First Deputy Prosecutor General (2014–2019), Honored Lawyer of Ukraine, Professor of Law
— Mykola Yaroslavovych, why does the prosecutor go into politics in Ukraine? And why are Ukrainian laws perceived as political conditions, observation of which needs extraordinary efforts of a law-abiding citizen?
— The Ukrainian society is characterized by those restrictions that have been inherited from the former Soviet times. Today we do not educate an official as a state person or a personality. Since his school years having been taught not to go into politics, he narrows his worldview to certain limits that were once established for our society, he follows the rules that have been forcibly introduced. In this situation, it is impossible to be aware of all the problems that arise in the country, in particular, in the sphere of law. He realizes this when he has come into politics. In other words, one, as the prosecutor of the region or as the prosecutor of the Prosecutor General’s Office, is already becoming a part of what is called politics…
When working in state institutions — whether in the prosecutor’s office, or in security services, etc. — a person inevitably encounters what is called the administrative-command style of management, which was once characteristic of the former state of Stalin’s times. But there is what we call bureaucracy there. It must be formalized to such extent that it cannot notice the problems that need to be resolved.
— Did this bureaucratic system exist in itself?
— To explain what I mean, one example is enough regarding our Prosecutor General’s Office, where at least 40 % of time is spent on writing mandatory letters, compiling answers to incoming inquiries, and so on. But this should not be, to put it mildly, typical of the prosecutor’s office, whose task is completely different! As for inquiries, they come, for example, from the Presidential Office, the Verkhovna Rada, the Cabinet of Ministers, and various public associations. And this kind of administrative-command subordination does not allow a prosecutor to work effectively, to perform his duties properly. So, as a result, one, as a prosecutor, can do not more than 20 % of what he is responsible for. This is not the principle on which the prosecutor’s office should work.
— Professional achievements of any specialist, including prosecutors, directly depend on where and how he gained experience. If he started his career from the lowest rungs, “did not jump over” them, then the experience gained will become a real foundation for his further activity…
— I think such climbing up a professional ladder is unalterable and correct… This was called the school of professional skills, which existed as such…
But what do we see today? Most new employees, managers with their diplomas in hand are completely helpless in their work…
— But they justify it by the fact that diplomas of education are “red” (with excellent marks — transl.), so the knowledge got guarantees yesterday’s student successful work even in the highest state posts…
— Agree that if you have learnt the language and spelling well, it does not guarantee that you will become a true writer… We must admit that we have not only lost the so-called “personnel machine”, we have also lost the opportunity to improve it… Our HR-system is collapsing, and with it the prospect of any production in the country, as well as of the state administration. You will agree with me that this should not be the case! Including the appointment to prosecutors’ positions of managers or public officials, where at least one third should be older, more experienced, and no more than a third of young people who would learn from them.
To do this, Ukraine should make work its institute of criminology, which would expose the reasons for corruption, conditions under which it arises and through which it penetrates the government structures, identify risks, declare the adoption of laws that eliminate the reasons and conditions for corruption.
— Listening to you, I will allow myself to notice that I have less claims to a person who deliberately tries to harm us. Because an evil doer, one way or another, understands what he is doing. I have complaints against someone who is not aware of his actions at all and does not distinguish harm from good deeds. Is it possible to appoint such a person to a state position, to elect him to the Parliament? If it comes to it, they can’t be persuaded that what they are doing is sabotage or even a crime. And “dress-making courses” will not help here, where our lawmakers are so to speak taught and trained…
— Yes, in your remark everything is stated logically and it is difficult to deny anything.
— Then, isn’t it natural that we now have to reap the fruits of the events of the 80s of the last century in the USSR, when they began to create a market and destroy the state economy?
— This is natural not only for the former USSR, but also for all countries in the world. The Soviet administrative-command system was not viable, and with Gorbachev’s coming to power, its accelerated destruction began. And even the law could not prevent such destruction of the state, despite the authorities’ attempts to do something about it. This is a natural process with which the administrative-command leadership could not cope then. We feel the consequences now and will feel them for a long time, given our difficult current situation…
I note that no territory — be it a district or a region — is free from criminal influence. I consider it unpleasant, but a kind of natural phenomenon of the society, because each of its members has his own characteristics, sometimes not very useful for the society, and this results in the problems we are talking about now, and people, due to their own peculiarities, are doomed to what is called illegal activity. The reasons are different: psychological, moral, material, and so on. As for the USSR, it needed a systemic approach to educating people to influence their consciousness. The system of that time broke it, and it could not be helped. And if a person inadvertently made a mistake and, as a result, got into a prison, then there, he was doomed to go though “criminal universities” and, ultimately, to become a member of the criminal world, in other words, a criminal… And this is a fact.
By the way, this happened not only in the USSR. Transnational corporations arose in different countries of the world, their activities were illegal, harming the societies of many countries.
