Ukraine is once again entering a difficult phase – pre-election time. In 2019, Ukrainians will vote for both the president and parliament. Also this autumn, the country will mark the fifth anniversary of the beginning of the Euromaidan revolution, which sent the dictator president Viktor Yanukovych fleeing to Russia. It was a point of no return. The new government started reforming the country. But the newly-formed civil society became the main driver of reform. Five years later, there is some progress in Ukraine with reforms. But in terms of the interaction of civil society with the government, Poroshenko’s rule is more and more often compared with Yanukovych’s regime. The latest string of attacks on civic activists only reinforces this impression.
Euromaidan Press talked to Mykhailo Zhernakov, Head of the DEJURE Foundation, member of the Reanimation Package of Reforms (RPR, a coalition of NGOs working on reforms), and member of the Public Integrity Council (a civil society watchdog overseeing the judicial reform), to figure out whether things are really that bad. Zhernakov has been actively involved in advocating changes in the judiciary. However, the interaction between the authorities and society is similar in other areas as well.
At the beginning of September 2018, the public forum called “Total Mobilization: Joint Plan of Actions” took place. It brought together government, society, and business representatives. The government was represented by Prime Minister Volodymyr Hroysman, and the Parliament’s speaker Andriy Parubiy, society – by RPR board member Yuliya Kyrychenko, and business – by president of the European Business Association Tomasz Fiala.
The aim was to develop a common agenda for the difficult pre-election times. Among the questions discussed were security and defenіe regulations, the painful topic of changes to the election legislation, appointing new members of the Central Election Commision, the fight against corruption, challenges for possible investors etc. It is hard to imagine such an open conversation between the three sectors Yanukovych’s times, but still there is a significant nuance:
“It is really good that the government officials of the highest level communicate with civil society and discuss the agenda. However, it’s also somewhat a schizophrenic situation when on the one hand we collaborate, on the other hand representatives of the same government, and I don’t mean Hroysman or Parubiy personally, beat, persecute or intimidate activists,” says Zhernakov.
Recent cases of persecution
Indeed, the forum was preceded by an outrageous event. On 27 August 2018, the Pechersk District Court of Kyiv provided the Prosecutor’s General Office (GPU) with access to 16 months of phone calls of Nataliya Sedletska, a RFE/RL investigative journalist who had dug into top-level corruption. A week later, on 5 September 2018, the Prosecutor’s General Office reportedly received access to phone calls of Novoe Vremya journalist Khrystyna Berdynskykh. The Prosecutor’s General Office was harshly criticized in Ukraine and abroad for this attempt to intimidate free journalists.
On September 18, the European Court on Human Rights decided on interim measures in the case, calling upon the government of Ukraine to ensure that the authorities are kept from access to any data of Sedletska. Reportedly, on 25 September, the GPU stopped data acquisition from the telephones of Sedletska and Berdynskykh to comply with the decision. However, they were able to use the data in the previous days.
Earlier in the summer, several other incidents with corruption-fighters took place. For example, on July 31, Kherson activist and advisor to the mayor Kateryna Handziuk was attacked with sulfuric acid. In a result, 30% of her body suffered burns. The police is investigating the attack as an assassination attempt. On August 22, the police informed that six persons suspected of committing a crime were detained. Four of them have already confessed to being involved in the crime. But the main question – who ordered it? – remains unanswered. As lawyer Masi Nayem said, the law enforcement is afraid to reveal the mastermind because this person knows too much.
Roman Maselko, activist and lawyer of the families of the heroes of the Heaven’s Hundred, the protesters killed by riot police during the Euromaidan revolution, was intimidated through another method. He stated he was threatened of being deprived of his lawyer’s certificate because of criticizing the government. This follows from the complaint against him, which accuses Maselko of criticizing president Poroshenko’s judicial reform in his blog, supporting the judges who expose its downfalls, and being an agent of the National Anti-Corruption Bureau. The complaint was written by Ukrainian lawmaker Ihor Popov. In a conversation with Maselko, the MP admitted that his signature is on the complaint, but that he didn’t file it. The lawyer suggests that it was written in Popov’s name by some of his assistants at the request of two NGOs – the “Association of Judicial Reporters of Ukraine” and “Indifferent People.” According to the lawyer, the two are known systematically slinging mud at activists.
So far, the case had a happy ending as the local Qualification-Disciplinary Commission of Advocacy refused to open disciplinary proceedings against the lawyer based on the complaint:
“From that side or another, the government is connected to the cases of attacks on activists. Even with the case of Maselko, who allegedly was confronted by the institutions of lawyers’ self-governance. We clearly understand that they are politically dependent. It was MP Ihor Popov who filed the complaint. The complaint says that Maselko violated lawyer’s ethics by criticizing the judicial reform.This is Stalinism in pure form. In the cases concerning journalists, we understand that it was the Prosecutor’s General Office,” says Zhernakov.
While potentially lethal attacks against activists hardly ever are effectively investigated, the case couldn’t be more different when activists themselves are accused of attacks. Right now, Automaidan activists might be sentenced up to 7 years in prison for crushing an egg on the shoulder of MP Oleh Barna during a protest near the Parliament. The MP was not injured. After a year of the investigation, the activists were indicted of encroaching upon the life of a statesman. The activists believe that the real reason for the absurdly disproportionate punishment is related to another incident. It happened later, in the beginning of December 2017, when they came to protest at Prosecutor General Yuriy Lutsenko’s house. The suspicion appeared just a week after. Due to the interest of the Prosecutor General’s employees in the case, it was investigated by 15 (!) professionals. In September 2018, the activists received an indictment.
