One year as a General Prosecutor: Eight Lutsenko’s major failures

On May 12 it will be a year since Yuriy Lutsenko was appointed to the post of the General Prosecutor. During this time, he never became the person who could embody the huge request of many Ukrainians, who went to Euromaidan from all over the country, – a request to reform the law enforcement agencies.

And it is strange. After all, in his life Lutsenko himself has repeatedly suffered from police and prosecutor’s abuse.

Only the intensification of investigations against former leaders and the creation of the General Inspectorate can be called as achievements. However, there are still no verdicts in the said proceedings and it is unknown whether there will be verdicts. And there will be a need to substantially reduce the composition and empowerment of the General Inspectorate from November 20, 2017, when the State Bureau of Investigation will be established.

As of today, the lack of reform of the Prosecutor’s Office is a bitter and obvious truth for many people in Ukraine and abroad. This is the result of the Government’s panic fear of losing control over the Prosecutor’s Office.

In this publication we will analyze the biggest failures over the year of Yuriy Lutsenko’s rule as a General Prosecutor.

I. “THERE ARE NO SIGNS OF DEMOCRACY”

Even Plato argued that states should not be guided by people, but guided by laws. The way Yuriy Lutsenko was appointed for the post last year shows that he does not respect democracy and democratic procedures for passing laws and uses them as a cover for achieving his personal and political interests.

The law, which opened the way for Lutsenko to the office, was adopted in the first reading and as a whole, signed by the Speaker, the President, published in official publications and entered into force in just one day on May 12, 2016. This is a record in the history of Ukrainian parliamentarism. But it is a hardly a reason for us to rejoice about this occasion.

The said law concerned the cancellation of the requirements for the General Prosecutor to have legal education and relevant experience. Without the cancellation, the road to the post would be closed for Yuriy Lutsenko.

The same trend has manifested itself in the formation of the new bodies in the Prosecutor’s Office – the Qualifications and Disciplinary Commission and the Council of Prosecutors.

The purpose of their creation is noble and corresponds to the principles of democracy: to transfer the authoritarian powers of the General Prosecutor on the appointment, promotion and dismissal of prosecutors – to collective institutions, which are formed by ordinary prosecutors on an open and parity basis.

The condition for Yuriy Lutsenko holding the post was a one-year stoppage of functioning of these bodies. The new Head of the GPU had no need in the transparency of procedures on appointing and dismissing prosecutors.

Even last year, All-Ukrainian Conference of Prosecutors elected their representatives to the Commission and the Council of Prosecutors. There were no legal grounds for the dismissal of elected members. But this has not stopped the current leadership of the Prosecutor’s Office, which held a new All-Ukrainian Conference of Prosecutors and elected new elected new members to the mentioned bodies already on April 27, 2017.

Understanding the dubiousness of their actions, the leadership of the Prosecutor’s Office deleted all mentions about the composition of the Commission and the Council of Prosecutors, as well as their decisions from the GPU website.

The agenda for these conferences was the same. But the last year’s meeting of prosecutors lasted three days, from April 26 to 28, and this year, everything was decided in half a day, except for opening, registration and congratulations from the leadership.

A significant contingent of military prosecutors was attracted for the “correctness” of voting for the new conference. Military servicemen of the Military Prosecutor’s Office took a direct part in the formation of autonomous bodies, whose activities do not concern them in any way. After all, military prosecutors have their own separate system of recruitment, promotion and separation from the service.

This is analogous as if citizens of Ukraine participated in the election of deputies to the Parliament of Moldova or Romania.

A complete failure also occurred in the issue of transparency in the activities of the General Prosecutor.

In particular, part 2 of the Article 9 of the Law requires the publication of all orders of the General Prosecutor of Ukraine. This refers to issuing orders about appointment, release, instructions to subordinate prosecutors, monthly expenses list and the like.

The importance of the publication of the General Prosecutor’s written orders is that that they are means of ensuring the independence of lower-level prosecutors. They are obliged to carry out only written instructions from the Head of the Prosecutor’s Office – part 4 of Article 17 of the Law.

However, the Prosecutor’s Office does not want to reveal the results of its work to the public, and does not allow for citizens to control the legality of their orders.

II. NEGLECTION OF THE CONSTITUTION

Amendments of the Constitution of Ukraine of June 2, 2016, change the Prosecutor’s Office from a separate supervisory structure to the body of the justice system.

Moreover, since the effective date of these changes – September 30, 2016 – Ukrainian legislation, namely the Law on the Prosecutor’s Office and Procedural Codes have not been brought into line with the new requirements of the Constitution.

