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27 January, 2012  ▪  The Ukrainian Week

An Opinion Poll (Part II)

On 15 December 2011, the PACE Monitoring Committee unanimously approved the Draft Resolution titled The Functioning of Democratic Institutions in Ukraine. The Ukrainian Week has interviewed Ukrainian and European politicians to learn their opinion on the developments PACE finds disturbing in Ukraine

Viacheslav Kyrylenko, leader of the For Ukraine! political party and Our Ukraine-People’s Self-Defense MP, shares his views on the impact of political repression, the dead end for reforms and the possible structure of the next parliament.

U.W.: According to the CoE, the Ukrainian parliament has not followed recommendations of the Venice Commission and passed the controversial election law. Venice Commission experts complain that Ukraine started drafting a Uniform Election Code but never finished it. Do you support PACE ’s concerns?

I think the Uniform Election Code is not necessary. However, the country needs transparent election legislation for both parliamentary and local elections. I think it’s unrealistic to change anything in the election law, not to mention passing a Uniform Election Code before the next election, since first and foremost, it’s politically motivated.

U.W.: The PACE Draft Resolution on Ukraine harshly criticizes the system to appoint judges. More specifically, it insists that the VR should not be involved in the procedure. What’s your opinion on this?

It’s impossible to change anything in the procedure for appointing judges by theVR (Parliament), in accordance with PACE recommendations. The current judicial system is being adjusted to the political needs of those in power. Any reform will now turn into manipulation by those who want to pass certain politically motivated decisions. So, we cannot talk about any changes to the Constitution right now. Political problems are extremely acute in Ukraine today. But looking 10, 20 or 30 years ahead and and actually ensuring judiciary reform appears unrealistic at this point, against a background of a strong political resistance. Obviously, though, these are valid recommendations and European practice will instill itself in Ukraine sooner or later. I think the public should control the process of appointing judges. Right now, there is no control whatsoever. We can consider the most radical proposals, such as the public election of some judges, in the future. So far, though, neither the judiciary, nor its experts appear to be ready for this situation. And I don’t think the public is either.

U.W.: According to the Monitoring Committee Rapporteurs, in many cases, the Ukrainian judiciary resorts to the detention of people who have not yet been found guilty by the court. In the Draft Resolution, the abuse of arrest is mentioned as the most frequent reason that pushes Ukrainians to appeal to the European Court of Human Rights.

I think imprisonment for those not yet recognized guilty is only appropriate in extreme cases. In Ukraine, two thirds of all people arrested are put behind bars. Prisons end up being overcrowded. The draconian provisions of the Code of Criminal Procedure allow law enforcers to arrest people as a preventive measure in a large number of cases. But we need to clean up half of the Code of Criminal Procedure to change this. The current parliament is not ready to do this. Our hopes lie with the next parliament. I believe the current opposition will be the majority in the next parliament.

U.W.: Should articles on the abuse of office and power be removed from the Criminal Code?

I think Articles 364 and 365 should be removed from the Criminal Code. I codrafted the draft law to decriminalize these articles. But this position failed to gain a majority vote in the current parliament and I doubt that it will. Moreover, even if these articles are decriminalized, the current regime will find other articles with which to incriminate opposition leaders. The voting to decriminalize these articles in the parliament alone will never stop political repression. And when political repression is no longer a useful tool, which I’m sure will happen at some point in Ukraine, society should take a serious approach to the issue of decriminalizing criminal and criminal procedural legislation and penitentiary reform, since it is only now that these issues draw public attention, as a result of on-going political repressions.

Oleksiy Plotnikov, Member of the Party of Regions and Ukraine’s Permanent Delegation to PACE, tells The Ukrainian Week why he is not too concerned with the conclusions of the Monitoring Committee Rapporteurs

U.W.: In your view, how justified are the criticisms of the Monitoring Committee Rapporteurs?

First of all, this is an interim Resolution. The deadline for the final report is April, not January. I don’t think we should expect any specific requirements for Ukraine. Obviously, the Resolution contains some remarks about Ukraine’s judiciary and legal aspects. But PACE Rapporteurs offer their comments or remarks is a normal procedure. I see nothing unusual in this.

U.W.: Ukraine never did pass a new Criminal Code over the 17 years of its PACE membership, in spite its commitment to do so…

You see, the problems with the Code of Criminal Procedure of Ukraine that were mentioned in the Resolution did not emerge this year. The Code was inherited from the Soviet Union. We now have an evaluation of the general situation in Ukraine. But this is not a criticism of the current government. We have had no reforms for nearly 20 years now. It’s possible that amendments to the Code of Criminal Procedure will be discussed some time after the New Year.

