The war contributed not only to the emergence of new, but also to the exacerbation of old problems. The country continues to fight corruption like a Medusa Gorgon, continuing to live based on fabricated myths. To what extent are the mechanisms of such struggle effective and justified? How can a lawyer remain a defender in new challenges for the justice system? “ZiB” talked about this and other things in an interview with Semyon KHANIN, a lawyer, Doctor of Economics, Honored Lawyer of Ukraine, managing partner of JC “AMBER” .
“ Fighting corruption by creating anti-corruption bodies is like pouring gasoline on a fire”
— Semen Hryhorovych, FrAt present, given the high-profile revelations and the number of suspicions filed, the anti-corruption authorities aim to implement the five-year plan in a year or two. At these sprinting paces, is the quality of procedural actions, respect for the rights of suspects not lost? Is there any right to protection in this black and white dialectic of good and evil?
— Of course, the task of the state and criminal proceedings is to ensure that every guilty person is punished, and the rights of the innocent are not violated. Here we need to decide who we consider guilty and who does not deserve punishment. At the same time, we have to find out for ourselves: what do we want – for a person to be guilty according to discretion?
Then lawyers are not needed at all in the process! There is a pre-trial investigation – the detective and the prosecutor have gathered certain information, the court makes a decision in three to four days. All the more so, as today the materials of the pre-trial investigation, despite the secrecy, are covered in the mass media, and, first of all, by the law enforcement agencies themselves. The opinion of guilt is already forming among the general public and there is a certain pressure on the court and on lawyers.
So what do we think is appropriate? Return to the “good” Stalinist times and decide everything at the discretion of such “troikas” or still go to the standards of Europe, which we declare? Because we have a certain inconsistency: we talk loudly about human rights and the presumption of innocence – about the models we strive to reach, the standards, but in reality we do the opposite. We are watching a certain game. And neither lawyers nor society is clear: so how should we act?
Let’s change the Constitution, codes and laws once and for all as we see fit. If we act according to the current Constitution and Law, then only the court will find a person guilty. And such conditions cannot be created around her that in fact she already feels guilty.
The next circumstance: if in the previous year the Supreme Court annulled half of the verdicts of the Supreme Court, then this already says something. This is the quality of justice. And with such a number of annulled decisions, can it be called justice at all?
And the third circumstance is that many vices of society must be eradicated, but in a different way. For example, the introduction of a single tax generally destroys corruption in the tax system. Because then there will be no need for a single tax official – the computer automatically calculates a single tax, and all tax officials go to work for the national economy.
But this is a short way. It is better, in the opinion of our society, to create anti-corruption bodies that will continue to try to fight corruption in the tax system. Today, the head of the tax service receives a lower salary than the secretary in my company, but the queue to be the head of the tax service is much longer than to be employed as a secretary in our company. This is such an unresolved issue.
— Is corruption really the #1 problem and can be overcome by regular updates? But what conceptual points in the justice system do you think need to be tackled? And where to start?
— For a very long time, our anti-corruption bodies seem to have stepped off the front page of a newspaper, positioning themselves as if they are waging an unrelenting fight against crime. Anyone goes to jail if they break the law. But there is a very significant “Zlochevskyi case” about a $6 million bribe to the leadership of anti-corruption agencies. For many years, this case was considered, and all involved reached a deal – without a real sentence. And they left because they contributed a lot of money for the needs of the Armed Forces.
At the same time, the person involved in another case, the judge who took a 1,000 hryvnias bribe, received a real 6 years with confiscation. Because “the amount is not important, the judge took the funds”! This is justice. If a person has earned a lot of money in a dishonest way, he can afford to give a bribe and help the Armed Forces. And we consider this a circumstance that exempts from real punishment.
For a long time, society does not understand: what is happening, what is being done and why. Sometimes it seems to me that this work of anti-corruption bodies and these sentences is something personal. In one case – prison, and in the other – we do not touch the person at all.
In the theory of probabilities, there is such a term – stochasticity, it nicely describes this running in different directions with an unclear purpose. In society today, only thanks to individual Telegram channels, there is some support for this run. Because these channels are propaganda. Whatever SAP and NABU do, everything is fine. If a sentence is canceled, it is bad, all claims are to justice. It has nothing to do with the concept of civil society and European values. It’s like d’Artagnan and the three musketeers: “I fight because I fight.” There is no deep meaning in this.
