The Committee on Law Enforcement of the Verkhovna Rada of Ukraine has received proposals for a substantial expansion of the content of Draft Law No. 12414, dated 16 January 2025. The primary objective of the proposed law is to establish special conditions for conducting pre-trial investigations that would allow for a prompt and effective response to reports of missing persons and ensure that applicants (victims) — close relatives and family members of the missing person — have access to legal mechanisms during wartime. The draft law merely seeks to simplify the procedure for determining the venue of pre-trial investigation to enhance the effectiveness of organising such investigations under martial law.
The proposals to amend the Criminal Procedure Code of Ukraine submitted to the Committee include:
- A significant strengthening of the role of the Prosecutor General (primarily through amendments to paragraph 2 of Article 36 of the CPC of Ukraine) — the Prosecutor General would be granted the authority to request any criminal proceeding for the purpose of verifying compliance with the law, including the ability to transfer such proceedings to other prosecutors for review. This step threatens the procedural independence of prosecutors who exercise procedural control in these cases, blocks further investigation, and enables manual control over all high-profile proceedings. In practice, this would implement the doctrinal notion that ‘the Prosecutor General is superior to any prosecutor’, which contradicts the will of the legislator, who for the past ten years has consistently granted the Head of the SAPO a high level of procedural independence and the SAPO itself — as a specialised prosecution office — institutional autonomy.
- Abolition of the so-called ‘exclusive investigative jurisdiction’ in criminal proceedings under the jurisdiction of NABU and SAPO. Currently, a prosecutor of the relevant level has the right to transfer a case from one pre-trial investigation body to another in cases of investigative ineffectiveness (paragraph 5, Article 36 of the CPC of Ukraine). However, an exception exists for NABU — such proceedings cannot be reassigned to, for example, the National Police of Ukraine or the State Bureau of Investigation. This is one of the key guarantees of the agency’s independence. The proposed amendments would eliminate this safeguard entirely — the Prosecutor General would be authorised to reassign any proceedings in any direction. Moreover, the Prosecutor General would gain the power to issue binding written instructions in NABU-led criminal proceedings. Such instructions could either harm the overall logic of criminal prosecution or simply ‘block’ proceedings by issuing meaningless directives that would require considerable time and resources to implement.
- Elimination of most provisions granting SAPO procedural independence in high-level corruption cases to ensure impartial and effective investigations. For example, the proposed amendments would revoke any exclusive procedural powers, such as approving notices of suspicion for special subjects, resolving disputes over investigative jurisdiction, and making changes to appellate and cassation appeals. In addition, the powers of the Deputy Prosecutor General — Head of SAPO could be delegated to other prosecutors (as proposed in the amendment to Article 37 of the CPC of Ukraine). In effect, the role of the Head of SAPO would become ‘transitional’ and would be determined within the general framework of duty allocation among the Deputy Prosecutors General.
- The closure of criminal proceedings against a suspect (for example, following an announced audit of proceedings) may become a matter of ‘negotiation’ in relation to other individuals involved. Currently, a prosecutor’s decision to close a criminal proceeding against a suspect does not preclude the continuation of the pre-trial investigation into the respective criminal offence (Part 5 of Article 284 of the CPC of Ukraine). The proposed amendments would allow a suspect who is a special subject — such as an official in Category ‘A’, an MP, a judge, or the head of a major enterprise with a significant share of state or municipal ownership — to file a motion for the closure of proceedings in relation to themselves. However, such a motion would go directly to the Prosecutor General. In practice, this would mean the suspect would simply need to ‘come to an agreement’ with the Prosecutor General, as it is the latter who would now decide the fate of top-level corruption cases — and all others — from initiation to completion.
- Extension of all additional instruments provided for in Article 615 of the CPC of Ukraine (special procedures for investigation under martial law) for a period of three years after the termination or repeal of martial law. In light of the evolving practice of pre-trial investigation, there is a possibility that currently ‘dormant’ provisions allowing prosecutors to conduct searches or extend preventive measures without applying to an investigating judge, who, in certain territories, is objectively unable to exercise their powers, may be applied in practice.
The draft also proposes amendments to the Law of Ukraine ‘On the Public Prosecutor’s Office’ to simplify the procedure for transferring prosecutors from lower-level prosecutors’ offices to the Prosecutor General’s Office (PGO) without a competitive selection process during the period of martial law. It would also allow for the appointment of individuals from outside the prosecution system. In addition, it proposes resolving the issue of prosecutors placed ‘out of staff’ due to decisions by the leadership concerning liquidation, reorganisation, restructuring, or changes in staffing levels within the prosecution service.
The likely aim of these provisions is to enable the transfer of prosecutors from district and regional offices, as significant resources are needed to conduct audits of NABU proceedings. However, this approach runs counter to the merit-based principles of appointment and transfer within the prosecution service and continues the flawed policy of addressing staffing issues outside the framework developed by the previous PGO leadership along the European integration track.
General Conclusion. The expansion of the Prosecutor General’s powers through the repeal of most provisions ensuring the procedural independence and autonomy of NABU and SAPO is inconsistent with the state’s anti-corruption policy pursued since the Revolution of Dignity. The prohibition against transferring NABU and SAPO proceedings to other investigative bodies, along with the special procedure for approving procedural decisions by the Head of SAPO, was introduced to minimise pressure on high-level corruption cases involving senior public officials, ministers, presidents, judges, and others. The effectiveness of this approach has been repeatedly emphasised by Ukraine’s international partners, particularly within the framework of European integration and the anti-corruption component of Chapter 23 of EU acquis.
Unlike prosecutors of the Prosecutor General’s Office, SAPO prosecutors underwent rigorous selection procedures involving international partners, and the Head of SAPO was appointed through an open competition. Public scandals in recent years, linked to the ‘blocking’ of proceedings by investigative bodies and the PGO, have demonstrated the intent to exercise ‘manual control’ over criminal cases, which undermines the principle of accountability in high-level corruption investigations. Recent efforts to discredit NABU and SAPO in the media space only reinforce this concern.
