Head of Mission,
EU Advisory Mission Ukraine (EUAM)
One of the most seminal justice-related reforms to have occurred in Ukraine recently is the attestation of prosecutors at all levels, a process that is, at least formally, close to being finalised.
What is this all about? Ukraine’s Prosecution Service went through a wave of reforms and changes in management in late 2019 following President Volodymyr Zelensky’s sweeping electoral victories. At the heart of these reforms is the attestation of all prosecutors, a wholesale reappraisal of prosecutorial staff that involves tests, interviews and integrity checks. One of the aims of attestation is to limit the total number of prosecutors (OPG, regional, district and military) to 10,000 to be more in line with the European per capita average. Former Prosecutor General Riaboshapka reconstituted the OPG as of 2 January 2020[i], by completing the attestation at central level and launching the attestation at regional level.
Prosecutorial reform has proceeded despite PG Riaboshapka’s dismissal for a perceived lack of progress in high-profile cases. The new PG, Iryna Venediktova (the first woman to hold the position), has an excellent academic background in the field of civil law and international civil litigation/arbitration, and is considered closer to the president. Despite delays caused by COVID-related quarantine measures, the attestation of local prosecutors – the last stage – was finalised on 21 January 2021.
At central level, out of an initial 1,339 PGO prosecutors, only 610 passed, and were thereby admissible for the new OPG.[ii] At regional level, out of 3,697 prosecutors, around 2,500 passed the interview and are consequently eligible for transfer to the new regional structure. Finally, of 6,348 local (district) prosecutors initially included into the lists for attestation, 4,064 prosecutors passed examinations for knowledge of the law and general skills, as well as interviews designed to test for compliance with the requirements of professional competence and integrity. Notably, the biggest dropout was during the computer-based testing.
It is important to point out that as of now these numbers are still not confirmed since approximately 1,500 prosecutors did not attend as summoned, since there is an ongoing inquiry in the OPG on the HR Commission´s (conducting the attestation) decision to grant approximately 470 local prosecutors a chance to retake the second stage of attestation, and since there are more than 1,600 pending court cases, filed by prosecutors who failed attestation.
The fresh OPG report on the key results of the prosecutorial agencies for 2020 is rather positive. These positive trends include a 20% decrease in the number of all reported criminal offences, including particularly serious and grave ones; a 10% decrease in crimes against life and health; and a 25% decrease in crimes against property and against public safety. In addition, law enforcement agencies neutralized 30% more organised criminal groups,[iii] even if significant progress in high-profile corruption-related cases still appears to be lacking.
While attestation is a highly important step in reforming the prosecution system, it is just the first one towards ensuring that the most corrupt and unqualified prosecutors are removed from the system. Importantly, the new Strategy for the Development of the Public Prosecutor’s Office for 2021-2023 created a roadmap for the development of human resources and institutional capabilities of the Office over the next three years.
Among the priorities for 2021 are the completion of the attestation of prosecutors; transparent and fair selection process for filling vacancies; introduction of a Performance Evaluation System; participation in the drafting of a new Criminal Justice and Law Enforcement Development Concept; development and implementation of an integrated electronic system for the management of criminal cases (E-case management system); improving ethics and integrity of prosecutors and their disciplinary liability; steps to amend Ukrainian criminal procedure legislation to ensure effective and expeditious criminal investigations with a special focus on the protection of, and respect for, human rights.[iv] All these actions present a path towards a more efficient, accountable prosecution service that enjoys the trust of the Ukrainian people.
The reforms made so far have proven to be resilient; they have survived much change in the form of a new PG and then COVID. However, legal and other challenges to attestation will remain for some time, for example in relation to the 1,600 appeals mentioned above. The number of decisions in favor of the plaintiffs is slightly increasing, but it has not become systemic.
Still, with this number of lawsuits, it can be argued that the overall outcome of attestation will be decided at the cassation level of the Supreme Court, where most of the cases will end up, if not at the Constitutional Court, where a challenge on the constitutionality of the Law that produced the attestation procedure is still pending.
Justice reform is further complicated by the emerging division lines between the new anti-corruption institutions and traditional law-enforcement and judiciary, as well as the politicization of these institutions. Tensions are ongoing between the OPG and these anti-corruption institutions (mainly NABU), especially over the issue of jurisdiction in key cases.
All these challenges underline how law-enforcement reform cannot succeed without a comprehensive reform of the judiciary – the biggest test for the Zelensky era. This year may prove decisive in this regard.
Challenges notwithstanding, reform of Ukraine’s Prosecution Service is one of most important bricks in Ukraine’s new wall of justice. How things proceed from here will depend on the country’s current political leadership. The Mission stands ready to continue to advise in this crucial process.
[i] PG Order 351 of 23rd Dec 2019
[iv] Letter from OPG dated 22.01.2021 addressed to EUAM Ukraine
Expert article 2910
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