On October 22, following a meeting of the National Security and Defense Council where President Zelensky and his team discussed the issue of dozens of prosecutors allegedly abusing their position to receive disability status and avoid military service, the Prosecutor General Andriy Kostin took responsibility and resigned from the office. This scandal is not only related to the growing problem of draft dodgingit is also due to the inconvenient, partial integration of the prosecutor’s office into the judicial system in the course reform.

The prosecutor’s office after the Euromaidan of Ukraine

The last three decades have seen a significant transformation of Ukraine’s prosecutor’s office from the Soviet model of a “general surveillance service”, independent of the judiciary and with more authorities and powers, to something more along the lines of Western European prosecutor’s offices. The transition took place in the wider post-Euromaidan course judicial system reforms.

Within these reforms, the general supervisory function of the post-Soviet prosecutor’s office was terminated. At the same time, its role in the field of criminal justice was expanded, which initiated its integration into justice as such. When changes were made to Constitution of Ukraine in 2016, an impeachment article was even placed in Section VIII, “Justice.” However, this formal integration is limited: the “Justice” section of the constitution refers not only to the judiciary, but also to other institutions such as the bar and enforcement bodies. 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 prosecutor’s office consisted of the general prosecutor’s office, the regional prosecutor’s office, the district prosecutor’s office and the specialized anti-corruption prosecutor’s office. By 2022, the network of territorial prosecutors included 26 regional offices and 185 district offices with over 20,000 officers.

Problems of the Reformed Prosecutor’s Office

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

Strangely, the mission of the prosecutor’s office is better defined in the constitutional provisions than in the specialized law of the prosecutor’s office. According to art. 131-1 of the constitution, the prosecutor’s office: (1) supports public prosecution in court; (2) carries out the organizational and procedural management of the preliminary investigation, the resolution, in accordance with the law, of other issues during the criminal process, as well as the supervision of secret actions and other research and search actions of law enforcement bodies; and (3) represent the state’s interests in court in exceptional cases and in the manner prescribed by law.

Since 2019, however, the prosecutor’s office has not performed the preliminary investigation function in Ukraine. This function has gone to the new anti-corruption bodies and the reformed law enforcement agencies.

The activities of the Ukrainian prosecutor’s office are aimed at ensuring that a person guilty of a crime is brought to criminal responsibility through the prosecutor who conducts procedural guidance of the preliminary investigation and public prosecution in court. The participation of the prosecutor in the criminal process is mandatory.

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

Partial integration of the Prosecutor’s Office into the judicial system

Currently, the prosecutor’s office is only partially integrated as an inseparable element of the judicial system in Ukraine. The prosecutor’s office is integrated into the judicial branch only in three areas.

— First of all, it represents the interests of the state in judicial proceedings and organizes the preliminary investigation under the formal control of the judicial system.

— Secondly, prosecutors have the same professional self-governance as judges. In the prosecutor’s office there are currently such self-governing bodies as the Council of Prosecutors of Ukraine and the Conference of Prosecutors of Ukraine (analogous to the Council of Judges of Ukraine and the Congress of Judges of Ukraine). The selection and transfer of prosecutors is carried out by a special body, the Commission for the Qualification and Discipline of Prosecutors (analogous to the Commission for the High Qualification 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.

— Thirdly, the legal status of a prosecutor is more similar to that of a judge than ever before. These similarities arise in relation to candidate selection procedures, although prosecutors must meet simpler requirements. The procedures for disciplinary and dismissal of judges and prosecutors are also similar.

At the same time, the prosecutor’s office stands out from the judicial system in three areas.

— First of all, prosecutors have many independent tasks outside the judicial system. The reformed prosecutor’s office is an independent institute that operates autonomously from the judicial system.

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

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

The partial integration of the prosecutor’s office into the judiciary paradoxically made this system weaker from a formal and institutional point of view. After the reform, the prosecutor’s office is in a transitional, weakened state, which it does more dependent on the executive, as well as on employer networks (see p. 134 of the source). Under such conditions, prosecutors obtained certain privileges, such as disability status (which allowed them to avoid polishing or conscription into the fighting army since 2014).

The wartime prosecutor’s office

Since the Russian invasion of Ukraine, the criminal prosecution system has become even more vulnerable and ineffective. During the invasion, at least thirty-six prosecutors they were dismissed and served with suspicion in the absence; most suspicions involved cooperation with the enemy, treason or escape abroad.

Many more prosecutors left the system to join the military or for other reasons, drastically reducing the prosecution staff from pre-war numbers. By the end of 2023, the total number of prosecutors in Ukraine HAD fallen to 9,978, of which 968 worked in the general prosecutor’s office and 9,010 worked in the regional and district prosecutor’s offices.

Under martial law, Ukrainian prosecutors have continued to carry out 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 line. Those regions closer to the front or the Russian border saw an increase in crime. In the rear areas, where the military industry is active, many crimes against national security and disclosure of state secrets have been prosecuted. Crimes related to avoiding military service have also increased, especially in western Ukraine.

Andriy Kostin, until a few days ago the Prosecutor General of Ukraine, has been working since July 28, 2022. He was an activist in the president’s party, Servant of the People, and the most loyal head of the prosecutor’s office under Zelensky. His resignation on October 22, following the draft dodging scandals affecting the service and Zelensky’s firm formulation. MEMORANDUM for the head of the service to take responsibility may weaken the presidential team. But the entire case demonstrates that the reformed prosecutor’s office needs further adjustment to make it better serve the needs of Ukrainian justice without scandals and public distrust.

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