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24 October, 2013

“The law continues to be viewed as an instrument of partisan government power”

Without the Rule of Law, Ukraine will be ruled by the law of the jungle, plagued by corruption, political arbitrariness and economic unpredictability

Ukraine wanted to get the blueprint for the Council of Europe-membership before Russia got it, as the then Minister of Foreign Affairs Hennadiy Udovenko told us, rapporteurs for accession. In 1995, the country became member “on condition of fulfilling within 3 years” commitments which are very similar to the Stefan Füle commitments everybody talks about today that have to be fulfilled before the Vilnius Summit in November.

Over those three years, I saw many promises delivered, and I talked toughly about the non-fulfillment of the commitments. When I moved from the official task on behalf of Council of Europe into the NGO-team of the Danish Helsinki Committee later and followed trials over four former ministers, I saw how the legal system functioned in real life and how the court can be used as a political tool.

Earlier, I had criticized the lack of reforms in the legal system, the excessive power of the prosecutor’s office, the lack of independence of the judiciary. I had visited several prisons and criticized the way the penalty system functioned. But now, following concrete trials, I was shocked to see that the reality in a Ukrainian court was even worse than I could have imagined.

And for sure these four cases are only the tip of the iceberg. Our Committee noted that the formats of the indictments were very long unsystematic mixture of investigative descriptions and witness testimony without a clear definition of the articles that should have been violated.

All the cases were a criminalization of political decisions following the “flexible” Soviet pattern of law interpretation. On several occasions, Prosecutor Renat Kuzmin commented on the politically motivated trials – on TV at home and abroad – instructing foreign embassies, among others, to lobby for the recognition of respondents guilty. Prosecutor General Viktor Pshonka told the media that he considered himself to be a member of the President’s team and would fulfill his orders.

Presumption of innocence, until one is convicted, is a basic principle of the Rule of Law. Here, presumption of guilt prevails as 99.8% of defendants are found guilty by Ukrainian courts.

We also noted there was rubber-stamp and excessive use of pre-trial detention. After a while, this was reformed. Now, the reason for pre-trial detention shall be of individual and specific nature.

Meanwhile, defense lawyers do not have their own copy of the case file and no access to all of the files simultaneously. For instance, in the Lutsenko case the investigator gave him and his lawyer a “schedule” dictating which pages of the files they were to be read every day, and only with access to small part of the files, with no possibilities to compare what was written on page 90 with what was written on page 990.

A wide number of witnesses had no chance to be heard in the court – thus not permitting cross-examination by the defense, although many witnesses distanced themselves from their alleged statement to the investigator.

Despite requirement for random selection of judges, almost all the judges in these cases were quite young and inexperienced, most of them appointed temporarily, so that their future career was dependent on the positive attitude of the authorities.

Another strange thing is that judges in Ukraine are subject to a disciplinary system by the Prosecution. So they have to be very courageous and risk their job if they try to exercise the control function over the Prosecution. As a result, sentences are mainly made with a copy-paste approach.

Overall, the law simply continues to be viewed as an instrument of partisan government power as it was in the Stalin-time tribunal-system.

That is why it is so important that the EU now makes it clear that the Association Agreement depends on the reform of the Prosecutor’s Office with its oversight function removed.

The general supervision function and its accompanying powers gives the Prosecutor's Office not only power over the judges. It can also interfere with the executive branch, as well as interests and activities of private individuals and organisations. Prosecutor General and other public prosecutors can also participate in the work of the Verkhovna Rada, boards of ministries, central executive agencies, local councils and other administrative bodies. These powers run counter to all democratic ideas of separation of powers and give wide room for misuse of power as a tool of corruption.

With assistance of the Council of Europe, reforms will now be introduced whereby the oversight functions will hopefully be taken away from the Prosecutor’s Office. But as far as I know, the Venice Committee still finds problems and loopholes in the draft law. They will discuss it in November, just days before the Vilnius Summit. But the enforcement of it also needs to be monitored closely.

Without the Rule of Law, Ukraine will be ruled by the law of the jungle, plagued by corruption,   political arbitrariness and economic unpredictability. But in a free trade agreement, it will need to have accountability, transparency and stable condition equal for all. Reforms are needed for the sake of Ukraine as well as the EU.

Therefore, the most important thing when it comes to Western assistance on the reform of the Rule of Law and fight with corruption in Ukraine is straight talk and tough love.

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