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Social activist, lawyer, human rights activist. Graduated from the Law Faculty of Taras Shevchenko National University of Kyiv. Head of the NGO “Ukrainian law assosiation.” Author of numerous publications on the theory of law, constitutional law |
Oleg Valeriyovych Berezyuk
O. Berezyuk: “The Constitution Is a Political Declaration and a Regulatory Legal Act. All Articles Should Be Simple and Clear to Every Ordinary Citizen. In General, Only the Principles Should Be Written. All the Rest Must Be in Laws”.
- Oleg Valeriyovych, you are the head of the Ukrainian legal community. Is its creation justified?
- In a non-democratic state to defend the rights of citizens is rather difficult, especially when they are pressed on by the state apparatus. Such associations are created by experts in order to overcome all sorts of problems, for the efficient organization of work.
- But the same associations are popular in the West.
- There, the political system reacts differently to lawlessness. Remember, how the Minister of Defence of Germany had to resign when plagiarism was found in his scientific work. The Western society immediately pushes to the political margins the citizen, neglecting Law. By the way, such an offender does understand this. In our country, he holds on to his post like grim death. I believe that it won't be like that here either. Our society is becoming similar to the Western one, where the source of power is the people. True, we still lack organization, but it certainly will change for better.
- Including about such concepts as the Law at war? After all, today, when the Anti-Terrorist Operation (ATO) continues, the rights of its participants need specifics...
- The Law is always there, regardless of the state of the society — primitive or highly developed. The Law is a regulator of public relations, a measure of justice.
- And a law?
- As for a law, it is not always rightful. Why was the process of preparation of the Constitution accompanied by such a heated debate? When in 1996 the Constitution was being adopted, there was a dilemma: the rule of law or the rule of legislation? We prefer the rule of law. The law as justice.
In this country laws are adopted by the Parliament. And a law is not always fair. Therefore, we have such a thing as “live” and “dead” norms. If the norm is not perceived by the society, then it is not applied, it is — “dead”. Although it has the highest legal force in relation to other laws and regulations. But, nevertheless, the law is not effective. That is why it was decided to establish the rule of law as a principle of justice. By the way, in the Anglo-Saxon system of law there is no such thing as a “dead law”, because justice is done by the court, by precedent creating the norm, which is mandatory for all.
- I always thought that if there was a law (even a not quite correct one) is observed by everybody, then it would be effective and useful. And the society only benefits from it, doesn't it?
- Yes, but not quite. For example, if the legislature adopts the norm, binding 100 % of the profits of the enterprise to be given to the State, will such a norm be effective? It will not. Let me explain with an example: there is such a thing as Laffer curve in the economy. The more taxes are taken by the state from the businessman, the less taxes he pays. Why is that? Because it is not profitable! It is unfair. And the law will not be efficient, citizens will try to work around it. Therefore, if the Parliament adopts such an unfair law, there is a crisis in the society. On the one hand, the state authorities are trying to put pressure on the citizens, on the other — the pressure provokes resistance. And when the President takes such an unfair decision, the consequences will be far from the expected. The reason for the defeat of our “Orange Revolution” was that the then — President usurped power. Ignoring the views of both the Parliament and the society. For this reason, the Revolution of Dignity began. Because V. Yanukovych, not taking into consideration the mentality of the society, usurped power and tried to establish a monarchical regime in Ukraine.
- But our neighbors Russians, supporting him, insist that he was legally elected...
- It would be good to look through the pages of the history of Ukraine, since the Middle Ages. Moskovia (Moscow state) was developing at that time according to different authoritarian principles, different from those that were inherent in the Kievan Rus. Muscovites have authoritarianism in their nature. Remember the French scientist Gustave Le Bon, founder of social psychology. Analyzing the Constitution of the most developed country in the world — the United States — and pointing out its effectiveness, he at the same time was paying attention to the fact that in Latin America, the constitutions, largely copied from the US one, were not effective. Because South Americans, says G. Le Bon, have a different mentality. Here, when we talk about Russia, we have to take into consideration such a feature as the mentality of the people, the nation. Sociologists say that President Putin has a very high level of the population's support, about 85 %. If he did not consider the opinion of those citizens, their mentality, then he would not be President. The mentality of the Ukrainians is different, and it shows... That is why the Russians will never be able to conquer Ukraine. Even by force! Here they have come again to us with weapons, but what, apart from the far-fetched “Russian world”, can they offer us?.. We know, for example, that the Mongols having conquered China failed to change the mentality of the Chinese. On the contrary, the Chinese assimilated the Mongols.
