Yuriy VASYLENKO: Judges’ Occupational Hazard Is Indifference to People behind Bars

Yuriy Vasylenko, ex-justice of the Appellate Court of Kyiv, became a household name in 2002, when he launched two criminal cases against President Leonid Kuchma, thus creating a precedent in the post-Soviet space. His decision cost him his career: he was fired. Many people came out in his support, but did so furtively: “You have a point there, but I’m saying this strictly off the record; I have a family, you see...” Yuriy Vasylenko also has a family and two children — it’s simply that this judge is one of those rare individuals who live by the dictates of their conscience and do their best to ensure that justice triumphs, political opportunism notwithstanding.

“THERE IS NO JUDICIAL BRANCH IN THIS COUNTRY”

What is your view of the new government?

Yu.V.: I see nothing new. Human rights are still being violated as they were before. A legal system remains to be created. They say that we want to live in a state ruled by law. However, I don’t understand what the law has to do with it. Every country has its legislation, and so do we, but I still can’t understand it. We still lack the separation of powers. Our courts were scared by the new government at first and then began playing up to it. This has nothing to do with the law. Without independent courts of law there’ll never be stability, not in the economy, politics, or society. And with all that reshuffling with privatization, courts are taking and switching sides, overruling an unlawful privatization claim and later coming up with new evidence under the new government, referring to “newly discovered circumstances” (a pet formula these days). In other words, our courts are not independent, meaning there is no judicial branch in this country.

It would be naive to expect that with a new government in power, we would instantly have a new judicial system. Yet there should at least be some signs of a desire to move in the right direction. Have you noticed any such signs?

Yu.V.: No, because there are none. The creation of a new judicial system was envisaged by the constitution and the deadline was June 27, 2001 — in other words, five years from the date that the Fundamental Law was enacted. Attempts were made to carry out minor judicial reform that wasn’t anticipated by the constitution. Later, a judicial system bill was passed, but it doesn’t meet European standards. I believe that the new government doesn’t even have a concept of a judicial system. There have been countless debates on the subject in the Verkhovna Rada, to no avail. Our courts of law remain the same. You were right in pointing out that they switched sides after the elections, and that they’re playing up to the new government.

KUCHMA’S “MINOR CASE”

Initiating legal proceedings against a president was unprecedented in the post-Soviet space. What did that mean to you personally and to society?

Yu.V.: I didn’t give a hoot about the public’s response. I was concerned about the legal aspect, what the law had to say on the subject. There are precedents in world legal practice. Mr. Chirac still faces criminal charges in South Korea; former prime ministers of Japan are under indictment, or take the Berlusconi case. I think that such legal proceedings are much easier there because their courts are truly independent; their long-established judicial systems allow no meddling. Take the example of the case where American policemen beat up a black man. After the court acquitted the police officers, there were riots in Los Angeles, accompanied by a surge in crime, including arson and looting. It got so bad that the National Guard had to be called in, yet the court rulings remained the same. Not in Ukraine. Here everybody considered that in dealing with Katerynchuk’s complaint after the second round of the campaign, the Supreme Court committed blatant violations of the law. But they said that the main thing was to uphold justice. In other words, they had broken the law in the name of justice. In the United States, our ill-famed law-can-be-twisted-whichever-way approach doesn’t work; they stick to the British law-is-law formula.

Getting back to your question, I realized that there would be retributions, but I was sure then, as I am now, that I made the right decision, that I acted in accordance with the law. I had citizens’ grievances to consider — and I might as well tell you that somehow all those complaints against Kuchma ended up on my desk.

Really? Why?

Yu.V.: I’m not sure: perhaps because no one else wanted to handle them. In the first two cases I ruled to dismiss them. In another case I ruled that it should be forwarded to the Verkhovna Rada for verification, and in another case that the prosecutor’s office should handle it. What led me to start criminal proceedings in the third case? In 1999, the Constitutional Court made a principled decision that stated that criminal responsibility begins as soon as charges are laid. Launching the criminal case at the very moment when I was examining it did not mean criminal prosecution, because you can gather material and reach the conclusion that a person is not guilty and that legal proceedings have been started without justification. The principle of the president’s inviolability means that the head of state cannot be prosecuted, i.e., criminal proceedings can be initiated but he cannot be brought to court as a defendant in a criminal case because certain procedures must be observed. Therefore, even in this case I didn’t act contrary to the constitution and other laws in that particular case because the statements warranting criminal proceedings were supplemented with evidence, Xeroxed copies of accounts, US expert findings on Melnychenko’s tapes, testimonies duly received from Myroslava and Lesia Gongadze, also from Oleksandr Yeliashkevych. In a word, there was evidence that had to be verified. I couldn’t send the case to the prosecutor’s office and I couldn’t verify that evidence myself. I had to decide whether to dismiss the case (which I couldn’t because of the evidence) or forward it to the prosecutor’s office (which I couldn’t do either, because there was that evidence), or initiate criminal proceedings. The only option was the latter one: to open a case so that it could be dealt with as a pre-trial inquest. I saw no alternative.

