Potemkin and Kafka: Ukraine’s “New Method” For Fighting Corruption
Corruption is a big problem in Ukraine. The country's ranking on Transparency International's list of corrupt nations in 2010 dropped to number 134 in the world
So, who would not welcome the fact that President Yanukovych, from the beginning of his administration, announced that the fight against corruption would be a top priority?
But very soon it became clear that the “new method” was to “kill two birds with one stone”. Show willingness to fight the corruption and get rid of the most outspoken part of the opposition and scare others from being anything more than a “loyal” opposition.
In one of its very first steps, the new Ukrainian government contacted an American auditing company: Find something to use against them!
Ukrainehas before shown the world that its democracy is mature, because its governments have changed peacefully.
Until now! Because it is certainly a new contribution to the modern history of Europe, that you not only blame your predecessor, but hire a foreign firm to find grounds for criminal cases and then put your predecessors in jail.
In June last year the new anti-corruption program began to be implemented, criminal cases were opened and former government officials were investigated and jailed. Today a dozen former ministers are behind bars or are forced to spend most of their time with prosecutors investigating them while being deprived of any possibility of travelling outside of Kyiv. The most prominent of these is the leader of the opposition, Yulia Tymoshenko.
If you take a look at the actual charges against former officials, you would to see political rather than criminal responsibility, if any at all. Many examples of the charges are strange — they are not cases of personal enrichment, but rather fall under the more abstract label of “abuse of office”. This is a very broad term which can be used for many things.
I remember very well - from the times of former President Leonid Kuchma – examples I would call “abuse of office”. For instance the tax-administration. The tax-police under the Kuchma regime were used as a censorship-tool against businessmen who advertised in newspapers with critical articles. (So the present government knows what they are talking about!)
Prosecutors describe the accused as guilty, and so do Ukrainian officials around the world. But in a society, governed by the rule of law, one is presumed innocent until proven guilty.
In today’s Ukraine less than 0.2% of people charged are found “not guilty”. A charge is similar to guilt, because the judges are dependent on the prosecution, who is dependent on the president who has now got total power over parliament and the government. This is effective concentration of power! And you are guilty if you are indicted!
THE IVASHCHENKO CASE
Here is one of the stories sent to me about Valery Ivashchenko, who was the Acting Minister of Defense of Ukraine for the last Government from 2009 until 2010.
“We, as close relatives of Valery Ivashchenko, would like to inform the world about the new methods of intimidation being used by the new government to suppress the opposition under the sham label of fighting corruption.
The chief investigator calls in a person as a witness for an interrogation and then announces that this very person is now the main suspect. Without any evidence the investigator then opens a criminal case, arrests the “victim” and places him behind bars. Thus, the investigator assumes court functions, but without following the laws of the country.
This is a process where the investigator doesn’t allow any of the close relatives to take part in the case as defenders, although according to Ukrainian legislation they have the right to assist the defense in protecting a family member in court. Through this false process, close relatives are illegally eliminated from the case.
Under this process, documents from an influential institution (the Security Service of Ukraine) are used to allegedly confirm corrupt contracts and become the basis for detaining a person in jail. The documents allegedly contain information from close relatives (wife, son, daughter and brother) and thus, according to the documents, these close relatives can also be suspected of corruption. Under this logic, every family member involved becomes suspect.
In this particular case the investigator has, without any doubt or shame, falsified documents and has then attached these false documents to the case. Without ever having interrogated Valery Ivashchenko’s wife, son, daughter or brother, the investigator has faked their statements. Nobody but the investigator has ever seen these protocols.
In this particular case, neither the accused nor the defense has received permission to view material that supports the allegation of corruption. The investigator, not wanting to grant any time for a genuine trial, has handed the case to the court and has submitted fake protocols.
Furthermore, the judge has failed to pay any attention to the criminal actions undertaken by the investigator during the pre-trial process. Thus, through his actions, the judge has become an accomplice in crime.
Through the above court example, it can be clearly seen that the struggle against corruption in Ukraine is fiction and that the investigators themselves are corrupt".
On 18 April, the court opened the case and Ivashchenko stated: “In answering the question about my guilt I should understand what I am charged with. But I do not understand”.
The lawyer claimed that it was a violation of the law when he had not had the possibility to study all the case materials which include 3,400 pages and material evidence during the preliminary investigation.
THE LUTSENKO AND KORNIYCHUK CASES
The Danish Helsinki Committee of Human Rights has followed two cases of suspected “selective justice” over the past four months and has made its first report of the facts and the legal situation around the investigation and detention of the former Minister of the Interior Yuriy Lutsenko and former Deputy Minister of Justice Yevhen Korniychuk.
From the findings of the first report, it is seen that pre-trial detention is widely used in Ukraine. In the two cases you can see that it is not because of individual, specific reasons, but because of a general broad suspicion that the accused could “hamper” the investigation.
Pre-trial detention seems thus to be a tool to promote a defendant to declare “guilty” in order to end the painful detention.
But “guilt” is not easy to declare when you - as in Korniychuks case - have an indictment on 45 pages that is a broad mixture of what has happened so far and witnesses’ testimony, but without a clear definition of the articles that should have been violated. And there is only one copy of the case, with very limited access for the defense to read and to note – and to remember.
Old cases, that have been closed, can be opened again with the same content but a new judge, and thus a Sword of Damocles can hang over the defendant for years.
The fight against corruption is thus “newspeak” for the fight against the opposition and people standing in the way the ambitions of those in power and any who might hinder them on their road to power and money.
The “reform” of the High Council of Justice last summer means a heavy bias in the composition of the court and the dominance of the president and the prosecutors office.
In January, the president adopted a decree on a new Action Plan Honoring Ukraine's Commitments and Obligations to the Council of Europe. When you have been monitoring Ukraine for so many years, you have seen many such “plans”. Deadlines are sprinkled all over the government – In May do this, in June 2012 do this and that. And don't forget to mention the Venice Commission…
In general all these instructions could have been fulfilled without any new Action Plan merely by fulfilling the decree from 2005 or any of the other numerous “action plans” (EU, NATO) which have been written since then and which duplicate many of these measures.
Ukraineis a specialist in drafting plans, expert groups and first readings! This has been a specialty since Kyiv's membership in the Council of Europe in 1995.
Many of us who experienced the Orange Revolution felt that the main result was the feeling of freedom, especially freedom of expression. You dared to criticize (and there was certainly a lot to criticize). But the freedom was fragile, the judiciary unreformed – at that time unpredictable - but today sadly predictable.
With power concentrated, biased courts and unclear laws, the government can take to court as many people as it wants. As a defendant, you cannot understand the charges brought against you and your lawyer has very little opportunity to defend you, and your guilt is proven by the fact that you are under investigation.
Thus, methods like those in Kafka’s famous book “The Trial” have begun to play a role in Ukraine today.