Helsinki Citizens' Assembly-Vanadzor

Issues identified in the procedures of promotion of prosecutors: HCAV presents recommendations

September 4, 2022

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In the frame of the project “Implementation of Anti-Corruption Treaties and Standards” implemented with the support of the International Foundation for Electoral Systems (IFES), Helsinki Citizens’ Assembly Vanadzor Office (HCAV) is analyzing the corruption context in line with recommendations issued by international organizations with respect to the Republic of Armenia. In the frame of the project, we chose five recommendations issued by international organizations with respect to the RA, and we are carrying out activities to contribute to implementation of those recommendations. One of the chosen recommendations is as follows, “Reform the procedures for the recruitment and promotion of prosecutors, including by i) increasing transparency of the decision-making process within the Qualification Committee, circumscribing the discretionary powers of the Prosecutor General and requiring him/her to give written motivations for his/her decisions and ii) allowing unsuccessful candidates to appeal to a court, on the basis of specific and precise legal provision”. The recommendation was issued by GRECO.

 

1․ The legal relations mentioned in the abovementioned recommendation are regulated by the RA Law on the Prosecutor’s Office, and the RA Prosecutor General’s decree N 44  of 26 April 2018, decree N 43 of 26 April 2018, and decree N 42 of 26 April 2021

 

The study of the aforementioned legal norms shows that there are shortcomings and legislative problems in the procedures for the recruitment and promotion of prosecutors, and as a result, they do not ensure the accountability and transparency of the whole process, the Prosecutor General has a plethora of discretionary powers. 

 

According to Article 38 of the RA Law on Prosecutor’s Office, 1. The list of prosecutor candidates is replenished through open and closed competitions. The open competition is held by the Qualification Commission of the Prosecutor’s Office, as a rule, once a year in January. If necessary, a snap open competition can be conducted by the assignment of the Prosecutor General. With the purpose of replenishing the list of candidate prosecutors, as assigned by the Prosecutor General, a closed competition of contenders can be conducted during the year. The procedure of organizing open and closed competitions is established by the order of the Prosecutor General. 

 

The RA Law on the Prosecutor’s Office and the Regulation of the competition establish that, as assigned by the RA Prosecutor General, a closed competition of contenders for prosecutor candidates can be conducted during the year in order to replenish the list of prosecutor candidates. No public announcement is made regarding the closed competition, and prosecutors learn about it through individual invitations. This means that the Prosecutor General or another prosecutor – as assigned by the Prosecutor General – inform some prosecutors regarding the closed competition, after which they have an opportunity to choose a specialist and appoint him/her to the position. This option can be used to make important appointments in the Prosecutor General’s Office, and no one can interfere in this procedure. The public is never informed about the vacancies or the conditions required to be eligible to take the positions. 

 

Conducting the closed competition this way may contain corruption risks. The closed competition conducted as assigned by the Prosecutor General in order to replenish the list of prosecutor candidates does not ensure transparency and publicity of the process; moreover, in the conditions of this competition, professional capacities of the contenders are not visible and measurable. Therefore, it is also unclear what criteria are in place for making the choice. In this option, impartiality of the competition is called into doubt. 

 

Thus, we recommend changing the regulations regarding the closed competition established under the RA Law on the Prosecutor’s Office and eliminating appointment of positions in the system through closed competitions.

 

2․ The Prosecutor General makes appointments of prosecutors in the procuracy system; the Qualification Commission also plays an important role in this process. The regulations of formation and functioning of the Qualification Commission are established under the RA Law on the Prosecutor’s Office. In particular, according to Article 23 of the Law, Ethics Commission and Qualification Commission function adjunct to the Prosecutor General.

 

The above-mentioned Article establishes the composition of the Qualification Commission. In particular, the Qualification Commission comprises nine members; while in case of an open competition held to fill up the list of prosecutor candidates performing the functions established by the RA Law on Confiscation of Property of Illegal Origin, the Commission comprises eleven members. The Qualification Commission includes the Rector of the Justice Academy, one Deputy Minister of Justice appointed by the Minister of Justice, four prosecutors and three legal scholars, and in case of an open competition held to replenish the list of prosecutor candidates performing functions aimed at confiscating property of illegal origin, the Commission also includes two experts appointed by the Prosecutor General. The experts must have at least three years of experience in academic or practical work in the field of illegal asset recovery or investigation of corruption crimes. 

 

The Qualification Commission is headed by the Deputy Prosecutor General. 

 

The law also states that the Prosecutor General establishes the regulation of the functioning of the commissions, as well as the procedure of choosing prosecutor members.

