instead of passing judgement

Ukraine certainly has enough excitement in its executive and legislative branches for one nation. Big names, big characters, acrimony, a great fall out, and lots and lots of shocking allegations. Both branches are also of particular interest because the constitutional reform set in motion last December will be shifting the power balance between them, from the executive to the legislative branch.

We've heard lots about the executive and legislative, but what in the world happened to the judiciary? What landmark decisions has it passed? None. What high-profile figure has been prosecuted? None. How has it ever distinguished itself by enacting a ruling which wasn't a foregone conclusion when it started proceedings? If any of you can name a case for me, I would be extremely interested to hear about it.

Essentially, Ukraine's government is a tripod with a missing leg.

Not Lawless, but Judgeless

It's not that Ukraine is completely without legal order, just that it has no authority capable of deciding what is or is not legal. It has regulations enough to make a simple trip to the post office or customs, buying a train ticket, or just trying to work as an employee at a business an astoundingly difficult task. It has police capable of handling some of the more obvious signs of disorder, looting, petty theft, drunk-and-disorderlies (most of the time), potential riots... It even has lower courts capable enough to deal with commercial suits and petty misdemeanors.

But wherever a more subtle offense is committed, or the purpose of a law is questionable, or a violent crime is committed in which the criminal is not caught in the act, plaintiffs are on their own. If the offense or crime is political, by nature contentious, the judiciary simply cannot or does not act.

Case Study: Boris Kolesnykov

The case against Boris Kolesnykov is instructive here. In April of this year he was imprisoned, charged with extorting shares in a Donetsk shopping mall by making death threats against the owners. The real reason he was in prison was that he was in league with the Donetsk businesspeople who supported Yanukovych's victory-by-any-means-necessary campaign, then taking part in a meeting of eastern officials discussing secession from Ukraine during the Orange Revolution. One would think the latter would have been enough to prosecute him.

Were the charges against him trumped up? Ukrainians didn't seem to think so, because "rallies" in his support were small and quickly gone. To the common citizen it was clearly a case of a bad businessman getting his belated come-uppence, now that he no longer had powerful friends to stop it from happening.

Except he was released in August. Why? Here is Taras Kuzio's conclusion from August:

Kolesnykov personifies the dominant mood among the Donetsk elite, which hopes to preserve its status quo in exchange for dropping its earlier-announced plans to build a strong opposition to Yushchenko. "Let Kolesnykov go and there will be no war," Zerkalo Nedeli quoted Akhmetov as reportedly telling government representatives. The reality may be simpler -- the law-enforcement agencies are apparently short of evidence and professional investigators to indict Kolesnykov or anybody else from the Donetsk "clan" for corruption, while the Donetsk team lacks the skills and means to organize a viable opposition. But any kind of truce with the likes of Akhmetov and Kolesnykov would only add to the growing disappointment that Ukrainians feel regarding their new government.

What you had in August was an opposition that was irrelevant. It had no power, it had no connection to power, and it was despised by most Ukrainians. Kolesnykov was one minor functionary. He wasn't even a parliamentary deputy, (whose immunity from prosecution would need to be revoked). He was unprotected, strictly small-fry, and most Ukrainians expected he was guilty of something. Yet no evidence ever came to a court against him. If he had exchanged information on his superiors for his freedom, what happened to the subsequent cases? If he defected, why didn't the Yushchenko government advertise it?

The only way this makes sense is if the judiciary was totally unable to catch him for a crime. Any crime, whatsoever.

Too Ineffectual to be Corrupt

During Kuchma's reign, I and many other people assumed that the judiciary was not getting anything done because it didn't want to get anything done. The reason no politician ever got prosecuted is that they could use their political connections to get themselves off the hook. Then, after the Orange Revolution, the YuGov decided to keep Prosecutor General Pyskun. The man hadn't gotten anything done under Kuchma and hasn't gotten anything done after him. He's a holdover from an unquestionably corrupt reign, why would you expect due diligence from him?

Well, it certainly can't help to have a hanger-on from the Kuchma era as the lead judicial prosecutor. However, if the corruption allegation is to stick, we need evidence not only that influencial figures close to the President and Parliamentary majority are escaping judgement, but that outsiders are unable to do the same. In other words, you can't just show that friends of the government get immunity, you need to show how enemies are prosecuted in kangaroo courts.

So what's happened to outsiders? Absolutely nothing. They haven't found anything against Yanukovych, Kuchma, Medvedchuk, Havrysh, Akhmetov, Pinchuk, or Kivalov. That covers the election, what about the poisoning of Yushchenko? As of September 23, nine months into Yushchenko's presidency and almost a year since he was poisoned, the PGO hasn't even asked for Yushchenko's medical records. What in the world do they do with their time?

I guess I should be happy they half-way allowed the reprivatization of Krivoryzhstal, perhaps the most obvious theft of state property in the nation's history, but prosecuting Pinchuk for taking it was apparently too much to even think about. To refresh everyone's memories, when I say Krivoryzhstal was a steal, I mean Pinchuk got it for half the price offered by some competitors, because a requirement was built into the tender that the buyer must own a certain percentage of Ukraine's coal industry; a requirement that only Pinchuk could meet. I'd call that an open and shut case.

They couldn't prosecute any of the opposition, they couldn't prosecute perhaps the most obvious theft of national assets in Ukraine's history, and they couldn't even prosecute little, insignificant Kolesnykov.

Who Needs Immunity From Prosecution?

For this reason, the cynic in me is not greatly moved by Yushchenko's new ten-item pact with Yanukovych's Regions of Ukraine party. While some newspapers, like Ukrainska Pravda and the Kyiv Post, consider the deal a necessary evil, others, like Zerkalo Nedeli, don't think expediency justifies this revolting alliance (I don't think I've ever seen them this mad). Ukrainian voters just seem disgusted. 

Problably the greatest violations of the spirit of the Orange Revolution in the document (aside from its very existence as a pact between Yushchenko and the organizer of election fraud) are his commitment to avoid "political oppression against the opposition", and to extend immunity from prosecution from parliamentary deputies down to local council deputies. But considering the situation, I am left wondering: "What difference does it make?"

The RoU deputies' allegations of "oppression of the opposition" have perhaps been the most hyperbolic statements this year. (in competition against such contenders as "corruption as bad as under Kuchma", and "betraying the revolution") As I have already talked about, they weren't being prosecuted anyway. The only difference now is that Akhmetov is so confident he even came back from extended holiday to answer the questions from the PGO he fled the country to escape.

Regardless of whether or not the new, conservative cabinet can enact real reform and Yushchenko can win back voters, if the judiciary remains unable to see a case through to completion progress in Ukraine is going to be extremely slow. In lieu of progress, there'll simply be more accusations, because accusations are free, and accusers will not need to worry about being called to account.

Constitutional Reform, By All Means, But How About Some Judicial Reform, Too

The current focus is on the constitutional reform that will shift power between president and parliament. It's a good thing, the president is overpowered. But judicial reform would be an even better advancement.

A good first step towards reform would be to finally fire Pyskun. The YuGov won't even need to find evidence of corruption in his decisionmaking, there's plenty of evidence of incompetence already. So fire him. With all deputies now immune from prosecution, I haven't figured out what the next step is. I'll tell you if I can come up with something.