Olesia Myroshnychenko, Resonance
When the members of the European Parliament state that they are “troubled with the incompleteness of the Ukrainian judicial reform and the fight against corruption”, this is a bit humiliating, because in other words it means: “We know that everyone in your country is stealing and you do not punish anyone for it. We will not cooperate with you”. And this is not a message submitted to “Yanukovych’s criminal power”, these are statements made in September 2017, that is, in the fourth year of renewed power and of active work of various kinds of public figures, which are called “activists.”
Only there haven’t been and still there aren’t any results of the fight against corruption there. Moreover, in fact, it won’t be a priori possible to solve the problem of corruption with only a legal reform, because current legal reforms are often only a bunch of new laws on a huge post-Soviet area. And the anti-corruption reform, besides new laws and courts, requires, first of all, long-term efforts, endurance, systematic work and culture of honesty. What, unfortunately, our society still lacks a lot. Resonance interviewed a famous lawyer Oleksiy Shevchuk on all these issues.
- More and more often media report on the fact that there is no real fight against corruption…
This is quite obvious, because all the indicators of the so-called activists are inflated. See for yourself: they create sites which they even do not update with the news, and where there is no word about their “investigations”. They are not working anywhere; sometimes they are even officially unemployed. They do not want to receive high-quality specialized education, while they attend the anti-corruption courses at the so-called Universities of great reforms for 2 months. And then they start doing what is called “laundering money”. These “active citizens” from all sorts of Transparency, the Centers for Combating Something or Someone, childish Anticorruption Centers are becoming commonplace scammers who run around everywhere and scream around about corruption instead of working normally. And for these activities they receive grants “for the development of reforms in Ukraine”. Or they conduct anti-corruption lessons in schools. Or they put carnival masks on and run under the courts. And that is the best case scenario when it is necessary to do such actions, “so that there would be no remarks of their donors to every penny spent”. Here is exactly the case with Vitaliy Shabunin who was simply asked what exactly actions had been carried out under the grant on the restitution of Lazarenko’s money back to Ukraine. Because the money has not been returned yet; and the grant in the amount of tens of thousands of dollars has long been spent. And sometimes it can be even worse – when they organize attacks against judges in their offices, burn tires, smash furniture and equipment.
- This is some sort of Makhnovism…
It’s even worse. Because the virus of “activists” has jumped to the state power. And now the members of the Nestor Makhno crew wearing uniforms and sitting in their cabinets oppress everyone. As a lawyer, I have repeatedly faced with the fact when legal “gopniks” in leather jackets (whose brands change from year to year) and with a man bag in their hands spit on the rules of the code. Investigating officers are no longer using other appeals to lawyers except of “just get out”, “get lost”, “don’t ever let me see you here”. Prosecutors bring to court accusatory conclusions, which they have not even read. The judges are intimidated to such an extent that they sign without any objections what the prosecutors bring to them. And activists have created a bunch of public councils, which demonstrate their activities only when it is necessary to come with megaphones to the court and to prevent a decision on a particular case. Public activists operate on a commercial basis and cynically use patriotic slogans to cover criminal acts. And the true purpose of such actions is far from the one they voice. In the first place, they want to benefit from the pressure on the judges so that to obtain a desired result. Pickets and posters, loudspeakers, burning tires, garbage cans and brilliant green, demonstration of grenades, tear gas, Molotov cocktails, damage of the court property, encroachments on the life and the health of judges and their close relatives are far from a complete list of measures used for the pressure on the court. They do not neglect the publication of puff pieces. Sadly enough, but this is the reality of the Ukrainian judiciary, which testifies to the low level of security of judges. And the consequences are quite obvious: a threat to the lives and healths of judges and their family members, interference with the administration of justice, calling into question the independence and impartiality of the court. We now have a great bacchanal imitation of the fight against corruption, but it is not a struggle itself.
- Can you give specific examples?
