Bohdan Futey: “The beating we saw is not just physical, but mental, too. The government wants to evoke fear in people”

23 December 2013, 16:58

In his interview for The Ukrainian Week US Federal Judge, Bohdan Futey, talks about the violent dispersal of the EuroMaidan, American reaction to the latest protests in Ukraine, threats to Ukraine’s independence and territorial integrity, and the new generation that is demanding a different state.

UW: What do you think of the dispersal of peaceful demonstrations at Maidan Nezalezhnosti in Kyiv, where the government used force and special police?

I was in Ukraine when it all began. The massive protests that began then, and continue today, signal that most Ukrainians want Ukraine to become a fully-fledged member of the European Union. This is a way for them to ensure independence as well as a more secure and better future. I was not in Kyiv on November 30 but I saw how brutally Berkut dispersed the students, young and older people, who took to the streets to exercise their constitutional rights to freedom of speech and peaceful assembly. This brutal use of force against peaceful demonstrators was condemned by international and national organizations that are demanding punishment for the perpetrators. What took place later, on December 11, showed that despite President Yanukovych calling for a dialogue with the opposition, clergy and youth on the one hand, on the other, there was a series of tragic events. America’s top officials, including Secretary of State John Kerry, senators, the Helsinki Committee, Hillary Clinton and Victoria Nuland, condemned them. Obviously, everyone was astonished by how deep Ukraine has sunk. Three Ukrainian ex-presidents made a statement about the unfolding deep political crisis that can have very serious implications for the entire state, its territorial integrity, independence and sovereignty. We, in the diaspora, stand by the right of the Ukrainian people to express themselves without fear of persecution, let alone physical abuse.

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UW: Who is responsible for this abuse of office and use of force against peaceful protesters and journalists?

It surprised me when President Yanukovych invited the representatives of all political forces, the clergy, and representatives of civil society to a national dialogue, saying that everything should be in line with the law. As the guarantor of the Constitution, he pledged to make every possible effort to protect the rights and interests of every citizen. And then force was used on that very night – who is responsible for this? Obviously, it is the President, the government, the Interior Minister, and Berkut. It is the President that has to protect the Constitution and human rights. Meanwhile, he says one thing and does the complete opposite.  

UW: In the current situation, is there any point in imposing personal sanctions against certain officials?

Sanctions are a matter of diplomacy. Canada has already announced such possibility. According to the US Department of State, top officials here are also considering sanctions. Apparently, this should all take place within the framework of international relations and under a relevant recommendation from the National Security Council. Meanwhile, State Secretary John Kerry and Assistant Secretary Victoria Nuland have called on Yanukovych to refrain from the use of force and law enforcers against peaceful protesters.  

I particularly like the example recalled by ex-president Leonid Kravchuk. When he was the Speaker of the Verkhovna Rada, students gathered on the Maidan for a demonstration. He went out to them and invited them to parliament. After his conversation with the students, Ukraine’s premier resigned – voluntarily or not, but the problem was solved. It was solved through dialogue.

The White House is contemplating sanctions, since, as you know, there was a petition on this issue, with over 100,000 signatures. When that happens, the White House is required to react. Plus, there are resolutions by Congressmen on this. So, the case is serious and sanctions can be imposed.

What are these sanctions? Freezing assets, first and foremost. But the biggest blow to those in power would be a ban on entering the US. Other countries are also considering such a move. I think they should give serious thought to this because the imposition of sanctions is very realistic. If you ask average Americans now – not just Congressmen or government officials – what they think about what’s happening in Ukraine, they will tell you that they would not want to see people involved in the disregard and violation of human rights in their country (the US), and that sanctions are necessary.

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UW: How different is the EuroMaidan from the Orange Revolution?  

I see changes. The Orange Revolution started as a result of a rigged election. People took to the streets to have the election results declared invalid and have a new, fair election. And they succeeded.

This time, the protest is completely different. It started as the EuroMaidan but has now grown into the issue of we are going and what kind of a state we want to live in. Young people and students took to the streets – they are making demands, even though they don’t always agree with politicians.

