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26.03.2010 |
Peter Byrne

As new political cartel forms, nation will retest adage that absolute power corrupts absolutely.
With the executive and legislative branches of government firmly in his grasp, Ukrainian President Viktor Yanukovych is now moving loyalists to key leadership positions in the nation’s notoriously corrupt judicial system.
The administration’s consolidation of power edged yet another step closer to completion on March 22 when a Yanukovych ally got elected as head of the High Council of Justice. The influential 20-member council decides who gets to be a judge in the nation. Moreover, the president’s allies also have top posts at the nation’s top prosecutorial and police agencies.
Yanukovych’s oligarch-backed camp, in power since Feb. 25, now has unchecked powers that are unrivalled since the authoritarian decade of ex-President Leonid Kuchma.
The administration and its parliamentary majority can use their political cartel for personal gain, or start fixing what is wrong with how the nation is governed. The judicial system, in which judges issue favourable rulings in return for bribes or on behalf of political patrons, would be a good place to start.
But, considering the dubious character of some people with high positions in the Yanukovych administration, many think corruption will remain as strong as ever – especially since political opposition currently offers a weak check on presidential rule.
 “I can’t say for sure how many more will suffer. It will probably take one or two more generations of Ukrainian lawyers and political leaders – and maybe another popular revolt, like the Orange Revolution – before the system changes,” said Yuri Vasylenko, a retired Kyiv Appeals Court judge.
Who are some of the people leading the judicial system?
Volodymyr Kolesnychenko, the presidential ally who became head of the High Council of Justice on March 22, has been accused of criminal behaviour.
Kolesnychenko made headlines on April 5, 2007, when he stormed a Kyiv district court to protest former President Viktor Yushchenko’s decision to sack him as chief judge. Kolesnychenko allegedly slapped a female clerk in order to wrest from her the official stamp used to validate court rulings.
That day Kolesnychenko was accompanied on his brazen mission by bodyguards and close friend Serhiy Kivalov, a Yanukovych ally who ran the nation’s Central Election Commission during the rigged 2004 presidential election that inspired the democratic Orange Revolution.
As with so many criminal investigations in the nation’s history, nothing ever became of the inquiries opened into the actions of Kolesnychenko, who denied slapping the woman, or Kivalov, who denied rigging the 2004 election. Kivalov now heads parliament’s judicial committee.
With Kolesnychenko and Kivalov as pillars of the Yanukovych judicial system, among others of similar or worse reputations, Vasylenko – the retired Kyiv judge – said: “I don’t expect much progress with Yanukovych as president” in ridding the courts of corruption.
The three-ring circus approach to governing might be funny if one didn’t consider the enormous costs of a judicial system that is rotten to its core. As a consequence, murderers roam the streets, billions of taxpayers’ dollars get stolen with impunity by officials and all hope for social justice gets lost in a nation of 46 million people.
Judges, law enforcers and politicians have not only proven themselves incapable of rooting out corruption – they are, in fact, the architects of the rancid system in place. That’s why almost everyone, from foreign businesses and ordinary citizens, tries to avoid getting entangled in the nation’s courts if at all possible.
Besides judges, the heads of prosecutorial and police agencies appear to be firmly in the grip of Yanukovych allies. Indicative of the president’s decisive sway on the High Council of Justice, Kolesnychenko got elected as its head by a 13-7 vote of its members.
Well-known problem
 “The only individuals who are today locked up in our jails are those who don’t have enough money to buy their freedom from prosecutors or law enforcement,” said Hennadiy Moskal, an oppositionist lawmaker and veteran police officer recently fired as head of the Interior Ministry in Crimea. “Those who don’t have money will sit in jail. Those who do will go free. This is, unfortunately, the way our country works.”
But can such a system be fixed – or must it be torn down and rebuilt from scratch? If so, how? And who will lead the charge?
So far, politicians have been more interested in controlling the courts than in adopting laws designed to bolster their independence.
Led by Yanukovych’s Party of Regions faction, the legislature has already shelved a draft law on the judiciary and a new criminal procedural code. At the same time, the deputies of the new ruling majority managed to postpone introduction of internationally-backed anti-corruption legislation. That package of measures was supposed to take place in April, but now the start date has been pushed back to January 2011. Amid all this legislative flurry, parliamentarians still haven’t found the time to strip themselves of immunity from prosecution, an entitlement that puts all 450 lawmakers of the Verhkovna Rada safely above the law. Many doubt they will ever drop this privilege.
Dead at the head
 “What we lack is the separation of powers,” said Vasylenko, the retired Kyiv Appeals Court judge. “That means judges toady up to the officials who got them appointed.”
