Why there are still no final verdicts in cases of Martynenko, Nasirov, Trukhanov. How to fix this?

by Vadym Valko, originally published at Zn.ua

It has been two years since the High Anti-Corruption Court made its first judgment. Since then judges have delivered 45 verdicts, and among convicts are Members of Parliament, judges, prosecutors, lawyers, heads of state enterprises, and so on.

However, not everyone considers this result as a success. There are complaints against the HACC, the NABU and the SAPO that their decisions focus only on low-level officials, while no one really touches the “big fish”.

Thus, we explain at what stage the most high-profile corruption cases are now and what is the reason that none of them reached the final decision yet. After all, the reason for delays is often the behaviour of defendants and their lawyers. In particular, the latter used to leave courtrooms, arrange procedural démarches and tantrums as well as abuse quarantine restrictions.

 The case of Onyshchenko

Former Member of Parliament Oleksandr Onyschenko and his associates sold gas of the state enterprise Ukrgazvydobuvannya to his companies on fictitious exchanges at an understated price. These companies resold fuel to end consumers at market prices. The lost income of Ukrgazvydobuvannya, which settled in pockets of participants of the scheme, is over 740 million UAH.

The indictment against former Member of Parliament and his financial director Olena Pavlenko was sent to the court by prosecutors in February 2019. The case was transferred to the High Anti-Corruption Court after several months of wandering in courts of Kyiv.

The preparatory meeting lasted almost six months. In January 2020, the court decided to hear the case in a separate proceeding. That means in absentia, because Onyshchenko is not in Ukraine. The case was then postponed for more than three months in order to send the appeal to competent authorities in Germany to summon former Member of Parliament. When he was already wanted, Onyshchenko has been sanctioned by the US Treasury Department for spreading unfounded accusations against one of the presidential candidates during the US election.

The indictment was read in the case and they started to study more than 560 volumes of materials in last May. 75 court meetings were scheduled during 22 months.

The panel has to examine about 50 more volumes, question about 25 witnesses, and examine the evidence of protection.

There were some delays on the part of lawyers. For instance, in October last year, three defenders left the meeting without permission, which disrupted the examination of the search video. Judges had to address the Qualification and Disciplinary Commission of the Bar regarding the disciplinary responsibility of defenders. In addition, due to absence of lawyers without good reason, judges sent the appeal to the Qualification and Disciplinary Commission of the Bar at least two more times. However, the disciplinary bodies of the bar refused to initiate disciplinary proceedings.

The gas case of former Member of Parliament Onyschenko is one of the first and most high-profile cases of the NABU and the SAPO. And in this case, judges are at least trying to ensure consideration in a reasonable time. In particular, in last July, they scheduled the meeting for 16 days of the month. This pace gives the chance that next year we will see the finale of the story, at least in the first instance. Onyshchenko faces up to 12 years of imprisonment with confiscation of property.

The case of Nasirov

Former head of the SFS Roman Nasirov is accused of abuse of office and forgery. According to the prosecutor’s office, he provided illegal installments of debts to companies related to the fugitive and former Member of Parliament Oleksandr Onyschenko and his “gas scheme“. Losses amounted to more than 2 billion UAH. His former subordinate, former head of one of Departments of the SFS, Volodymyr Novikov, is on the dock together with Nasirov. They face up to 6 years of imprisonment.

The case became resonant immediately after Mr. Nasirov had been dramatically detained at Feofania Hospital in early 2017. At the end of November 2017, the indictment was sent to Shevchenkivskyi District Court of Kyiv. About 30 court meetings were scheduled there during two years. But all this time prosecutors simply read the indictment, because Nasirov’s lawyers demanded to voice all 774 pages. It only have to take about two years with such pace of consideration.

However, in September 2019, the case was transferred to the HACC. At the same time, the legislation was changed, which allowed prosecutors to summarize the indictment in just 10 minutes.

Judges have already spent 22 months for consideration of the case. During this time more than 60 court meetings have been scheduled, some of which have been postponed due to the quarantine, illness of judges or participants of the case.

We should mention here how former lawyer of the accused Novikov tried to delay the consideration due to quarantine. He did not come to the meeting four times and filed the petition regarding delay by taking refuge in lies. The lawyer stated that he was allegedly in Rivne region in self-isolation and could not attend court meetings, although prosecutors recorded his meeting with his client in Kyiv at the same time. After all, this lawyer was replaced by lawyer from the free legal aid system.

So far, the court has questioned several key witnesses, including Igor Bilous, who headed the SFS in 2014, and Yuriy Dubynskyi, who was responsible for creating fictitious enterprises for Onyshchenko. Judges also examined necessary documents.

Defendants keep up with delaying the case. At first, they read almost every page of every volume of documents provided by the prosecutor. After that, the court changed the procedure. It gave lawyers and defendants the opportunity to comment not on each volume individually, but collectively on all evidence gathered in the particular area. And although Nasirov and Novikov continue to read the same thing that the prosecutor says (names of documents, date of their adoption, invoice details, etc.), the accused now have only three meetings for each issue to announce their position regarding documents, which speeds up the consideration a little bit.

