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8 June

“The steps made largely under the pressure of civil society and foreign partners are not yet irreversible”

Ex-Deputy Prosecutor General on the case of the diamond prosecutors, the threat to reforms, and why the establishment of an anti-corruption court will not heal Ukraine’s judiciary

Interviewed by Roman Malko

Is it possible to reform an agency like the Prosecutor’s Office? To clean up the soviet legacy from it and make it worked in line with international standards?

Of course. Any structure can be reformed when there is desire and political will to do so. The Prosecutor’s Office is a convenient instrument for those in power for accomplishing any short-term goals. What is called the political elite would not benefit from changing it because it will lose serious leverage. Leverage that helps it keep (or so it believes) an artificial parliamentary majority by using prosecution and other tools, for instance. Until there is desire to quit the practice of using the Prosecutor’s Office for political purposes, no time for reform will come.

It’s like in the Lord of the Ring: every next incoming prosecutor general first wants to get rid of that ring, throw it into the flames. But then he realizes what powers it gives and what system he gets into, and he changes his stance. Unfortunately, this will last until political will appears, and a person who will have the will to change everything. Believe me, this is very ungrateful cause. The system has been working in this way for years, most prosecutors have grown used to it. And it’s not like everyone in the system is corrupt. It’s just that many find its conditions comfortable. They are elements of one mechanism, receive their salaries, are used to coming to office and leaving at a certain hour, and feeling secure about tomorrow - or so they think. 

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This brings to mind the case of the “diamond prosecutors”. It has virtually dissolved in courts by now. Why did this happen and who was interested in this?

I still believe that it was an extremely important case, a cause of mindset and principle. If I had to go through it again, I would do it. There is nobody from the old team left at the Prosecutor’s Office. The last prosecutor who used to know the background of the case no longer supports the charges under it. A new team has been compiled. Before, the court would schedule hearings on it twice a month. Now, you barely hear of any. That makes it obvious: the goal is to bury this case. Why? Because it’s a life-changer. The prosecutors viewed it as a litmus test. At that point, many of them were hesitating, contemplating quitting business as usual and starting working anew, watching how it would end. Now they have realized that those who initiated the case were eventually squeezed out of the Prosecutor’s Office. So the system has not changed and one has to adjust, to keep working as they did before. 

Still, people involved in all this have to show some results to the public. The scandalous processes kickstarting from time to time prove this…

The people who have been caught or jailed in the past 25 years were either abandoned or allowed to be caught. Walking out of this paradigm is a change in the system’s principles. If it stalls and the top prosecutors suspected of getting a bribe of US $200,000 and illegal enrichment are truly held accountable, the system will find it hard to remain as it is. Anything else will mean staying within the matrix of what is allowed. 

Under all prosecutors in Ukraine some have been caught and persecuted - a judge, a prosecutor, a tax official. These cases mostly did not end with a real term in jail. So this was an imitation of the fight against corruption. To break this system means to start the end of it, to open a Pandora box. 

What is the nature of the ongoing clash between the Prosecutor General’s Office and NABU? How will it end?

Obviously, the nature is in the competition for the championship in law enforcement. This is a phenomenon of the worldview - a competition between the old system and the new. I still see NABU as an island of freedom, a ray of hope for profound changes in our law enforcement system. The old system is resisting. And it’s not only the prosecutor’s office, but the Security Bureau of Ukraine, tax authorities and more. NABU is largely on its own. It has nowhere to look for friends. It can only rely on itself and the support from the civil society, our foreign partners. Who will be the winner of this competition will be extremely important. 

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How much can our international partners influence Ukrainian authorities? On one hand, they spend a lot of money on various assistance programs. On the other hand, our officials are behaving as they see fit…

I can say openly and confidently: the international partners that provide institutional support to the establishment of anti-corruption agencies give no instructions or recommendations on who their “clients” should be. This is out of the question. Of course, they would very much like to see a result. And, unlike Ukrainian citizens who want it much sooner, our international partners understand the context and the fact that not everything can be done quickly in Ukraine. By the way, I side with the Ukrainian citizens in this because I share their concerns. Especially after the Revolution of Dignity, after the price we paid to get the government changed and to try to change fundamental approaches in Ukraine. Therefore, I am confident that there have been no recommendations on how to do it all. They (international partners - Ed.) cannot and do not want to dictate Ukraine’s agenda. They can share best practices, experts and resources. But in the end it’s about the country’s sovereignty and its willingness to change. Unless there is such willingness, nobody will force us to change. Civil society and international partners have already done their best to encourage the top political will. 

Is this because we started reforms from the wrong end? Why didn’t we start with reforming courts?

