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12 March, 2012  ▪  Oleksandr Mykhelson

Concrete Justice

Ukraine is governed by prison rules

It has become a journalistic cliché to dub an unfair verdict a “loss for the system,” but often other words fail to describe the situation. The verdict dealt to ex-minister Yuriy Lutsenko by the Pechersk Court on February 27th is one such instance. Both the court proceedings and the sentence that followed are an accurate reflection of Ukrainian policy today.

CRIME AND PUNISHMENT

When the Pechersk District Court sentenced ex-premier Yulia Tymoshenko to 7 years in jail, government representatives talked about the multibillion-hryvnia losses in state funds caused by the gas deals she had signed. In Lutsenko’s case, the damage incurred by the state is formally qualified as “especially large losses,” although amounting to less than $100,000 USD. Prosecutors accused Lutsenko of having organized an illegitimate and untimely pay raise, procuring an apartment for his driver, and excessive spending for Police Day celebrations in 2008 and 2009. According to Oleksiy Bahanets, Mr. Lutsenko’s lawyer, none of the witnesses confirmed that the ex-minister was actually guilty of the charges filed against him, yet this failed to prevent the court from returning a guilty verdict.

Mr. Lutsenko will have to repay the government nearly UAH 650,000 (around $81,000 USD) for the two celebrations. The court also ruled to have his assets confiscated, including a three-room apartment and three cars documented by investigators following his arrest. Yet the key part of the verdict is the 4-year jail term, of which the minister has already served 14 months in a pre-trial detention center.

The main violation with which he was charged was “abuse of office resulting in significant damage” under Art. 365.3 of the Criminal Code. Such violations usually entail a 7 to 10 year  prison sentence for this category of crime, yet the prosecution requested only 4.5 years for Lutsenko, and the court sentenced him to 18 months less given the fact that he has underage children and no previous sentences.

In 2005, Mr. Lutsenko notably initiated the interrogation and 4-month detention of Borys Kolesnikov, then Head of the Donetsk Oblast Council, who is now Vice Premier for Infrastructure. Although Kolesnikov ultimately did not serve the full 4-month jail term, there is still a popular belief that Mr. Lutsenko “got a year for every month Kolesnikov spent behind bars.”

MP Olena Bondarenko, who campaigned staunchly for Mr. Kolesnikov’s release while serving as his press-secretary in 2005, made a revealing comment directly following the announcement of Lutsenko’s guilty verdict. In response to the EU’s statement of “disappointment” with the verdict, she expressed disappointment with the EU, which, according to her, had remained mute during the “repression” of 2005. Such claims suggest that members of the ruling Party of Regions view trials against opposition members as revenge in the first place.

Clearly, the government’s intent to isolate Tymoshenko and Lutsenko as charismatic leaders is unquestionable here. At the same time, the fact that Ukrainians never stood up to support those put behind bars proves that one-time Orange Revolution leaders do not pose any critical danger to the regime, at least not at this point, nor have they been a major threat in terms of organization as proven by the most recent local elections.

All this hints at the fact that the regime had no pragmatic necessity to put Mr. Lutsenko, among others, in jail. It looks like their real motives reached far beyond any reasonable motivation. Perhaps Lutsenko and Tymoshenko reminded President Yanukovych of his prison experience most frequently and painfully, prodding his deep psychological wounds and insecurities. This might have prompted him to put them through a similar experience. The two also used to be among the most radical leaders of the Orange camp both in 2004 and while in power. Thus, their imprisonment could be viewed as the result of Yanukovych’s subconscious fear of a new Maidan uprising.

“REAL MEN” AND “LOSERS”

Following Lutsenko’s trial, the EU Ambassador to Ukraine Jose Manuel Pinto Teixeira said specifically that President Yanukovych had not kept his promise to struggle against corruption. Underlying this statement, though, was a hint at the president’s commitment to stop political repression. Unofficially, Western diplomats have been discussing this commitment for a long time. In the heat of his battle, not only did Yanukovych take intentional steps to cool down Ukraine’s relations with the West, but went as far as to break his promise, which seems in complete opposition to his carefully crafted image of a “responsible” politician brought up in the proud Donbas where “promises are valuable.”

In some circles, however, honesty is considered appropriate only with equal or stronger opponents. In contrast, keeping a promise given to a loser is embarrassing. In fact, dumping a “loser” is a must for a “real man,” otherwise his reputation will be tarnished in the eyes of other “real men.” From this standpoint, the Ukrainian president indeed does not view Europeans as equals, as the country’s tense relations with Europe hardly seem to bother him.

