The model of prosecutorial self-governance in Ukraine and the Baltic countries: a comparative aspect

According to Art. 10 of the Law on the Public Prosecutor's Office of Lithuania, commissions function in the prosecutor's system for the recruitment of prosecutors (for the selection of persons who claim to occupy the vacant position of the prosecutor, with the exception of the positions of the chief prosecutor and his deputy); for the selection of chief prosecutors (chief prosecutor and his deputy); attestation of prosecutors (for evaluation of the official activities of prosecutors, their qualification and suitability for work); on the ethics of prosecutors (for investigation of violations of legislation, official misconduct, actions that discredit the rank of the prosecutor, as well as other violations of the Code of Ethics of Prosecutor), and also examination commissions for candidates for positions (for evaluation of the professional preparation of candidates for the position of prosecutor). Law of the Republic of Lithuania no I-599 of 13 October 1994 `Lietuvos Respublikos prokuraturos jstatymas' <https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.5956/asr> accessed 27 October 2023. All of them are formed for a period of three years. The Board of Prosecutors nominates two prosecutors; the Prosecutor General appoints two prosecutors (one of such appointments is based on the proposal of the public prosecutor's trade union) to the composition of these commissions (except for the examination commission). The President of the Republic, the Speaker of the Parliament and the Prime Minister also nominate one prosecutor with an impeccable reputation based on the proposal of the public prosecutors' trade union. In turn, the Prosecutor General and the Board of Prosecutors appoint two prosecutors to the examination commission, and the President of the Republic, the Speaker of the Parliament and the Prime Minister nominate one scholar in the field of legal sciences with an impeccable reputation.

The Prosecutor General approves the composition of the commissions and the order of their activities.

According to Art. 7 of the Law, there is an advisory body under the General Prosecutor's Office - the Board of the Prosecutor's Office of the Republic of Lithuania, the composition and the order of activity of which are approved by the order of the Prosecutor General. The Prosecutor General is the head of the Board, and the members are the deputies of the Prosecutor General and the chief prosecutors of the districts.

In addition, the Public Prosecutor's Office of Lithuania has two trade unions that represent the interests of prosecutors, as well as the Labor Council, which actively defends the interests of prosecutors and tries to participate in the management of the Public Prosecutor's Office. Their representatives are members of the Board of the Prosecutor's Office of the Republic of Lithuania and the commissions mentioned above created by the Prosecutor General. CCPE (n 14) 109-10.

Estonia

According to § 1 of the Law `On the Public Prosecutor's Office', the public prosecutor's office in Estonia is subordinate to the Minister of Justice, i.e., belongs to the executive branch of government. Law of the Republic of Estonia of 22 April 1998 `Prokuratuuriseadus' <https://www.riigiteataja.ee/akt/ 13153853?leiaKehtiv> accessed 27 October 2023. There is the General Assembly of Prosecutors (the General Meeting of Prosecutors) in the public prosecutor's office system. According to Art. 13 of the Law, the Prosecutor General convenes the General Assembly of Prosecutors and manages its work.

The General Assembly of Prosecutors is a meeting of all prosecutors that takes place at least once a year. It resolves the following issues: (1) election of two prosecutors of the district public prosecutor's office and one prosecutor of the State Public Prosecutor's Office as members of the Competition Commission of Prosecutors; (2) election of two prosecutors of the district public prosecutor's office and two prosecutors of the State Public Prosecutor's

Office as members of the Disciplinary Commission; (3) election of a prosecutor to the position of a member of the commission on professional suitability of the Bar of Estonia and his deputy; (4) approval of the procedure for holding the General Meeting of Prosecutors; (5) listening to the reports of the responsible minister and the Prosecutor General on the activity of the public prosecutor's office; (6) discussion and submission of proposals to resolve issues related to the activity of the public prosecutor's office.

The Competition Commission of Prosecutors evaluates candidates for the position of prosecutor if such a position is filled by open competition. This commission consists of the Prosecutor General, who is ex-officio the chairman of this commission, one prosecutor of the State Public Prosecutor's Office, two prosecutors of the district public prosecutor's office, one judge elected by the plenum of judges, one legal scholar elected by the dean of the Faculty of Law of the University of Tartu, and an official of the Ministry of Justice appointed by the minister. The term of office of a member of the Competition Commission of Prosecutors, with the exception of the Prosecutor General and an official of the Ministry of Justice, is three years (Art. 19; Art. 43). The Ministry of Justice establishes requirements for the organisation of this competition, as well as for persons applying for the position of prosecutor (Art. 44).

The Minister of Justice also determines the procedure for the work of the Disciplinary Commission, which considers cases of disciplinary misconduct of prosecutors (Art. 36). This commission consists of two prosecutors of the State Public Prosecutor's Office, two prosecutors of the district public prosecutor's office and one judge elected by the plenum of judges. The Disciplinary Commission is elected for a term of three years. Its chairman is elected from among the members of this commission.