This is to divert attention from the overarching problem. The way the current competition for seats at the Supreme Court is taking place (some of the recommended judges issued verdicts to ban assemblies during the Maidan) shows that the judiciary is not changing. That we are channeling our efforts to treat symptoms, not the disease. Eventually, those involved will shrug and say that the effort failed. The National Agency on Corruption Prevention is one example. It is a very important agency and we used to have hope in it, like we have hope in NABU now. Eventually, however, everything was done to virtually cancel out NACP’s activity. Nobody hopes that it will start working normally again anymore.

Take the concept of anti-corruption courts. I believe that reforming just one section of the judiciary is dealing with symptoms, not causes. It means that the entire judicial system can stay as is, while we will set up this nice little poster child of anti-corruption? You can’t make a clear stream in a swamp. The experience with the police proves it. The well-launched façade reform of the patrol police failed to grow into a fundamental reform of the police. As a result, people start questioning even the patrol police now. The same thing will happen with the court. We can happily channel all resources to set up an anti-corruption court today. Tomorrow, the commissions will select the same judges as in other segments of the judiciary for it.

This will be a wasted effort unless there is political will to fight against corruption and change the system. A different judicial system needs to be set up with judges that meet certain criteria, are hired from scratch and paid normal salaries. Well-known untainted lawyers should be allowed to do this, engaging international experts and civil society. This would allow us to reboot the system.

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Meanwhile, the establishment of one section, even if very important, will bring nothing. In some countries no anti-corruption courts have been set up but anti-corruption agencies have succeeded. A specialized court and anti-corruption agencies are not directly interdependent. 

Look at the case of the diamond prosecutors: is anyone in the law enforcement system concerned about the fact that hearings on it take place once in two months? Why are the law enforcers not interested in this? Because they can blame the court for idling around till the end of time. It’s a great excuse: hey, we’ve done everything but the court is stalling. I have not seen a single serious criminal proceeding that would get to a proper trial and get buried by the court, other than the case of the diamond prosecutors which is hampered through the court, not by it. This hampering is supervised by other people.

If the process is serious, it should be open to the public. That will make the quality of the evidence presented obvious at once.  

Take the case of the diamond prosecutors for example: it featured a lot of witnesses who showed how the bribes were given, in what order and on what days. All circumstances were revealed. What is the outcome? No verdict till this day. It would be one thing is the courts were pardoning those charged in such cases. But there has been no precedent like this yet. I can’t say now that the entire anti-corruption reform is suffering because no anti-corruption court has been set up. It is suffering because of the lack of political will.

We hear more and more news about the unblocking of foreign accounts of the Yanukovych regime. Why is this happening?

This is the result of corruption and lack of professionalism. But I would look at every case individually. I don’t have any other explanations of why no results have been delivered after three years. Our international partners have put certain assets under temporary arrest which, as they believe, could have come from abuse by former Ukrainian officials. They then waited for the evidence of illegal sources of these assets from Ukrainian officials. Take the EUR 50mn arrested in Latvia: that money stayed on the accounts waiting for the Ukrainian side to prove that it was gained illegally. Eventually, Latvia wrote it off as no man’s money. We now hear of talks to return it. I don’t think anyone will return it unless Ukraine proves that this corruption crime was committed on its territory. If this happens, the Latvians will be willing to consider the redistribution of the confiscated assets.

How much real progress has Ukraine made in its fight against corruption?

Some things have been done. The NABU has been set up, it enjoys relative independence. We have seen some of its results. The National Agency on Corruption Prevention was established – it has not worked but we have the e-declaration database at the very least.  The mere fact that it exists (even if it has not led to any consequences stipulated by law) is very important. So I can’t say that nothing has been done.

Whatever has been done does not deliver an immediate effect but works in the long-term prospect instead under proper circumstances. But these accomplishments will fade quickly and we will return to the initial stage if reforms don’t proceed. The steps made largely under the pressure of civil society and foreign partners are not yet irreversible. We see a setback in most sectors. We even see something as unprecedented as the requirement of e-declarations for anti-corruption NGOs which the EU, the IMF and other international organizations have been talking about for days. They don’t merely hint, they scream that this is in violation of all European, international and other principles, as well as in defiance of logic. Yet, these amendments have not been changed, although even Russia has no such law.

I think that those in power have done this as revenge against civil activists who have put enough pressure on them to introduce e-declarations (and they don’t hide it). I don’t see how this can benefit them, other than bring a weird sense of revenge and satisfaction.

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What prospects do the cases against State Fiscal Service Head Roman Nasirov, Narodniy Front MP Mykola Martynenko, Viktor Yanukovych have?

It is difficult to talk about prospects without examining the details of their cases. Nasirov’s case has not been sent to court yet, so it’s hard to assess how well-grounded the charges are and what the results of the proceedings will be. Martynenko’s case is similar. We are waiting to see how it goes further: whether NABU will collect sufficient evidence to send the criminal proceedings to court. How solid will this case be? I think we will hear the answer about its prospects in court this year. 

