Oksana Sy­royid: Pros­e­cu­to­rial cor­rup­tion even worse un­der Lut­senko

Kyiv Post Legal Quarterly - - Contents - By Brian Bon­ner bon­ner@kyivpost.com

Oksana Sy­royid, a lawyer who is now a deputy speaker of Ukraine's par­lia­ment and one of 26 mem­bers of the op­po­si­tion Samopomich Party, takes the long view about ju­di­cial re­form in Ukraine.

The new 120-judge Supreme Court, set to be seated by Oc­to­ber, "is not a suc­cess, but it is not a fail­ure also," Sy­royid told the Kyiv Post in an in­ter­view on Sept. 11. In­stead, she said, "it’s a devel­op­ment" in Ukraine's long jour­ney from shed­ding its Soviet legacy and dis­lodg­ing the "oli­garchic klep­toc­racy" that rules the na­tion today.

"What we have now is predetermined by a num­ber of fac­tors," she said.

If 25 per­cent of the judges form a new, com­pe­tent and moral cen­ter on the new high court, de­spite be­ing dis­bursed among dif­fer­ent spe­cial­ized courts, the na­tion can move ahead halt­ingly, she said.

She ex­pects, how­ever, that only a hand­ful of judges at most will emerge on the new Supreme Court to win pub­lic re­spect for their rul­ings. Even that rep­re­sents progress, she said, since she can­not name a sin­gle judge of the cal­iber of Amer­ica's Wil­liam O. Dou­glas or Earl War­ren, two of Amer­ica's most fa­mous Supreme Court judges.

If we have at least one, two, three, four (good judges), we can do some­thing," she said.

An in­de­pen­dent Ukrainian ju­di­ciary has never been es­tab­lished, Sy­royid said. "We in­her­ited Soviet judges and called them Ukrainian judges and that’s it." In Ukraine, she said, the judges got "pri­va­tized" by "the ma­jor­ity own­ers of the sys­tem" — pow­er­ful politi­cians, oli­garchs and even Rus­sians. Judges have been serv­ing those in­ter­ests ever since, she said.

The ur­gency for ju­di­cial re­form came af­ter the Euromaidan Rev­o­lu­tion that drove Pres­i­dent Vik­tor Yanukovych from power on Feb. 22, 2014. At that time, mem­bers of par­lia­ment re­al­ized that none of the 8,000 judges on the na­tion's bench de­served life­time ap­point­ments.

"You can­not ex­pect that the sys­tem that has been cor­rupted for 25 years can be cleaned in a mo­ment, at least for such a coun­try," Sy­royid said. "The big­gest suc­cess of the process so far is the work of the Pub­lic Coun­cil of In­tegrity."

The coun­cil is made up of civic ac­tivists that helped vet can­di­dates for the new Supreme Court and, while hav­ing only ad­vi­sory pow­ers, was able to call at­ten­tion to dis­hon­est judges with bad rep­u­ta­tions.

The new judges sim­ply can't think dif­fer­ently, she said, be­cause of the poor le­gal ed­u­ca­tion in Ukraine. While Sy­royid, 41, was also ed­u­cated in Ukraine, she ob­tained a mas­ter's of law de­gree in Canada as well.

"In Ukraine we have up to 100 law schools and the qual­ity of ed­u­ca­tion in those law schools, or the ma­jor­ity of them, is very poor," Sy­royid said. "In all of them, ex­cept maybe for in­di­vid­ual cour­ses that were changed, the stu­dents are trained ac­cord­ing to the Soviet doc­trine of law. The Soviet le­gal doc­trine was based on the dom­i­na­tion of state and the hu­mil­i­a­tion of a per­son. But lib­eral doc­trine, and our Con­sti­tu­tion by the way as well, is built on the pri­or­ity of the per­son, the dig­nity of the per­son, the per­son as the cor­ner­stone of the coun­try. All the state bod­ies shall be sub­or­di­nated to the rule of law to pro­tect hu­man rights."

In prac­tice, how­ever, "it's still not en­shrined into the le­gal ed­u­ca­tion, so how can you ex­pect the judge or the pros­e­cu­tor or a lawyer in the court­room to stand for the hu­man rights of a per­son if he or she was trained or trained that the state is the pri­or­ity?"

Of the more than 1,000 judges she trained, she said, she can rec­om­mend only a hand­ful of them. To make mat­ters worse, the In­te­rior Min­istry — with law en­force­ment func­tions and made up of 150,000 em­ploy­ees — op­er­ates many law schools. They should all be run by the Ed­u­ca­tion Min­istry, she said.

Poroshenko blocks anti-cor­rup­tion court

The courts are still run for the ben­e­fit of "those six or seven oli­garchs run­ning the coun­try," in­clud­ing Poroshenko, and they will not al­low the for­ma­tion of an in­de­pen­dent anti-cor­rup­tion court, ac­cord­ing to Sy­royid.

"None of them is in­ter­ested in there be­ing an anti-cor­rup­tion court. They are in­ter­ested in the cur­rent Ukrainian courts, where they can in­ter­vene and fi­nally get the ver­dict that they are not guilty. The ma­jor per­son who is not in­ter­ested here is the pres­i­dent him­self. He is not even hid­ing this."

Sy­royid has rec­om­mended that an in­de­pen­dent com­mis­sion that in­cludes qual­i­fied rep­re­sen­ta­tives of Ukraine's in­ter­na­tional

part­ners help choose an in­de­pen­dent anti-cor­rup­tion court. "This is not ac­cepted by the pres­i­dent be­cause he can­not con­trol it," she said. And the ma­jor­ity of her col­leagues in par­lia­ment "are de­pen­dent on the oli­garchs," Sy­royid said. "A lot of those peo­ple gain their money and prop­erty be­cause of cor­rup­tion."

