“This is a road to nowhere”: lawyer Vyacheslav Trunov on the intention to reboot the PGO, the SBI and the National Police
22 December 19:14
Against the backdrop of repeated calls for a “reboot” of the law enforcement system – the SBI, the National Police, the Prosecutor’s Office – and the introduction of a competition for the position of Prosecutor General, the professional legal community is actively discussing. Anti-corruption activists, some politicians, and international partners insist that the system will not work without new competitions, attestations, and regular updates. However, are endless personnel “reforms” really the answer, or do they only mask the problems and do not solve them thoroughly?
We talked to Honored Lawyer of Ukraine, former Prosecutor General Vyacheslav Trunov about why competitions are no substitute for political responsibility, why the Prosecutor General in any European country is a political figure, and what really needs to be changed in the work of law enforcement agencies. He explains why the next “reset” may not be a reform, but a step to nowhere.
– Recently, the issue of rebooting the SBI, the police, the prosecutor’s office, and competitions for all senior positions, including the Prosecutor General, has been actively discussed. This is the position of not only activists, but also representatives of European institutions, including the EU Advisory Mission. How do you feel about these demands?
– It’s really important to call a spade a spade: it’s not just the demands of activists. This is also the position and recommendations of representatives of European institutions, primarily the EU Advisory Mission, and more broadly, the logic of the donor conditionality: “reforms in exchange for support”.
I respect our European partners and understand the motivation behind these requirements. But the problem is different: these recommendations are often mechanically transferred to the Ukrainian context without taking into account the fact that we have been living in a permanent law enforcement reform regime for more than 13 years.
Since 2012, there has been a new Criminal Procedure Code, a new police force, liquidation of some units and creation of others, anti-corruption bodies, the State Bureau of Investigation, the BES, several waves of attestations and re-certifications. And every time the system fails to deliver the expected result, the answer is the same – another “reset”. This is not a reform. This is a substitution of substance for form.
– Yet the requirement of a competition for the Prosecutor General by European institutions is presented as a step towards independence and trust.
– And here we again face a conceptual error. The Prosecutor General is a political position, a political figure. This is the case all over Europe. In Germany, it is a political appointment through governmental procedures. In Spain, it is appointed by the government. In Poland, the Prosecutor General is combined with the Minister of Justice. In France, Italy, and the Netherlands, it is a political decision with professional safeguards.
There is not a single EU country where the Prosecutor General is elected through an “HR competition”. The logic is different: if the position is political, then there must be political responsibility.
– Perhaps this is due to Ukrainian specifics and distrust of political decisions?
– Yes, it is. But then let’s be honest about the real problem. The problem is not that the Prosecutor General is a political figure. The problem is that there is no political accountability in Ukraine. In a normal democratic system, a political appointment means that if you fail, there are political consequences. Resignation. Loss of trust. Political defeat. We don’t actually have this mechanism. And instead of building political responsibility as an institution, we are trying to “bypass” politics with competitions and commissions. As a result, we have the logic of the “last man standing”.
– So, the competition for the Prosecutor General is not a panacea, even if it is demanded by partners?
– Yes, it is. The competition can be an auxiliary tool, but it cannot and should not replace political responsibility. The Constitution is clear: The Prosecutor General is appointed by the President with the consent of the Parliament. A complete change in this model requires constitutional amendments, and this is prohibited during martial law.
– Representatives of European missions and activists also insist on re-certification.
– There is one unpleasant but frank thing to say here: we do not have perfect areas of activity. Doctors make mistakes. Engineers make mistakes. Road builders make mistakes. But no one comes up with the idea that if doctors make mistakes, let’s re-certify them en masse, or if the roads are bad, let’s re-certify all road builders. We realize that this does not work. But for some reason, when it comes to law enforcement, the logic disappears.
– In short: what should we do instead of these endless personnel procedures?
– First of all, we need to stop imitating control and start building working accountability mechanisms that exist in any mature system.
Let’s start with the most basic – trust. Today, trust as a criterion for evaluating performance is directly enshrined only in the law on the National Police. Moreover, trust measurements have actually been conducted only a few times – during the tenure of Minister Avakov. After that, this provision was virtually abandoned. In other bodies – the Prosecutor’s Office, the Security Service, the State Bureau of Investigation, the BES – the trust criterion is absent altogether. It is not measured or used as a management indicator.
Then there are KPIs and efficiency. We measure it incorrectly. We count activity, not results. On the website of the Prosecutor General’s Office, we constantly see: so many suspicions, so many searches, so many arrests, but there is no information about sentences. Because there are few verdicts. But it is the verdict, not the suspicion, that is the end result of the system.
Without this, any figures on “suspicions” are statistical noise, not efficiency.
The next thing is public control. Public control councils are a good idea. But in Ukraine, it is often turned into an imitation of public control.
First, such councils do not really exist at all agencies. Secondly, where they do exist, the procedures for their formation are not transparent and there are no criteria for members. As a result, the Councils of Public Oversight are composed of people who have no idea about the work of law enforcement agencies, no relevant education or experience. Instead, professionals with years of experience are not allowed to join. This is not public control. This is its simulation.
The next step is internal self-assessment. Today, no law on law enforcement agencies contains a clear requirement for systematic internal self-assessment. The agencies evaluate themselves as they wish, according to the indicators that are convenient for them. There is no single logic, no single standard. It is the same with external audit. It is not unified, it is prescribed differently in different bodies, and in fact exists only for newly created anti-corruption bodies.
The prosecutor’s office, the Security Service of Ukraine, and the police do not have a full-fledged regular external audit. And it is a standard tool in democratic systems.
And finally, a business ombudsman. Ukraine still does not have a law on a business ombudsman, although this institution operates in more than 100 countries. Instead of systematic business protection, we either create new law enforcement agencies or organize regular personnel campaigns.
This is what we need to do. Not to re-certify people every few years, but to build constant control, measure quality, and introduce real accountability. Re-certification is a sign that we don’t know how to work with the system on a daily basis, so we try to solve the problem with a one-time action. And this is the way to nowhere.
