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Ihor Gawdiak Interviews the Minister of Justice of Ukraine
(interview in Ukrainian; see the synopsis in English below)

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SYNOPSIS
U.S.–Ukraine Foundation’s Interview with Mykola Onishchuk,

Minister of Justice of Ukraine
Interview by Ihor Gawdiak, April 2008.
Synopsis by Lidiya Zubytska, U.S.-Ukraine Foundation

Mykola Onishchuk, the Minister of Justice of Ukraine, recently made a two-day official visit to the United States. 

Mr. Onishchuk indicated in an April 2008 interview with the U.S.-Ukraine Foundation that his visit was targeting a double goal.  First, it was to discuss with his American counterpart, Attorney General Michael B. Mukasey, a range of questions pertaining to bilateral legal cooperation between the two countries.  This includes resuming a common elaboration of the intergovernmental agreement on extradition and an agreement on searching, confiscating and reallocating of assets and property illegally exported from Ukraine. Both parties have supported the idea of establishing bilateral working groups on the issue.  Secondly, the visit of Mr. Onishchuk allowed for a rich exchange of opinions in a course of numerous meetings, in particular with U.S. Sen. Benjamin Cardin and others, on the current state of U.S.- Ukraine  bilateral cooperation. The general impression from this trip, the Minister commented, was that his American colleagues are very supportive of the current reforms in Ukraine, especially in the political sphere.  Finally, Mr. Onishchuk pointed out that his visit was also to explore through a series of meetings the work of the U.S. Department of Justice as a unique executive body which aptly incorporates in its core the FBI agency and a system of prosecution.

When asked about the division of powers in Ukraine and the role of the Ministry of Justice as an actor in its formation in the country, Minister Onishchuk pointed out that Ukraine has a fully developed and modern system of organization of state power. The Constitution of Ukraine of 1996 with amendments of 2005 fully provides for division of powers between 3 branches and establishes favorable preconditions for Ukrainian state formation.  At the same time a new draft of the Constitution is being prepared.  It would take into account the political changes and experience with application of Constitutional law since 1996. The National Constitutional Council, created at the initiative of the Ukrainian President, comprises 70 experts, politicians, retired judges and other professionals who work as an advisory council on the issue.   Currently they have moved to a final stage in developing a news draft of the Constitution of Ukraine which would position a more balanced system of state power organization and will eliminate a range of existing legal problems in Ukraine, such as the dualism of executive power; a somewhat hypertrophied role of the Prosecutor’s Office that performs functions of both investigation and general supervision; and the reform of the judicial system and of local self-government in Ukraine.

Mr. Onishchuk indicated that a scope of questions facing him as a recently-appointed Minister is quite vast, as it is natural in a country that undergoes rapid development.  The major priorities for his work as approved by the President and the Government of Ukraine could be summarized as follows:

  1. the development of the independent, unbiased, judicial system which would improve the quality of Ukrainian judiciary and uproot bribery.  To that end two draft laws are being prepared by the Ministry in cooperation with the Secretariat of Ukraine and some legislators: the Law on Judicial System and the Law on the Status of Judges.
  2. the reform of criminal justice in Ukraine. This constitutes a change in criminal investigation procedures and  a new function of the Prosecutor’s Office of Ukraine;
  3. the fight against corruption. US partners – such as Congress, Department of Justice and NGOs -have expressed a keen interest in measures Ukraine is taking in this direction during Mr. Onishchuk’s visit. They have emphasized their readiness to reinforce the U.S. support for the Ukrainian government on the issue.  The Ukrainian side has prepared a list of legislative initiatives and governmental decrees which would bring forth a comprehensive system of prevention and fighting corruption.
  4. the reform of the punitive and disciplinary system with no denigration of human dignity. The objective of the punitive system should be oriented towards re-socializing and whenever possible allow for a pre-term discharge of prisoners. The Ukrainian system provides for isolation of offenders, but not necessarily for their social restoration as evidenced by recidivism. For that a new scope of measures is required in combination with an increased role of social control which would decriminalize a range of legal charges and offer an alternative to imprisonment punitive actions.

For a definite success in all of the above, Mr. Onishchuk believes support of the Ukrainian government, President and society in general should be assured.

Concerning the reform of the judiciary branch and provisions of a new draft law reforming the Ukrainian system of courts, Minister Onishchuk informed that currently the Parliamentary Judiciary Committee is preparing the draft law for its second hearing in the Verkhovna Rada of Ukraine.  Among major breakthrough provisions of this draft law is a marked change in accessibility of becoming a judge by profession.  This process is to be fully competition-based, more publicly open and would have to leave no room for favoritism.  The draft law also foresees internal reorganization in judicial governance that would prevent pressure on judges from their superiors.  Likewise, the draft law establishes a disciplinary accountability for judges in case of their professional misconduct before a special Disciplinary Committee appointed by the Minister of Justice.  Finally, the new law will devote more attention for the appropriation of funds for the judiciary in a manner that would allow a proper maintenance and upkeep of its facilities where citizens would be able to appreciate respectable treatment.  Since the draft law tackles problems that are crucial for a wider social development in Ukraine rather than simply being narrowly issue-oriented, Mr. Onishchuk hopes that it will soon find the full support in the Ukrainian parliament.

