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27 January, 2012  ▪  Спілкувалися: Oleksandr Mykhelson,  Dmytro Hubenko

Ukrainian Justice - Perception and Practice

Mikael Lyngbo: Ukraine has decent legislation,but gaps in procedural process

Mikael Lyngbo, a citizen of Denmark, does not have any official office. A former chief of police, public prosecutor and a ranking official in the Danish Security Service, he is now a representative of the Danish Helsinki Committee for Human Rights. Nevertheless, his reports largely shape Europe’s view of causes célèbres in Kyiv. On December 1, Prosecutor General of Ukraine Viktor Pshonka even gave Lyngbo a public invitation to have a discussion on his reports to the Helsinki Committee. However, this took place only after a meeting with representatives of the Prosecutor General’s Office (PGO) in the summer, while Pshonka himself saw Lyngbo only long enough to shake hands.

In terms of facial features and expression, Lyngbo bears a slight resemblance to Russian standup satirical comedian Mikhail Zadornov, and it seems he could easily use the latter’s famous punch line: “The West cannot comprehend this!” But this is a serious matter to him. His reply to accusations that Europe is “interfering” with Ukraine’s administration of justice is that under our laws, the norms of the European Convention on Human Rights which Ukraine recognized in 1994 when it joined the Council of Europe, are an integral part of Ukrainian law. The problem is that few people in Ukraine remember that.

U.W.: When did you first look at cases opened against Ukrainian officials?

I wrote my first report in April 2011. At the time, Ukraine was about to take the chairmanship in the Committee of Ministers of the Council of Europe, and I was monitoring only the cases of Yuriy Lutsenko and ex-Deputy Minister of Justice Yevhen Korniychuk. But later, after I spoke to people here, I also started monitoring the cases of Yulia Tymoshenko and former acting Minister of Defense Valeriy Ivashchenko. My second report in August was based on these four cases. I consider the August report my main report in which I give a broad description of the problems faced by the Ukrainian rule-of-law system. My third report, in November, only dealt with the new charges against Tymoshenko. I personally felt the need for it, and I got so many questions from the people I deal with in Europe about what was happening here. Is it legal? Can you actually prosecute someone for something that happened 15 years ago? What about the old tax cases? They’ve been dead and away for 6-7 years. Can you suddenly pull them out again?

Therefore, I made the third report answering these questions on the specific new cases against Tymoshenko.

U.W.: President Viktor Yanukovych expressed his regret on several occasions that trials against former ranking officials must conform to imperfect Soviet legislation.

In my opinion, your legislation, both criminal and procedural, is not so bad, at least as far as I can tell relying on my own experience of enforcing laws in Denmark. You have pretty normal laws, but what surprises is the way they are enforced and perceived.

I am surprised over and over again to see how passive and middle-of-the-road the role is that Ukrainian judges play and how little they take upon themselves the role of what we would call court management – checking, controlling and making demands of both the prosecution and defense lawyers.I could sit for hours hearing them fighting about some detailed problem that any qualified judge I know of would have settled in 10 minutes. Probably they are afraid of authority.

U.W.: They have reasons to fear. Here is one example: several months ago a criminal case was opened in Crimea against the head of an appeals court, because his court’s building did not have the so-called secluded room where judges meet for discussions. But in fact, such a room is missing in most appeals courts due to a lack of funding. There are many similar circumstances that a Ukrainian judge cannot alter but over which he can find himself under investigation and in a pre-trial detention unit.

I was not aware of this story. But there is another fact that I am also surprised to see in Ukraine – numerous disciplinary cases against judges. If they are the result of corrupt judges, then that’s fine with me: of course, corrupt judges should be disciplined and removed. But if they are an attempt to discipline judges and make them do what they are "supposed to do", then I’m concerned. In a number of cases it turns out that a judge changes his mind in a certain case after an investigation was started and then proceedings end. This coincidence may be evidence that judges are simply being “pulled by the strings,” right? Anything like this would be a huge scandal in Europe. I mentioned this in one of my reports.

Of course, there are corrupt judges in the West, too. But at least disciplinary cases against them are not handled by prosecutors. Prosecutors should not discipline judges— judges should discipline prosecutors. That’s the proper balance of power. And judges should be disciplined by other judges. Unless, of course, it is a criminal matter, but disciplinary cases are normally not criminal matters. In principle, there is nothing above the judge. There can be, say, higher court judges, Supreme Court judges, etc. And that’s also the system we have, but not a system where the prosecution is the disciplinary authority of judges. It’s unheard of.

U.W.: But we do have the Higher Council of Justice…

The reform of 2010 put it in a very powerful position, and its composition is far too influenced by the executive branch and the prosecution. But the ultimate question is: Who has the actual power? Who makes the actual decisions? Such an enormous concentration of power in the Prosecutor General’s Office – that’s what is setting the standard. According to the law, they are supposed to take the initiative in disciplinary cases. So this whole question of disciplinary cases undermines the authority of the court.

U.W.: You met with representatives of the Prosecutor General’s Office. Did they try to change your critical view of this matter? What were their arguments?

