Grounds and terms for prosecution inspection
Inspection procedure
Appeals challenging inspections
Two acts of prosecutors' response
Comment


On December 1 2012 the Law on Amending Certain Legal Acts of Ukraine on Improving the Activities of the Prosecutor's Office came into force. The law reflects the government's attempt to fulfil its obligations to bring certain activities of the prosecution system into compliance with EU standards. Despite EU criticism of the plentitude of Ukrainian parliamentary measures, the legal regulation of the prosecution authorities' operations is subject to substantial alterations.

Grounds and terms for prosecution inspection

Henceforth, the prosecution authorities may inspect, at the request of government or local government bodies, individuals or legal entities only after the verification of such request by the competent controlling body, or if such body fails to take validating measures or violates the terms of inspection (with the exception of criminal offences).

Inspection procedure

Any response by the prosecution bodies before a motivated resolution to conduct an inspection is passed and presented to the entity to be inspected is prohibited. The resolution must set forth:

  • the reasons (referring to any legal violations);
  • the need to interfere in the legal entity's activities; and
  • grounded clauses for:
    • a summons to the prosecutor's office;
    • examination of employees; and
    • demands made on provision of materials and documents, including those containing undisclosed information.

Appeals challenging inspections

At the legislative level, the amendments regulate the right to challenge a resolution to conduct an inspection to a higher level of the prosecutor's office or to the court. This will allow the following:

  • The resolution can be declared illegal and revoked.
  • The lack of competence of the prosecution bodies to conduct an inspection can be established.
  • The results of such inspection can be declared illegal, as can any responding acts by the prosecution (including those that hold individuals liable in the event of damage to the entities through illegal acts or decisions made).

The period of limitation for such appeal will be 10 days from receipt of the resolution.

Two acts of prosecutors' response

A prosecutor's lodgment changed previous prosecutors' acts of response and is filed in order to eliminate legal violations and request compensation for damages, to prosecute a person or to cancel a legal act.

Under the amended law, the lodgment may be filed as addressed to the individual entrepreneurs. However, the effectiveness of lodgment was previously and remains extremely low. This is due to the low penalties for failure to meet the lodgment requirements, such as an administrative fine of up to UAH850 ($106). The procedure for liability of the offender is rather onerous with respect to time and expediency, since it contemplates procedural steps such as:

  • drawing up an administrative record;
  • summoning the offender to be familiarised with the administrative record and handing it a copy thereof;
  • consideration of the administrative record by the court; and
  • imposing the fine.

In contrast to the objection procedure, lodgment does not suspend the effectiveness of the public or local government authority act.

Comment

An analysis of the legal amendments indicates that the powers of the prosecution authorities have been reduced. However, only preliminary conclusions can be drawn on the influence of the changes on the rights and freedoms of citizens and the interests of the state, since the major benefits and drawbacks of the law will become evident only in the course of practical application.

For further information on this topic please contact Oleksandr Yakovenko at Asters by telephone (+380 44 230 6000), fax (+380 44 230 6001) email (oleksandr.yakovenko@asterslaw.com).

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