And this unacceptable situation has been going on for the eight months

So, such innovations of the Basic Law still remained unrealized:

– final elimination of general supervision;
– transformation of public prosecution into public;
– changing the role of the Prosecutor on supervising investigative bodies of the procedural lead of the investigation
– deprivation of authority from person representatives in courts;
– a significant reduction of the state interests representatives in the courts;
– elimination of powers on supervising the places of non-freedom.

Moreover, the GPU lobbied for bill №517, which has not provided limitations of the powers of the Prosecutor’s Office, as follows from the new requirements of the Constitution – but, on the contrary, expanding its powers.

The experts of the Council of Europe drew attention to this problem, in their conclusion they noted: “Some of the proposed changes have a completely different direction: they are not only unconstitutional, but sometimes contradicts the Constitution. Thus, some of them will give improper powers to the Prosecutor’s Office; creation of a discrepancies between the role of the Prosecutor’s Office and other law enforcement agencies; as well as the introduction of provisions that were deemed incompatible with European standards” (paragraph 14).

Fortunately, the attempt to adopt this bill was unsuccessful.

The lack of a vision of a reform is also evident in the status of the Academy of the Prosecutor’s Office.

Since 2015, the Academy has been transformed in accordance with the European model into an institution for the special training and professional development of prosecutors – with the support of the People’s Deputy Yuriy Lutsenko.

And now the Prosecutor’s Office under the leadership of General Prosecutor Lutsenko actively supports the bill №5226, which provides for the transformation of the academy into a university and a scientific facility.

The obvious reason for such motion is the desire to receive additional funds for the entire prosecution system. But the support of this decision will mean breaking the principle of university’s autonomy and academic freedom as new principles of higher education and scientific activity – since the Academy is directly subordinated to the GPU and there can be no talks about its independence and self-dependence.

There is great potential for systematic conflict of interests and opportunities for corruption due to the fact that future graduates of the Academy will have actual, illegal advantages over graduates of other law schools in issue of access to the profession of the prosecutor.

III. LIMITATION OF HUMAN RIGHTS

General Prosecutor Yuriy Lutsenko in his position has systematically supported the Law that disproportionally and unreasonably restricts human rights.

For example, Lutsenko became the ideological inspirer and defender of the Law on the improvement of conviction in absentia.

The overwhelming majority of its provisions have no relation criminal proceedings in absentia: instead we received violations of the right to defense, the rights of victims and reasonable procedure terms, as well as the violation of the principle of legal certainty as a component of the Rule of Law.

Fortunately, a number of dangerous innovations on this project were removed before the second reading: an increase in the terms of investigation and detention from 12 to 18 months, summons for investigative actions through the mass media and the like.

Yuriy Lutsenko’s position on a number of human rights bills has cardinally changed after his appointment to the post.

Thus, the draft law on ensuring the right on legal sentence for certain categories of convicts №2033a is prepared for voting in the second reading without the active participation of People’s Deputy Yuriy Lutsenko, but the Prosecutor’s Office is blocking this project during Lutsenko’s rule. The positive opinion of the Council of Europe’s experts about the draft law does not change the standpoint of the GPU.

People’s Deputy Yuriy Lutsenko is among the authors of the draft law on the introduction of criminal offenses №2897, which has been recognized by European experts as such that offers further humanization of Ukrainian legislation and the implementation of international and European standards in the field of human rights. But after being appointed to the post, Lutsenko no longer thinks about humanizing the criminal law – he is more interested in the severity of punishments.

IV. FAILED PERSONNEL POLICY

After being appointed as the General Prosecutor, Yuriy Lutsenko said that he was forming a new Prosecutor’s Office and all the deputies of the General Prosecutor wrote letters of resignation.

However, Shokin’s compromised deputies remained in the system.

Yuriy Stolyarchuk, who, in violation of international law, wanted to interrogate a former US Ambassador to Ukraine Geoffrey Pyatt, remained in the office. As a reminder, that as responsible for all the investigation of the GPU during the times of Viktor Shokin, Stolyarchuk is involved in the collapse of the case against the odious Yuriy Ivanyushchenko. Stolyarchuk also persecuted reformers in the prosecution system.

Yuriy Sevryuk, who investigated fabricated “case” against the Anti-Corruption Action Centre, also was not dismissed, but sent to the Prosecution Academy as the pro-rector.

