In her interview for The Ukrainian Week, Valentyna Telychenko, a human rights advocate and Myroslava Gongadze’s attorney, analyzes the existing contradictions in laws on abuse of power, and comments on the Council of Europe's demands to improve Ukraine’s Criminal Code.
“SOCIETY WILL NOT ACCEPT DECRIMINALIZATION WITHOUT PUBLIC DISCUSSION”
U.W.: When Ukrainian Justice Minister Oleksandr Lavrynovych spoke in Strasbourg before the members of the Monitoring Committee of the Council of Europe, he said that Articles 364 and 365 of Ukraine’s Criminal Code (on abuse of power and administrative excess) are not Stalinist and that they were in fact introduced in 2001. Are these statements true?
Abuse of power and office has long been considered a crime in Ukraine. The Criminal Code that was in effect from 1960 to 2001 contained Article 165 on abuse of power and office and article 166 on exceeding power and office responsibilities. The maximum sentence for abuse was eight years in prison with confiscation of property and for exceeding power that caused grave consequences 12 years in prison.
The new Criminal Code, which entered into force on September 1, 2001, essentially copied all these articles (now they have numbers 364 and 365) and somewhat lowered the maximum sentence. Abuse will now entail six, rather than eight, years in prison and exceeding power 10, rather than 12, years. Moreover, confiscation of property was replaced with a fine of up to 1,000 tax-free allowances (UAH 17,000). Thus, there is a tendency to soften punishment. Moreover, both articles in the new Criminal Code were complemented with a point about crimes committed by law enforcement officers. They will face heavier punishment, in particular up to 10 years in prison and possible confiscation of property under Article 364. It is understandable that this category must be punished more severely for these crimes than other citizens. However, there is no good reason to explain why only their property, and no one else’s, may be confiscated. In both cases, it is the same crime committed for mercenary motives. In my opinion, confiscation would have to be well-justified.
U.W.: A draft Council of Europe resolution on Ukraine that will be discussed in Strasbourg on January 26 proposes that both of these articles should be decriminalized. To what extent will this step address the existing flaws, in your opinion?
To decriminalize an article means to recognize that acts it refers to are no longer considered crimes. To decriminalize means to remove a relevant article or its part from the Criminal Code through a special law. We have had cases of this happening to the articles on libel, speculation, etc. Everyone who has been convicted under a decriminalized article has the right to be relieved of the respective punishment. These persons must be acquitted by court.
I am convinced that a broad public discussion should be held about the need of decriminalization. Regardless of what the parliament decides, society will not accept a decision it does not understand. If that is the case, it will be another step toward negating the rule of law in our state. “Under current law, cases should be opened against nearly all our politicians for protectionism”
U.W.: What is the legal sense of the concept of abuse of power?
Article 364 defines abuse of power as “use of power or official position by an official contrary to the interests of the office performed intentionally, for mercenary motives or in other personal interests.” In simple words, it refers to any actions officials perform in order to obtain material or non-material benefit, except salary and legal bonuses. The key point is the benefit. Non-material benefit may be, for example, an improved personal, party or other reputation or image, concealing one's incompetence, careerism or protectionism.
U.W.: So abuse must have intent as its prerequisite, as is defined for example in French law – when a person is well aware that their actions will cause damage to society but still carries them through?
Precisely. But article 365 of the Criminal Code, which establishes responsibility for exceeding power, does not say a word about intent. Exceeding power or office responsibilities is defined as “intentional actions that are performed by an official and clearly exceed the limits of rights or authority given to him if they have caused significant damage to the legally protected rights and interests of individuals, state or public interests or interests of legal persons.”
This article does not mention personal benefit, neither material nor non-material. The entire world defines corruption based on the criterion of deriving benefit. Exceeding power or office responsibilities, even if it has caused grave consequences but has not been aimed at obtaining benefits, is not a crime in Western democracies. If it has caused material damages, the aggrieved party may file a civil lawsuit to claim damages, i.e., it is a civil, rather than criminal, matter. And so, parts 1 and 3 of Article 365 should be removed from Ukraine’s Criminal Code, which will decriminalize the actions they refer to. Part two of this article, which establishes criminal responsibility for exceeding power and office responsibilities accompanied by violence or the use of arms, should be kept in place. “Courts should not be assessing a politician’s image”.
U.W.: What arguments are there in favor of decriminalizing Article 364?
Article 364 is very general, as is emphasized in the PACE draft resolution. Ukraine's Criminal Code has, so to speak, special articles: Article 191 on misappropriation, embezzlement or taking possession of property through abuse of office; Article 368 on accepting bribes (only by officials); Article 233 on illegal privatization of state and communal property. These crimes may be committed only through abuse of power or exceeding office responsibilities. When there is a general article and several that are specialized, there is room for manipulating charges, which makes criminal law less predictable.
