The model of prosecutorial self-governance in Ukraine and the Baltic countries: a comparative aspect
A change in the function of the prosecutor’s office by establishing bodies of prosecutorial self-governance. Models of prosecutorial self-governance in Latvia, Lithuania, Estonia and Ukraine, outlining the structure and competence of their bodies.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 15.09.2024 |
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THE MODEL OF PROSECUTORIAL SELF-GOVERNANCE IN UKRAINE AND THE BALTIC COUNTRIES: A COMPARATIVE ASPECT
Oksana Khotynska-Nor, Sergii Podkopaiev,
Hanna Ponomarova, Dmytro Lukianov
ABSTRACT
prosecutorial self-governance body model
Background: New legislation in Ukraine has introduced a significant change in the function of the prosecutor's office by establishing bodies of prosecutorial self-governance. Their implementation stems from the change in the constitutional status of the prosecutor's office and the need to strengthen the independence of prosecutors while minimising external political and internal systemic influence on their work. Such reforms align with a pan-European tendency, which was formed as a result of the modernisation of approaches to the perception of the prosecutor's office. The independence of the judiciary and the effectiveness of the administration of justice depends on the independent activity of such body as the prosecutor's office. This necessitates the formation and development of the principle of political neutrality, which should form the basis of the organisation and activity of the prosecutor's office in a state governed by the rule of law.
Orientation to international standards and best practices allows us to hypothesise about the progressiveness of the Ukrainian model of prosecutorial self-governance. This hypothesis can be tested through a comparative analysis with other countries. We have chosen the Baltic countries for comparison as they are connected with Ukraine by a common Soviet past; however, they decided on the European course of their development much faster.
The article offers an overview of models of prosecutorial self-governance in Latvia, Lithuania, Estonia and Ukraine, outlining the structure and competence of their bodies. Based on a comparative analysis of Ukraine's example, the researchers have identified the main directionsfor strengthening the institutional capacity of prosecutorial self-governance bodies.
Methods: In conducting the scientific work, the authors employed several special legal methods, which allowed them to realise both the collection and generalisation of factual data, as well as to carry out a multi-level comparison of selected research objects at the proper level. The study relied on, in particular, formal-legal, logical-legal, historical-legal and comparativelegal methods of scientific learning.
Results and Conclusions: It has been concluded that the introduction of prosecutorial selfgovernance in the states is a necessary step in the direction of strengthening the independence of prosecutors as a component of effective justice. This makes it possible to minimise external political and internal systemic influence on personnel processes in the prosecutor's office system, contributes to ensuring its political neutrality, as well as solves issues of financial, material, technical, and other provisions for prosecutors. In this sense, the Ukrainian model of prosecutorial self-governance is quite progressive, although it is not without disadvantages. In particular, the dispersion of personnel powers among different subjects makes prosecutors vulnerable in career advancement, specifically regarding clarity in the demarcation of their competence. This focuses on further developing prosecutorial self-governance, strengthening its institutional capacity.
INTRODUCTION
One of the stages of the public prosecutor's office reform has recently ended in Ukraine. Among its results is a consolidation of the constitutional status of the public prosecutor's office in the justice system and determination at the legislative level of additional guarantees of independence of prosecutors, which tend to be analogous to those of judges. One is the functioning of prosecutorial self-governance bodies provided for the Law of Ukraine `On the Public Prosecutor's Office' (2014).1
The institutionalisation of prosecutorial self-governance aligns with the trend observed in many European countries. While there is no general standard or requirement for organisational forms of self-governance of prosecutors, their existence serves as a mechanism to uphold the independence of prosecutors, which, in turn, affects the independence of the judiciary. The substantive content of the independence of the judiciary, as stated in para. IV of Opinion No.9 (2014),2 para. 3 of Opinion No.13 (2018) of the Consultative Council of European Prosecutors,3 has led to changes in approaches to determining the status of prosecutors, establishing additional guarantees of their independence and, in general, increasing the level of autonomy. Similarly, we can conclude that the experts considered the functioning of prosecutors' self-governance bodies from the point of view of a greater goal, namely the independence of the judiciary.
Prosecutorial self-governance bodies in different countries differ in their status and degree of influence on the national prosecutorial system. Of course, they are not considered means of solving all problems in the system, but they, at least, serve as a kind of buffer between prosecutors and the political elite. It was the provision to avoid misuse of the prosecutor's office for political purposes that formed the basis for the introduction of prosecutors' self-governance. Laura Stefan and Idlir Peci, Comparative Study on Prosecutorial Self-Governance in the Council of Europe Member States (Council of Europe 2018) 5.
The stated goal of avoiding using the public prosecutor's office for political purposes has always been admitted as relevant. A number of legislative restrictions for achieving it have been introduced in Ukraine. For example, political neutrality is recognised as a fundamental provision of the prosecutor's office activity, which is embodied in various legislative acts by establishing various prescriptions: prosecutors cannot be members of political parties; prosecutors are obliged to observe political neutrality to avoid demonstrating of their own political convictions or views in any form while carrying out their official powers, not to use their official powers in the interests of political parties or their branches or individual politicians; a prosecutor cannot belong to a political party, participate in political actions, rallies, strikes and involve subordinate employees in them, publicly demonstrate own political convictions, etc.