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Moscovia had developed on the basis of different authoritarian principles, which differ from those that were inherent in the Kievan Rus. Muscovites have authoritarianism in their nature.
By the way, in the 19th century in Russia there began turmoil after the war of 1812, when Russian troops took Paris and were shocked by the way of life there. On returning home they were eager to arrange their life following the example of Paris. The military at the time were the most educated part of the Russian society, worrying about their motherland. And we remember what came of it... I think that when the current Russian officers are given hard life by the socio-economic crisis (and it will happen), when the last Russian citizens realize that their country is collapsing, they will decide on fundamental changes in the society. Do not be surprised if it is initiated by the military, supported by compatriots.
- Our history is not too politically and socially smooth. But it is always combined with the struggle for independence, having reached which, there begins so to speak, “bickerfest” negating all the efforts of the people.
- I agree, we also have problems. Including those remaining from ancient times. Talking about the current state of affairs, we can state the same: the dualism of power. Recall the recent events, when the Constitution of 2004 had been acting. Viktor Yushchenko was the President, Yulia Tymoshenko was the Prime Minister. Their feud led to the fact that both sides lost managerial levers. As a result: Tymoshenko was in prison, Viktor Yushchenko — on the side of history, and the country completely jumped the track of its political and economic development. By the way, a very important point is as follows: when the Constitutional Court restored the Constitution of 1996, except for lawyers (and even those were few), no one particularly noticed. That is, the whole society had agreed that we needed a strong president. Does it not remind you of anything?
- “Gestalt” from our historical past?
- Yes, our mentality played its role! Some of our people suddenly desired to see a prince as their ruler, judging justice, protecting the country from external aggression. Here are two, so to speak, functions, which, in the opinion of Ukrainian citizens, has to perform the “prince,” that is, the hetman, or the president. And if he does not meet these requirements, the society will remove him. It does not matter how it happens — through the election or revolution. And if the representatives of the current government, citizens who imagine themselves politicians in the future, do not realize this, we will not manage to create a truly strong state.
- If we develop the theme of the role of mentality, then because of the fact that it changes very slowly, it is difficult to envisage any positive perspective. It takes not just time, but also circumstances. In an interview, the source told, how difficult in the early days of our independence it was to determine who in Ukraine could claim for the post of president. Because he/she has to satisfy the requirements of the West of Ukraine, and its East, and the North and the South.
- We will have problems until there turn up persons defending not their private interests but the people's ones.
- Cannot such patriots come to us from abroad?
- No, they have to be ours, home-grown. Foreigners will not be able to feel the subtle aspirations of our people. And without it, how could they carry out some changes, now called reforms? At his time, Georgian President Mikheil Saakashvili was tough enough to carry out reforms. And as soon as he eased off his line, “rolling back” to former positions began. Many of the proposed ideas were not perceived by local population. Categorically. For example, Georgia had perhaps more prisoners than any other European country or former Soviet republic. In the small state almost in every family someone went to jail, staying where meant dishonor. Although not less than 80 % of what Saakashvili and his team put into life was perceived with approval by the society. Today the Georgian society will not perceive corruption! Today Georgia is on the 8th place in the world by business development. The tax system has remained the same, which was introduced under President Saakashvili. In principle, the reforms conducted by him, put down deep roots.
- Since you have already mentioned these events, what is the role of criminality in society? After all, in the Soviet era it was in its own way organized, and from what I have heard from professionals, it was closely related to the prosecutor's office, using these connections in the confrontation with the police. In the decay of the Soviet Union, the criminality, on the contrary, got united, solving its “vital” issues. Having seized state property, it began to dictate to the society the rules of the game. In his letters to the Russian writer Ulitskaya, the Russian Khodorkovsky says that uneducated owners of “factories, newspapers, steamships” cannot introduce advanced technologies, organize ultramodern production, that is, they cannot develop the society. Because they have the smarts only to take away someone else's profits.
