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The world knows Spanish lawyer Carlos Castresana for his work in cases against Chilean dictator Augusto Pinochet and many of Argentinian military junta top actors. From 2007 to 2010 he leaded an unprecedented International Commission against Impunity in Guatemala. This Latin American country was so stricken with corruption and organized crime that it just couldn’t beat it on its own. As Guatemalan then-Vice President Eduardo Stein said, “Asking the justice system to reform itself was like tying up a dog with a string of sausages”.

Castresana showed different approach. As a result, country’s ex-president, judges, top police officials and dozens of MPs got convicted. After the long time of absense, law became influential in Guatemala.

In Ukraine Castresana is known as one of the candidates to audit the National Anti-Сorruption Bureau, NABU. Despite the support from international organizations and Ukrainian civic society, his candidacy isn’t favored by Ukrainian top officials. Though, Castresana is still connected to Ukrainian anti-corruption processes — as a consultant. Last week in an international group of experts he signed a cooperation agreement with Parliamentary Сommitee on Fighting Organized Crime and Corruption. There also were several of meetings with Ukrainian politicians, businessmen and civic activists. He also found a time for an conversation with INSIDER, in which he explained, how a relatively poor European country can make anti-corruption fight a success.

 

— Here in Ukraine you've just had many different meetings, specifically with our top politicians. They probably say the right things, but many of them have eventful and contradictory past, and sometimes present as well. It’s clear that if anti-corruption mechanism will work effectively, a lot of these people get problems. So it seems that really working anti-corruption policy is not what they are interested in. Conditions like that are common in many countries. What can be done under them?

— You need to make coalitions. Any changes will always be against someone, it's universal. So you’ll get a resistance: sometimes from the government, sometimes from the private sector, sometimes from political parties or religious institutions. But usually they are actively supported by civil society, by media, different political partners. There are many specific cases, in which you can use, for example, contradictions between private sector and the military. With everything you propose, you need to have some supporters — and then, maybe, you can counteract the resistance successfully.

The question is not to be naїve. Just think: okay, this change will provoke benefits for who? And negative consequences for who? Then make allies.

— So you need to behave like a politician?

— Yes, this part is political. It’s not a contradiction. When you are going in court for one case — this is 100 percent professional, legal and you have to be very serious and build the case that is strong enough to get the conviction. But when you propose a reform of legal institution — you are a politician, and you need political support. Or the foreign support — sometimes it’s the US, sometimes it’s European Union, the Council of Europe or the diplomats of different embassies. They are good partners as well.

 

— Romania was a success story in fighting corruption among the top officials. Presidents, ministers, top businessmen — hundreds of influential went to jail. But with time the state began to effectively limit the power of anti-corruption bodies. And lately Monica Macovei, one of the creators of Romanian anti-corruption Directorate, their main anti-corruption organ, said that ”state fight against corruption” is a contradiction in terms, because people in power will never fight corruption to the level where traditional order of things gets endangered. What can you say on that?

— It isn’t true. Obviously, yes, corruption is a part of the system. It exists in any capitalist system — in a sense that there is a request for a profit which permits to do many things that shouldn’t be done. But this contradiction can be solved. The question is whether you have good, committed, independent professionals. You will never eradicate corruption — but you can, at least, get some deterrent effect. Because what makes corruption widespread? The feeling of "candidates" to become corrupted that there is any kind of threat coming from the rule of law. So when they make the evaluation of cost or risk and benefit, the benefit is higher. The question is if we are able to raise the risks. If we can, it will make a deterrent effect and not so many people will become corrupt, because they will be scared in advance of the consequences.

It was the case of gangs confrontation, and people got sentences up to three hundred years of imprisonment. So everyone understood the message: organized crime is not permitted anymore

For this to start you need a few cases that can be called paradigmatic and have a demonstration effect. 2-3-4 high-level people must get their deserved convictions. And then all others will see that ”fight with corruption” is not just talking. That there are real consequences.

