Ukraine’s Procuracy Reform Is a Work in Progress

On October 22, following a meeting of the National Security and Defense Council at which President Zelensky and his team discussed the matter of dozens of prosecutors allegedly abusing their position to receive disability status and avoid military service, Prosecutor General Andriy Kostin took responsibility and resigned from office. This scandal is not only tied to the growing issue of draft dodging, it also owes to the awkward, partial integration of the procuracy into the judiciary in the course of reforms. 

The Procuracy after Ukraine’s Euromaidan 

The past three decades have seen a significant transformation of Ukraine’s procuracy from the Soviet model of a “general supervision service,” independent of the judiciary and with more authorities and powers, to something more along the lines of Western Europe’s public prosecution service. The transition took place in the course of broader post-Euromaidan judiciary reforms. 

In the framework of these reforms, the general supervisory function of the post-Soviet procuracy was terminated. At the same time, its role in the field of criminal justice was expanded, which initiated its integration into the judiciary as such. When amendments were made to the Constitution of Ukraine in 2016, an article on the prosecution was even placed in Section VIII, “Justice.” Still, this formal integration is limited: the “Justice” section of the constitution concerns not only the judiciary but other institutions as well, such as the bar and bodies for enforcing court decisions. The independent position of the prosecutor’s office is also emphasized in the current version of the law “On the Prosecutor’s Office.”

After the reform, the prosecutorial service consisted of the prosecutor general’s office, regional prosecutor’s offices, district prosecutor’s offices, and the specialized anti-corruption prosecutor’s office. By 2022, the territorial prosecution network included 26 regional offices and 185 district offices, with over 20,000 officers.

Issues of the Reformed Procuracy 

Today, the mission of the prosecutor’s office is defined in Article 1 of the Law of Ukraine, “On the Prosecutor’s Office,” as the protection of human rights and freedoms in the general interests of society and the state. But the law does not specify which rights, freedoms, or interests are subject to protection, or what they should be protected against. Thus the purpose of the prosecutor’s office is defined in terms both overly broad and overly vague. 

Strangely enough, the mission of the prosecutor’s office is better defined in the constitutional provisions than in the specialized law on the procuracy. According to Article 131-1 of the constitution, the prosecutor’s office: (1) supports public prosecution in court; (2) carries out organizational and procedural management of pre-trial investigation, resolution in accordance with the law of other issues during criminal proceedings, and the supervision of secret and other investigative and search actions of law enforcement bodies; and (3) represents the interests of the state in court in exceptional cases and in a manner prescribed by law. 

Since 2019, however, the procuracy has not performed the function of pre-trial investigation in Ukraine. This function has gone to the new anti-corruption bodies and reformed law enforcement agencies.

The activities of the Ukrainian prosecution aim at ensuring that a person guilty of a criminal offense is brought to criminal responsibility through the prosecutor carrying out procedural guidance of the pre-trial investigation and public prosecution in court. The prosecutor’s participation in criminal proceedings is mandatory. 

In court proceedings, the prosecutor is a party to the case, having the sole authority to conduct public prosecution before the court. Therefore, the activities of the prosecutor’s office are limited mainly to the sphere of criminal justice that meets international standards.

The Partial Integration of the Procuracy into the Judiciary 

Currently, the procuracy is only partially integrated as an inseparable element of the judiciary of Ukraine. The prosecution is integrated into the judiciary branch in three areas only. 

—First, it represents the state’s interests in court proceedings, and it organizes pre-trial investigation under the formal control of the court system.

—Second, prosecutors have the same professional self-governance as judges. In the procuracy currently there exist such self-governance bodies as the Council of Prosecutors of Ukraine and the All-Ukrainian Conference of Prosecutors of Ukraine (analogous to the Council of the Judges of Ukraine and the Congress of the Judges of Ukraine). The selection and transfer of prosecutors is carried out by a special body, the Qualification and Disciplinary Commission of Prosecutors (analogous to the High Qualification Commission of Judges). The highest disciplinary body for both judges and prosecutors in Ukraine is the High Council of Justice, although its activities are more relevant to judges. 

—Third, the legal status of a prosecutor is more similar to a judge’s than ever before. These similarities arise in connection with procedures for selecting candidates, although prosecutors must meet simpler requirements. Procedures for disciplining and dismissing judges and prosecutors are also similar. 

At the same time, the procuracy stands out from the judiciary system also in three areas. 

—First, prosecutors have many independent tasks outside the court system. The reformed procuracy is an independent institute that operates autonomously from the judiciary. 

—Second, as mentioned above, prosecutors have their own self-governance bodies, organizational support, and administrative-territorial units. 

—Third, procurators do not have to meet the same requirements as judges, and they are not expected to be autonomous. Ukrainian prosecutors maintained a strict hierarchy and centralization usual for the executive branch, not the judiciary.

The partial integration of the procuracy into the judiciary has paradoxically made this system formally and institutionally weaker. After the reform, the prosecutorial service is in a transitory, weakened state, which makes it more dependent on the executive, as well as on patronal networks (see p. 134 of the source). Under such conditions, prosecutors were obtaining certain privileges, such as disability status (which allowed them to avoid lustration or conscription into the fighting army since 2014).

The Prosecution in a Time of War 

Since the Russian invasion of Ukraine, the prosecutorial system has become even more vulnerable and inefficient. In the course of the invasion, at least thirty-six prosecutors have been fired and served with suspicions in absentia; most suspicions have involved cooperation with the enemy, treason, or escape abroad. 

Many more prosecutors have left the system to join the army or for other reasons, severely decreasing the prosecution office’s staffing from pre-war numbers. By the end of 2023, the total number of prosecutors in Ukraine had fallen to 9,978, of whom 968 worked in the prosecutor general’s office and 9,010 worked in regional and district prosecution offices.

Under martial law, Ukrainian prosecutors have continued to fulfill their constitutional duties in coordination with other law enforcement agencies and military administrations, but their activities vary depending on how close they are to the front lines. Those regions closer to the front or the Russian border have seen an increase in the number of crimes. In the rear areas, where the military industry is active, many criminal offences against national security and the disclosure of state secrets have been prosecuted. Offenses connected to avoiding military service have also increased, especially in western Ukraine.

Andriy Kostin, until a few days ago the general prosecutor of Ukraine, had served since July 28, 2022. He was an activist in the president’s party, Servant of the People, and the most loyal head of the procuracy under Zelensky. His resignation on October 22 in the wake of draft-dodging scandals afflicting the service and Zelensky’s strongly worded memo that the head of the service should take responsibility may weaken the presidential team. But the entire case demonstrates that the reformed prosecution needs further fine-tuning to make it serve the needs of Ukrainian justice better, without scandals and public distrust. 

The opinions expressed in this article are those solely of the author and do not reflect the views of the Kennan Institute.