But those, who really could be the face of reforms in the prosecution system, have not received the real opportunity to influence something from within. Valentyna Telychenko, who was to become Lutsenko’s Deputy on the issues of reforming the Prosecutor’s Office, was never appointed to this post.

A participant of the Euromaidan, who volunteered for the front and was wounded at Luhansk airport, Petro Shkutyak, whom Lutsenko promised to appoint responsible for cleaning up the cadre, was not even appointed as prosecutor at all. He had no real influence on the process of clearing the Prosecutor’s Office and then retired altogether.

The only really fulfilled promise is the appointment of Vyacheslav Svirets, a human rights defender from the Rivne region and a regional coordinator of the Ukrainian Parliament Commissioner for Human Rights. He became the Head of the unit for overseeing the observance of human rights in places of deprivation of liberty. However, although being important the Svirets’s unit will be disbanded in accordance with the changes provided for by the Constitution when the Law on a double system of regular inspections is passed.

This personnel policy indicates that after being appointed as the General Prosecutor, Yuriy Lutsenko decided not to conflict with the system.

Everyone who used to be with Shokin stayed with the new General Prosecutor. The systematic update of the Prosecutor’s staff did not happen.

The Law of May 12, 2016, allowed the appointment of persons with legal background, but no experience of working in the Prosecutor’s Office, to the Prosecutor’s Offices, including regional Prosecutor’s Offices and the GPU. The idea is good: it had to open doors to the Prosecutor’s Office for specialists from outside the system.

However, this failed to work in the practice.

During September 2016 – January 2017, a competition was held for 627 vacant positions only in local Prosecutor’s Offices. However, this is only 5% of the total number of prosecutors in the system.

The General Prosecutor refused to hold similar competitions in Prosecutor’s Offices at highest level – he decided to rely on the old cadres.

V. VIOLATION OF THE GUARANTEES OF THE PROSECUTORS’ INDEPENDENCE

At least twice, Yuriy Lutsenko grossly violated the guarantees of prosecutors’ independence.

Firstly, he on the appointment as the General Prosecutor, contrary to the requirements of the Law, has withdrawn all the workers of the GPU from the staff. Lutsenko has learned this tactic during his experience in the management of the Ministry of Internal Affairs.

However, the new Law on the Prosecutor’s Office practically equated prosecutors with judges in terms of guarantees of independence – and therefore, does not allow such actions. The risk of such illegal treatment of prosecutors is that this is a good way to verify loyalty and inclination to corrupt practices of their future subordinates.

Secondly, Article 81 of the Law “On the Prosecutor’s Office” establishes a clear amount of the official salary of the prosecutor, surcharges for administrative positions, additional payments for long service and bonuses. Such fixation in the law of the level of remuneration of the prosecutor is also aimed at increasing their independence.

But these norms of the law are not fulfilled by the General Prosecutor’s Office, although the General Prosecutor misleads the entire Ukrainian society about the level of prosecutors’ salaries.

Unprotected and dissatisfied with his position, prosecutor creates a risk of violation of the rights of suspects, accused, victims, witnesses.

However, Yuriy Lutsenko does not care.

VI. FAILED FIGHT AGAINST CORRUPTION

Article 19 of the Law on the Prosecutor’s Office provides that the General Prosecutor must approve the procedure for an annual secret test of the righteousness of each prosecutor.

Yuriy Lutsenko has really approved an order of verification of the righteousness – but by its content it was not a secret test of righteousness.

The mountain has brought forth a mouse.

It is assumed that each prosecutor annually presents a declaration of righteousness – an emasculated document, where there are several questions like “Have you committed corrupt acts?”, “Have you ever given illegal orders” and answers “Confirm / Do not confirm”.

While the experience of other countries shows that the declaration of righteousness of prosecutors can consist of hundreds of questions – for example:
“Where were you on vacation for the past three years?”
“What funded this vacation?”
“Do you have relatives in the Prosecutor’s Office, courts and other law enforcement agencies, what are their professions?” and so on.

And results of this declaration really give an understanding who has influence over the prosecutor and how righteous is he.

In addition, the Ukrainian law determines that it must be a secret test of righteousness and not “presentation of declarations”.

This means that in the presence of certain information about the prosecutor, special conditions are conditions are created similar to offering a bribe (undue profit). And according to the results of the behavior of the prosecutor in this situation, it is determined whether he passed this test or not.

Ineffectiveness of such a verification system can be verified by visiting the GPU website. 12500 declarations – about nothing. However, even if the public informs some facts about dishonesty verification can be done only with the permission of the Head of the Prosecutor’s Office, in which the prosecutor works.

