June 3, 2016

Ukraine enacts legal reforms, changes to law enforcement

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Aleksandr Kosarev/UNIAN

Prosecutor General of Ukraine Yuriy Lutsenko announces his latest changes to the state body on May 30, including his hope that U.S. native Bohdan Vitvitsky will lead the jury to select its General Inspection.

KYIV – Ukraine’s government this week adopted this week significant systemic reforms to its judiciary and changes to law enforcement, largely in response to Western demands that were pent up for months owing to the nation’s political crisis.

Early in the week, Prosecutor General Yuriy Lutsenko announced his changes, including the appointment of new deputies and department heads, as well as the restructuring of certain departments. He also asked certain figures of the old guard to resign on their own, while also closing or transferring some of their controversial cases.

The Verkhovna Rada voted on June 2 to approve constitutional amendments that structurally altered parts of the nation’s judicial system, mustering 335 votes, or 35 more than was needed for them to pass. Aimed at depoliticizing Ukraine’s judicial system, the amendments were supported by the Council of Europe and the U.S. government.

“A historic day. We welcome the Rada’s approval of constitutional amendments regarding judicial reform. A large step forward on Ukraine’s European path,” U.S. Ambassador to Ukraine Geoffrey Pyatt tweeted shortly after the vote.

For at least half a year, Western officials had been criticizing the Ukrainian government for delaying, or even undermining, measures to further Ukraine’s integration with the European Union and to secure more financing, particularly a long-awaited $1.7 billion loan tranche from the International Monetary Fund that will unlock other funding.

Following its last visit to Kyiv in May, the IMF mission decided not to hold a board of directors meeting in June to make a decision on the next loan tranche, which Atlantic Council Senior Fellow Anders Aslund said occurred because its members didn’t see progress from Ukraine in priority steps.

Instead, the IMF decided to postpone its decision on whether to issue the tranche until July, awaiting the approval of at least 19 bills by Parliament, he said. The constitutional amendments just passed are part of that required legislation.

The main structural changes consist of the introduction within two years of a Higher Judiciary Council to replace the Higher Justice Council in overseeing the approval, removal, transfer or prosecution of all judges; the restructuring of the Supreme Court; the introduction of requalification procedures for judges; the simplification of procedures to prosecute judges; and the elimination of the president’s authority to create new courts and appoint judges.

The amendments were supported by the Petro Poroshenko Bloc, the People’s Front, the Opposition Bloc and a majority of the Batkivshchyna faction, as well as the People’s Will and Renaissance deputies’ groups. It was opposed by the Samopomich party and Oleh Liashko’s Radical Party, as well as the most high-profile deputies of the Batkivshchyna party.

The amendments’ critics said they will only concentrate more power in the hands of President Poroshenko as he will retain the authority to appoint judges during a two-year transition period, said Oleh Bereziuk, the head of the Samopomich parliamentary faction. Judges with five-year terms will be immune from dismissal, he added.

The legislation is so nuanced, and in some instances so vague, that both supporters and critics could be correct in their claims, said Ihor Koliushko, the head of the Center for Political and Legal Reforms in Kyiv.

The president does retain his authority to appoint judges for a two-year transition, Mr. Koliushko said. Yet questions remain on the authority during that period to reappoint, dismiss or transfer judges, some which is assumed by the restructured Supreme Court.

As for judges’ five-year terms, those judges already nominated for them will gain immunity from investigation, while those not yet nominated will have to undergo requalification, he noted.

In the long run, the amendments should remove the president and members of Parliament from influencing the careers of judges, Roman Kuybida, the judicial expert at the Center for Political and Legal Reforms, told the gazeta.ua news site.

Mr. Liashko pointed out that the Constitution of Ukraine forbids approving amendments during a time of war, a point that was also argued by National Deputy Nadiya Savchenko, who has wasted no time in rolling up her sleeves to work in Parliament after her release from a Russian prison last week.

“If the government can preserve Ukraine’s territorial integrity after these constitutional amendments, then we can do these changes,” she said from the parliamentary tribune. “If it’s not ready, then the Donetsk and Luhansk people’s republics will say, ‘You amended the Constitution? Then here’s our constitution written by Russia. Approve it.’ ”

The June 2 vote for constitutional amendments was a rehearsal for the upcoming vote to amend the Constitution to provide for local elections and establish a special status for the occupied territories of the Donbas region, Mr. Liashko predicted. Those voting in support of amendments on June 2 are likely to support the next amendments.

