Weekly analysis for 15 — 21 September

The President of Ukraine Appointed Acting Prosecutor General in a Non-Constitutional Manner

Event

On 17 September, the President of Ukraine issued Decree № 946/2026 “On Assigning the Duties of the Prosecutor General”.

Under the Decree, the duties of the Prosecutor General were assigned to Andrii Kovalskyi, who at the time was serving as Head of the Khmelnytskyi Regional Prosecutor’s Office.

The President relied on paragraph 2 of Article 11 of the Law of Ukraine “On the Legal Regime of Martial Law” as the legal basis for the decision. Under this provision, during martial law, the President of Ukraine may suspend from office officials whose appointment and dismissal fall within his powers and assign the performance of their duties to another person for the relevant period.

CPLR’s assessment

The Decree is susceptible to constitutional and judicial challenge. There is a risk that it may be declared unconstitutional by the Constitutional Court of Ukraine or annulled by the Supreme Court as unlawful. Moreover, its implementation may cast doubt on the legality of procedural decisions taken in criminal proceedings in which the Prosecutor General, or a person exercising the Prosecutor General’s powers, has exclusive statutory authority to act. 

Article 106 of the Constitution of Ukraine establishes an exhaustive list of the President’s powers. This list does not include the authority to assign the duties of the Prosecutor General to another person. The Constitutional Court of Ukraine has repeatedly emphasized that the President’s constitutional powers are subject to strict interpretation and cannot be expanded beyond their explicit wording.

Following the 2016 constitutional amendments, the prosecution service became part of the justice system (Article 131-1 of the Constitution). Accordingly, appointing the Prosecutor General, even on a temporary basis, outside the procedure prescribed by the Constitution should be regarded as incompatible with the constitutional guarantees of the independence of the justice system. 

Current legislation also does not empower the President of Ukraine to suspend the Prosecutor General from office or to assign the duties of the Prosecutor General’s to another person.

Paragraph 2 of Article 11 of the Law of Ukraine “On the Legal Regime of Martial Law” authorizes the President, during martial law, to suspend only officials whose appointment and dismissal fall within the President’s powers. In our view, this provision cannot be applied to the office of the Prosecutor General. Under the Constitution of Ukraine, the Prosecutor General is appointed and dismissed by the President only with the consent of the Verkhovna Rada of Ukraine (subparagraph 25 of paragraph 1 of Article 85, subparagraph 11 of paragraph 1 of Article 106, and paragraph 3 of Article 131-1). The President therefore does not have independent authority to appoint or dismiss the Prosecutor General, as required for the application of paragraph 2 of Article 11 of the Law “On the Legal Regime of Martial Law”. 

Moreover, paragraph 2 of Article 11 of the Law of Ukraine “On the Legal Regime of Martial Law” authorizes the President of Ukraine to “decide to suspend from office … and assign the performance of the duties of that office to another person for the relevant period”. The provision therefore establishes a direct legal link between the suspension of an incumbent and the temporary assignment of their duties to another person. The latter is expressly limited to the period of the incumbent’s suspension. 

This statutory mechanism was not followed in the present case. The Prosecutor General was not suspended from office. Instead, the previous Prosecutor General was dismissed pursuant to Presidential Decree № 932/2026 of 15 September 2026 “On the Dismissal of R. Kravchenko from the Office of Prosecutor General”. Unlike suspension, dismissal terminates a person’s tenure in office and is not limited to a “relevant period”. The President therefore relied on a provision governing the temporary suspension of an official to effect the dismissal of the Prosecutor General. Such use of the provision is not consistent with its legal purpose. 

Nor does the Law of Ukraine “On the Prosecutor’s Office” provide for a procedure whereby the Prosecutor General may be suspended from office and another person assigned to perform the Prosecutor General’s duties. 

Furthermore, the Presidential Decree “On Assigning the Duties of the Prosecutor General” is inconsistent with Article 1 of the Law of Ukraine “On the Temporary Performance of Duties by Officials Appointed to Office by the President of Ukraine with the Consent of the Verkhovna Rada of Ukraine, or by the Verkhovna Rada of Ukraine upon the President’s Submission” of 10 December 1997. This provision clearly establishes that, following the dismissal of an official, their duties are to be performed temporarily, but for no longer than one month, by the first deputy or, in the absence of the first deputy, by a deputy of the respective official. Contrary to this requirement, the President of Ukraine assigned the performance of the duties of the Prosecutor General to a person who was neither the First Deputy Prosecutor General nor a Deputy Prosecutor General. 

