International legal standards of prosecutorial activity and status of prosecutors: implementation in Ukraine and in individual member states of the European Union

The United Nations is essential in developing standards and principles that establish the status and activities of the prosecuting authorities. International standards of prosecutorial activity are certain rules of conduct governed by the international community of prosecutor's offices, which they are obliged to comply with to guarantee the rule and primacy of law in the state, protect the rights and freedoms of citizens, and form a high level of respect of citizens for the prosecutor's office. The adoption of standards and principles of activity of prosecutor's offices has passed a long historical path of development. Thus, the sixth UN Congress on Crime Prevention and Treatment of Offenders, held in 1980, noted that there is a need to define international standards for the prosecutor's office [6]. The Congress indicated that the effective implementation of Article 14 of the International Covenant on civil and political rights¹ is related to the proper selection and training of prosecutor's office employees: «UN Member States must ensure that employees of the prosecutor's office must be properly qualified to perform their tasks and perform them in a way that does not depend on personal or group interests». The importance of establishing standards governing the status and activities of prosecutors was also confirmed at the seventh UN Congress, which was held in 1985. Representatives of the UN Member States who attended the Congress noted that the developed standards can guarantee the objectivity and impartiality of prosecutors during criminal prosecution, as well as help avoid discrimination in the selection and appointment of prosecutors. The Seventh Congress also called for consideration of the development of draft guidelines on the selection, training, and status of prosecutors, their expected tasks and behaviour, immunity, means to increase and improve their contribution to the smooth performance of the criminal justice system and their cooperation with the police [1]. Based on the results of previous Congresses and developed recommendations, the eighth UN Congress (1990) on Crime Prevention and Treatment of Offenders established fundamental principles concerning the role of prosecutors, their status, and functions. Their goal is formulated as follows: «The fundamental principles of the activities and status of prosecutors have been defined and consolidated to help Member States guarantee the effectiveness, impartiality, and fairness of prosecutors in criminal proceedings. They should be respected and taken into account by the governments of Member States in national legislation and practice. Furthermore, they should be brought to the attention of prosecutors, as well as other judicial bodies, executive and legislative branches of government and citizens»International Covenant on Civil and Political Rights. (1966, December). Retrieved from https://zakon.rada.gov.ua/laws/ show/995_043/ed19661216#Text. ^{fundamental Principles Concerning the Role of Lawyers. (1990, September). Retrieved from} https://zakon.rada.gov.ua/laws/ show/995_313#Text. ^{3Standards of Professional Responsibility and Fundamental Duties and Rights of Prosecutors adopted by the International Association of Prosecutors. (1999, April). Retrieved from} https://www.iap-association.org/getattachment/Resources-Documentation/ IAP-Standards-(1)/Ukrainian.pdf.aspx..

