Back How to ensure prosecutorial independence in Ukraine?

On 16 April 2019 the roundtable “Prosecutorial independence: European standards and Ukrainian experience” was held in Kyiv, organised by the Council of Europe Project “Continued support to the criminal justice reform in Ukraine”, funded by the Government of Denmark (hereinafter – Project).
Kyiv, Ukraine 03 May 2019
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How to ensure prosecutorial independence in Ukraine?

30 representatives of the Council of Public Prosecutors of Ukraine (CPPU), the Prosecutor General's Office of Ukraine and regional prosecutor’s offices, the Qualification and Disciplinary Commission of Prosecutors, the Council of Judges of Ukraine, the National Academy of Prosecutors of Ukraine, international and local consultants of the Council of Europe took part in the event to discuss the issue of the prosecutorial independence in light of international standards and the Council of Europe member states best practices, as well as relevant Ukrainian experience. Among the issues on the event’s agenda – the powers of the prosecutorial self-governance bodies and discussion concerning the draft Regulation on the procedure for consideration of motions regarding threats to prosecutorial independence and taking measures for their protection (hereinafter – Draft regulation), developed by the CPPU.    

Senior Project Officer Oleksandr Dvornichenko noted that holding such an event is determined by the importance of prosecutorial independence issues for every single prosecutor. "We mean the independence of the prosecutor not only from external factors, but also the impossibility for the prosecutorial hierarchy to influence prosecutor’s decisions within the framework of criminal proceedings beyond the ways prescribed by the Law of Ukraine "On Prosecutor's Office". Indeed, independence of the prosecutor is an issue of primary importance for the effectiveness of the investigation. That is why the Council of Europe welcomes the discussion concerning this topic among prosecutorial and expert community, and supports the CPPU’s initiative to develop relevant regulations," he explained.

The CPPU mandate concerning prosecutorial independence covers two components. The first one means organisation and implementation of measures to ensure prosecutorial independence. Secondly, the CPPU is empowered to consider motions from prosecutors and other notifications on threats to the independence of prosecutors and to take relevant follow-up actions. Despite the broad powers in this area, the current law does not clearly define the limits and nature of prosecutorial independence, nor does it contain guidelines for the CPPU on organisation and implementation of such measures. CPPU has developed the Draft regulation, which was commented by the Council of Europe experts on its compliance with international standards (in particular, recently adopted opinion of the Consultative Council Of European Prosecutors No. 13 "Independence, Accountability and Ethics of Prosecutors"), as well as its conceptual compliance with the Law "On Prosecutor's Office”, the system of existing prosecutorial self-governance bodies and recent reforms of the prosecution service in Ukraine.

Mykhailo Misiura, Head of the CPPU, provided details on the situation regarding the independence of prosecutors in Ukraine. He emphasized that the Law of Ukraine "On Prosecutor's Office" sets out the main ideas and guarantees of European standards on the prosecutorial independence, but the task of the prosecutorial self-governance bodies to develop understanding of the need to meet these standards, to provide clarification on the forms and nature of independence for prosecutors, state bodies and the society. Among the main problems – the lack of funding of the prosecution service, existing principles of remuneration of prosecutors, personal security guarantees, etc. "Illegal influence and pressure on prosecutors and interference with the exercise of their duties are prohibited by the law. But it is not clearly identified what actions can be considered as a pressure, what are the rights of prosecutors in this regard and what are the responsibilities of other members of social relations" , - said the Head of the CPPU.  

According to Mr Misiura, external threats of prosecutorial independence are pressure, interference by the state authorities, political parties, MPs, other individuals or legal entities, mass media, etc. Typically, such means of illegal influence are used as public expression of beliefs regarding the unlawfulness of actions or decisions before their adoption; distribution of unconfirmed information that degrades the honor, dignity and business reputation of the prosecutor or prosecutor's office.

Among the internal threats – interference from his/her hierarchy. "As the practice of the CPPU shows, inside the prosecutorial service such pressure and interference may be accompanied by the deprivation of guaranteed benefits, for example de-bonusing or non-rewarding, by conduction of inspections of prosecutor’s work”, - said Mykhaylo Misiura.

The Council of Europe national consultant Yuriy Belousov shared with the participants the information on the internal threats to the prosecutorial independence, based on data collected within the research of local public prosecutors’ offices carried out with the support of the Project. According to him, those threats include the necessity for prosecutors to get approval for all main procedural documents with the management (which is a constant practice,) as well as the pressure on prosecutors through their salary and monetary bonuses.

As he said, in the new Law "On Prosecutor's Office" there is provision that sets the amount of the official salary of the prosecutor. But the provision is not applied in practice. Instead, the main regulatory document that determines the parameters for remuneration of prosecutors is the Resolution of the Cabinet of Ministers of Ukraine No. 505 dated March 31, 2012. In accordance with the mentioned resolution the official salary of prosecutor is almost 4 times less than the one established by the law. Full amount of the official salary of prosecutor is formed by bonuses (up to 70%). The issue of bonusing or de-bonusing fully depends on his/her hierarchy. Hence, it can be used as a mechanism for pressure on the prosecutor who may not agree with the decisions of the hierarchy.  

"It is very important for the prosecutor to make the decision on his/her own, based on the knowledge and professional experience. Decisions must not be taken neither under the pressure from the prosecutor's office, nor under external pressure from various groups of interest. Therefore, the issue of the independence of the prosecutor actually affects the effectiveness of the criminal investigations", - Yuriy Belousov summed up.

The Council of Europe international consultants Eric Svanidze and James Hamilton shared with the participants best practices, European and international standards concerning ensuring individual and institutional independence of prosecutors. "The differences between various prosecutorial systems of the Council of Europe member states make it complicated to talk about the only correct model of ensuring prosecutorial independence. Any recommendations for the certain state should take into account the place of prosecution service in the justice system and its functions. However, it is possible to set standards that take into account the diversity of models of the prosecution services, and the Council of Europe Recommendation REC (2000) 19 is an example of such work", said James Hamilton, former Director of Public Prosecutions of Ireland.

The Round Table participants had an opportunity to discuss the Draft regulation, which was presented by Mykhailo Misiura, Head of the CPPU. The Draft regulation establishes certain forms and limits of the prosecutorial independence, the procedure for examining motions on the threats to independence of the prosecutor, adoption of measures for its protection and risk prevention. The Draft regulation will be finilised in accordance with the comments received during the discussion, as well as with the comments made by the Council of Europe international consultants previously. It will subsequently be presented for the discussion within the prosecutorial community and will be approved by the CPPU.

Organisation of the event is part of the continuous support by the Council of Europe of implementation of the reform of the Ukrainian prosecution service in line with the European standards and best practices.


Event to discuss the issue of the prosecutorial independence in light of international standards and the Council of Europe member states best practices, 16/04/2019

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