The Government approves the Action Plan for law enforcement reform for 2023-2027: Where is the law enforcement and prosecution reform moving?

On August 23, the Government approved a draft order submitted by the Ministry of Internal Affairs on approving the Action Plan for 2023-2027, which is directed to implement the Comprehensive strategic plan for law enforcement reform (2023). The proposed Action Plan reflects Ukraine’s commitments within the framework of European integration envisioned by the EU-Ukraine Association Agreement.

What preceded the approval of the Plan?

The Action Plan is developed in order to implement the Decree of the President of Ukraine № 273 of May 11, 2023, which approved the Comprehensive strategic plan for law enforcement reform as a part of the security and defense sector of Ukraine. It takes into account the recommendations of the European Commission provided in the Report on Ukraine’s Progress under the EU Enlargement Package of November 8, 2023. The Action Plan is also one of the priorities of the adapted Annual National Program for 2024 within the framework of our cooperation with NATO.

The Action Plan was developed by the Interagency working group coordinated by the Prosecutor General’s Office (Prosecutor General’s Order № 189 of July 12, 2023). The interagency working group completed its work on March 18, 2024. Since then, the Action Plan has been undergoing approval processes by all authorities involved in its implementation.

Considering that the PGO is not part of the executive branch but is part of the justice system, the Ministry of Internal Affairs which, among other tasks, develops and implements law enforcement policy (e.g., ensuring protection of human rights and freedoms, the interests of society and the state, combating crime, maintaining public safety and order, and providing police services – see clause 1 of the Regulation on the Ministry of Internal Affairs), was responsible for presenting the draft Plan to the Government.

At the same time, the Action Plan contains not only measures on reform of law enforcement agencies with the function of pre-trial criminal offenses investigation (National Police, NABU, BES, SBI, and SBU) (inside criminal justice system), but also of law enforcement agencies with wider oversight powers[1], as well the prosecution authorities. In this regard, the title of the document “law enforcement reform” is more limited than its content, which, among others, is determined by the negotiation process with the EU, which establishes a universal framework covering the entire criminal justice sector.

Thus, the Comprehensive Strategic Plan and Action Plan for its implementation contain provisions not only for institutional reforms, but also for the development of the criminal process, the introduction of a formalized criminal policy, and public oversight over the activities of these bodies.

What are the key provisions of this Plan?

The Action Plan contains a detailed list of measures (150 pages) for the implementation of the Comprehensive Strategic Plan (2023). It defines strategic priorities for reforming law enforcement agencies in accordance with the highest European standards.

It is expected that the implementation of the Action Plan will ensure reforms in the area of law enforcement and prosecution, which will help to address a number of problematic issues, in particular:

1) lack of a sustainable and consistent criminal policy. To address this issue, among other things, it is planned to:

• empower the Government with the authority to develop, approve, and implement the concept of criminal policy;
• introduce the National Plan on crime prevention for the medium term, on the basis of which annual regional and local crime prevention programs will be adopted for the purpose of introducing a system of early crime prevention and forecasting;
• introduce the practice of reporting by heads of law enforcement agencies, the Prosecutor General, and heads of specialized parliamentary committees on the effectiveness of the implementation of state criminal policy;
• adopt the Law “On criminal statistics”;
• introduce periodic crime surveys on the state of crime that measure not only official statistics, but also information from victims of criminal offenses and anonymous victimization surveys (victimology survey, self-report survey);
• implement the system of serious and organized crime threat assessment (SOCTA);
• strengthen the coordination role of the prosecutor’s office in general and, particularly, of the Prosecutor General over the law enforcement agencies in the exercise of their powers related to combating crime;
• vest the law enforcement agencies and prosecutors with the authority to initiate criminological expert assessments of laws and draft laws, amendments to the Rules of Procedure of the Verkhovna Rada and the Law “On law making” concerning mandatory nature of such opinions.

2) critical issues of criminal proceedings, including excessive duration of pre-trial investigation, accusatory bias, violation of victims’ rights, etc. To address these issues, among other things, it is planned to:

