On prosecutorial “self-administration”

Past week all the Ukrainian media gave the news that the General Court of the Luxembourg-based Court of Justice of the European Union had lifted sanctions against Mykola Azarov, Oleksii Azarov, Serhii Arbuzov, Eduard Stavytsky, and Serhii Kliuiev on the grounds that the EU must not impose sanctions only because a third country has launched a preliminary investigation into their actions. Therefore, all their assets impounded in the European Union are to be unfrozen. What does this mean?

“The General Court (European Union) has resolved to annul the restrictive measures that were in force from March 6, 2014, until March 5, 2015, with respect to five former Ukrainian top officials: Mykola Azarov, Olersii Asarov, Serhii Arbuzov, Serhii Kliuiev, and Eduard Stavytsky,” Vitalii KASKO, Deputy Prosecutor General of Ukraine, said in a comment to The Day. “At the same time, the sanctions imposed by the Council of the European Union on March 5, 2015, are still valid and were not the object of this ruling of the EU court. The assets frozen by the European side on the basis of EU Council’s decisions on March 5, 2015, still remain administratively impounded. The restrictive measures are in force until March 6, 2016. Moreover, the EU side can appeal against today’s court ruling within two months from the date of announcement.”

As we can see, the situation is not a complete failure. But those in the know call this decision a new dangerous precedent for Ukraine. Andrii Portnov, ex-deputy chairman of the Yanukovych-era Presidential Administration, announced recently that the same Luxembourg-based court had made a similar decision whereby the EU is to compensate him for all the losses he sustained due to sanctions.

So why is the Ukrainian law-enforcement system still unable, two years after the Revolution of Dignity, to draw up an adequate and clear-cut act of accusation against Yanukovych’s henchmen? Why have Ukrainian courts failed to hand down concrete rulings? This is one of the main points The Day discussed with Vitalii KASKO, Deputy Prosecutor General of Ukraine, in charge of international cooperation, juvenile justice, and investigations at the General Inspection.

“IT WAS UNREASONABLE FOR UKRAINE TO TAKE PART IN THE LUXEMBOURG PROCESS”

Andrii Portnov “thanked” Ukrainian prosecutors, the minister of justice, the EU Ambassador Jan Tombinski for the Luxembourg court ruling. Why was such a dangerous precedent allowed to happen?

“When letters were being prepared in March 2014 about imposing sanctions against Portnov and other high-ranking officials, I worked as an attorney at law. I came to the prosecution service in late May. It is only the Ministry of Justice that can represent the interests of Ukraine in the foreign bodies of jurisdiction. The Prosecutor General’s Office (PGO) cannot interfere into a process on its own initiative and put forward any arguments. In general, taking into account the Luxembourg court practice and the advice of EU lawyers, it was unreasonable for Ukraine to take part in this process because the EU was a party to it.”

The president was asked at a recent press conference when the Yanukovych regime officials, such as Boiko and others, would be convicted. Poroshenko said it was up to the newly-established anticorruption bodies. But the PGO has wielded all the necessary powers to do so in the past 18 months.

“The cases of Boiko and all the other ex-top officials are still being investigated at the PGO’s Main Investigation Directorate. For, under the current law, they are to continue handling all the cases opened by prosecutors before November 20, 2015, within two years.”

Let’s get back to sanctions. Ihor Fomin, ex-finance minister Yurii Kolobov’s lawyer, said recently that a Spanish court had refused to extradite the former official.

“We have no official information about this from the Spanish side. Under the procedure, the Spanish Ministry of Justice should receive the official court ruling, if it has been handed down, and then inform the Prosecutor General’s Office of Ukraine, its counterpart in this case.”

But there is another moment that matters. Fomin was the first lawyer of Oleksii Pukach in the Gongadze case in 2003, when Pukach managed to run away for six years after a court ruling. Later, Fomin became the lawyer of Leonid Kuchma, but the PGO dismissed him because of his previous practices. Yet, as far as we know, he informally coordinated the defense of Kuchma. So, what do you think of the fact that the same people, who were involved in muddling up the Gongadze case, are now helping Yanukovych regime officials escape prosecution?

