One article of the Constitution – 4 devastating prosecutor’s fantasies!

Olena Sotnyk analyzed the bill 5077-1, by which it is intended to bring the repressive functions back to the Prosecutor’s Office. Read more about four prosecutor’s fantasies which are incorporated in this bill.

The Parliament was not provided with an opportunity to listen to a report on 100 days of activities of the Prosecutor General; at the same time a new bill on another “reform” in the Prosecutor’s Office was introduced in the Parliament. The official version is the need for changes in connection with the justice system reform which entered into force on 30 September 2016. The real motive is the desire to get back “on the sly” to the principles of hierarchy, control and dependence like it used to be before.

Bill 5077-1 is not a “betrayal”, no way! This is just blatant mockery and neglect of the absolutely NEW, fresh, and not implemented in practice principles and foundations of the justice reform. This is a test of how far they can go with this abusing and blasphemy while making declarative statements about the readiness to reform the Prosecutor’s Office.

I will recall very briefly: in the new edition of the Constitution there is only one provision about the PROSECUTOR’S OFFICE in the section devoted to JUSTICE! This provision contains an exhaustive list of powers of the Prosecutor’s Office. There is no ambiguity or possibility to act at one’s own discretion.

In fact, this provision means that from September 30, all the prosecutors of this country have become advocates of the state, they are fully responsible for the preparation and quality of prosecution by directing and monitoring the process of investigation, and in very specific exceptional cases they reserve the right to representation of the state in court.

While on Friday we were all laughing at the illegitimacy of the Prosecutor General of Ukraine, MPs introduced a new bill – a collection of fantasies on the subject of a police state.

Fantasy 1. General supervision (“All-Seeing Eyes, Sticky Fingers”).

The provisions of the bill return the right of the Prosecutor’s Office to represent the interests of the state and individuals in court, to gather materials on various subjects outside a criminal proceeding, to conduct checks – in fact, this is the REINCARNATION OF GENERAL SUPERVISION. A question arises: why do we have dozens of inspections, public authorities with regulatory functions? Let the officials work and bring the offenders to justice, but if they can’t deal with this – here we are, neglect of duty is a legal offence which entails criminal liability!

As for the “humane” desire of the authors to help those disadvantaged and provide them with prosecutors as representatives in the courts, then let me remind you that today in Ukraine a system of free legal aid operates, and the government allocates millions for such persons to be able to seek the assistance of lawyers. And in fact it would be interesting to see the statistics of previous altruistic prosecutor’s victories.

 Fantasy 2. Hierarchy and dependence (“Father Knows Best”).

The procedural independence of prosecutors was eliminated in order to make sure that everybody sits tight and won’t initiate any dangerous investigations at their own discretion. In fact, the bill returns us to “manual control” and the possibility of the prosecutors’ decisions to be revoked by their superiors. By an allegedly positive amendment on the order of rewards for prosecutors we are actually taken back to the old principle of “carrot and stick”, when those loyal are rewarded and those independent punished.

In order to make it even more confusing and impossible to trace who is responsible for the quality of the prosecution and its representation in the court, SOVIET REGIONAL DIFFERENTIATION OF WHO SHOULD GO TO WHICH COURTS was brought back: employees of the Prosecutor General’s Office, for example, will address the higher courts. So it is not clear who should be held accountable for the failed cases and poor representation!

Fantasy 3. Control over investigative jurisdiction of the National Anti-Corruption Bureau (“Flying High Seeing It All”)

The deputies decided to allow the Prosecutor General to decide which cases will be investigated by the Prosecutor’s Office, and which will be transferred to NACB in case of a conflict, of course. And here comes the most interesting thing: the bill mentions an odd category of “conflicting investigative jurisdiction”. It is odd because the current laws clearly define the investigative jurisdiction pointing out the articles of the Criminal Code and the law enforcement agencies; that is there is not even a hint of conflicting or some uncertainty.

As far as I understand these “conflicts” will appear depending on the fact how much high-profile a case is: if there is something to communicate with journalists about – the Prosecutor General’s Office will investigate the case, and if not – it will let NACB take care of it.

Fantasy 4. Duplication the powers of the National Agency for Corruption Prevention (“Let Us At Least Have Them by the Throat”)

Probably all the criminals have been already convicted and prosecutors have nothing to do, so they decided to deal with administrative protocols for corruption actions. Firstly, this fantasy will require too many resources of the Prosecutor’s Office. Secondly, it has nothing to do with the functions stated in the new version of the Constitution. Thirdly, the National Agency for Corruption Prevention has been created and is operating now, and this is its direct function!

Presence of this bill in the Parliament is indicative of one of the two things: either the Prosecutor’s Office and deputies did not realize that because of the changes to the Constitution de facto and de jure they will cease to function as a law enforcement agency, which historically was used for the redistribution of property, pressure, and usurpation of power; or this is a systematic well-judged action which brings Ukraine closer to the rigid power vertical and all the traits of a police state, eliminates all the minor achievements in changing the Prosecutor’s Office that have been reached till 2016.

Olena Sotnyk
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