007) was an active initiator of a number of legislative changes aimed at increasing the role of the prosecutor’s office in the justice system. Subsequently, he explained that the incorrect reforms of 2015 led to ineffective work of the prosecutor’s office, it was deprived of the right to respond to offenses directly, the investigation was taken away, etc.

“There was one head of the law enforcement system who was responsible for the state of fighting crime in Ukraine, he was the Prosecutor General of Ukraine. Deprived of this right. For what? Who got better from it? And everything started rolling from those times. From those times, the outflow of professionals from the law enforcement system began.” – declared Piskun.

In 2012, under the leadership of Prosecutor General Viktor Pshonka (2010-2014), a new Criminal Procedure Code was adopted, developed in cooperation with European experts, which significantly changed the approach to the criminal process in Ukraine. Viktor Pshonka stated that Ukraine undertook to change the role and functions of the prosecutor’s office back in 1995 before the Council of Europe. Since then, several attempts have been made to reform this institution, but the results have been mixed. According to him, during all this time, several draft laws on the prosecutor’s office were developed, which aimed to carry out a comprehensive reform of this institution. However, none of these draft laws was approved by the Venice Commission and, as a result, did not become the subject of consideration by the Verkhovna Rada, leaving the reform of the prosecutor’s office unfinished.

After the Revolution of Dignity, Prosecutor General Oleg Makhnitskyi (2014) began the process of purging the prosecutor’s office of personnel associated with the previous government of Viktor Yanukovych. The process of reformation and purification included several stages. First of all, an internal audit of the activities of prosecutors who worked during Yanukovych’s rule was conducted. Special attention was paid to those who were involved in the persecution of protest participants on the Maidan, as well as to those who held high positions and made decisions that could be directed against the interests of the Ukrainian people. In addition, Makhnitsky initiated a process of lustration, in which many prosecutors were dismissed or forced to leave their positions due to revealed violations or connections with the previous regime. This process was accompanied by a thorough analysis of the professional activity of each prosecutor, as well as a check of their integrity and compliance with the new requirements set forth after the Revolution of Dignity.

However, the “cleansing” of the prosecutor’s office caused a lot of controversy and resistance from some representatives of the “old guard” who did not want to lose their influential positions. The society also had different opinions about the effectiveness and justice of these measures, but in general they were perceived as a necessary step towards real reform of the justice system in Ukraine. Prosecutor General Vitaly Yarema (2014-2015) continued the process of this reformation, cleansing the prosecutor’s office of the “old guard”, while the professionalism of employees was not taken into account, the main factor was the prosecutors’ loyalty to the new government.

Prosecutor General Viktor Shokin (2015-2016) became the object of criticism from the public and international organizations for insufficient effectiveness in the fight against corruption and the influence of political forces on the work of the prosecutor’s office and its next reformatting. Viktor Shokin fired Davyd Sakvarelidze, who headed the reform processes in the prosecutor’s office. This decision caused public indignation and became a reason for protests.

During the time of the Prosecutor General Yury Lutsenko (2016-2019), who before his appointment had nothing to do with the prosecutor’s office, reformation took place again. Another certification of prosecutors was carried out, which included a check on integrity and professional qualities. Many prosecutors who did not pass certification were dismissed or transferred to other positions. On the initiative of Lutsenko, the Department of Special Investigations was created, which was engaged in investigations of high-profile cases, in particular, crimes committed during the Revolution of Dignity.

Prosecutor General Ruslan Ryaboshapka (2019-2020), for whom Volodymyr Zelensky had high hopes, also started another large-scale reform.

“The key for us was to change the criminal policy and the role of the prosecutor’s office in the state. This body was used by politicians and oligarchs as a punishment for their own purposes for persecution. Therefore, by changing the role of prosecutors, we wanted to make them independent, raise their status to approximately the status of judges, so that the level of their independence is the same.”, – stated Ryaboshapka.

He considered the re-certification and dismissal of more than 50% of prosecutors who did not have sufficient knowledge and did not pass the integrity check to be the greatest achievement of the prosecutor’s office reform.

“We started certification with the number of prosecutors at 1,339, after all the procedures (a test on knowledge of the legislation, assessment of abilities, performance of a written task and integrity check), 610 prosecutors remained in the General Prosecutor’s Office. These are, in fact, those 610 prosecutors who have already been offered to transfer to the General Prosecutor’s Office and have been offered positions. We would like to recruit people who are professional, who are decent, but who do not have prosecutorial experience, in order to get fresh blood for the prosecutor’s office.” – said Ryaboshapka.

As a result, the maximum number of employees of the prosecutor’s office was reduced from 15,000 to 10,000, and no one noticed the special merits of the new employees. Ryaboshapka’s career ended ingloriously – on March 5, 2020, the Verkhovna Rada expressed no confidence in him, dismissing him from the position of Prosecutor General.

Iryna Venediktova (2020-2022) began her career as the Prosecutor General with great pathos and great hopes from the President of Ukraine, despite the fact that she was appointed without experience both in the prosecutor’s office itself and in practical law enforcement activities. Her appointment promised to be a real breakthrough in the fight against corruption, a symbol of a new era of transparency and justice, she had grandiose ambitions and a desire to carry out her reforms.