 

The above-mentioned complex regulations show that there is no external expert participation in the appointment of the Prosecutor General, as well as appointment of prosecutors by the Prosecutor General. 

 

Though the Qualification Commission participates in the appointment of prosecutors, it is mostly made of prosecutors. Moreover, both the prosecutors and legal scholars are appointed by the Prosecutor General. This means that despite the existence of the Commission, the Prosecutor General is the main decision-maker and all the decisions are taken by him. 

 

There are also no principles or criteria established by law or other legal acts based on which the Commission’s prosecutor members and legal scholars are chosen. This means that the Prosecutor General is the main actor in the formation, and selection of members of the Qualification Commission. Such regulations and formation procedure do not ensure impartiality of the Commission, as well as transparency and publicity of its formation. 

 

It is necessary to review the composition of the Qualification Commission, its formation procedure, as well as the requirements presented to its members, in order to increase public trust in appointments in the system and ensure more independent and effective functioning. 

 

We find it necessary to eliminate the unlimited powers and monopoly of the Prosecutor General, and for this purpose, a Competition Commission should be formed to select the members of the Qualification Commission. The Competition Commission shall comprise:

 

- Two representatives of the Prosecutor General’s Office

- 2 legal scholars

- 2 civil society representatives 

 

The Competition Commission shall choose the members of the Qualification Commission based on the principles of publicity, transparency and objectivity, and the main criterion shall be the candidates’ professional competencies and abilities

 

The Qualification Commission formed by the Competition Commission shall comprise 9 members:

- Four prosecutors

- Rector of the Academy of Justice

- Three legal scholars

- One civil society representative 

 

All the commission members must undergo an integrity check

 

According to the provisions of the Law on the Prosecutor’s Office, the Prosecutor General is the main actor and the main person in charge of appointments in the procuracy system. His decisions are based on the promotion lists. Promotion lists are compiled at the end of and based on the results of the study in the RA Academy of Justice. Neither the Law on the Prosecutor’s Office, nor the Law on the Academy of Justice specify which principle and procedure are applied to make a choice from the lists and make an appointment, what criteria are used for the Prosecutor General to give preference to candidates who have had the relevant training and to appoint them in the position. 

 

This means that the Prosecutor General has too much discretion in the selection of a candidate from the approved lists and appointment of the prosecutor, which can lead to corruption risks, and enhance mistrust towards appointments and thus also the system in general. 

 

To make more trustworthy and predictable the process of appointments in the system of Prosecutor’s Office, we recommend making an amendment to the acting regulations and establish that the Prosecutor General makes an appointment from the list according to the education received in the Academy of Justice and the descending order of cumulative scores of the study. This means that in terms of appointment to the office, priority shall be given to the candidate with higher scores, and in case of equal scores, priority shall be given to the candidate with longer experience. 

 

3․ Just as in all the listed relations, the Prosecutor General is also the main actor and decision-maker in bringing prosecutors to disciplinary liability. The Ethics Commission also plays an important role in terms of bringing prosecutors to disciplinary liability.  

 

Safeguards of the activity of bodies involved in the Commission play an important role for the effective implementation of the functions established by the law and the regulation, as well as disciplinary liability. The procedure of the formation and the composition of the Ethics and Discipline Commission are particularly important in this regard. 

 

The formation of the Discipline and Ethics Commission is carried out exclusively by the Prosecutor General, who also has a central role in terms of bringing prosecutors to disciplinary liability. In this case, there are again no established criteria for the selection of members.

 

To make more transparent the functions of the Discipline Commission, first of all we recommend forming a competition commission (for the selection of the members of the Ethics Commission) comprising two prosecutors, two legal scholars and one civil society representative. The competition commission shall have the power to select four prosecutors and four legal scholars of the Discipline Commission. 



4․ The mechanism of compiling the promotion list is important in terms of appointment of participants with the same chances or participants who have equal scores. In case there are a few contenders with equal scores, and the list is made in alphabetical order, making the choice from the top number will be considered impartial, but if the list is made in a random order (or in an order established by someone), making the choice with the same principle might cause impartiality issues. 

 

The legal problems and gaps listed in this document disrupt the transparency of the decision-making of the Qualification Commission, and the RA Prosecutor General’s discretionary powers can greatly affect the Qualification Commission’s decisions. Whereas, after the recommended amendments are made, the Commission’s transparency will increase and the Prosecutor General’s discretionary power will decrease, and thus, GRECO’s recommendation requirement will be met. 

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