In October, Prosecutor General Ruslan Riaboshapka launched a reform of Ukraine’s corrupt prosecution service with the stated aim of removing unprofessional and dishonest prosecutors.
As a result, 55.5% of the 1,339 prosecutors at the central branch of the prosecutor general’s office have not passed vetting and lost their jobs. This contrasts with ex-Prosecutor General Viktor Shokin’s 2015 reform, when an overwhelming majority of top local prosecutors kept their jobs, although 5,000 local rank-and-file prosecutors were laid off then. The second stage, the vetting of regional prosecutors, is scheduled to be completed by September.
For decades, Ukraine’s prosecution service has been known for corruption, incompetence, and ineffectiveness: prosecutors have failed to investigate and prosecute any high-profile criminal cases, while at the same time protecting an entrenched elite from any investigations.
Riaboshapka and his supporters argue that the ongoing reform will change this and will bring the prosecution service in line with European standards. “Soon — maybe in a year — we will be able to boast before the Ukrainian people that there is a completely different prosecution service with absolutely different prosecutors with new values,” Riaboshapka said in November.
His opponents say, however, that the procedure of firing prosecutors was arbitrary, lacked transparency and strict criteria and did not comply with the law.
Some controversial prosecutors lost their jobs, but other discredited ones remain. Moreover, some investigators and prosecutors praised by civil society were fired as a result of the reform.
“The cleansing must be carried out in a transparent way according to concrete criteria,” lawyer Vitaly Tytych said. “But the results of their work are absolutely unclear. Riaboshapka fired whoever he wanted.”
The prosecutor general’s office has denied the accusations.
Legal problems
Sergii Gorbatuk, the former top investigator in charge of cases involving the 2013–2014 EuroMaidan Revolution, and dozens of other investigators and prosecutors refused to undergo vetting under Riaboshapka’s procedure in October. They oversaw investigations into about 100 murders of protesters during the revolution, which ousted ex-President Viktor Yanukovych, and other violent crimes against EuroMaidan protesters.
Gorbatuk argued that Riaboshapka’s procedure violates the law and the constitution. Gorbatuk said he would be willing to be vetted under a procedure that complies with the law but was fired nonetheless.
One of the alleged violations is that the prosecutor general’s office has not been formally liquidated but has been just renamed, according to Gorbatuk. To carry out the reform, Riaboshapka has restructured the prosecutor’s office and transformed it into an entity with a different name. Those who did not pass vetting will not be hired by the new entity.
Riaboshapka would have a right to fire prosecutors who did not pass vetting in the case of liquidation but does not have that right in the case of renaming, Gorbatuk said.
Another alleged legal violation is that the prosecutor general’s office can accept information about candidates from anonymous sources and make decisions without any confirmation of whether the information is genuine, Gorbatuk argued.
He said that, due to what he believes to be unlawful procedures, many fired prosecutors would be reinstated by courts.
The prosecutor general’s office has denied accusations of violating the law. Riaboshapka’s supporters also argued that even if courts rule to reinstate prosecutors, this would apply to the old entity that they say does not exist anymore and not to the new prosecution service.
Transparency
Critics, including Gorbatuk and lawyer Vitaly Tytych, also claim that Riaboshapka’s reform lacked transparency, making it impossible to independently verify whether the results of vetting were objective or arbitrary.
First, videos of interviews with prosecutors during vetting have not been published. In contrast, interviews with candidates applying for jobs on the Supreme Court and High Anti-Corruption Court in 2017 to 2019 were broadcast and published.
Oleksandr Lemenov, the head of anti-corruption watchdog StateWatch and a member of a vetting commission, responded to this critique by saying that the nature of prosecutors’ work is different from that of judges and their investigations are not public.
Second, the vetting commissions have not published their decisions with explanations on why a specific prosecutor passed vetting or not.
Third, prosecutors who did not pass vetting cannot request knowledge test results to verify whether they were assessed fairly.
Yet another accusation is that only rank-and-file prosecutors are effectively subject to vetting since the law gives Riaboshapka the right to appoint those who have not passed vetting to all executive positions. Riaboshapka’s deputies did not undergo vetting, which triggered allegations of a discriminatory approach.
Lemenov argued, however, that Riaboshapka’s deputies were newly appointed and therefore did not have to be vetted.
Sergii Gorbatuk (L), the former top investigator for cases involving crimes during the 2013-2014 EuroMaidan Revolution, (L) and National Anti-Corruption Bureau Chief Artem Sytnyk, give a news briefing on July 29. Gorbatuk, fired by Prosecutor General Ruslan Riaboshapka in October, accuses his former boss of unlawful actions. Riaboshapka denies the charges. (Volodymyr Petrov)
Testing professionalism
The vetting procedure consisted of two stages: legal and general knowledge tests and interviews with prosecutors.
Riaboshapka’s critics such as Gorbatuk argue that legal knowledge tests for prosecutors were a rote learning procedure that did not measure the actual level of knowledge because both questions and answers were posted on the website of the prosecutor’s office. Another critique is that some of the test questions have “double” correct answers due to legal inconsistencies and the allegedly poor quality of the tests.