After all, the government has been running the country in what the press has labeled “bulldozer style” for years. Given the moves they are making, top officials including Yanukovych himself appear confident that the only path to success with a given initiative is the very tactic that brought them to power in the first place.

Viktor Moyseyenko, Chief of the Amnesty Service under President Yushchenko, provided some revealing figures in this context. According to Moyseyenko, Yanukovych restricted the grounds for amnesty of those imprisoned in his decree of September 2010 (a pardon is granted only by the president of Ukraine).

Moreover, Yanukovych granted pardons to just four people in 2011, compared to Presidents Yushchenko and Kuchma, who used to issue amnesty decrees for nearly a thousand people every year.

All branches of government are following the methods employed by the country’s leadership. Andriy Portnov, Head of the Main Department for the Judiciary in the Presidential Administration, is responsible for judiciary reform. He mentioned a shocking figure during a recent interview: only 0.2% of Ukrainian court trials result in not-guilty verdicts. He ensured everyone that the reforms he was proposing would improve the situation. When this will happen—if it ever does—is unknown.

Ukraine’s tendency to backpedal reforms could also be the result of its leadership’s psychology. Paradoxically, the cult of brute force and “rule of the strong” does not always facilitate radical reform. By contrast, reforms are normally encouraged through huge incentives, such as patriotism or the desire to be remembered in history. Neither the prisons where the president spent his youth (undeservingly, according to Yanukovych) nor the turbulent businesses from which the current “elite” grew in the 1990s have welcomed any abstract ideals of that sort. The key objective of both is to get the masses to obey in order to ensure their own safety. In any case, that was the common background of many current officials, and it could not help but affect the mindset of the figures described in this article.

As to specific politically motivated criminal cases, one thing to remember is that four years for Mr. Lutsenko and seven years for Ms. Tymoshenko are not necessarily the limit. A separate case is still open against Mr. Lutsenko for allegedly issuing an illegitimate order to spy on the driver of Volodymyr Satsiuk, ex-Deputy Chief of the SBU, who was suspected of arranging the poisoning of Viktor Yushchenko in 2005. Some cases initiated against Ms. Tymoshenko during recent proceedings are also shelved and ready. Some, such as the one regarding her Single Energy Systems of Ukraine company, were renewed during Yanukovych’s presidency even though their statute of limitations was long expired. In theory, this allows the ruling party to trap both Lutsenko and Tymoshenko in yet another trial immediately after their first jail terms are completed. This would be a perfectly natural solution given the way “real men” think.

 

RESPONSE OF THE WEST

                          

“We are disappointed with the verdict against Mr. Lutsenko, which signals the continuation of trials in Ukraine which do not respect international standards as regards fair, transparent and independent legal process.”

A joint statement by Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy, and Štefan Füle, the EU Commissioner for Enlargement and European Neighbourhood Policy

“This verdict draws so much attention because the charges contain no trace of corruption at all. Even if the charges are assumingly justified, this is a typical mistake in office.”

Pawel Kowal, Chairman of the EU-Ukraine Parliamentary Cooperation Committee in the European Parliament

“The former Minister of the Interior was not given a fair trial, and the charges of which he was found guilty are absolutely no justification for a prison sentence.”

Jean-Claude Mignon, President of the Parliamentary Assembly of the Council of Europe (PACE)

“We urge Ukrainian authorities to dismiss Lutsenko and other members of the former government who are now in custody.”

Victoria Nuland, the spokesperson for the United States Department of State

“The verdict… aggravates the impression of selective politically-motivated justice.”

Cornelia Pieper, State Minister in the German Foreign Office

“The verdict to Yuriy Lutsenko casts doubt on the independence of the Ukrainian judiciary

Carl Bildt, Foreign Affairs Minister of Sweden

“This is yet another case of apparent political bias and arbitrary prosecution in Ukraine.”

John Baird, Foreign Affairs Minister of Canada

"The conviction of former Ukrainian Interior Minister Yuri Lutsenko is deeply concerning and another example of the decline in respect for the rule of law in Ukraine."

David Lidington, the UK Minister for Europe

“Selective justice against opposition members and procedure violations during the process allow us to assume this is a politically-motivated case.”

An official statement of the Foreign Affairs Ministry of Poland

“We consider the trial and the four-year imprisonment of Mr Lutsenko to be another evidence of selective and politically motivated justice in Ukraine and as a form of continuing political revenge against former government representatives.”

