Parliament started discussing the amendments to the Constitution a few days ago.[1] The project's task is to fulfill the point of the April 19 agreement, which talks about the reform of the prosecutor's office. The Social Justice Center (formerly the EMC) considers the proposed changes insufficient and calls on Parliament, along with the constitutional amendments, to ensure real reform of the prosecution system, transforming the prosecution into a highly accountable and politically neutral institution.

In the field of justice, the April 19 agreement covers several broad issues, including changes to the prosecution system.[2] According to the agreement, the state should change the procedure for appointing the Attorney General by international best practice. In such a way that the appointment of the Prosecutor General is ensured through a transparent, impartial process, taking into account the merit-based appointment criteria.[3]

According to the agreement, the next Attorney General must be elected by Parliament by a qualified majority of votes, allowing for broad political participation in the process. In addition, it is essential to establish a mechanism in the legislation to prevent a decision on this issue (Deadlock). According to the version proposed by the agreement, a qualified majority of votes are required to elect a Prosecutor General in the first two attempts. If Parliament fails to elect a candidate by a qualified majority, Parliament will have the opportunity to elect a Prosecutor General by a simple majority. A person elected in this manner will be appointed to the position of Prosecutor General for only one year.[4]

The current law for the election of the Attorney General, which the Parliament makes the final decision by a simple majority of votes - has long been the subject of criticism.[5] Deciding this way renders meaningless political dialogue between the parties and subject only the power of the government to the issue. At the same time, it significantly increases the risks of party influence on the prosecution system. The appointment of the Attorney General only by the ruling political team calls into question the Agency's independence, which negatively affects the degree of public confidence in the institution.

The draft law initiated due to the agreement more or less provides the possibility of political consensus. Under the draft constitutional law, the subsequent two convened parliaments will elect the attorney general by a 3/5 majority.[6] If the Parliament fails to elect twice this way, the Prosecutor General is selected by a majority of the Parliament following stages. The term of appointment of the Prosecutor General elected in this manner is one year. Although the initiated draft law formally complies with the April 19 agreement, the constitutional law does not provide complete guarantees for selecting a candidate for Attorney General openly, transparently, and based on international best practice. In addition, the initiated project narrowly addresses prosecution reform. It is limited to changing the Attorney General's appointment rules, which is not enough to increase the state's degree of independence and trust.           

Unlike the agreement, the initiated project limits the number of candidates who can be considered for the position of Attorney General by Parliament and specifies the appointment of the same candidate. With this reservation, the draft law does not create an opportunity to nominate another candidate for Parliament and increases the risk of a final decision based on one-party interest.[7]

Moreover, the existing legislation establishes a two-stage procedure for the appointment of the Prosecutor General. Under current regulation, the process begins at the level of the Prosecutorial Council. The candidate selected by the Council is submitted to the Parliament for a final decision. The procedure for electing the Prosecutor General is problematic when making a final decision at the parliamentary level and the initial stage at selecting a candidate for the post of Prosecutor General at the Prosecutorial Council.

The current model and procedure for selecting a candidate at the Board of Prosecutors is not sufficiently transparent and does not stand close to international practices. The selection process of a candidate at the stage of the Prosecutorial Council is not fully regulated by the Organic law, which leaves free space for the Prosecutorial Council to change the law established by the statute at its discretion.[8] Such an arrangement is particularly problematic in the current structure, powers, and confidence crisis of the Prosecutorial Council.

Unfortunately, Parliament neglected the offer of the civil sector in its time to replace the obscure and unconfirmed stage of consultations in the legislation with the open and transparent competition.[9] Despite international experience or relevant recommendations, Parliament has again left a mark in the legislation that allows one person to be re-elected as Attorney General several times.[10]

Despite the existing limitation, the initiated project only changes the rules of electing a candidate to the Parliament in the second stage. The April 19 agreement explicitly states that the state must establish an impartial, transparent procedure based on international practices for selecting the Prosecutor General, not only changing the decision-making process at the parliamentary level alone. Nevertheless, to fulfill the purposes of the agreement, it is necessary to apply these criteria to the whole process - to the entire procedure for the election of the Prosecutor General. It is unfortunate that the government has not found the political will at this stage either, has widely discussed the reform of the prosecution system, to use this opportunity to renew the discussion on the fundamental reform of the system.

The structure of the Prosecutorial Council and the extent of its powers are also problematic. The Council does not have the proper functions to promote the Agency's independence, transparency, and efficiency, which is its core constitutional mandate, including the not redistributed functions between the Attorney General and the Prosecutorial Council. Given the strict hierarchy in the system, the simultaneous exercise of procedural leadership and organizational management functions for the Attorney General gives him extensive power. Under these conditions, the state regarding the autonomy of individual prosecutors is low.

The significant problem today implies that the power of prosecution and investigation is under the hands of one Agency. The prosecutor's office is empowered to launch an investigation into the most important types of cases, including those committed by political officials or alleged crimes involving them. The direct transfer of investigation and criminal prosecution function within the Agency undermines the investigation's independence. Therefore, the goal of systemic reform should be the redundancy of the prosecution's role in the investigation process.

In this situation, the state must reform the investigative system promptly. The reform should ensure a clear separation of functions between the prosecutor and the investigator, improve the quality of the investigation and give investigators more professional independence.

Given all the above, the Social Justice Center once again requests on political groups:

Use the existing opportunity wisely and expand the range of the initiated project. Reform should not be limited to the issue of electing a Prosecutor General at the parliamentary level. The reform of the prosecution system should cover the following issues:

• Complete change in the rules for electing the Prosecutor General, from the stage of the Prosecutorial Council until the final decision of the Parliament;
• Review of the structure and powers of the Prosecutorial Council, redistribution of powers between the Council and the Prosecutor General;
• Increasing the degree of independence of individual prosecutors;
• Detachment of prosecutorial and investigative powers and removal of investigative powers from the functions of the Prosecutor's Office;
• Conduct the reform process transparently and inclusively, with equal involvement of all individuals.

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