This is one of the largest cases of the NABU in terms of volume. Hundreds of volumes need to be investigated and dozens of witnesses have to be questioned. The satisfactory fact is that judges respond adequately to abuses of defense, try to optimize work by changing the procedure, or find opportunity to schedule additional meetings when there is free time on schedule. And although the pace of its consideration is probably not the fastest out of all top cases of the HACC, we should definitely not expect the decision this year. Because it is still necessary to complete the investigation of materials of the prosecutor’s office, question some witnesses and examine evidence of defense.

 

The case of Martynenko

Former Member of Parliament Mykola Martynenko is accused of organizing schemes of embezzlement of funds from the state enterprises SkhidGZK and Energoatom together with his accomplices. As a result of schemes, the state suffered damage in the amount of 700 million UAH. Martynenko faces up to 12 years of imprisonment with confiscation.

The indictment was sent to Shevchenkivskyi District Court of Kyiv in 2018. At first, the court tried to return it to prosecutors, but the Appeal cancelled the decision. Then the case was considered intensively in Shevchenkivskyi Court for almost the year. At the same time, meetings were appointed at weekly intervals, whereas in similar cases they were held no more often than once per month. Such hurry of judges could be caused by approaching the start of work of the Anti-Corruption Court.

In November 2019, the case with fights was transferred to the HACC. Judges held the preparatory meeting during the month, and they were hearing introductory speeches in next five meetings. Then, they proceeded to investigating evidence, with the panel of judges tried to ensure reasonable time frames. Sometimes they continued meetings and in after-hours, responded to cases of unreasonable delay of consideration or abuse of rights by participants.

Suddenly, the defense changed its tactics and began to prolong the consideration as much as possible, arrange hysterics, démarches, make unfounded appeals, doubtful resignations, initiate criminal cases against judges, change lawyers and ask for the break for three or four months to study materials.

The behavior of some participants was simply inappropriate. For instance, the accused Zhurylo was brazenly rude to judges, the lawyer Nonna Nadich arbitrarily left the court meeting and disrupted it. It became completely absurd when one of defenders announced that he was preparing the appeal to protect his honor and dignity by leaving his statement regarding dismissal without consideration.

The panel called such defense actions planned, targeted and coordinated. And it raised the issue of lawyers’ responsibility at least five times to the qualification and disciplinary bodies, but each time judges were refused to open disciplinary proceedings. Judges’ appeals to the HCJ with reports regarding interference in their activities also had no effect.

The case of the explosion of grenade at the place where the presiding judge parks his car deserves special mention. Judges linked this episode to consideration of Martynenko’s case and also sent appeals to the HCJ and the Prosecutor General. As the result, as many as three criminal proceedings were registered, but neither performers nor customers were found.

Since December 2019, more than 50 court meetings have been scheduled in the case. And only three of them took place last year. Since October 2020, some lawyers have not appeared in court at least eight times without good reason. Due to such actions, no evidence has been examined in the case during last year.

You should compare this to consideration of Martynenko’s case regarding laundering of 2.8 million EUR in Switzerland. The investigation began in 2013. The case was sent to the court in December 2019. And in six months the Swiss Federal Criminal Court sentenced former Member of Parliament to 28 months of imprisonment, 12 of which were “unconditional”. The case is currently in the process of appellate review.

Of course, the “Swiss case” is not as large-scale as the one that has been considered in Ukraine. The total amount of materials collected by the NABU and the SAPO is about 300 volumes, which is more than 50.000 sheets with the large amount of evidence collected with the help of foreign law enforcement officers from Switzerland, the Czech Republic, Austria and other countries. However, consideration of the case may go on forever with such delays provoked by defence and the lack of proper response from the disciplinary authorities.

The case of Trukhanov

The mayor of Odesa Gennadiy Trukhanov and his accomplices are accused of illegal seizure of 92.6 million UAH from the local budget, which were obtained as the result of purchasing the building of bankrupt plant Krayan at knowingly inflated price. Trukhanov faces up to 12 years of imprisonment with the confiscation.

The case was sent to Malynovskyi District Court of Odessa in late October 2018.

It was considered there in turbo mode. In November, judges were released from the auto-distribution of new cases, almost 60 court meetings were scheduled for 8 months, and the acquittal was adopted two months before the start of work of the HACC. As in the case of Martynenko’s case, the consideration was apparently expedited so that the case would not be sent to the Anti-Corruption Court.

However, the decision was still reviewed by the Appeals Chamber of the HACC. In contrast to the process in Odesa, some lawyers did everything possible to delay the consideration by filing unfounded appeals and accusing the Anti-Corruption Court of unconstitutionality. However, all this only confirmed the defenders’ uncertainty about the legality of Odessa decision.

