The system of prosecutor’s offices in Ukraine is complementary to the pre-trial investigation bodies. Their functions are related to supporting public prosecution in court, organisation and procedural oversight in criminal investigations, coordination of the investigative authorities’ activities aimed at discovering, documenting and investigating crimes and representing the interests of people or the state in court[357]. Until 2019, when the State Bureau of Investigation was launched, they had also been conducting pre-trial investigations[358]. The prosecution system is organised on a basis of territorial jurisdiction: local district public prosecutor's office, regional prosecutor’s offices, and the Office of the Prosecutor General’s Office as the highest body[359].
In 2019–2020, a large-scale reform of prosecutorial bodies took place. It included the disbandment of military prosecutor's offices, attestation of prosecutors at all levels, reduction of the number of prosecutors by 5,000, and selection of new prosecutors at all levels[360]. The reform was carried out in several phases, but this period dramatically changed the specialisation of prosecutors' offices in prosecuting crimes related to the armed conflict as the practice of former military prosecutors became the responsibility of other units within the system.
Before Russia’s full-scale invasion of Ukraine, the main burden of investigating grave international crimes was placed on the prosecutor's offices in the regions affected by the armed conflict (Donetsk Regional Prosecutor's Office, Luhansk Regional Prosecutor’s Office[361], and the Prosecutor's Office of the Autonomous Republic of Crimea and the city of Sevastopol[362]), as well as on specific units within the OPG[363]. In October 2019, the Prosecutor General of Ukraine issued an order establishing the Department for the Supervision of Criminal Proceedings in Crimes Committed in the Context of Armed Conflict (hereinafter, the Department) within the Office of the Prosecutor General of Ukraine. De facto, it became the first separate dedicated entity at the highest level of the prosecutor’s office where all conflict-related cases were accumulated, including the alleged crimes committed both in the Crimean Peninsula and in certain districts of Donetsk and Luhansk regions. The Department’s work was separated from the related structural units within the OPG, which were responsible for supervising criminal proceedings investigated by the Security Service of Ukraine and the National Police of Ukraine and facilitate international legal cooperation[364].
Following 24 February 2022, the internal structure of the public prosecutor's offices sought to adapt to new challenges. It was the “War’s Department” that had to organise the work of the regional and district prosecutor's offices in conflict-affected regions. The scale of events across all regions of Ukraine called for a swift and coordinated response not only from the prosecution authorities but also from pre-trial investigation bodies. Hence, the Office of the Prosecutor General and its decisions received heightened attention. The scope of OPG powers and its coordinating role in a large number of criminal proceedings required it to define benchmarks and markers for the overall work on the consequences of the armed conflict, as well as priority steps for investigators and prosecutors on the ground. But changes within the system are still in progress:
- Since May 2022, the Department has undergone structural changes[365] in respect of both staff and internal structure. The staff that was recruited had no previous experience of prosecuting grave international crimes and or started to obtain it only following the full-scale invasion[366].
In September 2022, the Department expanded to include a new unit for procedural oversight in pre-trial investigation and public prosecution in criminal proceedings for crimes related to sexual violence[367]. A dedicated department was also set up to conduct procedural oversight in criminal proceedings concerning the crime of genocide and incitement to it. Furthermore, collaboration with the JIT necessitated the creation of a specialised relevant unit within the Department working on joint investigations. Overall, during the two years of the active conflict, the Department's staff has grown to more than 100 employees. At this stage, it is hard to say whether there will be no additional changes to its structure. In particular, in 2024, the practice of filling its structure with procedural guidance departments with a thematic focus continued: the first focuses on crimes committed against cultural heritage, and the second on investigating crimes committed by the Ukrainian military.
- Since 24 February 2022, various units within the OPG tried to demonstrate their active participation in investigating the consequences of the armed conflict. The relevant proceedings have become the focus of the work of various OPG departments that oversee, in particular, security agencies, the National Police of Ukraine, the SBI, as well as the Specialised Environmental Prosecutor's Office and the Department for the Protection of Children’s Interests.
The internal allocation of responsibilities within the prosecution system makes it possible for other structural units to examine the certain elements of the armed conflict, thus this responsibility is not limited War Crimes Department[368]. However, it does place an additional responsibility on the Department to coordinate with other OPG units and is required to establish effective communication with them.
