In Ukraine, scales of justice often imbalanced

Nineteen-year-old Makar was gang-raped, half-strangled and then set on fire in early March. She died three weeks later, but before she did her mother videotaped her. As she waves the stump of her amputated right arm in the video, posted to YouTube, Makar says she hoped her attackers would themselves be raped in prison.

Police had at first released two of the three suspects from police custody. Rumours that the two men were the sons of government officials sparked protests on the streets of Mykolayiv, the town where Makar lived.

Within days President Viktor Yanukovich intervened. An investigating team from Kiev, the capital, visited Mykolayiv, the two men were re-arrested, and at least four local law-enforcement officials were sacked.

The three accused, all in their early 20s, have now been charged with murder, police said. One of them is the son of a former high-ranking regional official.

Ukrainians have long complained that their Soviet-era justice system is manipulated – through bribery or political pressure – by rich, powerful and well-connected people. Critics see the Makar case and others like it as stark examples of a corrupt system. Even government officials concede the system should be improved.

"There are judges who take bribes (and) there are judges who take orders from the leaders of Bankova (the presidential administration)," said Eduard Bagirov, head of the pressure group International League for Protection of Ukrainian Citizens’ Rights.

"It is like a cancer whose metastasis has invaded the whole body. It is not something that has appeared in the last few years. It goes back to the Soviet period."

Semen Gluzman, a psychiatrist and veteran Soviet human rights campaigner, told Dzerkalo Tyzhnya, a weekly newspaper, that the outrage over the Makar case was constructive but that fundamental reforms were needed.

"If there had been no reaction by people, no civil awakening, then in all probability these people would not be in jail," Gluzman said.

SELECTIVE JUSTICE

The most high-profile legal case in Ukraine in recent years was that of opposition leader Yulia Tymoshenko, who was charged with exceeding her powers in brokering a gas deal with Russia when she was prime minister. T y moshenko denied the charges but was found guilty last October and sentenced to seven years in prison.

Western lobby groups say the charges against her would not have stood in a Western court.

"The charges … seem to the experienced eye somewhat far-fetched and one would rather expect them to result in political rather than criminal responsibility, if any at all," wrote Danish legal expert Mikael Lyngbo, a former public prosecutor and police chief who put together a report on Ukraine’s justice system for the Danish Helsinki Committee for Human Rights.

Whether or not they support her, many Ukrainians believe the single-judge Kiev court was part of a vendetta by the president, her longtime political foe.

The presidency denies interfering in the trial. But Yanukovich and his aides agree that the judicial system should be reformed.

"The court system is far from being ideal and there is corruption in the court system," said Andriy Portnov, the key presidential adviser on judicial affairs and one of the main pilots of proposed legal reforms to help Ukraine gain entry into the European Union.

"What we have to do now is work out how to make it (the court system) independent," he said.

Ukraine has no jury system; most cases are heard by either a single judge or two judges. Though accompanied by assessors, these judges – there are about 8,000 of them – regularly come under pressure to hand down a certain verdict, many independent lawyers and rights activists say.

Portnov said some 25 judges had been dismissed in the past two years for illegal involvement in company takeovers across the country, a practice which he said the current administration was stamping out. Official figures show more than 400 law enforcement officers were investigated in 2011 for criminal offences.

‘JUST TRYING TO PLEASE’ MENTALITY

Portnov believes one of the main problems is that law-enforcement officers and justice officials retain the Soviet-era habit of wanting to please officials up the bureaucratic ladder.

"Judges today have sufficient guarantees to be independent  but a judge is only independent to the extent he really wants to be. Unfortunately, post-Soviet mentality sometimes means that a person wants to please somebody else. To deny this would be absurd," he said.

This, Ukrainian social commentators say, leads to a kind of inbuilt impunity for the privileged and wealthy, as well as for their children, known colloquially as the ‘mazhory’, which roughly translates as "the superior ones".

When Ukrainian businessman Vasily Krivozub was found drowned in a Kiev canal in 2007 with an iron radiator strapped to his back, police arrested Serhiy Demishkan, son of the head of the state road construction company Ukravtodor. Two other men were also arrested.

