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

a) the QDCP while conducting a competition for the transfer of a prosecutor to a position in a higher-level prosecutor's office;

b) the CPU while introducing recommendations to the Prosecutor General for the appointment of prosecutors to some administrative positions;

c) heads of prosecutor's offices of the appropriate level, who appoint prosecutors to other administrative positions without recommending the CPU.

Dispersion of personnel powers among various subjects makes the construction of the Ukrainian model of prosecutors' career advancement vulnerable, particularly in terms of clarity in the demarcation of their competence.

Given the need to ensure the unity of the status of prosecutors, there may be several options and possible ways to resolve this issue. Still, all of them will require institutional strengthening of the relevant bodies and legislative changes. In particular, (a) the establishment of a body in the justice system competent in matters of staffing of the prosecutor's office; (b) the CPU focuses on ensuring the independence of prosecutors, as well as improving the state of organisational support for the public prosecutors' offices activity. At the same time, issues of staffing, including in terms of making recommendations for the appointment and dismissal of prosecutors from administrative positions, consideration of appeals regarding improper performance by a prosecutor holding an administrative position, or official duties established for the corresponding administrative position, are transferred to the QDCP; (c) on the contrary, the transfer of powers from the QDCP to the CPU and, accordingly, the CPU should become the sole body responsible for staffing. In any case, given the need to strengthen the independence of prosecutors, the role of heads of prosecutor's offices at the appropriate level in personnel matters should be minimised.

2 (c). Of ensuring the enforcement of the prosecutorial self-governance bodies' decisions.

Ensuring the enforcement of decisions of public prosecutorial self-governance bodies is closely connected to the issue of their binding nature for various subjects, including prosecutors, other employees of the public prosecutor's office, as well as bodies of state power and local self-governance, and citizens. The issue of the effectiveness of the mechanism for ensuring the enforcement of the CPU decisions is open and requires separate consideration. Nevertheless, the very existence of such an institution as public prosecutorial self-governance and its activity is a significant step forward in ensuring the independence of prosecutors.

Today in Ukraine, the All-Ukrainian Conference of Prosecutors adopts decisions on matters within its competence binding for the CPU and all other prosecutors. At the same time, there is no similar norm for the CPU at the legislative level. Only in the Regulations on the Council of Prosecutors of Ukraine (2017) is it stipulated that the decisions of the CPU adopted on ensuring the independence of prosecutors, protection from unlawful influence, pressure, or interference in the exercise of the prosecutor's powers may be sent to the public prosecutor's office and are binding for consideration within its competence.²⁹ As we can see, the obligation is established only for consideration of decisions by the relevant prosecutors and only on specific issues of ensuring the independence of prosecutors. The obligation to consider such decisions by subjects outside the system other than prosecutors, as well as to consider requests, appeals, decisions on improving the state of organisational support for the activity of public prosecutor's offices, legal and social protection of prosecutors, appeals with proposals for solving problematic issues of the prosecutor's office activity to state authorities or local self-government bodies etc. remains out of regulation.

In this regard, the legislation must provide that state bodies, local self-government bodies, public organisations and officials should consider requests and decisions of the CPU within a month from the date of their receipt; as for the issues of ensuring the safety of prosecutors - within 10 days with taking measures to eliminate threats to the safety of prosecutors.

`Regulations on the Council of Prosecutors of Ukraine' (All-Ukrainian Conference of Prosecutors, 27 April 2017) (as amended of 28 August 2021) <https://rpu.gp.gov.ua/userfiles/file/rolojennja_pro_ rpu_(1).docx> accessed 23 March 2023.

CONCLUSIONS

The set-up of prosecutorial self-governance in states is a significant step towards strengthening the independence of prosecutors. As the comparative analysis has shown, its Ukrainian model is quite progressive, as it has the potential to minimise both external political and internal systemic influence on personnel processes in the public prosecutor's office system and also contributes to the resolution of issues of financial, material, technical and other support of prosecutors. However, it is not without its disadvantages. Dispersion of personnel powers among different subjects makes the construction of the Ukrainian model of prosecutors' career advancement vulnerable, particularly in terms of clarity in the demarcation of their competence.

Further development of the prosecutorial self-governance should provide for strengthening its institutional capacity, taking into account the existence for a long time of conservative views on solving issues related to the status of prosecutors inside of the public prosecutor's office system, in the past self-governing forms of the organisation did not characterise this system. It can be carried out in particular by changing corporate culture, transforming the consciousness of the professional prosecutorial community, streamlining the procedure for personnel forming the relevant bodies, a clear delineation of their competence and sphere of responsibility, and ensuring the implementation of decisions. This is a necessary condition for developing the potential of the prosecutor's office, strengthening the real independence of prosecutors, and a condition for more effective functioning of the justice system in the country.

REFERENCES

1. Caldwell HM, `The Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal' (2014) 63(1) Catholic University Law Review 51.

2. Khotynska-Nor O, Bakaianova N, and Kravchenko M, `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.

3. Podkopaiev S, `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.

4. Stefan L and Peci I, Comparative Study on Prosecutorial Self-Governance in the Council of Europe Member States (Council of Europe 2018) 5.

Размещено на Allbest.ru