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26.07.2022

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Verkhovna Rada Dismissed the Head of the SSU and the Prosecutor General


Event

After the President’s July 17, 2022 attempt to remove I. Bakanov as the Head of the Security Service of Ukraine (SSU) and to suspend I. Venediktova as the Prosecutor General in an unconstitutional manner (see relevant material of the CPLR), the President introduced to the Verkhovna Rada a motion on I. Bakanov’s removal (draft resolution No. 7564) on July 18, followed by a July 19 motion to obtain the Parliament’s consent to dismiss the Prosecutor General (draft resolution No. 7567). On July 19, the Verkhovna Rada: (1) removed I. Bakanov from the office of the Head of the SSU (Resolution No. 2432-IX); and (2) consented to the President’s dismissal of I. Venediktova from the position of the Prosecutor General (Resolution No. 2433-IX). On the same day, the President signed Decree No. 518/2022 “On the Dismissal of I. Venediktova from the Position of the Prosecutor General”.

Legal assessment

According to the Constitution, the Head of the SSU is appointed and dismissed by the Verkhovna Rada at the President’s motion (paragraph 12-1 of part one of Article 85, paragraph 14 of part one of Article 106), while the Prosecutor General is appointed and dismissed by the President with the consent of the Verkhovna Rada (paragraph 25 of part one of Article 85, paragraph 11 of part one of Article 106, part three of Article 131-1). Therefore, the constitutional logic and the general procedure for removals of I. Bakanov and I. Venediktova were complied with in this case.

However, in contrast to the Head of the SSU, the Prosecutor General is appointed for a fixed term: the duration of the tenure is six years and the same person cannot hold this position for two consecutive terms (part four of Article 131-1 of the Constitution). Furthermore, the Constitution clarifies that early removal from the position of the Prosecutor General is possible exclusively in cases and on the grounds specified by the Constitution and the law (part five of Article 131-1). It follows that the Prosecutor General cannot be dismissed early, except in the cases and on the grounds specified by the Constitution and the law.

The current version of the first part of Article 42 of the Law “On the Prosecutor’s Office” envisions the following grounds for the Prosecutor General’s removal from the administrative position by the President with the Verkhovna Rada’s consent: (1) in connection with the submission of an application for early resignation from the administrative position at own request; (2) based on the submission by the relevant body conducting disciplinary proceedings (i.e., the Qualification and Disciplinary Commission of Procuracy[QDCP]) or by the High Council of Justice (HCJ); and (3) in case of accumulation arrears for child alimony payments in the total amount exceeding the corresponding payments for twelve months from the date of submission of execution document for compulsory enforcement. Part two of this article also provides that the powers of the Prosecutor General in an administrative position may be terminated in the event of: (1) the Verkhovna Rada of Ukraine expressing a vote of no confidence in the Prosecutor General, resulting in resignation from this administrative position (see also paragraph 25 of part one of Article 85 of the Constitution of Ukraine ); and (2) expiration of the term of office as the Prosecutor General.

Thus, although the constitutional procedure for I. Venediktova’s dismissal was formally observed, none of the grounds for the early termination of the authority of the Prosecutor General provided for by the Constitution and the Law “On the Prosecutor’s Office” were present. The President does not have the authority to independently submit to the Verkhovna Rada a motion seeking the Parliament’s consent to the Prosecutor General’s removal or to issue a vote of no confidence in the Prosecutor General. Such authority is either restricted to relevant bodies and individuals (QDCP, HCJ, and Parliament members) or subject to the presence of clearly established grounds for such motion (request for early resignation, non-payment of alimony, or end of tenure). Given this, I. Venediktova – theoretically – has the right to appeal to the Supreme Court disputing the legality of the President’s and the Parliament’s actions surrounding her removal.

At present, First Deputy Head of the SSU V. Malyuk has been temporarily designated as the acting Head of the SSU (Decree of the President No. 504/2022 of July 18, 2022), while Deputy Prosecutor General O. Symonenko is acting as the Prosecutor General (Decree of the President No. 501/2022 of July 17 2022). However, in order to ensure the SSU’s and the Prosecutor General’s Office uninterrupted and efficient operation during martial law, the Verkhovna Rada and the President must urgently take measures to appoint fully authorized individuals to the existing vacant positions of the Head of the SSU and the Prosecutor General in accordance with the Constitution. Moreover, the appointment of O. Klymenko as the head of the Specialized Anti-Corruption Prosecutors Office by the actual Prosecutor General (rather than by the acting Prosecutor General designated by a presidential decree contrary to the logic of the Law On the Prosecutors Office) will eliminate any doubts as to the legitimacy of potential appointment of this official (considering that the Law On the Prosecutors Office neither allows nor prohibits the acting Prosecutor General from making any personnel appointments to administrative prosecutorial positions).