Head of president's office Andriy Bohdan (C) presents Ruslan Riaiboshapka (R) as a new Prosecutor General together with previous PG Yuriy Lutsenko. Kyiv, 30 August 2019. Photo: gp.gov.ua
During the past years, Ukraine has made significant efforts to reform the judiciary. Still, the process has not turned into successful yet. However, the things with the reform of the prosecutor’s offices were even worse. At best, this key institution has only managed to achieve superficial changes. The level of society’s trust toward prosecutors remains low. They are associated with injustice at every turn – at the very least, covering up for criminals, not to mention many other forms of corruption. On 19 September, parliament finally approved the long-awaited reform of the Prosecutor’s Office. The first test for it now is to rid the system of unqualified people.
On 4 November 2018, the prominent Kherson activist Kateryna Handziuk died, succumbing to horrific injuries from an acid attack early in the year. Vladyslav Manger, the head of Kherson Oblast Council is suspected of ordering the attack. Despite the wide public outcry to the case, and close monitoring by human rights groups, a year later the investigation has not moved forward and the guilty are not punished.
Recently, activists identified a prosecutor who is protecting one of the alleged perpetrators, Igor Pavlovskyi. He is suspected of organizing the assassination, yet has managed to avoid court hearings. Pavlovskyi has been moved from a pre-trial detention center to a hospital, claiming bad health. Meanwhile, activists have discovered that he is not hospitalized, rather staying with friends.
“It is important that a prosecutor of the Prosecutor General’s Office, Dmytro Boyan, covers the killer Pavlovskyi. He is the party of the prosecution and on 13 September Shevchenkyvskyi District Kyiv Court obliged Boyan to check whether Pavlovskyi indeed was undergoing treatment in the named medical institution. Boyan did not identify anything. Of course, not for free,” the activists from the initiative Who Ordered Kateryna Handziuk? wrote.
The case of Kateryna Handziuk is known internationally. However, there are numerous other cases throughout Ukraine in which prosecutors have opened proceedings against activists while protecting alleged attackers and the corruption that serves their own interests.
Since the Euromaidan Revolution in 2014, six Prosecutor Generals have had to be replaced. The last appointee under the previous government’s administration, Yuriy Lutsenko, who lacks any judicial certification, took no steps to change the negative perception of the office. Moreover, Lutsenko himself was not well perceived by the public, due to his close association with then-President Petro Poroshenko.
Even before the appointment of Ruslan Riaboshapka as Prosecutor General – when he was still serving as deputy head of President Volodymyr Zelenskyy’s Office – he had voiced his intentions to reform the field. He advocated the elimination of the military prosecutor’s office. More changes were to come in the fall.
The personnel reboot
Key problems of the Prosecutor’s Office arise from the old Soviet model of management and personnel, but reform in the post-revolution period has been superficial and has had no impact on higher levels of the system. This has also been the case at regional offices.
The newly adopted law will entail a personnel reboot within the system. Current prosecutors will undergo a revamped attestation process and may even be dismissed if they do not pass. Salaries for the prosecutors who pass the tests would be increased. All subsequent appointments would be made through open competition, allowing people out of the system to participate in it.
The decrease in the number of employees is expected to drop from about 15,000 to at least 10,000. The reduction will mostly come out of bloated oblast offices and the Prosecutor General Office. The revamped attestation will be also addressing complaints against prosecutors; imposing disciplinary proceedings; requiring mandatory declarations of assets, and other matters that would impinge upon a prosecutor’s integrity and code of ethics.
Yevhen Krapyvin, a specialist of the Expert Center for Human Rights, has clarified that the reductions will take into account redundancy in positions across departments, including the actuaries of Single Register of Pre-Trial Investigations. In addition, many positions, even those with much authority, have been considered to be on the same level as a “prosecutor.” These positions are at the very least a redundancy and will be reduced.
“As a result, the reduction almost will not lead to increased loading. These positions will be just reduced. However, if in a result of the attestation more people are dismissed, then new employees will be needed. Civilians will be hired, because the current legislation on the prosecutor’s office allows to hire people just with higher legal education and two to five years of experience,” the expert stated to Euromaidan Press.
On 23 October, the re-attestation for the first group of prosecutors started. They had been given six days to prepare for a potential 6,000 questions. The computer program then randomly selected 100 for each. To advance to the next stage, the prosecutors had to correctly answer at least 70% of the questions. Those who did not would be dismissed.
In the first group of 1,088 prosecutors, 774 were successful, 197 were not, and 117 did not attend at all. Thus, some 30% were eliminated. Oleksandr Liemenov, member of the personnel commission, noted that those who passed the tests thought the questions were relatively simple. Some who did not pass complained that questions had been poorly worded and impossible to answer correctly. Liemenov pointed out that only 70 questions had to be answered correctly. Even if a few were not clear, they would not have influenced the ultimate outcome.