During the early 2000s, Vasylenko bucked the authoritarian system of ex-President Kuchma by criticizing government officials for using the courts to advance their political and business interests. He even launched a criminal case against Kuchma to investigate the ex-leader’s alleged involvement in the disappearance of journalist Georgiy Gongadze, beheaded in 2000, and for alleged illegal arms sales. Years ahead of anyone else, Vasylenko also spoke out against rigged criminal proceedings launched against Kuchma enemies, such as the unlawful three-year imprisonment of Sloviansky Bank head Borys Feldman.
Vasylenko, now 70, said Yushchenko “out of political expediency” withdrew key legislation proposed after the 2004 Orange Revolution – the popular uprising that put Yushchenko in power instead of Yanukovych back then.
The comprehensive legislation would have bolstered the independence and status of judges and given the nation a modern-day criminal procedural code. The failure to do so will only mean that the guilty will continue to go free while the hapless innocent get punished, Vasylenko said.
Although the constitution adopted in 1996 provided for ensuring a fair trial, many of the rights are nowhere near being protected in reality for average citizens. While Ukraine’s elite live with impunity, ordinary defendants are also formally presumed innocent, but court judges maintained a 99.5 percent conviction rate from 2005-2008, just like in Soviet times.
Attempts to introduce a system whereby defendants are judged by juries of their peers have gone nowhere, said Yevhen Zakharov, co-head of the Kharkiv Human Rights Protection Group.
The presumption of innocence is turned on its head in Ukraine by police and prosecutors who continue to treat suspects as if they were guilty by incarcerating them for long periods before trial.
 “The current version of the code is a messy relic of Soviet era justice that was adopted in 1961 and haphazardly amended for decades,” Zakharov, the human rights champion, said. “It needs to be replaced because of the general distrust of public authorities, including judges, and the problem of pervasive corruption.”
Volodymyr Yavorskiy, managing director of the Kyiv-based Ukrainian Helsinki Human Rights Group, a non-profit association founded in 2004 uniting 23 civic rights groups, agreed.
 “The present system of criminal justice still is based on a Soviet-style, authoritarian system,” Yavorskiy said.
State of the courts
Viktor Aheev, an Odessa-based criminal trial lawyer, is not enthusiastic about the prospects for change. He compared the current system of justice to a dead hospital patient. “At this point, it’s better to discuss funeral arrangements than talk about therapy,” Aheev said.
A typical district courtroom in Kyiv is a small and poorly ventilated room equipped with several desks, a bench for visitors and an iron cage for the accused. The presiding judge sits directly in front of the defense attorney and prosecutor, whose often dilapidated desks face one another. The cage is guarded by two policemen. Lawyers say trial results can be unfairly fixed, with judges commonly refusing to hear exculpatory evidence, while calling frequent recesses to confer privately with the prosecutor. Furnishings and security in the nation’s high courts located in Kyiv’s Pechersk District, a flashier court that nonetheless notoriously rubber stamps rulings for politicians and tycoons, are better.
Insiders say paying and receiving bribes is a common practice in most of the nation’s courts. Fee amounts depend on jurisdiction, the crime, real or trumped-up, and the financial wherewithal of the individual or company involved.
 “A couple of hundred dollars is enough to keep police from processing misdemeanors, but it can cost tens of thousands more to quash serious crimes, like involuntary manslaughter, battery and assault,” Aheev, the Odessa lawyer, said. “Specially-crafted court decisions in economic disputes can run into the hundreds of thousands of dollars.”
While the average monthly salary for judges ranges from hundreds to thousands of dollars, many are seen leading luxury lifestyles.
Judges are rarely caught red-handed. When they are, the ensuing investigation often becomes a mind-numbingly long and drawn-out affair with inconclusive results.
For example, prosecutors in December 2008 opened a criminal case on suspicion that ex-Lviv Appeals Court Judge Ihor Zvarych had taken a $100,000 bribe. The next day, the offices and apartments of Zvarych and another seven court judges were searched. Some $1 million and Hr 300,000 were discovered at Zvarych’s home. He was arrested in Lviv on March 9. More than a year later, the case has still not gone to trial. Zvarych has denied wrongdoing and claimed he was framed. The next court hearing is scheduled for early May.
Should Zvarych be found guilty and sentenced to jail, it would be one of the few times that a corrupt judge has faced justice in Ukraine. More broadly, few if any of the nation’s most serious crimes have been solved or injustices rectified in its independent history.