The last time Ukraine’s Constitution was amended was on February 21, 2014, when Parliament voted during the peak of the Euro-Maidan violence to renew the separation of power between the president and the Parliament.

Shortly before the constitutional vote, the Verkhovna Rada approved a law on the judiciary and the status of judges, which ensured the implementation of the amendments.

The law makes judges more accountable, restricts their immunity, establishes a new Supreme Court to replace three higher specialized courts, and provides for the creation of a Higher Anti-Corruption Court and Higher Court on Intellectual Property Rights, as explained to Parliament by Presidential Administration Deputy Head Oleksiy Filatov.

While the Parliament reformed the Constitution, the prosecutor general was introducing his own changes, appointing as his first deputy head Dmytro Storozhuk, a 30-year-old lawyer who worked in the private sector and served in the legal department of the People’s Front party led by former Prime Minister Arseniy Yatsenyuk.

His other deputies are Yevhen Yenin, a 35-year-old lawyer with international experience who has worked in several intelligence agencies, including the Security Service of Ukraine, and Valentyna Telychenko, who was the lawyer for the family of slain journalist Heorhii Gongadze.

She will be responsible for leading recruitment in local prosecutors’ offices, bringing the Prosecutors Academy up to Western standards, introducing Western standards in statistics and helping to update Ukrainian legislation, Mr. Lutsenko said.

“Just how effective these new faces in the Prosecutor General’s Office will be able to manage their assignments is unknown,” said Petro Oleshchuk, an assistant professor at Taras Shevchenko National University in Kyiv. “So far it’s only public relations, not real work. It’s important that they don’t become merely talking heads in this structure.”

The domestic security department, which is responsible for the review of prosecutors, will be led by Petro Shkutiak, 35, a Euro-Maidan activist with a law degree who was wounded during his voluntary service in the Donbas war. He’s the son of the former mayor of Ivano-Frankivsk, Zinoviy Shkutiak.

“Thousands of prosecutors submitted their income declarations along with their family members. If the math doesn’t add up, they will be dismissed by prosecutor general’s decree for violating the code of ethics,” Mr. Lutsenko said during his May 30 press conference. “This large purge will occur under the leadership of a young person who was on the warfront and certainly won’t take any bribes. I have known Petro for quite a long time, as well as his father, so I’m sure that this very person should symbolize the arrival of a new order to the Prosecutor General’s Office.

Mr. Lutsenko also announced his goal of launching by the end of the year a general inspection division that will be responsible for “hunting for bribe-takers and traitors in the Prosecutor General’s Office.”

He hopes the committee that will select the members of the general inspection division will be formed by July and led by Bohdan Vitvitsky, a former U.S. federal prosecutor and former resident legal advisor at the U.S. Embassy in Ukraine, who was described by Mr. Lutsenko as someone “who knows what the government mafia is.”

Dr. Vitvitsky declined a request to confirm whether he was offered such a post by Mr. Lutsenko.

“The principles of selecting people who are supposed to put into effect the break from the old NKVD system in the Prosecutor General’s Office are activity, initiative, honesty and professionalism,” Mr. Lutsenko said at his press conference.

He said he aims to remove corrupt official from local prosecutors’ offices by April 2017 by replacing them with lawyers who never worked as prosecutors.

With regard to the old-guard prosecutors who worked alongside the highly criticized former Prosecutor General Viktor Shokin, Mr. Lutsenko said he asked three deputy prosecutors to resign of their own accord.

As for the activists they targeted, he said he has closed a criminal case opened against the Anti-Corruption Action Center led by Vitaliy Shabunin, while the criminal case against Vitaliy Kasko, a former deputy prosecutor supported by the U.S. government, will be transferred to the National Anti-Corruption Bureau.

“In summary, a group of crisis managers has come to the Prosecutor General’s Office who are supposed to not only clean the structure in a relatively short period, but also show real results by the year end in the form of cases submitted to courts,” said Vitaliy Kulyk, the Center for Research of Problems of Civil Society.

He added: “They will have to squeeze through the interests of the shareholders of the current political regime, suffer the ‘terrarium of friends’ in the expert community, survive attacks on them in the media and emerge from the Prosecutor General’s Office with some success. Otherwise, the West will simply postpone the issue of Ukraine to better times and presidents.”

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