Legal Status of the Prosecutor’s Office in Ukraine

The scientific article is devoted to the study of the legal status of the Prosecutor’s Office in Ukraine in the context of the development of judicial reform. The historical development of the Prosecutor’s Office during the independence of Ukraine, which was carried out by transforming from the Soviet model of “supervision service” to the model of the “prosecution service” established in Europe, is analyzed. The problems of determining the place of prosecutor’s office in the system of division of state power of Ukraine are investigated. The understanding of the prosecutor’s office as adjacent to the judicial authority of the legal institute is substantiated.The purpose and objectives of the prosecutor’s office, as well as the system of its functions, are described. The problems of functional appointment of the prosecutor’s office, as well as regulation of its functions are revealed. The system of prosecutor’s office is defined and its elements are characterized. The main links of the prosecutor’s office, as well as the division of prosecutors into territorial and specialized ones are investigated.


Introduction
At the present stage of development of the Ukrainian state, the institution of the prosecutor's office remains in an uncertain position. Inconsistent and unsystematic reforms, lack of a strategy for its prospective development have led to the destruction of the historically formed model of the prosecutor's office and hindered the formation of an adequate replacement that would meet the world's best practices and the needs of Ukrainian state-building. As a result, the prosecutor's office does not have a clear social purpose and does not meet the expectations of society, as evidenced by the extremely low level of public trust. In these conditions, there is a need to determine the mission and tasks, functions and powers of the prosecutor's office, its interaction with other state institutions, society and a person. This is due to the development of judicial and legal reform, as well as the need to harmonize the national model of the Prosecutor's Office of Ukraine with international standards in this area.
The issues of organization and functioning of the institution of the prosecutor's office in Ukraine were studied by such scientists as P.M. Karkach, M.V. Kosiuta, M.I. Mychko, M.V. Rudenko, V.V. Sukhonos and others. At the same time, the complete theoretical model of the institution of the prosecutor's office in the Ukrainian legal science has not yet been formulated. Therefore, the problems of the legal status of the prosecutor's office remain actual.
The purpose of this article is to research the problems of the legal status of the prosecutor's office in Ukraine by characterizing its mission and tasks, functions and system.

Development of the Prosecutor's Office in Independent Ukraine
After the collapse of the USSR, Ukraine inherited the "Soviet" model of the prosecutor's office, the main purpose of which was to supervise over the observance of law. This, in turn, was divided into certain types (areas) of prosecutorial supervision: the implementation of law by public administration bodies; by bodies of inquiry and preliminary investigation; when considering cases in courts; in places of pre-trial detention, etc. Thus, within the supervisory paradigm, the prosecutor's office ensured general (in some interpretations -"total") control over various spheres of legal relations, including the administration of justice. This power placed the prosecutor in the courtroom above both the counsel and the judge, in both theory and practice (Solomon and Folksong, 2000, р. 105). At the same time, the prosecutor's office did not belong to any of the branches of power, since the since the principle of state power division was not recognized in the socialist legal doctrine.
This model persisted in the period after the proclamation of Ukraine's independence, which was characterized, on the one hand, by the desire to build a rule of law state, democratization of public life and the transition to a market economy, and on the other hand, by political instability, continuous lawlessness and rapid increase in crime. Although the new realities required adequate changes, at the initial stage of judicial and legal reform in Ukraine, there was no clear program for reforming the institute of the prosecutor's office. This can explain the fact that the prosecutor's office of independent Ukraine for a long time retained the functional model of the Soviet prosecutor's office. Thus, in the original wording of the Law of Ukraine "On the Prosecutor's Office" adopted in 1991, the mission of the prosecutor's office was defined as the general supervision over the observance and correct application of laws, and the list of its functions mostly reproduced the provisions of the Soviet legislation.