Odessa lawyer Aheev said aggrieved parties in commercial disputes are better off burying the hatchet in Ukrainian or international arbitration courts. He said while the European Court for Human rights is an option for those who think state institutions have violated their rights, it will probably take years before the Strasbourg, France-based court gets around to hearing new complaints. The current pending caseload from Ukraine before the European Court for Human Rights at the end of last year exceeded 10,000 – about the same as the number of judges working in all the country’s courts.
Big and bad
Ukraine’s system of justice consists of a 300,000-strong police force, about 10,000 state prosecutors and an equal number of judges. The latter are nominated by the High Council of Justice, the 20-member panel empowered under the Constitution with vetting candidates and disciplining judges for violating their oath.
The president wields considerable power over the judiciary. He has authority, with the agreement of the Justice Ministry and the Supreme Court chairman, or of a corresponding higher specialized court, to establish and abolish courts of general jurisdiction. The president also determines the number of judges in the court system, can appoint and remove chairpersons and deputy chairpersons of courts, and establishes appellate commercial and appellate administrative courts.
The Supreme Court is currently the final appellate court in the system of courts of general jurisdiction in criminal and civil cases, while the High Economic Court and High Administration Court are the last stop for commercial disputes and cases involving government institutions.
In a March 11 ruling, the Constitutional Court paved the way for the creation of two additional high courts, the High Civil Court and High Criminal Court, which would reduce the number of Supreme Court justices from 96 to 12. Constitutional Court judge Vyacheslav Dzhun said the legislative proposals would improve the courts, if adopted by lawmakers.
But Andriy Portnov, a member of the opposition faction of ex-Prime Minister Yulia Tymoshenko, said more is needed. “We are going to start from scratch and draft a completely new law on the judiciary,” Portnov said.
But Kivalov, the Yanukovych-allied judiciary committee chairman, said passing the Dzhun-backed legislation to clarify jurisdiction is not a priority.
 “I don’t think we should shake up society by creating controversial structures which are acceptable for only one [political] group,” Kivalov, the former Central Election Commission head, said.
High council of what?
In addition to making laws, Portnov and Kivalov are members of the High Council of Justice, itself a highly political body that on March 22 elected Kolesnychenko as its leader. Its members include former high-ranking officials accused of covering up many of the nation’s greatest crimes.
On March 2, about 60 anxious-looking nominees for judgeships from across Ukraine converged on the council’s office to receive their recommendations for appointment on March 2. Asked how much the application process had cost them, two candidates declined comment, turned away and asked not to be photographed.
A High Council of Justice spokesperson denied widespread rumors and allegations that judicial candidates shuck out cash to get appointed. The spokesperson said that, since 1998, 109 of the 8,500 appointed judges have been sacked for oath violations.
Public distrust growing
The last five annual human rights reports by the U.S. State Department chronicle scores of Kafkaesque court controversies in Ukraine, drawing on the findings of local human rights organizations. The court system has been pilloried by international watchdogs, dragging Ukraine down in the rankings to 146 out of 180 countries – on par with Zimbabwe and East Timor – in Transparency International’s 2009 Corruption Index.
The Justice Ministry last year reported survey results revealing that only 10 percent of respondents trusted the nation’s court system. Less than 30 percent believed that it’s still possible to get a fair trial.
What experts say
Yanukovych rarely spoke about his plans for the judiciary in the recent presidential campaign. Along with other presidential candidates in the recent election, Yanukovych advocated election of judges to make them more accountable.
 “The old court system was destroyed, but nothing took its place,” Yanukovych said on March 2. “We will clean up the current mess and adopt a law on court organization.”
He promised to form an expert group to make recommendations and, on March 24, did just that.
Supreme Court Chairman Vasyl Onopenko told Yanukovych during a March 2 meeting that cleaning up the courts is possible.
 “There is a social necessity to reform the courts. People have grown sick and tired of not playing by the rules. This includes us, who, first and foremost, are interested in carrying out judicial reform. Ideas are resurfacing.”
Constitutional Court chairman Andriy Stryzhak said “nothing will happen if we leave the job up to politicians.” Oksana Syroyid, an expert on Ukraine’s administrative law and judiciary, said current representatives of the judiciary should be excluded from drafting legislation.
David Vaughn, chief of party for the U.S. Agency for International Development’s Ukraine Rule of Law Project, said measures to encourage the impartiality, independence and professionalism of the judiciary should be the priority.
 “That means more transparency, accountability and efficiency in the delivery of justice, which in turn will improve public trust and confidence,” Vaughn said.
Onopenko, the Supreme Court’s top judge, said on March 2 after his meeting with Yanukovych: “We all know what the problems are and are ready to make suggestions.”
One day after setting up a special judicial reform commission, Yanukovych said on March 25: “We can no longer disgrace our country with such a court system.”
 “The time has come to act,” he added.

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