Despite all efforts of the defense, the Appeals Chamber cancelled the illegal acquittal because it had scheduled more than 30 court meetings per year. The result of this decision was that the case was sent to the new consideration of the High Anti-Corruption Court.

However, we saw renewed attempts of lawyers to delay the consideration of the case. For instance, two defenders did not appear in the court five times in a row, and they had to be postponed. Judges complained about lawyers to the Qualification and Disciplinary Commission of the Bar, and one of them even received fine in the amount of 13,000 UAH. However, so far these methods do not work, because they could not hold the preparatory meeting for seven months in the case. I should remind that it took eight months to consider the whole case in Odessa. They explained it by turbo mode, manual judges and lack of delays on the part of defense.

 

The amber case

Former Members of Parliament of the VIII convocation Maksym Polyakov and Boryslav Rozenblat and their accomplices are accused of receiving more than 300.000 USD for making necessary amendments to the legislation, influencing judges, prosecutors, officials of the State Geocadastre, the State Forestry Agency, the State Service of Geology and Subsoil of Ukraine and assisting in obtaining the number of permits for the extraction of amber. Former Members of Parliament face up to 12 years of imprisonment with the confiscation of property.

In October 2018, the indictment was sent to Golosiyivskyi District Court of the capital. However, it was transferred to Pechersk District Court few months later, where the case stayed for another six months. Until in September 2019 it was finally sent to the Anti-Corruption Court.

Judges scheduled 20 meetings during 21 months, but were unable to complete the preparatory proceeding. The vast majority of meetings just did not take place. First due to the birth of the child of one of the defendants, then due to constant absence of one of defence lawyers. At the same time, judges did not react very actively to such facts.

In total, the case materials has 111 volumes. The SAPO also plans to question 44 witnesses, including Members of Parliament, their assistants, former members of the Cabinet of Ministers of Ukraine, judges, etc. After that, they can proceed to the study of defense’s evidence. However, given the pace of consideration of the case over the past year and a half, chances of such development in the near future are almost zero.

How to solve the problem

As you can see, such long consideration of cases is caused by various factors. Namely: both objective (large amounts of materials, many participants, vacations and sick leaves of judges and participants in cases, quarantine restrictions), and subjective (intentional delays, abuses, absence without good reasons, insufficient reaction of judges and low efficiency of disciplinary bodies, etc.).

Today, judges of the HACC are considering 184 criminal cases in which 440 people are accused. And new cases come every month. Two more high-profile cases will be sent to the court very soon. Namely, these are the cases against former Member of Parliament Maksym Mykytas and Member of Parliament Yaroslav Dubnevych. It is possible that next year the HACC will receive indictments in cases of KDAC tape-recordings, former judge Chaus, king of smuggling Alperin, brother of the KDAC head Zontov, two episodes regarding misappropriation of funds from Privatbank, the case of VAB Bank.

And it is very likely that the same long consideration will await all these proceedings as in the above-mentioned cases. To prevent this, there is a need to do few things:

  • the court should receive the real tool to deal with cases of rude or unethical behaviour of participants in cases, so the Parliament should adopt the draft law No.5490 this fall, after which judges of the HACC will have the right to bring violators to administrative responsibility for showing contempt of court;
  • it is also necessary to significantly increase the amount of monetary penalty that may be imposed on participants of the case determined by the CPC in case of their non-appearance at the court meeting without sufficient reasons. Today, such penalty is from 0.5 to 2 subsistence wages (namely, the maximum penalty is 4,758 UAH) for, which does not have sufficient stimulating effect;
  • to improve the mechanism of bringing lawyers to responsibility for non-appearance at court meetings without sufficient reasons and violation of rules of the lawyer’s ethics. Today, judges do the only thing that the law allows them to do, namely they send a claim to the disciplinary bodies of the bar. During two years judges sent about forty claims to the Qualification and Disciplinary Commissions, as a result of which only three lawyers were brought to responsibility. This is not surprising, as the large part of the bar community is very ordinary closed clan now, what is worth the successful passing of the bar exam by Ilya Kyva, or delegating Pavlo Grechkivskyi and Oleksiy Malovatskyi from the bar to the HCJ;
  • the High Council of Justice, as the disciplinary body regarding judges, also needs to be cleared. Even the Venice Commission states that the dishonesty of some members of the HCJ threatens the independence of the entire judiciary. During two years, judges of the HACC sent appeals 12 times to the HCJ with statements of interference in their activities, but there was reaction only in three cases. Instead, members of the HCJ are attacking independent judges, forcing the HACC to seek protection from the President as the guarantor of the Constitution.
  • in order to reduce the workload of judges of the HACC, it is necessary to increase their number and add at least two or three additional panels that would consider cases in the first instance. Because at the moment judges should appoint meetings four or five months in advance. Sometimes it is extremely difficult to agree on convenient dates for all meetings in cases with a large number of participants;
  • changes in procedural law should also be considered. They should provide for the possibility of considering the simplest cases by the judge alone, rather than by a panel, which could also unload judges a little.



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