This model was changed only with the adoption of the Constitution of Ukraine of 1996, according to Art. 121 of which the purpose of the prosecutor's office was to: 1) support the state prosecution in court; 2) represent the interests of a citizen or a state in court in cases determined by law; 3) supervise compliance with laws by bodies conducting operational-search activities, inquiries, pre-trial investigation; 4) supervise the observance of law in the execution of court decisions in criminal cases, as well as in the application of other measures of a compulsory nature related to the restriction of personal freedom of citizens, and in accordance with para. 9 of the Transitional Provisions -to supervise the observance and application of law and the function of preliminary investigation. It is significant that the relevant amendments to the Law of Ukraine "On the Prosecutor's Office" were made only in 2001, that is, 5 years after the change in the system of functions of the Prosecutor's Office by the Basic Law. Scientists consider them in the context of the so-called "Small Judicial Reform" of 2001, which provided for bringing the judiciary and other institutions in line with constitutional provisions (Khotynska-Nor, 2016, р. 8). This model of the prosecutor's office was transitional in nature and contradictory, since it extended its jurisdiction to a very wide range of legal relations, for the implementation of which the prosecutor's office did not have actual resources. It also combined supervisory and nonsupervisory activities, which created an internal conflict in the functional purpose of this institution.
At the same time, the driving force behind the reform of the prosecutor's office was not internal factors, but external influence, in particular, the recommendations of the Council of Europe addressed to Ukraine. Thus, in the Resolution on Honouring of obligations and commitments by Ukraine No. 1262No. (2001, PACE drew attention to the need for Ukraine to fulfill its obligations to transform the role and functions of the prosecutor's office. In this regard it called on the authorities to fully implement the reform of the prosecutor's office in accordance with the principles and standards of the European Council, aiming to abolish the supervisory functions of the prosecutor's office, which do not comply with the Constitution of Ukraine and threaten the independence of the judiciary. Similar calls were contained in PACE Resolutions No. 1346(2003), No. 1466(2005 . The subject of criticism was the preservation of supervisory powers of the prosecutor's office, authoritarian management style, excessive number of prosecutors, the spread of corruption among them, etc. Thus, Ukraine was required to limit the functional orientation of the prosecutor's office to the framework of criminal justice (Marochkin, 2011, p. 63), which led to a departure from the supervisory model. However, the Ukrainian authorities did not dare to completely abandon the latter, in particular due to significant corporate resistance from the prosecutor's office system, as well as the lack of an alternative mechanism for ensuring legality in the state.
The next stage of the development of the prosecutor's office took place in 2012-2016. The systemic reform of this institute was initiated with the adoption of the new Criminal Procedure Code of Ukraine in 2012, which provided for a significant strengthening of the role of the prosecutor in the criminal process. In 2014, a new Law of Ukraine "On the Prosecutor's Office" was adopted. It eliminated the function of "general supervision" by the prosecutor's office and limited its other powers outside the scope of criminal proceedings; a new procedure for staffing the prosecutor's office has been established; the prosecutor's office system was reformed, prosecutorial self-government organs were introduced, etc. During the Constitutional Reform on Justice of 2016, the institution of the prosecutor's office was reformed at the level of the Basic Law in accordance with the Law of Ukraine "On Amendments to the Constitution of Ukraine (regarding Justice)" of 02.06.2016. Section VII "The Prosecutor's Office" was excluded from the Constitution of Ukraine. Instead, the provisions devoted to the prosecutor's office were set out in a separate Article 131-1, included in Section VIII "Justice". At the same time, the system of functions of the prosecutor's office was transformed. The list of functions was limited and supervisory functions were abolished or changed.
However, these changes in the legislation were not synchronized among themselves. Therefore, today the problem of determining the prosecutor's office place in the system of separation of state powers, as well as the functional orientation of the prosecutor's office remains. For more than 5.5 years since the entry into force of the relevant amendments to the Constitution of Ukraine (September 30, 2016), other legislative acts have not gone through adjustments designed to regulate the new functions of the prosecutor's office, so these changes remain mostly formal. The main result of the reform was the change of the functional model of the Ukrainian prosecutor's office from supervisory to mainly accusative one, which, in turn, requires significant revision. This allows us to conclude that the reform of the Prosecutor's Office in Ukraine is inconsistent and incomplete and it is necessary to continue it.