The fact is that the task of law enforcement agencies is not just to fight criminal acts but — above all — to prevent them…
— The state, which cannot cope with crime, appointed a person with considerable criminal experience as the head of its law enforcement agency so that, knowing this “world”, he would neutralize his “criminal mates”, for which then his sentence was revoked? This fact seems to apply to France…
— I remember this story, the name of the appointee is also known — Vidocq… We once had something similar in Berdyansk, in post-war Odesa, and in the 20s of the last century it happened when law enforcement officers worked together with such well-known criminals as the Yaponchik, Kotovskyi… Law enforcement agencies have always sought to act not to harm the society, but to prevent negative social phenomena.
— How correct is the concept of transitional justice, which MPs are going to introduce for the uncontrolled territories of Ukraine? Are there precedents in the new world history? And isn’t this a kind of guarantee for those who turned against Ukraine in 2014?
— I will answer this way: there are some countries, including Russia, which is fond of destructive work to destroy international law. They have imperial ambitions and they are very nostalgic about their past and lost territories, and therefore they resort to such processes. And the thirst for power of their leaders, such persons as V. Putin, is boundless, one might say, at the level of a disease. That’s why he looks for all possible ways to somehow satisfy his “whims”. He seeks to present himself to his society as a king-father who cares about his people. As soon as there are objective problems in the society, such a “father” begins to distract the population with external decoys, which, as a rule, he “initiates” himself. The capture of Crimea is presented as an extremely important thing for the Russians, he also begins to defend “Russians” in the Donbas… And when it comes even further, for example, to France, it turns out that he is present there too — helps “yellow vests” to protest against French President E. Macron. There, the Russian GRU officers, having settled in the Alps, were using the funds to heat up the “temperature of the protests” of the Europeans. In the end, their imposition of camaraderie results in a kind of cooperation in the political market, when both E. Macron and his German counterpart A. Merkel do not mind supporting the Russian President in his efforts to cooperate with Europe and demonstrate this to the Russians as an achievement of their “father”…
As for the transitional justice we are talking about, it can be directly considered a “derivative” of the logic of the Russian leadership, which considers it a decent proposal, but in fact — the usual “somersaults” to distract the Russians.
— In the early 2000s, in the Prosecutor General’s Office of Ukraine, you supervised compliance with environmental legislation. Now I will ask only one thing: were the Russian owners of those enterprises located on Ukrainian territory responsible fulfilling our environmental laws?
— Such entrepreneurs tried to be invisible and acted, usually, through their fictitious persons. But the legislation, so to speak, proved to be quite powerful, and when I was appointed the position, they became interested in my person, because I had not worked in Kyiv until then. They had “studied” me for a month during which I had already ordered to stop shipping, because the ship-owners, not complying with sanitary requirements, had been polluting the Dnieper. We would go in boats to detect dirty runoffs into the river from factories, other industries, damaged or destroyed shores, and bring the perpetrators to justice. For example, due to non-compliance with safety measures and imperfect documentation, construction work on the metrograd was suspended. Therefore, such law enforcement activities were principled and effective, because at that time there was general supervision and the prosecutor could respond in a timely manner to any violations, bring the perpetrators to disciplinary or criminal responsibility, make a request to eliminate the violations.
Today there is no such prosecutorial supervision. The transitional provisions of the Constitution state that it can be abolished when the oversight functions are taken over by the relevant authorities. And the authorities have not yet taken them over… Petro Poroshenko, who as a government official became an oligarch, and who was “pressured” by the prosecutor’s office for violating the law, retaliated by eliminating its function of prosecutorial supervision. And even more, the government was ordered to stop all inspections, and it resulted in chaos that continues to this day…
I consider it a big mistake to allow the influence of our so-called elites on legislation, on prosecutorial supervision. It is a great evil when the state leadership uses the prosecutor’s office as an element of political violence. This discredits the prosecutor’s office.
— Are there people in Ukraine who are not only aware of this, but also can change something?
— Today we need to improve our political system. For example, today our President does not belong to any branch of state power, he has no powers over them, and if he has any, it is something like powers of the First Secretary of the Communist Party of the Soviet Ukraine. The President appoints the Prosecutor General, all top security officers, and, without being responsible for them, commands them all, while also using the repressive apparatus as an element of his influence. I believe that we must immediately improve our parliamentary-presidential system of government, in which the President would head the executive branch. In this case, we will win because we will eliminate the whole bureaucratic machine. Note that in 1992 we had 40.6 thousand officials, and today there are about 560 thousand…
— The question in view of military hostilities: during combat missions, is the serviceman responsible for any violation of the law? Especially when the Military Prosecutor’s Office is being liquidated at the time when the country is at war.
— In this I see a big mistake of the legislature, which did not pass a law on collaborationism, did not put certain markers. And I consider liquidation of the Military Prosecutor’s Office during war a crime!..
I mean professionalism is needed everywhere, and in the army in the first place. The Military Prosecutor’s Office is no exception. I repeat, the first thing that should not be lost is the environment…
— Maybe the Military Prosecutor’s Office was also liquidated due to “principles”?
— Such, I would say, thoughtlessness creates a crime against the state. Well, how can you explain the appointment of a person who does not have the appropriate professional education, let alone work experience to a key position of the Prosecutor General?
