Weekly analytics for 8 — 14 March

Amendments to legislation on improving selection and training of prosecutors signed by the President

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Event

On March 13, the President of Ukraine signed the draft Law № 5158 of February 25, 2021, which is aimed at amend the prosecutors’ selection procedure in Ukraine by simplifying the requirements for candidates for the position, introducing the concept of trainee prosecutors, and changing the procedure for training future prosecutors – amendments to the Law of Ukraine “On Prosecution”.

The authors of the adopted law believe that the current prosecutors’ training system contains the following problems:

1) lack of opportunity to apply for the position of prosecutor for young specialists after obtaining higher legal education 

2) excessive duration of special training – over a one-year period, during which at least half of the candidates for the positions of prosecutors undergo theoretical training while receiving a low stipend without any social benefits;

3) excessive complexity and duration of other selection stages.

Therefore, the key provisions of adopted law are as follows:

1) elimination of the requirement regarding two years of work experience in the area of law for the candidates for the position of prosecutors (that is, a person may apply for a vacant position of a prosecutor immediately after graduating from law school);

2) introduction of the position of a trainee prosecutor in the district prosecutor’s office, who may be entrusted with the duties related to implementation of the functions of prosecution; in particular, the implementation of procedural guidance in criminal proceedings related to criminal offences and misdemeanors (importantly, though, decisions of a trainee prosecutor must be approved by the senior prosecutor of the of group prosecutors and, in cases specified by law, by the head of the prosecutor’s office). The procedure for such a traineeship is approved by the Prosecutor General;

3) the Prosecutor’s Office itself will now have a key role in the process of special training, instead of the Prosecutors’ Training Center (as was the case before the reform of the prosecution in 2019);

4) The Qualification and Disciplinary Commission was given back its name (“the relevant body conducting disciplinary proceedings at the level of the Law of Ukraine “On Prosecution” has returned its name of QDCP). 

CPLR’s assessment

The current procedure for the selection and professional training of prosecutors has long required improvements, given the problems identified in the existing mechanism mentioned above, namely the excessive duration of the internship, required legal experience for the prosecutor’s office at any level, and excessive complexity of selection stages.

Although the problem was urgent, a year passed between the date the draft law № 5158 was registered (on February 25, 2021) and finally adopted (on April 14, 2022), and almost as long before the law being signed by the President. These two years demonstrate its controversial content, as draft law № 5158 was repeatedly criticized in the legal community.

а) overall assessment 

As noted in the expert comments to the draft Law № 5158 provided the Council of Europe on May 18, 2021, the provisions of the draft law in general merit a positive assessment, as trying to address shortcomings detected in the implementation of the system of recruitment of prosecutors (paragraph 99); the new provisions seek to change the training of one-year special training by a twomonth training at the Prosecutor’s Training Centre, plus an internship of six months as trainee prosecutor. In general, this might be assessed as a good system for the Ukrainian public prosecution service. In any event, it does not present problems from the view of the European standards (paragraph 100).

At the same time, the analysis of the practice of prosecutors’ selection in 2019-2021 allows to make a conclusion that the biggest problem was the lack of any guarantees that a person will be appointed to a specific prosecutor’s office even after successfully passing the qualification exam, special vetting, and practical portion of the special training, because a person remained in the general reserve. After passing all these stages, a candidate would need to fight for a specific vacancy, and it will not always be a vacancy in the prosecutor’s office where the person completed the internship.

The adopted Law significantly changed this model: after successfully passing a qualification exam and a special vetting, as well as the shortened special training at the Prosecutor’s Training Centre, the candidate would start working in a specific prosecutor’s office – that is, in a specific position as a “trainee”. Undoubtedly, these are positive changes, because completing the internship guarantees continued work in the prosecutor’s office.

b) trainee prosecutors: theoretical aspect

The trainee prosecutor of the district prosecutor’s office is a prosecutor in a prosecutor’s office. Material, social, and welfare benefits provided for prosecutors by law, as well as rules of internal labor regulations established for prosecutors apply to the trainee prosecutor. At the same time, trainee prosecutor will have a limited scope of authority compared to other prosecutors of the prosecutor’s office (Article 33-3 of the Law of Ukraine “On Prosecution” after amendments come into effect), notably regarding the exercise of functions of the prosecution. Decisions of a trainee prosecutor must be coordinated with by the office leadership, and their salary will be lower than that of a prosecutor of the district prosecutor’s office.