Place of the Prosecutor's Office in the System of State Powers of Ukraine
The principle of separation of state powers, inherent in all democratic legal states, was accepted by Ukraine and enshrined in Art. 6 of the Constitution of Ukraine. According to this article, state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial. Therefore, the prosecutor's office had to find a place in the system of separation of state powers. However, the supervisory nature of its activities, inherited from the USSR, made it impossible to classify this institution as any branch of state powers, since it would provide for its excessive strengthening by weakening others. It would also create a "conflict of interest" of the prosecutor's office as a supervisory authority and the branch of government to which it could be attributed. This was reflected in the structure of the Constitution of Ukraine, where until 2016, separate Section VIII was devoted to the prosecutor's office. In search of the solution to this collision of powers separation, Ukrainian researchers proposed to attribute the prosecutor's office to the fourth branch of state powers -control and supervisory one (Tatsii, 1999, p. 29). However, such proposals were at odds with the classical concept of separation of powers. Thus, the preservation of the supervisory model of the prosecutor's office led to its independent and uncertain place in the system of separation of powers, which conflicted with the principles of building a democratic state governed by the rule of law.
The abolition of the supervisory functions of the prosecutor's office in 2014-2016 and expansion of its competence in the field of criminal justice created legal preconditions for the integration of the prosecutor's office into the judiciary branch of powers. As a result of the Constitutional Reform on Justice of 2016, the article devoted to the Prosecutor's Office was placed in Section VIII "Justice" of the Constitution of Ukraine. This decision testified to the approach of the prosecutor's office to the judiciary, but did not mean its full inclusion.
Today, the prosecutor's office of Ukraine has close ties with the judiciary: 1) The implementation of the functions of the prosecutor's office is connected with the courts. Thus, the functions of public prosecution and representation of the interests of the state are carried out in court proceedings, and the function of organization and procedural management of pre-trial investigation is under the control of the judiciary. 2) Similar bodies of professional self-government are provided for prosecutors and judges. In the prosecutor's office system, there are such bodies of prosecutorial self-government as the Council of Prosecutors of Ukraine and the All-Ukrainian Conference of Prosecutors of Ukraine, while in the judicial system, there are Meetings of judges, the Council of the Judges of Ukraine and the Congress of the Judges of Ukraine. The selection and transfer of prosecutors is carried out by a special body -the Qualification and Disciplinary Commission of Prosecutors, an analogue of the High Qualification Commission of Judges of Ukraine. For special training and advanced training of prosecutors, there is the Prosecutor`s Training Center of Ukraine, and the National School of Judges of Ukraine performs similar functions for judges. The highest disciplinary body for both judges and prosecutors in Ukraine is the High Council of Justice, although its activities are more relevant to judges. 3) The legal status of a prosecutor and a judge has some similar features. Most of all they concern the procedure for selecting candidates for the office, although for judges it is more difficult than for prosecutors. Also, similar grounds and procedures for their implementation are provided for bringing judges and prosecutors to disciplinary responsibility and dismissal from positions.
At the same time, there are a number of differences that impede the integration of the prosecutor's office into the judiciary: 1) Courts and prosecutors have independent tasks and implement them in various legal forms.
Most of the prosecutor's office activities are carried out outside of court proceedings and outside judicial control. Most prosecutors still perceive themselves not as part of the justice system, but as subjects with independent broad competence. 2) Differences in the state body system. The prosecutor's office is an independent centralized system that operates autonomously from the system of the judiciary and is not related to it in the organizational aspect. Prosecutors have their own self-government bodies and organizational support. The territorial organs of the prosecutor's office are located separately from judicial institutions and even sometimes exist in different administrative-territorial units. 3) Difference in the status of prosecutors and judges. Although there is much in common between prosecutors and judges, the differences prevail. This concerns higher requirements for judges, as well as increased guarantees of their independence. Prosecutors maintain a significant dependence on their supervisors, and the general management system in the prosecutor's office provides for a strict hierarchy and centralization inherent in executive authorities.
