A speech of the Executive Committee member of the International Association of Prosecutors Oleksandr Shynalskyi The 6th Regional Conference of the IAP for Central and Eastern Europe and Central Asia “The Role of Prosecution in Assuring Legal Compliance outside the Criminal Justice Arena” Astana, the Republic of Kazakhstan (4-6 October, 2011)

    A question of prosecution in assuring legal compliance outside the criminal justice arena has been often brought up for discussion during last years all over the world. The reasons of such a discussion could be different, and this question is discussed by different groups of people, not only by prosecutors. The theme of the extrajudicial activities of prosecutors is talked over from the different aspects not only at the various prosecutors’ forums but also in the subdivisions of UNO and the Council of Europe. For example, Venice Commission expresses quite specifically its opinion as for the possibility of prosecutors’ activity outside the criminal justice area. We, the international prosecutors’ community, also have different points of view about such activity of the public prosecution bodies.

    A part of our colleagues (and I should say, a big one) treats prosecutors’ activity outside the criminal justice area with an interest, and sometimes with a lack of understanding. And in the first place it can be explained by that fact that this part of our colleagues has never worked in this area.

   Another part of the prosecutors’ community talks about the necessity of such an activity and advance arguments in the form of concrete facts and figures confirming this necessity for a society.

   And there is such a part of our colleagues who by virtue of the national legislation’s amendment have completely or partly discontinued this activity. Now they persist in their opinion about necessity of total closure of such prosecutors’ activity.

   Each of these parts of the international prosecutors’ community has argument for its viewpoint defense. And although an ancient proverb says “thought thrives on conflict”, I deeply believe that argument in this case cannot identify which of the parts is right because it is talked of the state organ of the particular country.

  In the first place it means that a procuracy in the particular state acts in accordance with this state law. And if the legislation of this state enjoins a prosecutor to operate outside the criminal justice area, he must do this. If national legislation makes no provision for such an activity, naturally a prosecutor does not operate in this area.

  I deeply believe that the most important factor of this or that activity implementation is a civil society’s demand for such an activity. Unfortunately, this demand or lack of demand not always coincides with live actuals as well as with the viewpoint of public organs. I will proceed with this idea a bit later.

  And now, as a person who worked for 25 years in the public prosecution bodies and as a prosecutor who was acting for almost all these 25 years outside the criminal justice area, I would like to express my point of view concerning the matter in question. Initially I should say that this is my personal point of view which may seem strange or wrong. And although as I have already said thought does not thrives on this conflict, we all here have gathered in order to hear different opinions and, maybe, look at this issue from the other standpoint and from the other perspective.

  Firstly I would like to say that I have a profound respect for our colleagues’ activity results in supervision of observance of laws.

  These are hundreds of thousands of citizens whose rights were protected. These are millions and billions of money returned to the state. Everything we have head and will hear about during the conference is a result of the work of our colleagues from different countries. And it is worthy of special mention. Moreover this is just that very argument in favour of the opinion that prosecutors’ activity outside the criminal justice area is necessary and reasonable.

  The public authority, in this case it is a public prosecutor's office, accomplishing duties entrusted by the law, has protected civic rights and national interest. I am not sure that somebody of our colleagues who does not exercise such an activity or denies such an activity will say that this is bad. Actually figures and facts are difficult things to argue with. To my mind there is no need to argue. As I have already said there is a law which instructs specific state body to discharge specific obligations. And this body must discharge them.

  But let us look at these issues, including results of prosecutor’s activity in the extrajudicial sphere, from the other perspective. I will operate with data of activity of the public prosecution bodies of Ukraine and I suppose that common tendencies (I do not mean concrete figures) are typical for all the countries of the former USSR the prosecutors of which operate outside the criminal justice area.

  Statistical data, characterizing work of the public prosecution bodies of Ukraine in supervision of observance of civic rights and freedoms and protection of national interest, show that the prosecutors, from year to year stepping their efforts in this area, detect a great number of breaches of law and crimes, institute different criminal proceedings against guilty persons, repair damage caused to the state.

   So, according to the results of the prosecutor’s inspection in 2008 15 thousand criminal proceedings were begun, 121 thousand people were made accountable; about 3 billion hryvnas of damage were repaired.

   In 2009 – 15500 criminal proceedings, 123 thousand people were made accountable, damage were repaired to the sum of 3.5 billion hryvnas.

    In 2010 - 14300 criminal proceedings, 119 thousand people were made accountable, damage were repaired to the sum of 4.5 billion hryvnas.

   This is statistics that characterizes work of the public prosecution bodies of Ukraine at large during last 3 years outside the criminal justice area.

