by Vadym Valko, originally published on Liga.net
On February 10, director of the NABU Artem Sytnyk stated that Pechersk District Court of Kyiv may soon make the decision on transfer of the case regarding misappropriation within PrivatBank by former owners.
What does it mean? That means that the case of PrivatBank can be added to the list of cases that subjects of investigations together with Prosecutor General Iryna Venediktova try to dump. This are the cases of an official of the Presidential Office Oleg Tatarov, former Minister during Yanukovych presidency Mykola Zlochevskyi, and judge Pavlo Vovk.
The fact is that with launch of the High Anti-Corruption Court, the so-called anti-corruption infrastructure has been established. It should be powerful kick to top corruption, for every suspected high-ranking official without any exception.
It is almost impossible for the suspect to legally avoid it, as independent anti-corruption bodies have been established for this purpose. However, subjects of the NABU’s cases together with the Prosecutor General Venediktova found illegal way, namely Pechersk District Court.
The way of rescue from the NABU, the SAPO and the HACC, which will be discussed below, actually has nothing to do with the law. However, at the request of the highest officials in the justice system, and possibly in the state, it works.
The essence of the approach is simple: subjects of top cases send appeals to Pechersk District Court of Kyiv and ask to oblige the Prosecutor General to change the body that deals with the investigation. That means to take away proceedings from the NABU and to transfer them to other body. It doesn’t matter where exactly, because practice shows that everywhere, except the NABU, it is possible to agree.
At the same time, the Prosecutor General’s Office completely ignores the illegality of such actions. Firstly, the court cannot order the Prosecutor General to change the investigative body, as such decisions fall within its discretionary powers. Secondly, the law generally prohibits to take cases that are investigated by the NABU.
Thirdly, if the case is already being investigated by the NABU, all complaints, appeals, and statements should go exclusively to the High Anti-Corruption Court.
Of course, subjects realize that judges of the High Anti-Corruption Court are well aware of these norms and will never make illegal decisions. Therefore, they go to trouble-free Pechersk Court, which does not take into account the Criminal Procedure Code, but takes into account only someone’s strong desire. There is suspicion that this is not done for free.
Subjects consolidate the result obtained in Pechersk Court quite unusually. They appeal against positive decision to Kyiv Court of Appeal and the Supreme Court. And when courts of appeal and cassation deny subjects even in consideration, then the deed is done. At the same time, prosecutors of the SAPO are trying to appeal against illegal decisions of Pechersk court in the Appeals Chamber of the Anti-Corruption Court, but despite numerous requests for materials to the HACC no one transfers them.
Here are some examples and everything will become clear.
The case of Tatarov
The case of deputy head of the Presidential Office Oleg Tatarov is fully under investigation by the NABU, as it is about bribery with participation of former Member of Parliament. In general, there are three suspects in the case: the already mentioned former Member of Parliament Maksym Mykytas, official of the expert institution of the Ministry of Internal Affairs Konstantyn Dubonos and, in fact, Tatarov. The lawyer of Dubonos (Tatarov’s accomplice) sent the appeal to Pechersk court, and local judge Sergiy Vovk illegally ordered to transfer the case from the NABU to another investigative body.
Immediately, the same lawyer appealed positive decision to the Court of Appeal. The Prosecutor General Iryna Venediktova that testifies about its interest in rescue of Tatarov, appealed it there, and not in the HACC. As expected, the appeal refused to consider the complaint. The Supreme Court also refused to consider it, so the illegal decision of Pechersk court remained allegedly in force.
On its ground, deputy of Venediktova Oleksiy Symonenko transferred the case to the SBU.
Today, execution of the decision of Pechersk Court is officially suspended by the Anti-Corruption Court, but the Appeals Chamber of the HACC can’t consider the case, in fact, as they have no materials from Pechersk Court. Venediktova continues the streak and demands that the NABU transfer materials of the criminal proceedings to the SBU.
The case of criminal organization in KDAC
In August 2020, judge of Pechersk court Sergiy Vovk ordered the Prosecutor General to take the case from the NABU on creation of the criminal organization and seizure of power by judges of Kyiv District Administrative Court. Lawyers of subjects also pulled off the scheme with Kyiv Court of Appeal, which again refused to consider the appeal.
Thus, materials of KDAC case remained in Pechersk Court, where they have not been transferred to the Appeals Chamber of the HACC for months, where Vovk’s decision was appealed by prosecutors of the SAPO.