On the Yanukovych case, I haven’t really looked at the facts. I think it’s too late for it. These things were probably timely after Yanukovych fled Ukraine. But a case on state treason against Yanukovych after four years of no cases on economic and other crimes must look weird in the eyes of society. I don’t think it’s what the public expected.

Is it possible that these cases will face the same fate as the case of the diamond prosecutors?

That would very sad because these are the cases in NABU’s weight class. As far as I know, NABU leaders take their promises seriously. If they said a, I think they will say b as well. What matters here is the harmonious work of NABU and specialized anti-corruption prosecutor, as well as continued media attention on these proceedings in courts.

If these cases face follow in the footsteps of the diamond prosecutors, we will have to say that both the reform of the prosecutor’s office and changes in the mindset of prosecutors have failed; the expectations of the anti-corruption reform have not been met. So we will either see these and other criminal proceedings in court, or reforms will fold down.

What chances does Ukraine have in international courts against Russia?

I have taken part in the preparation of these processes, in talks with the Russian delegation in Minsk, together with Olena Zerkal and people from the prosecutor’s office. Among other things, we have provided evidence of Russia’s neglect of its obligation to provide legal assistance in cases on the financing of terrorism. By the way, we have provided a lot of arguments to which the Russian side had no answer. This made it into our case at the International Court of Justice.  I think it is a good try. And the Ministry of Foreign Affairs has worked creatively in this one. In fact, it is the first process that continues. For instance, the Georgian case ended very quickly. This one carries on and our arguments are heard. This is a very good sign. The team has good lawyers hired by the Ukrainian government. But don’t expect the court to solve all our problems. Still, I think that this is an important step which, together with others, can help Ukraine in its fight with Russia.

How our reforms are viewed by your colleagues at international institutions? Do you hear a lot of criticism? More generally, is Ukraine very far behind the legal discourse that prevails in the civilized world today?

It’s hard not to notice the disappointment of our international partners. Clearly, they will not do our reforms for us. They will not force us to do anything. But they also feel sorry for the efforts they have invested, sometimes with no result. Many are frustrated with the setbacks, the lack of reforms in law enforcement agencies, the lack of deeper reforms in the police. Because a lot of resources have been invested into the police – the training, the uniforms etc. These reforms are not delivering quick results, and sometimes they roll back.

Foreign partners have a fairly pragmatic approach: they have done all things possible, they have shown what shouldn’t be done. But they won’t do things for us. Clearly, we should not expect continued financial assistance from international partners on such a huge scale. They will not invest where they see no political will to change things. And this is not just one foreign partner. There are plenty of those who have halted funding in certain segments specifically because they didn’t see successful use of the money.

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When I worked at the Prosecutor General’s Office, our department involved the best international experts to help the investigators and did not pay them anything. The problem was that the investigators would not even show them case files under the pretext of secrecy of investigation.

Believe me, it is extremely difficult to provide expert assistance and advice on how to do a financial investigation in the best way possible when you have no access to the materials of the criminal proceedings. As a result, the Americans have said “Let us know if you need anything” and left. So have the Brits. Experts from the International Center for Asset Recover of the Basel Institute of Governance stayed longer. They were staying at our International Department and working with requests for legal assistance. We provided draft requests to them and they were sending them out properly. By the way, they engaged an expert in financial investigation – a British Russian-speaking specialist hired at their expense. But he was not given the files of the respective criminal proceeding. So they gave us whatever help they could.  The situation today is that no criminal proceeding on any former top official (on economic crimes or embezzlements investigated by journalists; I don’t mention Yanukovych cases or state treason here) has got to the stage of hearing in court.

BIO

Vitaliy Kasko, born in 1976 in Lviv, graduated from the Lviv National Ivan Franko University in 1998. He worked as investigator, senior investigator, deputy head of the investigation department at the Lviv Oblast Prosecutor’s Office, senior prosecutor at the General Procesutor’s Office Central Apparatus, and Director of the International Legal Department at the Prosecutor General’s Office in 1998-2005 and 2007-2010. In 2005-2007 and 2010-2014, he worked as a private lawyer. From 2014-2016, he served as Deputy Prosecutor General of Ukraine, a member of the Prosecutor General’s Office Collegium.

 

The case of the diamond prosecutors was a high-profile arrest of Main Investigative Bureau Director Volodymyr Shapakin and Kyiv Oblast Deputy Prosecutor Oleksandr Korniyets in July 2015. They were caught red-handed taking bribes. Hundreds of thousands of dollars cash, UAH 3 million, and a pile of diamonds were found in their office. The court released them on bail and the team of prosecutors that worked on the case was gradually squeezed out of the Prosecutor General’s Office.

Translated by Anna Korbut

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