Thus, the legal status of a trainee prosecutor of the district prosecutor’s office is not identical to the status of a prosecutor of the prosecutor’s office of Ukraine, which means the provisions of the draft law on the status of a trainee prosecutor of the district prosecutor’s office do not take into account the requirements of Part 5 of Art. 7 of the Law of Ukraine “On Prosecution”, which provides for the unity of the prosecutorial system of Ukraine as ensured by the unified status of prosecutors. Furthermore, Articles 3 and 5 of the Law provide that activities of the prosecutor’s office are based on the principle of independence of prosecutors, which includes safeguards against illegal political, material, or other influence in the decision-making during exercise of official duties and implementation of the functions of prosecution in Ukraine exclusively by prosecutors .

As such, the existence of the position of trainee prosecutor undermines the unity of the prosecutorial system by distinguishing prosecutors with different levels of procedural independence, which forms the cornerstone of this profession.

c) trainee prosecutors: practical aspect

Currently, the selection procedure envisions that a candidate enters a specific prosecutor’s office permanently and equally to other prosecutors who work there. In this way, the selection procedure embodies the principle of stability and unified status of prosecutors. In other words, a “young” prosecutor should interact and learn to build relationships with colleagues on equal terms from the beginning, using “internal” independence.

According to the adopted Law, a candidate enters the prosecutor’s office as a “junior partner” – a trainee prosecutor. Such a role is envisioned by the nature of traineeship itself:

– the trainee performs procedural management only regarding offences or misdemeanors at the district prosecutor’s office level and has no opportunity to be a senior member in a group of prosecutors;

– the leading role in determining the traineeship format belongs to the head of the prosecutor’s office;

– the trainee must coordinate all decisions with “senior” colleagues.

The traineeship has a short-term nature (6 months), and its success is essentially at the discretion of the head of the prosecutor’s office. The adopted Law does not contain any guidelines regarding the formats of such traineeship and its desired results, leaving it to the discretion of another single person – the Prosecutor General. Therefore, the question is, “what practical skills will a candidate acquire in each specific case?”. Will subordination truly contribute to the correct understanding of procedural independence?

Despite the presence of assistant prosecutors in some European countries (Bulgaria, Romania, France, Germany, etc.), attempts to establish a separate status of a trainee prosecutor or assistant prosecutor, or even provide an assistant with a separate procedural status in Ukraine will lead to the cultivation of subordination and lack of independence in the prosecutor’s office , which falls heavily on the post-Soviet corporate culture of these bodies.

At the same time, the subordination culture is the first thing that should have been lost as a result of prosecutorial reforms of 2012-2019. After all, this culture is not just a brainchild, but the core of the Soviet-style prosecutor’s office. However, this is not the case and not accidental, because there have been many such legislative initiatives.

Thus, from a practical point of view, the presence of a trainee prosecutor undermines equality culture and the single status of the prosecutor by creating subordination and distinction. Despite the educational goals, this lays down patterns of behavior that the prosecutor will reproduce in the future.

d) QDCP name 

The adopted Law provides for amendments to Art. 73 of the Law of Ukraine “On Prosecution”, to read as follows: “1. The disciplinary proceedings are the conducted by the Qualification and Disciplinary Commission of Prosecutors, which is a collegial body that, in accordance with the powers provided for by this Law, determines the level of professional training of persons who have expressed the intention to be appointed to the position of a prosecutor, and addresses the issues of disciplinary responsibility, transfer, and dismissal of prosecutors”.

It must be reminded that during the 2019-2021, the QDCP’s activity was suspended, and in 2021, the restored body received the name of “relevant body conducting disciplinary proceedings” due to technical legislation shortcomings. Such name was mentioned in decisions, official forms, documents, etc. and surprised the citizens.

Therefore, the QDCP returned its proper name.

General conclusion: The adopted amendments shorten the period of training of prosecutors, reduce qualification requirements, and promote mandatory employment placement. At the same time, the distinction between the status of a prosecutor and a trainee prosecutor undermines prosecutors’ procedural independence, their unified status, and ultimately creates a subordination culture, the practice of non-independence (coordinating with leadership), and other threats to independence of the future officer of justice.