That case sent a strong signal at the time, which was used by the opposition. It would seem logical that you would be recruited by the former opposition, the people who are currently in power in Ukraine. Have you been offered any post by the new government?

Yu.V.: No. And you know what? I wouldn’t want one.

You mean you could have refused if you had been offered one?

Yu.V.: Absolutely.

What about all those people who asked for your help in initiating a criminal case against President Kuchma?

Yu.V.: They’re all in important positions. Yulia Tymoshenko is our prime minister; Turchynov heads the SBU; Moroz, Vinsky, and Omelchenko are where they used to be, in parliament. Actually, I didn’t expect any offers, although I remember being told that from now on I would be showered with lucrative offers. I would always say I didn’t want any.

Why?

Yu.V.: First because of my age; I’ll be 65 this year.

...a proper age for a judge.

Yu.V.: Yes, I think that a judge becomes truly independent by this age; also, s/he simply becomes wiser. But I still don’t want it. Right now I’m busy with human rights activity; I’ve wanted to do this for a long time. Do you know how many violations the government is allowing right now? I, for one, doubt that the actions undertaken in the Kolesnikov case are correct. Why place him under arrest on charges of abuse of office? There are alternative sanctions legally prescribed for such cases. He isn’t a murderer or rapist.

Did you watch Rizak being arrested on television?

Yu.V.: I remember how the ailing heads of the Unified Power Systems of Ukraine, were being escorted under guard, the accountant, Yulia Tymoshenko’s father-in-law. At the time I said that our courts were fragrantly violating human rights, when you see people wearing masks coming to take away a woman on a stretcher. At the time everybody, especially our opposition, was outraged. Yet similar things are happening.

You know what the most horrifying thing was about that video footage from Uzhhorod? There were MPs trying to defend Rizak, but no medical personnel, no one wearing a white gown, said,” Leave him alone, he’s a patient.” On the other hand, if he wasn’t sick but hospitalized nevertheless, someone ought to have been held legally responsible for such professional falsehood. Yet if he was in the hospital on lawful medical grounds and all this is happening, what about the Hippocratic Oath and professional dignity? What does this say about a society where fear still exists?

Yu.V.: Dragging a person off his hospital bed to a detention cell is an act of sheer lawlessness. It’s a flagrant violation, and it’s glaringly contrary to our criminal procedural code and the European human rights convention. In this sense I don’t understand Mr. Piskun, who was supposed to have supervised the law enforcers, and Interior Minister Yuriy Lutsenko, who had talked a lot about human rights violations under the previous regime.

Probably the answer to this question can be found in a recent interview with our speaker, who stated that all those who currently wield power are baby birds from the Kuchma nest?

Yu.V.: I absolutely agree. If I were Viktor Yushchenko, I would apologize to all those who were involved in the events of March 9, 2001, when officials, among them the current president, who was then prime minister, branded them as fascists. Those people were acting under the same slogans as those used during the Orange Revolution.

Your decision to start criminal proceedings against Kuchma gave the opposition a fresh impetus. Then it came to power, and once again Judge Vasylenko is defending the law, primarily in the human rights sphere. And this judge holds no posts or official decorations. Have you received any awards? Maybe you’re a “Hero of Ukraine”?

Yu.V.: Are you kidding? How can I be a hero after acting on the right side of the law?

But this is what could be described as heroism in our country.

Yu.V.: No one seems to remember that I returned the largest number of not-guilty verdicts under the Soviets, and that I had the largest number or convicts released in Ukraine. This is what makes me proud, not my decision in that “minor Kuchma case”.

...A minor case that proved to have major repercussions.

Yu.V.: No repercussions I can think of.

Really? Meaning that your principled stand was in vain?

Yu.V.: No. I forwarded the case to the General Prosecutor’s Office for verification; I wanted to make sure that the available evidence was truthful, namely, whether or not Leonid Kuchma was involved in the abduction of journalist Gongadze and the assault on MP Yeliashkevych; whether he had some politicians illegally tailed, and whether he had received any bribes. This case cannot be shelved; sooner or later a decision will have to be made, even if the case is closed for lack of evidence.

When do you think such a decision could be made?

