Conclusions based on the results of legal analysis of Law No. 4555-IX and draft law No. 13533

I. The analysis of this draft law allows us to conclude that the proposed norms generally return the legislation to the state that existed before the adoption of Law 4555-IX: the autonomy of the SAPO and NABU is restored, and the influence of the Prosecutor General on their procedural activities is reduced to an acceptable minimum; the fragile system of checks and balances in the anti-corruption architecture is restored; and the new ground for entering a person's possession without judicial control is abolished. This is evidenced by the following provisions of the Draft law:

1) The head of the SAPO regains the status of the head of the prosecutor's office in relations with SAPO prosecutors (Article 3 of the Criminal Procedure Code, CPC); 


2) The Prosecutor General is deprived of the right to issue mandatory written instructions to the NABU detectives and NABU internal control units regarding the provision of pre-trial investigation materials (Article 36 of the CPC);
 


3) The Head of the SAPO and his/her deputies regain the right to supplement, amend or withdraw an appeal or cassation appeal, application for review of a court decision due to newly discovered or exceptional circumstances submitted by them, heads, deputy heads of departments or prosecutors of the SAPO (Article 36 of the CPC);

4) The prohibition to entrust the pre-trial investigation of a criminal offense under the jurisdiction of the NABU to another pre-trial investigation body is restored, except in cases where there are objective circumstances that make it impossible for the NABU to function or conduct pre-trial investigation under martial law (Article 36 of the CPC);


5) The head of SAPO regains the right to assign NABU to investigate criminal offenses which originally are subject to the jurisdiction of other investigative bodies (Article 36 of the CPC);


6) The provision according to which the head of the SAPO could be appointed as a prosecutor exercising the powers of a prosecutor in a particular case only by the decision of the Prosecutor General, as well as the provision according to which in such cases these powers could be assigned to another prosecutor of the prosecution authorities by the decision of the Prosecutor General, is excluded (Article 37 of the CPC); 

7) The right of the Prosecutor General to entrust the pre-trial investigation of a criminal offense under the jurisdiction of the NABU to another pre-trial investigation body in case of failure of the head of the NABU unit to comply with the instructions and orders of the prosecutor is abolished (Article 39 of the CPC);
 


8) The provision according to which the detective unit, the operational and technical unit and the internal control unit of the NABU carry out investigative (detective) actions and covert investigative (detective) actions only upon written order of a detective or prosecutor of the SAPO is restored (abolishing this right for another prosecutor exercising the powers of a prosecutor in criminal proceedings) (Article 41 of the CPC);

9) The rule is restored whereby NABU detectives can investigate criminal offenses under the jurisdiction of other bodies, upon the decision of NABU Director and approval of SAPO prosecutor, but not the Prosecutor General (Article 216 of the CPC);


10) The exclusive right of the Prosecutor General to resolve disputes over jurisdiction in criminal proceedings involving NABU jurisdiction is abolished, and the rule is restored whereby such right is held not only by the Prosecutor General but also by the head of SAPO (Article 216 of the CPC);
 

11) The new ground for entering a person’s home or other possession before a court ruling – the need for urgent seizure or preservation of evidence related to specific crimes – is abolished (Article 233 of the CPC); 

12) The procedure under which participants in criminal proceedings related to criminal offenses committed by top officials have the right to file a petition directly to the Prosecutor General is canceled (Article 284 of the CPC);
 


13) The power of the Prosecutor General to approve plea deals with suspects or accused persons in criminal proceedings investigated by NABU detectives or forwarded to court by SAPO prosecutors is abolished (Article 470 of the CPC);
 


14) The extension of the list of persons subject to a special procedure of criminal proceedings, which requires, inter alia, that only the Prosecutor General notify such persons of the suspicion, is canceled (Articles 480, 481 of the CPC);
 


15) The status of the Prosecutor General as the senior prosecutor for department heads, section heads, and SAPO prosecutors is abolished (Article 8-1 of the Law “On the Prosecutor's Office”);

16) A new provision is introduced, according to which a NABU detective is required to comply only with the written orders and instructions of the SAPO prosecutor. Non-compliance with these instructions and orders is subject to legal responsibility and grounds for the detective’s removal from conducting the pre-trial investigation by the head of the investigative body (Article 40 of the CPC).