- In the nineties, the crime was convinced that it was playing some prominent role in the society. But the moment the state began to carry out its direct functions, the crime immediately, so to speak, got under the plinth. Someone went to jail, some were killed in shootings, etc. Criminality cannot compete with the state. After all, this environment arises spontaneously, filling a niche, temporarily dropped out from under state control. Criminal structures are developed when the state does not fulfill its function as an arbitrator.
While still a student at one of the scientific conferences, I raised the issue of the right of criminal organizations, the theme on which in pre-revolutionary times had been working the founder of the psychological theory of law, professor Petrozhytskyi. And after my scientific report on the Law of criminal organizations, they even wanted to expel me from the university. Professor Kozyubra spoke in my defence, reminding his colleagues of scientific primary sources. Few knew about the psychological theory of law because it was problematic and dead. The favorite was Marxism-Leninism and its right. But in my student years, Gorbachev's thaw came, and we got access to the western pre-revolutionary literature, could compare theories and make out own conclusions.
- These conclusions were not enough, if the crime was able to capture the whole of our regions. In the book “One Hundred Years of Criminology” there is the case in France, when the French could not cope with wild criminals. Having exhausted all their capabilities, they decided on an extreme measure: they appointed, as we now say, a criminal “authority” the main criminal lawyer and recruited desperate criminals into the police force. It is not about how they managed to talk them into it… They, knowing the underworld “from within”, relatively quickly broke it, and the country sighed with relief.
- You want to say that if one wants to destroy the mafia, then one should try to head it? In my opinion, the French had not had sufficiently trained representatives of law enforcement agencies. And they decided to resort to unconventional methods. Much the same way the British once appointed pirate Morgan Commander of the Fleet, and the fresh-baked Admiral sorted out the mess on the seas... In the 1990s our criminal elements laid on themselves the functions of law enforcement agencies and advocates. Until the state came to itself and began, as it should, “tighten the screws”.
Professor Petrozhytskyi used to say that the Law will always exist regardless of whether the state exists in reality or only on paper. Because a human society is always striving for justice, without which it cannot exist.
Once we started talking about the Soviet Union, let us recall the specific limitations typical of a totalitarian society. A person has some means, abilities, but cannot realize them. And what can he do if the realization is limited by ideology? Sooner or later, there will come a time when the society finds itself at a dead end, and everything will be falling apart like the Union did. Because its ideology did not suit anyone.
Let us return to the point from which we started: if we use the norms of the US Law the in Great Britain, they will work there. Because of the similarity of the English and American mentalities. But if you transfer the law from England to Spain — it will not work there.
I want to say that the reason for the war in Ukraine is the mentality and ideology. Donetsk/Luhansk community is accustomed to live by rules, when everybody is subordinated to their number one leader (a crime boss or master), and no one is trying to somehow contradict him. The West and central part of Ukraine live on different, democratic principles. Hence the confrontation of world views.
- Yes, only now it becomes clear why Yanukovych at press conferences sometimes had such a surprised expression on his face when journalists approached him with inappropriate, according to his “concepts”, questions.
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- He just did not understand why he was asked about the things that were obvious to residents of the eastern regions. He could not understand aspirations of the people living in other, not Donetsk and Luhansk, regions. Obviously, it was not so much lack of education, as lack of simple life wisdom. And it cost him the presidential cadence.
I remember I once was being assured that Yanukovych became president for a long time, as they said “forever.” I doubted whether he could even get to the end of his first term. The talkers refused to understand me. But the Revolution of Dignity in my eyes was a natural phenomenon. And when it happened, I was often asked: how could you anticipate it? What should I answer? There are physical laws and they can't be changed. The laws of development of a society, not allowing it to compress its “spring” forever, cannot be changed either. At a press conference on the eve of the execution of the Maidan, I did warn about the possibility of military actions, the use of weapons, and explained why. The journalist Natalia Sokolenko laughed in response and a colleague pushed my knee under the table, whispering, “Do not scare people!”