To ensure the implementation of these principles, the International Association of Prosecutors (IAP) was established in June 1995 at the United Nations in Vienna. Moreover, the world has become witness to the need for expanding international cooperation between prosecutors and increasing the speed and efficiency of mutual assistance, asset tracking and other international cooperation activities. One of the key objectives of IAP is to enhance the role and importance of internationally recognised standards and principles as necessary mechanisms for the proper and independent prosecution of offences. This objective contributed to the development of Professional Responsibility Standards in 19993 and the consolidation of the main duties and rights of prosecutors (hereinafter - the «IAP Standards»), which established the fundamental place of the prosecutor's office in the administration of justice. The IAP StandardsIbidem, 1999. supplement and expand the GuidelinesGuidelines on the Role ofProsecutors. (1990, August). Retrievedfrom https://www.ohchr.org/Documents/ProfessionalInterest/ prosecutors.pdf.. They constitute an international standard for the behaviour of prosecutors and prosecutor's offices. Furthermore, the IAP StandardsStandards of Professional Responsibility and Fundamental Duties and Rights of Prosecutors adopted by the International Association of Prosecutors, 1999. promote international cooperation, emphasising the need for independence, objectivity, and impartiality of prosecutors [10]. One of the main issues in creating internationally recognised rules of conduct for prosecutors, which the latter should follow in their activities, was the differences in substantive law, evidence, and procedures due to the different legal traditions and legal systems existing around the world. Although this problem currently exists, it is less influential, as different legal traditions and systems begin to unite and acquire features of each other. The IAP StandardsIbidem, 1999. are particularly important since they are not the result of an agreement between states or governments, but were written and adopted by prosecutors themselves from all over the world and various legal traditions. In 2008, through Resolution 17/2 of the Commission on Crime Prevention and Criminal Justice¹, the IAP StandardsThe Commission on Crime Prevention and Criminal Justice Resolution No. 17/2, “Strengthening the Rule of Law through Improved Integrity and Capacity of Prosecution Services”. (2008, April). Retrieved from https://www.unodc.org/documents/ commissions/CCPCJ/Crime_Resolutions/2000-2009/2008/CCPCJ/Resolution_17-2.pdf. Standards of Professional Responsibility and Fundamental Duties and Rights of Prosecutors adopted by the International Association of Prosecutors. (1999, April). Retrieved from https://www.iap-association.org/getattachment/Resources- Documentation/IAP-Standards-(1)/Ukrainian.pdf.aspx. have been recognised by the United Nations as additional provisions to the Guidelines on the status and activities of prosecuting authoritiesGuidelines on the Role of Prosecutors. (1990, August). Retrieved from https://www.ohchr.org/Documents/ProfessionalInterest/ prosecutors.pdf.. Member States were invited to encourage prosecuting authorities to comply with the IAP StandardsStandards of Professional Responsibility and Fundamental Duties and Rights of Prosecutors adopted by the International Association of Prosecutors. (1999, April). Retrieved from https://www.iap-association.org/getattachment/Resources- Documentation/IAP-Standards-(1)/Ukrainian.pdf.aspx. to improve the system of criminal prosecution and prevent the commission of crimes [8].

At present, in many states, the prosecutor's office is a constitutional body and a key institution in the justice system, especially in the criminal prosecution procedure, which helps maintain the effectiveness of criminal prosecution and the independence of the judicial system [11]. Prosecutors of all European states, including Ukraine, can make decisions on initiating, conducting, and continuing criminal prosecution, as well as on appealing certain decisions of judicial authorities. There are also general tasks of the prosecutor's office, such as implementing national criminal policies, deciding on alternatives to prosecution, etc. Furthermore, the prosecutor has the right to take part in other types of trials, for example, civil [3]. Considering the most general functions of the prosecutor's office, it is difficult to imagine that their proper implementation depends on the legislative and executive branches of government. Therefore, it is necessary to consider the content of such an international standard as the independence of the prosecutor's office. The independence standard helps ensure that principles such as legality, impartiality, and hierarchy are respected. There are different types of independence. Thus, it can be addressed to the work of an individual prosecutor who solves a particular case - such independence is called functional, since certain powers are performed by a clearly defined person [9]. Researchers also distinguish institutional or structural independence, when a certain case is sent either to the prosecutor's office as an institution, or to the Prosecutor General as the head of the service [12]. The importance of the prosecutors' independence is also confirmed by the report of the European Commission for Democracy Through Law (Venice Commission) on the European Standards as Regards the Independence of the Judiciary, which noted that the prosecutor's office should acquire an autonomous status, and prosecutors should become independent of the executive and legislative branches of governmentReport of the European Commission for Democracy Through Law (Venice Commission) on European Standards as Regards the Independence of the Judiciary. (2011, January). Retrieved from https://rm.coe.int/1680700a60.. This is also emphasised by the UN Special Rapporteur, who considered the independence of judges and lawyers within the UN. He focuses his attention on the importance of autonomy and functional independence of the prosecutor's office, as this will increase the authority of the prosecutor's office and increase public confidence in justiceReport of the Special Rapporteur on the independence of judges and lawyers. (2017, June). Retrieved from https://undocs. org/en/A/HRC/35/31..

