It sounds like absurd optimism: fighting corruption in Ukraine is “complicated, but it’s not desperate. It can be perfectly fixed.” But those are the words of lawyer Carlos Castresana, public prosecutor of the Spanish Supreme Court and expert on combating entrenched graft.
Chalk it up, perhaps, to Castresana’s experience. He has seen worse. In 2007, he arrived in Guatemala as the United Nations-appointed “Commissioner Against Impunity” in the country. Back then, the Central American country was a place where getting away with murder was exceedingly easy and violent criminal groups had infiltrated the justice system. Only two of every hundred serious crimes were solved in Guatemala.
Castresana’s work there led to the prosecution of around 150 corrupt officials, including former President Alfonso Portillo. Seven particularly high profile convictions under Castresana’s watch helped to signal to the Guatemalan public that justice was possible.
Castresana has now been nominated to serve as an auditor of the National Anti-Corruption Bureau of Ukraine — a job he’s prepared to do if selected, he says.
Hromadske sat down with Castresana during his visit to Kyiv earlier this month to discuss fighting corruption, building public faith in reforms, and the lessons from Guatemala that can be applied to Ukraine.
How would you evaluate Ukraine’s anti-corruption efforts so far, and what needs to be done to make real progress against corruption?
I am learning. I am beginning to understand the effort that has been made since Maidan until today. I think it is a work in progress. I can see that it is a very incipient evaluation – some positive steps, some resistance. This is the logic and contradiction that you always find in these transitional processes. I think that some things have to be improved, some other things are working in the proper way. But, I have expectations that the final results of this process will be successful.
Photo credit: Oleksandr Nazarov/HROMADSKE
What things do you think need to be improved specifically?
I could not say. Probably at the end of this week, we will have - we as in the group that has just been created and met for the first time yesterday, this advisory board for the committee of the Rada. Some members of the group are more experienced in the reality of Ukraine than I am myself, but I think that the reform of the judiciary, for example, I don’t know if the creation of the new special court, or the creation of chambers in the ordinary court already exists, the promotion of a more successful strategy for Prosecutor’s office, the protection of the initiatives of the special agency, NABU – these kind of things. But probably some legal changes are still pending, more political will or more consensus among the political parties. There is a long list of things that we have just begun to listen to as proposals from the different political parties, we were meeting yesterday, and we need to evaluate and elaborate about this proposals and when we make our recommendations, we will have a more clear idea. Now it’s a very preliminary approach to the situation. The situation is complicated but it’s not desperate, it can be perfectly fixed.
Let’s talk a bit about this anti-corruption court and the idea that it should be created. Ukraine’s Prosecutor General has opposed the creation of an anti-corruption court, instead he proposes these anti-corruption panels in the existing prosecutorial system, in the legal structure that exists. Does Ukraine really need an anti-corruption court? What’s your opinion on that? How critical is it? Do you see progress on it?
I don’t have a clear idea at this time whether you need a new court or you can use the structure of the judiciary that you already have. But clearly in one way or another, the important and essential thing is having independent and reliable judges. The problem is not formal, this way or this other way, but the problem is substantial: do you have reliable independent judges that can be granted freedom to decide the cases of corruption as people are expecting and providing a deterrent effect, because they will serve justice and show that justice is served, that this is what Ukraine, in a sense, needs. I was saying today, what Ukraine needs, in my view, is a demonstration effect, a turning point that establishes clearly that what was permitted with impunity before will not be permitted anymore – a few important cases where convictions are achieved and shown that the situation has changed and this message has been spread all over society. This is what is really necessary. The way of agreeing this with this court or with a new court is actually, I think, secondary. The question is having reliable judges.
I think a lot of the public would agree with you that a demonstration is needed. A couple of months ago, last month I think, the National Anti-corruption Bureau published a report that showed what it achieved, what it’s done, and so far there have been 15 cases that ended with criminal sentences, but most of these were fairly minor corruption figures and the public knows that corruption is a very,very persistent problem in Ukraine. What needs to happen for to actually be guilty verdicts, for there to be a significant demonstration of the effect of anti-corruption work.
I don’t know, I cannot tell you [what it’s like] in Ukraine, but let me offer you this experience from Guatemala. For this demonstration effect, we had to bring to trial seven high-impact cases, very important cases, not minor criminality but high-ranking officers in the military, in the police, politicians, businessmen, people that are usually beyond legality, bring them trial and get convictions, in seven cases. And then things began to change.
Earlier this year, Ukraine passed a law that requires anti-corruption organisations to declare their assets, just like civil servants or politicians. Many non-governmental organisations feel that this could be a political attack, it could be used to impose political pressure on anti-corruption actors. What do you think? Do you think that this imposes political pressure?
Probably yes. Now the question is not the difference between civil society organisations of human rights and anti-corruption groups, or others members of society, the question is between public and private. Public servants, public officers have some duties that obviously includes transparency in their income, assets and property.
This cannot be demanded of private citizens. Whatever they are, businessmen or civil society organisation, so I don’t think that these human rights groups or anti-corruption groups must have other duties different from the duties that normal citizens have. You pay your taxes and obviously your assets are transparent for the tax revenue agency, but not the public. That’s a completely different thing. If you are an NGO or a private company, you have to deal with some formal obligations about your taxes, about your accounts. This kind of a report for the authorities is a different thing than making them public. I don’t think that the process of demanding from civil society organisations the same things that you are demanding from public officers will work. I don’t know any precedent from democratic countries, the legal systems are different and everyone understands the rationale. If you are a minister of the government, you have some duties for citizenship that you would not have if you worked in a private company, like as an executive, a professional.
The struggle to establish an anti-corruption court, for that matter, nominating auditors for the National Anti-corruption Bureau, has been very difficult. It hasn’t seen so much success recently. Do you think that this indicates that the authorities are afraid of the anti-corruption structures that they’ve created? What or who do you think is the biggest obstacle to fighting corruption in Ukraine?
I am not that familiar with the situation in Ukraine to give you a proper response, but in general, I would say that these kinds of changes always bring resistances. So when you bring in change in the sense of more transparency and more social activity, participation of citizenship, there will always be resistance. Any change of this kind that you bring in, will have people getting benefits and will have people suffering damage. These people suffering with damage will oppose it and it is part of the logic of the functioning of any democratic society,the question is building a partnership, coalitions that are for the changes that society needs and the changes will come sooner or later. There will be political resistance, there will be, there always is.
Photo credit: Oleksandr Nazarov/HROMADSKE
You were proposed as one of the potential candidates to serve as an auditor of the National Anti-corruption Bureau and many people feel that the process of electing these auditors has become very politicised. Would you be willing to take on this role if selected and to do this work in spite of the political passions surrounding it?
I think so, because I do not have any connections to Ukraine so I have no interest, I have no property, no relations to any political parties. The first authorities I met in Ukraine began yesterday, so yes, it can be done. The resistances and the pressure and the lobbying will always be present and it happens everywhere. The question is not to make a scandal but to say that I am here to do this, and I will do it. The resistance can make it more difficult, it can take more time, but it can be done. This audit of NABU is not a negative thing in itself. Any democratic institution has to be transparent, it has to be reliable, it has to be responsible before anyone, there is an oversight necessary in any democratic society, so it can be done. The question is doing it in an objective, professional manner, not with political motives hidden behind, and not with the purpose of destroying the institution that it just beginning. The first information that we are getting is that it is performing very well.