Yu.V.: I don’t know. I’m not sure about General Prosecutor Piskun’s stand. He and I haven’t been able to understand each other from the outset. I’ve never evaded any questions from journalists. Once a reporter asked me how I felt about the tax militia starting 6,000 cases, with only 5,000 reaching the court (Mr. Piskun was then the head of the tax militia’s investigation department). I said there could be several possibilities: (a) poorly-qualified tax militia investigators, (b) bribe-giving and taking (with cases closed after envelopes changed hands), (c) phone calls from upstairs about certain businessman best left alone, (d) family relations. Mr. Piskun was offended by my interview and wrote to me that I had “maligned the entire State Tax Administration.” I replied that I hadn’t maligned anyone but simply voiced my personal assumptions — all the more so as they were based on concrete examples from my judicial practice. My second confrontation with Mr. Piskun took place after his secret denunciation about me to Suzanna Stanyk, then Minister of Justice of Ukraine. He wrote that I was involved in an unlawful judicial formation. In reality, the 1990 Helsinki Watch group had organized a mock trial called Feldman vs. the General Prosecutor’s Office, with lawyers arguing the case for Mr. Feldman (then in custody) and for the General Prosecutor’s Office. I was invited to preside over the trial. I was given a gavel, like in an American court, and I called the courtroom to order. There was a mock jury, too. Mr. Piskun, however, took the whole thing to heart and wrote his denunciation.

I didn’t organize that mock trial; I simply played the role of judge — like on that Russian TV show. But I was officially reprimanded for having created an unlawful judicial body.

UKRAINIAN SOCIETY’S PATHOLOGY: FEAR

Has it every occurred to you that everybody is perfectly aware of what’s going on, that they’re simply acting according to different principles and that a very complicated and unfair game is being played out?

Yu.V.: Colleagues keep telling me that I am a rara avis and will remain one. Butt I can’t act any differently. And they agree that I had a point. When we gather in the conference room (three or four judges, depending on the case) I always tell them no pressure will be tolerated from any quarter. The judge handling the case may agree with me that there isn’t enough incriminating evidence, but then he goes to his superior. I ask him why, and he replies that he wants to convince himself. In the end, he returns red-faced and depressed after being reprimanded.

You mean he leaves thinking one thing and returns with the opinion of his superior?

Yu.V.: Precisely. I then ask him if he will move to dissent, and he says he won’t because he is on a housing improvement waiting list and that his superior will have him struck from the list if he acts contrary to his will.

This reminds me of a line from a song: “He knew the earth was turning, but he had his family, too.” How can this vicious circle be broken?

Yu.V.: The staffing policy principles within our judicial system must be revised. Rumor has it that getting appointed as a judge costs a sizable sum and the closer to Kyiv, the higher the stakes. This mentality is hard to change.

Are these the consequences of a thousand years of slavery?

Yu.V.: I guess the main reason is that we lack adequate laws on the judicial system; also, whether we like it or not, our judges must have higher wages. And we must get rid of the Supreme Judicial Council.

Our president recently admitted that the new government is making mistakes in its staffing policy, saying that “We need honest people capable of doing their duty and caring about this nation, people who really love fellow their neighbors, who are prepared to serve them in good faith. Where can we find such people? This matter will take time.” Indeed, where can we find such individuals? We have posed this question to our experts. What’s your opinion?

Yu.V.: It’s a real problem. I have mentioned that we have a sort of “corporation” of judges. I would never have made my way up to the Supreme Court. My post at the Appellate Court would never have become a reality had they known me better, for I’ve always fought the presiding judges’ stands and championed independence.

They say that Vasyl Stus was a man whose decency was incompatible with his life. What kind of system do we have, in which the normal behavior of a normal person is regarded as an exception from the rule? Have you been told that you resemble Don Quixote, even physically? Have you been tilting at windmills all your life?

Yu.V.: No, I’ve been told that I look like Viktor Ivanovich from the Bandit St. Petersburg Russian TV series. A cabbie once told me, “Hey, you look like the twin brother of Antibiotic [V.I.’s underworld alias]!” I told him I was on the right side of the law, but he charged me half the fare anyway. Is this pathology? There are certainly intellectual and decent judges, including in the Appellate Court. But, they’re scared to hand down fair judgments because they have families and they want promotions.

Perhaps the reason is that our society was treated to an overdose of Stalinism at one time?

Yu.V.: Probably. Fear is what afflicts our society. People are scared of everything. They don’t seem afraid of losing their dignity. I ask someone, “How could you send an innocent person to jail? You knew he was innocent, didn’t you?” And I hear in reply, “So what? He wasn’t the first and he won’t be the last. We’ll have a great many other cases like that one.” That’s the attitude-complete indifference. I believe that our judges’ occupational hazard is being indifferent to all those people they’re throwing behind bars. They tell me, “Why should you feel so concerned about all of them?” I do because I can’t act differently. My last case involved two young fellows, each of whom received 8-9 years. I did my best to convince the judge that there was no conclusive evidence and was told, “Just look at them, they’re liars.” I asked about the victims and was told that they were also liars. I finally said I’d move to dissent — which I would do more often than not while in that court. So what? We’re talking a new kind of judge. I believe that one day we will have them; they’re already appearing. What we need is comprehensive judicial reform, including judicial self-government.