Doubts regarding the legality of the appointment of a particular person as Acting Prosecutor General, as well as the prospect of judicial challenges to that appointment, create additional risks for the outcome of certain criminal proceedings. This is particularly significant given that, under Article 482-2 of the Criminal Procedure Code of Ukraine, only the Prosecutor General or the person performing the duties of the Prosecutor General is authorised to: 

– enter information in the Unified Register of Pre-Trial Investigations that may indicate the commission of a criminal offence by a Member of Parliament of Ukraine; 

– approve motions seeking authorisation for the detention of a Member of Parliament of Ukraine, the imposition of pre-trial detention or house arrest, a search, the interception of correspondence or telephone communications, or the application of other measures that, under the law, restrict the rights and freedoms of a Member of Parliament of Ukraine. 

Furthermore, Article 9 of the Law of Ukraine “On the Prosecutor’s Office” grants the Prosecutor General broad organisational and personnel powers. If these powers are exercised by an Acting Prosecutor General whose authority to hold the office is legally questionable, the legality of decisions taken in the exercise of those powers may likewise be called into question. 

To address this issue, the President of Ukraine should, without delay, submit to the Verkhovna Rada of Ukraine a candidate for appointment as Prosecutor General in accordance with the procedure and requirements established by the Constitution of Ukraine. 

Perversion of the Mechanism for Exemption from Criminal Liability for AWOL and Desertion

Event

On 15 September 2026, Draft Law № 16074 on improving the procedure for exemption from criminal liability for military criminal offences related to unauthorized abandonment of a military unit or place of service under martial law and other matters (hereinafter, the “Draft Law”), was registered in the Verkhovna Rada of Ukraine.

The Draft Law proposes the following:

– repeal paragraph 5 of Article 401 of the Criminal Code of Ukraine (hereinafter, the “CC”), which provides for exemption from criminal liability of a servicemember who, for the first time, has committed a criminal offence under Article 407 or 408 of the CC, where the servicemember voluntarily approaches an investigator, prosecutor or court with a request to return to the performance of military service duties, subject to the consent of the relevant command;

– supplement paragraph 1 of Article 284 of the Criminal Procedure Code of Ukraine (hereinafter, the “CPC”) with a new subparagraph 11 providing for the closure of criminal proceedings where a person who, for the first time, has committed a criminal offence under Article 407 or 408 of the CC voluntarily returns to the performance of military service duties, as confirmed by an order of the relevant command;

– supplement paragraph 2 of Article 24 of the Law of Ukraine “On Military Duty and Military Service” with a provision allowing a servicemember who has left place of service without authorisation or deserted to personally submit a report to the command expressing his/her intention to return to the performance of military service duties. In such a case, the command would, within 72 hours, extend the servicemember’s military service or the term of contract, restore all forms of support and benefits, and notify the pre-trial investigation and prosecutorial authorities accordingly on the date of the extension.

CPLR’s position

According to the Draft Law, a servicemember who has committed a criminal offence under Article 407 or 408 of the CC and voluntarily returned to the performance of military service duties would no longer be eligible for exemption from criminal liability, as the Draft Law would repeal the existing legal grounds for such exemption.

At the same time, where the fact of the commission of a criminal offence, the elements of the offence, the identity of the person who committed it, and sufficient evidence to establish that person’s guilt have been established, the Draft Law would provide for the closure of the criminal proceedings.

First, this approach creates a number of legal inconsistencies. Most importantly, paragraph 3 of Article 3 of the CC provides that the criminal-law consequences of an act, including the grounds for exempting a person from criminal liability, may be determined only by the CC. This requirement is intended to safeguard the principles of legality and legal certainty and to protect individuals against arbitrary action by the State. The grounds for exemption from criminal liability or mitigation of punishment are likewise expressly and exhaustively defined in the CC. Under Article 44 of the CC and Articles 285–287 of the CPC, a person who has committed a criminal offence may be exempted from criminal liability only in the cases provided for by the CC. This ensures that other laws cannot selectively “shield” certain categories of persons from criminal liability, thereby circumventing the constitutional principle of equality before the law enshrined in Article 24 of the Constitution. Moreover, under the current legislation, exemption from criminal liability is granted exclusively by a court upon a motion by a prosecutor. By contrast, under the Draft Law, criminal proceedings under subparagraph 11 of paragraph 1 of Article 284 of the CPC would be closed solely by an investigator or prosecutor. Court involvement, rather than the discretion of an investigator or prosecutor, is a key safeguard underpinning the proposed mechanism. The effectiveness of this mechanism as an incentive for servicemembers to return to military service depends on their being assured that the decision cannot be reversed at the unilateral discretion of a prosecutor.

The Draft Law would effectively disguise an exemption from criminal liability as a procedural ground for closing criminal proceedings, thereby circumventing the requirements of Articles 3 and 44 of the CC. In other words, servicemembers would remain subject to criminal liability de jure, while de facto some of them could escape criminal liability through a procedural mechanism.