I proposed a way out of the situation — to organize a referendum on confidence in President V. Yanukovych. It is clear that at the moment everybody would have voted for distrust. But there were external and internal forces, who did not want to even hear about this alternative. There were also those who supported my proposal: Volodymyr Vasylenko, Levko Lukyanenko... We even held a press conference, spoke on television. But we were not heard. As for the consequences — we see them all now with our own eyes.
- To those who provoked the protests, can be attributed the former Minister of Education, who for a long time had been neglecting students' protests against his “educational proposals”. Once again, young people “trained” by him, habitually took to the streets of Kyiv, and against them authorities used batons and sticks. Well, then-off we went...
- If then they had not ordered to beat the young protesters, everything would have ended without such bloody consequences. But Yanukovych's “team” reacted to the situation the way it was used to respond in Donetsk region, believing that it was enough to intimidate the population, and it would run in all directions. It turned out the opposite. The then government officials did not know the history of Ukraine.
- They were just trying to rewrite it in their own way, by the codes of the underworld... Returning to the issue of our Constitution, do you think that it is necessary to change it and why? There must be a good reason for any changes.
- There is a Constitutional Commission under the President. It's early to speak about its work so far, because it is not known what will be offered. I have my own project, which takes into account the experience of the state, when it was functioning under the Constitution of 1996, and then — of 2004. I have studied the experience of statehood-building in other countries, our history, trying to take into account everything useful.
- And what do you propose in your draft Constitution?
The project is much smaller as compared with the previous two versions of the Constitution. Firstly, the Constitution is both, a political declaration and a legal and regulatory act. All articles should be simple and clear to every ordinary citizen. In general, only the principles should be written. The rest must be in laws. There are standards of the Declaration of Human Rights, when the people have the right to resist anyone who encroaches upon the independence, territorial integrity and constitutional order of the country. This establishes the right of the people to revolt, when it becomes clear that power is being usurped. The norms of the Constitution should be directly applicable. The principles of organization of local self-government, basic rights and freedoms are the same as in the previous Constitution (with stylistic perfection, in order to make everything clear without too much interpretation). Ukraine should be a presidential republic. But the Verkhovna Rada should have sufficient powers to control the President. Agree that 450 deputies would not be able to govern the state, it would be chaos... The President will be responsible for external and internal security; he will have a responsible for the economy Prime Minister, who heads the executive power. The military structures must necessarily be subordinated to the President as the Supreme Commander. By the way, today we have the dualism of power, when the President, in particular, offers the Commander- in-Chief, and the Verkhovna Rada has to adopt him. In this case, there is no, as they say in Russian, unity of command.
Parliament is a body to control the President and Prime Minister. I propose to elect People's representatives by the majority system when a district elects one People's Deputy. There should be a specific requirement of his residence, a close relationship with the electorate.
The judicial system should be independent from the President or Parliament. I have written in detail the main duties of the court, its powers, principles of organization and operation. I have included a chapter on the Public Prosecution Office, Defense Attorneys, who will provide justice, determine the legal truth in its process. This I have borrowed from the Anglo-Saxon legal system, where there is the Court to administer justice, there is the Prosecutor to bring charges, and there is an Attorney to defend the accused. The court listens to the attorney and the prosecutor. They are equal sides, not what we have going on today. The Court takes a decision only after hearing both sides. Justice must be three-level — the court of first instance, appeal and cassation. The Supreme Court on this project has the right to interpret the Constitution. There is no Constitutional Court as such here, because in my opinion, it is superfluous. After all, if the judge in his career has reached the Supreme Court, he already has enough authority and experience. That is, his decision cannot be questioned. Such judicial control is to protect the society from usurpation of power by both, the President and Parliament.
- And if there is the power crisis in the country?
- The project provides for a nationwide referendum on confidence in the President or Parliament. After all, we have seen the President interfering with the Parliament's work and vice versa — the Parliament interfering with the President's activity. In such a case the people has a say. A referendum on distrust to the Parliament can be initiated only by the President. If the people in a referendum support the Parliament, the President should resign from his post. That is, the one who initiated the referendum and was not supported, resigns. The same applies to the Parliament. I think this is a logical counterweight system.
