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02.01.2011 | Halya Coynash

Selective Justice spells the End of Law

   

2010 has seen a number of events which compromise the integrity and independence of the enforcement agencies and the judiciary and jeopardize political pluralism. 

Nobody is suggesting that previous regimes were not guilty of using selective prosecutions and the use of enforcement, regulatory and judicial bodies for political ends.  Recent developments, however, create serious concern due to their scale and in many cases overt disregard for constitutional norms.  The public are witnessing unacceptable measures against those who speak out against violations, who assert their right to peaceful assembly and democratic choice.  At the same time, well-founded doubts regarding the motives for arrests and criminal prosecutions of political opponents are gravely damaging Ukraine’s reputation in the world.

Selective Prosecutions of the Political opposition

On 27 December 2010 widespread outrage was expressed over the guilty verdict in the “test” trial of Khodorkovsky and Lebedev. For all those who believe in the rule of law, the test was failed. On Sunday, the latest Wiki leak reported US diplomats as having said that the trial of Mikhail Khodorkovsky shows “how the Kremlin preserves a cynical system where political enemies are eliminated with impunity"

On that same day, in neighbouring Ukraine, 11 Security Service Special Force offices from the Alpha unit arrested Yury Lutsenko, former Minister of Internal Affairs in Yulia Tymoshenko’s government, while he was walking his dog on a Sunday afternoon.

The following day, 27 December, the Pechersky District Court in Kyiv remanded Yury Lutsenko in custody for two months. The grounds presented in court for a weekend operation involving 11 Special Forces officers, two Prosecutor General’s Office staff and two months imprisonment seem at very least questionable. Remand in custody is demanded largely because Mr Lutsenko was deemed to be dragging out the reading of the considerable weight of material in the criminal file, and because he had given interviews regarding his criminal prosecution to various media outlets. He had signed no undertaking not to do so, and there is no fixed time scale for acquainting oneself with the material. Since then, another criminal case has been initiated.

The former Prime Minister and presidential candidate, Yulia Tymoshenko is also facing criminal charges. Those in the government who promise to improve Ukraine’s image abroad would do well to note the adverse attention any criminal charges against an opposition leader have, especially one who gained 45 percent of the voters’ support in February 2010.

The government’s claims that this is part of an anti-corruption campaign sound very thin when the many arrests and criminal investigations initiated over recent weeks have all focused on former members of Yulia Tymoshenko’s government.

They coincide also with the latest obstructions to anti-corruption legislation. The laws due to come into force on 1 January 2011 have been cancelled, while the President’s alternative at present does not include the requirement for declarations from public officials’ family members. The Law on Access to Public Information, while supposedly, supported by all, remains stalled in parliament. . All of this seriously undermines confidence in the regime’s commitment to tackle corruption openly and impartially.

In some of the cases where members of Tymoshenko’s government have been charged over misuse of position, the indicted offences are still being committed.

There can be no hope of convincing the Ukrainian public and the world that measures against a former government official for not following tender procedure are aimed at eradicating corruption and saving public funds when the same funds were used without any tender, accountability or transparency to pay for a government-commissioned “audit” into the former government’s affairs. This has already received widespread criticism from such reputable international organizations as Transparency International.

Judicial independence

An independent judiciary is rightly considered to be the stalwart of any democracy. With Ukraine’s achievements in this area already questionable, the judicial changes introduced this year have elicited concern from the Parliamentary Assembly of the Council of Europe and the Venice Commission. Their comments have focused specifically on the unconstitutional reduction in powers of the Supreme Court and increased scope of a political body - the High Council of Justice which has power over the appointment and dismissal of judges. This, and the fact that the brother of the Prosecutor General is Head of the High Court for Civil and Criminal Cases, raises concerns regarding judicial impartiality.

Many commentators unfortunately linked the remand in custody on 24 December of Yevhen Korniychuk with the politician’s father-in-law, Vasyl Onopenko, the Head of the Supreme Court. Last Saturday the political party which Koniychuk took over the leadership of from Onopenko was subjected to a six hour search, with media reports suggesting that the arrest and search might be aimed at forcing the Head of the Supreme Court to resign.