As for the definition and content of the prosecutors' independence, there are many opinions of researchers that have certain differences from each other. For example, a non-governmental organisation such as the International Commission of Jurists refers to making the justice system fully independent, which includes a set of judges, advocates, and prosecutorsReport of the European Network of Councils for the Judiciary for 2014-2016. (2016). Retrieved from https://www.encj.eu/ images/stories/pdf/workinggroups/independence/encj_report_independence_accountability_prosecution_2014_2016.pdf.. However, there is also an opinion that the content of the independence of the prosecutorial authorities differs from the independence of the judiciary, since they are usually hierarchical institutions subordinate to higher bodies. It should be emphasised that these features of structural independence should be compatible with the functional independence of prosecutors in the application of the law, and this makes it more similar to the functional independence of the judicial system [15]. Some authors also argue that if independence is interpreted as the subordination of a judge exclusively to the law during the criminal trial, the prosecutor can never be independent in criminal procedure, since they act as a party to the prosecution in defence of the rule of law [16]. However, to protect the rule of law, the activities of the prosecutor's office must be lawful, that is, within the limits established by law, and without interference from any other branches of government. Some researchers note that the principle of independence of prosecutors should be considered in a broad sense and closer to the content of independence of the judicial system, which means a guarantee that the prosecutor's office will not be influenced by other branches of government - neither executive nor legislative [17].

One of the best ways to see the development of the principle of independence of the prosecutor's office is to analyse certain provisions adopted by the Council of Europe bodies. Chronologically, the regulatory documents developed within this organisation over the past two decades demonstrate a certain tendency to increase the importance of the prosecutors' independence. Back in Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000) 19 to Member States on the role of the prosecutor's office in the criminal justice system¹, the possibility of subordination of the prosecutor's office to the government was not excluded, subject to certain safeguards, such as the legality of government powers regarding prosecutors, as well as the publicity and written general instructions. It also stated that in case of the possibility provided for by national legislation, the government can instruct the prosecutor in individual cases. As for internal functioning, this recommendation'Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000)19 on the Role of Public Prosecution in the Criminal Justice System. (2000, October). Retrieved from https://www.legislationline.org/documents/id/7987. Recommendation of the Committee of Ministers of the Council of Europe No. Rec (2000)19 on the Role of Public Prosecution in the Criminal Justice System. (2000, October). Retrieved from https://www.legislationline.org/documents/id/7987. makes provision for the application of the principles of impartiality and independence in the distribution of cases. The independence of the prosecutor's office is considered as a consequence of the independence of the judiciary, which should perform its functions without interference, guided by the principles of separation of powers. Therefore, the independence of prosecutors is similar to that of judges [9]. Some authors distinguish between external and internal independence and state that prosecutors should enjoy external independence, which means that it is impossible for other state or non-state authorities to interfere illegally or unlawfully [18]. Furthermore, the prosecutor's office should have internal independence and be capable of freely performing its functions and making decisions, even if the ways of action vary from one legal system to another [18].