- A dedicated unit has been established within the Department of International Legal Cooperation within the OPG specifically to facilitate collaboration with the International Criminal Court. Its task is to implement the provisions of the criminal procedure law and coordinate all communication with the ICC during its work in Ukraine[369]. In 2023 following the decision of the prosecutor General these functions were attributed to the Department of International Legal Cooperation[370]. Presently the War Crimes Department executes only certain OTP requests which concern undertaking certain investigative steps in criminal proceedings which the prosecutors of the Department are responsible for.
- The OPG also established a Coordination Centre for Victims and Witnesses Support (hereinafter - the Centre). The task of the Centre is to offer the victims and witnesses of the alleged grave crimes comprehensive informational support at all stages of criminal proceedings, coordinate the provision of legal, psychological, medical, and social assistance by the relevant services and non-governmental organisations, and to take necessary steps to prevent retraumatisation[371].
The Centre is expected to focus on communicating with victims in the context of their participation in criminal proceedings. Yet, the question of providing mechanisms for their protection remains open. In addition, the regulations and other statutory documents have not been adopted yet therefore, its powers, functions, and basis for engagement with other departments within the OPG, investigative authorities and courts remain unknown.
- Also, some representatives of the War Crimes Department the Department of International Legal Cooperation and Investigators of the Main Investigative Department of SSU make up the Ukrainian team at the International Center for the Prosecution of Crime of Aggression against Ukraine;
- Donetsk and Luhansk Regional Public Prosecutor's Offices, as well as some district prosecutor’s offices in these regions, were forced to relocate due to ongoing hostilities in the area. In fact, these prosecutor’s offices have already been displaced twice since the onset of the armed conflict in Ukraine in 2014. This situation significantly affects the morale, social security, and safety of the prosecutors.
- Dedicated departments for the procedural oversight specifically in this category of criminal proceedings were established at the level of regional prosecutor’s offices most affected by the consequences of the armed conflict (Sumy, Chernihiv, Kyiv, Kharkiv, Zaporizhzhia, and Kherson regions)[372].
Throughout the entire history of the prosecution service in Ukraine, political will has been the main factor influencing their work. The process of appointing the Prosecutor General and his/her role in the system of power distribution determines his/her involvement in the relevant internal and external political processes. Consequently, government reshuffling or changes in political strategies result in replacement of a Prosecutor General[373]. Such decisions automatically lead to reassignments in administrative posts in prosecutor's offices at different levels and to changes in the structure of the prosecution service units[374]. In addition, the change of the Prosecutor General may be accompanied by public discussions that negatively affect the reputation and perception of the body as a whole[375].
This practice adversely affects the system's sustainability, consistency of approaches in criminal proceedings, and communication with lower-level prosecutor’s offices. In fact, in such conditions, it is impossible to build a stable structure and ensure that the resources invested in its development will not be devalued due to its weakening and possible subsequent changes. Currently, Prosecutor General is a presidential nominee, their candidacy must be supported by simple majority of Ukraine’s parliament[376]. Since 2019 Ukraine has changed a Prosecutor General three times, two of the PGs including those who held the Office during the full-scale invasion had no prosecutorial background. Each newly appointed PG also replaces his core team including deputies responsible for supervising the work of the departments, including a War Crimes Department. None of those who are currently holding supervisory positions have had an experience or background in investigating or prosecuting atrocity crimes. This is not to say that there is a lack of available prosecutors with the relevant background, however, as a general rule, they are not appointed to the positions of authority due to political reasons.
For instance, changes within the prosecution system also had implications for the work related to the armed conflict. In June 2021, the Department was removed from the jurisdiction of the supervising Deputy Prosecutor General and was directly subordinated to the Prosecutor General[377]. This decision caused outrage in civil society because the overall management of work related to the armed conflict requires specific knowledge of international standards, and the fact that it was motivated from politics rather than had valid reasoning[378].
Paragraph 11 of the Recommendation Rec (2000)19 to Member States on the Role of Public Prosecution in the Criminal Justice System of the Committee of Ministers of the Council of Europe stipulates that
‘States should take appropriate measures to ensure that public prosecutors are able to perform their professional duties and responsibilities without unjustified interference or unjustified exposure to civil, penal or other liability...’.[379].
