CONSTITUTIONAL GUARANTEES FOR THE INDEPENDENCE OF THE PROSECUTOR'S OFFICE. COMPARATIVE ANALYSIS OF THE EXPERIENCE OF FOREIGN COUNTRIES AND UKRAINE - Научное сообщество
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CONSTITUTIONAL GUARANTEES FOR THE INDEPENDENCE OF THE PROSECUTOR'S OFFICE. COMPARATIVE ANALYSIS OF THE EXPERIENCE OF FOREIGN COUNTRIES AND UKRAINE

16.09.2020 18:56

[Секция 2. Конституционное право. Конституционное процессуальное право. Международное право]

Автор: Nesterenko Mykola Dmytrovich, Master's student of the second year of study, Taras Shevchenko National University of Kyiv, Institute of Law


The prosecutor's office plays an important role in ensuring the functioning of the constitutional institute of the judiciary and justice. The status of its bodies and their place in the system of public authorities may vary from country to country. However, all lawyers from different jurisdictions may agree on the following statement - the prosecutor's office must be independent. For that reason it is pertinent to study its status in connection with different types of authorities which form the existing branches of state power.

The purpose of this work is to study the peculiarities of the status of the prosecutor's office in different countries and to make recommendations to ensure the independence of the prosecutor's office in Ukraine.

In order to establish the essence of the status of the prosecution bodies in Ukraine, it is necessary to refer to the Basic Law of Ukraine.

According to Article 6 of the Constitution of Ukraine, state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial branches. It is also worth mentioning Article 131-1 of the Constitution of Ukraine, according to which the prosecutor's office operates in Ukraine [1]. 

The peculiarity of the current version of the Constitution of Ukraine with regard to the prosecutor's office is that it does not contain a separate section on the prosecutor's office, which was contained in the previous text. At present, the prosecutor's office is included in the judiciary section.

The initiative to involve the prosecutor's office in the judiciary was supported, in particular to meet the recommendations of the Council of Europe [2]; and bring the judicial and prosecutorial systems closer on the basis of common public interests.

However, after the reform, discussions among scholars have not abated, and legal research continues.

In order to qualitatively analyze the status of the prosecution, it is necessary to refer to comparative constitutional law method, which is based on the study of differences between constitutional systems and legal institutes in different countries in order to find the most effective way of developing constitutional order.

Starting from the theory, there are several models of functioning of the prosecutor's office in the system of powers: French (classical), parliamentary, presidential and mixed models [3, p. 343].

The French model is to hierarchically subordinate prosecutors to the Minister of Justice or other executive authorities. This model acts in France, Austria, Germany.

Under the parliamentary model, prosecutors are subordinate to the legislature that elects the prosecutor general. This model exists in Russia, Belarus, Hungary.

The model of subordination of the prosecutor's office to the head of state provides the participation of the president in the election of the prosecutor general. This model functions in Bulgaria, Greece and Spain.

The mixed model implies that the prosecutor's office enjoys the guarantees provided for by the rules on the administration of justice. Prosecutors are subordinate to the highest authority responsible for the formation of the judicial corps.

These models often do not function in their purest form, and the criterion by appointing authority does not fully reflect the peculiarities of the status of the prosecutor's office. Therefore, it is necessary to analyze in detail the experience of concrete states.

Turning to Germany, this state is one of the European countries to be the first to introduce the prosecutor’s office. The activity of the prosecutor is governed by the Basic Law for the Federal Republic of Germany, the Constitutions of Lands, the German Code of Criminal Procedure 1877, and other normative acts [4, p. 148].

The German prosecutor's office is not a part of the judiciary under Article 92 of the Basic Law. The Prosecutor General's Offices and the lower level prosecutor's offices are subordinated to the Ministry of Justice of the land concerned. According to sections 146 and 147 of the Courts Constitution Act (GVG), prosecutors are obliged to follow instructions from superiors, including their Minister of Justice [5, p. 25].

Thus, unlike Ukraine, in Germany, the prosecutor's office is subordinate to the highest body of the executive branch operating in the sphere of justice.

In order to give the example of issues occurring with the existence of the above model it is possible to refer to the case-law of the Court of Justice of the European Union (further – CJEU).

In the Joined Cases C-508/18 (OG) and C-82/19 PPU (PI), the CJEU further developed its positions on the nature of “judicial authority” within the meaning of Framework Decision 2002/584/JHA on the European Arrest Warrant [6, p. 2].

The relevance of these cases to this study lies in the fact that the Court examined the nature of the status of the prosecutor's office in Germany. The CJEU stated that since the German public prosecution offices may be subject to instruction from the Minister for Justice, they are not free from political influence, and therefore, cannot be defined as autonomous “judicial authority.”

The similar model exists in France. The prosecutor's office is an integral part of the Ministry of Justice's structure. Therefore, the French prosecutor's office is also regarded as a system of bodies of executive branch [7, p. 188].

One more country that will be considered is Poland, where the legal status, organization and principles of the prosecutor's office are defined in the Law of 28 January 2016 “On the Prosecutor's Office” [8, p. 1].

