ALI article for European Pravda
On Thursday, the Verkhovna Rada adopted the presidential draft law and restored the procedural independence of the Specialised Anti-Corruption Prosecutor’s Office (SAPO) and National Anti-Corruption Bureau (NABU).
The protesters’ demands have been met, but public congratulations on the victory evoke mixed feelings: after all, the authorities first created the problem themselves, only to then fix it.
But did they fix it?
While public attention was focused on the ‘reversal’ of the rules concerning anti-corruption bodies, the law of 22 July introduced broader negative changes. The procedural independence of the SAPO was successfully defended, but the same independence of other prosecutors was not. The strengthening of the role of the Prosecutor General in relation to other prosecutors (except anti-corruption prosecutors) remains in force. Similarly, the rules concerning personnel issues in the prosecutor’s office remain unchanged.
And this is bad for European integration. Here is why.
The essence of the problem
First of all, it should be emphasised that the changes that undermined the independence of the SAPO and NABU have indeed been repealed. The compromise added to the legislation, primarily to allow the authorities to save face and continue to claim that this was a ‘fight against russian influence’, was a provision requiring all law enforcement officers and prosecutors to undergo polygraph tests.
At the same time, Law No. 4555-IX of 22 July also amended the Law on the Prosecutor’s Office. Most of these amendments remain in force.
Here are the four main changes.
Firstly, during martial law, the competition requirements have been abolished — anyone with a law degree can be hired for a position in the Prosecutor General’s Office or the regional prosecutor’s office.
Secondly, the law undermines the guarantees of institutional independence of prosecutors: anyone can be dismissed through the mechanism of liquidation or reorganisation of prosecution authorities. Now every prosecutor will think twice before making a decision that does not align with the ‘correct vision of the leadership’.
Thirdly, the Prosecutor General has been given new procedural powers that further strengthen his influence over all prosecutors. Now he is free to ‘request’ the necessary proceedings for verification, which completely stops the movement within the proceedings and allows the Prosecutor General to give instructions directly to the investigator, bypassing the prosecutor handling the case.
In addition, the polygraph testing mechanism is designed in such a way that it can be turned into another tool for putting pressure on undesirable prosecutors. The law states that polygraph testing must be conducted ’at least once every two years’. Let us leave aside questions about the quality of this method and the fact that the law leaves both the content of the test and the procedure for action if the test is negative undefined. But will this not become a kind of psychological pressure mechanism on disloyal prosecutors, who could be sent to the polygraph even every week?
However, the first three points pose the most real threats, including to Ukraine’s European path.
Let us explain each of them, as well as the connection between the amendments to the Law ‘On the Prosecutor’s Office’ and Ukraine’s European integration.
To higher-level prosecutor’s offices without competition
The law of 22 July contains a provision regarding the prosecutor’s office, which will supposedly only apply during martial law (although this is not entirely true; more on this below).
This provision allows anyone with a university degree and legal experience — five years for the Prosecutor General’s Office and three years for regional prosecutor’s offices — to be appointed to the Prosecutor General’s Office and regional prosecutor’s offices without competition.
Paradoxically, however, selection for lower-level prosecutor’s offices is competitive, with the independent Qualification and Disciplinary Commission of Public Prosecutors (QDCPP) playing a role. Similarly, the procedure for appointing a trainee prosecutor, which used to be the starting point for a career as a prosecutor, has remained unchanged.
And only in the top prosecutor’s office does martial law, so to speak, force the selection of employees to bypass procedures, simply by the decision of the head of the prosecutor’s office.
No tests, ratings or competitions — we simply take our favourite for a responsible position.
This norm returns to the Prosecutor General and the heads of regional prosecutor’s offices the powers they once had long ago, before 2014, taking them away from the de facto self-government body — the QDCPP.
The competition for the position of prosecutor was introduced as part of the reform promoted by the Council of Europe and the EU, as was the establishment of the QDCPP, which began operating in 2017. Its abolition is not only a corruption risk, but also a significant step backwards in European integration.
Firstly, the Rule of Law Roadmap (approved by the Government in May this year) declares the strengthening of the institutional capacity of the prosecutor’s self-government bodies and the QDCPP. Now, contrary to these commitments, Ukraine is not only failing to strengthen the QDCPP but is also taking away its powers.
Secondly, we have committed to the EU that competitions for senior positions in the prosecution authorities will become mandatory in the first quarter of 2026. Instead, we are abolishing competitions altogether.
The authorities will clearly insist that this is a temporary measure for the duration of martial law. However, this is not entirely true: when martial law ends, prosecutors recruited without competition will not be dismissed from the prosecution authorities.
The argument that martial law prevents the selection of people for the prosecutor’s office is easily refuted by the fact that since 2022, about 300 people have joined the prosecutor’s office as a result of the competition.
Dismissal as a tool of pressure
These amendments to Articles 41, 51 and 60 of the Law on the Prosecutor’s Office are even more complex and therefore went largely unnoticed.
There is an additional factor here — last year’s decision of the Constitutional Court of Ukraine, which came into force in June. The Constitutional Court defended prosecutors who found themselves ‘out of office’.
Let us explain what this means. Prosecutors are appointed to their positions for an indefinite term, and except in special cases (retirement, disciplinary action, etc.), they cannot be dismissed. This guarantees prosecutors’ independence, allowing them to make decisions at their own discretion without fear of pressure from politicians, procedural opponents or their superiors.
This is the European standard, according to which the status of a prosecutor is similar to that of a judge.
