Gyunduz Mamedov: Change the System, Not Just the Name: The Task for the Next Prosecutor General
Following a high-profile scandal, the prosecution service has once again found itself at the centre of public attention. The system is facing a crisis of trust, accompanied by a crisis of understanding about what a modern prosecution service should actually look like and what place it should occupy within the criminal justice system.
This is precisely why so many proposals are being put forward today. There is discussion of an open competition for the position of Prosecutor General, the involvement of independent or international experts, and new safeguards for independence. These are important proposals. But the appointment procedure alone will not resolve problems that have accumulated over the years. Nor will replacing one name with another.
First, we need to answer the key question: what exactly should the next Prosecutor General change within the criminal justice system?
I began working on issues concerning the institutional structure of the prosecution service back in the 2000s, long before holding senior positions. My academic research was devoted to this subject. Later, I had the opportunity to see the system from within and to participate directly in its transformation.
That experience convinced me of two things. First, the personality of the Prosecutor General matters enormously. The direction of the prosecution service, personnel policy, management culture, the willingness to protect prosecutors’ independence, and the ability to resist political or informal influence all depend on its head. Second, a healthy system cannot and should not depend so heavily on the personality of its head that this affects procedural decisions.
In my view, it is precisely the combination of these two principles that should define the philosophy of reform within the prosecution service.
A MANDATE NOT TO MANAGE, BUT TO REFORM
For decades, the prosecution service was built as a vertically organised system. A strong hierarchy has obvious advantages. It enables decisions to be made quickly, ensures consistency of practice, and concentrates responsibility. But when decisions depend on the very top of that hierarchy, an advantage can easily become a systemic risk.
When the head changes, far more may change than the name on the office door.
The next Prosecutor General should therefore receive a clear reform mandate. The paradox is that a strong leader is needed today precisely to make the position of Prosecutor General less all-powerful tomorrow.
And the responsibility placed on that person will be considerable, as they will have to lead the system out of a crisis of trust while at the same time establishing effective cooperation among the various criminal justice institutions, between which conflicts have accumulated.
WHY THE PROSECUTOR GENERAL CANNOT BE STRIPPED OF POLITICAL WEIGHT
This raises an important question: should the appointment of the Prosecutor General really be distanced as far as possible from the President and Parliament?
I am not convinced that it should. At least not now, when decisions need to be taken quickly and effectively.
The Prosecutor General is not a technical administrator. This person is not merely the head of one of the state’s key institutions, but also an official on whom the coherence of the entire criminal justice system depends to a considerable extent. Particularly during a period of major change, the Prosecutor General must have sufficient political weight to carry through difficult and often unpopular reforms.
Reform will require legislative changes, funding, restructuring of management, digitalisation, a new personnel policy, and coordination with other criminal justice bodies. No Prosecutor General can accomplish this alone.
The mandate for change must therefore, in practice, come from the President and Parliament.
There are two straightforward options.
The President may select a candidate, submit the nomination to the Verkhovna Rada, secure parliamentary support, and assume political responsibility for that choice.
Alternatively, responsibility may be partly shared with international partners that have supported justice sector reform in Ukraine for many years.
At the current stage, the second option appears to me to be more productive.
INTERNATIONAL PARTNERS AS A THIRD PARTY
International participation should not mean transferring the power to appoint the Prosecutor General to external actors.
The constitutional decision must remain with Ukrainian institutions.
Before the appointment, however, consultations could take place between the President and key international partners. The President’s side could put forward its own pool of candidates, and the partners theirs. The candidates should then be assessed against the same criteria: professionalism, integrity, independence from political and informal influence, managerial capacity, the ability to implement change, and the ability to ensure effective cooperation with other criminal justice bodies.
International partners could provide information about risks, raise substantiated concerns, and propose candidates whom the Ukrainian side is not considering. The final decision would still remain with the President, and the nominee would require the support of the Verkhovna Rada.
But such participation would have another important effect. It would distribute responsibility for the next stage of reform. For years, international partners have invested political capital, expertise, and financial resources in the justice sector. If they participate in assessing the future head of the prosecution service before the appointment, it is reasonable to expect them also to support an agreed reform programme after the appointment.
This would create a tripartite arrangement.
The President and Parliament provide the political and legislative mandate. The Prosecutor General assumes responsibility for implementing the changes and agrees to limit their own powers. International partners contribute independent assessment, expertise, funding, digital solutions, and monitoring.
And none of these parties acquires the right to influence the course of any specific criminal proceeding.
WHY A COMPETITIVE SELECTION PROCEDURE CAN BE INTRODUCED LATER
This does not mean that a competitive selection procedure should be abandoned altogether. Moreover, we have undertaken this commitment as part of Ukraine’s European integration path. At the same time, we can return to this issue as part of the discussion on a permanent model, rather than as a procedure designed for the current appointment.
