An EU shot across the Prosecutor General appointment bow

BY NIKOLAI HOLMOV 

A while ago an entry appeared regarding the submission of Draft Law 4379 that was unashamedly aimed at clearing a path for Yuri Lutensko to become Prosecutor General, and which by extension gave the President a robustly perceived control of the Prosecutor General’s Office despite the pretense of a non-PGO man leading the PGO.

This blog, having tipped Lutsenko to become Prosecutor General since October 2015 despite there being several far better candidates in terms of qualifications and perceived independence, looked on course to be proven right – unfortunately.

However, Draft Law 4379 has now been withdrawn by its author, the then MP and now First Vice Prime Minister Stepan Kubiv, and the EU via European Commissioner for Neighbourhood Policy, Mr Johannes Hahn has made very clear when reading between the lines that Yuri Lutsenko simply will not do.

“The Government and the President should ensure the appointment of an independent and focused on the reform of the public prosecutor and to conduct a thorough reform of the Prosecutor General’s Office.

We expect that the Attorney General will be the person who is familiar with the legal issues and has experience in legal practice.”

It remains to be seen whether Draft Law 4379 is resubmitted after a little tinkering, but ultimately still clearing a path for Yuri Lutkensko to circumvent existing barriers to his appointment – or not.

Nevertheless, whatever tinkering there may be, it will not magically conjure up “experience in legal practice” any more than it will “ensure the appointment of an independent“.  A European shot across the appointment of the next Prosecutor General bow has clearly been fired.

There is perhaps a need for a little legislative tinkering anyway, if that tinkering allows for those of legal qualification and experience to lead the PGO without necessarily having any internal experience of the PGO as an institution.  Currently the law on the Prosecutor’s Office states “the Prosecutor General of Ukraine must be a citizen of Ukraine, who has work experience as a prosecutor for not less than 5 years.”  Article 27 therefore only prolongs corrupt leadership from an incestuous institutional cesspit.

A reader my rightly ponder why such an unnecessarily restrictive Article exists that theoretically would prevent a judge of 20 years on the bench yet with no PGO experience from becoming Prosecutor General – or a practicing lawyer of “x years” experience for example.

The appointment of any of those currently holding senior office within the Prosecutor General’s Office will clearly not bring about “a thorough reform of the Prosecutor General’s Office“.  By way of example of the nefarious deeds and schemes of the current PGO management, the illegitimate appointment of Nikolai Stoyanov as Odessa Prosecutor for the 17 days he was unlawfully in office as the Regional Prosecutor managed to accomplish the minimum requirements of his short tenure – the closure of many prickly and unwanted investigations/cases into vested interests previously opened by Davit Sakvarelidze.

Arguably Mr Lutsenko would be/would have been a marginally better appointment than one from among the inbreeds of the PGO elite – but the choice should not be between one of removing an eye with a spoon rather than removing an eye a fork when it is entirely possible to avoid removing an eye.  There are some decent candidates that meet the requirements of Ukrainian civil society, the domestic constituency, and the parameters of Mr Hahn’s comments.

Unfortunately, President Poroshenko doesn’t have the will to appoint a truly independent, reform orientated, qualified candidate with unquestioned integrity – of which there are several.  If he had such a will, Yuri Lutsenko and legislative changes to facilitate his appointment would not have been considered and instigated in the first place.  President Poroshenko clearly wants to retain control over the Prosecutor’s Office – as have all previous presidents for reasons of selective and arbitrary coercive power.

In short, “here is my offender, now go and find me his crime”, or “he is (now) my man, there was no crime” in true Homo Sovieticus rule by law methodology.

Commissioner Hahn has positioned himself (and the EU) very much in line with Ukrainian civil society, much of the wider domestic constituency, and the majority of right-thinking civilised people – all of whom await a clear indication of whether a real reform path will be taken – or not.

If this shot across the Prosecutor General appointment bow is unambiguously linked to further and significant funding, then the presidential promise of a swiftly appointed Prosecutor General seems unlikely to happen as Mr Poroshenko is then forced to scramble about seeking his least worst option – in the meantime either leaving in place the current cancerous acting PGO leadership, or possibly the “temporary” appointment of an “acting” Yuri Lutsenko (therefore perhaps circumventing the existing legislation that applies to appointed Prosecutor Generals) pending a permanent appointment that may now be some way off.

The theatre of nominating individuals that would meet domestic and external expectations, to then find a mysterious lack of votes within the Verkhovna Rada can be orchestrated, and these scenes played out for quite some time with several decent candidates – particularly as the Ukrainian finances currently allow for a few months of dallying.

Likewise a delaying selection process upon which there can be a deliberate lack of agreement injected via panel selection is an option.

Hopefully this matter will not sink so low as to engage in such gross a misuse of procedures to be acted out within the theatre of the absurd (Verkhovna Rada) or without in any “independent” selection process – but the PGO and control over it has been, and remains, a significant coercive lever of power for any Ukrainian President.  To prise that lever of power from the hand of the current President will be no more easy a task than it would have been with his predecessors.  To prevent the next incumbent attempting to seize control over the PGO will be equally difficult too.

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