“The lawyer represents a free profession – if he has no conflict of interests, he will work for the one who pays. From the professional viewpoint, the lawyer Fomin has every right to defend anybody.

“I also used to work as an attorney at law and defend all kinds of people, such as Yurii Lutsenko, Yevhen Chervonenko, Yurii Pavlenko, and many others – the then ‘Orange team.’ Other politicians also turned to me, but I could afford not to take up their cases if I didn’t want to.”

One more historical parallel. Viktor Petrunenko was also Kuchma’s lawyer in the Gongadze case. Today, he represents the interests of “diamond prosecutors,” the arrest of which is associated with no other name than yours.

“I am of the same opinion here – I am not personally acquainted with Mr. Petrunenko and can say nothing about his professional qualities, but he can defend anybody.”

“PUKACH IS NOT THE END OF THE GONGADZE CASE”

As for the Gongadze case, a Helsinki Commission was once formed at the US Congress, and PACE passed some resolutions on investigating this high-profile crime. As Ukraine has taken international commitments about the final resolution of this case, we cannot brush it aside because this will cause an international-level scandal. But the latest ruling of the Kyiv Court of Appeal shows that the case was nevertheless brushed aside, and the court took a disgraceful attitude to the aggrieved persons Podolsky and Yeliashkevych. Does this topic arise whenever you meet your foreign colleagues?

“I have never happened to work on this case at the PGO or with my foreign colleagues. In all probability, this question arises on a political, not a professional, level, which is out of my line. I only know that the PGO’s Main Investigation Directorate continues to conduct some investigation.

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“But nobody has so far been brought to justice in addition to Pukach. And, by all accounts, there are no plans to do so. My personal opinion is that Pukach is not the end of this case. And the fact that this case still remains unsolved is a black mark on the reputation of Ukraine’s law-enforcement system. Society has not heard why the people who arouse suspicion have not been brought to justice. I agree that the Gongadze case is a cornerstone for the Ukrainian law-enforcement and judicial systems. This case has long been illustrating dependence of the prosecution service on the current political situation. This once stirred up a heated debate on problems in the prosecution service, but the situation still remains almost the same.”

SUCCESS OR FAILURE OF THE REFORM?

You said recently that the competitive recruitment of local prosecutors had flopped. Who and how hindered the staffing, for there were independent tests and commissions?

“Let me explain it stage by stage. I resigned from the prosecution service when Pshonka became the Prosecutor General, and took part in drawing up a new law on the prosecution service together with other experts at the Center for Political and Legal Reforms. Later, the then Presidential Administration and PGO essentially ‘improved’ this document, but some positive systemic changes still remained behind – for example, one on the establishment of local prosecution offices.

“The situation is as follows: there is a ‘corruption-prone triangle’ in every city and district – the police chief, the public prosecutor, and the chief judge, who are very often closely linked. They may relax in a sauna together to informally solve their problems. In these conditions, it is very difficult for an ordinary Ukrainian to seek justice in their village, city, or district. Our idea is to withdraw the public prosecutor from this ‘corruption-prone triangle.’ We have proposed establishing new, local, prosecution services that will cover the territory of three-four districts in lieu of the existing city, district, and inter-district entities. This would reduce the number of prosecution services and, hence, that of unneeded functionaries, which is an additional plus.

“Under the law ‘On Public Prosecution,’ there should be prosecutorial self-administration, which would replace a Soviet-type centralized system of prosecution with a democratic one, where every public prosecutor has sufficient guarantees of independence. Prosecutorial self-administration bodies should comprise rank-and-file prosecutors, who enjoy public respect, rather than prosecutors who hold an administrative office. When the Georgian team came, they insisted that prosecutorial self-administration should not be formed on the basis of old cadres, which is basically true. So, they suggested revamping prosecution services by way of open competition. But conservative prosecutors took advantage of this idea to postpone the enactment of the law ‘On Public Prosecution’ by a year – allegedly for holding competitions and revamping local prosecution offices. In other words, the old Soviet centralized system has remained intact.

