Two texts about the specifics of the Ukrainian model — the “right to imprisonment” and about the role played by what we are accustomed to calling “political opposition”
The activity of the Donetsk authorities has been marked by unprecedented arrests and imprisonments of senior and not so senior officials. Recently, the Prosecutor General released figures and details about criminal cases opened against various figures from the previous administration. The numbers are impressive. These arrests can well be called mass arrests — Ukraine has never seen anything like this.
The Mechanics of Imprisonment
“The right to imprisonment” is one of the main economic mechanisms in Ukraine and similar countries. Opening criminal cases is a legitimate and respected method of “competitive struggle,” and if the matter comes to actual “imprisonment,” this means the conflict has moved from the civil plane of economics to the personal level. It is difficult to find a businessman who has never been threatened with a criminal case.
Our officials, as is well known, are the same businessmen, often in the literal sense of the word. The criminal cases with which they threaten “ordinary” businessmen are either a means of extracting resources for their own “business,” or, for the outright lazy — simple extortion and racketeering.
As we can see, the right to open criminal cases is a very valuable service. Therefore, in our country, almost all agencies and all officials possess it, including the cleaning ladies of the Ministry of Culture.
For the value of the service to remain high, its effectiveness must be demonstrated, that is, someone must constantly be imprisoned. Usually, “petty thieves” in the form of teachers or doctors are used for this purpose, whom a regiment of OMON heroically arrests for a bribe of 100 hryvnias with the support of aviation, tanks, and artillery. From an economic point of view, regular imprisonments of innocent people are a kind of investment in property.
The Social Contract
The reason for the existence of social phenomena is human activity. Simply put, if something exists, it is because someone uses it. Our society is based on the right of the strong to take from the weak and the right of the weak to steal from the strong. One might assume that “the right to imprisonment” plays a restraining role in this. This is a kind of mechanism of “social justice” ensuring stability. You can rob as long as you like, but nothing makes you invulnerable to “the right to imprisonment.” In itself, the right to imprisonment, like nuclear weapons, is a kind of restraining social factor. In reality, few people, especially among officials, actually end up in prison. Usually the matter ends with the opening of criminal cases or even the threat of such an opening. “Imprisonment” is both a weapon of attack and a weapon of defense. Everyone knows this, and practice constantly confirms this knowledge. Therefore, “the right to imprisonment” is the most important part of our social contract (see articles 4, 5 of the “real constitution”).
I specifically speak of a social contract to emphasize that “the right to imprisonment” is not only a legal or administrative phenomenon, but, above all, a social phenomenon, necessary for this society here and now. Let us note that “the right to imprisonment” is based primarily on the phenomenon of “economic crimes,” which, from a legal point of view, are absolute nonsense. This is a typical “crime without a victim.” The state declares itself the victim, begins prosecution through state agencies, and resolves the case in a state court. Generally speaking, this is called “lawlessness,” since one of the fundamental principles of law states that no one can be a judge in their own case.
So — if “the right to imprisonment” were not socially important, it would have been eliminated long ago along with the relevant legislation. “The right to imprisonment,” rooted in the rampant legal positivism of communist times, would be powerless against serious arguments, and with political will, it could easily be gotten rid of. But over twenty years of independence, I have never heard anything against this right from the numerous human rights activists and democrats. It has never become a campaign issue. Moreover, in elections, candidates who essentially promise to expand and deepen “the right to imprisonment” always receive enthusiastic support. It would seem that millions of people suffer from “the right to imprisonment,” the economy suffers, but, as we can see, they are ready to suffer further for the advantages that this right, as they think, gives them.
Political or Economic?
Thus, “imprisonment” is part of the economic process, and usually its victims are businessmen. Officials, who are also a very important part of the economic process, are co-owners of the laws and therefore fall under “imprisonment” less often. However, it is still the same process.
Usually, when a major official is charged with a criminal case, talk begins of a “political” subtext. Here it is important to understand what exactly is being discussed and what things actually look like.
If by opponents we mean people who propose to do things that differ from each other, then, of course, in our case it is not about political opponents. With political opponents, our system fights not with repression and imprisonment, but with more effective measures. People who were opponents of the authorities in the early 90s formed parties. However, the political machine was organized in such a way that it did not need parties. First of all, because the elections were majoritarian. Everything was decided by money, personal connections, and administrative resources. Then, when parties were included in the political process, the system created conditions such that its political opponents were again outside the market. This was done, above all, through the conditions for registering and maintaining parties. During the era of majoritarian elections, it was quite easy to maintain parties; during the era of party lists, this became practically impossible. To register a party, you need to have good connections along the “administrative line,” and maintaining a party even outside of a campaign is simply beyond the means of ordinary people. Thus, in order to fight the system, that is, to be a political opponent, you must first become part of it. It is clear that the meaning of the fight disappears after that.