The court heard that the assailants had kidnapped Krivozub, a 62-year-old Soviet-Afghan war veteran, and then tortured him to get him to sign over assets in a company he part-owned.

"Say hello to (Jacques) Cousteau!" one of his assailants called out as they tossed him alive from a bridge, the court heard.

Demishkan had confessed to the murder in a pre-trial investigation, but his confession was dismissed on a technicality. The other two men were jailed for seven and five years for their roles in the crime; Demishkan received a 5-year suspended sentence.

NATIONAL SECURITY

Corruption in the courts is only part of a wider scourge. Andriy Klyuev, newly-appointed head of Ukraine’s internal security council, calls it "one of the main threats to national security" and says that it weakens the effectiveness of state power and local government.

"I believe the survival of Ukraine is at stake — I am not exaggerating," Klyuev, a former first deputy prime minister, told the country’s security council on March 2.

Foreign companies often lose contracts if they will not pay bribes or fail to "out-bribe" their competitors, the representative of one UK-based company said.

Business ventures above a certain level require palm-greasing of some functionary at some level, Ukrainians and business representatives say.

The EU’s ambassador to Ukraine, Jose Manuel Pinto Teixeira, told an investment conference on Feb. 28 that Yanukovich’s pledges of reform "have regrettably produced no such results."

The government says it is commited to change and wants to abolish pre-trial detention for non-violent crimes, promote experienced judges with strong records and punish bribe-taking and corruption in the judiciary.

A new criminal procedural code, overhauling the present one dating from 1961, is expected to pass its second reading in parliament later this month.

A law passed in 2010 has already improved the basic salaries of judges, and a more rigorous method of selecting candidates for judges had been introduced.

Independent lawyer Natalya Petrova says these first reforms are beginning to work.

"You cannot immediately see the results today but that law which was passed 1-1/2 years ago is directed towards making things better," she said.

PRESSURE ON JUDGES

And Petrova had harsh words for the Higher Council of Justice, a 20-member body which includes senior figures from the judiciary and several who are appointed directly by the president.

The Council, which is heavily weighted towards the establishment and the ruling Regions Party, has the power to discipline and dismiss judges and end law-enforcement careers if the right decisions are not made.

"The Higher Justice Council is a punitive body. If a judge reaches a decision that does not please someone else…the judge can be called there and dismissed from his job," she said.

"So…even if a judge is professionally honest and brings in a decision according to the law there is a mechanism by which the authorities can put a judge in his place," she said.

Danish expert Lyngbo expressed a similar view. "The Higher Council of Justice has an unacceptably decisive influence on the appointment of, the disciplinary measures against and the dismissal of judges," he said.

Portnov insists no Council of Justice member has used their powers to interfere in a judgment. "There are no examples of this," he said.

But he concedes that changing the culture will take time.

If they rule against powerful people "many judges perhaps fear that measures might be taken against them," he said. "But though they are afraid of this there are, in fact, no examples of this happening."

RESTAURANT ATTACK

Last July, Ukraine was held spellbound by security camera footage which showed a young man dragging a woman by her hair around the floor of a restaurant in the eastern city of Luhansk. The man had earlier struck her and tipped a drink into her lap.

The assailant in the video, which also found its way onto YouTube, turned out to be Roman Landik, the 37-year-old son of a national parliamentary deputy and a prominent figure in the region himself. Landik fled for Russia but was later sent home where he denied the charges.

Landik was convicted of hooliganism and given a three-year sentence suspended for two years. The court said it took into consideration the fact he had paid compensation to the victim, a 20-year-old model.

Independent lawyer Petrova said that the case, though shocking, was proof that the system is improving.

"If that had happened some years ago and he had gone abroad, he would have remained there at his leisure. But he was arrested and brought to trial," she said.

"Speaking as a lawyer, it is clear there is a beating, there is a crime. But she (the victim) agreed to a sum of compensation…If she had not taken money the decision would have been different," Petrova said.