October 30, 2015
Kyiv School of Economics
Kyiv, Ukraine
Kyiv School of Economics
Kyiv, Ukraine
Thank you, Irina, for your kind introduction.
I'd like to thank the President of the US-Ukraine Business Council Morgan
Williams, and you, Iryna, for the invitation to be here with you today.
I'm pleased to be in the company of such distinguished speakers and guests:
Bohdan Vitvitsky, Former Federal Prosecutor with the U.S. Department of Justice
and my friends and colleagues Andreas von Beckerath, Ambassador of Sweden and
Luc Jacobs, Ambassador of Belgium.
What a difference a year makes.
When we gathered here last year, the Kremlin-backed
war in the East was in full force. The battle for Donetsk Airport was in
its third week. Political leaders were campaigning for parliamentary
elections – elections that voted in the most reformist government in Ukraine’s
history.
Today, the guns are quieter. We are seeing the
first, tentative, positive results from the Minsk process as heavy weapons
withdrawal goes forward and the ceasefire holds, more or less. But make no
mistake: Ukraine’s two wars go on. The war against a determined
aggressor in the East. Against a relentless propaganda machine.
And, less visible but arguably even more insidious, on the home front, the war
against corruption, the central battlefield in the struggle between Old Ukraine
and New Ukraine.
This past Sunday, Ukrainian citizens voted in local
elections that showed the resiliency of Ukrainian democracy in the face of
difficult economic conditions and Russian aggression in Crimea and
Donbas. The estimated turnout of 46% percent was in line with previous
local Ukrainian elections, and significantly higher than U.S. local election
participation. We urge Ukrainian authorities to hold postponed elections
in Mariupol and other locations as soon as possible. We appreciate that
President Poroshenko has pressed for them to occur on November 15, alongside
the second-round of mayoral elections.
The solid turnout and results show us that the
Ukrainian people are firm in their demand for change. Newly-elected
leaders must take those demands seriously, and stay firm in their commitment to
reforms, including the decentralization of power.
We all know that reform is not a single action.
For Ukraine, it is a long process requiring difficult and sometimes unpopular
change. To bring to life the Ukrainian people’s demand to choose their
own future as a strong, free, successful, European state, both leaders and
citizens must act with courage and resolve to overcome the obstacles ahead.
The USUBC’s Legal Committee has done important work in
analyzing the structural, procedural, and legal obstacles to reform in several
areas in Ukraine, from anti-corruption to taxation, and from public procurement
to agribusiness. As a result, several practical solutions have been identified
that could strengthen the rule of law and move Ukraine closer to its
chosen European future.
It will surprise no one here that many of the USUBC
recommendations focus on three areas – judicial reform, anti-corruption, and
prosecutorial reform. The United States is providing significant
assistance in each of these areas.
We all talk a lot about the importance of rule of
law. But we all also know that the most beautifully written laws in the
world are worthless if they are not enforced, and applied equally to all
citizens. We also know that equal enforcement requires an independent,
accountable judiciary that acts with integrity to fight corruption.
Ukrainians today do not believe their judiciary can or
will do that. According to a recent poll, only five percent of Ukrainians
approve of the job judges are doing. Five percent! For the
majority, the courts exist not to defend them, but to protect the financial and
political interests of corrupt and powerful special interests. This
Soviet legacy, sprinkled liberally with oligarch influence in the 24 years
since independence, must be cast off if Ukraine’s judiciary is to act with
independence and integrity. If it is to uphold the rule of law, protect human
rights and serve the Ukrainian people. If it is to meet the European standards
and aspirations that Ukrainians stood on the Maidan two winters ago to defend,
and have fought and died for in the nearly two years since.
The United States stands ready to work closely with
willing Ukrainian partners. We welcome the robust debate around proposed
constitutional amendments to make this happen. It is truly a sign of
Ukraine’s healthy democracy and civil society that business leaders, members of
the Reanimation Package of Reforms civil society coalition, the Constitutional
Commission, the Cabinet of Ministers, judges, parliamentarians and others, have
all weighed in on the issue.
How this debate is resolved will ultimately be decided
by the Ukrainian people, not in Washington, not in Brussels, and most certainly
not in Moscow. To that end, we encourage all Ukrainians – entrepreneurs,
business leaders, civil society activists, students, workers – to join the
discussion. The shape of Ukraine’s justice system is not just for
policymakers and academics. All those who look to the courts to uphold
their individual rights, defend the Constitution, and protect the integrity of
the rule of law in Ukraine should care deeply about the outcome.
