Pros­e­cu­tors rule above all

Kyiv Post Legal Quarterly - - Contents - By Johannes Wamberg An­der­sen johannes.wa@gmail.com

In­demo­cratic na­tions, a judge or jury gets the fi­nal word in the court sys­tem, with lev­els of ap­pel­late courts de­signed to step in and stop mis­car­riages of jus­tice. But in Ukraine, a court fight is not a fair fight. Pros­e­cu­tors have had such in­or­di­nate pow­ers that they dic­tate many court rul­ings in crim­i­nal cases. The pros­e­cu­tors an­swer to no one – ex­cept, per­haps, the politi­cians who ap­point them.

It’s a big rea­son for public dis­trust of the courts.

“It’s a threat to democ­racy,” Igor Fomin, a lawyer with the Ukrainian Le­gal Com­pany, said. “With­out proper checks and bal­ances, the con­cen­tra­tion of power takes us in the di­rec­tion of dic­ta­tor­ship.”

Taras Kuzio, a Ukraine po­lit­i­cal an­a­lyst, said: "The Gen­eral Pros­e­cu­tor's Of­fice is in­com­pe­tent, cor­rupt and over­manned. Some 20,000 pros­e­cu­tors live off bribes and state salaries and they have zero pro­duc­tiv­ity to their name...they are more likely to de­fend and pro­tect cor­rupt elites rather than ac­tu­ally pros­e­cute them."

The sys­tem that re­mains in place was cre­ated to serve a to­tal­i­tar­ian state with courts rub­ber-stamp­ing the will of po­lit­i­cally sub­servient pros­e­cu­tors.

Va­len­tyna Te­ly­chenko, a lawyer and hu­man rights ad­vo­cate, said judges still fa­vor pros­e­cu­tors over de­fense at­tor­neys, who are seen as rep­re­sent­ing "bad guys."

Pros­e­cu­tors have other ways to get the rul­ings they want. If a court rul­ing goes against the pros­e­cu­tion – a rare oc­cur­rence be­cause

only 0.3 per­cent of crim­i­nal tri­als end in ac­quit­tals – the pros­e­cu­tor has ways to pres­sure judges.

As an ex­am­ple, Fomin cites the case of Judge Ser­hiy Vovk. He faced crim­i­nal charges and dis­ci­plinary ac­tions to keep him “on track” when he presided over the con­tro­ver­sial 2011 trial against for­mer In­te­rior Min­is­ter Yuriy Lut­senko. The West saw the case as po­lit­i­cally mo­ti­vated. Fomin was Lut­senko’s at­tor­ney.

With most judges pli­ant, the ground is fer­tile for po­lit­i­cally mo­ti­vated in­jus­tice. Top pros­e­cu­tors are ap­pointed by, and an­swer to, Par­lia­ment and the pres­i­dent, ac­cord­ing to Olek­sandr Banchuk, an ex­pert with the Cen­ter for Po­lit­i­cal and Le­gal Re­form.

And judges fear go­ing against pros­e­cu­tors. “They know very well that they have made un­due rul­ings, and now they sit tight,” Fomin said. Te­ly­chenko said many judges are on the take and could right­fully be in­ves­ti­gated, mak­ing them even more com­pro­mis­ing can­di­dates for crim­i­nal in­ves­ti­ga­tions.

This leaves a sit­u­a­tion where crim­i­nal cases are opened or closed at the dis­cre­tion of the pros­e­cu­tion, with bribes and po­lit­i­cal con­nec­tions of­ten de­ter­min­ing the re­sult. “Many pre­fer to pay up than to face trial and prison,” Fomin said. “A for­mer pros­e­cu­tor gen­eral told me that he es­ti­mated his of­fice to be worth $1 bil­lion.”

Leg­is­la­tion that over­hauls the role of the pros­e­cu­tor, coau­thored by the Coun­cil of Europe, will ad­dress some of the flaws – at least on pa­per. De­fense lawyers will en­joy bet­ter ac­cess to ev­i­dence. Pros­e­cu­tors will be stripped of the “gen­eral over­sight” func­tion, which al­lows them to con­trol all other state in­sti­tu­tions and even cor­po­rate en­ti­ties.

But even un­der the new law, the pros­e­cu­tor gen­eral will still be ap­pointed by the pres­i­dent and pros­e­cu­tors can abuse and ha­rangue judges.

“They turn the jus­tice sys­tem up­side down,” Fomin said, ar­gu­ing that the judge should be in charge of the trial, not the pros­e­cu­tor.

How to cre­ate im­par­tial and in­de­pen­dent judges in this cor­rupt en­vi­ron­ment is a chal­lenge. Changes to the High Coun­cil of Jus­tice, which has the au­thor­ity to hire, fire, and dis­ci­pline judges, fall short.

Fomin said that Pres­i­dent Petro Poroshenko has taken con­trol over new ap­pointees to the coun­cil. “Now the exec- utive once again is in con­trol of the ju­di­ciary,” Fomin said. “We have been through all this dur­ing the Yanukovych ad­min­is­tra­tion, when loyal judges were pro­tected and the dis­loyal ones ousted.”

Mov­ing ju­di­cial power from po­lit­i­cally-driven pros­e­cu­tors to po­lit­i­cally-driven judges is not the an­swer.

Fomin said that a jury sys­tem is one so­lu­tion. He also said that Ukraine needs a higher stan­dard of trained pros­e­cu­tors. These changes would place the court­room at cen­ter stage The cur­rent batch of pros­e­cu­tors are ap­pointed more for loy­alty than com­pe­tence, he said, and poorly equipped at com­pe­tently putting to­gether cases and eval­u­at­ing ev­i­dence.

The Pros­e­cu­tor Gen­eral’s Of­fice de­clined re­peated re­quests for com­ment. How­ever, on June 18, Pros­e­cu­tor Gen­eral Vik­tor Shokin asked the United States for as­sis­tance in in­ves­ti­gat­ing cor­rup­tion in his of­fice.

Pros­e­cu­tors stand at top of cor­rupt pyra­mid of Ukraine’s ju­di­cial sys­tem, dic­tat­ing ver­dicts in crim­i­nal cases to judges and ar­bi­trar­ily de­cid­ing who gets in­ves­ti­gated and who doesn’t. They an­swer to no one – ex­cept the politi­cians who ap­point them.

Ac­tivists wear­ing masks of for­mer pros­e­cu­tor gen­er­als (from left) Oleh Makhnit­sky and Vi­taly Yarema, Pres­i­dent Petro Poroshenko and Pros­e­cu­tor Gen­eral Vik­tor Shokin dur­ing a June 17 demon­stra­tion in front of the par­lia­ment in Kyiv. The ac­tivists warned that anti-cor­rup­tion in­ves­ti­ga­tions of top of­fi­cials will go nowhere if par­lia­ment passes a law to make a spe­cial anti-cor­rup­tion branch of the pros­e­cu­tor’s of­fice sub­servient to the pres­i­dent. (Volodymyr Petrov)

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