I graduated from the Judicial and Prosecutorial Faculty, and if I had come to work in the prosecutor’s office without relevant experience, I would have been looked at as an alien from another planet. Today it is believed that it is enough to have a manager there. And such a “manager” in the judiciary is not just a loss for the society, it is a crime…
By the way, you mentioned at the beginning the prosecutor in politics. Well, nothing said by the person in such a rank will correspond to the internal discipline of the party, which was created only to take state power into its own hands.
— This does not mean that we should accept this state of affairs and let things slide.
— Our party-ideological forces, which are able to take responsibility for the situation in the country, are just emerging. We live in an oligarchic corrupt society, where, on the one hand, the oligarchs rule, and what is called the mafia is formed. They have the funds, they have their representatives in power, they control the law enforcement agencies, the media, which “powder” the brains of Ukrainians. On the other side are the people, who have nothing at all, even rights.
— But it is known that the oligarchs are not able to care about the development of the society, or about science, or about advanced production, which ultimately leads to the destruction not only of the statehood, but of the society as a whole!
— The oligarchs do not have a real ideological and cultural heritage, which is created during the historical existence of society. Brought up on the principles of “Who cares?”, the oligarchs will never realize the true role of the state and the people who live in it. Tell me, do they understand the role of the language, culture, historical heritage?..
— It is not for nothing that the Americans are no longer inviting IT specialists to their Silicon Valley, but philosophers, because they felt an urgent need to study further development of the society, which the computers cannot do.
— You see, our corrupt “graduation” in high school and appointment to the positions of sophomores came to us from the Russians, not from the Americans. This forms the “personnel machine” of ours, which I have just mentioned. After all, Russians skillfully use what they know about our mentality, that’s why they throw in “career personnel” here, trying to present us in the eyes of the world as they are — venal, unprincipled, those who do not keep the word. During our many years of existence under them, we have lost a lot, and not only what is called material.
— We now see that a Ukrainian can always realize himself elsewhere, but not at home, where there is no opportunity for this for many well-known reasons. Ukrainians are accused of earning money, but is it really a disadvantage when a person seeks to earn by his work, rather than capture someone else’s? This also confirms how right your thought is about the need to “repair our personnel machine”.
— In the world, when a professional is hired, they ask what conditions he needs to realize his potential. Our approaches are completely opposite and there is no need for my reminding of this again…
The authorities today must understand that the first wave of privatization was unconstitutional, when the party nomenclature criminally seized strategic objects of the national economy. But its representatives did not notice how they planted a time bomb under themselves. After all, that privatization took place in order to break up monopolies, but the result was even more of their merger. And if it does not meet the terms of the contract, the state has the right to take everything back. If it is to the detriment of the state and its people, the state has the right to nationalize such objects. I say this as a lawyer.
If today the oligarch Z. has 30 % of the country’s foreign exchange earnings, owns 30 % of GDP, then this is nothing but a threat to national security! Today we need to separate power from business, which is our Task Number One.
— It seems to me that the West sees this well, understands and tries to help us to realize it and, accordingly, to take appropriate measures on the basis of laws.
— The West is waiting for us to finally have real leaders… Our task is to get rid of the curse of Ukraine, about which Hrushevskyi said back in 1919: “Ukraine is ruled by those who do not need it”.
Therefore, our task is to form a government which would need Ukraine as a real state whose citizens feel worthy. So as not to have a citizen who in the circle of his friends gathered in his Spanish estate said that “Ukraine is not a state, it is a place for earning money”. We must defend our national interests, not believing messages from Moscow, but getting rid of collaborators. Today, the authorities seem to be demonstrating that they are trying to bring order to the country. Since the election of US President J. Biden, the government has been trying to show that it seeks to change our foreign and domestic policy. I wish it were done in reality not just imitated. As they did with the Kharkiv agreements, which do not comply with our Constitution, that is why they are criminal, but those who are involved in their adoption are trying to justify them. But all these accusations are broken by personification, i.e. the responsibility of those who voted for such agreements. This is a betrayal of the Motherland, because contrary to the Constitution, foreigners were given the right to be present in Crimea. The quintessence of this was its seizure in 2014.
— About your point of view on the story with the “Wagner Group”…
— I would give up the political and motivational component that takes place. After all, this is about the team of the former President and the team of the current President. When war and military confrontation are clearly visible, everything should be discarded and everything should be clarified professionally. The fact of betrayal, if it took place, should not be ignored. There are two punishable crimes: murder and treason. If the President is elected by the people, he has no right to betray that people. Because one can go down in history, or walk smack into it. An objective investigation is needed to avoid the latter.
But not as it was done with the Revolution of Dignity, when the investigation was distorted and misinterpreted, the evidences were withdrawn. And all this was imposed on the people through the media.
— Such is the role of the media in our society.
— There are laws all over the world, according to which the media cannot be owned by oligarchs. And we need such a law that an oligarch could not influence the public consciousness. He is an oligarch because he has such means of influence. This is politics, and it must be separated so that an oligarch was simply the owner of a large legal business and could not interfere in public affairs. Because the oligarchs means the emergence of mafia, which destroys the state as such…
Recorded by Oleh Makhno
The full interview you can read in the “BINTEL” Geopolitical Analytics Journal, Issue 1, 2021.