U.S. Views on the Reform of the Prosecutor’s Office in Ukraine

Remarks by U.S. Ambassador to Ukraine John F. Tefft
At the Reform of the Prosecutor’s Office Roundtable Event
Thursday, May 17, 2012, 9:45a.m.
Kyiv Hotel

It is with great pleasure that I accepted today’s invitation to speak at this very important and distinguished forum examining the potential for reform of Ukraine’s prosecutorial services. Given Parliament’s recent passage of a new criminal procedure code – the goal of which is to establish a more adversarial system of justice — this subject is very timely. The success of your new criminal procedure code will, I predict, be measured by the degree to which it is effectively implemented. Such implementation will require open minds and receptivity to change in all institutions that make up your criminal justice system: the judiciary, the defense bar, criminal investigators, and the procuracy. And believe me, based on a 40-year career in governmental service, I fully recognize that it is no easy task to change the way governmental institutions do their business. But I also know, by experience, that such change is possible.

At the outset, I must tell you that I am not a lawyer – much less a prosecutor – and I have no formal legal training, but my father and daughter are attorneys and I am surrounded by lawyers at the Embassy. In addition, as a result of my career in the U.S. Foreign Service, particularly in Eastern Europe, I have truly come to appreciate the fundamental importance of the rule of law in making modern, successful democratic societies. Indeed, I would suggest that the overall health of any democratic society today is measurable by the extent to which it is governed by its own laws. People – citizens and noncitizens – must know that they have access to public justice when they believe they have been harmed. People suspected of crimes must believe that a system of laws is in place which ensures fair treatment and fair trials. People who consider committing crimes must know that will likely be caught and punished regardless of whether they are an ordinary citizen, a wealthy businessman, a law enforcement officer, or a high-level government official. Businesses must know that they will not be subject to arbitrary raiding attacks and that their legitimate contracts will be honored. All of these expectations should be met in a modern democratic society.

Prosecutors play a very central role in the creation and maintenance of the rule of law. One of the United States’ finest Supreme Court Justices, who also served as our Chief Prosecutor at the Nuremberg trials, Robert Jackson once observed that “the prosecutor has more control over life, liberty, and reputation than any other person in America.” The same could be said for all the countries in which I have worked. Prosecutors are and must be vested with a tremendous power in a criminal justice system: the power to marshal the state’s resources to publically accuse a fellow citizen of committing a criminal act, accompanied with the power to have that person brought to trial and potentially deprived of his liberty. Unrestrained, that power threatens to not only destroy the individuals against whom it is directed, but also to tear apart the very fabric of a democratic society – to destroy the peoples’ trust in the rule of law. However, when prosecutorial power is exercised responsibly, with systemic checks and balances, the power is simply one very important part in the engine of a fair system of justice.

The purpose of today’s roundtable is to discuss European standards and international experience in prosecutorial power, and specifically striking the right balance in a criminal justice system. As I say, I am not a legal expert, but as I look around I see that there are many experts here today ready to share their diverse experiences. This type of international dialogue brings value to all participants involved. While each country represented here seeks a justice system that meets its unique history and needs, I would like to offer a few observations of what I suspect will be common threads throughout your discussions.

First, prosecutors can and should be held to a higher standard of conduct than any other lawyer in the justice system. This is because the prosecutor is unlike any other advocate that comes before a court representing his client’s interests. The prosecutor represents the State, and more particularly the people of the State. As such, the prosecutor must not only seek to win convictions, but must also be responsible for assuring that procedural justice is achieved. In other words, it is the prosecutor’s duty to assure that all proceedings are fair. This obligation includes such things as assuring that the terms of your Criminal Procedure Code are respected and the defendant’s presumption of innocence is protected up until a judgment is rendered. All of the prosecutor’s ethical obligations should be, to the extent possible, described in a Code of Ethics and prosecutors should receive regular mandatory training on their obligations. Likewise, there must be a body that operates independently of prosecutors that investigates and adjudicates complaints of prosecutorial misconduct. When the misconduct rises to the level of a crime, a criminal investigation and prosecution should occur. I am sure you will hear about the U.S. Department of Justice system today, as well as how other countries handle complaints of misconduct.

Second, despite Constitutional restrictions, Ukraine’s prosecutors continue to exercise “general supervision” powers. This extraordinary power to perform supervisory functions outside of criminal proceeding has been the subject of Venice Commission criticism in the past. In order to meet your commitments to the Council of Europe and European values, this power ought to be eliminated in your reform efforts. General supervisory duties outside the criminal law are particularly dangerous in transitional democracies and emerging market economies. They are easily subject to political interference and when broad supervisory powers and particularly low salaries are combined they can form a dangerous mix. Elimination of general supervision will eliminate some corruption threats and improve your overall business climate.

Third, Ukraine currently employs approximately 14,000 public prosecutors. On a per capita basis, this is an extraordinarily high number of prosecutors. For instance, for every 100,000 residents, the countries of France, Italy, Spain and Germany have between 3 and 6 prosecutors. In Ukraine, the most recent information reflects approximately 21 prosecutors for every 100,000 residents. I am aware of no reasonable justification for maintaining this imbalance. Of course, employing a high number of prosecutors, in and of itself, is not necessarily a problem. However, when you combine a high number of prosecutors with low legitimate salaries, you create a ripe environment for corruption. Therefore, in reforming the procuracy, it would be wise to focus on assuring that all of your prosecutors receive substantial salary increases to reduce the threats of corruption and abuse of power. Whether that salary increase is funded by an overall reduction in prosecutors or some other means is a decision for Ukraine’s policy makers.

The procuracy is a cornerstone of your adversarial criminal justice system. In part, your new Criminal Procedure Code contains restrictions that will, if implemented, provide a check against abuse of prosecutorial power. However, effective reform must go beyond your criminal procedure code. Ukraine’s criminal justice system has never received the international attention that it does today. I urge you to choose a path of reform that protects the human rights of all Ukrainians, reduces corruption threats and meets your international commitments to reform your procuracy. I wish you the best in today’s roundtable discussion.

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