Why Judges in Ukraine Are Selective When It Comes to Handing Down Verdicts in Political Cases

Translated by Ollie Richardson & Angelina Siard

18:37:43
29/09/2017

strana.ua

The decision of the Court of Appeal to cancel the measure of restraint in the form of detention of the former Minister of Justice Aleksandr Lavrinovich for a while gave hope for the liberalization of State policy concerning opponents of the authorities.

A week earlier the former mayor of Slavyansk Nelli Shtepa was released by a court decision to let her out from the pre-trial detention center, where she spent three years.

And even earlier the court pronounced the verdict of not guilty to all anti-Maidan protesters who were judged on the case of May 2nd in Odessa.

All this generated hopes in some of society that the authorities move to a softer policy towards opponents.

However, they vanished on Thursday, September 28th, when in the high-profile case of the journalist Dmitry Vasilets and Evgeny Timonin, accused of separatism, they were found guilty by the Berdichevsky court, and sentenced to 9 years of imprisonment.

As experts consider, the judicial branch of the authorities, despite pressure, begins to fluctuate. And Bankova Street is compelled to act with an eye on the international reaction. However, it doesn’t mean that it surrendered control over the adoption of judgments. It is simply forced to maneuver, concentrating on the cases most important for itself, alternating between “betrayal” [decisions that are perceived as anti-Ukrainian – ed] and “victory” [pro-Ukraine decisions – ed] so that the impression about the “independence” of judicial system is made.

In addition, decisions are also influenced by contradictions in the government itself.

The situation was analysed by “Strana”.

How Lavrinovich was released


Even lawyers didn’t expect such a decision of the Court of Appeal of Kiev to be made on September 27th.

“The board of judges decided to satisfy the appeal complaint of Aleksander Lavrinovich; to cancel the resolution of the investigative judge of Pechersky district court of Kiev from September 15th… To release Alekandr Lavrinovich from custody in the courtroom,” said the presiding judge whilst reading the verdict.

Two weeks before the Pechersky district court of Kiev satisfied the appeal of the investigator of the Department of special investigation of the main investigative department of the General-Prosecutor’s Office for the election of a measure of restraint to Lavrinovich in the form of detention for a period of 60 days – until November 2nd, without the right to bail. In principle, bail wasn’t assumed by the article that was imputed to the former minister. He was accused of seizing State power in 2010.

The case of the “constitutional coup of 2010”, which, according to the General-Prosecutor’s Office, led to the seizure of power through the expansion of Presidential powers due to the narrowing of the role and powers of parliament and the government, was directed by the Department of special investigations of the State Office of the Public Prosecutor (known also as “Gorbatyuk’s department”).

The former President Viktor Yanukovych and the former Minister of Justice Lavrinovich were considered as suspects in these criminal proceedings. They were charged with committing a crime under Part 1 of Article 109 of the Criminal Code of Ukraine (“actions aimed at forceful change or overthrow of the constitutional order or take-over of government, and also a conspiracy to commit any such actions”).

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The General-Prosecutor Yury Lutsenko explained that Yanukovych and Lavrinovich are suspected of seizing State power, including, by taking measures to illegally, without a decision of the Verkhovna Rada, amend the current Constitution of Ukraine through the inclusion in the Unified State Register of Regulatory Acts of the text of the Constitution of Ukraine in the 1996 version and its official publication.

But the Court of Appeal considered the arguments of the Prosecutor’s Office to be insufficient and the decision of Pechersky court was cancelled.

“The Prosecutor’s Office was so inept in their charges that they didn’t provide a single piece of proof of the guilt of Lavrinovich. That’s why there was no basis to keep him in custody. The judges made the only possible decision,” said Alekandr Lavrinovich’s lawyer Evgeny Solodko in a conversation with “Strana”.

The indignation of the State Prosecutor Aleksey Donskoy, who, after the judgment, accused the judges of being biased (according to Donskoy, for the fact that earlier the presiding judge in the case of Lavrinovich released the “Berkut members”, the case against him was entered in the Unified register of pre-judicial investigations), Solodko considered unjustified.

The experts questioned by “Strana” concerning the reasons for such a decision on Lavrinovich’s case were divided. On the one hand, all recognize that Lavrinovich’s case was initially quite transparent.

“Lavrinovich indeed has very good defence. They didn’t take into account that he isn’t simply a former official, but he has a background, he is the founder of the People’s Movement of Ukraine, an author of the Constitution, a respected lawyer, he had to complaints during his work in Ministry of Justice. His reputation and professionalism played a role, it was possible to receive remarks from European institutions, it wouldn’t be possible to hide this trial from journalists, and therefore the judges considered that to arrest him without the right of bail would be excessive, such steps would be on the verge of repression,” stated the political scientist Vadim Karasev to “Strana”.

On the other hand, the defeat of the Prosecutor’s Office in court can be a consequence of an inter-departmental war that is now ongoing in the General-Prosecutor’s Office.

The Head of Department of special investigations Sergey Gorbatyuk was involved in the case of Lavrinovich and was the first who made it public. The public prosecutor Yury Lutsenko, as well as his predecessor Viktor Shokin, already repeatedly tried to drive Gorbatyuk out of the Prosecutor’s Office.