In addition, on the formal side, the prosecutor's office has not yet been defined as part of the judiciary, since Section VIII "Justice" of the Constitution of Ukraine concerns not only the judiciary, but also other institutions, in particular the bar and bodies of court decisions enforcement, that have independent legal status. The independent position of the prosecutor's office is also emphasized in the Law of Ukraine "On the Prosecutor's Office".
The President of Ukraine and the Verkhovna Rada of Ukraine have a significant influence on the prosecutor's office. In cooperation with each other they decide on the appointment and dismissal of the Prosecutor General. In addition, the Verkhovna Rada of Ukraine may express no confidence in the Prosecutor General, which results in his/her resignation from office. Since all prosecutors are subordinate to the Prosecutor General, and extremely broad powers are concentrated in the hands of the latter, there is a threat of political influence on the prosecutor's office system.
In view of this, at the present stage, the Prosecutor's Office of Ukraine can be considered a legal institution adjacent to the judiciary. According to the researchers, the reduced constitutional model of the prosecutor's office can be embedded as an independent structure in the system of the judiciary, on condition of a significant restructuring of judicial models (Bryntsev, 2010, p. 100). In our opinion, the next step of the prosecutor's office development should be in the direction of its further integration into the system of the judiciary.

Tasks and Functions of the Prosecutor's Office of Ukraine
The mission of the prosecutor's office is defined in Art. 1 of the Law of Ukraine "On the Prosecutor's Office" as the protection of human rights and freedoms, general interests of society and the state. At the same time, the Law does not specify which rights, freedoms or interests are subject to protection, as well as what this protection should be from. Thus, the purpose of the prosecutor's office is defined excessively widely, since it is formally responsible for "protecting everything from everything", and also implies the presence of a potential "conflict of interest" at its core. Such wording does allow to distinguish the purpose of the prosecutor's office from the purpose of other state bodies, and therefore, to outline the scope of its competence.
However, the functions assigned to the prosecutor's office allow us to determine its role. According to Part 1 Art. 131-1 of the Constitution of Ukraine, the Prosecutor's Office: 1) supports public prosecution in court; 2) carries out organization and procedural management of pre-trial investigation; resolution in accordance with the law of other issues during criminal proceedings; supervision of secret and other investigative and search actions of law enforcement bodies; 3) represents the interests of the state in court in exceptional cases and in the manner prescribed by law. The specified functions are fixed in Art. 131-1 of the Constitution of Ukraine. In addition, p. 9 of the Transitional Provisions of the Basic Law stipulates that the prosecutor's office continues to perform, in accordance with the current laws, the function of pre-trial investigation until the beginning of the functioning of the bodies to which the relevant functions will be transferred by law, as well as the function of supervising the observance of law in the execution of court decisions in criminal cases, when applying other measures of a compulsory nature related to the restriction of personal freedom of citizens -until the law on the creation of a double system of regular penitentiary inspections comes into force. This approach of the legislator to the definition of the functions of the prosecutor's office allows them to be divided into basic or permanent (Part 1 of Art. 131-1 of the Constitution of Ukraine) and transitional or temporary (para. 9 of the Transitional Regulations). The meaning of this division lies in the fact that the temporary functions of the prosecutor's office should be abolished, so in general, they do not affect the functional model of the prosecutor's office. For example, since 2019, the prosecutor's office has not performed the function of pre-trial investigation.
The functions of the prosecutor's office enshrined in the Constitution of Ukraine are not regulated at the level of sectoral legislation, which creates problems of their proper understanding and application. In general, the activities of the prosecutor's office are aimed at ensuring that the person guilty of a criminal offense is brought to criminal responsibility by carrying out procedural guidance of pre-trial investigation and public prosecution in court. The prosecutor's participation in criminal proceedings is mandatory. At the same time, in pre-trial criminal proceedings, the prosecutor has broad powers of an administrative nature, carrying out procedural guidance on the work of investigators and making all major decisions on the implementation of pre-trial investigation and the use of coercive measures under the supervision of an investigating judge. In court proceedings, the prosecutor is a party to the case, having a monopoly on public prosecution before the court. Therefore, the activities of the prosecutor's office are limited mainly to the sphere of criminal justice that meets international standards.
