The Grand Chamber of the Supreme Court correctly held that all prosecutors designated within a group of prosecutors to provide procedural guidance are interchangeable and equivalent to one another within the scope of the specific criminal proceeding.

The Grand Chamber of the Supreme Court, in its ruling of November 27, 2019 (Case No. 629/847/15-k), provided a definitive answer to the question regarding a prosecutor’s authority to file appeals and cassation appeals against court decisions. In the relevant ruling, the Grand Chamber noted that if a prosecutor was included in a group of prosecutors but did not participate in court hearings, he or she has the right to file an appeal or a cassation appeal. In addition, it was established that the group of prosecutors designated in a specific criminal proceeding in accordance with Article 37 of the Code of Criminal Procedure of Ukraine acts as a single entity on the prosecution’s side—the prosecutor.

I will present additional arguments on this issue that confirm the correctness of the Grand Chamber of the Supreme Court’s conclusions on this matter. I believe that a group of prosecutors constitutes a single entity (taking into account the specific powers of the lead prosecutor), although it has an internally defined division of labor, which does not affect the ability of each individual prosecutor to perform a procedural act or make a procedural decision, provided that the restrictions established by criminal procedural law are observed (in particular, regarding coordination with the lead prosecutor of the group).

As A.V. Lapkin rightly points out, groups of prosecutors are formed in complex, multi-faceted criminal proceedings in which a single prosecutor is unable to perform their duties independently [1]. In other words, the purpose of forming a group of prosecutors is to ensure the effective and uninterrupted performance of their duties by prosecutors in cases where the complexity of the criminal proceedings so requires, and to prevent a failure to perform such duties in the event of a prosecutor’s dismissal, illness, suspension, business trip, or other circumstances that objectively prevent them from performing their duties. Given that a team of prosecutors has a lead prosecutor who directs the team, it can already be asserted that a group of prosecutors is a single unit with shared objectives and powers, which must have a coordinated plan of action, shared access to information, and coordinated areas of work and responsibilities.

When a group of prosecutors is formed, each of its members acts as a prosecutor in criminal proceedings; if a member is unable to exercise the powers of a prosecutor in criminal proceedings, those powers may be exercised by other members of the group. This means that in cases where the public prosecution is conducted by a group of prosecutors, the participation of at least one of them in a court hearing allows for the hearing to proceed and ensures the fulfillment of the public prosecution function. This should ensure the possibility of promptly replacing, upon the decision of the senior prosecutor of the group, one member of the group (who, for example, is ill, on a business trip, or participating in another court hearing) with another prosecutor from the group to ensure participation in the court hearing [2].

In accordance with the Procedure for Organizing the Activities of Prosecutors and Investigative Bodies of the Prosecutor’s Office in Criminal Proceedings, approved by Order No. 51 of the Prosecutor General’s Office of Ukraine dated March 28, 2019 (hereinafter—the “Procedure”), a prosecutor in criminal proceedings, while exercising procedural supervision over a pretrial investigation in accordance with the requirements of the law, if exercising powers as part of a group of prosecutors, must coordinate procedural actions and decisions with the senior prosecutor of the group prior to their implementation, whose decision is final (Section IV, para. 3). In court proceedings before a court of first instance, the prosecutor in charge of the case (or a team of prosecutors) participates. The following participate in court proceedings for the review of court decisions: 1) in the court of appeals: the prosecutor in charge of the case (a group of prosecutors), the head of the higher-level prosecutorial authority that filed the appeal, if there is a position regarding their personal participation in the appellate proceedings; prosecutors from the structural units specified in subparagraphs 2 and 3 of paragraph 1 of Section IV of these Rules, if there is a decision regarding their participation in the appellate proceedings or the delegation of such powers; prosecutors from the court prosecution support units of regional-level prosecutor’s offices in criminal proceedings involving appeals against court decisions rendered with the participation of prosecutors from local prosecutor’s offices; 2) in the court of cassation: the prosecutor in the criminal proceeding (a group of prosecutors), the head of the higher-level prosecutorial authority that filed the cassation appeal, provided there is a position regarding their personal participation in the cassation proceedings; prosecutors who participated in the proceedings before the appellate court, if there is a position regarding their personal participation in the cassation proceedings; prosecutors from the Prosecution Support Unit of the General Prosecutor’s Office of Ukraine; prosecutors from the structural units specified in subparagraphs 2 and 3 of paragraph 1 of Section IV of these Rules, if there is a position regarding their participation in the cassation proceedings or the delegation of such powers (paragraph 3 of Section V of the Rules). Senior groups of prosecutors, in accordance with the requirements of the law, may: organize the participation of the group’s prosecutors in all court hearings; personally participate in court hearings; coordinate the activities of the group’s prosecutors during court proceedings and harmonize their procedural positions; sign prosecutors’ procedural documents regarding the amendment or withdrawal of charges, the filing of additional charges, and coordinate such decisions with a higher-level prosecutor; and enter into plea agreements (Section V, para. 5 of the Procedure).

As can be seen, certain additional powers are provided only for the lead prosecutor of the group; no restrictions on conducting procedural actions are established for other prosecutors in the group.

The same approach, based on an understanding of the nature of a group of prosecutors, is also enshrined in the Resolution of the Grand Chamber of the Supreme Court dated November 27, 2019, which states that a prosecutor—as a member of a group of prosecutors in a specific criminal proceeding—possesses the full scope of a prosecutor’s rights (since he or she has been designated by the head of the prosecutorial authority to exercise such powers in that proceeding), regardless of whether he or she participated in it during earlier stages.

In our view, the Plenum of the Supreme Court correctly noted that all prosecutors designated within a group of prosecutors to exercise procedural leadership are interchangeable and equivalent to one another within the scope of the specific criminal proceeding. Any other interpretation would undermine the very purpose of establishing such a group of prosecutors in criminal proceedings.

[1] Lapkin, A.V. “On the Consequences of a Prosecutor’s Failure to Appear at a Court Hearing.” Judicial and Investigative Practice in Ukraine. 2018. Issue 7, p. 18

[2] Lapkin, A.V. “On the Consequences of a Prosecutor’s Failure to Appear at a Court Hearing.” Judicial and Investigative Practice in Ukraine. 2018. No. 7, p. 18