There is something seriously wrong with Ukraine. There appears to be an inability to bring charges against people who are in, or close to, positions of power. Appearances can be deceptive, in truth there is no inability to bring about such charges, rather, there is a clear lack of will to accept the necessary reforms to make this leap forward towards a rule of law based society. Why? Because those in the upper echelons of power in Ukraine have been able to operate with impunity for many years, they can act illegally or immorally, and know they will get away with their misdeeds, the arrogance that has resulted from this reality has brought that same group of people to a mentality where they think they don’t need to change.
We are in a situation in Ukraine now where discussion about reform related to the rule of law focuses on whether a significant number of new members of the Supreme Court are unfit to hold such high positions, or whether an outline for the creation of a special anti-corruption court suits one person or one body and, incredibly, whether that one person would have the ability to hand-pick the judges of that court. These matters, while important, are at the same time distractions from the fact that at the national level, the entire system of law enforcement in Ukraine is broken – it needs significant remedial action, immediately.
Changing the system requires a change of attitude from the political classes. The impunity must end, now, the arrogance that allows politically connected persons to think they can brazenly flout the law must go too.
For my friends, everything, for my enemies, the law
There are many cases that should have seen action by now. The case of former Customs head Roman Nasirov just edged forward when, 11 full months after being charged with embezzling $70 million, he was formally removed from his post. Have the assets of Yanukovych bag man Sergei Kurchenko been seized, or are the courts being used to have them redistributed?
Where is the justice for those who lost their lives on Maidan? Why has the legal response to the crimes committed against civilians during those protests been limited to a few ex-Brerkut officers who have been released from custody only to abscond to Russia, one after another? Why has there been no identification of the snipers, or even an attempt to identify the snipers, who slaughtered protesters on Maidan on Feb. 20, 2014?
How is it possible that no criminal charges have been brought against the former owners of a bank in Ukraine that at the same time received $5.5 billion in bailout money from the state (the Ukrainian taxpayer, ultimately) and at the same time a private investigation has alleged that fraud cost that same bank the exact same amount of $5.5 billion prior to nationalization? Worse still, not only have no charges been brought, but none other than Prosecutor General Yuriy Lutsenko himself sat down in Amsterdam for coffee with the former major stakeholder of that bank just prior to the results of that investigation being published.
We are expected to believe that this was a coincidence. Worse still, with the proffered “coincidence” excuse the nation is simply expected to overlook how highly inappropriate that meeting was. This, more than anything else, sums up the arrogance which results from this impunity.
Where are the criminal trials against members of the inner circle of Yanukovych? So severe was their blatant thieving it caused a revolution. The pool of potential targets for arrest related to Yanukovych era corruption is vast, yet, no charges have ever been brought. Not one high-ranking former official has faced any charges at all. The investigations of the clan surrounding the former president was so badly neglected that Interpol arrest warrants initially issued for several of them have now lapsed, the post-revolution authorities failed to provide sufficient evidence for the warrants to be extended, they were, essentially, given a free pass.
There are countless examples of such miscarriages of justice in Ukraine, a place where the phrase “Equal Justice Under Law” is simply not understood.
Joint levers of legal system
I’ve long been of the opinion that a key element to further eradication of corruption in Ukraine must be a full reset of the judiciary. The percentage of judges in Ukraine who could be relied on to deliver rulings that are free of political influence or financial motivation is, most likely, in the single digits. That is not a reasonable foundation for a successful rebuilding of this system. The judges have been forced to declare their wealth as part of the successful e-declarations requirement, those whose wealth exceeds their means should be replaced, and there is no excuse not to do this.
But, as has been pointed out to me when debating my position regarding the judiciary, the problem causing the lack of justice isn’t limited to the judges. What about the prosecutors? Before a judge can act, evidence has to be gathered and presented to them. This is the reason why the office of the prosecutor general has always been handed to a figure loyal to the president, in this way, in fact, Poroshenko is actually acting like Yanukovych before him.
Yanukovych had Victor Pshonka, a man he had known for 30 years – they came up through the ranks of local politics (and organized crime) in the Donbas together. When Yanukovych ran to Moscow, Pshonka fled the same day. When activists later gained access to Pshonka’s residence they found an Alladin’s cave of ostentatious décor, expensive trinkets, gaudy paintings, antique weapons, and the like. The office of the prosecutor general, the top cop, had been occupied by one of the most corrupt people in the country. To further demonstrate the depth of the problems Ukraine faced at that time, Pshonka’s son, Artem, was a member of parliament in Yanukovych’s Party of Regions faction, and Pshonka, on Dec. 17, 2009, was given responsibility for disciplining judges.
Following the flight of Pshonka two individuals served short stints as the prosecutor general, until Victor Shokin took over the job on a longer-term basis. Shokin was part of the old system, having served two periods as deputy prosecutor general prior to the EuroMaidan Revolution. Is it becoming clear now why there have been no arrests of Yanukovych era figures? Can we see why the crimes of the Yanukovych period, including those related to Maidan, remain unsolved?
When remnants of the old system were brought into the post-Maidan government, their priorities were twofold – to protect their old friends, and to protect or maintain the system itself. This is a system where, regardless of the blatant nature of a crime, flouting of the law is still possible for a select few. If the prosecutors will not investigate, or will only investigate selectively, there can be no expectation that any judge might be able to pass down a guilty verdict.
The anti-corruption measures and the creation of bodies and structures to combat corruption post-revolution has been unprecedented, this is beyond doubt. Oligarchs have been deprived of their banks (widely used for moving plundered money into the worldwide banking system) and a connected clique can no longer loot state coffers through rigged tender schemes, the foundations for separating politicians from oligarchic coercion have been laid in the e-declarations system and many other reforms have challenged the norms of pre-revolution Ukraine. However, with the levers of first investigation and then second imposing any punitive measures firmly in the control of the political elite, can we say that any of these reforms are unmitigated successes?
If red flags in the electronic asset declarations of MPs are ignored, because the law is only for enemies and investigations are pursued selectively, the law becomes essentially meaningless.
As long as prosecutors fail to act when a crime is connected to people of influence, and as long as judges fail to realize that their responsibility is to justice above any other consideration, Ukraine still has a mountain to climb. As we approach the anniversary of the culmination of the EuroMaidan Revolution and we see that this is our reality today, four years after the sacrifices of the revolution, we have to say that this is not acceptable.
Proper judicial reform is long overdue, window dressing in this area is unacceptable, and the office of the prosecutor general must be fully reformed as well so that it becomes an independent body. Otherwise, it must be shuttered and replaced by a new and untainted body capable where the concept of Equal Justice Under Law is recognized as the central principle of their mission.
People need to be brought to justice, the impunity must end, and the arrogance of thinking otherwise is a cancer on Ukrainian society.
