2.1. 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 oblast 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 certification of the Prosecutor General's Office, the personnel commissions were well-equipped with all the information about each prosecutor. The NABU prepared special information notes on each of them. However, the level of awareness of personnel commissions decreased significantly during the attestation of regional and local prosecutor's offices, particularly due to the NABU’s inability to prepare detailed profiles on each local prosecutor.
Even though the certification results were promising, they could have been more effective. In particular, the experts point to several approaches to the problems that they identified during various stages of evaluation:
- Leak of the list of tasks and official answers, which resulted in many prosecutors providing identical responses to practical tasks;
- Incompleteness and different amounts of information. Personnel commissions received different amounts of information about each prosecutor, there was no universal list of materials, which resulted in some dossiers being incomplete;
- Different approaches to evaluation. Different personnel commissions evaluated prosecutors differently, some could be asked about general knowledge of the law, others about things not related to the prosecutor's activities, and so on.
Publicity and transparency were also problematic aspects of the certification. Even though the results of the certification were published on the PGO website, there were several obstacles to obtaining more detailed information. In particular, one of the problems was the lack of open access to individual decisions by personnel commissions for each prosecutor. That is, it was impossible to trace the motives for the decision of the personnel commission. Certification materials were destroyed very quickly, and those that survived had to be obtained through the courts.
A striking example is the year-long court proceedings of Bihus Info journalists who appealed the refusal to provide decisions of personnel commissions.
The main problem of certification of prosecutors, which shows the project was not entirely successful, is the practice of prosecutors appealing the results. Dismissed prosecutors began to sue en masse for violating their labor rights. In their claims, they asked the court to reinstate them at work 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,1000 and also mentioned that the amount of compensation that the courts ruled to be due reached "horrible numbers." Experts note that the main reasons for the courts to make decisions in favor of dismissed prosecutors are the lack of reasoning behind the decisions of personnel commissions and the destruction of certification materials. Courts also did not see any violations in prosecutors filing a wrong application for certification. In June 2021, Parliament passed a law requiring re-certification for those who had been reinstated in court. However, this is not widely applied yet.
Journalists, in turn, show remarkable examples of prosecutors being reinstated. 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.
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 states that the practice of providing verbal, informal recommendations by senior prosecutors to lower-level prosecutors is quite common. Like judges, prosecutors see the advice or guidance of their colleagues as the norm rather than an attempt at pressure and therefore do not see it as a threat to their independence. This idea is even partially confirmed by the PGO, which states in an official report that "prosecutors' disagreement with the orders of the administrative nature of their leaders" is not a threat to independence. However, failure to follow the “advice” and “recommendations” of a superior prosecutor may have negative repercussions.
There are many methods of influencing prosecutors. Until recently, the most common of these was a deprivation of bonuses. The head of a prosecutor's office could, at his or her discretion, deprive any subordinate prosecutor of a bonus, regardless of their performance. This impact was quite significant, as bonuses could make up the bulk of a prosecutor's pay. According to a prosecutor we interviewed, every employee of his prosecutor's office was deprived of the bonus at least once during the year. In 2020, monthly bonuses to prosecutors were abolished.
Another 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 distribution. Similarly, the head of the prosecutor's office can easily withdraw his or her subordinate from the procedural management of any case. This practice is usually common when a prosecutor refuses to follow certain instructions from his or her 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.
Interestingly, this mechanism is actively used by the Prosecutor General. According to the NABU, there were situations when, in high-profile cases, the Prosecutor General secretly changed the group of prosecutors in the case without due grounds.
There is a clear hierarchy in the Ukrainian prosecution system. Each level of prosecutors is subordinated to the following. 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 authorities. The Prosecutor General is appointed by the President with the consent of Parliament and dismissed by 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 to the position). As a result, the Prosecutor General becomes extremely dependent on the authorities and his or her 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.
A clear example of this is the dismissal of Prosecutor General Ruslan Riaboshapka, who initiated the reform of the prosecutor's office. Experts and the media note that the reason for his dismissal was his refusal to sign the suspicion of the former president, which displeased the new president. Following his dismissal, a new Prosecutor General was appointed, who experts say is fully controlled by the President.
