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23 April, 2015  ▪  Bohdan Butkevych

Showcase vs Show

Law enforcement reforms

From the early days when the new-old team of Poroshenko, Yatseniuk and Turchynov came to power, Ukrainians expected them to take serious steps to reform the enforcement agencies and the court system, which had functioned as the “punishers” of the Yanukovych regime. The names “militsioner,” “prosecutor” and “judge” had become synonymous with corruption, servility and a complete loss of professional face.

In the more than 12 months that have passed since the victory of the Maidan, reforms did, indeed, get going. If nothing else, the Verkhovna Rada managed to pass a number of very important bills that affect all three branches of the government and that, if fully enacted, are quite capable of ensuring a sea-change in them. The heads of these agencies are also actively talking up the need for reform. However, it has to be said that, other than isolated success stories, in most cases, the situation hasn’t moved beyond pretty documents and nice images. The reason? Sabotage on the ground that is only growing fiercer as the perpetrators see the lack of real political will among the country’s leadership.

Police: from on the take to on the job

The fastest pace was set among the police, known by the soviet moniker “militsia.” And no wonder, given the odious image law enforcement officials in Ukraine have after the way that Maidan protesters were persecuted and killed by Interior Ministry forces. In the first six months after Russia’s direct aggression and its “separatist” operation in Eastern Ukraine began, changes in the Ministry of Internal Affairs came down only to the disbanding of the infamous Berkut special forces, who were completely discredited after the Maidan, and the transformation of the Internal Forces into the National Guard.

Then, at the beginning of November 2014, Interior Minister Arsen Avakov presented his agency’s Strategy for Reforming Internal Affairs Departments. In it, the MIA is tasked with forming a European-style police force with normal, streamlined numbers, good salaries, honest officers, clearly-defined functions, and guarantees that they would not be used for political purposes. This is expected to take place in two phases over 2015-2017. The main pieces of legislation required for these reforms to take place are supposed to be passed in Spring 2015.

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In addition, some of the promises made in November have already been fulfilled. The Bureau for Combating Organized Crime has been disbanded, as have the veterinary and transport police, the process of training a new patrol service has begun, and the central apparatus of the MIA has been cut back.So far, MIA has been more-or-less sticking to its timetable. The Ministry is supposed to have five divisions: the State Emergencies Service, the State Migration Service, the State Border Service, the National Guard, and the National Police. On April 4, the Cabinet of Ministers reviewed and approved four bills related to MIA reforms: “On internal affairs divisions,” “On the National Police,” “On a Ministry of Internal Affairs service center and services,” “On amending certain legislative acts of Ukraine to improve the regulation of relations in the process of ensuring road safety.”

At the same time, nothing has been done to decentralize the administrative system, there’s no talk of establishing a municipal police, the organization of a national police force has not been settled, and so on. The biggest problem is the lack of a full-scale lustration process. Yes, of course, there was some culling of ranks, including by natural attrition, especially in Crimea and Donbas where tens of thousands of MIA officers betrayed their oaths of office and went over to the side of the enemy. Still, at the middle levels in the Ministry, many discredited individuals from the previous regime remain in place.

Among the positive elements are the Georgian “assault” on the militsia that has been active in the person of Deputy Minister Eka Zguladze, whose coming was what got the reform process started. Next on the agenda for reforms is the network of registration and license bureaus (MREV), after which one third of these centers will be closed; the system of traffic fines will be revised and differentiated; the bail system will be reformed to prevent the release of corrupt officials and terrorists; salaries for police officers will be raised, and so on. The next few months should show whether all these declarations will come to life. At the moment, of course, the human resource issue is the most burning one.

Courts: from kangaroos to justice

The key problem with Ukraine’s judiciary has always been corruption, political influence over judges and their overall lack of effectiveness. Probably the most resonant bill to be passed was in April 2014, the Law “On restoring trust in the judiciary branch of power in Ukraine,” which established the process for lustrating the ranks of judges. Unfortunately, the process of bringing judges to justice and changing the governing bodies was almost completely blocked and sabotaged at the local level. President Poroshenko’s National Development Strategy calls for 70% of all judges to be replaced by 2020 but so far, there’s not much movement to reach this goal.