The head of Department in response denounced the State Prosecutor. The conflict shows no signs of fading. Literally two months ago Gorbatyuk asked to dismiss the Deputy Head of the General-Prosecutor’s Office Dmitry Stolyarchuk, but Lutsenko refused to do it.

The sources of “Strana” in the prosecutorial environment don’t exclude that after Lavrinovich’s release, Yury Lutsenko can use this situation as a pretext to accuse Gorbatyuk of unprofessionalism in the preparation of the case materials. And, perhaps, Lavrinovich’s release is also explained by this “intra State prosecutor” war.

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9 years for the journalists


The following day after the positive decision of the Court of Appeal in the case of Lavrinovich, the Berdichevsky court sentenced the journalists Vasilets and Timonin to 9 years of imprisonment.

“9 years of imprisonment to the journalists for a non-violent crime on a charge that nobody has confidence in. So, are you already completely f*cked in the head?” wrote the former Deputy Head of the Presidential Administration Andrey Portnov on his page on Facebook.

Experts explain such a harsh sentence by the weak public attention to this case.

“You see, the process wasn’t in the focus of attention. The investigation did everything to bury it publicity. When the trial attracts great attention, if the investigation has difficulties with proof, then absolutely different verdicts are sounded. Remember the Odessa case, the case of Shtepa, Lavrinovich’s case eventually. There was a completely different reaction from the judges,” said the political scientist Vadim Karasev to “Strana”.

According to him, the loud jailing of opponents of the authorities, regardless of whether there is proof or or, will continue further.

“The case of Lavrinovich didn’t even come close to the PR effect that the authorities could count on, that’s why they decided to abandon it,” predicts the political expert Ruslan Bortnik. “As for Vasilets and Timonin, it’s impossible to jail them, it’s impossible to release them [it would appear Bortnik’s comment was made before the verdict – ed]. That’s why jailing is done for the edification of other journalists. Especially in contrast with Lavrinovich, whose release was seen as a defeat for the authorities. Now, the authorities needed someone to take it out on. It is necessary to understand that despite some disruptions, the flywheel of quelling dissidents will only gain momentum. The ghost of future elections will demand more and more harsh sentences, more and more loud jailings”.

What selectivity in sentences means?

And yet, what is the explanation for the fact that the judicial system pronounces very different sentences in political cases.

A source in judiciary told “Strana” that it isn’t a question about any liberalization of the government’s policy. Pressure placed on judges continues unabated.

“There is no liberalization. There are attempts to throw dust in the eyes of international structures concerning cases that are inessential for the authorities,” said the judge. “Take, for example, the case of May 2nd. There was obvious weakness of proof from the prosecution and strong attention of European structures and the UN in regards to the process. From the point of view of the current political tasks, this case isn’t that important for the authorities. Therefore they gave the command to the judges to abandon it to show the independence of the Ukrainian court. It is the same thing vis-a-vis Shtepa. She is of interest to nobody. Let her go free. According to Lavrinovich three aspects coincided. The first one is the weakness of the charges with a strong defence. The second one is the absence of obvious PR dividends for the authorities from jailing one of founders of the People’s Movement of Ukraine. The third one is contradictions between the Prosecutor-General and Gorbatyuk, whose people headed Lavrinovich’s case. Lutsenko could have made it clear by ‘pigeon post’ that his case is of little interest. And as for Vasilets, the authorities solved for themselves the principal task: to intimidate oppositional journalists, to show that each of them can be thrown in prison for 9 years. That’s why the decision was also pushed through. Of course, the outcome of the case depends on the judge. Many of our colleagues understand that the authorities aren’t eternal, and therefore try not to give in to pressure as best they can. But such is becoming less”.

A similar observation was also made by the political scientist Andrey Zolotarev.

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“Firstly, the ones who are released are those who aren’t important for the authorities,” said expert. “And if there isn’t any proof. For example, as it was with Lavrinovich, against who there wasn’t any special proof. Secondly, Shtepa during this time was in jail for 3 years, it is enough for intimidation. Thirdly, these cases can be used as examples for Europe, supposedly: “look at how our democracy is”. As for the sentence given to Vasilets and Timonin, the aspect of intimidation is important here. It is clear that they aren’t going to jail everyone, but they need such sentences so that journalists switch on the instinct of self-preservation and cease to write what won’t be pleasant for the authorities. Perhaps if the case was heard in Kiev, if the same People’s Deputies came to court, such a verdict wouldn’t be handed down. They wouldn’t be jailed for 9 years. Already now it is now heard that the best lawyers will battle for them in the appeal. Even if the appeal confirms the verdict, this power won’t last 9 more years anyway. One way or another most of the judges are attached to the strings of the authorities. And the authorities in the necessary cases pulls these strings from time to time”.

At the same time, the known lawyer Andrey Portnov said that the judicial system gradually starts to leave from the control of the authorities.

“I consider that the judges of the central courts already understood that this current regime is coming to an end,” said Portnov. “This hasn’t happened yet in regional ones. By the way the judge spoke with the guard and the accused, it is possible to draw the conclusion that judges don’t yet feel that the end is already close. There is no need to look for logic in the actions of the authorities. Their actions are one-way. They are doomed to failure in every first case. For 3 years – 100% of failures in courts of the European Union; 100% of defeats in cases in the ECHR. Zero verdicts given, zero persons extradited. And, understanding this, the Kiev courts stop working in the interests of the authorities”.

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