The Prosecutor's Office is headed by the Prosecutor-General, who is also the Minister of Justice. Polish law does not prohibit membership of political parties and conduct of political activity by the Prosecutor-General. Thus, the prosecutor's office ceases to be an independent body.

A radically different model of the prosecutor's office exists in Finland. 

The features of the French model prevailed in the “country of thousands of lakes” before December 1, 1997. After that date, the Prosecutor General’s Office with the status of an independent body began to operate in Finland. The purpose of the 1997 amendments was to separate the General Prosecutor's Office from the executive branch and assign them to the judiciary.

According to Art. 104 of the Finnish Constitution, the prosecution system is led by the Prosecutor General as the highest prosecutor appointed by the President of the Republic. The article itself defining the functioning of the prosecutor's office was moved to the Justice Section [9, p. 21].

Moreover, Finland’s legislators have adopted the provisions that no political party or other body might give orders to the prosecutor’s office [10].

It is also worth mentioning the experience of Lithuania that goes further in the process of maintaining the independence of the prosecutor's office. The Constitution of the Republic of Lithuania directly contains provisions on the independence of prosecutors – “When performing his (prosecutor’s) functions, the prosecutor shall be independent and shall obey only the law” (Para 3 of Art. 118 of the Constitution of the Republic of Lithuania) [11, p. 22].

Conclusion: Having analyzed the experience of determination of the status and organization of the system of the prosecutor's office in foreign countries, it can be concluded the following. 

Given the high risk of corruption by law enforcement officers and the risk of political influence by government on these subjects, the prosecutor's office model which exists in Germany, France and Poland, and according to which the prosecutor's office becomes subordinate to the Ministry of Justice, would make a great risk to Ukraine.

Therefore, the elimination of a separate section of the Constitution of Ukraine on the status of the prosecutor's office is a good way for preventing legislative initiatives that may be linked to the designation of the prosecutor's office as an executive body.

At the same time, opponents of the prosecution's transmission to the sphere of judiciary claim that while the current constitutional status does not limit the independence of the prosecuting bodies and does not de facto subordinate it to the judiciary, there is still a risk of a potential encroachment. 

In order to minimize it, I consider it appropriate to refer to Lithuanian legislative experience and introduce provisions on the independence of the prosecutor's office in the Constitution of Ukraine. The following guarantees may be adopted:

- prohibition of unlawful influence and pressure on prosecutors, declaration of the independence of the prosecution bodies from other public authorities in the performance of their functions;

- prohibition of the prosecutors’ participation in political activity, affiliation with political parties, holding a representative mandate.

Literature:

1. Constitution of Ukraine: Law of Ukraine of 28.06.1996 No 254к/96-ВР. Verkhovna Rada of Ukraine. Access mode: https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text.

2. Opinion No.9 On European norms and principles concerning prosecutors [Electronic source]. Council of Europe Portal. 2014. Access mode: https://rm.coe.int/168074738b.

3. Tsyganok S. V. Independence of the prosecutor's office: Poland experience. Enterprise, Economy and Law, 2019. № 6. P. 323.

4. Zagynei Z. A. Foreign experience of creation and activity of special anti-corruption bodies: scientific-practical manual. / Z. A. Zagynei, V. M. Dragan, O. N. Yarmysh and others. – K.: National Academy of Public Prosecutor of Ukraine, 2015. – 314 p. – P. 128-174.

5. Selter W. Status of the Prosecutor's Office in Germany in the System of State Bodies and Its Powers. International Scientific and Practical Conference, 2016. P. 67. Access mode: http://napu.com.ua/wp-content/uploads/pdf/Materialy_Conferencii(1).pdf

6. Press Release No 68/19 On Judgments in Joined Cases C-508/18 OG (Public Prosecutor’s office of Lübeck) and C-82/19 PPU PI (Public Prosecutor’s office of Zwickau) and in Case C-509/18 PF (Prosecutor General of Lithuania). Curia Europa, 2019. URL: https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068en.pdf.

7. Milevsky O. P., VV Varushechkina V. V., Fridman D. A. A look at the legal status of the prosecutor in criminal judiciary in foreign countries. International Legal Bulletin: current issues, 2017. P. 295. Access mode: http://www.nusta.edu.ua/wp-content/uploads/2016/11/Міжнародний-юридичний-вісник.-№4-58-9..pdf.

8. Law of Poland On Prosecutor’s Office. Law of 28.01.2016. Prawo.sejm.gov.pl. Access mode: http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20160000177/T/D20160177L.pdf.

9. Constitution of Finland 1999. Law of 11.06.1999 №731/1999. Finlex. Access mode: https://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf.

10. Interview: Finnish Prosecutor General Raija Toiviainen in Tallinn. ERR News. URL: https://news.err.ee/1001343/interview-finnish-prosecutor-general-raija-toiviainen-in-tallinn.

11. Constitution of the Republic of Lithuania. Law of 25.10.1992. E-Seimas. Access mode: https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.21892?jfwid=-wd7z8ivg5.

________________

Scientific supervisor: Барабаш Юрій Григорович, доктор юридичних наук, професор Національного юридичного університету імені Ярослава Мудрого



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