And the question, in my opinion, is not in a certain personality, not in a specific case, but in general that it is not necessary to fight corruption in this way. Fighting corruption by creating anti-corruption bodies is like pouring gasoline on a fire. It is necessary to change the state in such a way as to take away certain powers from officials, to give them to computers, and in this way corruption will disappear from our lives by itself.
For me, as for every person who lives here, it is very painful. Now the worst thing that can happen is war. Our citizens die every day. Lots of restoration needs. We all think about how we will heal when we win. We hope that we will put aside discord and live, understanding that each of us is a Ukrainian, a citizen, and we will build society – everyone is in his place, a lawyer or a baker – it doesn’t matter. But, unfortunately, today we see that these hopes are melting.
For the first six months after the start of the war, no law enforcement agencies touched the business. Everyone, as a single mechanism, worked for victory. But today everything has returned to its circle: someone fights and dies, and someone goes around searching and robbing himself of a prosperous old age. And it is also a part of our law enforcement system, judiciary and our life.
It reminds me of a painting called “The Rats Return to the Ship”. This causes a certain contradiction in feelings. That is why I have such a relationship with anti-corruption bodies and activists. This does not mean that, having the status of a lawyer, I do not want detectives or investigators, prosecutors to work. I, like every person, do not want to be killed, steal taxes, take bribes. But it is not achieved in this way. This is a way to defend certain interests and line your pockets.
I understand that when we’re investigating war-related cases these days — like someone stole something from a Defense Ministry procurement or something like that — it’s very important. And if we are investigating a case for 2011 that someone took a bribe, then can’t this wait until the end of the war? Or maybe everyone involved in the investigation of this case – detectives, prosecutors, lawyers, judges – better go and fight a little? Somehow all this is not perceived as valid intentions to protect the interests of the state.
Everyone needs to find courage and call things by the definitions they correspond to. If there is an imitation of the fight against corruption, then it is an imitation. And it goes without saying that all lawyers only seek to protect corrupt people, and detectives are nice guys who are hindered by the former. The system clearly does not meet our expectations.
“VAKS judges do not think of themselves as a court, but as a punitive body”
— Recently, VAKS celebrated 4 years of its activity. Almost half of this period was during martial law. According to your personal observations, how much has the practice of the anti-corruption court changed during this time, and has it changed at all? After all, the war made its corrections both in legislation and in a new style of its interpretation.
— I don’t want to get the impression that I am a lawyer who is not doing well – in the country, with corruption, in the VAKS. When the last one was created, I personally thought it would be a good time. After all, the new court, the judges are not as busy as in the district courts, and there will be time to listen to everyone, so that all proceedings take place within the deadline specified by the legislator. And thanks to the fact that there is no corruption in the anti-corruption court and there cannot be, I hoped that my experience would give me, as a lawyer, certain advantages and I would be able to show all my knowledge that I had gathered during my life.
What actually happens at VAX? I cannot say today that this is actually a trial. After all, most of the judges of the VAX are trying to pull the side of the prosecution by the ears.
— Indeed, in view of some public processes, one gets the impression that the only argument on the part of the procedural opponent is his presence. It is about competitiveness in certain categories of cases only in words. How can a lawyer not turn into an extra in such conditions?
— I will say more: lawyers have already learned to lose cases when the prosecution does not even come to the hearing. One of the motions was considered, where the presence of a prosecutor, a detective is optional, which the court can consider in the absence of the parties. Meetings were postponed, and then we came and lost. I meet the detective, and he says that he is preparing for the meeting. I say that we have already lost this case.
It’s funny and not funny at the same time. Because, first of all, this is a violation of human rights. This is an obvious sign that the institution of advocacy plays the role of a curtain.
A separate issue is the activity of VAX. During the hearing, the prosecution may not say a word, but we discuss with the court, and the court invents why it is possible, but not otherwise. A week of preparation for the meeting, and the judge instead of our opponent returned the status quo in two minutes. And I see that all my knowledge, more often than not, is unnecessary.
But this should not be the case in the competitive process. What then is competitiveness? It’s all the fault of the internal attitude, according to which VAKS judges think of themselves not as a court, but as a punitive body that must punish the guilty. It turned justice into a spectacle.
