Ukraine's Revolution of Dignity is Not Yet Dead

June 14, 2018 Topic: Security Region: Eurasia Tags: UkrainePetro PoroshenkoKremlinElectionsKiev

Ukraine's Revolution of Dignity is Not Yet Dead

With presidential elections less than a year away, the Poroshenko administration’s tough stance against the Kremlin may not be enough for the Ukrainian voter.

The Revolution of Dignity should have served as a rule of law lesson for Ukraine’s political elite—it has not. But before writing off the social justice-inspired movement as a loss, it should be credited with energizing Ukraine’s civil society, galvanizing a generation of spirited reformists, and positioning young and talented leaders in government. This generation of leaders now irks a Western-leaning administration that does just enough to develop the legal institutions required of it by its international donors, while also maintaining its grasp over ministries, courts and the prosecutor’s office.

The legal missions that burgeoned from the protests in Maidan Nezalezhnosti central square are among the country's most important accomplishments, targeting high-level corruption on one end of the economic spectrum while empowering Ukrainians with access to justice on the other. The National Anti-Corruption Bureau of Ukraine (NABU) and Specialized Anti-Corruption Prosecutor's Office (SAPO) fight graft, while the Coordination Centre for Legal Aid Provision (CCLAP) extends the criminal defense and civil legal services to all Ukrainians. However, these new institutions are not a panacea for corruption. Ukraine's long struggle against corruption will require political change, starting with fresh leadership.

Thomas and Christopher Carothers , writing in The National Interest , rightly call for a renewed U.S. foreign policy commitment to fighting corruption, recognizing the political instability it breeds abroad. To continue to fight corruption and bring stability to a tense and battered Ukraine, the U.S. must continue to offer diplomatic and political support to Maidan’s stakeholders, even when that support runs counter to the interests of its ally, the Poroshenko administration.

Hierarchical public-sector arrangements restrain Maidan’s new agencies from implementing their mandates, as they are susceptible to pressure from the executive and ministerial appointments that oversee their work. This poses a major dilemma for Maidan’s reformists. New leaders carry out their duties in the spirit of the Revolution of Dignity at the risk of upsetting higher-ups, termination, and even threats to their personal safety, or, they may acquiesce to business as usual, jeopardizing support from civil society and the Ukrainian people.

On several occasions, Ukraine's new generation of leaders have managed to introduce some semblance of horizontal accountability into their young democracy; however, Western diplomatic support has often been an important ingredient in those episodes. That support for independent institutions must continue, even as the U.S. examines its own relationship with the rule of law.

New Prosecutor, Same Story

As the most consequential agency to emerge from the Revolution of Dignity, an independent NABU now holds the authority to investigate corrupt officials as it sees fit. But the decision to prosecute those cases is less shielded from political influence. Similar to U.S. Special Counsel, under Ukrainian law, SAPO prosecutors answer to their Attorney General, the General Prosecutor’s Office (GPO).

The executive control over the GPO that enabled past Ukrainian presidents to "lock up" their political enemies is still unchecked. Instead of addressing the country's long tradition of politicized prosecution, which played no small part in sparking 2014's protests, the power of appointment has been mired in politics. Ironically, the current Prosecutor General, Yuriy Lutsenko, who was appointed after an impromptu amendment removed a requirement that he must hold a law degree, was himself a political prisoner under the Yanukovych administration. Lutsenko's predecessor, Viktor Shohkin, only lasted for one year. Former Vice President Joe Biden had pressured Poroshenko to remove Shohkin for obstructing efforts to charge corrupt prosecutors.

In post-Maidan Ukraine, the issue is not merely about what corruption cases are charged, but which are ignored. That should be considered an improvement, as should the indictment of officials like Roman Nasirov—the former head of the State Fiscal Service, suspected of embezzling over $75 million—are political allies of the same officials who authorize their prosecutions.

But the prospect of an independent prosecutorial arm seems distant until SAPO’s opaque legislative mandate is addressed, GPO and NABU straighten their procedural and jurisdictional arrangements, and the charging documents and records of conviction in high-level corruption cases are made public. Furthermore, things got “ messier” yet in April—the words of former U.S. Deputy Assistant Defense Secretary Michael Carpenter—when NABU presented evidence that the Head of SAPO, Nazar Kholodynsky, had obstructed justice by influencing prosecutors and judges and by warning suspects of upcoming searches.

Delivering Equal Justice to All Ukrainians

Episodes like those at the GPO are representative of the persistence of Soviet-era apparatchik-style appointments, which bring loyalists into office rather than well-qualified technocrats. Calls for new generations of Ukrainian leaders to enter government have echoed across offices large and small. Within the justice sector and judiciary, the void of political independence does not merely shield corrupt officials, it also undermines the Revolution of Dignity and demeans the everyday Ukrainian’s access to justice.

During the height of the Revolution, public defenders from the CCLAP represented the Bankova Street Prisoners, a group of protesters beaten outside of then-President Yanukovych’s mansion and detained for months. At that time, police officers discriminately informed suspects of their right to counsel; Article 59 of the Ukrainian Constitution, which has guaranteed that protection since 2000, was recognized by the Constitutional Court of Ukraine but is effectively toothless. CCLAP’s less obvious, but no less challenging task, is strengthening the defense bar by introducing adversarial legalism into a profession with a legacy of cozy relations between state prosecutors and judges — a job well-suited for its former director, Andriy Vyshnevsky.