Outside of criminal justice, the prosecutor's office implements only the function of representing the interests of the state, which consists in the implementation by prosecutors in exceptional cases of procedural and other actions aimed at protecting the interests of unrecognized, disputed or violated interests of the state, in cases and by procedure established by law. First of all, it concerns the protection of these interests in court and while the execution of court decisions (Stefanchuk, 2016, p. 243). At the same time, the subject matter of the representation by the prosecutor of state interests is not clearly defined. This function is carried out only in exceptional cases -when the authorized subject of power is absent or not acting, and he/she can be replaced by a prosecutor. Therefore, this function is limited, does not correlate with the functional model of the body and has a number of organizational, procedural and material obstacles in its implementation.

The System of the Prosecutor's Office and the Organization of Its Work
The prosecutor's office system is a set of all prosecutor's offices that are formed and operate in Ukraine in order to perform the tasks of prosecutorial activity. The arrangement and unification of the prosecutor's offices into the system takes place by distributing functions and powers, establishing relationships between its elements, subordinate and coordinate relations between the prosecutor's offices of Ukraine.
The system of the Prosecutor's Office of Ukraine consists of: 1) Office of the Prosecutor General; 2) regional prosecutor's offices; 3) district prosecutor's offices; 4) Specialized Anti-Corruption Prosecutor's Office. If necessary, specialized prosecutor's offices can be formed by the decision of the Prosecutor General as a structural unit of the Office of the Prosecutor General, as regional prosecutor's offices, as a unit of the regional prosecutor's office, as district prosecutor's offices, or as a unit of the district prosecutor's office (Art. 7 of the Law of Ukraine "On the Prosecutor's Office"). From this we can conclude that the prosecutor's office system is divided into three links: Office of the Prosecutor General (the first link); regional prosecutor's offices; district prosecutor's offices (the third link), which differ in the subject matter of authority and competence.
The law establishes hierarchical subordination of the links of the prosecutor's office system: the Office of the Prosecutor General is a higher-level prosecutor's office for regional and district prosecutor's offices. The regional prosecutor's office is a higher-level prosecutor's office for district prosecutor's offices located within the administrative-territorial unit that falls under the territorial jurisdiction of the relevant regional prosecutor's office. The concept of "higher-level prosecutor's office" means that it is endowed with a broader functional and intra-organizational competence in relation to the lower-level prosecutor's office subordinated to it: it controls the actions and decisions of lower-level prosecutors, issues mandatory administrative acts for them, etc.
In addition, the prosecutor's office system consists of two subsystems: territorial and specialized prosecutor's offices. Territorial prosecutor's offices are regional (26) and district (185), and are formed taking into account the administrative-territorial division of Ukraine. Specialized prosecutor's offices are formed in accordance with a certain subject of authority. Specialized prosecutor's offices in Ukraine include: 1) Specialized Anti-Corruption Prosecutor's Office -its purpose is to carry out prosecutorial activities in connection with the most significant corruption offenses: procedural management of pre-trial investigations conducted by detectives of the National Anti-Corruption Bureau of Ukraine; public prosecution in these cases, as well as representing the interests of the state in court. This prosecutor's office has increased guarantees of independence and operates autonomously (Rudenko and Melnyk, 2016, p. 175). Formally, it operates as an independent structural unit of the Office of the Prosecutor General, but is organizationally and functionally separate from it. Its connection with the prosecutor's office system is ensured only through the person of the Prosecutor General, whose deputy is the head of the Specialized Anti-Corruption Prosecutor's Office. The structure of the Specialized Anti-Corruption Prosecutor's Office includes the central body and territorial branches, which are located in the same cities in which the territorial departments of the National Anti-Corruption Bureau of Ukraine are located.
