ANALYSIS: Only the U.S. tries and convicts senior officials from Ukraine (09/17/06)

ANALYSIS

Only the U.S. tries and convicts senior officials from Ukraine

by Taras Kuzio

The sentencing of former Prime Minister Pavlo Lazarenko to nine years' imprisonment and a $10 million fine brings to an end the investigation and trial after Mr. Lazarenko arrived in the U.S. seven years ago seeking "political asylum" from Ukraine.

The major irony of the sentencing of Mr. Lazarenko by a U.S. court is that it would have never happened in Ukraine, where senior officials have always remained above the law - and continue to be.

If Mr. Lazarenko had stayed in Ukraine, or had been extradited back to Ukraine by the United States, he would never have been sentenced by the Procurator General's Office or tried in a Ukrainian court.

A transcript made illicitly by Maj. Mykola Melnychenko in President Leonid Kuchma's office has the Ukrainian president talking to Procurator General Mykhailo Potebenko in 2000 about Mr. Lazarenko.

Mr. Kuchma suggests asking the U.S. to extradite Mr. Lazarenko to Ukraine. Potebenko replies that this would not be a good idea as Mr. Lazarenko's testimony in court would implicate President Kuchma and other senior officials. During Mr. Lazarenko's prime ministership in 1996-1997, he was awarded two state medals by President Kuchma.

No senior Kuchma-era officials have been sentenced for abuse of office, election fraud or violence against journalists and political opponents. Such sentences are now highly unlikely as these same officials have parliamentary immunity or are in government.

Senior Kuchma-era officials were not to know that President Yushchenko, once in power, would be so forgiving and tolerant of their misdemeanors. Various proposals for constitutional reforms were introduced by President Kuchma in his last two years in office to transform Ukraine into a parliamentary republic - this out of fear that an elected President Yushchenko would have extensive executive powers stemming from the 1996 Constitution of Ukraine.

With the failed parliamentary vote for constitutional reforms in April 2004, the dirtiest election campaign in Ukraine's history was unleashed to block Mr. Yushchenko's election. This culminated in the attempted poisoning of Mr. Yushchenko in September 2004, followed by a failed bombing attempt two months later on Mr. Yushchenko's election headquarters. Exaggerated fear of the threat following Mr. Yushchenko's victory led some senior officials, such as Transport Minister Heorhii Kirpa, to commit suicide.

Many Kuchma-era officials were not prevented from fleeing to Russia, where they have been protected by the Russian authorities as political allies. Senior Kuchma-era officials who fled to authoritarian Russia, as well as those who remained in democratic Ukraine, both avoided criminal charges.

Last year, Donetsk oligarch and Party of the Regions National Deputy Rynat Akhmetov hid in Monaco out of fear of criminal charges being launched against him. Internal Affairs Minister Yurii Lutsenko accused Mr. Akhmetov of being involved in a murder in the late 1980s. Last month Mr. Akhmetov was included by the Presidential Secretariat on the list of Ukrainian VIPs who received a state medal.

Former Sumy Oblast Administration Chairman Volodymyr Shcherban was the only senior official who sought "political asylum" in the U.S., rather than Russia. Following Mr. Lazarenko's conviction, Mr. Shcherban alone among Kuchma-era officials accused of abuse of office may be charged and tried in court.

On Ukraine's Independence Day, President Yushchenko said that society is seeking equality of all Ukrainian citizens before the law. Mr. Yushchenko admitted, however, that "We have not achieved this."

The Ukrainian authorities have an uphill struggle in transforming Ukraine into a state based on the rule of law. In 2004, the last year of President Kuchma's administration, 76 percent of Ukrainians believed there was no equality before the law, according to a Democratic Initiatives poll. Two years into the Yushchenko administration, this figure had declined by 1 percent to 75.

Furthermore, 73 and 75 percent of Ukrainians believe, respectively, that if an individual has money or belongs to the authorities he can then escape justice. In other words, the Yushchenko administration's own inaction against senior Kuchma-era officials has made Ukrainians continue to believe that there is no rule of law in Ukraine.

As a Ukrainian anecdote says, if you steal a cabbage you can go to jail, but, if you steal billions you run for Parliament. And, if you have a criminal record, better still, you are invited by the president to sign a universal and form the government.

Ukraine's progress toward a state based on the rule of law is being de-railed by five inherited legacies and contradictions within the Yushchenko administration.

First, the "new" ruling elites did not arrive from abroad in 2004. President Yushchenko faithfully served President Kuchma in 1994-2001 and they both signed a denunciation of anti-Kuchma protesters in February 2001.

As events since the Orange Revolution have shown, Ukraine's ruling elites protect each other from criminal charges. When President Yushchenko ordered the Procurator General's Office to investigate charges of corruption made by Presidential Secretariat head Oleksander Zinchenko against his business allies, Mr. Yushchenko stated that he knew in advance that no evidence would be found. Such a comment from the president is a signal to the prosecutor to not find any evidence.

