Volodymyr Bogatyr, a lawyer, Honored Lawyer of Ukraine, reflects on the legal consequences of exceeding the term of temporary performance of the duties of the Prosecutor General beyond the permitted period.
Today, no one is surprised by the decisions of state representatives, which balance between legality and arbitrariness. However, when legally dubious actions are committed at the level of a constitutional body, this directly affects the issue of the legitimacy of power.
The provisions of the Constitution of Ukraine in no way prioritize by the law either the commander or the official. Ukrainians seek the rule of law, not rule through law.
We understand that a long term of office leads to routine, when an official no longer perceives any issues and laws as a set of unique circumstances and acts in a manner familiar to him. Therefore, the behavior of a person is precisely the criterion with which the law deals.
The Prosecutor General, who is called upon to protect human rights and freedoms, the general interests of society and the state.
Instead, the Acting Prosecutor General, by imposing the law, appropriated to himself the right to decide what degree of injustice in a particular case may be acceptable, taking into account the "collective" interests.
Instead of introduction
In 2016, Section VII [PROSECUTOR'S OFFICE] was excluded from the Constitution of Ukraine, and with it the legality of justice for the implementation of the next judicial reform disappeared.
The reform of the prosecutor's office was accompanied by competitions, selections, certifications and other kinds of "selections" regarding integrity. And the main result of the non-transparent certification of prosecutors and investigators of the Prosecutor General's Office of Ukraine in 2019 was the destruction of certification materials on February 07, 2020 using an industrial shredder by shredding and mixing 449 kg of paper documents.
Further mixing of shredded personnel in the Prosecutor General's Office led, on the one hand, to numerous lawsuits for renewal, and on the other, contributed to the negative selection of personnel in the prosecutor's offices. Thousands of lawsuits, millions in compensation and no one responsible for the "reforms".
Therefore, the formation of the next composition of the Qualification and Disciplinary Commission of Prosecutors and the announcement of the resumption of its activities do not cause optimism.
In the case of dismissal
One of the key state institutions is the Prosecutor's Office of Ukraine. It constitutes a single system that, in accordance with the procedure provided for by the Law "On the Prosecutor's Office", carries out the functions established by the Constitution of Ukraine in order to protect human rights and freedoms, the general interests of society and the state.
As an indispensable component of justice, the Prosecutor's Office carries out:
- maintenance of public prosecution in court;
- organization and procedural management of pre-trial investigation, resolution of other issues during criminal proceedings in accordance with the law, supervision of covert and other investigative and search actions of law enforcement agencies;
- representation of the interests of the state in court in exceptional cases and in accordance with the procedure established by law.
The Prosecutor's Office in Ukraine is headed by the Prosecutor General, who is appointed to the position and dismissed from the position by the President with the consent of the Verkhovna Rada (Article 131-1 of the Constitution).
On October 31, the former Prosecutor General Andrii Kostin was dismissed from this position (Presidential Decree No. 745/2024). The Verkhovna Rada approved this by its resolution No. 4041-IX of October 29, 2024. It is noteworthy that although according to the Fundamental Law, the early dismissal of this official should be carried out exclusively in cases and on grounds specified by the Constitution and law, no motives were given in their political decisions by the Parliament and the Guarantor of the Constitution. But in the context of this article, we are more interested not in the grounds of the decision, but in its legal consequences.
According to Part 3 of Article 9 of the Law “On Prosecutor’s Office”, in the absence of the Prosecutor General, his powers are exercised by the First Deputy, and if there is none, by one of the ordinary deputies.
A similar norm is contained in the Law of Ukraine No. 709/97-VR “On the Temporary Performance of Duties of Officials Appointed to a Position with the Consent of the Verkhovna Rada of Ukraine by the President of Ukraine or the Verkhovna Rada of Ukraine upon the Submission of the President of Ukraine”. However, this law specifies that, firstly, this deputy must be “appointed by a constitutionally legitimate person”, and secondly, the temporary performance of duties is limited to a term: “no more than one month”.
For more than a month, in December 2024, the Acting Prosecutor General remains Oleksii Khomenko, who exercises the powers of the Prosecutor General beyond the established terms, thereby discrediting the work of the “reformed” Prosecutor General’s Office without complying with the direct requirements of the law.
Having carefully investigated this issue, it was established that the First Deputy Prosecutor General, referring to the aforementioned law and the Decree on the dismissal of the Prosecutor General, issued Order No. 1381ts dated October 31, 2024, according to which he began to perform the duties of the head.
When the one-month period expired and a new Prosecutor General was not appointed, the Acting Prosecutor General without any reasons decided to continue to temporarily perform duties, directly violating the requirements of the Law of the country No. 709/97-VR “On the Temporary Performance of Duties of Officials Appointed to a Position with the Consent of the Verkhovna Rada of Ukraine by the President of Ukraine or the Verkhovna Rada of Ukraine upon the Submission of the President of Ukraine”. And although the relevant Order of November 29, 2024 No. 1454ts does not mention this, it is obvious that now the “appointment” took place for an indefinite period.
On December 2, the Acting Prosecutor General, whose term of office expired under Law No. 709/97-VR, issued Order No. 293 “On the distribution of duties between the management of the Prosecutor General’s Office”.
When issuing the Order on October 31, 2024, the First Deputy Prosecutor General was clearly aware of the requirements of the aforementioned law and the period during which the powers of the Acting Prosecutor General may be exercised. But the issuance of Orders and subsequent conscious actions to arbitrarily assign powers of authority are clearly socially dangerous.
Powerful continuity
What do the Prosecutor General's Office itself think about this - we asked in a request for public information. And in addition to the texts of the above-mentioned orders, we were also provided with a justification for the violation of the law's requirement regarding the maximum monthly period of temporary performance of duties by Mr. Khomenko.
In particular, we were explained that in accordance with Article 10 of the Law "On the Legal Regime of Martial Law" the powers of the prosecutor's offices during the period of martial law cannot be terminated.
That is why, in view of "ensuring" the principle of continuity of the functioning of the prosecutor's office of Ukraine and the proper exercise of the powers of the Prosecutor General, defined by the Law, primarily in the conditions of the legal regime of martial law, the First Deputy continues to temporarily perform the duties of the Prosecutor General on the basis of his own order.
But we are not talking about the institution of the prosecutor's office, but about the institutional legal capacity of the head.
It turns out that the end justifies the means. When the powers have expired, you can extend them yourself, because... how else? Why are the decision-makers delaying the appointment of a legitimate Prosecutor General - apparently there is no worthy candidate who would suit everyone. And when they will fill the vacuum - it is not known at this time.
* * *
It seems that such a dubious state of affairs with the powers of the heads of the highest-level prosecutor's office is quite satisfactory to the leaders of our country. A legally dubious decision was made, agreed to and will be implemented. The delay in appointing a new Prosecutor General shows that political interests unfortunately dominate over institutional ones today.
Such actions, given the tasks of the prosecutor's office, may cast doubt on the legality of all subsequent decisions that will be signed by the leadership. Including those that affect the rights and legitimate interests of citizens within the framework of criminal proceedings.
Who we are: About us, Contacts. How we write news and our principles: Editorial code. We did our best. If you found this valuable – please support us.
To request a correction, please send an email.