   I want to give some more figures illustrating this activity.

   In 2008 arrears of wages in Ukraine ran to 1.1 billion hryvnas. Responding to this civic rights abuse, prosecutors began 1.6 thousand criminal proceedings and compelled to pay off 882 million hryvnas of wages.

   In 2009 arrears of wages in Ukraine ran to 1.5 billion hryvnas. Prosecutors began 2.1 thousand criminal proceedings and compelled to pay off almost 1.3 billion hryvnas of arrears of wages.

  As of January 1, 2011, arrears of wages in Ukraine ran to 1.21 billion hryvnas and again prosecutors responded adequately to these civic rights violations.

   And a little bit more statistics.

   Supervising observance of laws in a fuel-energy complex, prosecutors pay their special attention to the payments for the consumed gas.
 

   Arrears in payments for gas grow from year to year: as for January 1 of 2009 – 5.4 billion hryvnas, as for January 1 of 2010 – 10.7 billion hryvnas, as for January 1 of 2011 – 16.6 billion hryvnas.

  Prosecutors’ activity in criminal proceedings institution, in running claims to the courts and making guilty persons accountable grew approximately in the same ratio.

  In other spheres of prosecutors’ supervision we can see almost the same quantity of crimes and measures of prosecutors’ response to them accordingly.

   I have made examples about paying off arrears of wages and recovery of gas debts because in these cases breaches of laws were registered not by the public prosecution bodies, but we got information about them from the organs of statistics.
The above mentioned facts rule out the possibility of speaking about growth or reduction of the quantity of crimes revealed by the prosecutors’ inspections. It means that these crimes really exist out of our intervention and influence.

   And now I would like to draw your attention to the following.

  Having received information about law breaches, prosecutors made inspections, began criminal proceedings, made guilty persons accountable and repaired damage. It means that acting within their commission our colleagues worked excellently and effectively. Is society satisfied with this work? I think it is.

   But let’s draw our attention to the initial figures. The amount of the arrears of wages grows from year to year. The amount of the arrears in payments for the consumed gas grows as well. We raise the effectiveness of the prosecutors’ activity, but quantity of the law breaches grows too. Isn’t it a paradox, is it? I am sure it is not!

   To my mind our activities do not influence and cannot influence the processes in the different spheres of economic and social life of our state. The arrears of wages arise not because an enterprise manager does not pay wages without any reason. And these arrears do not disappear because of the beginning of criminal proceedings by prosecutors. Problems in the national economy cannot be resolved by means of the prosecutors’ responding, and this is an objective reality. Accepting the function of the national economy problems resolving, soon we will fight with economic crises those have been enveloping our countries recently.

   It should be noted that an active and a hard work of prosecutors gives possibility to those who should directly resolve economic and social problems of the state, on the one part, to take credit for the exact same sums of repaired damage and the exact same quantity of civil rights restored, and simultaneously to write off for improper work of prosecutors the very increase of the arrears of wages an other economic and social problems.

   I think there is one more aspect of the problem of prosecutor’s inspecting of observance of laws in the different spheres of economic and social life of the state. In concordance with the Ukrainian legislation to become a public prosecution officer one should have a higher legal education. I am sure, my dear colleagues, that there are not any nuclear physicists, spaceship engineers, doctors, biologists and so on at the public prosecution bodies of your countries. I can agree that a prosecutor is able to inspect observance of housing legislation norms and labor laws standards (excepting industrial safety). But when it concerns spheres where special knowledge is required, an investigation officer or a court that act within the framework of the criminal procedure, they invite specialists. The order of involvement, actions and responsibility of such specialists are strictly regulated by the code of criminal procedure. And we, being outside the criminal procedure legislation, do in the same way. This could be compared with assignment of the jurist to the post of the head of atom nucleus research laboratory. Such a head would be able just to check in and out his people.

   I would like to provide an example that does not concern Ukraine but corresponds to our country practice in full.

   I am citing the newspaper “Izvestia” d.d. August 25, year 2011: “The Prosecutor General of Russian Federation ordered to inspect observance of laws during unsuccessful launches on “Baikonur”. Of course, this is the journalist’s wording, but if to look at all this by the eyes of the ordinary people, this is the essence of the inspection. And the average man thinks: “Wow! Our prosecutors are familiar with the spaceships”. As we can see from the massage on the web-site of the Prosecutor General’s Office of Russian Federation, according to the results of inspection 3 criminal proceedings were begun. But I would like also to cite the same newspaper and the words of Mr. Fadeev, the head of the Center of the earth space infrastructure objects operation: “We will certainly show and give them everything, and they will check everything too. But I do not quite understand these deeds sense. How will a prosecutor examine the crash occurred because of engine? There are only two subdivisions in our country where they are great on rocket jet engine. And here a jurist will study the question and decide the destiny of the specialist-technician. What will this jurist be guided by?”

