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17 january 2013

Prosecution vs. Prokuratura: the European experience concerning the title of prosecuting services

There is currently an ongoing discussion on how to reform the Ukrainian justice system.These discussions are given expression in the Presidential Administration of Ukraine's Constitutional Assembly proposals for improvement of sections of the Constitution of Ukraine on justice.

One of the systemic shortcomings of these proposals has been that the authors of the proposals have largely ignored the future prosecuting services. This failure has been criticized by the Council of Europe. The Council has argued that the organs of the prosecution system must be an integral part of reforming the justice system, that it is impossible to talk about the integrity of the reforms in this area without resolving the issue of status of the prosecution (see.: Status of public prosecution: international standards, foreign legislation and proposals for reform in Ukraine. - K., 2012. - 624 p.[1]).This has also been commented upon by the Venice Commission in its opinion on the draft Law of Ukraine "On Prosecutor's Office", adopted at its meeting on 12 - 13 October 2012[2].

The intention of this publication is to highlight the outdated nature of the names of prosecuting services in Ukraine and other former Soviet states.Antiquatednames can generate problems with regards to the functions and competence of the authority. This can be compared with the discussions concerning the transformation of the name of law-enforcement officials. Known as "militia" in Ukraine, discussions on the changing to the international term "police" have been ongoing since the declaration of independence of the Ukrainian state, whereas a similar discussion with regards to prosecuting services has been absent.

It is possible to divide the 47 member states of the Council of Europe into three types of prosecuting services:

1)Termswhich refer directly to the protection of the public or state interest:

- In France, Belgium, Luxembourg and Monaco[3]the term used isMinistère public, which translates literally as a 'Public Ministry' (interesting to note that the Latin term ministraremeans "to serve"). In these states relevant officials are termed magistrats du parquet, and are divided into units of service - referred to as parquet, such as Parquet généraland others.The term, parquet, has early modern origins and previously designated the fact that magistrats, when expressing their views in court were forced to stand on the floor while the judges sat. Compare the term magistrats du parquetwith Ordinance № 58-1270 of the French Republic from 1958 which concerned judges, "On the organic law on the statute of magistrats" who are referred to as magistrats du siége(magistrates who sit);

-In Italythe term used is Pubblico Ministero,and officials are referred to as magistrati. They have the same title and constitutional standing as judges;

- In Portugal[4] the term used is Ministerio Público,and officials are referred to as procuradore;

- In Romania[5] the term used is Ministerul Public.The ministry is divided intobodies called magistraţi and unitsknown asparchetului;

- In the Netherlands[6] the term used is Openbaar Ministerie, meaning, like the French, literally 'Public Ministry'.Divisions of services are divided along the French model into parketten.However, officials are called officers of justice (officieren van justitie);

-In Spain and Andorra[7] the term is MinisterioFiscal, and is best translated as public ministries.The term fiscal, however, meant 'treasure' in Latin. This body is designed to protect the interests of state reflected in the treasury or the budget;

- In Germany, Austria, Switzerland, andLiechtenstein[8] the term is Staatsanwaltschaften, which translates literally as 'body or authority of state representation' (Staat means a State, and anwalten - representation).Employees of the body are called Staatsanwalter (State Representatives);

- In Czech Republic[9] the term isStátní zastupitelství(State Representation, coming from the same tradition as in Germany and Austria),and employees are known as státní zástupce;

- In Croatia[10] the term is Državno odvjetništvo (State Representation, coming from the same tradition as in Germany and Austria) and employees are known as državni odvjetnik (State Representative);

- In of Denmark[11]the term is Statsadvokaterne(state advocate/lawyers) and employees are known as statsadvokat.

Following this tradition, prosecuting services are referred to as ministère public, and their employees,Membres du ministère public(representatives of public ministry) in the official French documents of the Council of Europe.

2)Termswhich reflect the specific competences for prosecuting services:

-In the United Kingdom[12] (England, Wales and Northern Ireland) the term is Public Prosecution Service (the exception to this is in Scotland who have use another title), and the employees are referred to as public prosecutors.The emergence of the term 'prosecution' in English dates from the 15th century. It comes from the plural form of the Latin wordprosequi which means 'follow after pursue or to attack';

-In Iceland[13]the term is Ríkissaksóknari (Ríkis meaning state), with the employees known as saksóknari (prosecutor);

- In Norway[14] the term is Påtalemyndigheten (the term påtale means to prosecute and myndighet means state agency)but the employees are known as statsadvokater, with the same meaning as in Denmark;

- In Sweden[15] the term is Åklagarmyndigheten (the modern word for prosecute in Swedish in åtala, but åklaga is the older, Nordic term. Myndighet has the same meaning in Swedish as in Norwegian, state agency). An employees of the agency is known as åklagaren (prosecutor);

- In Finland[16] the term in Swedish is Åklagarväsende (Väsende is another word for government agency like myndighet, but referring particularly to the judiciary), with employees known as åklagare (prosecutors) like in Sweden. The term in Finnish is Syyttäjälaitos (Laitos meaning agency) and the employees are known as syyttäjä (prosecutors);

- In Hungary[17] the term is ügyészi szervezet (Pubic prosecutors) and employees are know as ügyészség (prosecutor);

- In Slovenia[18] the term is Državnotožilstvo(Public Prosecution Service) and employees known as državni tožilec (state prosecutor);

-In Serbia[19] the term is “Републичко јавно тужилаштво” (Republičko javnog tužilaštva and meaning 'public prosecution service of the Republic')and employees known “Заменици Тужиоца” (javni tužilaca,public prosecutor);

- In Montenegro[20] the term is Državne tužioce (državne meaning 'state' in Montenegrian) and employees known as državnitužilac(state prosecutor);

- In Bosnia and Herzegovina[21] the term is Tužilaštvo (meaining 'Prosecutor's office') and employees are known as tužilac (prosecutor);

- In Macedonia[22] the term is Јavno obvynytelstvo (public prosecution service) and employees are known as javen obvynytel (public prosecutor).