In that regard, I welcome
President Poroshenko’s decision to submit both the Constitutional Commission’s
and the Reanimation Package of Reforms’ proposals to the Venice Commission for
review. I applaud the spirit of cooperation among the stakeholders who
engaged with the Venice Commission last week to find a compromise and a joint
vision for a way forward on judicial reform. As one civil society
representative noted, the process marked a unique moment when Ukrainian
“representatives of all stakeholders of the judicial reform stood up together.”
This week, the Venice Commission released its Opinion
on the Constitutional Commission’s proposed amendments and also weighed the
views of civil society. The Commission found the amendments to be “very
positive, well-drafted and deserves to be supported,” adding that “after so
many attempts…the time has come to proceed with this long overdue reform in
order to finally move towards achieving an independent judiciary.” I urge
Ukrainian authorities to hold inclusive discussions around these
recommendations and to move forward with constitutional amendments in line with
international standards. I am told the relevant working group met this
week, and we may see some draft bills before the Rada next week.
However, while that process continues, Ukraine can
also push forward in three areas to strengthen judicial independence,
accountability, and integrity.
First, implement the Law on Restoration of Trust in
the Judiciary. Lustration is incomplete. More than a year into the
process, corrupt judges are still on the job. Judges continue to go
unpunished when they disregard human rights and demonstrate contempt for the
rule of law. The Interim Special Commission for Vetting Judges needs more
time to get its vital work done. And the judiciary needs to act on its
recommendations so that the lustration process brings real results. The
Ukrainian people deserve no less.
Second, strengthen judicial self-governance so that
Ukraine’s judiciary can work without political interference and corruption. When
an influential or corrupt person calls, looking to buy a decision or threaten a
judge, that judge should be able to hang up the phone fully confident that he
or she is shielded by her independence and protected by the judiciary.
Judges should feel empowered and protected to act independently, knowing they
will not face punishment or reprisal for deciding a case on its legal - not
political – merits.
The Constitutional Commission has proposed changing
Ukraine’s Constitution to strip Parliament, the Presidential Administration and
Cabinet of the right to appoint judges, establish, or abolish courts, or make
decisions about how funds supporting judicial operations are spent.
However, those amendments alone will not guarantee judicial independence.
To succeed, judges need to understand the scope of their independence and
exercise it with confidence and, critically, integrity. At the same time,
other branches of government must give up control – control that has given them
power, influence, and, in many cases, opportunities for corruption.
Third, reinforce judicial accountability,
transparency, and integrity. U.S. Federal Judge Mark Wolf, known for
uncovering the corrupt relationship between Boston mobster Whitey Bulger and
the FBI that is featured in a recent Hollywood movie, “Black Mass,” frequently
travels overseas on judicial capacity building efforts. His mantra is
that judicial integrity is the most important principle to uphold, since
independence without integrity creates its own set of problems, particularly
for countries with a tradition of corrupt judiciaries. Posting all
judicial decisions online, so that they are available to the public, is an
important step. Appointing Spokespersons in almost every court also
serves as a critical link to the community. Citizen report card
surveys, which USAID launched in Ukraine, make it easier for officials to
understand what people want and need. Thanks to citizen feedback, there
have been real improvements in how justice is served in Ukraine’s
courts. Looking to the future, ensuring that all judges and court
personnel file their public financial asset declarations online will be
another signal of the judiciary’s commitment to greater transparency and
accountability.
Of course, reforming the judiciary is only part of the
story of ensuring a justice system that delivers justice for all. Equally
vital is an independent procuracy that acts with integrity. This means
prosecutors who will take on complex corruption cases and punish or imprison
even the richest and most powerful when the law requires it.
As one civil society activist put it, the true measure
of Ukraine’s commitment to fight corruption is the number of officials from
the current administration in prison for corruption. The
authorities’ willingness to prosecute all corrupt officials
and oligarchs, regardless of their political party or personal wealth, is a
critical indicator of its commitment to the rule of law. On this
indicator, Ukraine post-Revolution of Dignity still comes up short.
Like the judiciary, the procuracy must transform
itself into a modern, politically independent and professional institution to
fight corruption, uphold the rule of law, and protect Ukraine’s government and
people.
In Odesa last month, I spoke at length about necessary
reforms to the Prosecutor General’s office.
Ukraine’s Prokuratura must abandon
the Soviet legacy of political control and corruption which has allowed the
powerful – including those in government – to get away with influence peddling
and human rights abuses. These acts of impunity undermine the rule of law
and Ukraine’s future place in Europe’s community of free, prosperous,
democratic nations.
As I said in Odesa, the Prosecutor General’s office
must stop undermining reforms, stop protecting corrupt prosecutors within its
ranks, such as the notorious “diamond prosecutors” arrested in July, and stop
blocking criminal investigations into bribery, graft, and political dealing.
The United States is committed to supporting an
effective Prosecutor General's Office which Ukrainians can trust to defend
their rights. To get there, we need honest partners who are committed to
the rule of law.
