Diverging views over proposed law on Public Prosecutor

The President’s Administration has prepared a draft Law on the Prosecutor’s Office which envisages a number of changes and reduction. 

The draft law proposes to remove the function of general supervision over the observance and application of law and pre-trial investigation.

The main element in the reform would be the removal of almost 150 city and special Prosecutors for environmental protection, transparent and military prosecutors. They would be replaced by a three-tier system of Prosecutor’s Offices, including district, regional offices and the Prosecutor General’s Office.

The draft law was sent to the Council of Europe’s Venice Commission at the beginning of August. According to Mykola Khavronyuk from the Centre for Political and Legal Reform, it was based on a draft law drawn up by his Centre together with German colleagues three years ago.

According to the draft law the functions of general supervision over observance of the law would be carried out by around 50 different controlling State bodies, instead of the Prosecutor’s Office. They would have the power, for example, to impose fines, bring administrative proceedings etc.

Preliminary (pre-trial) investigation would be given to a new body which has yet to be created, called the National Bureau of Investigations. .

Mykola Khavronyuk adds that the draft law envisages expansion of the powers of the Human Rights Ombudsperson and advocates who will be given the function of representing people’s interests in court.

“Advocates will be given the right of access free of charge to State databases, and state bodies will have to answer their information requests, as they now have to answer prosecutors’ requests”.  He believes that the Prosecutors’ power will be halved.

Ludmila Klochko from the Kharkiv Human Rights Group agrees that the Public Prosecutors’ powers are at present too broad, however she doubts that the public will gain anything from the changes proposed.  Although the Public Prosecutor did an extremely bad job at supervising observance of human rights, she does not believe that state controlling bodies would cope with the task. They need to have experience and be able to take responsible for decision-making and says that Ukrainian officials are not used to that.

Of the Public Prosecutor’s current powers, the draft law proposes to retain supervision over observance of legislation by environmental protection bodies; support for the public prosecution on criminal cases in court, however representation of the State and the public in civil, administrative and economic cases would be reduced to a minimum.

A member of staff of one of the Kharkiv Prosecutor’s Offices, on condition of confidentiality, told DW that work in the Prosecutor’s Office with such powers would become lacking in prestige.

“Everything is being done to strengthen judges’ power so that the prosecutors don’t obstruct business, criminals and officials who violate the law. This reform will prompt prosecutors who take bribes to hurtle to become advocates”, she said.

How much the prosecutor’s staff would be reduced is officially not reported at present. Yevhen Zakharov, Head of the Board of the Ukrainian Helsinki Human Rights Union says that in his experience any reform in Ukraine leads to an increase in the number of officials.  Ukrainska Pravda reports, citing the Prosecutor General’s Office management, that the last reform with the entry into force of the new Criminal Procedure Code led to an increase by two and a half thousand of the number of prosecutors.

Andriy Portnov from the President’s Administration says that they are planning that the draft law will be passed by parliament at the end of October, on the eve of the Vilnius Summit where the fate of the EU-Ukraine Association Agreement is to be determined. Reform of the Public Prosecutor is one of the EU’s demands.  Yevhen Zakharov says that he finds it hard to understand the logic of those in power who are in haste trying to do what 18 years ago Ukraine promised to do on joining the Council of Europe.  He points out that there is already a draft law in parliament drawn up by opposition MPs. It also envisages a considerable reduction in the Public Prosecutor’s powers. This has already passed through its first reading, public and expert discussion. “I consider it to be progressive and think it could be adopted. The President’s Administration draft law cannot be passed without public assessment”, he warns.