   And now I would like to make a needed digression. In the independent states, the former republics of the USSR, where prosecutors continue to act outside the criminal justice area, such function was inherited from the Soviet Union and Russian Empire. Creating public prosecution organs in 1722 Peter the First entrusted a prosecutor in his name to supervise and to control permanently the activity of the Directing Senate and other central and local organs.

   During some periods a Prosecutor General played not only the role of the supervisory authority but also was a Minister of Finance, of Justice or a Minister for Internal Affairs. It means that the procuracy carried out functions defined by the sole head of state. Centuries passed and now we live not only in other states but in different societies and conditions. Long ago the functions of definition of the state organs’ tasks were undertaken by civil society in the person of representative structures. The whole word has already embarked upon road of narrow specialization of the professionals. Even in our, juridical sphere, not common jurists win but specialists in some specific branch of law. And only a prosecutor remains a universalist who has a good grasp of all branches of law as well as of the jet engine. I would compare prosecutors with doctors. But doctors treat certain people, while we are called not only to help certain people but the whole society. The difference is that when fallen ill a person consults the concrete doctor: oculist, cardio surgeon, etc. Can we, jurists-prosecutors, provide such an expert help to the society? Or should it be done by another state authority? There is no doubt that this question should be answered by the society only.

   The society, permitting a prosecutor to act outside the criminal justice area, the area where his actions will not be strictly regulated by the norms of the criminal procedure legislation, evidently proceeds from the fact that such prosecutors’ activity is useful and necessary.

   And initially it is supposed that this work will be done by the universal jurists of the highest proficiency level, by the independent people with high moral principles.

   However it should be remembered that all people make mistakes. And the prosecutors, especially those who operate outside the law of criminal procedure are not insured for mistakes too. The incorrectly introduced order that, as we know, is due to be carried out without delay, could not restore abused rights but also worsen the situation.

   And if a mistake was made of set purpose? The instruments of production which society gives to a prosecutor could be used in different ways. With the help of a knife and an awl a shoemaker can sew boots, but with the same instruments one can kill a man. Corruption risks in operating outside the criminal justice area increase manifold.

   In Ukraine the society in the person of the highest legislative body, the Verkhovna Rada, in 1996 has already decided to deliver the public prosecution bodies from the function of supervision of observance and application of laws.

   Moreover, understanding that it needs time to delegate these authorities to the other bodies, in the p. 9 of the transitional provisions of the Constitution of Ukraine the legislators wrote that “the procuracy continues to exercise, in accordance with the laws in force, the function of supervision over the observance and application of laws until the laws regulating the activity of state bodies in regard to the control over the observance of laws are put into force”.

   I do not know if it is good to say but unfortunately this article of the transitional provisions remains valid even today. It means that such laws have not been enacted after 15 years.

   The opinion of society is obvious too. The society is sure that the control of the observance of laws in particular area is a duty of professionals in this area.

   There is one more aspect of the prosecutor’s activity outside the criminal justice area. There is no doubt that all of us see a prosecutor as an independent representative of the state power who works on his own, follows the law and obeys it. And it is fully in accord with reality when a prosecutor acts within the code of criminal procedure. These actions are strictly regulated. I do not think that in a civilized country some representative of the executive or legislative authority could (in any case, not in public) instruct a prosecutor to involve somebody as a defendant or indicate what kind of punitive measure to propose in the court.

   Does always a prosecutor with the authority of the law make decision to inspect the observance of laws? How often do we hear: “The Prosecutor General was charged to…”?

   I think we hear it not as often as it happens indeed. Is a prosecutor really independent acting outside the criminal justice area?

   And how impartial are the prosecutor’s decisions according to the results of inspections? And isn’t it one of the reasons of the increase of the law breaches detected and the quantity of the prosecutors’ response?

   I pay a tribute of the deep respect to the colleagues who supervise the observance of laws, notably act, as the theme of the conference sounds, outside the criminal justice arena. It is difficult to overestimate the contribution that is made by the prosecutors in the sphere of the observance of the national laws. I ask not to consider my speech a call to refuse immediately from the activity outside the criminal justice area.

   My goal was to share my opinion with you, the opinion of the person who was engaged in the prosecution activity outside the criminal justice area for 25 years. And this opinion is just a request for discussion.