II. At the same time, some provisions of Draft law No. 13533 retain innovations introduced by Law No. 4555-IX, which enhance the role of the Prosecutor General in the prosecution system:

1) The Prosecutor General retains the right to issue mandatory written instructions regarding the provision of pre-trial investigation materials to heads of investigative bodies (except NABU);

2) The rule giving the Prosecutor General the exclusive right to resolve jurisdictional disputes in criminal proceedings that may fall under the jurisdiction of the Economic Security Bureau of Ukraine, ESBU (Article 218 of the CPC) is retained;

3) The dependence of lower-level prosecutors on the will and loyalty of higher-level prosecutors and the Prosecutor General, introduced by Law 4555-IX, is retained, primarily by introducing a new ground for dismissal - disagreement with the appointment to a vacant or temporarily vacant position due to changes in the structure or staffing, reorganization or liquidation of the prosecution body;


4) The possibility of non-competitive appointment of lower-level prosecutors to the positions of prosecutors of the Prosecutor General's Office and regional prosecutor's offices is retained (previously, the competition was mandatory and included an assessment of the prosecutor's professional level, experience, moral and business qualities and verification of his or her readiness to exercise powers in a higher-level prosecutor's office).                  

Among these provisions, the latter two raise concerns.

Firstly, the introduction of a new ground for dismissal of a prosecutor does not exclude cases when changes in the structure or staffing or reorganization of the prosecution body carried out by the Prosecutor General will be a disguised way of exerting influence on lower-level prosecutors and will contribute to the reduction of procedural independence of prosecutors.

It should be noted that the Constitutional Court of Ukraine in its decisions emphasized that the independence of prosecutors is not a prerogative or a privilege granted, but is a safeguard of fair, impartial and effective exercise of their powers (their activities); at the same time, the law should not grant the Prosecutor General discretionary powers without clearly defining their scope (CCU Decision No. 11-р(II)/2024 of December 18, 2024).

Second, the possibility of non-competitive appointment of prosecutors contradicts the basic principles of the organization of the prosecution service and undermines the progress made by Ukraine in ensuring that the procedure for holding the position of prosecutor is in line with international best practices. Finally, it contradicts the Rule of Law Roadmap, which defines a set of reforms within the framework of Ukraine's EU membership negotiations, according to which Ukraine has committed to ensure a more transparent and merit-based selection of prosecutors for managerial (administrative) positions in the Office of the Prosecutor General (head and deputy head of a unit), regional and district prosecutor's offices (head and deputy head of a prosecution body, a unit within it), which includes

• clear criteria for evaluating a candidate for a position, including professional competence and integrity;
• transparent, competitive and meritocratic selection procedure, including verification of professional competence and integrity;
• strengthening the institutional capacity and powers of the Office of the Prosecutor General and prosecutorial self-government bodies, in particular, the Council of Prosecutors of Ukraine, in terms of the selection of prosecutors for managerial (administrative) positions.

III. In addition, the Draft Law No. 13533 also provides for certain novelties - provisions that were absent in the legislation both before and after the adoption of Law 4555-IX. They can be viewed as a compromise between the restoration of the SAPO and NABU autonomy and the declared need to cleanse these bodies of potential agents of the aggressor state:

1) polygraph examinations of law enforcement officers (including NABU and SAPO) who have access to state secrets, on the subject of actions in favor of the aggressor state, which should be conducted by the relevant internal control units of these bodies at least once every two years;

2) within 6 months from the date of the Law's entry into force, the Security Service of Ukraine is obliged to conduct an inspection of law enforcement officers (including NABU and SAPO) who have access to state secrets to determine whether they have committed actions in favor of the aggressor state.


In general, these provisions do not raise any serious objections, as polygraph examinations are a well-established practice in the system of certain law enforcement agencies, and they will be carried out by the internal control units of these agencies (internal inspection). The Security Service of Ukraine's inspection of law enforcement officers will obviously take place within the existing powers of the security agencies, as the Draft Law does not provide for a different approach.

Conclusion: The Draft Law should be adopted as a whole in order to restore the procedural autonomy of the SAPO and the NABU as soon as possible.

The issue of determining the limits of prosecutors' independence and the procedure for holding their positions should be addressed by a separate legislative act.