Impossible to know but speculation is absolutely inevitable in the present situation where attention to irregularities endemic within the Ukrainian political system seems to be dependent on political affiliation.

Not only politicians

While it is the arrests of political opponents which hit the headlines, the same dangerous selectivity and unacceptable deployment of State bodies has been of concern for some time. Just some examples:

Yakob Strogan

This Kharkiv man made public allegations that he had been abducted and tortured by police officers who tried to extort money from his wife in August. His case was taken up by human rights groups and received wide coverage in the press.

In December, a week after he repeated his allegations at parliamentary hearings, the police abruptly reclassified the minor domestic dispute between two neighbours which had led to police intervention in August, , charging Strogan with attempted murder. Despite being brought to court the next day with clear signs of beating, the judge agreed to remand him in custody, handing him back to the same people he alleged tortured him..

It is difficult not to conclude that the police are making a public demonstration of what reprisals should be expected by those rash enough to demand their accountability for violations.

Dmytro Groisman

During recent weeks criminal charges have also been brought against the coordinator of the Vinnytsa Human Rights Group. The charges themselves relate to material on Dmytro Groisman’s personal blog, with one of which, supposedly the reason for the initial investigation, being widely available on YouTube. Of even greater concern is the fact that the police officers who carried out a search, purportedly over suspected circulation of pornography, unlawfully searched the Vinnytsa Human Rights Group’s office and removed financial and other material relating to refugee cases.

This must also be seen against a background of numerous unwarranted “conversations” or unexplained “checks” of civic organizations carried out by the Security Service [SBU] or Prosecutor’s Office.

Peaceful assembly

During attempts to stop illegal tree-felling in Kharkiv’s Gorky Park in May and June, both the police and judiciary were involved in denial of the right to peaceful protest..

Despite a court ban on the Independence Square protest over the new Tax Code in November and early December, the numbers were enormous and no attempts were made to disperse them (although the tent camp was forcibly removed). The police however made it publicly known that criminal investigations had been initiated - one over the blocking of roads on 22 November, and the other over supposed damage caused to marble tiles when driving metal stakes in to hold up tents.

It should be stressed that this is by no means the first time that tents have been erected on Maidan.  Any actual damage is disputed by journalists who were present, and the charges seem far-fetched, designed only at preventing such peaceful forms of protest. . Of even greater concern are the measures taken by police with activists remanded in custody, others taken from their workplaces for questioning, as well as media outlets being approached for video recordings to use in tracking down “offenders”.

All of this seems clearly aimed at deterring potential protesters and puts a question mark over the present regime’s adherence to rights enshrined in Ukraine’s Constitution.

Election at Donetsk University

The events around the election of the new Rector of the Donetsk National University are disturbing.  Following the election of Professor Yury Lysenko, rather than the Acting Rector since September, Petro Yehorov, who was clearly supported by the new leadership of the Ministry of Education, Professor Lysenko’s wife has been subjected to lengthy searches and would appear to be the object of a criminal investigation. It was only on 17 December, after an all-night search, that the Prosecutor informed that a criminal investigation had been initiated on 9 December, the day before the election, on the basis of a report “from the University management”. That same evening Professor Lysenko’s wife, Tetyana Lev, was also attacked by two men who shouted that this was in payment for her husband.

The appointment has now also been stalled by a court case brought by a Police Colonel teaching at the National University of Internal Affairs, who claims to have put forward his candidacy and been ignored. Despite the fact that even the Deputy Minister of Education had no knowledge of a third candidate at the time, the court has obligingly “prohibited” the Ministry from formalizing Professor Lysenko’s appointment.

 While each of the above cases must be examined on its merits, the many cases involving people in opposition to the government or individual members of it, as well as serious procedural irregularities, are receiving considerable attention both within Ukraine and from the international community. A prominent journalist, asked by the BBC, to comment on Yury Lutsenko’s arrest suggested that in today’s Ukraine nobody can feel sure that they will not be “next”.  Perhaps exaggerated, however the use of enforcement and regulatory agencies for purposes entirely inappropriate has become endemic, and confidence that the courts will uphold only the law is dwindling.

Rejection of political reprisals against opponents, real against corruption will bring Ukraine respect in the world and foster much needed investment in Ukraine’s economy and closer links with the European

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