A pillar of Soviet authoritarian rule, the general prosecutor’s office, will have its sweeping, broad and arbitrary powers reduced under legislation signed on Oct. 23 by President Petro Poroshenko.
“We have liquidated
the last Soviet remnant in Ukraine’s law enforcement system,” Poroshenko said, adding
that the new limits placed on the prosecutors’s powers will be more in line
with European standards of justice.
Prosecutors, under the
new legislation, will be focused on prosecuting people charged with crime and
broader public justice issues, including representing state interests.
The change in the role
of Ukraine’s prosecutor is championed as a cornerstone in a package of other
anti-corruption legislation designed to tackle the scourge of lawlessness and
graft that has plagued the nation.
Notably, the
prosecutor’s office no longer has “general supervision” powers that allowed its
representatives to effectively inspect the activities of any person, company or
state body without showing any probable cause for the probe.
This extraordinary power
to perform supervisory functions outside of criminal proceedings has been the
subject of Venice Commission criticism – the European Union body that
specializes in constitutional law – in the past. These prosecutorial powers
were used to suppress dissent and “enemies of the state” during the Soviet
Union, instruments in perpetuating Communist Party rule rather than rule of
law.
The law also removes
the prosecutor’s investigative function and powers of arrest, including
pre-trial detention, according an analysis by law firm CMS Cameron McKenna,
co-authored by lawyers Daniel Bilak, Sergiy Gryshko and Mykola Heletiy.
“We must transfer
investigative (powers) to the State Bureau of Investigation,” Poroshenko said.
According to the CMS
Cameron McKenna lawyers, the prosecution service is now limited to:
· representing the state in criminal
prosecutions before the courts;
· representing the rights and interests of
citizens or the state in exceptional cases expressly stipulated by law; and
· monitoring compliance with the laws by
law-enforcement bodies during intelligence operations, pre-trial investigations
and enforcement of criminal sentences.
Limiting the powers of
the agency is also expected to reduce opportunities for corruption by providing
a semblance of checks and balances in the criminal justice system. Prosecutors
will now find it more difficult, it is hoped, to solicit bribes or extort
businesses because they are deprived of their “general supervisory” function
used to pressure their targets, including political opponents.
People summed to the prosecutor’s office under the
“general supervision” pretext had fewer rights than criminal suspects, said
Borys Malyshev, a legal expert who is involved in the Reanimation of Reform
Package.
The supervision function also enabled prosecutors to
wield great influence over criminal investigations by deciding which body, the
Interior Ministry or prosecutor, gets to conduct the investigation. If police
conduct the investigation, they have to get written permission for every course
of action that is taken in the process, under the current methods.
The deadline for transferring the prosecutor’s
preliminary inquiry and general supervision functions to the State Bureau of
Investigation is November 2017.
Sergiy Grebenyuk, an attorney with Egorov Puginsky
Afanasiev & Partners, said that some critics of the law fear that with the
general supervision function taken away, citizens won’t be able to file public
interest complaints.
“Citizens were able to complain about a factory
polluting their village and the factory owners would be summoned for
questioning,” says Grebenyuk. “It is important to make sure they can complain
to some other institution – like the (newly established) National Investigation
Bureau, for example.”
For Malyshev the most progressive feature of the new
law is the decentralization of powers at the agency.
Under the old law, the prosecutor general combined
three functions: managing the office, choosing and hiring new prosecutors and,
finally, addressing complaints against the prosecutors. Now, it will be
stripped of the last two functions.
Two newly established bodies of the prosecutor’s
office will be responsible for hiring on a competitive basis and firing, as
well as disciplinary matters. This change is designed to give prosecutors more
independence and legal protection, while also becoming more accountable.
Although, the prosecutor general will still be
appointed by the president, the post will not have all the previous powers to
follow the president’s instructions.
Another important innovation, Malyshev said, is that
now an employee of the prosecutor’s office can refuse to fulfill an order from
a superior unless they receive it in written form. Also, if they consider this
order illegal, they can complain to the Disciplinary Commission, one of
the two newly established self-governing within the prosecution service. This
measure is also supposed to decrease corruption and abuse of office at the
institution.
Now, the question is who and how the law will be implemented.
The problem that most experts cite is that the
institution is basically asked to change itself. A great degree of sabotage and
resistance is expected.
“The prosecutor’s office staff is going through
difficult times, many of them will be fired because of the lustration law,
while others will be simply laid off as the prosecutor’s office will shrink,”
explains Grebenyuk.
Those prosecutors will try to impede change and
eventually many of them may quietly migrate to the new institutions, like the
Investigation Bureau.
Editor’s Note:This article is part of the Kyiv Post’s Reform Watch project, sponsored by the International Renaissance Foundation. Content is independent of the financial donors. The newspaper is grateful to the sponsors for supporting Ukraine’s free press and making specialized coverage of reforms possible through this project.
