Article 11.2.
Prosecution services

The special act that regulates the activities of prosecution in Ukraine is the Law On Prosecution. In particular, it determines the organizational principles of the prosecutor's office, the powers of prosecutors, the procedure for dismissal of prosecutors, bringing them to justice, etc.

In 2019, when the new government came to power, the prosecution reform was launched. For this purpose, a special law was adopted on priority measures to reform the prosecution authorities. In particular, it established a temporary procedure for the selection, evaluation (certification) and consideration of disciplinary proceedings against prosecutors. The main task of the reform was to clear the prosecutor's office of unprofessional and dishonest employees. It lasted for two years from September 2019 to September 2021, which is why, in the context of this report, we will focus on the results of the reform. The activities and independence of prosecutors should be viewed through the prism of compliance with the "Guidelines On the Role of Prosecutors".

1) Qualification, selection and training
The Law on Priority Measures provided that the selection of prosecutors is carried out by specially created temporary personnel commissions, and the main stages of the competition include two anonymous tests and an interview. The selection of candidates is transparent and public. Among other documents, applicants submit an income declaration and a declaration of integrity and family ties, as well as undergo a special examination. A detailed procedure for selection is determined by the Prosecutor General.

The reform of the prosecutor's office provided for mandatory certification by all prosecutors for two years. It included an assessment of the professional competence, professional ethics, and integrity of the prosecutor. Certification was carried out by personnel commissions in three stages – two exams and an interview. The Law on Priority Measures guaranteed the publicity and transparency of the certification process. If the prosecutor refused to pass the certification or failed to pass any of its stages, he or she was dismissed from office.

2) Disciplinary proceedings and dismissal of prosecutors
The Law on Prosecution provides a clear list of grounds for dismissal of prosecutors. Decisions on dismissal of a prosecutor may be taken by the Prosecutor General (for prosecutors of the Prosecutor General’s Office), the head of the SAPO (for SAPO prosecutors), and the heads of regional prosecutor's offices (for prosecutors of regional and district prosecutor's offices). In addition, prosecutors may be subject to disciplinary liability. Disciplinary proceedings during the reform period were carried out by personnel commissions. Now, these powers are exercised by the Qualification and Disciplinary Commission of Prosecutors (QDC). The prosecutor may be subject to disciplinary responsibility for an exhaustive list of grounds established by law. Any person has the right to file a disciplinary complaint. All complaints are registered in a system that automatically distributes them. The decision of the personnel commission or the QDC can be appealed to the court or the HCJ.

Independence of prosecutors
Despite the beginning of the reform, public confidence in the prosecutor's office remains low. According to opinion polls in 2019 (before the reform), 70% of the population did not trust the prosecutor's office, and only 15% did. In 2020, the level of distrust fell to 68%, and trust rose to 19%..
In 2021, the last year of the reform, the level of distrust increased to 71%, and trust dropped slightly to 18%.

The low level of trust in the prosecutor's office is a consequence of complex problems, but not least by the problems with an insufficient level of independence of this body.

1) Qualification of prosecutors
The procedure of mandatory certification of prosecutors introduced during the reform has proved to be quite effective in comparison with a similar procedure of qualification assessment of judges. As of the beginning of 2021, almost 7,157 prosecutors had passed the certification procedure (64% of all those who participated). Approximately 35-40% of prosecutors were dismissed as a result of the certification process (approximately 2,000 people, according to the Prosecutor General).

Certification of prosecutors at different levels was also different. The evaluation of prosecutors of the Prosecutor General's Office, which took place first, showed better efficiency than the evaluation of lower-level prosecutors. In particular, only 45% of prosecutors were certified in the Prosecutor General's Office, while in regional and local prosecutor's offices, this figure is much higher – 67% and 66%, respectively. This difference is explained primarily by the information support of personnel commissions. Experts note that during the attestation of the Prosecutor General's Office, the personnel commissions were better provided with information on each prosecutor, in particular due to the availability of detailed NABU reports containing aggregated data from various state registers. However, the amount of information on prosecutors available to the personnel commissions during the attestation of regional and local prosecutor's offices was significantly less.

The effectiveness of attestation could have been improved. In particular, the experts point to several approaches to the problems that they identified during various stages of evaluation:

• Leakage of the tests and official answers, which led to identical answers to practical tasks from many prosecutors;
• Incomplete and different amounts of information.

A sign that does not allow to consider the attestation successful is the practice of prosecutors appealing its results. Dismissed prosecutors began to sue en masse for violating their labor rights. In their claims, they asked the court to reinstate them in their jobs and pay compensation for the entire period of their forced absence from work. The exact number of reinstated prosecutors and the amount of compensation awarded is not known, although experts point out that this practice is quite common. In 2020, the Prosecutor General noted that there were about 1,000 such cases in courts, and also mentioned that the amount of compensation that the courts ruled to be due reached are "horrible numbers."

