Selective Justice


Mykola Riabchuk

A prison cell might be not the best place to spend the New Year and Christmas holidays. But for a good number of top Ukrainian officials, including former Interior Minister Yuri Lutsenko and former Minister of Economy Bohdan Danylyshyn, this was exactly the place where they had to relax and meditate on the whims of fortune. It comes as little surprise that virtually all of them belong to the “Orange” camp that is today’s political opposition. Their leader, the former Prime-Minister Yulia Tymoshenko, was also summoned to the prosecutor’s office but was spared arrest on condition she would not leave the city during the pending investigation.

The tough measures against corrupt Ukrainian officials might be well received, both domestically and internationally insofar as Ukraine is one the most corrupt countries in the world and the least attractive country in Europe for foreign investors. Any cause for cheer, however, soon fades away once we take a closer look at the who, how, and why of the allegedly anti-graft measures.

Who?

The entire Party of Regions can be broadly perceived as a mafia-style organization with tight inner discipline and immeasurable shadow resources. And its power base, the Donbas region, has a well-earned reputation of a local Sicily. Whatever might have been the past of the Party and of this region there are no signs that their present is any different.

The president, Viktor Yanukovych, has never been absolved from the murky privatization of a huge government-owned estate near Kyiv, nor has he managed to cast off a parvenu lust for luxury cars, helicopters, and other overpriced things bought with government money – despite broadly trumpeted austerity measures.

Like master, like servants. His ministers, governors, mayors, and other clerks have no restraint in their love for dolce vita – apparently at the expense of the state. Every day the Internet carries something new about their extravagance, both at home and abroad. The deputy head of the president’s administration wears diamond watches worth $50,000 each and claims candidly that this is just an innocent birthday present from her party comrades, one of which, incidentally, happens to be the Mayor of Kharkiv, and the other a Deputy Prime Minister. Another mayor purchases benches for the city metro at $8,000 each – so that another diamond watch as a gift would certainly not be a problem. The head of DUSia (a Soviet relic that runs multiple facilities and supplies for the ruling nomenklatura) purchased a lawnmower for the MPs hospital at a cost of half a million. One can guess how many lawnmowers he could buy for this money on the free market.

Few care about the fact that the head of the National Security Service runs effectively multiple private businesses; the Deputy Prime Minister in charge of investment and innovation endorses 300 million hryvnia for his own enterprises; the Prime Minister responds favorably to the request of the Orthodox bishop (Moscow Patriarchate) lobbying for trade preferences for some Russian company, and so on. No one is prosecuted, fired, or even reprimanded.

The only rebuke that has occurred to date would make one laugh – or cry, depending on one’s sensitivity. It comes from a conversation between the two ministers recorded secretly by a journalist in the parliament. One of them, Mr. Kliuyev, was in charge of construction of a fast road for the president to his rancho. He naturally used the occasion to stretch the road for a dozen more kilometers to his own estate. Mr. Kolesnikov, his colleague, can be overheard chastising him – but not for the embezzlement of state funds. On the contrary, Mr. Kliuyev’s faux pas was much worse. He failed to extend the super highway for a few more kilometers to Mr Kolesnikov’s dacha nearby.

This probably says enough about the team that is fighting corruption in Ukraine as well as about the ultimate prospects of this fight. Yet, one more actor of this tragicomedy should be mentioned. Viktor Pshonka, the new Prosecutor-General, heralds from Donetsk, as do most top officials. There, reportedly, he made his career under Yanukovych’s governorship, providing a reliable legal service for good people. In 2000, he became notorious as a person who allegedly tried to cover up the brutal murder of investigative journalist Ihor Aleksandrov. A vagrant was found who confessed to the crime but no serious evidence was presented in court, and the poor man was released, only to die shortly afterward under mysterious circumstances. Remarkably, the last case investigated by Ihor Aleksandrov before his death was about alleged connections between Pshonka’s son Artem and local criminal bosses.

Even if these allegations are false, the very way in which Mr Pshonka understands his professional duty and the essence of the judiciary within the power structure leaves little doubt concerning his current and perspective role in Ukraine. In a recent TV discussion, he stated frankly: “As the Prosecutor-General, I am a member of the president’s team [eager] to implement all his decisions.” Enough said.