The official English term for the prosecuting service used by Authorities of the Council of Europe in the English versions of their documents is 'public (state) prosecution service', and for those employed by the service are known as 'public (state) prosecutors'.

3)Terms whose root is found in the Soviet term for prosecution:

Prokuraturaas the term referring to prosecuting services and their employees have remained in 13 European states - Nine former Soviet republics (Estonia, Lithuania, Latvia, Ukraine, Moldova, Russia, Georgia, Armenia and Azerbaijan), threestates of the former "socialist camp" (Poland, Slovak Republic and Bulgaria) and in Albania.Local variations of the term prokuratura exists, however. For example, in Poland and Slovak Republic, officials of the prosecuting services are known as Prokurator, in Albany they are referred to as Prokuroria.

When referring to the specific names of prosecuting bodies in the post-Soviet countries, European institutions use the name prokuratura or an anglicized version of the term (in particular, see. Paragraphs 1, 3, 5 Opinion number 340/2005 the Venice Commission on the Federal Law "On the Procuracy of the Russian Federation").

In our opinion, the term prokuratura is the least reflective of the content of the relevant authorities. The Latin root of the term prokuratura  meaning 'manager, bailiff, or agent' reflects a more general term and meaning when contrasted with the Latin root of prosecution. Prokuraturareflects a too general expression of state power, one that goes beyond the meaning of prosecuting services. The older meaning of prokuratura was to act as arbiter of general executive powers at the local level.The term prokuratura, in terms of content, is incompatible to the modern term 'prosecutor' or 'public attorney'.

The term prokuratura has its historical roots in 18th century Russia and was created as to be the extended arm of the Russian potentate, responsible for prosecuting crimes, enforcing laws on government officials (administrative sanctions) and persecuting political dissidents. But with the modernization of the Russian Empire in the 19th century it became necessary to convert the position and include it in a more modern justice system.Article 135 in the 'Statute concerning judicial institutions'from1864 stated: "The subject of prokuratura is to be generally limited to matters of judicial office."Building on this provision, the Minister of Justice in his order dated November 27, 1865 № 10 569 stated: "With the introduction of legal reforms prokuratura should be public prosecutor in all criminal cases, and lead them in all courts as a representative of the government and the law - this makes the duties of prokuratura greater and more complex than before.Indictment activities of prokuratura, will be the main subject of their work, and shall take so much time, that they will not be able to perform other duties that had previously taken large portions of their time, including overseeing the proper procedure and resolution of cases in administrative proceedings…. Consequently, to successfully emphasize the importance of the main activities of prokuratura they must be given the means and capabilities to perform their duties in good faith so as to lead to the detection and prosecution of crime and the protection of those who may not themselves appear in court as plaintiff or defendant - and this can only be achieved by the dismissal of prokuratura from other activities that have no direct relation to this activity."Thus, judicial reform in 1864 completely changed the authority of prokuratura, but did not lead to the changing of their name.

The importance of changing the names of the prosecution in Ukraine is obvious.If half of the European's countries have kepthistoricnames(for example Ministère public,Staatsanwaltschaften), it has not mean that those authorities have retained broad powers to protect all possible state interests.The vast majority of these prosecuting bodies have limited authority often limited in its public services to being representative of the state in matters of criminal prosecution. Leaving older names in the states of Western Europe is a tribute to that state's historic tradition.(However renaming organs is not something unique to the states of the European Union [EU]. Specifically, in 1993, the Czech Republic and Romania renamed their prosecuting bodies [to Státní zastupitelství and to Ministerul Public respectively].This was done long before these states joined the EU.)

In comparison to the states of Western Europe, the Ukrainian situation is fundamentally different because of the public perception of the prokuratura. There is a general feeling among Ukrainians that prokuratura have the right to perform oversight functions on all aspects of life, not just in criminal proceedings.And meaningful reform of the prosecution, which today remains the last outstanding commitment of Ukraine to the Council of Europe, should be combined with a change of name of this body.

The annualmessage of thePresident of Ukraine to the Verkhovna Rada on the internal and external situation of Ukraine in 2012 contained the following passage: "...The main activity [of the prokuratura] is limited to the prosecution of criminal justice: procedural guidance of investigations, maintenance of public prosecution in the courts and the enforcement of judgments in criminal proceedings.The status of prokuratura in matters of recruitment, career, responsibility should be approximated to the status of judges "(Page 151message[23]).

This implies that the implementation of the ideas the President to reform the prokuratura will transform prosecutor into an Office of Public Prosecutions (using the example of the United Kingdom, Scandinavia and the Balkan countries, group 2 in the divisions made above). Such renaming would be beneficial to all segments of the population because the use of the term 'public prosecutor' will clearly indicate the specifics of the body - the preparation and maintenance of the prosecution in criminal proceedings.

However, one hurdle to the making of such changes is the fact that no changes can be made without amending the Constitution of Ukraine, because Chapter VII of the Constitution makes extensive use of the term Prokuratura and the term is found in several other articles within the Constitution.This difficulty should, nevertheless, not impede a public discussion on the matter.



[12]  For England, Wales and Norhern Ireland: http://www.cps.gov.uk, Scotland: http://www.copfs.gov.uk