Another issue with the independence of prosecutors, in addition to the institutional structure and excessive politicization of the body, is the low efficiency of the body that is designed to ensure the independence of prosecutors—the Council of Prosecutors of Ukraine (CPU). According to experts, the CPU does not have the capacity and sufficient authority to protect the independence of prosecutors; in their view, the body has never ensured the independence of the prosecutor's office during its entire existence. Moreover, prosecutors themselves do not trust the effectiveness of the CPU. A prosecutor we interviewed points out that the CPU does not respond to interference in the independence of prosecutors. This statement is confirmed by official statistics. According to the PGO, in 2020 the CPU received 13 reports of threats to the independence of prosecutors, of which they responded only to two.
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. In 2020, personnel commissions considered 1,217 disciplinary complaints, of which 274 disciplinary proceedings were opened. As a result of the proceedings, disciplinary sanctions were applied to 63 prosecutors, including:
- 22 reprimands against 25 prosecutors;
- a ban on promotion or transfer to a higher-level prosecutor's office for 12 people;
- dismissal of 26 prosecutors (only in 9% of cases).
To ensure the integrity and control of prosecutors in the Prosecutor General’s Office, the General Inspectorate operates. 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.
One of the functions of the General Inspectorate is to conduct secret inspections of prosecutors’ integrity and participate in official investigations. In 2020, the General Inspectorate conducted 10,738 secret inspections of the integrity of prosecutors. As a result, only 4 prosecutors did not pass the inspection. The Inspectorate also participated in 119 official investigations (45% of the total number of official investigations). As a result of all official investigations, disciplinary complaints were sent to the personnel commissions against 79 people.
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 has the opportunity to dismiss any prosecutor on any grounds. A prosecutor we interviewed vividly described the activities of the General Inspectorate, calling it the “personal whip” of the Prosecutor General.
2.2. Competition for the position of the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO)
In the context of the independence of the prosecutor's office, it is necessary to discuss the situation surrounding the competition for the position of the head of the SAPO, one of the key bodies for combating corruption in Ukraine. We put the situation described below in a separate sub-paragraph to highlight one of the authorities' blatant attempts to influence independent anti-corruption leaders.
The head of the SAPO is a particularly important figure in the fight against corruption in Ukraine, as the proper functioning of the SAPO influences the progress of investigations and criminal proceedings related to grand corruption. Under the Law on Prosecution, the head of the SAPO is endowed with additional guarantees of independence and protection from interference by the authorities or the Prosecutor General. That is why the independent and scrupulous leader of the SAPO is a real threat to the corrupt. The selection of the head of the SAPO is a special procedure. The selection commission consists of international (delegated by the CPU) and national experts (delegated by the Parliament).
Last year, the previous head of the SAPO wrote a letter of resignation of his own volition. After that, the formation of the selection commission began. According to the expert community, some members of the selection commission from the Parliament were selected contrary to the law, as they did not have the necessary anti-corruption experience. Some members of the commission were included in the list as a result of a political compromise—to obtain the necessary votes. This meant that the activity of the commission was strewn with scandal. Experts appointed by international partners even wanted to leave the commission due to attempts by the authorities to influence the outcome.
However, the main problem was the excessive duration of the competition. During 13 months of work, the commission has not been able to select a new head of the SAPO. The reason for this was the fact that competition was stalled by the members of the commission appointed by the Parliament (and whom the public considers to be excessively politicized). Experts point to various reasons for such a long selection procedure. Some emphasize that this state of affairs is beneficial to the authorities, as the SAPO is currently controlled by the Prosecutor General. Others point out that the part of the selection commission controlled by the Office of the President is trying to select the "right" head of the SAPO. There is also a suggestion that the main purpose of the stalling is to restart the competition in the future.
As a result, SAP has been working without a leader for 13 months. Their duties are being de jure performed by the deputy’s head, but the public believes that the de facto control belongs to the Prosecutor General. The public believes this to be beneficial for the authorities, as it is now possible to control the activities of the SAPO through the Prosecutor General.