When asked to comment on the evaluation of the Ukrainian system of justice by the American Bar Association, the Mr. Onishchuk replied that the Ministry of Justice of Ukraine is very familiar with their work and well agrees with their analysis. However, the current challenge in Ukraine is not about stating problems, but rather about undertaking the actual reform of the judicial branch. One should consider the Ukrainian legal system as an achievement in and of itself.  In a short span of its independence years, Ukraine has undergone major transformations that customarily took other countries centuries to arrive at.  Nonetheless, it is always important to have a critical eye in order to continue on the road of self-improvement, and though so far Mr. Onishchuk listed mostly problems in the Ukrainian system of justice, one should also point out its positive side: Ukraine is a free country where citizens are able to sue state power and its public officials. This means that civil servants are dependent on citizens and the era of bureaucratic authoritarianism is well passed.  With membership in the Council of Europe, well developed international partnerships, and a recent access to WTO, Ukraine is confidently progressing on a way to closer cooperation with democratic Europe.

Mr. Onishchuk was asked what can be done about the anti-constitutional practice persisting in Verkhovna Rada of Ukraine wherein the national deputies frequently scam the voting process by casting votes not only for themselves, but for their absent colleagues. The Minister commented by saying that such manner of voting is a reflection of the level of their legal culture.  And even though the law stipulates a single vote per deputy, policies and procedural practices in this matter are different.  Mr. Onishchuk mentioned having a chance to observe a vote on a U.S. Senate floor, where each elected Senator had to distinctly express his/her vote in person.  It would be a desirable practice to employ in Ukraine more often, rather then allow for one’s vote to be cast by another deputy.  Such cases are conditioned by the current electoral provisions in Ukraine that require a proportional election system under which primarily not the deputies, but  political parties compete.  Hence the 450 elected officials represent not exclusively themselves, but a political force to which they belong, and so in a vote taken in the Parliament, it is the very political force that expresses its vote and  thus exercises its political will on the floor.  What is needed to change the practice of multiple vote casting is the improvement of the electoral system where deputies would compete against each other in a district as representatives of political parties.

On the issues of the constitutional reform, Mr. Onishchuk noted that without any doubt any change in the Constitution of Ukraine would have to go through Verkhovna Rada, since such are provisions of the current Constitution of Ukraine of 1996, a focal document reflecting a legitimate will of the Ukrainian people.  If amendments proposed to the Constitution are so significant as to change its very constitutional basis, then such changes should be decided on a referendum.  Unlike with an ordinary amendment to a bill, the right to introduce a Constitutional amendment belongs to the President as well as to 150 deputies united on the issue.  

Therefore, the current process in Verkhovna Rada, where deputies work on alternative to the President’s draft of a new Constitution is beyond the existing legal provisions. The major difference between the two drafts under preparation lies in that the President suggests a mixed parliamentary-presidential republic, whereas the initiative of the Block of Yulia Tymoshenko and the Party of Regions is to introduce a parliamentary system where the President is elected by Verkhovna Rada. 

Even though such systems exist in well-established democracies across Europe, Mr. Onishchuk esteems that the latter model for constitutional change is premature for Ukraine.  In this case, the full legislative and executive powers end up in the same hands of same political force. And though well- established in Germany for instance, in Ukraine such political arrangement may run the risk of turning into a despotic rule by a party governing without any checks or balances on its power.

 “I am for the right for the Parliament to develop and also for the development of the institution of Presidency,” commented Mr. Onishchuk.  He offered his vision of political system,  where the President, as a representative of people charged with an oversight role, without intruding into the executive branch, would act a as check on the role of government and have a right to dissolve Verkhovna Rada if their actions are threatening national security or integrity of the state.  This system, according to the Minister, would correspond to Ukraine’s current level of state development and the level of its legal culture – a system that would prevent a certain political force from possible power abuse.

Concerning human trafficking, in particular combating sex-trafficking of women from Ukraine, Mr. Onishchuk stated that first of all, efforts should be concentrated on raising living standards in Ukraine and providing wider opportunities for women to get a higher education degree, find a job and earn appropriate wages. This problem, thus, is steeped in the level of economic and social development of Ukraine, despite the fact that recently Ukraine has moved from the category of underdeveloped to moderately developed countries and average income has grown. The Ukrainian laws should clearly protect its genetic legacy, its womenfolk. This is not an easy task, according to the Minister, since the Ukrainian citizens are not limited in their freedom of movement or in choosing their residency, even if abroad.  What is needed is a complex solution with the public educational campaign on one hand and a ban on organizations engaged in snaring women into exploitation on another.

Finally, Mr. Onishchuk was asked how the Ukrainian community in the United States could be of assistance for the Ministry of Justice of Ukraine in its endeavors.  The Minister replied that the support of the American people and the Government of the United States for Ukraine are critical in what concerns the development of intergovernmental cooperation and participation of Ukraine in international collective security systems. The U.S. exercises a significant influence on the world arena in these matters. America’s friendliness and its desire to be of aid is well-felt in Ukraine and the support of Ukrainian-Americans in their government efforts is critical.  Presently Ukraine receives significant support for its reforms from the U.S. in criminal justice as well as in fighting corruption.  Minister Onishchuk pledged to use this aid effectively, always keeping to heart the precept that “law is equal for all.”