Today in Ukraine, according to the Law operates:

a) the All-Ukrainian Conference of Prosecutors is defined as `the highest body of prosecutorial self-governance' (Art. 67). Convened by the Council of Prosecutors of Ukraine (hereinafter - CPU) once every two years. Its competence includes hearing the CPU report on the fulfilment of tasks of public prosecutorial self-governance bodies; electing members of the High Council of Justice and deciding on the termination of their powers; appointment members of the CPU and the Qualification and Disciplinary Commission of Prosecutors (hereinafter - QDCP); approval of the Code of Professional Ethics and Rules of Professional Conduct for Public Prosecutors and the regulations on the CPU; adoption of regulations on the procedure for the work of the QDCP; appeal to public authorities and their officials with proposals for resolving issues related to the activity of the public prosecutor's office; examination of other issues of public prosecutorial self-governance and exercise of other powers in accordance with the law.

b) the CPU is the highest body of public prosecutorial self-governance between the Conferences of Prosecutors. It not only organises the implementation of decisions of the Conference or resolves issues related to its convening and holding, but also its competence includes, in particular, bringing recommendations to the heads of relevant public prosecutor's offices for appointment of prosecutors to administrative positions; contribution to assurance of the independence of prosecutors and to increasing the state of organisational support for the activities of public prosecutor's offices; resolution of issues of legal and social protection of prosecutors and members of their families; consideration of appeals on threats to the independence of prosecutors and taking appropriate measures; making proposals to state authorities on resolving issues related to the activities of the public prosecutor's office; exercising control over the implementation of decisions of public prosecutorial self-governance bodies, etc.

c) a meeting of prosecutors of the relevant public prosecutor's offices (the Prosecutor General's Office, regional public prosecutor's offices, and district public prosecutor's offices), which elects delegates to the Conference of Prosecutors. However, it should be noted that the legislator does not give them any other competence. However, this does not limit the capacity development of such meetings, taking into account, in particular, the provisions para. 8-9 of Guidelines on the Role of Prosecutors (1990) `Guidelines on the Role of Prosecutors' (8th UN Congress on the Prevention of Crime and the Treatment of Offenders, 7 September 1990) <https://www.ohchr.org/en/instruments-mechanisms/ instruments/guidelines-role-prosecutors> accessed 27 October 2023. and para. 6 of Recommendation (2000) 19 on the role of public prosecution in the criminal justice system. Recommendation Committee of Ministers of the Council of Europe R (2000) 19 and Explanatory Memorandum of 6 October 2000 `The Role of Public Prosecution in the Criminal Justice System' <https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016804be55a> accessed 27 October 2023. They refer to the possibility of prosecutors participating in professional organisations to represent their interests, increase their professional training, protect their status, and also discuss legal issues.

d) the QDCP, which keeps records of vacant and temporarily vacant positions of prosecutors; conducts a competition (selection) of candidates for the position of district prosecutor; conducts a competition for appointment to high-level public prosecutor's offices; considers issues about disciplinary responsibility of prosecutors; etc.

In general, public prosecutorial self-governance bodies in Ukraine solve tasks and exercise competence Oksana Khotynska-Nor, Nana Bakaianova, and Maryna Kravchenko, `Prosecutor's Office of Ukraine Under Martial Law: Challenges, Trends, Statistical Data` (2023) 6(3) Access to Justice in Eastern Europe 40, doi:10.33327/AJEE-18-6.3-a000303. that are characteristic of such bodies in other European countries (where they are established. CCPE (n 14) 235.

The conducted comparative analysis demonstrates that one or another organisational model of public prosecutorial self-governance, which was formed in each of the countries, is a product of various political and legal events within the national legal system. Although such countries may have a common historical past, in the future, the specifics of political, social, cultural and legal development will determine individual features for each of them.

In the context of compliance with the international standards mentioned at the beginning of this section, the existing de jure model of public prosecutorial self-governance in Ukraine appears to be more optimal because, taking into account the structure of its bodies and powers, it has a greater ability to minimise corporate influence by reducing the participation of the Prosecutor General in the processes of formation and activity of relevant bodies, as well as external political influence, for example, of the Minister of Justice as a representative of the executive power. Although its formation was not without its disadvantages, which were the object of attention at various levels. S Podkopaiev, `The Main Areas of Improvement of the Legal Basis of the Organization and Activity of the Qualification and Disciplinary Commission of Public Prosecutors' (Actual Problems of Judicial Law: Conference, Kharkiv, 23 April 2018) 105; GRECO, Fourth Evaluation Round Corruption prevention in respect of members of parliament, judges and prosecutors: Compliance Report Ukraine Greco RC4(2019)28 (GRECO Secretariat 2019) para 134 <https://rm.coe.int/fourth-evaluation-roundcorruption-prevention-in-respect-of-members-of/16809d768c> accessed 27 October 2023.