An official statement of the Ministry of Foreign Affairs of the Czech Republic 

SELECTIVE JUSTICE

The Ukrainian government keeps assuring its voters that they “are all equal before the law” unlike in earlier times and that even current officials end up behind bars. In reality, though, the situation regarding equality is not improving at all in Ukraine. It is possible to avoid criminal liability even for murder, including pre-meditated murder.

The Demishkan is one of the most scandalous incidents in recent years. In November 2006, businessman Serhiy Demishkan, assisted by two friends, kidnapped, transported out of Kyiv and murdered his 62-year old business partner Vasyl Kryvozub. The crime was particularly violent as the kidnappers first smashed the victim’s ribcage then drowned him. During the pre-trial investigation, Demishkan, the son of a then Party of Regions’ MP who is currently the Chairman of the State Service for Automobile Roads, was released from custody under an undertaking not to leave town. In late 2011, the two accomplices involved in the murder committed by Demishkan, Jr. were sentenced to seven and five years in jail, while he himself received a suspended sentence. After the press raised a scandal, Kyiv Oblast Prosecutor’s Office stated that an appeal would be filed against the verdict.

It often happens, that incidental violations such as car accidents, involve “equal” representatives of government authorities. If this is the case, the incident can be backpedalled to please both parties. This was exactly what happened in the case of Oleksandr Kachur, the young Mayor of Nemyriv, a town in the Vinnytsia Oblast. In January, he ran over a top official of the Oblast SBU Department at a pedestrian crossing. The media learned of this from Valeriy Nonik, Chief of the Oblast Police Department, who also said that Mr. Kachur fled the scene of the accident, but admitted to having committed the crime after being identified by the police. Despite this admission , the Prosecutor’s Office refused to initiate a criminal case against him on February 6. Notably, Oleksandr Kachur’s father is Viktor Kachur, former mayor of Nemyriv who has also demonstrated his ability to come to an understanding with the law. In 2010, he faced charges of bribery and negligence. The first case was dismissed while the second one ended with a suspended sentence.

The most outrageous is the System’s habit to protect its guilty “homeboys” when they violate the rights of average people, including the right to life. In November, the court dismissed the case against  Ms. Solovei, a 29-year old employee of a local court who ran over and killed a 44-year old mother of three with her Mercedes on the sidewalk in the center of Kyiv. The case was dismissed under amnesty. A police officer involved in the murder of Ihor Indylo, a 20-year old student murdered in May 2010 in one of Kyiv’s police stations, was also released under amnesty. Officers Kovalenko and Prykhodko claimed that the student they had arrested was drunk and had suffered a fatal injury when he fell off a bench. The victim’s family tried to prove that the student had been beaten to death at the police station. Under the December 2011 amnesty, Mr. Kovalenko was released as the father of a five-year old child, while Mr. Prykhodko received a five-year suspended sentence.

In May 2007, a Mercedes driven by Serhiy Kalynovsky, the step-son of oligarch Dmytro Firtash, hit a parked Zhyguli, occupied by Ensign Volodymyr Kulykovsky. Mr. Kulykovsky died immediately while his passenger died later in the hospital. In June, Serhiy Kalynovsky was released from custody under an undertaking not to leave town - a few days later he was detained at an airport, from which he was intending to fly to Israel. After this, the oligarch’s step-son was immediately hospitalized. He disappeared from the hospital on May 15. A year later, news was leaked to the media that the case was closed “due to lack of criminal grounds.” The subsequent scandal forced Oleksandr Medvedko, the then Prosecutor General, to promise that the case would be reopened and that the investigator who closed it would be duly punished. To this day, there is no information on either the punishment, or the outcome of the investigation.

In September 2008, Vitaliy Feingold, the son of a Simferopol City Council MP, ran over and killed Anna Mishutkina, a 25-year old biker, when exceeding the speed limit in his Bentley. He was initially given a three-year suspended sentence. In August 2011, a Simferopol district court deemed him to be innocent. On December 1, the Prosecutor’s Office claimed it would file an appeal against the ruling, but no new information has surfaced on the case since.

Despite all vociferous promises to “bring order” and fight corruption, in many cases, the Ukrainian Themis does not mind forgiving even attempts to damage national interests. Judge Serhiy Vovk who sentenced Mr. Lutsenko to 4 years in jail, restricted himself to giving a suspended sentence to an official charged with receiving a UAH 140,000 bribe. How many such verdicts are made all over Ukraine by judges who are not as closely watched by the press as is Mr. Vovk?  


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