At the end of the 1980s, when I was a child, a legendary Soviet rock musician and songwriter Viktor Tsoi was enormously popular with his song titled “The Changes”. Soviet citizens exhausted from the totalitarian control of the state were singing along all over the country: “Changes!” – demand our hearts. “Changes!” – demand our eyes”. And, as we all know, in few years the changes did come, and Soviet-managed totalitarianism collapsed. A lot of things have changed since that moment as well. Surprisingly, now, just as 20 years ago, Tsoi’s lyrics become acutely relevant among the Ukrainian people again.
The recent 7-year imprisonment sentence for the Ukrainian ex-prime minster Y. Tymoshenko has shaken the worlds’ society. Media sources all over the globe reported on the outrageous injustice that had been done in probably the most notorious criminal case in Eastern Europe for the past decade. In the aftermath of the judgment, world political leaders already condemned the Ukrainian regime, thus casting doubts upon the Euro-integration ambitions of official Kyiv. In their statements the main watchdogs of democracy – the European Union and the United States – seemed completely appalled by the conviction of Ms Tymoshenko and the blind ruthlessness of the Ukrainian judiciary system.
But should the West be really so surprised by the outcome of the trial? In the country where according to statistics, the acquittal rate in criminal cases is below 0,3 percents per year the answer certainly must be NO.
But let us get back to the news regarding Ms Tymoshenko. The General Prosecutor’s Office in Ukraine has already confirmed the initiation of several other criminal cases against her. New investigation is under way. Some of these cases have been dismissed more than five years ago, but revived again after a “due reconsideration” by secret service and state prosecution investigators. For the West, the process in the Tymoshenko case is a perfect illustration of the grim reality of the bruised by corruption and nepotism criminal justice in Ukraine. Ukrainian judicial system is rough, blind and preoccupied. Once you became the suspect, there is almost no way back for you. You will be guilty 99, 7 %.
But the European society should not, however, consider the ex-prime minister of Ukraine as a victim of political battles or the revenge of her opponents. Ms Tymoshenko herself has been nurturing this judicial system for years. As a Prime Minister she was a part of the same system and perfectly knew how it operates. She did nothing to change it. And quite dramatically she finally fell prey of it.
Now one of the most probable scenarios in the Tymoshenko case will be the introduction of amendments into the Penal Code of Ukraine and subsequent decriminalization of the crime she has been sentenced for. In view of a tumultuous negative reaction of the West, the Ukrainian ruling party simply cannot afford keeping Ms Tymoshenko further in jail. The Ukrainian President already gave hope for this by saying that the sentence in the ex-prime minister case was not the “last-instance” judgment and the appeal court should come to play. But what will happen to the judicial system after Ms Tymoshenko is released? Will something change? Let us take a closer look at the system of law enforcement in the country which is considered to be the candidate for the associate agreement with the European Union.
No wonder, criminal justice is the heaviest “hammer” in the tool-box of the Ukrainian state authorities, and also the most frequently used one. What is surprising is that it is often used by the law enforcement authorities in a no-holds-barred manner for purposes, however, other than combating crimes. Every Ukrainian legal web forum or a practicing attorney have dozens of stories about the state authorities that initiate criminal investigations against individuals as a result of the active “lobbying” by competitors of such individuals, their unsatisfied creditors, or simply by raiders interested in taking over the business they like. Then come arrests, interrogations, searches and seizures. Faced with the threat to lose freedom and personal health, victims of such acts usually accept conditions of their release, sign necessary papers and lose their businesses, personal property or both. Grievances, petitions and lawsuits are usually of no help when the state machine is on your way. Even attorneys are in danger – they can easily be intimidated to drop the case or arrested on false grounds, and even beaten. The history of the law enforcement in Ukraine knows such cases, just as it still knows the minimum monthly quotas on criminal charges brought against individuals that prosecutors and police officers must deliver each month. This practice inherited from the times of the Soviet Union is simple: if the quota is not met – the whole department can forget about bonuses or promotions this year.
Judges are in even worse a position. Having been formally required to serve justice, they are practically deprived of such privilege whatsoever. Indeed, judges are totally dependent: on their colleagues from the appellate courts who review their decisions, on judiciary commissioners who formally supervise them, and even on prosecutors who can initiate criminal investigation against them any moment they misinterpret the law. A judge from one of the district courts in Ukraine admitted to me recently in a private talk that when he sees that the prosecution does not have a solid case against a defendant in a particular case he has only two options available: to send the case back to prosecutors to obtain more evidence so that they can come back later, or to convict a person. In the latter case to compromise with his conscience and not to send the defendant to jail, he chooses the sentence non-related to imprisonment. But by no means an acquittal sentence. No more, no less.
Otherwise, a judge who acquits a person charged by the state authorities with a felony, risks to be dismissed by the judiciary commissioners for misconduct or “breach of oath” no matter what were the reasons for such acquittal. The system is straightforward: “charged with a crime” equals “guilty”.
The announced overhaul of the Ukrainian judiciary system brought no positive results. The country dives deeper into the legal chaos. One of such recent transformations affected the state law on the public access to the court decisions rendered in Ukraine (approved during the presidency period of Victor Yuschenko). After the latest amendments, the transparency of the Ukrainian judiciary system will be dismantled – from now on, only the court decisions preliminary approved by the state court administration are to be disclosed.
Next month, on 19 December, the EU-Ukraine summit will take place in Kyiv. A number of complicated issues are likely to be in the spotlight at the meeting, including the situation around Ms Tymoshenko, the EU-Ukraine free trade agreement, quotas and tariffs on import of Ukrainian products into the EU. It is understandable that when the economic interests are at stake the outrageous situation with the Ukrainian judiciary system is beyond the scope of the conversation. But Ukrainian attorneys remain optimistic no matter what. We will fight justice in Ukraine, just as we will fight for every single acquittal and rights of those who are on trial for the crimes they never committed.
‘“Changes!” – demand our hearts. “Changes!” – demand our eyes”.
If you hear this song in Europe, please sing along!
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