If a competitive procedure is created now, when the potential pool of candidates is already more or less clear, any such process will inevitably raise questions as to whether the rules have been written for particular individuals. Moreover, a high-quality competition takes time: the composition of the commission, the criteria, the integrity-vetting procedure, access to the necessary information, and the decision-making process all need to be determined.
In wartime, when reforms need to begin quickly, this could delay the appointment for months. Experience also shows that a competitive procedure can easily turn into political theatre, with the focus shifting to personalities rather than their programmes. Large-scale media campaigns aimed at discrediting candidates may undermine the authority of the new Prosecutor General even before the appointment is made.
WHAT NEEDS TO BE DONE IN THE NEAR TERM
Ultimately, reform cannot be limited to changing the procedure for appointing the head of the prosecution service. What is needed is a concrete plan for institutional change, with clearly defined timelines and outcomes.
The first stage should begin with an immediate comprehensive audit of the prosecution service to assess its personnel and institutional condition and identify the most problematic practices and decisions. Where there are substantiated concerns regarding the integrity or professional capacity of managers, there should be proper scrutiny and appropriate personnel decisions.
At the same time, the Inspectorate General should be strengthened and a permanent mechanism for assessing prosecutors’ integrity should be established. Its task should be to conduct systematic assessments of integrity and professional conduct, respond to substantiated reports of misconduct, and identify conflicts of interest and risks of improper influence. Where indications of a criminal offence are identified, the relevant materials should be referred to the competent authority.
For this to work, however, the Inspectorate General itself must be protected from direct discretionary control. It needs functional independence, protected staffing, adequate funding, a head with a guaranteed term of office, and a transparent selection procedure. At one point, we considered the idea of placing the Inspectorate General under the Council of Prosecutors. It is worth returning to this logic, perhaps through a different legal arrangement. The key point is that the Inspectorate should not depend on the person whose subordinates’ integrity it is effectively tasked with overseeing.
The second area is genuine autonomy for prosecutorial self-governance. We speak a great deal about the Prosecutor General’s independence from political authorities. Far less is said about the institutional independence of the prosecutorial community from the Prosecutor General. Yet one cannot function without the other. If the Prosecutor General is independent of politicians but at the same time controls appointments, careers, discipline, the structure of prosecution bodies, and has broad powers to influence individual prosecutors, we simply shift the problem of concentrated power from one level to another.
The Council of Prosecutors should therefore not remain a secondary element of the system. It needs its own capable secretariat, organisational and budgetary autonomy and, most importantly, genuine powers. Independent bodies of prosecutorial governance should play a key role in professional selection, evaluation, disciplinary responsibility, the protection of prosecutorial independence, and the development of personnel policy.
The Prosecutor General, meanwhile, remains the head of the system. The Prosecutor General sets strategic priorities, represents the prosecution service, is accountable for results, and has sufficient political and institutional weight to implement reforms. But the Prosecutor General should not exercise sole control over the professional fate of every prosecutor.
This is a fundamentally different model of responsibility.
The third area is procedural independence. Any instruction, replacement of a prosecutor or team of prosecutors, transfer of proceedings, or request for case materials must have a lawful basis, be made in writing, and provide reasons. At the same time, a prosecutor must have an effective mechanism for challenging an unlawful instruction or procedural decision. Unrestricted access by senior management to the materials of any pre-trial investigation should also be eliminated. Access should be determined by specific procedural powers and necessity in the particular proceedings.
THE PROSECUTION SERVICE CANNOT BE REFORMED IN ISOLATION FROM THE CRIMINAL JUSTICE SYSTEM
There is another issue that cannot be overlooked. Even a perfectly restructured prosecution service will not operate effectively if other elements of the criminal justice system continue to function according to their own separate logic.
The prosecution service interacts every day with pre-trial investigation bodies, courts, anti-corruption institutions, and other law enforcement bodies. In recent years, the architecture of this system itself has changed significantly. New institutions, new areas of competence, and new safeguards for independence have emerged. But they have not always come together as a coherent system.
This is why there must be a clear division of competences, mechanisms for cooperation and accountability, and procedures for resolving institutional conflicts. This is particularly important for the interaction between the prosecution service and pre-trial investigation bodies, the National Anti-Corruption Bureau of Ukraine (NABU), and the Specialised Anti-Corruption Prosecutor’s Office (SAPO).
The system must guarantee the independence and objectivity of criminal prosecution regardless of who is involved in a particular proceeding. Political or institutional conflicts between different bodies must not spill over into criminal proceedings.
Ultimately, Ukraine needs to determine what kind of criminal justice system it is building, what place the prosecution service should occupy within it, and what the appropriate balance should be between the independence, coordination, and accountability of its constituent institutions.
And the next Prosecutor General must be strong enough to reform the prosecution service and responsible enough to limit their own power.
The article is reprinted with the consent of the author
