Prosecutors rule above all
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)