The fact that it is very important for participants of the case to transfer the case from the NABU to any other investigative body is clearly confirmed by published recordings of judges’ conversations. In these recordings, person with the voice very similar to the voice of KDAC head Pavlo Vovk states (quote): “The police are our friends, the SBU are our friends, the NABU are not our friends”.
By the way, this is not the only illegal decision of Pechersk Court in this case. The same judge Vovk from Pechersk Court ordered to remove from the Register of pre-trial investigations the suspicion to the head of District Administrative Court Pavlo Vovk (the similarity of their last names adds irony to the situation).
The case of former Minister of Ecology Zlochevskyi
In June 2020, detention of assistants of Yanukovych-era to former Minister of Ecology Mykola Zlochevskyi, who tried to pay 5 million USD bribe for closing the case against former official, became public in Ukraine.
After the investigation was completed and materials were opened to the defense, Pechersk District Court ordered the Prosecutor General’s Office to take the case from the NABU. At the same time, decision was not even provided to prosecutors of the SAPO, but only to officials of the Prosecutor General’s Office.
The next step is usual scheme. Venediktova sent the appeal against this decision not to the HACC, but to Kyiv Appeal and then to the Supreme Court. In both cases, the case was not even opened according to appeals, so the decision of Pechersk Court is allegedly valid. The Prosecutor General’s Office, even with critical and somewhat ironic rhetoric, accused the NABU of manipulation and stated that actions described above were allegedly legal.
Although this, of course, is not the case. After all, appeals in cases of the NABU and the SAPO should also be submitted to the Anti-Corruption Court, and not to the Appeal of Kyiv. The NABU even stated that “instead of counteracting illegal actions of the court, the Prosecutor General’s Office instead helps to legitimize them”.
The case of VAB Bank
In the case on theft of stabilization loan from the National Bank for Oleg Bakhmatyuk’s VAB bank in the amount of 1.2 billion UAH everything started a little bit differently. Pechersk court ordered the Prosecutor General to close previously resumed case last summer.
As you may have guessed, the decision is illegal, because it was made by Pechersk court, which has nothing to do with the NABU’s case. However, Venediktova not only appealed against openly illegal decision, but also executed it (cancelled decision of Kasko). The case was, in fact, destroyed until it was resumed by the Appeals Chamber of the HACC. Only then the Prosecutor General return the status quo to the case and they managed to save it.
However, Bakhmatyuk and Pechersk court did not relax. On February 1, 2021, judge of Pechersk District Court Oleksiy Sokolov ordered the Prosecutor General’s Office to “consider the lawyers’ appeals and resolve the dispute over jurisdiction”. As far as you understand, dispute over jurisdiction means to review who should investigate the case. It is obvious that this was done to take the proceeding from the NABU.
Taking into account previous experience, Venediktova may not mind playing into hands of Bakhmatyuk for the second time. In addition, the Prosecutor General’s Office has repeatedly refused the NABU to initiate the procedure of extraditing Bakhmatyuk from abroad, where he is hiding. The PGO explains this by the fact that documents on extradition from detectives were allegedly drawn up with violations.
The case of Dubnevych’s Heat and Power Stations
On February 10, 2021, Pechersk court made another illegal decision by which it ordered Iryna Venediktova to take the case regarding theft of natural gas for the amount of 729.8 million UAH from the NABU and transfer it to another investigative body. This is about officials of Novoyavorivsk and Novyi Rozdil Heat and Power Station, whose beneficial owners are brothers Yaroslav and Bogdan Dubnevych.
At the same time, in early October last year, the NABU announced on the completion of investigation and opened materials for review to the defense. But, as we can see, this did not stop judges of Pechersk court. As the decision was made in violation of jurisdiction, on February 18 the NABU and the SAPO sent the appeal to the Appeals Chamber of the HACC, as required by the law.
Another episode in the case regarding theft of gas in the amount of 1.4 billion UAH is already under consideration of the Anti-Corruption Court.
Thus, actions of Pechersk Court and the Prosecutor General’s Office speak for themselves. Dumping of top cases has reached serious proportion, and the worst is the fact that it completely eliminates the work of anti-corruption institutions. The Prosecutor General, courts, and the President are simply wiping their feet, due to which justice and law exist in Europe and the United States, in the direction of which Ukraine is looking. If it is necessary to save particular person, to avoid responsibility, to “bend” someone, this is done even with blatant violation of the law.
This once again confirms that Ukraine needs new Prosecutor General, as well as independent, selected with the help of international experts, head of the Specialized Anti-Corruption Prosecutor’s Office and, of course, reformed judicial system. These are not new statements, but they are especially relevant now, when the government, which came with such promises, does not even try to fulfill them.