“Finally, I would quote the ‘leaders of sabotage’ who proposed the following idea – ‘those who did not pass the exam should file a lawsuit against the staffing committees and regulations on the certification, we have nothing to lose’ (verbatim). Colleagues-prosecutors, such ideas only confirm the need in cleaning the ranks,” Liemenov wrote.
Employee reviews have not always worked. The 2016 re-attestation of police officers resulted in only 8% of dismissals, and a large number of those were later reinstated through court appeals. To add insult to injury, the state had to pay them a total of UAH 55mn ($2.1mn) in compensation for loss of work during the court hearings.
However, Krapivin believes the chances of dismissed prosecutors being reinstated are much less.
“All the problems of the police attestation in a part of legal provision were related first to the fact that the bylaw on it contradicted the Law on the National Police in the part on the terms of conducting the attestation. Second, all the criteria of the assessment were equal. It means that an interview and the characteristics had the same weight. So it was impossible to dismiss a person because the number of positive characteristics always prevailed. In the attestation of the prosecutors there is no such problem, and the procedure is written in the law.”
The vast majority of prosecutors of the Prosecutor General Office – 94.6% – applied for re-attestation. The 218 prosecutors who refused to go through the process will be dismissed. The same will be applied to those prosecutors who filed statements that were incomplete or misleading.
The situation in the department considering Euromaidan cases
Resistance to the reform came from an unexpected direction. Serhiy Horbatiuk, head of the Department of Special Investigations of the Prosecutor General Office, who had been highly respected for his work on investigating the Euromaidan killings, was severely critical of the review. He himself was dismissed for not filing the required documentation. Horbatiuk has protested that the real reason for his dismissal was that he had obstructed the whitewashing of ex-state officials for the Euromaidan crimes – in particular, the runaway president Viktor Yanukovych. According to Horbatiuk, the current Prosecutor General thinks that no criminal assertions can be made of Yanukovych.
Horbatiuk’s department was disbanded. The majority of Euromaidan cases will now be investigated by the State Bureau of Investigations, Security Services, the National Police, and the National Anti-Corruption Bureau. The Prosecutor General Office informed that the employees of the department could have continued the work on the cases within the State Bureau of Investigations or after the attestation to continue the work within the new department on the Maidan cases of the Prosecutor General Office.
Regarding the attestation, Horbatiuk considers it to contradict at least 50 provisions of the Constitution.
The disagreements among prosecutors were not welcomed by society.
“It’s bitter and painful. The ex-head of the Department of Special Investigations on Maidan cases who was absolutely trusted by the Family of Heavenly Hundred NGO and the Advocacy Advisory Panel did not get along with the Prosecutor General Ruslan Riaboshapka and his deputies Vitaliy Kasko and Viktor Chumak who also have huge trust from society. Serhiy Horbatiuk, Oleksiy Donskyi, and other employees of the Department withstanded the exhausting perennial fight against the previous heads of the Prosecutor General Office and are dismissed now, when it seemed that there will be no obstacles for the effective investigation [of the Euromaidan cases]. What is happening now is a time bomb for the reform of the prosecutors offices. Of course, the quality of the investigation of Euromaidan cases will be adversely affected. The colossal volume of materials accumulated by the investigation will require long studying before moving forward. The problem must be solved. Immediately,” Larysa Holnyk, whistleblower judge said.
Among the other significant changes, the reform includes renaming and reorganizing the institution itself. The current name, Prosecutor General Office, has been changed from the old inherited Soviet name, Heneralna Prokuratura (“general procuratorship”), and thus translated into English. Instead of local prosecutor’s offices there will be district ones, and regional offices will be renamed into more common oblasts names. In effect, renaming offices means creating new institutions out of old ones and constitutes grounds for dismissals.
As announced by Riaboshapka last summer, military prosecutor’s offices have been liquidated. In 2018, the State Bureau of Investigation was launched for the purpose of tackling problems related to crimes committed by top officials, law enforcement officials, military officers, and judges. Since it assumed the duties of military prosecutor’s offices, the latter are no longer needed.
The new law provides an opportunity for the Prosecutor General, if necessary, to create specialized prosecutor offices empowered with the same rights as the Prosecutor General Office structure unite, oblast offices and district ones. In particular, the provision for specialized offices can be implemented to deal with military crimes.
According to the new law, the Prosecutor General’s duties are significantly expanded. During the transition period, he is granted a number of temporary duties which give him full responsibility for the personnel reboot. Additionally, the law has returned the provision requiring the Prosecutor General to have a degree in law and at least five years of work experience in the field.
The law also deprives prosecutors of de facto military rankings they traditionally received since the Soviet era.
The exception to all these changes is the Specialized Anti-Corruption Prosecutor Office which deals with the top corruption cases. Their structure will not change.
The new law envisages long-awaited large-scale reform. The main task will be to make it truly effective, and not just another half-baked attempt at the change that in the end goes nowhere. Yevheniya Zakrevska, human rights activist, has voiced her confidence that without the trust of the public – which can only be built through the transparent procedure and proper communication, especially in the area of attestation – the reform can not be successful.
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