Criminal law must be unambiguous and predictable, because it can significantly limit individual rights for a long time or even lifetime. It is all the more important in Ukraine where there are corruption, widespread mistrust in the judicial system, dependent and less-than-adequately qualified judges and limited access to legal assistance and protection for citizens. The law should not give the prosecutor a choice of qualifying actions under article 191 or article 365 or make the court assess a politician’s image, because that is not its job.
We should remember that removing a specific article from the Criminal Code does not necessarily mean that certain actions are no longer socially dangerous. Ukraine's criminal law is not perfect. Removing the first two parts of article 364 does not legalize the offences they refer to but only removes a conflict of law that is now present in the Code.
U.W.: So what demands would you ask of Ukrainian authorities if you were authorized to suggest amendments to the PACE resolution?
The first two parts of article 364 should be removed from the Criminal Code to make it unambiguous. At the same time, a definition of what abuse is should be added to the document and its features-criminal intent and a mercenary goal – should be listed. Also, part three of Article 364, which refers to actions of law enforcement officers, should be made clearer. A special procedure for reviewing previously delivered verdicts under Articles 364 has to be established, because its new redaction is needed only to remove a conflict of law.
Parts one and three of Article 365 should be taken out from the Code. Part two of the same article, which refers to violence and the use of arms, should be edited.
“TYMOSHENKO DID NOT DERIVE PERSONAL BENEFIT FROM THE GAS AGREEMENT”
U.W.: How adequately did the authorities apply articles on abuse of power and exceeding office responsibilities in the Yulia Tymoshenko case?
The verdict, which has already entered into force, even though it still has to be go through a cassation court, pronounced Tymoshenko guilty of exceeding power. According to the court ruling, the excess occurred when she instructed the head of a state-run enterprise, Naftogaz, to sign a gas agreement with Russian Gazprom. The prosecution did not point out, and hence the court did not establish, any personal benefit that Tymoshenko would derive from this agreement. This circumstance –the absence of personal benefit – is a key factor for why Europe sees no corpus delicti in Tymoshenko’s actions. In European understanding, whether this agreement eventually turned out to be good or bad for Ukraine was a question of political responsibility only.
It should also be noted that in the Tymoshenko case the court drew what I believe to be the wrong conclusion when it ruled that her instruction to the Naftogaz chief, conveyed to him through the Fuel and Energy Minister, exceeded the authority invested in the prime minister’s office. Under paragraph 9 of point 2 of the Cabinet’s Regulations, the prime minister may issue instructions to members of the government and heads of other central government bodies that are mandatory for execution by the officials mentioned. Now article 365 of the Criminal Code speaks about actions that “clearly exceed the limits” of authority. The materials of the case contain the conclusion of Justice Minister Oleksandr Lavrynovych and Prosecutor General Oleksandr Medvedko that Tymoshenko did not exceed the limits of authority invested in the head of the government.
Finally, courts failed to comply with the law in the Tymoshenko case a number of times. It was often evident that the judges were not impartial or objective. All of these things are already being considered in the European Court of Human Rights.
U.W.: Was Yuriy Lutsenko also accused of exceeding office responsibilities? How substantial are the charges against him?
The charges against Lutsenko are more complicated. He was charged with abuse of power over his allegedly unlawful instruction to keep Volodymyr Satsiuk’s former driver, who was suspected of having a hand in Viktor Yushchenko’s poisoning, under surveillance. He was also charged with exceeding the power of the Minister of Internal Affairs for ordering festivities to mark Police Day in 2008 and 2009. Additionally, he was indicted under Article 191 of the Criminal Code for embezzlement: his assistant and driver was hired on his orders, and later the state provided him with an apartment.
Because the verdict in this case is yet to be delivered, I will refrain from a detailed analysis of the charges. I will only note that the imputed motive for abusing and exceeding power in this case is that Lutsenko pursued careerism and wanted to improve his image as the Interior Minister. No comment.
With regard to Article 191, the criminal investigation has yet to establish whether he did anything illegal. To me, the state prosecution has not presented any valid evidence to court so far.
U.W.: Before these two causes célèbres, how often were Articles 364 and 365 used for political purposes in Ukraine? Do you know of any similar cases? To what extent is what is happening in the trials of Tymoshenko, Lutsenko, Ivashchenko and other members of the previous government a rule in Ukraine's judicial system? Or is it the know-how of the current government?
I do not know of other examples except the ones you have mentioned. Fighting political opponents though controlled “justice” is something the current government has invented. If you analyze the legal practice of applying articles on abusing and exceeding power, you will see clearly that, with few exceptions, the sentences did not exceed five years in prison and were conditional at that. In other words, the convicted persons were relieved from the sentence if they did not commit a new crime within the probation period. Court verdicts were always very lenient under these articles.
Solving the problem of applying the Criminal Code articles on abusing and exceeding power is just one in a series of steps that need to be taken to improve legislation in our country. Moreover, there is an extremely acute problem with the courts’ independence. Last year, we saw it more clearly than ever. There cannot be a state without a justice administration system. We risk losing not only our European prospects but our future in general.