If we look at the local self-government, we'll see that today we do not have it. There is an administrative-command system that existed in Soviet times, and heads of district, city and village councils work as they worked in the past, doing practically what they are ordered to from the center.
- What, do you think, should be done in the first place, to make local authorities work effectively for the benefit of the local community?
- It is necessary to solve two problems: to expand its powers and to give it the right to dispose of the funds that are earned locally.
- Yes, but it will mainly depend on the head of the local authority — on his intelligence, honesty, ability to establish self-government.
- Everything will depend on the voters. Whom they choose — that person will work. But! We do not leave this case without state control. There is a local government and there is the state government. Locally, there should be district administrations as prefects, who will control the legal order. If a representative of the state sees a local head break the law, he refers to the administrative court, and before the court studies the case, the implementation of the decision is suspended. Of course, if they commit a crime, there are state law enforcement agencies for this matter. They can arrest the offender and so on. That is, there is no problem here. It is also very important to properly use budgetary funds. Now entrepreneurs pay taxes into the general state budget and from there the funds come to local authorities. A “manageable” head will receive funds, a stubborn one — will not! Because of this, by the way, there is corruption.
- Because of this, basically, they try to change the state-territorial administration? After all, at some point it was proposed, for example, to cancel regions and to divide Ukraine into 99 districts… If I remember correctly, in 1998, Moldova, as the saying goes, had been there, had seen that and had to give it up.
- You cannot make a decision just because to someone “... it seems that it would be better”. Where is the justification, where are the arguments? For example, the French, in their time, to carry out administrative-territorial reform started from a simple principle: the center of a territorial unit must be in the place where it is more convenient for citizens to travel. If from any point on the terrain it is possible on horseback to get to the center and back within a day, it can be chosen as the center.
It is directly related to the organization of state government. And when we are talking about some changes by cancelling districts and so on, the question arises — what for? If the initiator of such changes cannot answer this question, everything is clear about him.
- At one time you were working on the principles of organization of our National Guard. Why all of a sudden? It seems to me that some people, changing the name of internal troops to the guard, and then back again to the previous name, are eager to report about some reforms, without making them virtually. Is it a trend?
- This is an interesting question to me. Why is revived now our National Guard? Under Yanukovych the Ukrainian Armed Forces were destroyed. And the new government in the circumstances of the external aggression was forced to react, to defend our country.
- Your personal opinion: for what purpose were they destroyed?
- V. Yanukovych was not engaged in the state, because he was not interested in Ukraine as such. Why was that? It's hard to explain.
- And his predecessors?
- It seems that when Kuchma was in power there was more order. But he did not pay enough attention to the Armed Forces either. Because he did not see any external threat to Ukraine. First of all, from Russia. This is the first reason. The second is corruption. The stores of military equipment after the collapse of the Soviet Union were huge, they did not give rest to various dealers, striving to sell it all and get the money. Yushchenko also ignored these issues, relying on foreign aid. True, he was going to revive the National Guard, but his opponents suspected him of an attempt to seize power and widely used this topic. Therefore, it could not be revived. As we know, V. Yanukovych was under incredible external influence. Our security forces were led by even those who did not have Ukrainian citizenship. What they had done to the Armed Forces of Ukraine is also well known.
We need a positive world experience are proven military (security) forces. But we must start from the assigned tasks. Blind copying in this case does not help.
Let us return to our law enforcement bodies fulfilling in the area of the ATO serious tasks of maintaining law and order, neutralization of terrorists, etc. When we had a problem with the violation of our territorial integrity, when the centers of separatism appeared, it became clear that it was necessary to take urgent measures. We had only internal troops with more or less established control, and “units of self-defence of the Maidan”, which included many veterans of the Armed Forces of Ukraine. The decision that was taken, I would say was the only wise decision in that situation: to unite them all in the National Guard. They, however, lacked training because they did not have someone to organize it.
- Once I heard from the Americans that after the Second World War, they carefully studied the experience of the Ukrainian Insurgent Army, and later it was used by the Rangers during the Vietnam War.