• strengthen protection of criminal proceedings participants, focusing on the rights of the victim. Expand procedural opportunities for the victim to participate in criminal proceedings in the form of private prosecution, taking into account the gradual adaptation of Ukrainian legislation to the EU acquis;
• improve the legal framework for the institutions of termination of criminal prosecution, pre-trial probation, reconciliation agreements, and mediation within criminal proceedings (diversionary measures; plea bargain);
• terminate criminal prosecution in case of entering into agreements in criminal proceedings that will provide for compensation for damages, payment of a fine, or other alternative measures to resolve criminal disputes (transactions);
• provide clear delineation of the jurisdiction of law enforecement agencies, empower the prosecutor with discretion to change the jurisdiction, and clarify the legal consequences for violating the rules of jurisdiction in criminal offenses;
• уimprove procedural rules on the establishment and operation of groups of prosecutors, investigative groups, and interagency investigative groups;
• рclarify the concepts of procedural guidance of pre-trial investigation, organization of pre-trial investigation, supervision of covert and other investigative and detective actions by law enforcement agencies, delineate functions of the prosecutor and the head of the pre-trial investigation body in the context of these functions, etc;
• expand the scope of prosecutorial discretion: at the initial and final stages of pre-trial investigation, taking into account the need to prioritize criminal proceedings; regarding the use of alternative forms of resolving criminal law conflicts;
• change approaches to the institution of notification of suspicion through defining it exclusively as a notification of a person that contains complete data sufficient to protect against suspicion of committing a specific criminal offense;
• introduce the procedure for conducting unscheduled field audits and unscheduled inspections in criminal proceedings within the framework of judicial control, along with ensuring effective guarantees to prevent pressure on business;
• implement reform of the institution of ensuring the security of participants in criminal proceedings in order to build a comprehensive and effective system of their state protection, particularly for complainants, whistleblowers, victims, and witnesses, including creating the National Service for Guaranteeing the Security of Participants in Criminal Proceedings (implementation of the Council of Europe’s recommendations concerning assistance to Member States on the protection of witnesses and collaborators of justice (CM/Rec(2022)9);
• adopt the Law “On the principles of establishment and functioning of the system of compensation for victims of violent criminal offenses, including victims of war crimes committed in combination with violence against the victim (implementation of a compensation mechanism to fulfill the requirements of the Council of Europe Convention of November 24, 1983 № ETS N 116).

3) unclear delineation of the competence and powers of various law enforcement agencies, duplication of their functions, and lack of a unified approach to organizational and legal support for their activities. To address this issue, among others, it is planned to:

• unify their legal status, including an audit of their current powers and adoption of the Law of Ukraine “On law enforcement agencies”;
• introduce the institution of detectives in all law enforcement agencies (currently exist only NABU and BES);
• adopt the Concept of military law enforcement agencies reform of Ukraine (military justice) in the postwar period;
• implement a set of measures aimed at reforming (via development of necessary legislative amendments) the SSU as a special-designation state body with law enforcement functions;
• develop the draft law “On criminal intelligence” as a system of overt and covert search and detective activities and means based on analytics (criminal analysis, law enforcement activities guided by analytical intelligence (ILP model) – essentially, reform of the institution of operational and investigative activities;
• improve the legal framework for cooperation with Europol, the European Cybercrime Center, the European Migration Network, etc.

4) flawed mechanisms for appointments to positions of promotion, outdated personnel management system, and corruption risks in the activities of law enforcement agencies and prosecution. To address this issue, among others, it is planned to:

• ensure exclusively competitive selection procedure for the position of the head and senior management positions of law enforcement agency (except for the SSU), based on professional competence and integrity, taking into account the best national and international practices of competitive procedures;
• define the main criteria for assessing the efficiency and quality of work of law enforcement and prosecution agencies, as well as the system of their assessment by introducing a unified KPI system taking into account the specialization of the agency. In particular, this refers to the economic efficiency of the authority’s resources spent on the fulfillment of the tasks defined by law, i.e. the introduction of certain approaches to economic analysis of law (EAL), as well as indicators of gender mainstreaming and effective counteraction to discrimination. It is explicitly declared that the use of statistical indicators to assess the quality of work of law enforcement and prosecution agencies is not allowed;
• provide for development and approval (by the Prosecutor General) of standards for pre-trial investigation of criminal offenses, including certain types of criminal offenses and in accordance with the specialization introduced in law enforcement and prosecution agencies. In particular, this will ensure proper functioning of the tools for prioritizing criminal proceedings and assessing performance of detectives and prosecutors;
• introduce a monitoring system of assessing the effectiveness of measures to address corruption risks in law enforcement and prosecution agencies;
• introduce an integrity institution to vet employees of all law enforcement and prosecution agencies, defining integrity criteria and a single (uniform) mechanism for assessment;
• introduce a model code of ethics for law enforcement officers;
• update mechanism of disciplinary responsibility of law enforcement officers (except for the SSU), establish independent disciplinary commissions for integrity and professionalism assessment with the involvement of national and international experts;
• develop the HRM strategy for law enforcement and prosecution agencies;
• ensure guarantees for the reintegration of war veterans in law enforcement and prosecution agencies, implement inclusive programs to support their return to service with appropriate attention to special conditions necessary for the performance of their duties, etc.