WAYS TO STRENGTHEN THE INSTITUTIONAL CAPACITY OF PROSECUTORIAL SELF-GOVERNANCE IN THE EXAMPLE OF UKRAINE

The experience of the formation of public prosecutorial self-governance, the ramifications of its model and the practice of the relevant bodies allow us to identify the following possible ways for strengthening their institutional capacity to ensure the fulfilment of their tasks:

a) change of corporate culture, the transformation of the consciousness of the professional prosecutorial community;

b) improving the legal regulation of public prosecutorial self-governance activity, in particular:

c) of the formation of the relevant bodies' staff;

d) of exercising their powers;

e) of ensuring the enforcement of the prosecutorial self-governance bodies decisions.

1. For Ukraine and states that follow a similar course of development, this is especially important in view of the long historical traditions of building and activity of the public prosecutorial system on the principles of centralisation and unity of command. It is necessary to understand clearly the fact of changing the content and scope of traditional principles of the public prosecutor's office organisation and activity, including the principle of collegiality in resolving issues related to the status of prosecutors. This requires a certain period and contains difficulties, but it is compulsory in the context of the full formation of public prosecutorial self-governance bodies and the effective performance of their tasks.

2 (a). Formation of the relevant bodies' staff

The Law of Ukraine on the Public Prosecutor's Office provides that the composition of bodies of public prosecutorial self-governance includes representatives of the legal community, scholars or lawyers. In this sense, foreign experience testifies to different organisational models of prosecutorial self-governance. Despite the organisational peculiarities in different countries, representatives of civil society, scientific schools and lawyers are involved in their work to prevent these bodies from becoming "syndicates" on a professional basis. Stefan and Peci (n 5) 10. The aim of such involvement is to strengthen public confidence in the judiciary system and the responsibility of the judiciary to society. It is generally believed that the inclusion of representatives of other legal professions provides better public recognition of the results of the activity of relevant bodies. This partly removes fears that experts protect their colleagues from the consequences of disciplinary misconduct. H Mitchell Caldwell, `The Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal' (2014) 63(1) Catholic University Law Review 100. It will also ensure constant social control over the organisation of staffing of the justice system. At the same time, foreign experience shows that a majority of prosecutors are in such bodies or consist exclusively of prosecutors.

And while the CPU includes the majority of prosecutors (11 out of 13), then in the QDCP - on the contrary, prosecutors constitute a minority in the total composition (5 out of 11).

GRECO experts (2017) expressed concern about the fact that `... current law does not ensure that prosecutors will have a majority of seats in the QDCP'. They underline that the situation in Ukraine differs from other GRECO states that have already formed bodies of similar competence. The experts proposed amendments `to the provisions on the formation of the Qualification and Disciplinary Commission to ensure that the majority of seats are occupied by prosecutors elected by their colleagues'. This is considered to be a measure that will help it `... fully defend their legitimacy and credibility, as well as strengthen its role as a guarantor of the independence and autonomy of prosecutors'. GRECO, Fourth Evaluation Round Corruption prevention in respect of members of parliament, judges and prosecutors: Compliance Report Ukraine GrecoEval4Rep(2016)9 (GRECO Secretariat 2017) para 216 <https://rm.coe.int/grecoeval4rep-2016-9-fourth-evaluation-round-corruption-prevention-in/1680737207> accessed 27 October 2023. A similar provision is contained in para. 24 of Opinion No. 13 (2018) CCPE. Opinion of the CCPE no 13 (2018) (n 3). Therefore, the legislator should consider it in the context of further modernisation of public prosecutorial self-governance organisational forms.

It is also necessary to revise the approach, according to which a prosecutor holding an administrative position cannot be a CPU or QDCP member. The desire to protect the relevant procedures from excessive administrative pressure from managers on other members (prosecutors), which could potentially be possible if they were appointed to these bodies, is understandable. Actually, the heads of the respective prosecutor's offices and their deputies, as heads of these bodies, have a certain authority in the system, in the prosecutorial community, which, in turn, has established historical traditions of centralised construction and hierarchical subordination. At the same time, we should understand that candidates for administrative positions in the public prosecutor's office have always been subject to increased requirements for professional qualities.

In this sense, the best solution to the issue may be to impose restrictions on the appointment of a prosecutor to the CPU or to the QDCP who does not hold any administrative position of high level (of First Deputy and Deputy Prosecutor General; head, first deputy and deputy head of regional or district public prosecutor's offices).

2 (b). Exercising the powers granted to the bodies of prosecutorial self-governance

Pondering the issue of the exercise of powers granted to the prosecutorial selfgovernance bodies inevitably leads to the question of the scope of their competence in the field of staffing and its correlation with the competence of other subjects. The specificity of the Ukrainian realities is that, in fact, today, the career advancement of prosecutors is carried out by: