It's very difficult to regain lost trust. That's the problem facing Ukrainian prosecutors. They're not making it any easier by failing to prosecute anybody for major crimes against Ukraine, ranging from large-scale embezzlement to murder.
For years, prosecutors have been weapons of political persecution while simultaneously covering up or stalling criminal investigations of the high and mighty.
It’s easy to see why Ukraine’s army of 18,000 prosecutors are both despised and feared. For one reason, they obtain convictions against 99 percent of the defendants they take to court – courts in which judges, not juries, render verdicts. For another reason, prosecutors are not accountable to the public, giving almost no information about cases under active investigation or explaining why some cases are not investigated at all and others are closed without criminal charges.
One big proposed change is to gradually strip prosecutors of their investigative powers and instead invest them in a State Investigative Bureau, which will probe crimes committed by high-ranking officials, judges and prosecutors, according to Oleksandr Banchuk from Center for Political and Legal Reforms.
In parallel, the newly created National Anti-Corruption Bureau will be responsible for high-profile graft cases.
The State Investigative Bureau also could, in theory, help Ukraine fulfill a ruling made in 2012 by the European Court of Human Rights that obliged the country to create a mechanism for investigating complaints against the justice system, Tetyana Mazur, director of Amnesty International Ukraine told the Kyiv Post.
“But we want to see (such an organ) being not just something new, but also effective,” which means it must have all of the necessary resources at its disposal, from new investigators with decent salaries, to sufficiently broad powers, she said.
The new investigative bureau is expected to have full autonomy from the prosecution service and the Interior Ministry, Olena Sotnyk, a lawmaker with the Samopomich party and one of the authors of the bill on State Investigative Bureau, said.
However, there’s no agreement yet on who will appoint the head of this powerful, new, professional investigative body.
Pro-presidential party leader Yury Lutsenko “believes that the president should appoint the head,” Sotnyk said. But given that president already appoints the heads of the prosecution and state security service, this could lead to too much presidential power, she said.
In the meantime, Deputy Prosecutor General Davit Sakvarelidze is working to get rid of corrupt and unprofessional prosecutors and hire better ones.
Since Sept. 5, prosecutors at local prosecutor offices have been undergoing two types of testing: an open competitive selection process for appointments to managerial posts, and re-attestation for regular prosecutors.
As a result of the competitive process, the present 2,250 managerial positions are to be shrunk to just 700.
When the testing is over, a commission consisting of three candidates appointed by parliament and four by the Prosecutor General’s Office will chose the three best-qualified candidates for each managerial post, while Ukraine’s Prosecutor General Viktor Shokin will make the final decisions.
Not surprisingly, Shokin has already filled his commission quota with prosecutors, rather than lawyers or human rights activists, Sergiy Grebenyuk from Egorov Puginsky Afanasiev & Partners law firm told the Kyiv Post.
Outside candidates will be allowed to compete for these posts only if some prosecutors flunk the retesting process. But whether this happens or not “will become clear no earlier than Dec. 15, when the testing is finished,” Banchuk added.
Another problem is that the retesting process lacks transparency, said Sotnyk. While the results are made public, there are no names, only candidate numbers, which makes it impossible for the public to track the process independently, lawmaker added.
Ukraine’s Constitutional Commission has also prepared a series of amendments that affect the judiciary system, including the prosecutorial system. These amendments would strip the prosecution of many of its current powers, leaving it with essentially one function: supervising pre-trial proceedings and pursuing prosecutions in the courts on behalf of the state, according to Grebenyuk.
One of the prosecutorial powers to be removed from the Constitution would be the ability to make prosecutorial inspections, which gave prosecutors the right to carry out searches and investigations into the management of companies, no matter their form of ownership.
These overriding powers encouraged corruption to flourish in the prosecutorial system and led to the duplication of powers of the prosecution and other supervising authorities, Banchuk said.
“Obviously, the prosecutors were not able to ensure and guarantee law and order in each sphere,” Banchuk said. “That is why inspections were selective.” This also promoted extortion, because unlike other inspectors, prosecutors were not only able to impose fines, but could also open criminal proceedings against the management of companies, Banchuk added.
These measures would help produce positive reforms, but Amnesty International’s Mazur worries that too many of the changes are being made in isolation.
“You get the impression that the authorities don’t see a big picture of the criminal justice system at the end of this process,” Mazur said.
“There’s no effective communication, no working group responsible for detailed discussion of this issue… All of these measures are being taken episodically, which creates a risk that these changes won’t work together like cogs in one mechanism.”
Kyiv Post’s legal affairs reporter Mariana Antonovych can be reached at [email protected].