2) Specialized prosecutor's offices in the military and defense sphere. They ensure the performance of the functions of the prosecutor's office and the powers of prosecutors regarding the Armed Forces of Ukraine and other military formations, enterprises of the defense complex, etc. They constitute a relatively separate subsystem of prosecutor's offices, headed by the Specialized Prosecutor's Office in the military and defense sphere (as a structural unit of the Office of the Prosecutor General). There are also specialized prosecutor's offices in the military and defense spheres of the Southern, Western, Central regions and joint forces (as regional ones), and 30 garrison prosecutor's offices subordinated to them (as district ones). 3) Specialized environmental prosecutor's offices carry out the functions of the prosecutor's office in criminal proceedings on criminal offenses in the field of environmental protection. These include the Specialized Environmental Prosecutor's Office, which operates as a Department of the Office of the Prosecutor General, as well as 25 specialized environmental prosecutor's offices acting as units of regional prosecutor's offices.
The highest body in the prosecutor's office system is the Office of the Prosecutor General. It organizes and coordinates the activities of all prosecutor's offices, ensures the proper functioning of the Unified Register of Pre-Trial Investigations and its conduct by pre-trial investigation bodies, determines a single procedure for reporting on the state of criminal unlawfulness and the work of the prosecutor in order to ensure the effective performance of the functions of the prosecutor's office, as well as manages state property objects which belong to the sphere of management (Art. 8 of the Law of Ukraine "On the Prosecutor's Office").
The Prosecutor General, who is appointed to the position and dismissed by the President of Ukraine with the consent of the Verkhovna Rada of Ukraine, heads the prosecutor's office system. The term of office of the Prosecutor General is six years without the right to hold office for two consecutive terms. Despite the fact that the term of office is enshrined at the level of the Constitution of Ukraine, the position of the Prosecutor General is extremely unstable, since 14 Prosecutor Generals have changed over 31 years of Ukraine's independence (20 people together with ones in an acting capacity of the Prosecutor General).
The total number of employees of the prosecutor's office is limited by law and is no more than 15,000 people, while the total number of prosecutors may not exceed 10,000 people. At the same time, the number of prosecutors is not established, since it has changed several times, and over the past 5 years has decreased from about 15,000 to about 8,000 prosecutors. The most significant reduction of the number of prosecutors occurred after the attempt of "personnel reset" in the prosecutor's office in 2019-2021, when all prosecutors who worked in the prosecutor's office system as of September 2019 could continue their work only if they successfully passed the certification. The attestation processes took place over two years, but as a result, the prosecutor's office faced a staff shortage, in connection with which the requirements for candidates for the position of prosecutor were reduced at the legislative level and the procedure for their selection was simplified.

Conclusions
During the period of Ukraine's independence, the prosecutor's office underwent a significant transformation from the Soviet model of the "legality supervision service" to the model of "prosecution service", established in Europe. However, the reform of the prosecutor's office in Ukraine has not yet been completed, in particular, the legislation on the prosecutor's office is not brought in line with the provisions of the Constitution of Ukraine regarding its functions. Therefore, Ukrainian prosecutor's office retains the negative qualities of the transition model, which does not allow to clearly define its purpose and effectively perform the functions assigned to it. The prosecutor's office does not fully belong to any of the branches of state power, but most of all tends to the judiciary, in connection with which it can be considered as a related institution of the judiciary. The functions of the prosecutor's office are mainly concentrated in the field of criminal justice, but at the same time the prosecutor's office is authorized to represent the interests of the state in other types of proceedings. Transitional functions of a supervisory nature are also preserved. The prosecutor's office system is strictly hierarchical and centralized, as well as too bureaucratic. The number of prosecutors is limited by law, but it is far from optimal. In view of this, the reform processes of the Prosecutor's Office of Ukraine should continue in order to bring it in line with international standards.

International legal documents
Honouring of obligations and commitments by Ukraine:

National legal acts of Ukraine
Constitution of Ukraine (1996).