- The Americans studied in the same way the experience of German special forces of the Second World War. They did not disdain such an experience. And rightly so. It is a combat experience, America is a relatively young country, and it needs to keep its troops “at the appropriate level”. That is what pragmatists do, including the Americans — the first among them. Who now knows that the Japanese once adopted the experience of our Zaporizhzhya Cossacks?
- Is it any comfort to know this?
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- Yes, we can only remember. Especially at the time when Russia is destroying the built with so many difficulties system of global security. And even the Japanese are forced to turn their Self-Defense Forces into the Army to protect their national interests. Putin has opened “Pandora's box”. The situation in the world is changing; the parties do not comply with signed interstate agreements. When the Budapest Memorandum was being signed the situation was different, but it has been “put under the tablecloth”. This is the prose of life... And when there are attempts to prove that the memorandum is not a binding law, I have no words for comments. It is clear that the re-division of the world order is coming, there will be some new system. What system? Putin, having annexed the Crimea, has demonstrated that it is already possible to do so. But tell me, where is the guarantee that someone will not want to annex Kaliningrad region in the same way? The Germans now have the right to assert that East Prussia should belong to them! And they can take it into their own hands when the collapse of Russia begins. The same “picture” will be in the Far East when its islands will be claimed by Chinese and Japanese. All this will create tension, but the world community will need to take care of the new rules of coexistence!
- Russia, interfering in the affairs of Georgia, explained that it was supporting the right of peoples to self-determination. This is its “logic”. When we consider the Crimean events, we understand that it is annexation. An unprecedented event in the history of the present world.
Preparatory work for the annexation of the Crimea from Ukraine had been carried out for long time and thoroughly. Spontaneously such an operation can't be conducted. Once I had to get acquainted with the work of the Russian politician Yashin, who states the following: after Putin's annexation of the Crimea and attack in the East of Ukraine, Russia will be short-lived. After all, this will undermine the Russian economy, its state foundations; this will end in internal conflicts, which will destroy the country.
- Personally I think that Russia, legally and illegally, will do anything to avoid this. And if it falls apart, it won't be so soon and so fast as some are predicting it.
- It has a resource-based economy. And it is dependent on global developments. For example, it tried to destabilize the Middle East to keep oil prices, to build gas pipelines to sell its gas to new customers. But it does not have the strength to achieve the desired. That's why it will not be able to dictate the conditions in the world markets.
When we speak of military power, it must be borne in mind that apart from funds, the Russian leadership needs those who would implement the Kremlin's plans. And Russia has great problems with its population — alcoholism, drugs, intractable diseases. Consider a recent case in Armenia when a Russian soldier shot dead an Armenian family. The soldier's diagnosis was oligophrenia. Such people can't serve in the army. He had been called for military service not from good life! And who is fighting against us in the East? Khakassians, Buryats… They have no respect even to the Slavs citizens who serve with them in Russian military units. Add warring against us representatives of the peoples of the Caucasus. They will never have mutual understanding with Russian citizens, and all this is prerequisites for an internal conflict in the Russian state.
- Today it is not easy to create our territorial defense units, which will include citizens of different nationalities and religions.
- If we are talking about our reserve, it is necessary to take into account both our own and foreign experience, which we have already mentioned. We need to choose servicemen based on psychological tests and verification of their loyalty to the state. Only the most reliable can be included into the reserve, which will defend the state.
I have already written about this in our press, shared my thoughts. I think we need literature describing approaches to this important work. And we need a National Guard training center for training the military. We have links with foreign experts who are ready to help us. There are armorers, their skills should be used for the benefit of our military. It is important for the National Guard to be headed by an authoritative person. He should not be a demagogue but a politician in the good sense of the word.
- It is clear that the real authority of the commander depends on the success of his subordinates on the battlefield. The defeat of the enemy elevates him to such a social level of which politicians can only dream. He is listened to, he is noticed in the political life of the state. He is bewared of. These examples are well known in history. You mean this, don't you?
- In this regard I would say that appointments in the military leadership are very eloquent. Imagine that one of our soldiers will successfully complete the operation in the ATO. His authority will eclipse all our politicians. And he can compete with them for appointment to high public office. Here you have the role of the military in the fate of the state, which in the past two decades had been ignored, claiming that Ukraine had no enemies.
The conversation was recorded by Oleh Makhno.