The Venice Commission specifically noted the inclusion in the list of principles of the prosecutor's office activities of several new principles, in particular, the principle of political neutrality of the prosecutor's office at the stage of work on the draft law on the public prosecutor's office. Thus, over the past few years, the principle of political neutrality has been gradually formed and implemented as a principle of functioning of the prosecutor's office. Today, this principle is fundamental and unchangeable.
The issue is all the more important for Ukraine due to the direct involvement of the Verkhovna Rada of Ukraine, a political body involved in the procedure of appointing and dismissing the Prosecutor General, as it grants approach for such appointments or dismissals. The Parliament of Ukraine retains the authority to express no confidence in the Prosecutor General, leading to their actual resignation from office (para. 25 of Art. 85 of the Constitution of Ukraine). Constitution of Ukraine no 254 k/96-BP of 28 June 1996 (amended on 01 January 2020) <https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D 1%80#Text> accessed 27 October 2023.
Despite criticism, notably from international experts Opinion of the Venice Commission CDL-AD (2012) 019 of 15 October 2012 `On the Draft Law on the Public Prosecutor's Office of Ukraine' <https://www.venice.coe.int/webforms/documents/ default.aspx?pdffile=CDL-AD(2012)019-e> accessed 27 October 2023., regarding the Ukrainian parliament's competence to express no confidence in the Prosecutor General, considering it primarily as a purely political tool, this relevant legal norm remains in the text of the Basic Law. Therefore, the introduction of the institution of prosecutorial self-governance in Ukraine is, to a certain extent, intended to minimise political influence on the procedural activities of prosecutors, particularly considering the specifics of the procedures for the appointment and resignation of the Prosecutor General.
Furthermore, the self-governance of prosecutors should, if not minimise, significantly reduce the internal systemic managerial impact on solving a list of entirely organisational and personnel issues in a traditionally centralised system, until recently with the dominant principle of unity of command. The principle of unity of command provided, for example, that the Prosecutor General or regional level prosecutors solely decided personnel issues.
That is, it is the bodies of prosecutorial self-governance are tasked with assuming a leading role in ensuring (1) the independence of prosecutors inside the system and outside it and (2) the independence of the public prosecutor's office as a state institution, which is a component of the justice system in Ukraine. This independence of prosecutors, akin to that of judges, is not a prerogative or a privilege for them but rather a guarantee of fair, impartial and effective administration of justice, thereby safeguarding the interests of society and individuals. Opinion of the CCJE no 12 (2009) and Opinion of the CCPE no 4 (2009) of 8 December 2009 `On the Relations between Judges and Prosecutors in a Democratic Society' Explanatory note, para 27 <https://rm.coe.int/1680747391> accessed 27 October 2023. The independence of prosecutors is admitted as a natural consequence of the independence of the judiciary, Opinion of the CCPE no 9 (2014) (n 2) para 4. and is also considered a necessary prerequisite for the rule of law, Opinion of the CCPE no 16 (2021) of 26 November 2021 `Implications of the Decisions of International Courts and Treaty Bodies as Regards the Practical Independence of Prosecutors', para 4 <https://rm.coe.int/opinion-no-16-2021-en/1680a4bd26> accessed 27 October 2023. one of the elements of which is access to justice. Accordingly, there exists a profound link between the proper functioning of prosecutorial self-governance in the country, serving as a guarantee of the independence of public prosecutors, and the independence of the judiciary, ensuring the implementation of the principle of the rule of law and access to justice.
Eventually, the prosecutorial self-governance bodies are called upon to implement a number of key tasks for a state governed by the rule of law:
a) to contribute to the independence of the justice system;
b) to act as a kind of "link" between the public prosecutor's office and society;
c) to motivate the professional prosecutorial community to self-development (selfcorrection);
d) to ensure the functioning of the public prosecutor's office within the justice system and the development of the public prosecutor's office's system.
The prosecutorial self-governance is a relatively new institution for Ukraine's legal system in general and the system of the public prosecutor's office in particular. Therefore, its study is interesting in identifying existing problematic issues and developing possible ways to solve them to strengthen the institutional capacity of prosecutorial self-governance to address the assigned tasks. This examination holds relevance for all European states, considering that the Ukrainian model is new and has been formed based on established international standards while also drawing from leading practices in this matter.
In this sense, we consider it possible to refer to the relevant experience of the Baltic countries, which share a common Soviet past with Ukraine and have been members of the European Union for almost two decades. The comparison will make it possible to evaluate the existing models of prosecutorial self-governance and their competence in the context of their development progress.