Of course. As you know, love lasts for three years, so the period since the year of 2014 till present was exactly enough for those active slackers without education so that they began to draw attention to themselves and to show double standards. Only in the last few months we have witnessed how a board member of Transparency Vitaliy Kasko started to protect corrupt officials who have caused damage to the state along with the officials from the Ministry of Defense for the amount of 149 million UAH. The Center for Combating Corruption of Shabunin is accused of tax fraud, and Vitaliy Shabunin himself (see the dossier of this activist here) becomes a party to the criminal proceeding in the case of beating a journalist. Alcohol and the thirst for power openly ruin the leader of AutoMaidan Serhiy Khadzhynov (see the dossier of this activist here), who smashes kiosks in Podil being drunk. The activist-photographer, a participant of all possible public councils, Roman Maselko does some job as a lawyer of dishonest judges and signs conclusions on integrity for money. The coordinator of the Public Integrity Council, Vitaliy Tytych, is the lawyer of the prosecutor S. Horbatiuk and inclines the judges to provide the incriminating statements against themselves. The list of the failures of these activists only in the fall of 2017 can be continued and continued. But all of them are united by one thing: most of them do not even have an idea about the formation and functioning of state institutions; the lack of legal education does not even allow them to grasp what kind of foolishness they propagate sometimes.
- Sorry, but there are even former judges among the activists. They are hard to blame for lack of legal education.
It’s hard to blame them, but they cannot abandon the trend “betrayal is everywhere!” and therefore they “selectively” forget about their legal knowledge when it’s needed. Today it is extremely difficult to find an active Ukrainian who does not know that the country is undergoing a judicial reform. Recently, the High Council of Justice has decided on the recommendation to the President of Ukraine to appoint the first 111 judges of the new Supreme Court. But in order for the Supreme Court to work, the Verkhovna Rada of Ukraine had to adopt a new procedural law – procedural codes that take into account the new structure of the judicial system of Ukraine, which implemented the common approaches that exist in European law and meet the challenges of time. But the activists urged not to do so. The reason lies not in the unprecedented amount and significance of these legislative changes. And, however regrettable it may sound, the reason lies neither in the desire to make the trial better and more optimal, nor in the improvement of the judiciary. The reason is simple – to stay in the center of events longer. And then even former judges and now activists (for example, Mykhaylo Zhernakov – a dossier is here) are beginning to write an obvious nonsense. For example, the fact that codes prescribe a rule by which judges will secretly resolve all cases, forbidding the attendance of all interested in the case. But the bill only provided that persons wishing to be present at the court sessions were allowed to the courtroom in the presence of vacant seats before the trial or during a break. The aim of the mentioned rule, in the first place, is to determine only the time period during which any person may enter the courtroom. Obviously, this is a wise rule that is needed to ensure that justice is carried out without a delay in bringing order in the courtroom. The phrase “in the presence of vacant seats” with the help of which Mr. Mykhaylo tries to speculate, has nothing to do with restricting the rights and freedoms of citizens. It is obvious that the courtroom doesn’t have an unlimited quantity of seats and can accommodate only a certain number of viewers who, standing or sitting, could be present during the court sessions, and therefore this rule is intended to balance the interests of the participants in the case and other persons who wish to be present during the court hearings. At the same time, the number of such spectators should be within the reasonable range, in order not to allow the court hearing to transform into a farce, when the viewers may be, for example, next to the judge or even behind him, to prevent the interruption of the court hearing or in other way to prevent the protection of the rights of persons who have applied for such protection. Otherwise, all this will testify to the obvious and unquestionable pressure on the judge, which excludes the possibility of achieving the main objective of justice – to ensure the fairness of the trial.
- And what about lawyers who are among activists?
Unfortunately, neither the lawyer’s experience nor legal knowledge prevents the activists from their “unfair” work. For example, the Public Integrity Council had an established and formed practice of submitting to the HQCJU the conclusions about the non-compliance of candidates to the Supreme Court with the criteria of professional ethics and integrity provided that such a candidate receives official housing, then privatizes it with the subsequent alienation of it to the third parties on the basis of civil law agreements. At the same time, the candidate Bondarenko S.I., having all the grounds for a similar conclusion about his mismatch with the criterion of professional ethics and integrity due to the same actions, not only avoided receiving a negative conclusion, but even received positive information about himself from the Public Integrity Council, which later was submitted to the HQCJU for an interview. It’s hard to imagine more confirmations of double standards in the work of the Public Integrity Council, because activists dragged the “necessary” judges to the Supreme Court of Ukraine simply “by the ears”, and as for the rest they immediately put a damper on the “unnecessary” ones. And, I think, these advocates engaged in public activity do not care about their colleagues at all. When recently the detective of NABU has beaten a lawyer Alina Samarets at the remand centre, none of the members of the Civil Oversight Council became too much overwhelmed by this problem. They said they would keep it under control. Maybe. If they do not forget. And be done with it.