U.W.: The Monitoring Committee was unanimous in criticizing the switch from the 3% to the 5% threshold in parliamentary elections.

The Rapporteurs are entitled to make comments. But I can’t say that this is PACE’s consolidated position. I would like to remind you that the election law reflects the consolidated position of virtually all Ukrainian MPs. A constitutional majority of the Verkhovna Rada voted in support of the law on parliamentary elections. The Working Group that finalized the document included representatives of both the opposition and the coalition. Therefore, it’s the right of our country to have this very election law, not some other one.

U.W.: Do you think it would be expedient to refuse to approve a Uniform Election Code?

Obviously, having one document that lists all the rules for local, national and presidential elections is better. But we’ve held all elections without a Uniform Election so far, and nothing terrible has happened. Ukraine can live without this Code. The same thing applies to the constitutional reform that the Resolution deems necessary. I have to say that nothing bad will happen to us even if we don’t conduct this reform. In all likelihood, there will be no reform until after the upcoming parliamentary election. Overall, I would like to note that the Monitoring Committee has developed a traditional attitude towards Ukraine. It’s always tough. Therefore, I’m not overly concerned by the Resolution. I will go to Strasburg in January. I already know how the voting on this document will go.

Serhiy Sobolev, leader of the Reforms and Order Party and Deputy Head of the BYuT faction in parliament, speaks about the root of evil in Ukrainian politics and of the time when the reform of the public prosecutor’s office will take place.

U.W.: What’s your overall impression of the draft PACE Resolution which will be up for discussion in Strasbourg in January? How close is it to Ukrainian reality?

No document can completely mirror the reality. But I was pleasantly surprised how complete and thorough the document offered by the Rapporteurs for consideration of the CoE is. I think they have clearly captured the root of evil in Ukraine. Firstly, the Ukrainian judiciary is totally dependent on the government; it has turned into a subdivision of the Presidential Administration as a result of so-called judiciary reform. Secondly, the Supreme Council of Justice is totally repressive and completely fails to comply with democratic principles for oversight over judges. Thirdly, the document looks into specific cases against Tymoshenko, Lutsenko, Ivashchenko and Korniychuk, rather than simply raising the issue of general political persecution. This is no less important than are the first two items. The Monitoring Committee recognized that the prisoners are essentially being tortured and that the way they are kept, as well the non-provision of medical assistance to them, runs counter to both European and common human standards. Fourthly, there is no doubt that the bodies of the Prosecutor’s Office, which have taken a dominant position in the state, report directly to the President. The commitments undertaken by Ukraine to reform the Prosecutor’s Office and divest its bodies of their responsibilities to perform general oversight and investigation, have not been fulfilled over many years. Ukraine should solve all these issues if it wants to remain a fully-fledged PACE member.

U.W.: The Rapporteurs claim that Ukraine does not provide equal rights to investigators and the defense, prosecutors and lawyers. Is there any possibility of changing the situation via legislation under the current government?

The state of Ukraine has undertaken these commitments. It does not even have to change the Constitution to reform its Prosecutor’s Office.Changes concerning judges will also be insignificant. As soon as they are submitted to the VR, we will be happy to vote for them.

U.W.: Does the political will exist to resolve the problem?

I think that neither the President nor his majority have any political will, since they use the Prosecutor’s Office and the courts for a completely different purpose, which is merely to punish the opposition, rather than punishing criminals or discovering the truth.

U.W.: Does it make sense to cancel Art. 364 and 365 of the Criminal Code, as is recimmended by PACE Rapporteurs?

These two articles on abuse of office and power have actually been recognized as politically motivated ones that can be used in different ways to oppress the opposition. We insisted on revising these articles when we submitted amendments which were to have been made in the Code of Criminal Procedure. Unfortunately, though, the bill we submitted to parliament was not approved. In addition, I would like to point out one more thing. You know, there is such a body as the Venice Commission. It directly monitors everything pertaining to legislation. It is the body insisting that recommendations are executed, and is pretty serious about it.

U.W.: So, you think that the issue of these two controversial articles could be addressed again?

Yes, definitely.