Partners like David Sakvarelidze and Vitali Kasko, two
courageous reformers working to establish an independent Inspector General to
investigate and prosecute corrupt individuals within the PGO. We hope the
Prosecutor General’s office will provide Inspectors General Sakvarelidze and
Kasko with the resources and authority they need to seek more convictions and
restore public trust in the PGO. Kasko’s comments to the media this week
that he and other reformers within the PGO are under intense pressure are very
worrisome, a sign that the battle between Old Ukraine and New Ukraine rages
within this critical institution. I have discussed with Prosecutor
General Shokin our strong support for a new regulation on the independent
operations of the Office of Inspector General (IG) that meets western standards
and clearly defines the IG’s jurisdiction, powers, and authority, in order to
enable it to perform its functions in a manner that is effective and credible.
We strongly support President Poroshenko’s commitment
to renew the PGO with reformers, with prosecutors who respect rule of law and
fight corruption, and who are dedicated to public service. To that end,
the United States, with our Eurpean partners, is supporting independent,
merit-based testing of procuracy candidates. More still needs to be done
to ensure that the procuracy is led by people of the highest integrity.
People who will heed the call expressed so clearly on the Maidan: enough.
Enough business as usual. Enough corruption and impunity. The
Ukrainian people rightfully demand change now. Too many people have
sacrificed too much to do anything else.
The United States is encouraged and was proud to
support the selection and training of a new group of detectives and
analysts at the National Anti-Corruption Bureau. We have great hopes for
these anti-corruption crusaders. Now a qualified, capable, and committed
Independent Anti-Corruption Prosecutor must be appointed to unlock the
anti-corruption bureau’s potential to take down high-level corrupt
officials. Expectations are high for the anti-corruption bureau and the
Anti-Corruption Prosecutor. The U.S. is strongly committed to supporting
their vital mission.
What Ukraine needs now is a way to channel the
expectations for a justice system that delivers justice, demanded by those on
the Maidan, into action. People need to know what justice reforms mean
for them, how they can influence the debate, and how they can ensure that the
reforms reflect their aspirations and protect their rights. They need to feel
they are a part of a new Ukrainian participatory democracy. They need to
contribute.
Today, much is being done to raise legal awareness and
foster a culture of rule of law in Ukraine. The Constitutional Commission
is convening roundtables in the regions to educate citizens about proposed
constitutional amendments. The Ministry of Justice is expanding legal aid
across the country, both in terms of scope and access. Civil society
organizations like the Ukrainian Helsinki Human Rights Union are empowering
students through Human Rights Summer Camps to demand accountability for human
rights violations, whether on the Maidan, in occupied Crimea, in Donbas, or in
their own towns.
The posters, billboards and television spots produced
by Transparency International Ukraine encourage citizens not to
stay silent, but to blow the whistle on corruption. Transparency
International’s new website empowers people with practical information about
how to get health care, enroll their kids in school, file a court claim, or get
help from the police without having to pay a bribe.
Such grassroots efforts are helping to solidify a
psychological change from the Soviet rule by law to
the democratic rule of law. But more
must be done. Whistleblowers in government need protections against
retaliation. Journalists need unfettered access to officials’ financial
asset declarations so they can “follow the money” to any sources of
corruption. Your people need to be inoculated against corruption and
learn the habits of engaged citizens at school, through civics classes and
extracurricular activities. Government officials must redouble their
efforts to listen to their constituents and provide opportunities for them to
be part of the process. Civil service reform is absolutely crucial, because a
society and government that pays its civil servants less than a living wage is
essentially expecting them to engage in corruption.
This is a heavy lift. As part of the battle between
Old Ukraine and New Ukraine, Ukraine is undertaking difficult, life-changing,
future-changing reforms to how officials are chosen, how they do their work,
and to whom they are accountable. This is happening in every ministry, in
every city and town, and in every organization. But the justice sector is
the central battlefield in this struggle. Without genuine reform here,
other reforms will falter.
So today, I ask you to help.
Find allies among businesses, academics, civil
society, and political leaders. Press the judiciary, the prosecution, the
Constitutional Commission, the parliament, and President to kick reforms into
high gear. Use your voices, your connections, and your influence openly
and unashamedly to engage in the policy debate and hold the government and each
other accountable for implementing reforms. And, most important, when you
see corruption happening, blow the whistle. Take a stand. Be
courageous to stand up for what you believe in. For the future of
Ukraine.
And next year, when we gather here for the third
USUBC-KSE conference, let’s look back at the foundation you’ve laid for the
rule of law in Ukraine and measure Ukraine’s progress in building up a new
European state, free of its corrupt Soviet past. Let’s agree that we will
look back and be able to say once again: what a difference a year makes.
Thank you very much.
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