It should also be noted that the Law of Ukraine “On Military Duty and Military Service” requires the command, within 72 hours, to either continue a servicemember’s military service or extend the term of their contract, and to restore all forms of support and benefits, where a servicemember who has left their place of service without authorisation or deserted subsequently submits a report to the command expressing their intention to return to the performance of military service duties. This obligation would apply regardless of whether the servicemember had committed the offence for the first time.

Second, the provisions of the Draft Law create legal uncertainty. In conjunction with Article 62 of the Constitution of Ukraine, these provisions may effectively create a situation of “justice deferred”: in the absence of a final judgment or a court ruling closing the criminal proceedings in respect of the same charge (see subparagraph 6 of paragraph 1 of Article 284 of the CPC), a prosecutor would retain the power to revoke a decision to close the proceedings on the grounds that it was unlawful or unfounded. Such provisions are unlikely to make the proposed mechanism attractive to servicemembers who have committed such offences. 

Third, if the purpose of repealing paragraph 5 of Article 401 of the CC is to improve the framework of criminal liability for the relevant offences, creating a parallel procedural mechanism for closing criminal proceedings would undermine that objective and contradict the very title of the Draft Law.

Reducing the risk of arbitrary decision-making and ensuring greater predictability for servicemembers requires objective, rather than discretionary, criteria for applying the mechanism. The requirement for “consent of the command” should therefore be removed altogether and replaced with clear, objective criteria, such as voluntary return and a relatively short period of absence from the place of service.

A differentiated approach could also be considered. For instance, exemption from criminal liability could apply where a servicemember returns within a short period (e.g. within 30 days); exemption from punishment with probation could apply where servicemember returns later (e.g. within 90 days) or commits the offence of unauthorised absence for a short period for a second time; while a penalty could be imposed in the absence of mitigating circumstances.

Government Proposes Changes to International Experts’ Role in Selecting HCJC Members

Event

On 10 September, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada Draft Law №16018-1 on improving the competitive selection procedures for members of the High Qualification Commission of Judges of Ukraine (HQCJ) and the High Council of Justice (HCJ).

The Draft Law proposes amendments to the procedures for the formation of the HQCJ and HCJ, including:

regarding the selection of HQCJ members:

• three stages of the selection process: (1) admission of candidates to the selection process; (2) a special background check and assessment by the Competition Commission of candidates’ compliance with the integrity criterion, including through interviews; and (3) assessment by the Competition Commission of candidates’ professional competence based on interviews and establishment of the list of candidates to be recommended to the HCJ;
• composition of the second Competition Commission: three members are to be selected from among judges or retired judges nominated by the Council of Judges of Ukraine, while three members are to be nominated by international and foreign organisations. At least one of the latter members must be a Ukrainian citizen;
• decision-making by the second Competition Commission: different voting requirements are established for decisions on candidates’ integrity and professional competence. A decision on a candidate’s compliance with the integrity criterion is adopted if supported by at least four Commission members, including at least two members nominated by international and foreign organisations. In the event of an equal number of votes, the votes of the three members, at least two of whom are nominated by international and foreign organisations, are decisive. By contrast, a decision on a candidate’s professional competence is adopted if supported by at least four Commission members, including at least one member nominated by international and foreign organisations;

regarding the selection of the HCJ members:

• submission of application documents: candidates would submit their application documents not to the HCJ, but to the body convening the respective congress or conference, which would decide whether to admit them to the competition.
• assessment of professional competence: interviews would be conducted by the body convening the respective congress or conference, the parliamentary committee responsible for matters relating to the judiciary.

It should also be noted that the Draft Law is currently under consideration by the Venice Commission. Its provisions may therefore be substantially revised during its further consideration by the Verkhovna Rada of Ukraine.

CPLR’s Assessment

The HQCJ is one of the key judicial governance bodies responsible for selecting new judges and conducting the qualification assessment of sitting judges. In 2023, its members were selected for the first time through a competitive procedure involving international experts. The selection process was broadly welcomed by specialised civil society organisations, and the current composition of the HQCJ has demonstrated a solid record in exercising its mandate. At the same time, the terms of office of 15 out of 16 HQCJ members will expire as early as June 2027.

The need to maintain high standards in the selection of new HQCJ members and to continue the involvement of international experts in this process has been repeatedly emphasised by specialised civil society organisations and international partners. In its 2025 Ukraine Report, the European Commission recommended the prompt continuation of the temporary involvement of international experts in the selection of HQCJ members. The continuation of this mechanism has also been identified as a commitment in the joint statement by EU Commissioner for Enlargement Marta Kos and then Deputy Prime Minister of Ukraine for European and Euro-Atlantic Integration Taras Kachka (the so-called “Kachka–Kos Plan”), as well as among the benchmarks for opening Cluster 1 of the EU accession negotiations.