This is what we’ve done in Guatemala, with several different cases. One, very important, dealt with organized crime. It was the case of gangs confrontation, and people got sentences up to three hundred years of imprisonment. So everyone understood the message: organized crime is not permitted anymore. When we arrested the former president and extradited him to the US — it was another powerful message. Then a very influential businessman was arrested. He had been over the law forever, but after that day he was like any normal citizen. Another ones were high-ranking member of military, high-ranking member of the police. Politicians, obviously... So you send the message that nobody is above the law. The other thing is that in this kind of missions, where you are an icebreaker — you cannot afford yourself failures. So when you bring some important guy to the trial, you need to ensure that he will get convicted.

— For that you need reliable courts. Which, in corrupt countries, is a problem.

— Well, this is a part of the job. We had to do this also, to make some reform in the national police, in judiciary. Only after that we began to gather success.

The meeting with Ukrainian Parliament's anti-corruptopn committee

— Ukraine has the same problem. We have NABU, which works quite effectively, and then we have courts that just let obviously guilty people go. What to do with that?

— Well, maybe the judicial reform must be the first? This one is crucial here: judges are essential. Otherwise all your work will end in nothing.

This reform can be done through creating a special anti-corruption court. Or it can be an ordinary court with selected judges, with proven reliability and independence.

It's also important to keep in mind that honest people exist everywhere. In every country, in every institution there are people who are willing to do the job of serving their country, serving the society, the people. The challenge is to find them and to build a friendly environment for them. Many of these high-ranking officers in the judiciary, in the prosecutor’s office, in the police, in penitentiary system — they don’t do the job because there are no conditions. People are discriminated if they behave differently to the majority. So you need to make clear that the honest people will be supported and that the bad guys will be persecuted. Then the good ones begin to do their job.

In case of every Ukrainian judge with 20-30 years of experience you can quickly see very clear who he is — because his work speaks for him. You easily can say whether he’s reliable as a professional or he’s politically or financially influenced

In Guatemala the judiciary is independent, you can’t just go there and make everything how you like it. So we waited until 2009, when there was the renewal of the Supreme court and of the Courts of Appeal, and there was the time to say: ”this candidate doesn’t fit, and this one, and this one too” — and they got fired. How we decided on each one? Just looked through the biography. In case of every Ukrainian judge with 20-30 years of experience you can quickly see very clear who he is — because his work speaks for him. You easily can say whether he’s reliable as a professional or he’s politically or financially influenced.

We used a provision in a Constitution of Guatemala, which says: ”in order to be a Magister of the Supreme Court, you need to have a recognized honorability”. We made this an objective and defined what honorability means. It means that you have a doctoral thesis, there are cases that you've solved flawlessly, lectures you’ve given, articles you have published. After that audit it's possible to say: "This person is definitely honorable, and that one may be as well, but his honorability isn’t generally recognized. So he must leave". By the way, you can apply this to not only judges, but to any profession.

At the meeting with former Prime Minister, now active opposition politician, Yulia Tymoshenko

— Which is more important in anti-corruption fight, laws or teams?

— One can’t do without another. You need to have a legal structure that supports your work, that gives you legal capacities and tools. This is essential. At the same time, it’s also essential to have a well-trained and committed team. Otherwise you won’t win.

In Guatemala our team included near 200 people from 27 countries.

— Why so diverse?

— It’s the United Nations project, so there could easily be 40 countries. UN system includes 200 countries, so it’s understandable that people apply from everywhere. A good part of the team were local professionals, they knew the field very well. But we’ve also had very good police investigators from Chile and Uruguay, very technologically advanced investigators from Sweden, Swiss experts in money laundering field. Very different people with different backgrounds — but at the end of mission’s first year we have formed a very skilled, well-trained and well-coordinated team. And shortly after that the results followed.