While this article was in progress, another terrible incident shook Ukraine. In Odesa, activist Oleg Mykhailyk was seriously wounded by a shotgun on 23 September 2018. He was known for resisting illegal construction at Odesa’s seaside and was in conflict with the city’s notoriously corrupt mayor Hennadiy Trukhanov. The next day representatives of the local political parties, NGOs, and human rights activists staged a protest, demanding to investigate all the attacks on journalists and activists in Odesa and to dismiss the heads of law enforcement in the oblast. Over the last 1.5 years, there were 14 such attacks.
On 27 September, activists have scheduled an all-night protest at the President’s Administration, claiming that over the last year there had been 50 attacks on Ukraine and this is a problem the authorities systematically ignore..
Threat of e-declarations still up in the air
The pressure on activists in Ukraine has yet another, legal, dimension. In the spring of 2018, President Petro Poroshenko signed the controversial “Amendments to the Law of Ukraine on Prevention of Corruption” which obliged anti-corruption activists to disclose their assets on par with state officials. Failure to do so, or making mistakes may lead to criminal prosecution. Ukraine’s international partners criticized the amendments. Civil society representatives say that the obligation is nonsensical: unlike state officials, they do not receive money from the state so do not have to report on it in such a way. Many of them declared their assets anyway due to their public duties. But they saw the law itself as an element of pressure. Another controversial point of the law is that it does not clearly define who belongs to the group of anti-corruption activists, allowing the government to potentially punish anyone who is out of favor.
When the law came into force, Zhernakov’s DEJURE Foundation offered legal help to any activists who might be pressured because of the e-declarations obligation. The head of the organization says that so far there were no requests for help, explaining that the government has not decided yet how to use this instrument. The expert distinguishes two main components of the campaign – the communication and legal one:
“First, it was adopted to demonstrate publicly that the activists also have apartments and cars, meaning they are ‘no better’ than the MPs. There were attempts of discreditations on the basis of the law, but they failed to erode the people’s trust in the activists.”
When the scandalous amendments came into force, journalists from Bihus.Info estimated that on average, the activists’ assets are 60 times smaller than those of state-officials.
Iryna Bekeskina, head of the Ilko Kucheriv Democratic Initiatives Foundation, stated that after the mass government campaign against anti-corruption activists started, the trust of the population in them actually increased by 7%. Overall, the report of her Foundation says that 60% of the respondents think that NGOs are needed in their cities and villages.
Using legal means to pressure activists won’t be a good decision for the government, according to Zhernakov:
“We considered the possibility of use of this instrument and realized mass attacks on activists with these e-declarations, if they happen, won’t stand any criticism from the viewpoint of international law standards and human rights. They will end in a few month with mounds of claims to the European Court on Human Rights. And there will be more problems for the Ukrainian government than for the activists. So far the government has not chosen this path. Maybe only in some individual cases”
Still the expert does not exclude the possibility of introducing this element of pressure by the government any moment.
Strong society, weak state institutions
The judicial reform in which Zhernakov is involved is no picnic, either. Despite its initiator Petro Poroshenko cheerfully reporting that the reform was successfully completed, in fact it was not. And the result of the changes which already took place aren’t too optimistic. After the competition to the new Supreme Court, at least 29 of the 118 appointed judges of the court have a tainted reputation, according to the Public Integrity Council, a watchdog of the civil society. Among the discredited judges is Valentyna Symonenko, who has a taxpayer number of the Russian Federation which she received from the occupational government of Crimea, and Serhiy Slynko, who in 2012 was involved in jailing Yuriy Lutsenko, now Prosecutor General. Then, the European Court of Human Rights recognized Lutsenko as a political prisoner. Also the qualification assessment of all judges, which was foreseen by the reform, was a failure, making the public watchdog withdraw from the process in a protest. The government’s desire to stay on the safe side and imitate changes in the judiciary instead of implementing them can easily be observed.
Nevertheless, Zhernakov says that in terms of communication between the government and society the situation in judiciary is not the worst:
“I think the worst situation is with the law enforcement. Of course, terrible things have been taken place in judiciary all the time. However, there is a certain level of dialog. At least the sides hear each other and do not beat each other physically. The situation the law enforcement is different. It’s awful when these institutions are used for political purposes.”
Zhernakov, as many other activists, is confident that so far he can do more use for the state working in the third sector.
“I used to work for the state, I worked as a judge [since 2012 to 2015]. I’ve tried to implement changes from the inside. It was impossible, especially at that time. Nowadays the institutions of judicial self-government also mostly work to preserve of the current state of affairs in judiciary. For me, it is much effective to influence things from the outside with a team which shares your values and to not waste 95% of my energy on opposing the system.”
Despite all the difficulties, the head of DEJURE believes in the strength of society:
“The strength of it also is a sign of the weak state institutions. Is there any other country where people donate their last money for infrared sensors [like at the very start of the Russian aggression against Ukraine]? We have to do it because without us, no one will.”
Still, Zhernakov admits that there would not be any progress with reforms if there were no progressive people within the government. The list of positive changes of the last four years in Ukraine usually includes the reform of public administration, decentralization, introduction of the Prozorro system for state procurements, e-declarations for the state officials and other measures to tackle corruption.
“We often joke that we are the most transparent corrupt country in Europe. This is a very unstable situation. Either we return to being a closed corrupt country, or we fight corruption through this transparency. However, institutions are needed for that,” says Zhernakov.
He believes that the competition to the new Anti-Corruption Court is a real chance for positive changes in the country and prompted judicial professionals to take part in it.
“Show me another country which after hundreds of years of occupation and after being a part of the Soviet Union, after genocide [Holodomor] suddenly turned into a European developed and successful country over four years. This is a long process and the empire strikes back. However, the future belongs to those who are active and continues to fight for it no matter what,” concluded the expert.
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