Early on, I met with First Deputy Prosecutor General Renat Kuzmin. Deputy Prosecutor General Yevhen Blazhivsky, head of the investigative division in the Military Prosecutor’s Office and department chiefs were also there. When Kuzmin was in Brussels to brief the Socialist group of the European Parliament, he was apparently once again met with arguments from my reports, as was the case wherever he went. Now they decided they had to make an official, formal answer. So they are about to prepare a report answering my third report. And the people we met were, as I was told, tasked by Mr Pshonka with writing that report. In the near future, we can expect a report with the version of the PGO on the questions I have raised.

So that was the purpose of the meeting – to establish common ground and a common understanding. And that was the background for what was mentioned in the press release from the PGO on the meeting, because Kuzmin started criticizing my information as one-sided, saying that I should have also contacted the PGO to have their version and their data. I couldn’t agree [that we were biased]! I said that I based my information on what was in the media, public information. I also talked to defense lawyers. We met with the PGO the last time in July on our initiative. Since then we have contacted them a number of times to have meetings but have never succeeded. On a number of cases, when I met with specific prosecutors in court, I contacted them and tried to have a dialog with them. All of them said, “We are not authorized to talk to you.” So I could only say, “We have actually tried to get your side of it. But we just couldn't.”

Basically, I agree – I do want to have the information. In a number of cases, we got original documents and based our reporting on that. The outcome of the meeting was that we agreed and now they apparently want to meet with us regularly. A senior prosecutor has been appointed as our contact point. [On December 15] I sent her my first questions based on a meeting, because I received information from them that contradicted information I had from other sources.

U.W.: What was it about?

Among other things, it was about other investigations that had been started against Tymoshenko and whether she had been informed about them. There were a number of cases: a murder case (the murder of businessman Yevhen Shcherban. – Ed.), an attack on a detention center, an attempt to bribe Supreme Court judges, etc. I need to constantly check and control both sides. I know that both sides will try to use me when I am accepted as an adviser by the EU ambassador, the American ambassador and international organizations. If that’s the situation, of course, they’ll try to manipulate me, and both sides do. So I have to check both of them.

U.W.: Why do you think it is so difficult to obtain truthful information? Is it a result of disorganization or an intentional effort?

Your prosecution has a secretive tradition, but in general you also need to respect the privacy of  information. For instance, one of the things I am actually criticizing Kuzmin for is his statements on television on Friday night, October 28: in a live broadcast he mentioned that Tymoshenko was suspected of [involvement in the] killing of Shcherban and the attack on a detention center. But I had never heard about that before! It now turns out that no charges were brought against her for the murder. They’re investigating whether there is background for opening a case, but it has not been opened. And again, no prosecutor should go public with a suspicion that is so unfounded at the time.

U.W.: What about the charge of attacking the detention center?

I had contradictory information. I asked Kuzmin during a meeting whether there was any investigation opened against Tymoshenko for that. He confirmed it. I asked him whether Tymoshenko knew that. He, again, confirmed it. Then I asked [Serhiy] Vlasenko (Tymoshenko’s defense attorney. – Ed.) about it, and he denied it. So I went back again, and now they have confirmed that there was an investigation opened in 2004. This led me to the next question: What has happened since 2004?

The really important question in all these cases is “What is the motivation?” For example, when Tymoshenko is being prosecuted, is it the result of a professional legal assessment based on new information that was not available before? If that’s the case, you can start discussing the question of opening an investigation based on something that happened 15 years ago. But of course, in itself, it does raise suspicions.

During the meeting in the PGO, Kuzmin completely agreed with me that it would have been incorrect to reopen these old cases if they had been legally closed or suspended at that time. However, he stated that that was not the case, because they had been closed illegally. I asked him and found out that it was due to a corrupt prosecutor general. This made me ask: “Does it mean that all the decisions made by Sviatoslav Piskun were about to be reviewed? Or only the decision in the Tymoshenko case?” If the latter was the case, it did not contradict the suspicion that there was a political purpose. If you have a corrupt official, you have to review all his decisions, not just the ones that are convenient to you. Then we had another long discussion about why exactly this case had been chosen.

U.W.: During the Tymoshenko trial most witnesses for the defense and a good part of its evidence were rejected by the court under various pretexts – for example, that ex-officials of her government could be partial to her. This was the judge’s inner conviction, because no facts were provided. Is there a way in Europe to prevent situations in which a judge can pass decisions based on his beliefs but not solid facts?

Not at all. The only demand we have in the European Convention is Article 6 on fair trial. A fair trial is an impartial trial where both sides are allowed to present their evidence. A case in which the defense is not allowed to present relevant testimony will not be considered fair and will be overruled by the European Court.

That's the overall picture of it. I am not in a position to take sides on whether the individual decisions of the [Pechersky] Court on whether to allow witnesses or not was justified.The judge also has the task of concentrating [on the case] and not wasting time on irrelevant things. For example, I’ve seen a statement from the formal representative of Naftogaz who represented this company in the gas case against Tymoshenko. He concluded as a lawyer that Naftogaz had suffered no financial loss. And when he presented that, he was removed from the case and was dismissed. As a judge, I would be very hesitant to not allow such a witness. To me, he looks like a relevant witness. But, again, I’m not in a position to take sides.


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