However, after these guarantees were introduced into the law, the heads of the prosecution authorities learned to circumvent them: it is enough to reorganise the department, remove people ‘out of office’, create a new staff list and appoint only those prosecutors who correspond to the ‘vision’ of the new head.
Unfortunately, this is a common practice.
People who are ‘out of office’ have prosecutor status, receive salaries, but are deprived of any powers and find themselves in an uncertain legal status — until they resign or until the head changes their mind. In practice, this means until you ‘come to an agreement’ with them or until a new leader arrives.
Therefore, the Constitutional Court ruled that such an undefined status is unconstitutional and eliminated the possibility of ‘removing from office’ altogether.
Law No. 4555-IX creatively reinterpreted the Constitutional Court’s decision and did something that contradicts its conclusions.
It provided for a mechanism for responding to situations where prosecutors find themselves ‘out of office’, significantly worsening the situation of those to whom this hidden punishment was applied: now, prosecutors who find themselves in this situation can be offered a position, and if they refuse, they can be dismissed on this basis.
Formally, the Constitutional Court’s decision has been implemented (there is a mechanism to combat the phenomenon of ‘prosecutors out of office’). In reality, however, this gives the green light for ‘personnel purges’: it is enough to offer a position at the lowest level or with working conditions that the disgraced prosecutor will certainly not agree to.
Therefore, these changes should not simply be cancelled. It is necessary to comply in good faith with the Constitutional Court’s decision and introduce a procedure for changing the structure that would allow prosecutors to continue their work.
Prosecutor General with special powers
Although we have noted the need for independence of prosecutors, who, according to the European approach, are part of the justice system, this independence is not absolute, unlike the work of judges. Senior heads of prosecution authorities have a number of procedural powers over lower-level prosecutors.
However, this does not mean that a supervising prosecutor can interfere in any proceedings without justification or halt their progress. And even more so, they cannot give instructions bypassing the prosecutor in charge of the case.
Instead, Law No. 4555-IX gave the Prosecutor General the right to ‘request’ materials, documents and other information from the prosecutor relating to any pre-trial investigation and to transfer them to third prosecutors for review. The presidential draft law adopted on 31 July left these provisions unchanged (the relevant powers of the Prosecutor General were excluded only in relation to NABU and SAPO).
In practice, this means that the Prosecutor General now has the ability to block any investigation or, worse, to give instructions directly to the investigator, bypassing the prosecutor who is the procedural supervisor. It turns out that this prosecutor will formally remain assigned to the case, but without the authority to influence it.
And all this without any control or accountability of the Prosecutor General.
At the same time, the conditional prosecutor in charge of the procedural management of the conditional Chernyshov case may remain the prosecutor, but the Prosecutor General will have full control over the case.
How did it work before?
Previously, there was also a way to control and influence the case, but instructions were given only to the prosecutor and only in writing, and it was up to them to implement them. And in order to ‘take away’ the proceedings from the prosecutor, there had to be a reasoned decision to remove them from the case. In other words, there were safeguards against abuse and documentary evidence, which enabled the conduct of an official investigation in the event of improper actions.
However, all powers are now concentrated in the hands of one person, namely the Prosecutor General, who, let us recall, is appointed politically without any competition and remains politically dependent. Incidentally, the European Commission and the Council of Europe systematically criticise both the politicised appointment procedure and the possibility of dismissing the Prosecutor General by a vote of no confidence, which can be passed by a simple majority in Parliament.
It is precisely because of the political dependence of the Prosecutor General, i.e., because Parliament can ‘keep him on the hook’ by threatening dismissal, that Ukraine, on the recommendation of its European partners, has carried out reforms that have gradually reduced the powers of the Prosecutor General.
These reforms remain important for Ukraine’s compliance with Chapter 23 during the accession negotiations with the EU. However, due to the fact that Parliament adopted these norms on 22 July and the presidential draft law, voted on 31 July, did not repeal them, we are clearly moving in the opposite direction.
European integration summary
Thus, after the dramatic story of the undermined and then restored independence of anti-corruption bodies, Ukraine found itself several steps further away from meeting EU requirements.
Prosecutorial independence remains under threat, both procedurally (the role of the Prosecutor General has been strengthened) and institutionally (prosecutors can be ‘expelled’ from the system at any time or simply pressured through inspections).
And competitions have been cancelled without any real justification. For now, they are ‘temporary’, but nothing is more permanent than temporary changes, which are often recognised as effective and become permanent.
Soon, we will see the annual EU Enlargement Report, which will not ignore these changes. Even earlier, we will see their assessment in the shadow reports under Chapter 23.
And these details are not secondary for the EU, even though they have been overlooked by the public amid the attack on anti-corruption bodies. So, European integration documents are literally permeated with words about the ‘meritocratic principles’ of appointing prosecutors (i.e., the mandatory nature of competitions, which should be extended further, ideally to the Prosecutor General), procedural independence and strong prosecutorial self-government. Instead, competitions have been cancelled, all prosecutors are under threat of ‘personnel purges’, and prosecutorial self-government has once again lost its powers…
This is only the European integration aspect.
It is obvious that, in terms of political risks, the concentration of procedural powers in the hands of the Prosecutor General (who, as already mentioned, is politically dependent due to the procedure for his appointment and dismissal) his ability to dismiss ‘dissident’ prosecutors and replace them with ‘loyal’ ones, regardless of the latter’s qualifications and almost regardless of their experience, will have long-term negative consequences for the quality of justice in Ukraine.
This is not only about the threat of selective, politically motivated persecution, but also about a reduction in fairness in society as a whole.
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