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Whether fair punishment of a criminal may be considered as a political repression?

Oleksandr Kostenko, doctor of Law, professor
The problem always appears at the time of change of power: how the representatives of new power would treat the representatives of old power? New power, which wants to be progressive, must be guided by the progressive doctrine in its attitude to old power. However, the criminals must be punished independently of their relations either with power or with opposition. This is the moral, legal and, at last, political duty of power, which should not be a tool in hands of criminals, but must guarantee law and order for well-being of all citizens

The problem always appears at the time of change of power: how the representatives of new power would treat the representatives of old power? It is quite natural. Depending on this attitude one can understand what has replaced what.

So, new power, which wants to be progressive, in contrast to the old one, must be guided by the progressive doctrine in its attitude to old power.

The change of power in Ukraine took place thanks to the Orange revolution, which was an anti-criminal revolution. The people came out to the revolutionary Maydan with the slogan “Criminals must be punished!”

The revolutionary situation in Ukraine in 2004 emerged as a result of exacerbation of the class struggle  between two social classes: the class of criminals and class of not-criminals.

The class of criminals managed to turn the state into a tool of criminal exploitation of not-criminals. One of features of criminal exploitation was, in particular, corruption, which, most of all, inflicted damage to not-criminals.

The wealth, which had to belong to not-criminals got, in the corruption way, to the hands of criminals, who used the means of the state for legalization of illegally obtained riches. At that, since the organs of criminal justice were corrupted too, they could state cynically: our riches were obtained in a legal way, because these organs did not acknowledge us to be criminals (according to the principle “innocent until proven guilty”). The state got to the hands of criminals and became a tool for legalization of criminal actions. It was possible to commit any crime, masking it with the help of state mechanisms. For instance, the murder of journalist Georgiy Gongadze, or plundering of the Black Sea steamship company, or falsification of election on any level.

It is quite natural that the people, being tired of criminal arbitrariness, passed the power to the political opposition with the hope for decriminalization of the state.

And when the new power started the process of decriminalization of the state, the problem arose: how to do that without turning decriminalization into political repressions.

And there one should follow proper legal doctrine, which would become an obstacle for the arbitrary actions of those, who misuse of accusation of the innocent, and those, who misuse of defense of the guilty. For example, when the former represent the power and the latter – opposition.

In what follows we describe our variant of such doctrine.

The principle of inevitability of responsibility for a crime exists in modern criminal justice. In particular, it is stipulated by part 2 of the Criminal-Procedural Code of Ukraine, where one of the tasks of criminal justice is: “everybody, who has committed a crime, must be brought to responsibility”. On this basis the law envisages that “court, prosecutor, investigating officer and inquiry organ must, within the limits of their competence, institute a criminal case in every case of disclosure of features of a crime, take all appropriate measures for ascertainment of the event of the crime and persons guilty of commitment of the crime, as well as for punishment of the guilty” (Article 4 of the Criminal-Procedural Code of Ukraine).

Besides, Article 24 of the Constitution of Ukraine reads that all citizens are equal before the law, so there cannot be any privileges or limitations, for instance because of political views. This means that accusation on the basis of the Criminal Code must be equally applied to all criminals, both representatives of power and opposition. Yet, this means that those, who protect the accused, should also observe the principle of equality of all citizens before the law.

If, for example, the power blames criminals, it should not do that selectively, by political features, when “hostile” criminals are accused, and “friendly” criminals are covered.

However, opposition also has no right to defend “its” criminals, saying that they should be released from responsibility, since the authorities connives at the crimes of their adherents.

In order to liquidate such selectivity opposition can demand from the power to bring to responsibility “power’s” criminals too. If the opposition is real, but not a political camouflage of selfish interests of people striving for power, then it should demand to adopt the law on criminal responsibility of investigating officers, prosecutors or other authorized persons for the illegal refusal to bring the guilty of a crime to criminal responsibility. Then the selective approach in bringing to criminal responsibility will result in punishment, and the authorized persons will have to bring to responsibility everyone, who has committed a crime, but not only their political opponents.