In September 2005, President Yushchenko and opposition leader Viktor Yanukovych signed a memorandum that permitted the Party of the Regions to vote in favor of Yurii Yekhanurov's candidacy for prime minister. In the memorandum, President Yushchenko agreed to give amnesty to persons accused of election fraud and reintroduced immunity for local deputies.

Mr. Lazarenko is the only Ukrainian politician to ever have his immunity stripped by the Verkhovna Rada. Parliament refused to consider Mr. Kuchma's demand to strip Yulia Tymoshenko of immunity.

Second, there is no political will to prosecute senior officials inside Ukraine. Only the United States has ever prosecuted a senior Ukrainian official.

The Constitution of Ukraine in effect in 1996-2005 permitted President Yushchenko to remove the procurator general. Following the 2006 constitutional reforms this can only be undertaken only with Parliament's approval.-President Yushchenko did not replace Procurator General Sviatoslav Piskun, whom he inherited from the Kuchma era, until nine months into his presidency. Mr. Piskun protected senior Kuchma-era officials and was rewarded with a seat in the Party of the Regions.

Serhii Kivalov, head of the Central Elections Commission in 2004 when election fraud occurred, is also a Party of the Regions deputy. He was never charged and continued to be dean of Ukraine's most prestigious law academy in Odesa. He is now head of the parliamentary Committee on the Courts and the Rule of Law.

Third, the Yushchenko administration has always been divided in its attitude toward the past. Ms. Tymoshenko believes she was upholding the Orange Revolution by supporting the launch of criminal proceedings for Kuchma-era crimes, as well as calling for opening investigations into past privatizations.

President Yushchenko and Our Ukraine disagreed with Ms. Tymoshenko's approach to the past. In his address to Parliament on the day Mr. Yanukovych was voted prime minister, Mr. Yushchenko said, "We should not be looking for problems in the past. This is the only way out. The head of the Presidential Secretariat, Oleh Rybachuk, described mutual accusations between Messrs. Yushchenko and Yanukovych in the 2004 elections as merely "asymmetrical," "impetuous" and "nasty things."

Ukraine certainly needed reconciliation between warring political groups and inflamed regional tensions following the 2004 elections. But, one wonders whether reconciliation should be at the cost of the fundamental principle of a rule of law-based state that everyone is equal before the law.

Fourth, President Yushchenko unveiled a monument last month to former Rukh leader Vyacheslav Chornovil. An investigation has been re-opened into Mr. Chornovil's death in March 1999 in what many have always believed was a suspicious car accident.

If the re-opened investigation finds that Mr. Chornovil's death was not due to an accident, will the Yushchenko administration seek to find the high-level organizers? This is highly doubtful based on its record in office, for example, when dealing with the organizers of the murder of journalist Heorhii Gongadze in 2000.

Only three lower-ranking police officers have been placed on trial. The organizers of the Gongadze murder have never been charged, have been allowed to stay in politics, even though retired and out of office, or to flee Ukraine; they may have even been murdered.

Fifth, the Yushchenko administration, which has pledged to uphold the Constitution and the rule of law, is itself often not in compliance with the law. Presidential decrees in early 2005 to increase the power of the National Security and Defense Council, in order that it serve as a counter-weight to the Tymoshenko government, were unconstitutional.

A law adopted on August 4, and signed into law that day by President Yushchenko, which prevents the Constitutional Court from reviewing constitutional reforms is illegal, according to U.S. Judge Bohdan Futey, a long-time adviser to the International Republican Institute on legal reform in Ukraine. President Yushchenko cannot usurp the rights of the Constitutional Court.

Members of Our Ukraine in 2005 and 2006 refused to relinquish their parliamentary seats after entering government. Ukrainian legislation requires that this step be undertaken no later than 20 days after a national deputy joins the government.

Minister of Justice and Our Ukraine member Roman Zvarych has ignored the August 24 deadline to relinquish his parliamentary seat. The minister of justice should set an example to society by upholding the law.

Following the return of Mr. Yanukovych to government, which is dominated by Kuchma-era officials, Ukraine's Orange Revolution is at a crossroads. Ukraine can either continue to slowly move forward democratically or it can stagnate toward the policies of the Kuchma-era.

A rule of law-based state is a central feature of a democracy and, therefore, if Ukraine is to continue to muddle ahead, this area needs radical institutional and cultural overhaul.

Dr. Taras Kuzio is a Trans-Atlantic Fellow at the German Marshal Fund of the USA (GMFUSA) and adjunct professor at the Institute for European, Russian and Eurasian Studies, George Washington University, where he teaches courses on contemporary Ukraine. The views expressed in this article do not reflect those of the GMFUSA.

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