Lemenov dismissed the accusations, saying that the tests were a valid criterion of knowledge and that the number of questions with double answers was minimal.
Gorbatuk and Tytych also said that legal knowledge tests for prosecutors who have held their jobs for years were a secondary factor and did not show their actual level of professionalism. To identify whether prosecutors were effective and professional and made lawful decisions, vetting commissions should have meticulously studied the cases that they handled, Gorbatuk and Tytych say.
Responding to the criticism, Lemenov argued that it was impossible to examine criminal cases handled by specific prosecutors because there are hundreds or thousands of them and that they could have been examined if someone filed a complaint with a commission about a specific case.
Controversial prosecutors
Controversial prosecutors who were fired by Riaboshapka include his predecessor Yury Lutsenko’s deputies Anatoly Matios, Eugene Enin, Anzhela Stryzhevska, Serhiy Kiz and Yury Stolyarchuk as well as Kostyantyn Kulyk, a prosecutor charged with illicit enrichment and accused of fabricating political cases.
Despite the vetting, some notorious and controversial prosecutors have kept their jobs.
Specifically, Viktor Mysyak remained the top prosecutor overseeing EuroMaidan investigations. The families and lawyers of EuroMaidan protesters had accused Mysyak of sabotaging EuroMaidan investigations, which Mysyak himself denies.
Other discredited prosecutors who remained after vetting include Serhiy Kutsy, Oleksandr Shevelenko, Vitaly Subbotin, Oleksiy Chornous and Maryna Mazepina. They did not respond to a request for comment.
In December, those prosecutors supported a court decision to release five ex-police officers who were on trial for allegedly murdering EuroMaidan protesters. The release was part of a prisoner exchange with Russia and its proxies waging war in the Donbas.
However, lawyers for EuroMaidan protesters argue that their release was blatantly unlawful since they were suspects in a criminal investigation, not prisoners of war.
The prosecutors supported the suspects’ lawyers who claimed that there is no risk of the suspects fleeing. But as a result of the prisoner exchange, the police officers effectively fled to Russian-occupied territories.
Yevheny Isar, another controversial prosecutor accused of unlawfully canceling a city council decision in support of the EuroMaidan Revolution, also remains in his position.
Meanwhile, Tytych has filed several complaints with a vetting commission that he says have been ignored.
One was against prosecutor Oleksandr Pidlisny, who was previously investigated for allegedly prosecuting an innocent person and falsifying evidence. Tytych claims that the case against Pidlisny was unlawfully closed, with Pidlisny keeping his job.
Borys Malyshev, a member of the commission, told the Kyiv Post he did not remember Pidlisny’s name and would have to examine the commission’s materials later to comment on the issue.
Tytych filed another complaint regarding prosecutor Olesya Skrypnyk, whom he accuses of repeatedly violating the law by keeping Ivan Bezyazykov, a suspect in a treason case, in detention for more than a year without legal grounds. Tytych says that the vetting commission ignored that complaint as well, and Skrypnyk kept her job.
Isar, Pidlisny and Skrypnyk could not be reached for comment.
Credible prosecutors
Last year, Riaboshapka won praise for appointing several deputies who had managed to gain the trust of civil society in recent years, including Viktor Trepak, Vitaly Kasko and Viktor Chumak.
However, other prosecutors and investigators trusted by civil society lost their jobs as a result of Riaboshapka’s reform, including Gorbatuk.
“Gorbatuk’s dismissal means that the most independent investigators and prosecutors are not welcome at the new prosecutor’s office,” Pavlo Dikan, a lawyer for EuroMaidan protesters, said in October. “There is a risk that the investigations into EuroMaidan crimes will stop as a result.”
When Riaboshapka fired Gorbatuk and several investigators working under Gorbatuk in October, he cited a law that allows him to fire prosecutors who refuse to undergo vetting.
Gorbatuk argues, however, that the dismissals were unlawful, as such legal grounds for firing prosecutors do not apply to investigators under the law.
Gorbatuk also told the Kyiv Post that President Volodymyr Zelensky’s chief of staff Andriy Bohdan was interested in his dismissal.
The investigators who were fired by Riaboshapka were also investigating Bohdan’s alleged role in two cases — a usurpation of power case against ex-President Viktor Yanukovych and Constitutional Court judges and against Judge Anatoly Ivchenko over an allegedly unlawful ruling to uphold Russia’s Hr 3.1 billion debt claim against United Energy Systems of Ukraine.
Bohdan has previously denied accusations of wrongdoing but did not respond to requests for comment on this story.
Ruslan Riaboshapka is the prosecutor general who has launched the latest attempt to cleanse the corrupt prosecution service. (Volodymyr Petrov)
Vitaly Kasko is a deputy prosecutor general who returned to the prosecution service after quitting amid obstructed reforms in 2016. (Volodymyr Petrov)
Kostyantyn Kulyk is a prosecutor charged with illicit enrichment who has been fired from the prosecutor’s office. (UNIAN)
Viktor Mysyak is a prosecutor accused by lawyers for EuroMaidan protesters of blocking cases but he keeps his job. (Courtesy)
Oleksandr Lemenov is an anti-corruption activist who calls the prosecutorial reform transparent and fair. (Oleg Petrasiuk)