For example, before us there were no serious money laundering investigations in Guatemala. We brought a specialists and they worked very well. We also brought the tools — for example, witness protection. Local government had a program of witness protection, but it wasn’t a serious one, in a sense they just paid cheap hotels in downtown and this was it. The danger remained. It must be done the other way: you need to hide people well, sometimes in faraway countries, you need to change place where they live every month or three months... This isn’t cheap, but when the potential important witnesses see that they will be protected and their families will be safe — they start to talk more easily. Which is a big advance.

You need to hide witnesses well, sometimes in faraway countries, you need to change place where they live every month or three months... This isn’t cheap, but when the potential important witnesses see that they will be protected and their families will be safe — they start to talk more easily

— Is CICIG experience universal? Would it be useful in other countries, given a chance?

— Partly yes. In a sense of a partnership, of a co-responsibility between local authorities and international community — it’s a very good idea, effective way of working. But, at the same time, it can’t just be copied to another country: you need to adapt it, especially to the legal framework and to political and social circumstances. With careful and well-thought adaptations — yes, you can succeed.

— After years, several top officials were detained — like judges, army generals...

— Former president, acting president...

— But is this experience sustainable? While working in Guatemala, you've said that people there, in that poor country, got the ray of hope. But what a ray means for a constantly cloudy sky?

— The main problem in Guatemala was the number of violent deaths. All of the Central American countries are violent, but Guatemala topped this list. They had a rate of 46 murders for every 100 000 inhabitants a year — like in a place where a war is going on. After 10 years of work the number has reduced to 27, which means almost 50 per cent. It means that the rule of law is working and people don’t have the temptation to kill each other for anything. They would rather make a complaint and the court of justice will solve their problem with the legal tools. And this is an enormous advance.

 

— Is there any point where you can say: ”Okay, it's fine here already. Now it's the end of my job”. Or there is no end in anti-corruption fight?

— Probably, there is no end, but at the same time there are clear signs that you have achieved your goal. Because you do not improvise: you have a work plan, you have strategy — so you know. At the same time you can’t end corruption, because it's impossible to put all bad guys in jail. You’ll never have that much time or budget or people. But that is not really necessary. The necessary thing is having this demonstration effect with good key cases that can show the society that the change has come.

— This is your second time in Ukraine, so you already have some image of the country. Let’s imagine you are the therapist, and they like interesting cases, unique patients. Can Ukraine be named unique in some way, or it’s rather a common case of corruption in a developing country?

— The case is unique because of geopolitical and territorial circumstances. In some ways they are positive — for example, the level of violence or of organized crime here is much lower then in Central America. But at the same time, politically with the Crimea and some other issues it can be more complicated.

General situation, though, is quite clear and you can see in advance, what the resistance will be and where support will come from. Knowing this, you can build a work plan with a clear idea of what you want at the end of the day. So you want what? Democratic rule of law? A country, where controversies are solved with some guarantees for every party? You can get that. Ukraine isn’t a very hard case. It’s quite a developed country with high level of education, so you will find professionals easily. There is no problem with capacity. What you probably don’t have is political will, but the political will can be built. The question is building the forenamed coalition, lobbying groups that are able to remove resistance.

What Ukraine probably doesn’t have is political will, but the political will can be built. The question is building the coalition, lobbying groups that are able to remove resistance

By the way, resistance is common everywhere. You can go to all these democracies — let’s say, Denmark. And you will find a resistance to some anti-corruption changes there. It’s human to be like that.

So all you need is a clear strategy, because you need to have a very clear idea. And to be flexible to circumstances. I don’t think Ukraine is in a desperate situation. Yes, there are some big problems and there will be more as you advance. It’s not that you create problems, but you raise the problems that are hidden, that are not on the agenda today. They will be on the agenda tomorrow, but I believe you will solve them as well.

There are far worse ”patients”. Some countries in Africa, in Southeast Asia... In Central America there is a lot of illegal weapons, so the violence is very high which makes all the things harder. And your problem is just old institutions that oppose the reforms. Not a very big deal.

Anton Semyzhenko, INSIDER. Pictures provided by the organizer of anti-corruptioners’ visit to Ukraine — European Union Anticottuption Initiative, EUACI.