The question, again, is not about personality, and it is not about me finally being able to demonstrate my knowledge. It’s not that I want all corrupt people to continue robbing the country. I want us to do what we set out to do. If we want to create a punitive body, then we need to give it an appropriate name – the Higher Anti-Corruption Punitive Body. If we are creating a court from which we want to make a model, let’s work as indicated in the codes, in the Constitution.
We ask the judges at almost every meeting: give us your code, we don’t understand the reasons for your decisions even from the full text. When you want – interpret in one direction, when you want – in another. But, unfortunately, nothing changes. And that’s too bad. Because if this is a model, then what will happen to other courts and law enforcement agencies?
When we say that under the CPC the investigating officer must take into account evidence of both guilt and innocence, then either it should be so or the CPC should be amended. If we are going to Europe, let us move in the fairway of its principles of justice. Of course, we can follow a personal path, but then the result will be the same as with personal paths.
“Integrity checks are just a humiliation of human dignity”
— Today, the integrity check is almost the only tool of the anti-corruption strategy. In view of the high-profile events in the Supreme Court, it is not only judges who need to be checked. Moreover, the independence of not only judges, but also the institution of advocacy is under threat today. Will not these ideas lead to the fact that both judges and lawyers are put to the polygraph before every trial? And can such methods eradicate corruption?
— I believe that these integrity checks are just a humiliation of human dignity, it is not clear to whom. There is one of the basic norms in the Constitution, it is also in the CCP, that no one has to prove his innocence. Is there information that someone stole something, took a bribe? Enter into the ЕРДР, investigate, if necessary — report suspicion. Another way is bullying.
For example, if I were offered to go to court today, I would not go. I will not go to the polygraph and have someone check me and ask me some questions. From what hell? Who are these people? How are they better than me? Why is it that when it is necessary to protect the country, I am a good man and suitable, and when I, for example, want to work as a judge, someone – it is not clear who, what it is and what it has done for a living – will be interested in my personal life and what and when I bought?
I believe that the worst thing that can happen in society is when we normalize the possibility of humiliating each other. And for this, we attract some foreigners who humiliate us by the very fact of their invitation.
We want to build a strong judiciary, but we humiliate judges every chance we get. And who do we want to see in court: those who are morally ready to be publicly humiliated every year, or people who will not put up with it? We should proceed not from sudden popularity, not from personal preferences, but from the content that we really want to invest in the state. To my deep conviction, part of society does not understand that this is a closed circle: if we humiliate a judge today, we should hope that he will stand up for the protection of human rights later.
Regarding cases in the judiciary or anywhere regarding bribes. We have many heroes in our country who proved themselves during the war. But there are also collaborators. However, given the presence of the latter, we do not undertake to list all citizens of Ukraine as traitors. Then why, if one judge took a bribe (it doesn’t matter – a lot or a little), that is, committed a crime, then we generally think that something is wrong with the entire judicial system?
As long as a person is what he is, it does not matter whether in the USA or in Ukraine, there will be traitors and heroes, there will be honest people and not. But why smear everyone with dirt? This is just hype, on which someone wants to earn three pennies and shouts – everyone needs to be changed, lustration, evaluation, and already sees himself in the place of this evaluator. Let’s come to our senses and understand what we need – a country of hype or a country of justice – and let’s build it.
“When there are not enough arguments, then the practice is connected: “Well, the ECtHR thinks so”
— In one of your publications, you are outraged by mindless quoting of decisions of the ECtHR and taking words out of context. What do you think is the cause of this problem? Is it a feeling of inferiority in relation to the legal mechanisms of national legislation? Argumentum ad verecundiam rhetorical technique? Is this a kind of declarative way of implementing the ECtHR practice?
— This is a very serious professional issue for every lawyer. In my opinion, such a departure from the context is used exclusively in order to prove the conclusion, sentence, resolution, resolution that the judge deems necessary. When there are not enough arguments, then the practice is connected: “Well, the ECtHR thinks so.” In fact, this is the main reason.
