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8 february 2016

General oversight and prosecution’s other sins

The prosecution’s function of general oversight has been abolished ever since the relevant law has been passed. However, the Constitution still reserves this authority, although under a modified name: ‘oversight over the observance of human and citizen rights and freedoms and compliance of bodies of public administration, bodies of self-government, their officials and employees with the applicable laws’.

European institutions welcomed this move by the Ukrainian government, because general oversight is considered a feature of totalitarian regimes only. In our realities, this activity seriously constrained economic freedoms and caused corruption.

Therefore, various bodies of the Council of Europe – the Parliamentary Assembly, Venice Commission, Consultative Council of European Prosecutors – have always been unanimous in their opinion that this function of prosecution needs to be abolished.

Since the fall of 2014, prosecutors no longer have the right to do inspections at private companies or public institutions, or require them to provide certain documents or other information. The prosecution’s authority to do it is limited to criminal investigations only.

But the situation on the ground turned out to be not so rosy as the provisions of law.

Thus, at the beginning of this year, the General Prosecutor’s Office (GPO) decided to share with the public its achievements in corruption prevention sphere in 2015.

During the past year, prosecutors have filed 612 suggestions regarding elimination of conditions that breed corruption and became, in their opinion, the only active authorized body responsible for combating corruption.

But how did prosecutors learn about these instances of corruption in the first place? As a result of pretrial investigation of corruption-related offenses?

Nope. The Prosecutor General has admitted that in 2015, prosecutors have presented in court only 11 corruption-related criminal cases. As they say, feel the difference: 612 suggestions and 11 investigation cases.

Therefore, information for over half a thousand prosecutor suggestions was gathered from inspections that are not provided by the newly-enacted law, and therefore, not legal.

Half a thousand public bodies – ministries, services, inspectorates, agencies, state administrations and their regional bodies, and state enterprises – have been subjected last year to illicit actions on part of the prosecution.

To be sure, it’s much easier for prosecutors to do inspections or require documents, and it will look great in statistical reports, than to do quality pretrial investigation and punish a corrupt official.

In fact, this news means a plea of guilt by the prosecution and admission of violating the law. And every prosecutor who submitted a suggestion based on illicit actions must be charged at least with disciplinary liability.

However, violation of law by the prosecution does not end there. The Prosecutor General disregards the compliance with clear requirements of the new law. For instance, the number of his deputies (presently seven) still has not been brought into conformance with Article 8 (2) which caps this number to six. One of the deputies will have to be let go.

The compliance with the requirements of Article 9 (2) of the Law on registration and publication of Prosecutor General’s orders is also a complete failure.

According to law, the chief prosecutor is obliged to register his regulatory orders with the Justice Ministry to ensure that they are filed in the Unified State Register and made available to the public.

Nevertheless, since 15 July 2015 (the effective date of this provision) the Justice Ministry has registered a whole one (!) order – on the organization of a tender for local prosecutor’s offices. Do you really believe that for the past 7 months, prosecutors have been working without a single instruction or regulation approved by a Prosecutor General’s order?

Apparently, the GPO does not want to reveal its work procedures to the society and does not want a control by the Justice Ministry over legality of their orders.

This reason also explains the GPO’s refusal to post on its website all (and not just regulatory) orders of the Prosecutor General of Ukraine, as required by Article 9 (2) of the Law.

That concerns the orders regarding appointments and dismissals, instructions to subordinate prosecutors, monthly expense breakdowns, etc.

What makes the publication of Prosecutor General’s written orders and instructions important is that it guarantees independence of subordinate prosecutors. They are obliged to carry out only written instructions from the chief prosecutor (Article 17 (4) of the Law).

However, the relevant section of the GPO’s website offers only a dozen orders for the past 5 years. If the head of an organization employing 15 thousand persons issues a dozen or so orders in 7 months, he is obviously disqualified for the job.

But most likely, the truth is elsewhere – the Prosecutor General does not want to ensure publication of his orders and instructions, contrary to the requirements of law.

Presently, these instances of the prosecution’s illicit actions prove a stubborn unwillingness of this organization to implement reforms. But after 15 April of this year, everyone will be able to complain about them to the newly-established Prosecutors’ Qualification and Disciplinary Commission.

This commission will have powers to charge with disciplinary liability and terminate any prosecutor, including the Prosecutor General of Ukraine. And the most important thing in our situation is this: no politics. Just legal facts.

The prosecution still has time to fix mistakes.

Oleksandr Banchuk, Center for Political and Legal Reforms, for UP