Thus, improving the procedure for selecting HQCJ members is critical both to sustaining judicial reform in Ukraine and to further aligning the Ukrainian judiciary with European standards.

Although the Draft Law extends the involvement of international experts in the selection of HQCJ members for another two years, some of its provisions may significantly undermine the effectiveness of the competitive selection, in particular:

• verification of professional competence after the integrity assessment: such a sequencing would create an additional workload for the Competition Commission, as the integrity assessment requires substantially more time and resources. This involves collecting and analysing information from dozens of sources, obtaining explanations from candidates, and verifying relevant facts and circumstances. In addition, the proposed approach to assessing professional competence raises concerns, as it would rely exclusively on interviews, which are inherently subjective;
• preferential voting rights for international experts are limited to the integrity assessment stage: international experts would have a decisive role only in assessing candidates’ integrity, while their influence on the assessment of professional competence would be significantly reduced. Draft Law does not address situations in which the votes of Competition Commission members are evenly split when assessing professional competence. Moreover, the assessment of professional competence is the final stage of the selection process, following which the Competition Commission establishes the list of candidates to be recommended to the HCJ for appointments as HQCJ members. Consequently, this assessment will ultimately determine the outcome of the selection process;
• lack of a secretariat for the Competition Commission: unlike the current legislation, which allows members of the first Competition Commission to engage assistants, the Draft Law provides only for the engagement of interpreters. This would substantially increase the workload of Commission members. Combined with the requirement to conduct the integrity assessment before assessing professional competence, this could significantly prolong the selection process. For example, 301 candidates were admitted to the first HQCJ selection process. If a similar number of candidates is admitted in the next selection round, requiring Commission members themselves to collect and analyse integrity-related information and conduct interviews with several hundred candidates could significantly delay the selection and create a risk that the new HQCJ will not be fully constituted before the terms of office of the current members expire;
• lack of a requirement to publish Competition Commission decisions on candidates: the Draft Law does not provide for the publication of Commission decisions following the assessment of candidates’ integrity or professional competence. Instead, such decisions would be provided only upon the candidate’s request. In the case of professional competence, the Commission would merely be required to explain the reasons for not recommending a candidate for appointment as an HQCJ member. This would significantly undermine the transparency of the selection process;
• risks arising from the “two candidates per vacancy” requirement: the Draft Law would expressly require the Competition Commission to recommend at least two candidates to the HCJ for each vacant position, including at least two candidates from among judges or retired judges for each vacant HQCJ position allocated to the judicial quota. If fewer than two candidates are recommended, a new selection process would have to be announced. During the first HQCJ selection process, the Competition Commission recommended 32 candidates for 16 vacant positions, of whom only 10 were judges or retired judges. This prompted public discussion as to whether the HCJ would be able to fill all eight positions allocated to the judicial quota, or at least the six positions required for the HQCJ to be fully constituted. Ultimately, the HCJ succeeded in fully constituting the HQCJ and filling all 16 vacant positions. However, the requirement proposed by the Draft Law would increase the risk that the HQCJ may not be fully constituted. Even if the Competition Commission recommends more candidates than there are vacant positions and there are enough judges or retired judges among them to fill the judicial quota, failure to meet the requirement of two candidates per vacancy would trigger the need for a new selection process. This could result either in the HQCJ not being fully constituted or in its being constituted with fewer than the full complement of members, which would adversely affect its institutional capacity. Moreover, compliance with this requirement creates a risk of significant delays in the HQCJ selection process;
• lowering the requirements for candidates nominated by the Council of Judges of Ukraine to the Competition Commission: with regard to the selection of the first Competition Commission, paragraph 50 of the Final and Transitional Provisions of the Law of Ukraine “On the Judiciary and Status of Judges” currently provides that candidates for membership of the Competition Commission who are judges or retired judges must have successfully completed the qualification assessment. By contrast, Draft Law does not establish such a requirement for the second Competition Commission. Nor does it set out any other circumstances that would disqualify a person from appointment as a member of the Competition Commission, such as having an outstanding disciplinary sanction or being subject to criminal prosecution.

The Draft Law would also limit the term of office of the second Competition Commission to two years from the date of its appointment, rather than linking it to the formation of a fully constituted HQCJ, as is currently provided by law. In light of the shortcomings outlined above, this period may prove insufficient to fully constitute the HQCJ.

In light of the above, the Draft Law poses significant risks to the formation of a fully constituted HQCJ and requires further refinement to ensure the effective involvement of international experts at all stages of the competitive selection process, strengthen the institutional capacity of the Competition Commission, minimise the need for additional selection processes, streamline the sequencing of the selection process, and establish safeguards for its transparency.