VAKS came up with the idea that the ECtHR in one of the cases stated that for suspicion to be justified, it is enough for an impartial observer to be convinced that such a crime could have been committed. There are different circumstances, and the phrase is not the same, but the appeal of the validity of the suspicion is refused, because an impartial observer is convinced. What is this wording? Why then the Constitution and the CPC, if there is this “impartial observer”? Let’s then completely remove the possibility of contesting reports of suspicion. Well, it’s a laugh! But it works. They understand perfectly well what they are doing, but it seems that it is profitable for them to pretend that they do not understand.
And so with everything. There is the Manguras v. Spain case, where a preventive measure was chosen in the form of a bond, the amount of which was significantly greater than the individual’s personal income. In this case, it was substantiated that there was such insurance coverage, and therefore the court proceeded not from the personal property income of the citizen, but from the amount of this insurance coverage, which was paid, including, for court costs.
Instead, our judges, when it is necessary to set some kind of bail, say 100 billion hryvnias, now simply refer to the ECtHR’s decision in the Manguras v. Spain case, and they do not care what it actually says. Unfortunately, this is a deliberate distortion of the content of the practice in order to achieve a goal that seems good to the judges.
It is painful to look at, because we, as lawyers and advocates, cannot do anything. Many publications write on this topic, lawyers speak, but nothing changes. The judges feel supported and believe that this is whining on our part, and they have done their work and will continue to do it. In addition, they avoid any discussions. At first, they came to conferences where there was an opportunity, but now they try not to even communicate.
This is very unfortunate, because I have not come across any incomprehensible decision of the ECtHR. Each decision is written as for the child – what the court reasoned and why it made this decision in this particular case. Everything is written down to the letter. If the decisions of the ECtHR are read, and not extracted from sentences, then they do not contradict our legislation at all. The norms coincide. They are very clear and directed, after all, to the protection of individual rights.
When they try to use the decision of the ECtHR not to protect a person, but on the contrary — to worsen his condition, then this already indicates that something is wrong here and someone did not read this decision or changes its meaning. A conclusion taken in order to worsen the situation of a person cannot be used according to the definition of the content of the creation of this Court.
What was the goal? It was intended to expand our legislation to take into account the practice of the ECtHR, the Convention for the Protection of Human Rights and Fundamental Freedoms, which should enrich our legislation and our practice with the opinions of representatives of all European countries. What did it turn into? If we can convince an impartial observer, then the suspicion is justified.
I intended to find a man who, as a free listener, would come to the process with the inscription “Impartial Observer” on his chest, and then ask: have we convinced him or not? Who are we convincing? Does the court mean that it is an outside observer? Common sense has long been left somewhere, and we are in the play. But this is our life. To return after the war to the same closed circle would, in my opinion, be very unfortunate.
“When a person has come to power, giving up power is probably the most difficult thing”
— You have the title of Honored Lawyer of Ukraine and at the same time you are a Candidate of Economic Sciences. Through the eyes of a representative of which of these two professions is it more difficult to look at the realities of our country? And what is worse — devaluation or the force of legislation? What will take longer to recover — a stable economy or relevant enforcement?
– It so happened that I really like to write fiction books – this is my passion. And maybe no one will ever remember me as a lawyer or an economist, but God forbid, I would very much like it so that the plays based on my stories or my stories live on. Is it important that I was a baker, lawyer, economist? It is important that he was and was a person. Therefore, my view is also human, it does not proceed from the point of view of professionalism.
It happened in every state that only those who came to power can really change the system. We vote for them, and only they have the real power to make changes. They adopt laws and implement them. Only a dragon can defeat a dragon.
When a person has come to power, giving up power is probably the most difficult thing. I believe that, unfortunately, that will never happen.
What should happen? Some team will win — the deputies, the president, and they do not appoint their own person to the position of head of the tax office, but introduce a single tax and the tax office disappears altogether. They spent a lot of money on an advertising company, on mass media, on buckwheat, and then they do not collect back what they spent in excess, and they also change the system to remove administrative levers.
If such a person comes to power, then our state will be lucky. Today, unfortunately, every person who comes to power appoints people from his environment who, like our anti-corruption officers, fight something as a single team. Therefore, it will be a miracle if it happens otherwise.
As far as the purely economic recovery is concerned, it will depend a lot on our brothers and sisters from Europe. If they finally take us to the EU, and they think that we deserve it, I think that our country will flourish with Europe. If they join NATO, it will be a circumstance that will make it impossible for any country to invade our territory. If not, it will be very difficult for us.