Analysing the case law of the Court of Justice of the European Union (also the European Court of Justice), a stronger position on the independence of the prosecutor's office from the executive branch can be noted. Thus, some cases establish the autonomy of the German prosecutor's office. Under the Law of Germany «On the Judiciary», the prosecutor's office is accountable to the Minister of Justice, who can supervise and manage itThe Law of Germany “On the Judiciary”. (1972, April). Retrieved from https://www.gesetze-im-internet.de/englisch_drig/ englisch_drig.html.. The European Court of Justice calls these ministerial powers external, which may affect the decision of the prosecutor's office. The court notes that the instructions issued by the Minister of Justice cannot go beyond the law because this would violate the principle of independence, which would adversely affect the effectiveness of prosecutor's activities [13]. It is also worth mentioning the prosecutor's office of France. Thus, in France, the prosecutor's office is a hierarchical institution that obeys the instructions of senior managers. The Minister of Justice has the right only to issue general instructions on the development of criminal policy, which is accompanied by a clear prohibition to instruct on individual cases [9]. The court emphasises that independence requires adequate legislative or organisational rules to ensure that this body is not vulnerable to receiving individual instructions from the executive government. In Spain, the prosecutor's office can be considered as a constitutional institution. The prosecutor's office acts to protect the rule of law, the rights of citizens and the public interest, as well as to protect the independence of the judiciary and the satisfaction of public interests. These functions are performed based on four principles: legality, impartiality, unity of action, and hierarchical dependence. Although there is no hierarchical dependence of prosecutors on the government, the state Prosecutor General is appointed and dismissed by the King on the recommendation of the government and after approval by the General Council of the Judiciary. Notably, Spain belongs to the minority of countries where the pre-trial investigation is headed by a pre-trial (investigative) judge, not a prosecutor. However, the task of bringing an indictment and taking part in the prosecution part of the procedure belongs to the prosecutor's office [19]. Law 50/1981 of 30 December 1981 on the Public Prosecution Service Status and OrganisationLaw of the Kingdom of Spain No. 50/1981 “On the Regulation of the Charter of the State Representation Service”. (1981, December). Retrieved from https://old.pravo.org.ua/files/zarub_zakon/Isp_1981.pdf. notes on the autonomous functioning of the prosecutor's office. The Law Ibidem, 1981. also specifies that according to the principle of impartiality, the prosecutor's office shall act objectively and independently to protect its legitimate interests. In Spain, according to legislative acts, it is strictly forbidden to influence the independence of the judiciary, and violation of this rule can entail the initiation of legal proceedings. This prohibition applies both to external organisations and individuals, as well as to relations between judges. However, as for the individual actions of judges or prosecutors, they must act autonomously and have the right and duty to refrain from a case where their impartiality could be jeopardised [19].

The international standard of independence is also contained in Council Regulation (EU) 2017/1939 of 12 October 2017¹, which introduces enhanced cooperation on the establishment of the European prosecutor's office. Article 6 of the above-mentioned rules'Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office. (2017, October). Retrieved from https://eur-lex.europa.eu/eli/reg/2017/1939/oj. Ibidem, 2017. defines the independence of the European prosecutor's office as a European body, as well as the independence of the European chief prosecutor, their deputies, European prosecutors, and European delegated prosecutors. The Regulations3Ibidem, 2017. also note that the above-mentioned prosecutors are prohibited from requesting or accepting any external instructions, and the EU Member States and the bodies, offices, and institutions of the EU do not have the right to influence them. Summarising the analysis of European trends, it can be said that despite the content of the independence of the prosecutor's office may differ from the independence of the judiciary, it is an indispensable element of the rule of law.

The Prosecutor's Office of Ukraine constitutes a single system that is endowed with functions established by the Constitution of UkraineConstitution of Ukraine. (1996, June). Retrieved from https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80/ ed19960628#Text. ^{5Law of Ukraine No. 1697-VII “On the Prosecutor's Office”. (2014, October). Retrieved from} https://zakon.rada.gov.ua/laws/ show/1697-18/ed20141014#Text. and aimed at protecting human rights and freedoms, the common interests of society and the state. At the same time, the functions of the Prosecutor's Office are also prescribed by the Law of Ukraine «On the Prosecutor's Office» of 14 October 20145, namely: 1) maintaining public prosecution in court; 2) representing the interests of a citizen or the state in court in cases defined by this lawIbidem, 2014. and Chapter 12 Section III of the Civil Procedural Code of UkraineCivil Procedural Code of Ukraine. (2004, March). Retrieved from https://zakon.rada.gov.ua/laws/show/1618-15/ed20040318#Text.; 3) supervision of compliance with laws by bodies engaged in intelligence, inquiry, and pre-trial investigation activities; 4) supervision of compliance with laws in the execution of court decisions in criminal cases, as well as in the application of other coercive measures relating to the restriction of personal freedom of citizens. Notably, to perform its functions, the Prosecutor's Office engages in international cooperation and adheres to the developed international legal standards [5]. Thus, the special legislation stipulates that the Prosecutor's Office adheres to certain key principles in its activities, including the rule of law, recognition of a person, their life and health, honour and dignity, inviolability and security as the highest social value, legality, justice, impartiality and objectivity, independence of prosecutorsLaw of Ukraine No. 1697-VII “On the Prosecutor's Office”. (2014, October). Retrieved from https://zakon.rada.gov.ua/laws/ show/1697-18/ed20141014#Text.. Special attention should be paid to the consolidation of such a foundation of the prosecutor's office's activities as the prosecutors' independence, which constitutes a key international legal standard. The content of this guideline makes provision for the existence of guarantees against illegal political, material, or other influence on the prosecutor to make decisions in the performance of official duties. Ukrainian legislation also states that the Prosecutor's Office is described by a lack of political influence. Thus, the legislative, executive, and judicial branches of government have no right to interfere in its activities.

