available languages: englishУкраїнська July 19, 2018

Reforming the functions of Ukraine’s Public Prosecutor’s Office: new constitutional provisions and their (pending) implementation

Read the full paper in English or in Ukrainian.

Executive Summary

Until 2016, the scope of powers of Ukraine’s Public Prosecutor’s Office (PPO) was based on the old Soviet model under which that Office enjoyed broad powers of ‘general supervision’ of legality over all actions of state bodies and private persons. Rather than the limited sphere of criminal investigation that lawyers elsewhere associate with the term ‘public prosecution’, the Soviet-style prosecutor (‘prokuror’) could control and investigate any state body, any private body and any individual at any point at his or her own discretion.

This Soviet concept of the office cut across the separation of powers and in a corrupt environment became a tool of abuse: no better way to blackmail political opponents than unleashing the prokuror and no easier way for his office to collect bribes from someone than to threaten them with legal proceedings.

Ukraine’s Parliament made a big step forward when it abolished this power of ‘general supervision’ in the constitutional amendments of 2016 despite the stiff resistance from the PPO itself and some politicians. The resistance to these changes is now carried out through the drafting of ordinary legislation, which may reverse progress at the constitutional level through the adoption of laws that do not reflect the constitutional text.

The PPO now has three functions :

  • pleading criminal charges;
  • organising and procedurally managing pre-trial investigations, deciding on other legally determined issues during criminal proceedings, and supervising covert and other investigative and search activities conducted by law enforcement agencies; and
  • representing State interests in exceptional cases and under the procedure defined by law.

According to the transitional provisions of the Constitution, the PPO temporarily retains some supervisory (those concerned with the deprivation of personal liberty) and investigative functions until they are overtaken by other competent authorities that are yet to be created.

The abolishment of the “general supervision” is a breakthrough but the battle is not yet won. The new constitutional provisions need to be implemented with more legal detail in ordinary laws (especially the law on the PPO and the Criminal Procedures Code) and applied by the state.

In particular, the ambiguous language of the PPO’s function to “organise and procedurally manage” pre-trial investigations opens the door for an expanded scope of authority of the PPO as long as they remain at least tenuously related to pre-trial investigations.

 

Photo by Sasha Maksymenko/flickr.