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Prejudicing justice – Odessa (Kivalov) style

June 1, 2015

A few days ago an entry was published relating to the then imminent (and now occurred) appointment of  Mikheil Saakashvili, and a few predictions as to his anticipated priorities – all of which he has confirmed in various statements since appointment.  10/10 for this blog, which is why you read it of course!

Within that entry is this sentence – which was not and afterthought or filler – “There are then also people such as Sergey Kivalov to deal with.”

Mr Kivalov MP, is a thoroughly nefarious individual – but a wily one.  He is also very pleasant in conversation and far brighter and politically astute than many give him credit for.

Since the fall of his long-term friend and associate, former President Yanukovych, Mr Kivalov has been skating on ever thinning political (and social) ice.  No matter how thin that ice be, nor the rate at which that ice continues to thin, Mr Kivalov is still currently capable of pulling off a triple lutz and landing it unscathed.

This is in no small measure due to the fact that “lustration” in Odessa was very much a non-event, consisting of low hanging fruit – those corrupt officials close to retirement only, more or less.  Thus the “old guard” are still very much in situ, and they all have long-standing associations with the likes of Mr Kivalov.

For Mr Saakashvilli, institutional resistance there may very well be – far greater than the powers invested in him as Governor can address.  How long he will remain Governor before seeking real power in government is an open question.

Currently, Mr Kivalov is fighting action to have one of his interests, the Odessa Law Academy of which he is President, exempted from State Fiscal Service inspection.  (Indeed do not be surprised if he submits a draft law proposing the exemption of all seats of higher education to be exempted from SFS inspections at some point.)

The reason for this legal action relates to allegations (with more than a little substance) of misappropriation of State property and the embezzlement of Odessa public funds.  Quite possibly the tip of a very large iceberg considering the scale of “profiteering” made by those close to the Yanukovych vertical – and Mr Kivalov was certainly very close to it.

Thus issues are at court – both in Kyiv and in Odessa.

Proceedings in Kyiv have yet to really get underway, for Mr Kivalov and defence team fail to turn up for hearings – understandably so, for Kyiv is no longer as likely to provide “the right outcomes” in the absence of influence once held by his former Party of Regions.

Odessa, however, is a different story.  The Judge from the Odessa Administrative Court that is presiding over the case is Judge Yaroslava Volodimirivna Balan – Number 3 on the link above (complete with telephone number and email address).

The problem occurs, that Yaroslava Volodimirivna Balan, is also an Associate Professor at the Odessa Law Academy – the same law academy of which Mr Kivalov is President and is subject of the proceedings.  She has been employed there as such since 2006 as the Odessa Law Academy website clearly states:

“Балан Ярослава Владимировна – к.ю.н., доцент: родилась 10 июня 1982 года; в 2002 году закончила Одесскую национальную юридическую академию; в 2005 году защитила диссертацию на получение научной степени кандидата юридических наук на тему “Договор найма (аренды) жилья по гражданскому законодательству Украины”; сфера научных интересов – найм (аренда) жилья, обязательственное право, контрактное право; имеет свыше 20 публикаций; в должности ассистента кафедры работала с сентября 2004 года, с сентября 2006 года работает в должности доцента кафедры.”

An entirely inappropriate Judge to hear Mr Kivalov’s and the Odessa Law Academy case quite clearly.  She has been an employee of the academy, as well as an associate and colleague of Mr Kivalov, for almost 10 years.

A wise and learned Judge would declare their inability to hear a case given their obvious conflicting, and perhaps even vested interests in this case.  Indeed any Judge with the slightest integrity would have graciously removed themselves from hearing this case to remove any doubts over the verdict or their own standing.

The public therefore, may draw the conclusion that Judge Balan has not the integrity required of a Judge.  Associate Professor Balan’s students may also draw that conclusion.  It is to be hoped she does not lecture upon ethics or impartiality as part of her course input.

Undoubtedly Mr Kivalov has used his influence – be it bribery or kompromat – to insure a favourable Judge to hear his case – and Judge Balan prima facie could not fit the bill any better.

The outcome of the Odessa proceedings seem almost certain.

Those who have followed his political career and business interests, naturally expect nothing more from Mr Kivalov.  For many, the thin ice that he skates upon cannot thaw quickly enough.

Judge Balan however, is answerable to the judicial hierarchy which can end her judicial career – and that disciplinary hierarchy is undergoing reform in Kyiv.  Once reformed, it will need to prove itself.  Disciplinary actions will need to be seen to take place.  Heads will need to roll where transgressions occur.

That this potential/probable mockery of justice continues to occur so blatantly in Odessa without the intervention of the judicial hierarchy – if it is to be kept in house, and thus by intervening provide a little public faith in the reforming judiciary, or without indirect intervention by others who may infer privately yet robustly to the judicial hierarchy that the replacement of Judge Balan now will spare investigations as to how and why it was allowed to happen later, with expected resignations from those that allowed it to happen after said investigations are complete – is really rather disheartening.

It sends a far better signal to the public when dealing with this pro-actively, than to await the scandal and public outrage, forcing the matter to be dealt with reactively.

Who can or will intercede on behalf of the public of Odessa remains to be seen.

Upon “unveiling” Governor Saakashvilli only 2 days ago, President Poroshenko who was born in Odessa Oblast, stated he would keep a watchful eye upon how the Oblast developed.  It is not going to develop very quickly when Mr Kivalov can still pull stunts like this, and there remains judges willing to prejudice themselves on his behalf.

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