“Then competitions were held for top offices in the local prosecution offices. But 84 percent of the newly-chosen people had held top prosecutorial offices before. Another 16 percent are the same prosecutors from regional or local offices, who worked as section chiefs and deputy chiefs or just rank-and-file employees. As a result, not a single chief of a local prosecution office had to quit the latter. An absolutely tiny number – about 3 percent – of outside candidates were appointed as deputy chiefs.

“In addition to local prosecution chiefs, there are also ordinary prosecutors who do all the ‘fieldwork.’ Under the law ‘On Public Prosecution,’ these offices could be contested by outside candidates. However, this right was restricted on the Prosecutor General’s orders, and only the prosecutors who had worked at city and district offices were allowed to contest low-ranking posts in the local prosecution services. In other words, it was clear that these offices would remain unchanged – they would continue to include all those who had worked there before, except for the ones who were dismissed due to staff cuts.”

What will you call this situation – a success or a failure of the reform? Maybe, the question is in the system, not in the people? What if prosecutors begin to work by new rules after institutional changes?

“As for qualitative changes in the prosecution service’s performance, there are a lot of factors that could have influenced this. Firstly, attracting new people on with fresh points of view – but this did not happen. Secondly, a salary hike – but this did not occur either. But even if an ordinary prosecutor earns a higher salary, he will still have in practice to follow the will of a regional or district prosecutor because he is not independent and the system is built vertically – otherwise, he may be snowed under with inspections and disciplinary proceedings, dismissed, or forced to work ‘within the system.’ Therefore, thirdly, the prosecutor must have guarantees of independence. But he does not at the moment.

“Besides, there should be general and specific preventions – the prosecutor should know that when he assumes office, his room may be bugged, and he may be tested for probity. He must see that the prosecutor who has taken a bribe will go to prison. But if he sees those who catch bribers go down, he will understand that the system is not built the way it should be.

“I could enumerate much more factors like this, but they should all work in the aggregate. So far, our system has these facts neither in an isolated form, nor, all the more so, in the aggregate.”

“THE ONLY WAY OUT IS PROSECUTORIAL SELF-ADMINISTRATION”

In your own words, Western partners are no longer willing to fund these contests for this reason. How come this has happened? Where will the reform go?

“If contests for regional and general prosecution offices are held by these rules (and it is apparently an original intention), they will have no success. I think the only way out of this situation is prosecutorial self-administration – but not with the prosecutors we have now. An element of prosecutorial self-administration is the Qualifications and Disciplinary Commission of Prosecutors (KDKP) that consists of 11 members: five public prosecutors and six persons chosen by other institutions – one lawyer, two academics, and three persons chosen by the ombudsman in coordination with the Committee for the Legality of Law Enforcement. If the five prosecutors are to be appointed on the basis of the current centralized system, when candidates have been ‘approved’ beforehand and the voting itself is a mere formality, will prosecutorial self-administration be able to work properly?

“We think the only way out of this desperate situation is to include in the commission, for a transitional period by the prosecution service’s quota, some prosecutors from EU countries, the US, and Canada, whom these countries will propose through their diplomatic representations in Ukraine, while donors can take on funding their work. They can be current or former prosecutors who have command of the Ukrainian language (there are some candidatures of this kind), and those who do not know Ukrainian will be furnished with translators. They will be KDKP members for a transitional period of three years. I think if we take on expatriates, Ukrainian society will hardly have any complaints about their independence and impartiality.

“The KDKP’s function will be to appoint, shift, and promote public prosecutors: it will be assessing your professional qualities rather than what kind of relations you maintain with somebody. The same applies to disciplinary proceedings: if somebody complains about a prosecutor, the KDKP will look into this, which will create guarantees for the prosecutor. I hope this will help cleanse the system properly. Moreover, the commission itself could draw up some Western-style standard-setting instruments and then hand over the baton to Ukrainian prosecutors who will carry out self-administration in a due way. Besides, the same commission could assume responsibility for revamping the regional and Prosecutor General’s offices so that society receives the expected result, nor a ‘pseudo-reform.’ In my view, it is now the only option if we are to qualitatively change the prosecution system in an evolutionary way.”