The next step in reforming the justice system was the formation last fall of a Judiciary Reform Council, which includes both Ukrainian and European legal experts. The Council’s first task was to develop a Concept of Judiciary Reform, which led to the Feb. 12, 2015, adoption of the Law “On ensuring the right to a just court” by the Verkhovna Rada. This law establishes the fundamental principles of judiciary reform and calls for judges to be selected on a competitive basis, requires them to be completely re-licensed, and includes a clear list of the causes for sequestering, dismissal and disciplinary proceedings.

International standards are supposed to be applied to the way courts are set up, their personnel and activities streamlined, and judges appointed to administrative posts. Executive bodies will not have any input into the procedure for setting up courts and determining the number of judges on their benches. The law also amends the organization and procedure for setting up the Higher Qualification Commission of Judges of Ukraine, which will operate as part of the Qualification and Disciplinary Chambers.

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In addition, a Bill “On the justice system and the status of judges” was passed on December 17, 2014. According to the Concept, the next step should be changes to procedural law, improving legislation on the Bar and prosecutors, legal aid, legislation on the enforcement of court decisions, and a bill changing the provisions of the Constitution of Ukraine that regulate the court system.

Still, it has to be said that most of the positive steps mentioned have had little real impact on the judiciary in Ukraine. Ukrainian courts continue to issue controversial rulings and lustration has barely touched the judges’ benches, especially when it comes to top positions and the system in the Ministry of Justice. Middle and lower ranks keep sabotaging the implementation of already adopted laws. Moreover, there’s the matter of the legislation itself, which calls for completely innovative laws to be introduced only after there is a fully functional Higher Council of Justice, but the Council has been unable to meet properly for the past year.

Prosecutors: no more witch hunts and foot-dragging

The third component of the law enforcement block is the prosecutorial system. This is where the situation is possibly the most difficult, because its legislative underpinnings are even weaker than those governing the police and judiciary, and the system itself is a far more intractably indivisible. And of course, the fact that all of the three Prosecutors General who were dismissed this past year were openly uninterested in seeing changes to their organizations, albeit for different reasons. The Prosecutor’s Office remains a punitive instrument in the hands of the President.

And this is despite the fact that on October 14, 2014, the Verkhovna Rada adopted a new Law “On the Prosecutor’s Office,” which contains a number of very positive changes. It drops prosecutorial oversight of the enforcement and application of laws, especially in the private sector; it establishes a competitive system for appointing prosecutors in order to increase their independence; it anticipates the establishment of such bodies as prosecutorial governing bodies such as an All-Ukrainian Conference of Prosecutorial Employees and a Council of Prosecutors of Ukraine. Finally, a rule is established forbidding prosecutors to issue verbal orders in their work.

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Nevertheless, the first real changes became evident only in March 2015, under Prosecutor General Viktor Shokin, when the number of district prosecutors was reduced and the professional recertification of prosecutors began. There’s also supposed to be a process of open competitions to fill in vacancies among prosecutors in the course of judicial lustration. Shokin’s Georgian deputy, David Sakvarelidze, has promised the first real results in the next six months or so.

Once again, the biggest problem is local sabotage in the implementation of approved laws. But there’s another problem, a somewhat smaller one: the new Law “On the Prosecutor’s Office” is supposed to come into effect on April 26, 2015, but because of flaws in its transitional provisions and of deliberate inaction on the part of ex-PG Vitaliy Yarema, this reform could fail. Above and beyond all this, experts say that there could still be legal and institutional collapse if the old law expires before the new one comes into force. The Prosecutor’s Office could well be paralyzed because there are several bills on the table in the Verkhovna Rada that propose delaying this new law for several years. And so the reform of the Prosecutor’s Office is now up in the air.

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