Thus, in the case of imprisoning officials, it is not about political motives. On the contrary, our entire history shows that the majority of “oppositionists” became such only after they behaved too provocatively toward their superiors. The brightest example is Palyvanych (Pavlo Ivanovych Lazarenko), who became an “oppositionist” when the threat of imprisonment hung over him after Kuchma dismissed him from the position of prime minister. With him was a certain Tymoshenko, who, realizing that things would end badly anyway, began an independent career, first betraying Palyvanych and receiving the position of vice-prime minister for it. Then she quarreled over energy issues with Medvedchuk and Surkis, who were then in power, which served as the beginning of her career as a flaming revolutionary.
However, I am far from claiming that the imprisonment of officials, and especially the current ones, is, so to speak, merely a distant “settling of scores” for us, and that the parties simply “quarreled over something.” This opinion dictates a certain attitude toward what is happening, which, from my point of view, is dangerous, as it works for the system. Let Tymoshenko be no different from Yanukovych, but this is not a reason for the complete usurpation of power by one side. As long as people like Tymoshenko exist, there is competition between centers of power. And as long as there is competition, there are at least some chances for real political opponents. After all, it was precisely the competition of centers of power in the Middle Ages that made freedom possible in Europe.
Turchynov and Yulia
We have spent so much time describing “the right to imprisonment” to now say that the current mass arrests and criminal cases are a violation of this right. The thing is, when it comes to high-ranking officials, “imprisonment” in its classic and socially useful version is the last argument in long and, as a rule, behind-the-scenes clarifications of some kind of relationships connected with the struggle for positions, influence, or business. That is precisely why Yuschenko did not imprison the violators of electoral law in 2004. From the point of view of elite practice, these people did nothing such as to warrant their imprisonment.
In our case, there was nothing like that. Today it is about an attempt, through the mechanism of imprisonment, to get rid of a political competitor (I repeat — not an opponent, but a competitor).
I am afraid that this venture will not only not lead to the results desired by the Donetsk people, but will lead to unpredictable consequences.
Let us stop on three points. The first is the very idea of imprisoning, if not Tymoshenko, then at least Turchynov. Everyone knows that major officials are being arrested now in order for them to testify against Turchynov. Let us assume that the Donetsk people succeed and they imprison Turchynov and even Tymoshenko. What will this change? As long as Tymoshenko is alive and has the desire to fight — absolutely nothing.
The Donetsk people still have not understood what Tymoshenko’s secret is. They can imprison all her associates and take all her money, but this will change nothing, because Tymoshenko’s secret is demagogy. She simply successfully works with that confused stream of embittered consciousness that lives in the heads of many Ukrainians. Her strength is in her voters. As long as there are voters ready to believe that someone will miraculously solve everything for them, Tymoshenko will exist, and she will win. Worse, the elimination of Tymoshenko from the arena opens the way to new, young, and hot followers. They have an impressive example before their eyes, and with some talent, there will always be those willing to follow it, and most likely from the ranks of the Donetsk people themselves.
Chernomyrdin
The second point is the attack on Chernomyrdin and his people. Here the Donetsk people show the same misunderstanding of reality as in the case of Tymoshenko. Obviously, their current task is to gain full control over the city, which should ultimately result in merging the positions of head of the administration and mayor. Let me remind you that Kuchma once eliminated Omelchenko and tried to make the head of the administration the main figure, but he did not succeed. The thing is, Ukraine is a backward country. The typical social landscape of a backward country is a rich, relatively speaking, capital and a desert around it. Life in the capital in such countries is a kind of reward for diligence. The very content of diligence should no longer interest anyone. It does not matter which tsar the official served and what relations that tsar had with the current tsar. This should not change anything, otherwise the reward will be unattractive and there will be no point in diligence. The capital — that is, the reward for service, must be outside this service. This means that in Kyiv there should be its own mayor and, on the contrary, there should be no head of the administration.
What an Example for the Youth!
The same can be said about the incentives that make people become officials or “politicians.” The main incentive is that this “work” provides the opportunity to obtain status, fear, and respect from those around, as well as substantial material prosperity. It is understood that anything can happen during a career, but there are certain rules in it, including “the right to imprisonment.” If one uses the rules wisely, it is quite possible to reach retirement while keeping what was stolen.
With mass openings of criminal cases and imprisonments, the Donetsk people are violating these rules. After all, a question arises — what now, if “the right to imprisonment” is used arbitrarily and in relation to people who, according to all the concepts of the elite, are not guilty of anything? Essentially, the authorities are now carefully violating the social contract. This will definitely have consequences, unpleasant and unexpected for this authorities.
The Donetsk people, as is well known, are far from a homogeneous team. They came to power with the support of many different groupings. I think these people are now seriously thinking. For now, the Donetsk people are strong enough. But at the first major failure, they will be surprised to discover that they are completely alone.