In any discussions about Ukraine’s possibilities and problems, talk inevitably returns to rule of law – or more precisely, the nation’s lack of rule of law and its constant companion: corruption.
Daniel Bilak, the managing partner of CMS Cameron McKenna, led the 2015 Tiger Conference’s rule of law panel discussion.
The panel included Oksana Syroyid, a lawyer and deputy speaker of Ukraine’s parliament; Virgilijus Valancius, former president of the Supreme Administrative Court of Lithuania; Daria Kaleniuk, executive director fo the Anti-Corruption Action Centre; Bohdan Poshva, judge of the Ukrainian Supreme Court and David Sakvarelidze, deputy chief prosecutor of Ukraine.
“We get the sense there is a need for a new social contract,” Bilak said. “There is a desire for a fundamental change between the citizen and the state.”
Before the EuroMaidan Revolution that drove President Yanukovych from power last year, the people were afraid of the state, Bilak said, while “now the state is afraid of the people.”
Bilak said that rule of law should be based on freedom and justice, not “obeying” the current law of the land, as Adolf Hitler required of Nazi Germans and the Soviet Union required of its citizens.
He outlined a new social contract that includes the guiding principles of transparency, accountability and checks and balances to prevent “unfettered power.” That is something that has yet to happen yet in Ukraine, perhaps especially with the General Prosecutor’s Office, a Josef Stalin-era invention of 1937 to carry out purges and run roughshod over people.
The Soviet institution remains today with, if anything, greater powers for prosecutors over investigations and judges in determining which cases get prosecuted and who is found guilty. It is also a militarized structure, with Prosecutor General Viktor Shokin having control over the nation’s 15,000 prosecutors.
“We’re in a transition period,” Bilak said. “The old Ukraine has not yet been dismantled and destroyed and the new Ukraine has not yet taken root.”
Syroyid, the deputy speaker of parliament, said the criminal justice system continues to suffer from the pernicious influences of 70 years of Soviet rule and 24 years of oligarchy. The Soviet KGB simply changed its nameplate in independent Ukraine to SBU (Security Service of Ukraine), without changing its methods, Syroid said. If anything, prosecutors have more power than in Soviet days. And the courts need a complete overhaul, she said.
“We plan to establish an absolutely new system of courts – from new Supreme Court and going down to the (courts of) first instance, and ask those who feel confident to apply for new positions or retire,” Syroid said. “That should be done for all state institutions.”
Before being elected to parliament, she had experience training and working with about 2,000 judges. Of those, only five deserved to be judges, she said. “The majrity of judges don’t have the values who will allow them to perform justice,” she said.
She said prosecutors should have their powers curbed, including moving from vertical to horizontal control, so that regional prosecutors have autonomy.
Valancius said Lithuania moved fast after the collapse of the Soviet Union, adopting a new Constitution in 1992 and changing the judicial system in 1995, while educating people and looking West.
“We realized that civilization comes from the West, not to the East,” Valancius, who is a team leader of a European Union project to make judicial sector reforms in Ukraine.
He sees some changes in Ukraine, putting him in the camp of “gray optimists,” as he put it. “Now we should go further.”
Sakvarelidze, a deputy prosecutor general who is trying to recruit new talent and overhaul the General Prosecutor’s Office from within, said that pseudo-reformers are trying to safeguard “the corrupted system under the guise of European standards.” Despite two revolutions and a war, the bureaucracy has yet to be tamed, he said.
He said that “there is a big mistrust toward all open recruitment in Ukraine.” He is seeking competitive hiring to fill 700 prosecutorial vacancies, including through online webstreamed interviews. However, only 10 percent of the applicants have come from outside the current system.
He said that paying decent salaries is a prerequisite, since lawyers can make as much money in one hour in private practice as they do in a month on a state salary. “Cheap bureaucracy will always be corrupt,” Sakvarelidze said.
Sakvarelidze has also faced “huge resistance” in trying to establish a strong inspector general to investigate wrongdoing within the prosecutorial ranks. He said that former first deputy prosecutor general Volodymyr Huzyr nixed the idea of 15 investigators, saying three was enough because “we don’t want to have a punitive instrument” against prosecutorial corruption.
Kaleniuk said that one measure of the rottenness of the current state of affairs is President Petro Poroshenko’s refusal to fire Shokin and let go of his political control over the criminal justice system.
She noted that Viktor Trepak quit as a deputy head of the SBU more than a month ago, saying it was impossible to fight corruption because of Shokin.
Kaleniuk said that “there are good people in the system who believe in rule of law” but they are blocked by people like Shokin and, ultimately, political leaders with great powers. With the current state of affairs, she expects less than 1 percent of job vacancies to be filled by outsiders.
Kaleniuk said Shokin, who has not only been ineffective in fighting corruption but is also accused of obstructing anti-corruption efforts, should be fired long ago, but Poroshenko “for some reason doesn’t understand the demands of the people. It’s very bad.”
Besides not taking a single big corruption case to court, Shokin is under fire for many instances of alleged obstruction of justice – such as not investigating former Ecology Minister Mykola Zlochevsky, a decision that cost Ukrainian taxpayers $23 million in allegedly illicit assets that authorities in the United Kingdom had frozen but then released this year because of the lack of criminal investigation.
Kaleniuk urged Ukraine’s Western partners to “be very straightforward” with Poroshenko. “The president wants to control these institutions. He doesn’t want independent prosecutors…independent judges. The president wants to maintain control over these institutions and he is ready to pay a very high price for that.”
While civil society and journalists have exposed corruption, thanks in part to great public information, the state institutions don’t follow up with investigations, criminal charges and trials, she said.
Syroid acknowledge Poroshenko’s control of the criminal justice system. “Sometimes I think the president believes only his personal control can ensure independence. It’s a problem. He’s our elected president and we have to help him.”
Surprisingly, none of the panelists found it important enough to include the introduction of a jury system as part of criminal justice reform. In many democracies, such as the United States, the decision of guilt or innocence rests with a jury of the defendants’ peers – which some view as the ultimate check on the abuse of governmental power of police, prosecutors and judges.
Afterwards, Bilak said that more widespread use of a jury system is important, especially in criminal cases.
“It’s actually one of the key accountability instruments in the judicial system,” Bilak said. “A lot of people don’t pay very much attention to the issue of due process in criminal cases.”
He said that the discussion showed that government needs more “change agents” like Sakvarelidze in public service, supported by the public. Even incremental changes build momentum, and encourage transparency, he said. “It’s very difficult to be corrupt when you have spotlights on your activities,” Bilak said.
Kyiv Post chief editor Brian Bonner can be reached at [email protected]