At the same time the power may upbraid opposition for its selective approach: why the opposition protects from the unjust accusation only “its” criminals, whether other criminals are always blamed justly? This is a lesson for opposition: it is necessary to protect everybody from injustice, even “aliens”, only in this way it is possible to protect “allies”. At the same time it is a lesson for the power: everybody, who has committed a crime, must be punished, including the supporters of power; otherwise it is impossible to decriminalize the country.

This is the only way to overcome the selective approach to responsibility of criminals, irrespectively of the initiators of this approach: whether it is the power or opposition.

However, another problem arises.

Having appropriated power in the state, the class of criminals created the conditions favorable for criminal mode of life and inadmissible for honest people. Under these circumstances certain part of people submitted to criminalization. They faced with the dilemma: either to be the victims of crimes or to become criminals, and chose the second way. The criminal culture has formed in the society, which allows people to survive under the conditions of “state” criminality.

Yet, this does not mean that the citizens, involved in criminal activities by the class of criminals with the aid of the state criminalized by them, are not liable to criminal responsibility. They must be responsible for their deeds, as well as those, who have involved them into these activities, although the responsibility must be different. It is inadmissible to refuse from bringing to criminal responsibility of, for example, state official, who committed the offences, envisaged by the Criminal Code, referring to the argument that “everybody acted in this way under the conditions of criminalized country”. The law does not envisage such reason for indemnity. However, an amnesty can be announced to those, who have committed crimes under the pressure of conditions, created by the persons, who criminalized country for their own profit thus implanting criminal culture in the society. So, the citizens involved in the criminal activities will get the amnesty and the people, who involved them in the crime, will be strictly punished.

Along with the amnesty the operating law permit to apply to the citizens, involved in that way in the criminal activities, such practice as, for instance, regarding their deeds as committed in a state of urgent necessity, release in connection with change of situation, release in connection with active repentance, release of the condemned from service of punishment by the act on pardon, etc.

Here it would be reasonable to remind that, in compliance with Article 44 of the Criminal Code of Ukraine, a person, which has committed a crime, can be released from responsibility only by court in accordance with the procedure stipulated by law (except the release on amnesty or by an act of pardon). No other state organs or officials have the right to release an offender from criminal responsibility, including on the political motives.

So, the decision, who must be punished and who must be pardoned, cannot be arbitrary and cannot depend on political sympathies of power or opposition.

If the principle of political selectivity would be applied for criminal persecution or, on the contrary, for the refusal from persecution, then any rapist, thief or briber would have the opportunity to appeal that he opposes the power and to call the persecution for the committed crime the political repression. And what the today’s opposition would do with this, if it would obtain power, and what the today’s power would do, if it would become opposition, that is if they would trade places? Probably, the result would be peculiar to such situation: we will get the life we deserve.

It should be recognized that the danger always exists that the power will choose the way of political repressions, but opposition also can choose the way of political defense of the guilty. Confrontation to both misuses of the authorities and misuses of the opposition is possible only by means of observance of the letter and spirit of law.

As to the very concept of political repressions, it usually means bringing of the innocent to criminal responsibility by political motives or pronouncement of unfairly strict punishment to the guilty because of the same motives.

Only if such features are present in the actions of state authorities, the opposition has the grounds to declare about the political repressions practiced by power.

And one more moment. It is paradoxical, but purification of power from criminals is advantageous for everybody, even for these criminals. Even the criminals know that arbitrariness is the worst evil. And the power in the hands of criminals always results in arbitrariness.

So, may fair punishment of criminals be considered as political repressions? No, in no circumstances! On the contrary, this is the moral, legal and, at last, political duty of power, which should not be a tool in hands of criminals, but must guarantee law and order for well-being of all citizens.

22 June 2005

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