So, people want to see a different state, a competent government that knows what it is doing and cares about the its people and compliance with the Constitution. These people have traveled to Europe. They have seen life in the West and the processes there. I had Ukrainian judges for internship here and I talked about these things with them. I talk about this in my lectures at the Kyiv Mohyla Academy. It’s very important for people who were born after Ukraine gained independence to begin to see their state differently, in the way that the role of the state is seen in the West.

I don’t know whether or not this should be called a revolution, but what is taking place signals that people expect a different life, a different government and a better future.

I am somewhat disappointed with Ukrainian diplomats, including those who served in the US and Europe and saw what was going on. Not all of them are in diplomatic service now. Some work in specific areas and are effective there. But when they were in the US, they proactively promoted Ukraine’s integration. Now, when they have a real chance to continue this in Ukraine, they are silent and do not try to express themselves in any way – or we don’t hear them do so.

But my biggest disappointment is in Ukraine’s judiciary and judges. I don’t see the independent judiciary that is guaranteed by the Constitution. Ukrainians and international organizations have very little faith in local judges. I hope I’m wrong but everyone believes that judges make their verdicts based on orders from the top rather than the Constitution or the law.

But nobody will respect judges unless they respect themselves. The same applies to diplomats, the president and ministers. They lead a country of 46 million people and they have to realize this.

I would like to call on lawyers to speak of all this and to be more proactive (the day before this interview was taken Ukrainian lawyers published an Open letter from Ukrainian lawyers to judicial self-governing bodies and the Constitutional Court, in which they “expressed no confidence in the judiciary, which, due to pressure or other circumstances, protects the doubtful, unprincipled and dangerous actions of the government, thus running counter to the constitutional principle guaranteed by Art. 19 of the Constitution” and requested the Constitutional Court to “react to constitutional norms becoming unconstitutional as a result of actions of the current government, not its unconstitutional laws” – Ed.). For instance, in the US, there is the American Bar Association. It speaks strongly on all violations of human rights and dignity or the Constitution. There is the Ukrainian American Bar Association that has also expressed its position on this issue and criticized what is going on in Ukraine. But I think that, if the situation continues to evolve as it is now, Ukraine may end up in a stalemate position, as the President says one thing, then does something different. This could lead to a dictatorship. Then, there really could be a revolution in Ukraine.

And I have one more concern. When Mykhailo Horyn (human rights advocate, dissident and a leader of Narodnyi Rukh, the People’s Movement – Ed.) visited the US, he met with then Secretary of Defence, Dick Cheney. Mr. Cheney was very positive about the talk of Ukraine becoming independent. Yet, Mykhailo Horyn reminded him of Ukraine’s dangerous northern neighbour. “What makes you say that!” Cheney said. “The rake has hit us on the forehead twice – first, when we signed the Treaty of Pereyaslav first, then, with the emergence of the Soviet Union,” Horyn replied. We survived. The risk is whether we can survive if the rake hits us for the third time. This risk is relevant today because Russia cannot be an empire without Ukraine. But it can with Ukraine, no matter what you call it – the Customs Union or a new “Treaty of Pereyaslav”. But people are beginning to see this – they are beginning to see the threat to their independence, territorial integrity and the future of Ukraine.

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UW: How possible is it to reach a consensus with the President after what he has done? Does the West believe it is possible to negotiate and come to terms with him?

As I said before, the problem is that he says one thing while his subordinates, including law enforcers, do the opposite. As a result, the concept of the rule of law, which he is supposed to guarantee, is absent. The beating we witnessed was not just physical. It was mental. Those in power want to invoke fear of the police in people. I think it’s a mistake. If the President really wants to be a guarantor of the Constitution and preserve the rule of law, he must come to terms with the people, the opposition, NGOs and the clergy, discuss compliance with rules with them and seek a peaceful solution.

UW: If the government decides to use force to solve the current situation, who should join forces to resist it? Can the West support Ukrainians in more than just words?

Before this conversation, I spoke to someone I know in Kyiv. He asked me whether I knew that the US Secretary of Defence had called Ukraine’s Defence Minister on the previous day. A conversation at the level of defence ministers clearly suggests that they talked about refraining from using force against protesters. As for the US, even Vice President Joe Biden talked to the Ukrainian President. 

Absolutely everyone opposes the use of force to resolve the current situation. If this does indeed happen, it will have very bad implications for Ukraine as a sovereign and independent state.

Korbut Anna

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