The Explanatory Memorandum to the Recommendation explains that
‘there are two requirements for the proper functioning of Public Prosecution in all circumstances: on the one hand, public prosecutors must enjoy independence... and in particular to be able to act whatever interests at stake, “without unjustified interference” (unjustified, i.e. in cases other than those provided in the law)... On the other hand, there must be provision for public prosecutors—given the substantial powers they enjoy and the consequences that the exercise of those powers can have on individual liberties— to be made liable at disciplinary, administrative, civil and criminal level for their personal shortcomings, and such provision must be within reasonable limits in order not to encumber the system’[380].
Consultative Council of European Prosecutors, which was tasked with providing opinions on matters related to the implementation of the Recommendation, highlighted in Paragraph 15 of its Opinion that
‘“Independence” means that prosecutors are free from unlawful interference in the exercise of their duties to ensure full respect for and application of the law and the principle of the rule of law and that they are not subjected to any political pressure or unlawful influence of any kind’[381].
Documenting and examining the consequences of the armed conflict has become the main reason for active presence of the prosecution authorities in the public sphere, and, accordingly, an additional strengthening of the political role of the Prosecutor General, both domestically and internationally. In response to the public demand for coverage of events and their assessment, the official information channels of the OPG, along with the Prosecutor General's own social media pages, have become crucial sources for summaries about the investigations and prosecutions of conflict related violations and a source of information about the incidents of attacks. Information about the number of registered criminal offences, the outcomes of pre-trial investigations, and the number of affected individuals and critical infrastructure continue to be updated daily. After 24 February 2022, the War Crimes Department itself has paid much attention to maintaining an active role in the public sphere[382]. Presentation of this information has given the leadership of the prosecutor’s office additional opportunities to become an active voice reflecting the consequences of the war for international partners. As a result, the prosecutor's office has become more involved in representing the interests of national justice at various international platforms, such as the UN, PACE, Eurojust, the ICC, and the EU, and others.
Such active public presence puts into jeopardy independence and integrity of the investigations. Very often in order to demonstrate its active and important role in ensuring justice, representatives of the Office publish their opinions on social media and in the newspaper and TV interviews, thereby creating certain expectations among the population while investigations are still ongoing. Such an approach has two types of adverse consequences:
- Undue pressure of investigators and prosecutors working on a case to deliver certain results that might not be possible to deliver;
- If the promised results are not delivered general public’s distrust starts to build otherwise chasing an unattainable result adversely affects quality of investigation.
The national legislation of Ukraine, including the CPCU, also includes control over the effectiveness of criminal proceedings as one of the main functions of the prosecutor’s offices. In addition to direct procedural oversight and supporting public prosecution in court, senior-level prosecutor’s offices should provide guidance to their lower-level counterparts. However, in the context of armed conflict, this work also requires separate approaches to grave international crimes, which must be implemented at the level of pre-trial investigation bodies. Currently, the prosecution system should find effective ways to address several pressing challenges:
- inconsistency in the distribution of functions between structural units. The basic distribution of functions within the prosecution service depends on the tasks and jurisdiction over carrying out oversight. The situation within the prosecutor's office after 24 February 2022 has shown that having a dedicated unit for armed conflict does not necessarily prevent its functions from being duplicated by others. The speed with which changes can be made to the organisational structure and internal documents of the prosecution service does not guarantee a stable distribution of functions. Such an approach is also demonstrated by the Order of the Prosecutor General No 309, which defines general approaches to organisation of activities of the prosecutor's offices during criminal proceedings.
Despite its need to separate war crimes related offences as responsibility of the War Crimes Department, instead such investigations are also prosecuted by specialist ecological department or others[383]. Specifically, a risk remains that specialisation in grave international crimes may be transferred to units that provide procedural oversight for security agencies, given that the jurisdiction over such proceedings remains with the Security Service of Ukraine. Until a sustainable approach to the structure of the War Crimes Department is ensured, implementing strategic approaches in practice has proved exceptionally challenging.
- backlogged system due to documenting the consequences of the armed conflict by registering criminal proceedings - recording in the Unified Register of Pretrial Investigations remains the only mechanism to formally document consequences of the armed conflict. After 24 February 2022, due to a large number of violations, hundreds of criminal investigations under Article 438 of the Criminal Code of Ukraine continue to be opened every day, regardless of whether the acts committed actually constitute such a crime. In addition, the constant updating of statistical data on their number their public coverage on the resources of the OPG turned them into information portals[384].
In fact, this process has replaced the documentation mechanism which currently does not exist at the state level. Using the provisions of Article 214 of the CPCU[385] and formal elements of criminal offences arising from the armed conflict, the URPTI has become a daily summary of events. This approach does not streamline the investigation, but rather overloads the investigative and prosecutorial authorities with procedural obligations, thereby unnecessarily complicating any comprehensive analysis of the events.
