Date of publication: 2 September 2013
Mykola Burtovyi, Attorney at Law,
Source: RBK Ukraine
After the silly season of Ukrainian legislature in summer, the Public Prosecution Bill was brought before the Venice Commission* by the Executive Office of the President. The bill is expected to replace its outdated namesake adopted back under the Ukraine’s first President Leonid Kravchuk.
To say the bill is vitally import is to say nothing. As soon as it was open for public discussion, the bill immediately caused a lot of uproar and excitement both in the prosecutors’ community and among those who have to deal with prosecutors professionally.
There is no doubt that these days prosecution service has reached and rooted deep into all areas of our life. Today, prosecutors can ban virtually anything from a website to construction works, an authority vested in them by the existing version of the act and exercised under the mandate of so called «general supervision».
If the bill is adopted and signed into law, prosecutors will lose much of their current power. This is proved by a number of significant novelties.
First: «General supervision» to be abolished. Prosecutor’s injunctions, submissions and protests will sink into oblivion. Prosecutors will no longer be able to suspend construction or request documents or information from a business. Simply put, they will have no authority to demand anything from a private person or a non-governmental corporation unless there is a pending criminal action.
Second: Prosecutor’s authority to sue on behalf of the government or individual citizens to be substantially restricted. Prosecutors will only be able to file lawsuits on behalf of minors or incapacitated citizens. The rest will be handled by advocates (pleaders/counsels/defense attorneys) under the Free Legal Aid Program.
The number of lawsuits filed by prosecutors on behalf of the government is also expected to decrease. The bill provides that prosecutors may only commence actions if national or local authorities idle and not until the «prosecutor’s clause» on pre-trial settlement.
The prosecutor may only commence a court action if a party defaults or refuses amicable settlement or takes steps to resolve the dispute amicably which the prosecutor believes are insufficient.
Third: slowly but steadily though, all investigations are going to be taken over by the police, save for the crimes that fall within the competence of the National Security Service, tax authorities and National Bureau of Investigation, an agency that is yet to be established. Meanwhile, prosecutors will have to focus on compliance by investigating authorities, interrogation and pre-trial investigations.
Fourth: Admittance to office of public prosecutor to become more complex but transparent. The bill suggests setting up the Higher Qualification and Disciplinary Board and regional boards, just similar to the ones existing for judges and trial attorneys. The procedure is going to be lengthy and will include anonymous screening, a course at the Academy of the Prosecution and the fair contest of ratings with the rest of the candidates.
Fifth: Counsels to gain more authority as prosecutors lose power. Today, counsels may access various documents and files at the premises of companies and organizations where such documents and files are reasonably required for their professional activity and to the extent such information is not privileged or confidential. After the bill is signed into law, they will also have unhampered access to the premises of such companies and organizations.
Besides, counsels will gain free access to non-secret governmental databases including some national authorities, local governments and social security funds.
With the liquidation of 122 specialized attorney’s offices, few insiders are expected to welcome the reform. However, the authors of the bill are sure that the Office of the Prosecutor General (Attorney General) will be able to optimize and reemploy laid-off prosecutors to deal with the remaining functions of public prosecution.
Lawmakers vision a public prosecutor exempt of unnecessary functions who focuses on criminal investigation and guidance. If this happens, conviction rates are expected to rise significantly.
* European Commission for Democracy through Law