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Jackpot

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March 26, 2010, 12:53 a.m. | Ukraine — by Peter Byrne

After seizing control of the executive and legislative branches of government, President Viktor Yanukovych is now taking aim at the final outpost of power – the nation’s courts, where injustice and corruption reign supreme.

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 unrivaled 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 favorable 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 behavior.

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.



Ukrainian President Viktor Yanukovych at his Feb. 25 inauguration. After only a month in power, the pro-presidential Party of Regions has strengthened its grip over the executive, legislative and judicial branches of government. (Dana Umanskaya)


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 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.


The 2000 kidnapping and murder of journalist Georgiy Gongadzeremains unsolved. (UkrInform)


More than a year after he was caught with more than $1 million, former Lviv Judge Ihor Zvarych still hasn’t been tried on corruption charges. (UkrInform)


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.



From second left, High Council of Justice head Volodymyr Kolesnychenko, Prosecutor General Oleksandr Medvedko, parliamentary judiciary committee chairman Serhiy Kivalov and deputy general prosecutor Viktor Pshonka confer at March 16 meeting of the High Council of Justice. (Peter Byrne)

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.


Kyiv Post staff writer Peter Byrne can be reached at byrne@kyivpost.com.


The Kyiv Post is hosting comments to foster lively debate. Criticism is fine, but stick to the issues. Comments that include profanity or personal attacks will be removed from the site. If you think that a posted comment violates these standards, please flag it and alert us. We will take steps to block violators.
Anonymous March 26, 2010, 4:23 a.m.    

Another reason why Ukraine must abandon the presidential system and embrace a full democratic parliamentary model of governance in line with other European States.

Under a parliamentary system the executive is held accountable on a daily basis and is subject to the rule of law.

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Anonymous March 26, 2010, 4:33 a.m.    

Yushchenko undermined the independence of the court system when he illegally and unconstitutionally interfered with Ukraine's Constitutional Court back in May 2007 in order to prevent the Court from ruling against his decree.

On April 19, 2007 (Just prior to Yushchenko's illegal interference in the Courts) the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that &quot;Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat.&quot; (item 67)

In emphasis the report (item 68) stated

&quot;This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

The Parliamentary Assembly remained silent and turned a blind eye to the obvious abuse of presidential authority. in doing so it has set a precedent that the law and independence of the Courts can be subjected to political interference without impunity.

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Anonymous March 26, 2010, 5:44 p.m.    

We're discussing the arrangements made by the current admininstration which has nothing to do with Yushenko! You're way off course with your statement.

First and foremost,it is an undeniable fact that our country is under the rule of a corrupt administration.They know they're corrupt, the nation knows they're corrupt, the question is,how deep are we going to go into this hell! and for how long. Any reforms for a more transparent and accountable system is out of the question while Yanykovich is at the helm.He now has absolute power,and can do as he please,and thats all he cares about!

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Anonymous March 27, 2010, 2:22 p.m.    

and the previous administration was NOT corrupt? Sheesh . . . you sound like the Republicans in the USA: Bush destroys the country for the last 8 years, and then they want to blame Obama and the Democrats after only a short time. Maybe YK and RF can collapse back into Rus and start again?

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Anonymous March 27, 2010, 4:29 p.m.    

Is it hard for you to stick to the issues at hand? This is Ukraine today, not America yesterday!It's one thing to show that you are trying to do something about corruption, it's another to show that you embrace it.Yushenko tried to pass much needed reforms which was constantly undermined by Yanukovich and Tymoshenko.They voted against him through parliament on several occassions.So far, Yanukovich has shown that he has no intention of working against corruption. The fact that he appointed bandits and criminals,with proven corruption records to key posts only confirms his position.Now, they can introduce laws to legally protect themselves forever!

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Anonymous March 26, 2010, 4:54 a.m.    

And everyone criticized Tymoshenko as a power hungry despot. We'll you get what you deserve Ukraine.

A corrupt, unpatriotic relic of the 60's.

Enjoy the breadlines.

Yours truly,

Canadian Ukrainian Diaspora

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Anonymous March 26, 2010, 9:42 p.m.    

All very true. So Corruption is the name of the game, now. It was the real reason for the &quot;revolution&quot;. But it was hijacked, and rubbished into NATO, pro-West, Ukrainian identity, all that ... and corruption thrived and thrived.

Corruption wasn't tackled. In fact a key Ukrainian industry was given to two Indian brothers who make the Ukrainian oligarchs look like boy scouts.

And between them Yulya and Yush have given Yanu every kind of precedent to tamper with Constitutional Court, magistrates, establish museums for whatever they wish, give honours to dead thugs etc

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