5) outdated system of departmental education that contradicts legal education and needs to be improved. To address this issue, among others, it is planned to:

• conduct a comprehensive audit of law enforcement agencies’ educational needs;
• adopt the Concept of development of higher education in departmental educational institutions and educational institutions with the relevant study area;
• separate the training of lawyers and law enforcement specialists, etc.

Other issues include comprehensive digital transformation, introduction of electronic criminal proceedings for all pre-trial investigation bodies and the prosecutor’s office, strengthening parliamentary and public control over the activities of these bodies (the right to public oversight), regular consultations with the public, annual sociological external monitoring of the activities of law enforcement and prosecution agencies, regular population surveys, including with the involvement of representatives of legal professions, public organizations, and civil society.

What are the issues with this Plan?

The adoption of the Plan happened quite unnoticed for the public, as the quality of this document requires a proper professional assessment. Furthermore, its volume is very large and addresses an extremely wide range of issues in the area of criminal justice. We tried to summarize and analyze the various comments that we heard and saw, without rejecting certain issues while also not fully supporting any of the comments as a direct fault of the authorities.

1) “The plan was not discussed publicly with civil society and there was no information about its preparation at all”.

That is partly true, because documents in the area of state (public) policy in Ukraine are discussed in different ways – from a completely closed process to fairly broad public consultations (for example, as is the case with the recent NACP practice). At the same time, as a member of the Interagency working group on the preparation of the Comprehensive strategic plan for law enforcement agencies reform (2022-2023) and relevant Action Plan (2023-2024), which is discussed in this article, I cannot fail to note that the draft Action Plan was discussed with representatives of professional communities, academia, and international experts (EUAM, Pravo-Justice, Council of Europe, IDLO, and others).

A number of meetings also took place with representatives of civil society who cooperate with the Office of the Prosecutor General in various formats. Finally, EUAM held a number of meetings in Kyiv and Lviv (and perhaps elsewhere, which cannot be recalled now) with the public. Although sometimes these meetings are pro forma, the working group considered all meaningful comments in its work. For example, on the issue of reforming departmental legal education (and legal education in general), which is said to be highly sensitive, certain CSOs that have been working systematically on this issue for many years helped to significantly improve the initial version of the provisions. Similarly, some other provisions of the draft Plan were improved.

2) “between the adoption of the Comprehensive Strategic Plan (May 11, 2023) and this Plan (August 23, 2024), a lot of time has passed and no reforms were implemented.”

Indeed, this is factual data that can be seen in the details of the documents and cannot be refuted. Moreover, in March 2024, there were a number of reports from the authorities and international technical assistance projects that the working group had completed its work and approved the draft Action Plan. In reality, the main work was carried out in the summer and fall of 2023, but given the large number of authorities involved in its implementation, the process of coordinating the positions was delayed. The same also concerns the passage of the draft Action Plan in the Government.

Of course, we would have liked for the Action Plan to be adopted immediately after the Comprehensive Strategic Plan for law enforcement reform (which is de-facto its Concept), but to repeat, it is a very long process for documents involving such a wide range of actors. It is also worth noting that the draft Plan was assessed by European partners, which required translation, bilateral meetings and consultations, etc. At the same time, this does not mean that there were no actions to implement the Comprehensive strategic plan this year – working groups were formed on many issues, draft regulations were prepared, and some of them were adopted during the draft Plan consideration in the Government (for example, the so-called Law on “the BES reset”).

3) “The Action Plan does not address the most urgent issues, such as military justice, prosecution for international crimes, reform of the SBU, BES, etc.”

This is partially true, partially false. The Plan contains provisions on the military justice system, reform of the SBU, BES, and so on. Moreover, the specialized Parliament committee has certain developments on military justice, last year the Office of the Prosecutor General adopted the Strategic Plan for the implementation of the powers of the prosecutor’s office in the area of prosecution of international crimes for 2023-2025, and the reform of the SSU was adopted in the first reading in 2021 (draft law № 3196-d of October 26, 2020).

There is no denying that these are political issues that have been put on the backburner given the lack of consensus. Many provisions of the Plan exclude the SSU, given its separate legal status. However, the general approach remains unchanged: the SSU should gradually transform into a classic counterintelligence agency in line with European standards, and the function of pre-trial investigation of criminal offenses should be transferred to another law enforcement agency (either the reformed SBI or a newly created one).

However, currently the SBU investigates on large scale both the treason and collaborationism, as well as war crimes. There are tens of thousands of such proceedings caused by the war, and the process of transferring them to another law enforcement agency may negatively affect the effectiveness of investigation of these crimes in a time of war. This does not mean that it is impossible, but it is difficult.