THE STRUCTURE OF PROSECUTORIAL SELF-GOVERNANCE AND ITS COMPETENCE IN THE BALTIC STATES AND UKRAINE
In our comparison, we proceed from the fact that the Advisory Council of European Prosecutors in its Opinion No. 18 (2023) on Councils of Prosecutors as key bodies of prosecutorial self-governance considers such organisational forms as assemblies, congresses, boards, commissions as "other" bodies of prosecutorial self-governance. This underscores the variety of organisational models of the public prosecutor's office and the need ipso facto to extend the same recommendations, rules and conditions specified in this conclusion to them. This extension aims to exclude political influence on them and ensure their activities are geared towards strengthening the independence and impartiality of the prosecutor's office (para. 86, para. 88). At the same time, organisationally formalised subjects such as the Councils of Prosecutors have a greater "institutional value", taking into account their importance for ensuring the effective and impartial functioning of public prosecutor's offices and individual prosecutors through their independent decision-making (para. 1 of Chapter VIII). Opinion of the CCPE no 18 (2023) of 20 October 2023 `On Councils of Prosecutors as Key Bodies of Prosecutorial Self-Governance' <https://rm.coe.int/opinion-no-18-2023-final/1680ad1b36> accessed 27 October 2023.
Latvia
According to Art. 1 of the Law `On the Public Prosecutor's Office, ' the Prosecutor's Office of Latvia is a body of judicial power. Law of the Republic of Latvia of 19 May 1994 `Prokuraturas likums' <https://likumi.lv/doc.php?id= 57276> accessed 27 October 2023. Such institutions as the Council of the Prosecutor General and the Attestation and Qualification Commissions created on July 1 1994, are functioning in the country. In addition, the Council of Justice, created in 2010 and called the `self-governance body of the judicial system', is also competent for the public prosecutor's office. The purpose of the Council of Justice is to balance relations between branches of government. It plays a decisive role in the evaluation and appointment of a candidate for the post of the Prosecutor General. CCPE, Compilation of Responses to the Questionnaire for the Preparation of the CCPE Opinion no 18 (2023) on the Councils of Prosecutors as Key Bodies of Prosecutorial Self-Governance (CCPE Secretariat 2023) 101 <https://rm.coe.int/compilation-of-responses-for-opinion-no-18-2023-/1680aa9355> accessed 27 October 2023.
The Council of the Prosecutor General is established by order of the Prosecutor General for an indefinite term. Today, it consists of 16 members, with only one not being a prosecutor. According to Art. 29 of the Law `On the Public Prosecutor's Office', the Council of the Prosecutor General is a collegial advisory body that considers the main issues of the organisation and activity of the public prosecutor's office and also performs other functions provided for by this Law. Thus, it develops and approves: (1) Regulations on the Attestation and Qualification Commissions of prosecutors; (2) Code of ethics of prosecutors; (3) Regulations on the procedure for wearing and samples of uniforms and insignia of prosecutors; (4) Rules for the selection, training and qualification examination of candidates for the position of public prosecutor; (5) Regulations on evaluation of professional activity of public prosecutors, etc.
The Council of the Prosecutor General, in turn, creates The Attestation and Qualification Commissions for a one-year term. The Council of the Prosecutor General also determines the number and composition of their members. In addition, these commissions report on their activity to the Council of the Prosecutor General at least once a year (Art. 291; Art. 292). Today, each commission consists of 8 members, all of whom are prosecutors (prior to 2023, each commission had 10 members - all of whom were prosecutors).
The Attestation Commission of Prosecutors provides an opinion on the suitability for the position before the appointment or promotion of a prosecutor, submits a proposal to the Prosecutor General to apply disciplinary sanctions to the prosecutor if the Law determines its need, and exercises other powers. At the same time, its decisions and conclusions are of a recommendatory nature (Art. 291).
In turn, the Qualification Commission of Prosecutors evaluates and provides an opinion on the progress of the implementation of the internship program of the candidate for the position of prosecutor, on the conformity of the knowledge and professional skills of the candidate for the position of prosecutor or prosecutor to the position he holds, etc. (Art. 292).
Issues of bringing the prosecutor to disciplinary responsibility are resolved within the framework of the "simplified" procedure in an order determined by the Prosecutor General (Art. 45).
Lithuania
In the Constitution of the Republic of Lithuania, the norms regarding the public prosecutor's office are contained in Art. 118 of Chapter IX. Court. Lietuvos Respublikos Konstitucija (1992) <https://www.lrs.lt/home/Konstitucija/Konstitucija.htm> accessed 27 October 2023. At the same time, the institution of self-governance of prosecutors is currently absent in the country as such. Although `some elements of self-governance' are mentioned in the context of the management of the prosecutor's service in matters of selecting prosecutors, evaluating their work, and checking violations of the Code of Ethics. They are exercised by commissions created by the Prosecutor General, consisting of 7 members - 4 prosecutors and 3 public representatives. CCPE (n 14) 109. The conclusions of such commissions are partially binding for the Prosecutor General, who cannot strengthen the decisions of the Commission for the evaluation of the work of prosecutors; he can appoint a person to the position of a prosecutor only from the list of candidates proposed by the relevant commission; The Prosecutor General may also not impose disciplinary sanctions on a prosecutor if the Prosecutor's Ethics Commission believes that the prosecutor has not committed a breach of the law, official misconduct or a violation of the Code of Ethics of Prosecutor.
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