The
Organized Crime Observatory is a Swiss-based nongovernmental organization commissioned
by the European Commission to do a thorough research on corruption
and organized crime in Ukraine in order to inform the European Union
on the readiness of Ukraine to sign the association agreement.

Those
who knew about the world-class experts engaged in this report, such
as Louise Shelley, Judith Deane or Pedro Gomez Pereira, were dying
in anticipation to see it.

However,
the press conference of the president of the OCO made everybody
wonder whether the report was based on contributions of the above
experts, or Ukrainian General Prosecutor Victor Pshonka, who
received special thanks at the very beginning of the OCO’s report.

The
report has cost European taxpayers 90,000 euros and the authors seek
another 40,000 euros until the end of the year to finance further
studies, according to Nicolas
Giannakopoulos, the OCO president.

The
OCO report assessed the key trends in Ukrainian criminality,
observing that drug smuggling and people trafficking remain at a high
level in the country, while the organized crime has been put under
control. Thus it is not clear, whether drug smuggling and human
trafficking became a part of Ukraine’s official export, or whether
the conclusions regarding the organized crime being under control
have been slightly pre-mature, or maybe the problem of drug smuggling
and people trafficking have been slightly exaggerated.

Besides,
the report stresses upon new trends such as cyber-crimes and
corporate raiding and fraud, as major problems in Ukraine, which
might potentially effect the rest of the Europe, in case Ukraine
signs the Association Agreement.

Furthermore,
the report stressed upon the importance of tacking low-level official
corruption, since the high-level political corruption has been put
under control thanks to signing of a number of international
anti-corruption treaties. The report also brings up Pavlo Lazarenko
and Yulia Tymoshenko imprisonments in USA and Ukraine, respectively,
as an illustration of the successful fight with grand political
corruption, fraud and money laundering.

The
report does not mention that there was no conviction of Lazarenko in
Ukraine for corruption, fraud or money laundering, and that since
Lazarenko left Ukraine, his name in Ukraine became a subject of
numerous political speculations, but has never become a symbol of the
Ukrainian legal system fighting grand political corruption.

Lazarenko
has been wanted in Ukraine for his alleged involvement in the
assassination of Yevhen Scherban – a highly political and
controversial accusation of the Prosecutor General against both
Lazarenko and Tymoshenko.

Page
22 of the report clearly states that: “On the one hand, the former prime minister Lazarenko faced two trials, one in Switzerland and one in the
United States and served years of prison, being considered as the
paradigm of the political corruption. The other, the former prime minister Tymoshenko, was sentenced in Ukraine for the same facts and seems
still to be considered as a political victim.” 

Actually,
this is completely wrong. Tymoshenko was imprisoned for signing a gas
agreement with Russia in 2009 and exceeding her authority as prime
minister when she did it. This factual mistake is impermissible for a
highly respected institution as the Organized Crime Observers.

During
Lazarenko’s trial there were no charges brought against
Tymoshenko. Lazarenko’s case dealt with events in 1996 and 1997.
It’s a pity the report does not clarify the difference between
Lazarenko’s case in the US and Tymoshenko cases in Ukraine. Besides,
the report does not clarify that
Tymoshenko has never been found guilty in the US District Court of
any corrupt activities, fraud or money laundering.

Furthermore,
Tymoshenko was convicted only in Ukraine, and the procedure of her
arrest was successfully challenged in the European Court of Human
Rights, which found her arrest arbitrary and politically
motivated.

Currently,
the ECHR is considering her application with regard to the lack of
due process in her case, and the most likely she will win the case.
Unfortunately, the lack of rule of law in Ukraine, as an important
factor that undermines the fight with corruption and organized crime,
completely escaped the attention of those preparing the OCO’s
report.

The
report does not mention the miraculous enrichment of the President
Viktor Yanukovych’s sons and a luxurious residence in the former
national park of the incumbent president. Neither it talks about
Andriy and Serhiy Kluyev’s hard work on building up a personal solar
energy empire in Ukraine by using state budget – something they
have been accused of by the media, but vigorously denied.

The
report also fails to mention an alleged merger of law enforcement
agencies and criminal authorities. The role of judiciary in raiders’
attacks also escaped the attention of the OCO.

The
OCO’s report makes it clear that the fight against corruption is
the fight between predatory elites in a society and its “losers”
– civil society and political opposition – and can only be won on
domestic playgrounds. It is crucial for effective winning of this
battle to distinguish between grand political corruption and petty
corruption, since latter is often used to provide the illusion of
fighting the former. The OCO’s report completely failed to make
that distinction and to focus of the major problem in Ukraine –
public procurement, and grand political corruption.

The
OCO’s report shows that the international community can play only a
limited part in national fight with corruption and that the foreign
NGOs often have their own agenda, i.e. justifying more work for
themselves in the researched country, and are not exempt from
political pressure. The author was privileged to have a look at the
preliminary draft of the OCO’s report, which was significantly
different from the one presented by the President of in Geneva last
week.

In
Western countries corruption is usually considered as a deviation
from an otherwise established norm, where every citizen is treated
equally by the state and all public resources are distributed
impartially. In fact, outside of Western old democracies, this norm
has never existed. Most human societies have limited resources to
share, and people tend to share them in a particular way, most
notably with their closest kin and not with everybody else. There are
very few states that overcame the problem of equal treatment of each
citizen, and Ukraine is positively not one of them.

Most
anti-corruption instruments that are so praised in the OCO’s report
and used as an indicator of Ukraine’s progress in fighting
corruption are norm-infringing instruments from the developed
countries, when they should be norm-building instruments for
Ukrainian contexts.

There
is a gross inadequacy of institutional imports from Western
countries, which enjoy rule of law to our reality. The thorough study
(2011) led by Professor Alina Mungiu – Pippidi of the 15 years of
anti-corruption efforts in different countries showed that there was
no impact by anti-corruption agencies, ombudsmen-like institutions
and the ratification of the United Nations Convention Against
Corruption in countries without rule of law or independent
judiciary.

What
is often needed for change is a collective action of domestic
players, such as political opposition and civil society pushing for
change. There are quite a few significant factors, which can provide
a certain level of control over corruption. Among them there is a
strong impact of the Internet infrastructure, reduction of red tape,
economic openness, civil society activity, freedom of information and
media freedom.

There
are areas where development democracies can play a large role, even
when disregarding individual rights and not having the independent
judiciary, which are more political and thus more difficult to
influence. The perspective of the EU-embrace rather than a
barber-wire could have been one of the positive factors for the
Ukrainian civil society and the opposition to combine their efforts
in fighting corruption.

OCO’s
report clearly indicated that not always can foreign experts produce
a reliable, politically neutral and useful report, that can help our
country to change for the better. We sincerely hope that OCO’s
interim report is just a first draft, and by the end of September
2014 when the final draft is due, the OCO will present more
scientific and objective picture of the corruption and organized
crime in Ukraine, which will help us Ukrainians to curb the
corruption, rather than justify the exclusion of the Ukraine from
the European countries.

 Halyna
Senyk is a lawyer specializing in international law, and CEO of
PEPWatch, a nongovernmental organization which is currently undergoing the registration process.