Lut­senko 'even worse' Sy­royid has no­ticed no less­en­ing of cor­rup­tion among the na­tion's 15,000 pros­e­cu­tors since Pros­e­cu­tor Gen­eral Yuriy Lut­senko, Poroshenko's ap­pointee, took over in 2015.

"This is the busi­ness. The pros­e­cu­tion con­sid­ers the open­ing of a crim­i­nal pro­ce­dure as launch­ing a busi­ness. It's like a start-up: You open a crim­i­nal pro­ceed­ing, and col­lect money to close the pro­ceed­ing. Then you do it again."

If any­thing "it's even worse" un­der Lut­senko. "I don't know who had any il­lu­sions."

Lut­senko, she says, "is try­ing to make his pub­lic­ity by pros­e­cut­ing MPS," but it's not likely to work, be­cause the Verkhovna Rada is a "sin­ners club" that has com­pro­mis­ing ma­te­rial on each other.

Lut­senko did not re­spond to re­quests for com­ment.

Avakov 'dan­ger­ous' Mov­ing to the po­lice, Sy­royid said In­te­rior Min­is­ter Arsen Avakov "doesn’t care about any re­forms. He cares about im­prov­ing his po­lit­i­cal in­flu­ence; he is gain­ing this power. He is one of the big­gest play­ers in Ukrainian pol­i­tics. It's not be­cause he's so uniquely smart or tal­ented."

Avakov de­rives his power as the boss of 150,000 em­ploy­ees, in­clud­ing the Na­tional Guard, po­lice, state body­guard ser­vice and state emer­gency ser­vices. More­over, he is aligned with the 81-mem­ber Peo­ple's Front, the sec­ond­largest fac­tion in par­lia­ment.

At least Hr 50 bil­lion — $2 bil­lion of the na­tion's $40 bil­lion bud­get — goes to law en­force­ment.

Avakov is not ac­count­able, Sy­royid said, and has es­tab­lished the Na­tional Guard as "an al­ter­na­tive army al­ready. It's even bet­ter equipped and bet­ter paid than the army. It's a point of jeal­ousy for the armed forces. Now he is call­ing for an in­crease in its polic­ing func­tions. So it will be dou­ble polic­ing — we have the po­lice and we’ll have the al­ter­na­tive po­lice."

Giv­ing the Na­tional Guard law en­force­ment and mil­i­tary du­ties "is very dan­ger­ous," Sy­royid said, threat­en­ing to turn Ukraine into a po­lice state. "If you have two al­ter­na­tive armies, there is a big risk they could start fighting with each other."

Al­ready, she said, Avakov has used guard mem­bers wear­ing no in­signia to break up cit­i­zen block­ades dis­rupt­ing trade be­tween Ukraine and Rus­sian-oc­cu­pied areas. Ad­di­tion­ally, she said, peace­ful pro­test­ers in Poltava ear­lier this year were "se­verely beaten" by what she sus­pects were Na­tional Guard of­fi­cers not wear­ing iden­ti­fy­ing in­signias.

'I don't talk to them' Sy­royid said that she rarely speaks with Avakov or Poroshenko and she doesn't think they're in­ter­ested in speak­ing with her ei­ther. "It's mu­tual," she said.

She last tried to talk to Avakov about trans­fer­ring law school ed­u­ca­tion from the In­te­rior Min­istryto the Ed­u­ca­tion Min­istry. Avakov told her that he agreed, but ended up sup­port­ing a bud­get that con­tin­ues to spend 60 per­cent of le­gal ed­u­ca­tion money on In­te­rior Min­istry schools. "What is the rea­son to talk?" she asked. "In pub­lic, they say all the good words. When it comes to de­ci­sions, they do ev­ery­thing in their pri­vate in­ter­ests."

Avakov did not re­spond to re­quests for com­ment.

No in­ter­est in solv­ing crime Un­for­tu­nately, Sy­royid said, the state of po­lice in­ves­tiga­tive agen­cies is that they don't want to solve big crimes or lack the skills to do so. "In­com­pe­tence is a de­riv­a­tive of the first," she said. "This is the in­tent."

The sooner that pros­e­cu­tors lose their Soviet-era pow­ers to com­mand the en­tire ju­di­cial sys­tem, in­clud­ing po­lice and judges, the bet­ter, Sy­royid said. "This should be the only func­tion: Make the case and bring it to the court. The crime is in­ves­ti­gated by the po­lice, pros­e­cu­tors make the case and bring it to court and stand for the pub­lic in­ter­est of so­ci­ety. The judge is the ar­biter. On the other side is the de­fense at­tor­ney."

If crimes keep go­ing un­solved, she said, peo­ple will seek re­venge by tak­ing the law into their own hands. Yet, de­spite the fact that pros­e­cu­tors should no longer have over-arch­ing pow­ers, they still do. One rea­son is Lut­senko.

"The cur­rent pros­e­cu­tor gen­eral is not a leader that can change the sys­tem, def­i­nitely," she said. "It's all in­ter­con­nected. If we have a good judge but a bad pros­e­cu­tor, the case fails. If we have a good pros­e­cu­tor but a bad judge, the case fails."

Oksana Sy­royid, deputy par­lia­men­tary speaker dis­cusses with law­mak­ers dur­ing par­lia­ment ses­sion on April 6 in Kyiv. (UNIAN)

Oksana Sy­royid, deputy par­lia­men­tary speaker (R) and speaker of par­lia­ment An­driy Paru­biy look as Ukrainian Pres­i­dent Petro Poroshenko con­grat­u­lates Yuriy Lut­senko af­ter win­ning the vote in the Ukrainian Par­lia­ment in Kyiv on May 12, 2016. (UNIAN)

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