Another example is the Bureau of Economic Security. While the Action Plan was being developed, the Parliament took significant steps to address this issue. Therefore, it was necessary to include provisions that required fulfillment of the Law “On reset of the BES” regarding gradual certification, election of a new BES director, etc.. At the same time, the Action Plan also includes more systemic issues, such as reviewing the functionality, developing analytical units, providing alternative tools to criminal prosecution, narrowing the grounds for inspections and expanding judicial control, etc. It would be nice to say that “certification, international partners, and internal audit” will address all problems, but this is not enough, as it is only the first step.

4) “The Action Plan does not propose radical reforms: evaluation of police officers or prosecutors, depoliticization of the Prosecutor General’s Office, elimination and creation of new bodies, etc.”

The Action Plan provides for competitions for leadership positions and senior management. In fact, there are already competitions for the heads of the BES, SBI, and NABU, but not for the National Police or the SSU. As for the National Police, this does not raise questions, as it has the status of a central executive body. Regarding the SSU, once again there is a lack of consensus, given the functions of this body. At the same time, the Prosecutor General is appointed and dismissed (through a vote of no confidence) by a simple majority vote, and this approach is criticized by the European Commission. Therefore, depoliticization of law enforcement agencies and the prosecutor’s office is necessary, and such a program was largely advocated for, including by us, but the working group supported the restrained version mentioned above. This is a good start and an important step that was hard to imagine in the Government’s plans just a few years ago.

As already mentioned, there is skepticism about personnel changes through evaluations. This is not because evaluations do not produce results or are in practice subject to mass cancellations by court decisions (this is a regulatory issue that can be addressed), but because it is only one step alongside systemic institutional changes and legislative improvements. As criminal justice experts, we would like to point out that, in our view, the most revolutionary parts of this Plan are sections 2 and 3 – on criminal policy and amendments to criminal and criminal procedure legislation. This includes expansion of prosecutorial discretion, introduction of prioritization and formalized criminal policy, introduction of alternative means of resolving criminal conflicts, strengthening of victim protection, improvement of the institution of protection of victims, witnesses, and whistleblowers, reform of expert support of criminal proceedings, etc…

In other words, the issue of human resources is important (internal checks, integrity, unified codes of ethics, etc. are already in the Plan). But the procedural tools used by detectives and prosecutors, on the one hand, and institutions to assess the level of crime and strategically plan to counter it, on the other, are even more important.

Some mechanisms adopted from foreign experience were specially designated with Latin letters – crime survey, victimology survey, self-report survey, transactions, plea bargain, crime analysis, etc. Although they partially exist in our legislation, this is only in significantly limited form, which undermines their effectiveness. Finally, it is worthwhile to mention the introduction of approaches of economic analysis of law (ideas of R. Posner, G. Calabresi, and others) in assessing detectives and prosecutors. At the stage of drafting the Plan, these ideas were articulated even more clearly, but they are also mentioned in the final version. It all depends on how it is implemented.

The most important phrase in any document in the area of state (public) policy is the last phrase, because there are different ways to implement certain measures. Many good ideas “disappear” behind generalized measures to allow the implementers to “maneuver” and not actually fulfill them. This is the fate of any such document, and the developers of the document should not be blamed for this. Rather, this means that the monitoring of the Action Plan implementation should not be pro forma (as in, there is a measure, there is a deadline, and there is an executor), but substantive (as in, whether the goal has been achieved, whether the proposed solution meets European standards and practices, and whether it really resolves the problem). Thus, we are at the beginning of a journey, including the European integration path in the area of law enforcement, not in the middle or at the end.

Finally, the adoption of the Action Plan is important not only from the standpoint of fulfilling Ukraine’s European integration commitments, but also because it is a systemic vision of the prosecution and law enforcement agencies’ development for several years ahead, which is part of the state (public) policy that is extremely important under martial law. It does not answer all the questions, but it defines the main areas that the criminal justice system will work on in the nearest years. In fact, since 2020, there were no such plans at all, only reforms in “turbo mode,” which each time raised eyebrows among Europeans who could not understand where the law enforcement system in Ukraine was headed. Although individual strategies, the State Anti-Corruption Program, and other documents contained measures on the law enforcement system, they were not part of a unified systemic document that would be the subject of study by national and foreign experts.

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[1]    The difference between «органи правопордяку» and «правоохоронні органи» cannot be easily explained in the translation. Both definitions are mentioned in Ukrainian Constitutions. For the author of the article «органи правопорядку» is a part of law enforcement agencies with the main focus on criminal justice system; meanwhile «правоохоронні органи» is a much wider definition, which includes all the law enforcement servants, for example state’s guardian service on forest and fish resources protection.

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