U.W.: But when he spoke at the Monitoring Committee’s session in Paris, Oleksandr Lavrynovych, Ukraine’s Justice Minister, said Articles 364 and 365 appeared in the Criminal Code after Ukraine gained independence, and not under Stalin. Is this true?

These articles are specifically about the abuse of power by government representatives, such as police officers or employees of the Security Service of Ukraine. Of course, they have to exist, but they should not be applied in the sphere of normal political decisions. Their competence should not expand to other areas. That’s the difference.

Oleh Bilorus, Chair of the VR Foreign Affairs Committee and member of BYuT-Batkivshchyna faction, speaks about what it takes to have fair elections, the causes of corruption in the judiciary and the prospects of removing the articles from the Criminal Code, under which Tymoshenko, Lutsenko and Ivashchenko have been charged.

U.W.: Do you think it makes sense to cancel Articles 364 and 365 of the Criminal Code as recommended in the Draft Resolution on Ukraine by the PACE Monitoring Committee?

We inherited these articles from the soviet era of totalitarianism and repression. They are extremely damaging to Ukraine, particularly in its integration into European systems and structure. Ukraine-EU summit in Kyiv has proven that Ukraine is not moving any closer to the EU without removing these two articles from its legislation. This is where two opposite civilization approaches clash; the European and totalitarian soviet.Under the former, a political figure, a president or premier is exclusively assessed by the electorate, which votes for or against politicians. Ms. Tymoshenko scored well with the electorate with almost 12mn voting for her.

If the faked and added figures are excluded, she has the same number of supporters in Ukraine as the current president does. Thus, these articles should indeed be removed and that’s what I think the government will obviously do in the early 2012, not later. Otherwise, there will be no reason to talk of signing the Association Agreement, let alone its ratification. The process could halt after the initialing. At the Kyiv summit, Ukraine undertook a commitment to bring its legislation into order and guarantee democratic elections.

U.W.: The Draft Resolution strongly criticizes the procedure to appoint judges and the overall work of the judiciary…

I think PACE’s recommendations on the procedure to appoint judges are completely valid. Indeed, it’s absolutely chaotic in Ukraine. The president appoints some judges for five years and the Verkhovna Rada elects them for life. This leads to political, social and economic corruption, no rule of law in courts and citizens deprived of any rights. Ukraine should return to electing judges by popular vote for a limited term. People will continue to vote for the judges who work fairly. I’m sure this is perfectly realistic; it requires a relevant amendment of the Constitution. I would like to stress once more that judges should be elected, not appointed! Thus, any appointment of a judge, no matter who does it, is political motivated, if only politically. Among other things, it results in political corruption. Judges become the subjects of those who appoint them. Sooner or later, the Constitution will be amended accordingly.

U.W.: The Draft Resolution quotes certain cases of pressure on the Supreme Council of Justice from executive authorities…

I think there are too many overlapping entities including the Supreme Council of Justice, the Council of Judges, Court Administration as well as numerous courts, such as the Administrative and Commercial Court, etc. Average people are unable to find their way through this judiciary jungle. Thus, the whole system needs to be structured first. The Prosecutor’s Office should be the first to be structured. It should drop the soviet oversight function and the right to interfere with courts whereby the Prosecutor can dictate a verdict to a judge. A lot has to be done under the VR’s (Parliament’s) control. If judges themselves, with their corrupt interests, undertake this work, Ukraine will sink deeper into anarchy and injustice.

U.W.: The Council of Europe insists that Ukraine abuses preventive detention. I support this concern of the Monitoring Committee.

Since soviet times, millions of Ukrainians have been put in jails to give the state a free workforce. Such arrests are extreme options when an individual is a danger to society. Unless someone has committed a murder or any other extreme crime, they can stay under home arrest or a pledge not to leave the country. This is common practice in Europe and the whole civilized world. I’m sure the process will be launched next year in Ukraine. Currently, we have 250,000 people in jails. Prisons are overcrowded. They turn into hotbeds for tuberculosis, hepatitis and HIV infections.

U.W.: Does Ukraine need a Uniform Election Code?

This is an important issue now. Over the past 20 years, election laws have been passed to suit certain people, every new president or specific political forces. Ukraine needs to pass a Uniform Code once and for all. Later, it can be amended accurately and reasonably to improve election technologies rather than their political aspects. This could guarantee free, fair and non-violent elections. But I think Ukraine could get such a Code in three years, no sooner. The upcoming parliamentary election will occur under the law recently passed by the VR. I don’t think there will be any more amendments to it anytime soon.

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