In addition, the General Prosecutor’s Office remains one of the main threats to the implementation of anti-corruption reform in Ukraine. The GPU has more than once deliberately entered the field of competence of the NABU (National Anti-Corruption Bureau of Ukraine) and the Specialized Anti-Corruption Prosecutor’s Office, not really that the cases will fail in the court due to this position.

The scandal in August 2016, when the NABU reported that two of its detectives were detained by the representatives of the General Prosecutor’s Office was crowned in the history of the GPU’s “love” for new anti-corruption institutions.

One can also recall the shameful situation when Yuriy Lutsenko for 21 days refused to sign the notice of suspicion in the case of MP Oleksandr Onyshchenko, constantly seeking some excuses. General Prosecutor said that the document was of poor quality, and therefore the report of suspicion would be appealed. It’s hard to say why Yuriy Lutsenko was so slow, but one thing is obvious: this inactivity has opened up all the possibilities for the fugitive People’s Deputy to make the property to other people.

Statistics are also not in favor of the current leadership of the Prosecutor’s Office: in 2016, 3.5 times less people are deprived of their liberty for corruption than in 2013, at the time of Yanukovych.

VII. IMBALANCE OF FUNCTIONS INSIDE PROSECUTOR’S OFFICE

During the stay of Yuriy Lutsenko as a General Prosecutor there was an artificial shift of functions within the system of the Prosecutor’s Office.

Priority was given to the investigator of the Military Prosecutor’s Office, leading the cases inherent to the – for example, against Kurchenko, ex-heads of the tax service Klymenko and Holovach.

In fact, the Military Prosecutor’s Office was restored in August 2014 in connection with the aggression from the Russian Federation in order to provide an investigation in the territories where the armed conflict continues.

The transfer of cases, which they are currently investigating, to the Military Prosecutor’s Office – it is like giving the SBU the authority to investigate theft of chickens.

On the other hand, the Military Prosecutor’s Office has filled up its main front of work and is struggling with its main function the implementation of procedural leadership in cases involving servicemen. In particular, the report “In Search of Justice” prepared by the Center for Civil Liberties and the Coalition of Public Organizations and Initiatives “Justice for Peace in Donbas”.

As the analysis of human rights defenders shows, the Military Prosecutor’s Office does not exercise control or procedural leadership in a number of crimes, which are probably involving representatives of the army and volunteer battalions.

In many cases, the investigation of crimes, in which military personnel are accused, are carried out by the National Police and not by the Military Prosecutor’s Office.

VIII. PROBLEMS WITH THE INVESTIGATION OF EUROMAIDAN CASE

For the fourth year, the attention of society has been riveted to the №1 case in the country – the investigation of crimes during the Euromaidan.

Yuriy Lutsenko has repeatedly rushed the investigators and allowed himself statements that the cases on Euromaidan must be transferred to the court as quickly as possible. However, the General Prosecutor apparently was barely concerned that the poorly investigated cases will fall apart in the court.

In the autumn, Yuriy Lutsenko has reorganized the Department of Special Investigations of the GPU, which for more than two years has investigated the case of the Euromaidan. A separate department was divided, which now independently investigates the economic crimes of Yanukovych and his associates.

Pavlo Dykan, representative of the Association Lawyers of Heavenly Hundred, believes that the separation of economic and violent crimes has not helped to the establishment of the overall picture, because they are closely connected and intertwined: “some crimes have caused others”. Dykan is convinced that the separation of the department and the destruction of a single analytical focal point reduced the effectiveness of the investigation.

Similarly, the GPU has not initiated other important changes in the legislation in the context of Euromaidan – for example, its harmonization with international humanitarian law, the ratification of the Rome Statute and resolution of problems with procedure of trial in absentia.

With this background, the conflict between between Lutsenko and Serhiy Horbatiuk, Head of Department of Special Investigations of the General Prosecutor’s Office, escalated last year. The latter stated that he was not going to carry out “illegal orders” and even started talking about his possible resignation.

This was avoided, not least due to the active position of lawyers and relatives of the Heavenly Hundred, who spoke in support of Horbatiuk.

* * *

The fact that Lutsenko has not reformed the militia became a catalyst for protests on the Maidan, radicalized it because of the illegal use of force, special equipment and weapons against peaceful protesters.

We can only expect what shocks the Lutsenko’s unreformed Prosecutor’s Office will cause in Ukraine.

Oleksandr Banchuk, Tetyana Pechonchyk, for Ukrayinska Pravda