The principle of transparency of the prosecutor's office's activities is also widely covered in the legislation of Ukraine. Thus, transparency ensures honest prosecutorial activities aimed at respecting the rights and interests of victims, witnesses, as well as the fundamental rights of suspects and accused persons, and other procedure participants pursuant to high standards of human rights protection. Transparency is ensured by open and competitive employment of the prosecutors, free access to reference information, and the provision of information on demand, if the law does not establish restrictions on such provisionIbidem, 2014..

One should also pay attention to compliance with such standards as professional ethics and behaviour of prosecutors. The prosecutor must know and follow the ethical rules regarding conflicts of interest that apply in the jurisdiction, and be sensitive to facts that may cause conflict issues [20]. If a conflict requiring recusal exists and is not subject to refusal, or informed consent has not been obtained, the prosecutor must refuse to continue their involvement in the case. In addition, the prosecutor should not allow their professional activities to be influenced by personal, political, financial, professional, commercial, ownership, or other interests and relations. Such an international standard as equanimity is described by the fact that all citizens are equal before the law and the court; the prosecutor must not conduct cases concerning their close persons, relatives, acquaintances“Fundamental Principles Concerning the Role of Lawyers. (1990, September). Retrieved from https://zakon.rada.gov.ua/laws/ show/995_313#Text.. The prosecutor must not identify or display prejudice based on race, gender, religion, national origin, disability, age, sexual orientation, gender identity, or socio-economic status in words or behaviour. The prosecutor should not use other inappropriate considerations, such as extraneous, political or personal, when exercising the prosecutor's discretion [21].

Having analysed the Ukrainian legislation, it can be concluded that the regulatory provisions governing the status of prosecutors and prosecutor's activities currently implement the principles of efficiency, professionalism, independence, and responsibility. It is necessary to assess the compliance of prosecutors with the criteria of professional competence, integrity, professional ethics, as well as to provide an opportunity for all candidates who have the necessary theoretical knowledge and practical skills to take the position of prosecutor in the prosecutor's office on a competitive basis. The main task of the prosecutor's office is to ensure respect for constitutional human rights and freedoms during the investigation of criminal offences, coordinate the development of appropriate criminal law policies to approach European standards, ensure openness and transparency in its activities, and strengthen public confidence. It is impossible to complete these tasks without establishing and maintaining a professional culture of prosecutor's office employees aimed at regularly improving the quality of their activities, continuous training, and encouraging the use of innovations. According to the author of this study, a comprehensive and unbiased system for assessing the quality of the prosecutor's work should be developed, which would include such criteria as direct performance of powers, innovation, desire for development, self-improvement, attitude towards colleagues, leadership, etc. Furthermore, to strengthen the skills of prosecutors and, accordingly, the quality of their activities, it is necessary to systematically conduct trainings and other forms of education, where employees can learn about international legal standards of prosecutors' activities, the practice of their application, innovations, and trends. One should not forget about the motivation of prosecutors to encourage and retain the best employees.

