Under the supervision of the
Programme Manager and in coordination with the partners (the OPG, EUAM) the Specialist
on Disciplinary Actions and Ethics in Prosecution (hereinafter - Consultant) will be responsible for providing the following
deliverables.
1.
Analysis
of the current state of play on observation of standards of disciplinary
actions for prosecutors in Ukraine.
As the main
deliverable for this stage, the Consultant will provide practical advice to the
OPG in the process of developing a permanent disciplinary procedure. Recommendations of the analytical reports on disciplinary
proceedings developed by other partners should be taken into consideration.
Special attention
should be paid to recommendations of the GRECO Fourth Evaluation Report[1] (including
GRECO report of 2020, if available) and the status of their implementation in
Ukraine.
The Consultant
will draft an overview of all kinds of disciplinary actions, as well as to analyze
the interim disciplinary procedure introduced at the OPG in late 2019 and
propose specific recommendations on their alignment with EU standards.
In the context of
analyzing the remit of the General Inspection in terms of its role in
disciplinary proceedings concerning prosecutors, the Consultant will provide
recommendations on ordering governing documents regulating the competence of
the General Inspection in criminal proceedings concerning prosecutors.
He/she will analyze
and advise on the roles of various structural units of the OPG, including the
OPG’s General Inspectorate, and external entities (e.g., self-governing bodies)
relevant for enforcement of disciplinary responsibility, corrective measures
and for considering appeals from complainants. He/she will analyze each aspect
and stage of these actions – from opening a case to its closure and imposition
of disciplinary sanctions. He/she will consider disciplinary proceedings, their types and categories, and
corrective measures for the most widespread types of violations, as well as
non-disciplinary measures (if any), such as those impacting performance
evaluation and performance bonuses.
Assessment should
be made of such definitions as ‘systematic or single grave breach of rules of
prosecutorial ethics’ as defined in Article 43 of the Law of Ukraine ‘On Public
Prosecution’, including delineation and practical implementation of these
terms.
The Consultant
will share proposals on the method and specifics of considering the complaints
related to administrative or managerial decisions. He/she will advise in which
way the case may be classified as disciplinary case, or as a violation of rule
caused by incompetent decision making; also, which disciplinary action should
be taken in each case.
The Consultant
will also analyze the correlation of ethical requirements for prosecutors with
other legal professionals (e.g. behavior in social networks) in the context of
the initiative to develop a single common Code of Ethics for all legal
professionals (prosecutors, judges, defense counsels)[2].
As a result he/she may produce recommendations on the development of
cross-cutting standards and principles for the conduct of legal professionals
during court trials as well as those indirectly related to their professional
activity (scientific and research activity, communication on the Internet).
In addition, the
Consultant will advise on improvements to the disciplinary system by assessing the
existing mechanism to provide a structure in order to follow up on the
interface between criminal and disciplinary cases. Such a mechanism may provide
for new mandatory practice where LEAs will report on closed criminal cases to
the OPG (e.g., Human Resources Commissions or other authorized entity) or,
alternatively, an authorized entity will review, on a regular basis, open
criminal cases thus preventing loss of information on effectiveness, integrity
or diligence of prosecutors.
2.
Analysis
of the current version of the Code of Prosecutorial Ethics and Professional
Conduct (hereinafter – the Code), and recommendations for enhancement of its
provisions and implementation.
The Consultant will analyze the documentation of the OPG and
QDCP, which will be made available by the OPG, to identify the most common
cases of violation of ethical rules by prosecutors and solutions and means to
prevent them.
The Consultant
will assess to what extent the current Code captures the key ethical principles
for prosecutors and provides for their application by prosecutors.
He/she will analyze
the
awareness-raising activities on prosecutorial ethics and of available training
programmes and guidelines on ethics in Ukraine and will recommend the
platforms and forms for building the knowledge of prosecutors on ethics.
As a result, the Consultant will provide recommendations on
improvements to the Code, means to enhance its implementation and raising prosecutors’
awareness of the Code’s provisions.
3.
Analysis
of the factors causing gross breach of prosecutorial ethics, such as
corruption.
The Consultant
should analyze the tools which are available within the prosecution service to
prevent corruption risks (e.g., in asset management, procurement, employment,
decision-making, case allocation rules, control of prosecutorial discretion) as
well as for implementation of other specific anti-corruption measures. These
may include analysis of such instruments as the screening
of asset and income declarations, secret integrity checks, as well as reporting
channels for whistle-blowers and conflicts of interest.
The Consultant will
analyze the current secret integrity assessment procedure and will develop Prosecutor
Integrity Questionnaire, serving as the grounds for such an assessment.
Based on the outcomes of the analysis and taking into account European practices,
the Consultant will provide recommendations on improving the procedure,
to enhance the preventive role of the General Inspection in periodic
assessments of prosecutorial integrity.
As a result, a
set of actionable measures to enhance these tools and practices will be
elaborated by the Consultant and provided to the OPG for consideration.
In delivering this assignment, the Consultant will refer for
guidance to the best EU and international standards and will make reference to
the respective experiences in the other countries or specific examples.
He/she will ensure that recommendations provided in the
report are realistic and feasible for implementation, and that they are
relevant within the current national context, which will increase the likelihood
that these recommendations will be addressed by the beneficiary institution.
4.
Analysis
of the existing General Inspection system and recommendations on improving its
efficiency
The Consultant will provide expert support in performing an efficiency analysis of the General Inspection.
The Consultant is expected to review the preventive measures
which fall within the competence of the General Inspection.
The Consultant will provide recommendations on improving
measures to prevent and detect violations undertaken by the General Inspection.
In delivering this assignment, the Consultant will refer for
guidance to the best EU and international standards and will make reference to
the respective experiences in the other countries or specific examples. The Consultant will propose a model which will be aligned
with the European standards and compliant with the requirements of the
Ukrainian legislation.
[2] Based on the joint resolution of Councils of Judges,
prosecutors and attorneys dated 21 September 2018 ‘Professional Ethics of Justice’
a working group has been established to develop the Code of Professional Ethics
in the Sphere of Justice