- By the way, regarding the judicial reform. The activists also actively criticized the so-called Lozovyi amendment to reduce the time limits for investigating the cases. What do you think about it?
Lozovyi amendment has a purely legal implication. The amendment is progressive in its essence. It will reduce abuse on the part of law enforcement officials, and finally the corporation “Law Enforcement System” will cease to provide commercial services for individuals. On the other hand, we still need to look at how the amendment will be implemented in practice. The implementation of the norm directly into the code can be blocked because the amendment is not yet fully completed and it is not related to other norms. I hope that it can be corrected, and it will be used in practice. At least, over the next few months, lawyers will have to work on it. Because for today 80% of the law enforcement system is commercialized. And by the way, I’m not the only one who thinks that; the other lawyers are also convinced that the Lozovyi amendment to the Criminal Procedure Code of Ukraine will block the possibility of manipulation with the Unified Register of Pre-trial Investigations. And the cases about the crimes on the Maidan should have been brought to the court a year ago, and there is no need in yelling that “everything is gone” now.
- Will Ukraine, in your opinion, be able to slip out of this trap of continuous criticism?
It will not be easy to do this. Because we are not only a country of dissatisfied critics. But we are the state of the officials who do not care for any criticism. The main thing is that one cannot criticize the “activists” because in such a way they are doing PR for “corrupters”. And for this, the engagement to the “active caste” is done very carefully. A striking example is the current composition of the Civil Oversight Council at NABU. 10 of the 15 members of the Civil Oversight Council at NABU are entrepreneurs. One of the members of the Council is unemployed and the other is a student. I wonder what the very important “advisory” services they provide. And who are their clients? Although somehow tangential to the law there are only 7 people out of 15, and there are only 4 attorneys in general… And then what kind of professional fight against corruption are we talking about? The political engagement of these “activists” is simply fantastic, since half the members of the Council – Marchuk, Peresoliak, Romaniukov, Yanchenko, Maselko, Ustymenko, and Khadzhynov are related to the “Demalyans” of Nayyem and Leshchenko. The average age of these activists is 31, among them there are three girls from 25 to 28 years old, and several students (from 20 to 24 years old). And all of them are already working as analysts. But these are the experts who tell something without facts, statistics, and lack of in-depth academic training, which are always ready to say scathing but pleasant for an ear of an everyman recipes for all occasions. It seems to me that the word “analyst” will soon be devalued as well as the “activist”. The problem with our citizens and Facebook readers is that absolutely nobody wants to get into the essence of what is happening and thinks that someone will do it for him. But activists, too, do not want to do that and they won’t do that. They just do not need it. Don’t you like that there isn’t any garbage can? Take a pen, paper, and write to the organization that operates the house and to the local deputy, find out how much money has been spent from the fund and demand to put a garbage can. Didn’t they answer? Then it’s an administrative liability. Write again and bring the main thing to the end, but not just write and forget. Be systemic..
- And what to do with the appeals of European institutions to strengthen the fight against corruption?
The formula “we are Europe and the state will give everything to us” does not work in Ukraine and nobody gives anything to anyone in Europe as well. Each country is individual. Pick your ass up and work hard. Work for the grass to be around the high-rise. Work 24 hours a day to the point of exhaustion, to the point you lose strength! Here is a civil society! Build, work and invest in where you go every day… The fact is that all these reforms are no different from experiments in laboratories, where it is also necessary to predict how development will take place, or what will be the impact of one or another virus or medication. There must be a concept jointly developed by social activists, people’s deputies, and relevant ministries. There should be clear responsibility for not fulfilling the plan on the preparation of this concept. After that, one who has to implement this concept must be clearly defined. There must be a clear definition of the implementation plan. For example, the Program of Development till 2020, with clear terms and responsibilities. And it is precisely that issue that civil society or activists should control and beat in tanks near the Verkhovna Rada of Ukraine if what they have signed together isn’t performed. And not just blindly demand. Because in this country the scheme is the following: we demand reforms from some people, money goes to other people, and this entire model does not work. It resembles a bacchanal of sawing up public money. That’s the whole situation with the fight against corruption for today. I have repeatedly raised the issue of legislative irregularity of the public control institution. And, oddly enough, but as a representative of the legal profession, I still believe that the today’s anti-corruption reform will not fail and the people’s deputies will adopt laws that will allow exactly the real patriots to be involved in the activities of the public councils rather than unscrupulous people. And for now we are looking for professionals where there are no professionals. And because of that, it’s painful and scary.