Because risking your money, investing in an unstable economy is very difficult. An investor is a businessman, not a philanthropist. This is also a circumstance that does not entirely depend on us. Unfortunately, our brothers and sisters help us sometimes not because they are for us, but because they are against and afraid of Russia. And we fight with her. These considerations sometimes interfere with sincerity and belief that they will be happy to accept us into the EU and NATO after victory. We thank you for your help. But this insincerity leads to the fact that such wars take place.
If Putin saw sincere relations and understood that the whole world would be with us, he would not have started this war. And when the tanks were near Kiev, and fairy tales were passed on to us from Europe, that was the real price of our relations. And only when we persevered with great sacrifices and courage, then they began to help little by little. We cannot change ourselves, how can we change the world?
” Moskal can live in the heart of every person, regardless of language, nationality ”
— We are going through not the best times from the point of view of the economy, business immediately after covid found itself in a new quest for survival. And although with the beginning of the war, the authorities tried to give time to recover from the events, now both searches and tax audits are returning, the relaxation in the tax burden has been removed. You have already said that we are returning to old problems. In your opinion, does the government today help the business that remained in Ukraine to survive and restore the economy?
– The situation is quite simple. For example, a law enforcement officer goes to work for a salary of UAH 5,000. Can he really live on this money in Kyiv? After a certain time, buy an apartment, a car, fill it up and repair it, pay for the child’s school, eat? But we see that 99% of civil servants have exactly this level of salary. Anti-corruption officers have a very good salary, ordinary civil servants and law enforcement officers do not. And then we say that all they do is put pressure on business and go after money.
Of course, because we threw them like wolves – either breathe, or rip off additional taxes from us. And at the same time, we close our eyes and say that they should be honest. We bite each other’s throats, and it is more convenient for them to rule when we are fed up – businessmen with law enforcement officers and tax collectors, everyone hates each other.
The state should live like a family. When the family has excess funds, it can hire a nanny to help, and if not, the husband and wife pay attention to the child on their own. Are there really funds for such a number of law enforcement officers? That’s what we hire. When the investigator receives not UAH 5,000, but $5,000 per month, he will have a different attitude to his work, make efforts to avoid being fired from this job. Then he will do everything according to the law.
And now we have what we created ourselves, and spitting in the mirror is fun for children. Returning to the old days is something that we, as a state, do consciously.
— During the war, you continued to engage in creative activities, publishing books and staging plays. Are you obviously a fan of not putting life on hold under any circumstances? To what extent did the drama of today’s events enter your texts? Do you, on the contrary, try to live a different, more carefree life in them?
– I didn’t think about it. Those who are now on the front lines have already put their lives on hold “for later.” A military man’s wife and mother can’t think about anything but him either. They have already put their lives on hold. Nothing will change from my assessment, we are not in control here.
But it is very important that we, having won the victory, do not become like those with whom we are currently fighting. We even call the enemies not Russians, but Orcs. Orcs are glad for someone else’s grief, not their own brothers, when it is the business of the strong to solve some issues. These traits, unfortunately, live in every person. It is very important to beat them every day.
There are words in the song “Kill a Muscovite in yourself” and I subscribe to this thesis. Unfortunately, Muscovite can live in the heart of every person, regardless of language or nationality. And precisely culture, literature is a way to build a wall from this Muscovite, so that he does not penetrate into the heart, to form his own identity. So that after victory we do not become like those who were defeated. To remember why we did not give up, why it is so important for us. Because we are really different people, but it should not be confused.
Creativity helps me not to lose myself, to feel that I am helping others. It is important, especially in such difficult times, to feel that you are helping your brothers and sisters, to fully feel like a citizen. It is important to wake up and understand that you are a son or daughter of your country.
There are people who don’t care about anything at all, except to drink and go for a walk, but we can’t take them as an example. Most have a heart, a feeling, and it is important for us to support each other. And if after the play based on my story, someone’s heart felt lighter, someone forgot about the war for a moment and thought about the times when the war will end, that is very important.
After one of the performances, relatives of a fallen soldier came up to me and thanked me. The pain left their hearts for the duration of the performance, because they are also living people and they need to live on somehow. These are the times when if you do something, you have to do it well or not at all.