To increase public confidence in the prosecutor's office, it is necessary to introduce effective methods of monitoring compliance with the norms of prosecutor's ethics and integrity: conducting trainings on professional ethics and integrity, avoiding conflicts of interest and preventing corruption cases. Moreover, one should regularly inspect knowledge of ethics and integrity. To prevent corruption, it is necessary to introduce appropriate control methods and ensure the protection of corruption whistle-blowers so that they can safely and confidentially report cases of corruption without prejudice to their rights.

It is also worth mentioning the independence of the prosecutor's office. Thus, as previously mentioned, prosecutors are independent of the executive and legislative branches of government. They also cannot be subjected to groundless inspections by the highest-level prosecutor's office. Furthermore, prosecutors have the right to appeal against illegal actions, instructions, pressure from their managers or other colleagues.

All these recommendations are aimed at better realisation of the mission of the prosecutor's office, aimed at such fundamental guidelines as respect for human rights and freedoms, protection of human life and health, honour and dignity, inviolability, and security to achieve a high level of trust in the work of prosecutors and the prosecutor's office in general.

In summary, the context of the aspirations of Ukraine for European integration reveals that such international legal standards of the status of prosecutors and prosecutor's activities as the rule of law, recognition of a person, their life and health, honour and dignity, inviolability and security as the highest social value, legality, justice, impartiality and objectivity, independence of prosecutors, transparency of activities, compliance with professional ethics and behaviour have a massive impact on the organisation and activities of the prosecutor's office in Ukraine. They «direct» the actions of the prosecutor, establish prohibitions, restrictions, and obligations that must be strictly observed upon exercising their powers. One of the main international legal standards is the independence of prosecutors primarily from the executive and legislative branches of government, autonomy in decision-making, the absence of interference by state and local authorities, and any unlawful influence. This principle is analysed according to international regulations, and the study identified its implementation in certain countries of the world, namely in France, Germany, and Spain, and its enormous role in ensuring high-quality and effective prosecutor's activities. The independence of the prosecutor's office serves as a guarantee of impartiality, which, for its part, leads to the creation of a transparent prosecutor's office. This independence should also be maintained in the face of inappropriate pressure that may arise from the media and individuals or interest groups in the community, or even the public in general. The IAP Standards also emphasise that decisions of the prosecutor's office should be made without outside influence in situations where prosecutors can exercise discretion regarding the decision on criminal prosecution.

The author of this paper concluded that Ukraine embodies such international standards as the rule of law, legality, justice, impartiality and objectivity, the independence of prosecutors, the inadmissibility of unlawful interference of the prosecutor's office in the activities of executive, legislative, and judicial authorities, respect for the independence of judges, transparency of the prosecutor's office, strict compliance with the requirements of professional ethics and behaviour, equanimity, objectivity. At present, there is a need to improve the guarantees of ensuring their implementation. For high-quality implementation of prosecutor's activities, it is necessary to harmonise the legislation of Ukraine with the EU legislation, establish international cooperation with international institutions that have introduced international legal standards for the activities of prosecutors, namely with the International Association of Prosecutors.

Furthermore, the author has developed particular recommendations aimed at ensuring that prosecutors effectively exercise their powers pursuant to high European standards for the protection of human rights. In particular, the most critical among them are the introduction of a system and criteria for assessing the quality of work of prosecutors, strengthening their skills and, accordingly, the quality of the latter's activities through systematic training and other forms of education in the main areas of activity, providing material and non-material incentives to stimulate the work of prosecutors, applying methods of monitoring compliance with the norms of prosecutorial ethics and integrity, regular testing of knowledge on ethics and integrity, protecting corruption whistle-blowers, establishing an effective mechanism for prosecutors to appeal against unlawful actions, instructions, pressure from their managers or other colleagues.

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