- lack of a unified investigative strategy and uncertainty of priorities in the investigation. Given the duration of the armed conflict in Ukraine and the significant number of registered criminal offences, their investigation requires the introduction of unified approaches and systematisation of information within the investigations. The scale of the consequences of the armed conflict requires both the consideration of international standards when investigating and qualifying the committed acts, and also proper coordination among all participants in the proceedings. Given the functions of the prosecutor's office, this duty remains within its area of responsibility. In 2023, the OPG adopted several documents outlining unified approaches to prosecuting this category of cases. These include the strategy for working with victims[386] and the strategic plan for the prosecution of international crimes for 2023–2025[387].
While these documents may be a good starting point, unless they include practical implementation mechanisms both would be of little or no use. They would be the most complex part to implement because they would require reassessment of the entire system and most importantly answering a question of whether it is fit for purpose as well significant changes to the existing legislation in a comprehensive and holistic manner rather than using an ad-hoc, fragmented approach[388].
- deprioritisation of the consequences of the armed conflict on the territory of Ukraine prior to the full-scale invasion. In coordinating the work of regional public prosecutor’s offices, the War Crimes Department itself shifted its focus exclusively to the consequences of events after 24 February 2022, leaving aside the consequences of the armed conflict in Crimea and Donbas since 2014. Nonetheless, the degree of independence of individual structural units of the prosecutor's offices allows them to move independently in this direction. This applies primarily to regional public prosecutor's offices, which are responsible for investigating these events. In particular, the ARC Prosecutor’s Office continues to implement its own strategy of work under the temporary occupation of the Crimean Peninsula, operating within its own jurisdiction[389].
- lack of qualified personnel. After 2014, the demand for training in international law among prosecutors remained high. Before 24 February 2022, the need primarily came from bodies operating in certain districts in Donetsk and Luhansk regions, the Crimean Peninsula, and specialised units at the highest level of the prosecution system.
After the full-scale invasion, absolutely all prosecutors at all levels felt the need to acquire basic knowledge of international humanitarian law and international criminal law. While some international and national organisations provide training for prosecutors in individual prosecutor's offices, the need still remains. Among the array of available training programs at the national level, as well as training opportunities abroad, it is the responsibility of heads of structural units to send prosecutors to such trainings.
As a result, an approach to assembling teams sent to attend a training may be selective and based on various reasons - there is no specific criterion or selection mechanism over who should be prioritised and how relevant certain aspects to their work. At the same time, the system of in-service training remains the main source of knowledge gaining for prosecutors. International humanitarian law was added to the list of topics, but the official format is not sufficient to accommodate everyone interested in attending in a short time[390]. Additionally, availability of qualified trainers who are able to work with prosecutors remains relevant. While national training programmes are based on national legal practice, which lacks components on the international law standards. International programmes are detached from real domestic context and due to a language barrier very often lost in translation. Naturally there is a lack of standardised approach to knowledge sharing and application and as a result prosecutors get different quality of knowledge and skills which directly affects the quality and consistency of their work.
Stability in the functioning of the system and the availability of clear strategic approaches affect the effectiveness of work of the prosecution service. Continuous and inconsistent changes in the War Crimes Department and other units engaged in investigating the consequences of the armed conflict have resulted in an outflow of professional staff with experience. Instead, the change and expansion of the Department’s staffing structure and the selection process for vacant positions have generated a new demand for training of prosecutors in international humanitarian law and international criminal law.
As of yet, no unified approach has been presented for handling the tens of thousands of recorded criminal offences in the context of the armed conflict, and this number continues to grow daily. Rather than assessing its own resources and the capacity of the national justice system to investigate grave international crimes to identify and effectively respond to the challenges, the public position of the prosecutor's office is often declared to the effect that while prosecutors and investigators need assistance in certain specific aspects of the investigations, the system has enough capacity to tackle the vast majority.
However, the existing limitations in the legislative, structural and resource related aspects (for example, the level of salaries of the prosecutors remains outside of the scope of priorities when the state budget is formed every year as opposed to that of the investigators and judges. This affects motivation of the staff, the human resources turnover and stability of the system as a whole), lack of quality control systems in place, political dependence all indicate that there are serious capacity issues that will not be resolved with inconsistent ad-hoc solutions[391].
