The Serhiy Sternenko case, and the reaction it has generated, have been in the headlines. I want to share some thoughts about this for, while at the core of the matter is the issue of justice or rather lack of it, there is more to it all than meets the eye.
Odesa’s Primorsky District Court on Feb. 23 convicted Sternenko and another activist, Ruslan Demchuk of kidnapping, robbing and torturing Serhiy Shcherbych, a member of Odesa Oblast’s Kominternivske District Council, in April 2015. They were sentenced to seven years in jail and confiscation of half of their property. Sternenko denies the accusations.
But as I was doing my preparatory research, news resembling a bombshell, hit us. Nicolas Sarkozy, the former ever-so-smug president of France, has been convicted of corruption – attempting to bribe a judge – and given a three-year sentence – two of them conditional, and one to be served.
Of course, Sarkozy will appeal and we will see the outcome. Yet in this case, whatever his residual political and financial clout, justice will be seen to have been done.
And what a message this conveys domestically, and to the outside world – particularly Ukraine. For the first time in its history, France has given a former president a prison sentence for impropriety. “Vive l’égalité!” I hear. Long live liberty also, but coupled with equality before the law!
Of course, this assumes you have a credible legal system that actually functions. An independent judiciary not under the control of political or financial patrons. A legal system that is minimally corrupt, solid, and autonomous – the indispensable bedrock of modern, in our context, European, democratic, systems.
Just imagine what the possible consequences would have been for Ukraine if after almost thirty years of independence it had established such a hallowed institution.
It would have meant forgoing so many of the problems and scandals that have held the country back on the road to development and European integration. And the impact on political culture, the fight against corruption, the attraction of foreign investment, and economic growth – the very atmosphere in which people live, work, interact and do business.
Quite a few former presidents, top officials, and “businessmen” would have plenty to answer for. But there would be proper investigations, convictions, and, yes, when warranted, pardons and perhaps second chances.
Following from this, one can only imagine the enhanced confidence in the Ukrainian state, its self-identification and chosen western trajectory, as well as the rights, responsibilities, and obligations of citizens and those they have elected to govern on their behalf.
But, as that political “classic,” the first president of post-Soviet independent Ukraine, Leonid Kravchuk, loves to repeat”: “We have, what we have.” Or, as I and others often sigh and stress – “This is Ukraine.”
So, at this delicate moment for Ukraine today on both its external and internal fronts, it’s important not to be carried away by frustration and emotions. Not to allow this latest stark reminder of what we have long known about the shortcomings of Ukraine’s judicial system to get the better of us.
And for this “judicial” outrage to be exploited as a diversion by those looking for any excuse to wage their political battles, to play on emotions, sow confusion and division, get hotheads and provocateurs out onto the streets stirring on genuine protesters, and weaken the state and its elected leadership.
We cannot not be blinded and manipulated into seeing things out of perspective. We must view them as they really are – the ugly and unacceptable that need to be targeted and opposed; but, also what constitutes movement in a promising direction and deserves to be supported, not thrown out in our anger or through misperception with the rest of the dirty bathwater.
It is easy to blame President Volodymyr Zelensky, as the protesters expressing outrage against the “kangaroo court” that has just given a draconian sentence to the very unsavory character, Sternenko, who depicts himself as a patriotic activist. But in fact, this accusation against the “guarantor” of Ukraine’s Constitution is barely sustainable and warranted.
As the Kyiv Post has pointed out in its “Kangaroo court” editorial: “whoever he is deserves a fair and objective trial.” True enough. But who is responsible for the mess and disgrace that the Ukrainian court system still is today? Zelensky inherited this nightmare, he did not create it.
I remember very well how when I headed an international nongovernmental organization in Ukraine in 2016-17 financed by the German Foreign Ministry called Democracy International Reporting (DRI), together with our partners we had such high hopes that genuine legal reform in Ukraine was not only possible, but under way. We miscalculated the level of political will under President Petro Poroshenko to implement it meaningfully, and not simply cosmetically.
Zelensky was a political newcomer and, despite his initial legal training and whatever insights he may have picked up from playing a zealous crusading, reformer – Holoborodko, in his immensely popular TV political spoof series “Servant of the People,” he seems to have underestimated the importance of tackling legal reform as a priority.
Better late than never, he now seems to have come of age in this area too and is publicly acknowledging that the overhaul of Ukraine’s legal system is an imperative, the sine qua non of reform, modernization, and Europeanization.
Of course, Zelensky has made mistakes and dubious appointments. One of these, his former chief of staff and supposedly an ace lawyer, the ebullient Andriy Bohdan, whom he stuck to for so long but eventually fired, should have warned him not to neglect legal reform and allow the issue inherited from Poroshenko to fester on.
Having promised to clean up and offer a new start, Zelensky has not yet delivered in this vital sphere. The performance of both prosecutor generals he has appointed, his ambivalent attitude toward the law enforcement agencies, particularly those tasked with fighting corruption, and his stubborn defense of Oleh Tatarov, an official in his office with a murky background and now implicated the Sternenko affair, have raised questions and concern.
On the other hand, after locking horns with the Constitutional Court at the end of last year Zelensky seems to have finally realized what the legal sphere in its present form represents in Ukraine – it’s the obstacle to real democratization and modernization, and a support system for corruption, yet, if improved, it would become the gateway to real change and renewal.
But linked to this is the awareness of the Herculean effort, moral and political, needed to take on this task and the political and political costs involved. Zelensky’s predecessors did not have the stomach or will for it: for him to grapple with it he will need to refocus from the priority of bringing peace in the war to Russia, to the no less complex – perhaps even more daunting – challenge of readjusting the moral, ethical, and structural foundations on which the state of Ukraine rests.
To emphasize how politically complex all this, it should be noted that not even all the members of his own parliamentary faction have supported Zelensky in taking on the more odious representatives of the Constitutional Court, including his former close political associate, the Speaker of the Verkhovna Rada, Dmytro Razumkov.
Western legal authorities, such as representatives of the Venice Commission, however well-meaning, have also complicated matters by applying standards that seem rather misplaced for Ukraine’s imperfect legal setup.
Still, there are encouraging signs. Not just calling a spade a spade as regards the corrupt leadership of the Constitutional Court and wanting to see the scandalous Kyiv Administrative Court dissolved. On Feb. 25, at a meeting he convened with the heads of the government and parliament, Zelensky acknowledged the judiciary is so corrupt that it has lost all credibility and cannot be tolerated any further in its present form.
On March 1, at the All-Ukrainian Forum “Ukraine 30. Development of Justice,” Zelensky pledged that judicial reform will be treated as a priority and all efforts made to restore confidence in the legal system. For this purpose, he announced he was establishing a special commission. At his initiative, parliament is currently considering new moves to implement legal reform.
Yes, true, all this has a ring of déjà vu to it from previous times. But, instead of being made the easy scapegoat for the Sternenko provocation (who stood to gain from this impudent farce of a trial and the sentence it handed down?) by forces hardly supportive of Zelensky, he should be given the benefit of the doubt and a chance, with our support, to take on what has seemed like Ukraine’s mission impossible – the democratic overhaul of its legal system.
We, and the outside world, should monitor closely, and where appropriate assist, through advice and, if necessary, admonishment. Better late than never. But for it to work, Ukraine needs unity at home, to pull together, not tear itself apart.
Sternenko, a victim in this case, but given his dubious background, hardly deserving to be depicted as a national hero, will be able to appeal. And by then, given the stir that his conviction has created, it is hoped that in his case too justice will also be seen to have eventually triumphed.