How and Why?

The answer to this question comes mainly from the answer to the previous one. On the one hand, it is quite clear that the ruling team members, including the president, are not going to refrain in any noticeable way from their deeply rooted habits. On the other, it is also clear that the Ukrainian prosecutor – as a loyal member of this very team – would be neither willing nor able to restrain those habits from the outside.

Political opposition and an independent mass media might be the only obstacles for the ruling team in its drive for uncontrolled accumulation of wealth and power. So, its destruction is a strategic goal for all branches of the government that are fully subordinated now to the president. The more this destruction can be represented as a fight against corruption, the better. The government is effectively killing two birds with one stone. It represses and destroys the opposition on seemingly non-political grounds and, at the same time, it distracts people’s attention from its own misdeeds and even wins some popularity for purportedly reestablishing law and order. The short-term gains of this policy are undeniable. The long-term goals are simply not on the agenda of this band of political leaders.

The selective application of law is the main feature of the system they have built. It is at the heart of the institutionalized blackmail whimsically employed as a tool of state domination. The system was correctly analyzed more than ten years ago by Keith Darden as consisting of three major elements: (1) widespread corruption that is tolerated and even encouraged by the authorities; (2) tight surveillance that enables the authorities to collect compromising materials against everyone and keep each subject on the hook; (3) selective punishment of any politically disloyal subject for seemingly non-political wrongdoings.

Former President Leonid Kuchma had gradually constructed such a model. The Orange Revolution shook the system but failed to dismantle it and replace it with functional democratic institutions based on the rule of law. Hence, the old system did not work because it required the full control of all branches of power by the executive that neither Yushchenko nor Tymoshenko had. Yet, no new system was introduced instead. So, the country became, as a result, virtually unmanageable.

Yanukovych has successfully monopolized power, subordinated all the branches of government, the parliament and judiciary to his office, and reestablished a kind of order. He has made institutions more or less manageable, but this has meant moving back towards Kuchma’s authoritarianism than any step forward towards functioning democracy. Stagnation, backwardness, lawlessness, and rampant corruption are likely to be preserved and entrenched in such an environment. The only conclusion Yanukovych seems to have made from Kuchma’s failure is that the system was not repressive enough. Indeed, Kuchma lost because he had not completely marginalized opposition—as Putin or Lukashenko did—and had not prevented his allies from overt and covert defection to the opposition camp. So, we are likely to witness more clampdowns on opposition and independent media, disguised as a “fight with corruption” and “restoring order” and, of course, “reforms”.

The red line, however, that separates Ukrainian authoritarians from their Russian, Belarusian, and Central Asian counterparts has not yet been crossed. So far, the government in Ukraine, unlike elsewhere in the CIS, can be changed peacefully, in more or less democratic elections. Yanukovych and his associates seem to be rather reluctant to cross that line despite a very strong temptation. Remarkably, all the criminal accusations against their predecessors and political opponents concern some misuse of funds (which was actually typical for all Ukrainian governments, with traditionally low budget discipline), but not their appropriation and personal enrichment. This means that the punishment for these crimes, if they are proven, would be rather mild, with the sentences probably suspended. They may reflect an informal agreement among Ukrainian elites to avoid harsh penalties against their opponents, simply because of a fear that the wheel may turn around and today’s opponents might become tomorrow’s authorities that would implement the same harsh measures against them for the same misdeeds. Not a single Ukrainian top official has been imprisoned over the past two decades, no matter what accusations of theft, embezzlement, and money laundering have been raised.

If we happen to see this informal agreement broken, it would mean that Ukraine has become either a full-fledged democracy based on the rule of law, or a full-fledged authoritarianism with a firmly entrenched repressive regime that would never step down peacefully. The first development under the current regime looks unlikely. The second is possible but still uncertain. The sentences given to Tymoshenko and her associates will probably signal the real political ambitions – and perspicacity – of today’s rulers.

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About DAVID R. MARPLES

Distinguished University Professor, University of Alberta

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