One of the main initiatives of Venediktova was another personnel purge and increasing the transparency of the body’s activities as a whole. Under her leadership, the certification of prosecutors was carried out again, with the aim of improving their qualifications and compliance with the requirements of the profession, in particular, dismissing those who did not pass the integrity check. In addition, it seems to have focused on combating corruption among prosecutors themselves, introducing internal investigations and strengthening the role of the General Inspectorate. On her initiative, the process of reorganization of military prosecutors’ offices began, in particular, reducing their number and changing approaches to work.

It seemed that with her arrival, all the problems of law enforcement agencies will be solved faster than the press releases of the President’s Office are published. The PR machine was in full swing, its every move covered in the media with all the necessary emphasis on reform efforts and unwavering determination to fight evil in the prosecutor’s office. Promises poured in from all sides: new certification, cleansing from corruption, increased responsibility. It was believed that a little more – and the prosecutor’s office will become a model of efficiency, honesty and decency. But the reality turned out to be somewhat different. Behind the big show and beautiful promises, many old problems were revealed, which could not be solved either by reforms or personnel changes. And when the inability to fulfill all these ambitious promises became apparent, the political wind suddenly changed its direction. Iryna Venediktova, who was once the main symbol of reformism, ended her career as the Prosecutor General as loudly as she started it – only now because of her dismissal.

As you can see, the Prosecutor’s Office of Ukraine was repeatedly reformed, there were certifications and reductions in personnel, and then there were again statements about a shortage of personnel and the recruitment of new employees. At the same time, prosecutors knowledgeable in jurisprudence were easily reinstated in their positions through the courts. An example of this is the well-known case, when the Vinnytsia District Administrative Court issued a decision regarding the reinstatement of the prosecutor, including compensation for “time off” of three months, which is more than his last year’s salary. It is interesting that the courts, enumerating the norms of domestic law, considered that there is no possibility to oblige the defendant (Prosecutor General’s Office) to repeat the attestation or make another decision. Therefore, the only way out is to renew in an equivalent position with fantastic compensation.

Personnel problems of the prosecutor’s office

Currently, there is a serious shortage of personnel in the prosecutor’s office of Ukraine, which continues to worsen. According to official information provided by the Office of the Attorney General in response to a request editors of Komersant.Info, currently 1,745 positions remain vacant. This applies to both prosecutors and civil servants, employees performing maintenance functions and workers. Moreover, the specified data do not take into account the Specialized Anti-Corruption Prosecutor’s Office, which makes the situation even more alarming.

The level of trust in the prosecutor’s office

During the two years of operation of the General Prosecutor’s Office, no significant results were achieved that could be proud of. Incomplete investigations of high-profile criminal cases, such as the shootings on the Maidan in 2014, the lack of real progress in reform, and incomplete certification of prosecutors — all this only significantly reduces the level of trust in this body.

Yes, for according to the Rozumkov Center in June 2024, 64% of Ukrainians expressed distrust in this institution.

Therefore, despite all efforts to reform, public trust in the prosecutor’s office remains low, and criticism of its work – both from the public and international organizations – does not subside. This shows that the reforms, although they were large-scale, did not achieve their goal, leaving many systemic problems unresolved.

One of the important reasons for the low level of trust and ineffective work of the prosecutor’s office is the imperfect legislation, in particular the current Criminal Procedure Code of Ukraine and the Law “On the Prosecutor’s Office”. Despite strengthening the guarantees of independence of prosecutors, these legislative acts significantly limited the human rights powers of the prosecutor’s office, depriving it of the function of pre-trial investigation of criminal offenses, as well as general supervision of the observance and application of laws. The prosecutor’s office does not have the right to come with inspections to enterprises or authorities, or to demand from them the provision of certain documents or other information. Similar actions by the prosecutor’s office are possible only in case of initiation of criminal proceedings.

However, not only imperfect legislation stands in the way of the effective activity of the prosecutor’s office, but also permanent, ill-conceived reforms. They have been going on for more than 20 years, creating an atmosphere of uncertainty and chaos when changes are introduced without a thorough analysis of their consequences. As a result, the prosecutor’s office faces staffing shortages, inconsistencies in authority, and loss of public trust. This continuous pursuit of reforms that do not bring real results only deepens the existing problems, making the system less stable and able to fulfill its basic functions.

Reforms are successful only when the changed form is filled with qualitatively new content. Unfortunately, the example of the prosecutor’s office shows that many changes initiated in recent years remained only at the level of form, without touching the content. Maybe it is enough to reform, to hide behind loud words and empty promises? It’s time to stop this silly game of reform, which only creates the illusion of change, and finally get down to business in a different way.

Improving the work of only one prosecutor’s office cannot give the desired results, because it is closely related to the activities of other law enforcement agencies and the justice system. If reform is to be carried out, it should be done including all elements of this system comprehensively, otherwise even the best changes in the prosecutor’s office will be limited in their effectiveness due to weak links in other bodies. Only in this way will it be possible to ensure real changes that will bring tangible results for society and restore citizens’ trust in all law enforcement agencies. Otherwise, we will only continue to stomp in place, wasting time and resources, without any real results.

Oksana Ishchenko

Oksana04.09.2024

0 70 13 minutes read