Journalists highlight examples of high-profile reinstatements. For instance, one of the reinstated prosecutors was somebody who had directly interfered in the investigation concerning his father’s company. Another similar example was a prosecutor guilty of a DUI accident that resulted in children getting injured. In another case, a prosecutor was reinstated despite doubts about his integrity, and he received about EUR 25,000 of compensation from the Prosecutor General’s Office.

Evaluating the certification procedure, experts note that it was not entirely successful. In particular, due to its unstable results, multiple grounds for appealing the decisions of the personnel commissions and the concentration of powers to conduct certification in the hands of the Prosecutor General. However, the reform is not over. It is an absolute illusion that some stage of reform has passed. It was supposed to reduce the number of prosecutors from 15,000 to 10,000, but this did not happen. One expert suggested that there is a need to develop a different staff structure for prosecutor's offices. The prosecutor's office does not need so many heads of departments, their deputies, and heads of divisions, because each prosecutor is independent and autonomous.
2) Institutional independence
Neither prosecutors nor prosecution, in general, can be considered independent. The reason for this is the institutional structure of the body and the excessive politicization of the Prosecutor General. Any prosecutor can be pressured by any superior prosecutor, and the Prosecutor General in turn is influenced by the country’s leadership. The widespread practice of informal influence is a threat to prosecutors’ independence, similar to the situation with judges. The OSCE report on the independence of prosecutors' offices in Eastern Europe in 2020 states that the practice of providing verbal, informal recommendations by senior prosecutors to lower-level prosecutors is quite common.

Unlike judges, prosecutors understand and identify the problem. An anonymous survey of 84 prosecutors showed that they do not consider themselves independent. Unfortunately, they are forced to carry out sometimes dubious instructions from their superiors, and are burdened with some unclear work that often comes down from above and takes a lot of time. Because of this, they are forced to perform the functions of the prosecutor's office less than to be "good".

There are many methods of influencing prosecutors. A fairly common way to influence prosecutors is their suspension from criminal proceedings. The head of the prosecutor's office independently distributes criminal cases among subordinate prosecutors, as there is no automated system. Similarly, the head of the prosecutor's office can easily withdraw their subordinate from the procedural management of any case. This practice is usually common when a prosecutor refuses to follow certain instructions from their management regarding a particular case. Thus, heads of prosecutor's offices can control the progress of any case investigated in their body. Experts interviewed by us point out that this practice is extremely common at all levels and indicates direct interference in the independence of prosecutors.

There is a clear hierarchy in the Ukrainian prosecution system. Each level of prosecutors is subordinated to the next one. That is why the position of the Prosecutor General is essential for control of the entire institution. In turn, the process of appointing and dismissing the Prosecutor General is completely dependent on the government. The President appoints and dismisses the Prosecutor General with the consent of the Parliament. No competitive element is envisaged in the selection of the Prosecutor General. The candidate only has to meet the criteria set out in the law (as practice shows, the requirements of the law can be changed to appoint a particular person). As a result, the Prosecutor General becomes extremely dependent on the government and their disobedience will mean resignation. The dependence of the Prosecutor General was best confirmed by the President of Ukraine himself in a conversation with the President of the United States, where Mr. Zelenskyy called the then-Prosecutor General “100% his person". Experts point out that almost every Prosecutor General is dismissed for political reasons.

3) Disciplinary liability
Disciplinary complaints during the reform of the prosecutor's office were considered by a designated personnel commission. It consisted of 7 members, each of whom was a representative of the Prosecutor General’s Office. The members of the commission were appointed by the Prosecutor General, which casts doubt on the independence of this body. Experts note that the members of the commission did not have the institutional capacity (sufficient experience and knowledge) to consider disciplinary cases. Moreover, the practice of reviewing disciplinary complaints by the personnel commission, according to prosecutors, is selective and non-uniform.

The General Inspectorate is in charge of ensuring the integrity and control of prosecutors in the Prosecutor General’s Office. It is subordinated to the Prosecutor General of Ukraine and acts based on a bylaw – the Order of the Prosecutor General. The Law on Prosecution does not define the functions, powers, and tasks of this structural unit, but only provides for its creation.

The institution of disciplinary liability is often used to put pressure on certain prosecutors by the institution’s leadership. The General Inspectorate is actively used for this purpose. Experts believe that it is through the Inspectorate that the Prosecutor General can easily influence any prosecutor through official investigations and secret integrity checks. According to experts, the General Inspectorate can create materials for dismissal, which are usually of poor quality. The prosecutor we interviewed aptly described the General Inspectorate as the Prosecutor General's ”personal whip”.

Implementation in practice after State evaluation.