PROSECUTOR'S OFFICE OF UKRAINE IN THE SYSTEM OF JUSTICE: NEW APPROACHES OBSERVING THE PRINCIPLE OF CONSTITUTIONAL FIDELITY

Abstract

From the perspective of achievements of modern doctrine of constitutionalism, in particular the principle of constitutional fidelity, the article is focused on the provisions of the new principles of Prosecutor’s Office organisation, arising from the amendments to the Constitution of Ukraine (Section “Justice”), as a justice promoting body. The article considers the vision of the Prosecutor’s Office functioning on an instance basis but not on a hierarchical one, which will enable it to exercise the procedural control in criminal proceedings and maintain the public prosecution in court more objectively and reasonably. Based on the functions of the prosecutor's office, its activities, according to the authors, should correspond to the organization of the judicial system. In view of this, the prosecutor's office should be organised on the instance basis, which will also help to ensure better access to justice and prompt decision by the court on the issue of granting or denying the prosecutor's requests to take pre-trial investigation measures. The article indicates the need to establish effective guarantees for the independence of the prosecutor and the inadmissibility of interference in his activity by the higher level prosecutor. In case such circumstances are found, perpetrators should be brought to justice. The authors also point out that the political procedure of declaring Parliament's no-confidence motion against the Prosecutor General does not contribute to ensure his impartiality and independence. Given the significant influence of the prosecutor's office on the judiciary, such procedure is unacceptable, while as a result it threatens the independence of the judiciary, since the influence of the executive and political forces, represented in parliament, leads to an imbalance in ensuring the equality of parties in the judicial process.