How the evidences fell out of the “backpacks case”?
Turning embezzlement by a group into a fraud by one.
September 11, Kharkiv, judge Yezhov barely above a whisper reads the court decision in the so-called “case of backpacks” and draws a line under it.
The court approves plea deal with the minor subject of the case Volodymyr Lytvyn, that actually releases suspected son of the Minister of Internal Affairs from responsibility.
This is probably the first time in Ukraine when the subject of journalist’s investigation, the son of one of the most influential persons in the state has become not just the hero of Internet chronicles, but the suspect in criminal proceeding. The case had all chances to become the most indicative trial in the newly created Anti-Corruption Court.
However, fair trial is not what subjects of corrupt investigations expect for.
Summer events in this case clearly demonstrate that plea deal which has been approved several days ago, apparently, is the result of completely different agreement – the political one. And toxic results of these dirty agreements can destroy efforts during past three years and work of detectives of the National Anti-Corruption Bureau.
For the first time, “the case of backpacks” became the subject of public discussions in February 2016, when editorial staff of Schemes program drew attention to unusual video material that got into the Internet.
It was the video recorded in one of the offices of the Ministry of Internal Affairs. In one of its episodes, the deputy Minister and the son of the Minister discussed the procurement of backpacks for the National Guard bypassing legal tender procedure.
The journalists compared this conversation with real procurement and found out that the backpacks were bought at the converting center – fake company that provided services for transferring dirty money into cash.
Especially cynical was the fact that activity of the same converting center at that time was the subject of investigation of the Ministry of Internal Affairs itself.
As it turned out, the Prosecutor General’s Office investigated several criminal cases on the grounds of published video without any results. The Military Prosecutor’s Office has been investigating the case of backpacks since July 2015.
After the resonance caused by Schemes’ release, in March 2016, the NABU started to investigate the case and simultaneously took over all materials from prosecutors.
Detectives immediately qualified the crime as committed by organized group on the ground of prior conspiracy regarding taking possession of state property by abuse of office.
For a year and a half, the NABU detectives have conducted enormous work, namely dozens of accesses to materials, questionings, forensic evaluations, and eventually collected enough evidence to present suspicion to all subjects.
In the fall 2017, the case came to its climax. Detectives conducted searches in the premises of the son of the Minister and arrested Oleksandr Avakov himself as well as former deputy Minister Serhii Chebotar and entrepreneur Volodymyr Lytvyn.
In the period of searches, detentions and preventive measures, streets of Kharkiv and Kyiv were full of police, and courtrooms were full of people dressed in camouflage, Members of Parliament and journalists. However, the court chose the least possible preventive measure and Avakov junior was released under personal commitment.
In spring this year, the NABU reported that the investigation had been completed and case materials were opened to the defense party for review. This meant that the case would be soon forwarded to the court.
In the same period, Nazar Kholodnytskyi found wiretapping devices in his aquarium in the office. Later, fragments of “aquarium tape recordings” became public, from which entire country found out how the head of the SAPO had warned subjects of investigations, gave instructions to them how to behave during questionings, and slowed down cases.
In addition to criminal case against the head of the SAPO, disciplinary proceeding was opened.
In the same time, the Verkhovna Rada adopted the Law on Anti-Corruption Court, the final version of which stated that all the NABU’s cases at all stages without any alternative would be considered by the newly created court. This should also be applied to the case of backpacks, which obviously was not part of the plans of subjects of the case.
And in that time, an unexpected turn in the case of backpacks happened…
Suddenly in July, ten days before the hearing of the prosecutor’s disciplinary commission, which had to determine punishment for Kholodnytskyi, key subjects in the case – Avakov and Chebotar – suddenly decided to testify. Prior to that, they refused to state their position at all and did not recognize any videos or other evidence.
It was interesting that all three came to the SAPO prosecutor for some reason, and not to the detectives of the NABU. Behavior was clearly illogical, especially for people who considered themselves innocent and were ready to defend their position in court.
In turn, the prosecutor, who had already found gathered evidence sufficient enough, decided to reopen the investigation and listened to them not in an open trial that seemed inevitable, but simply in his office.
It looks like running a successful marathon first, overcoming all obstacles and just before finish you’ve just stopped, got off the road, because you felt pity for the opponent.
As a result, the son of the Minister and deputy Minister recognized the fact of conversations about backpacks and reported that they had only good intentions – provision to subdivisions of the Ministry, and entrepreneur Lytvyn decided to plead guilty.
The prosecutor unconditionally accepted these testimonies and, on these grounds at the same day, he broke prosecution’s version, which was worked out one and a half year earlier, and closed the case against Avakov junior and Chebotar.
The case is re-qualified from a group embezzlement of state funds into fraud of one entrepreneur.
Such change clearly contradicts both materials of the case and common sense in general.
First of all, scandalous videos speak for themselves. It is obvious that subjects agree to sew backpacks at the time when the tender has not even been discussed. Moreover, they discuss delivery terms and possibility of prepayment on the video record. The entrepreneur, who supposedly fooled everyone, is not present on the video at all.
Instead, the change of the crime into fraud means that prosecutors call entrepreneur Lytvyn the one who misleaded tender committee headed by Avakov’s deputy Chebotar.
Secondly, during trial and announcement of charges to Lytvyn, it became clear that in fact all tender documentation, which was submitted to the Ministry of Internal Affairs, was fake, as well as backpacks themselves, since they were made from other fabric and did not meet any standards.
It is interesting, whether it is so easy to fool so many officials in one Ministry, namely the Ministry of Internal Affairs?
At that moment, prosecutors were obviously not interested in other arguments. They unconditionally accepted version of Avakov-Chebotar and questioned evidence which was collected before by them together with detectives.
Are video recordings not considered as evidence now?
In April this year, the media reported that recording device from Chebotar’s office was destroyed. Journalists found out this with the help of Register of Court Decisions.
The device was destroyed by the court decision in another criminal case, and it was obvious that it was not the coincidence.
This was a part of planned scenario – to question the video, and the legality of wiretapping in the case. After the destruction of video camera, the video, allegedly, have no longer any value.
Although, in fact, everything is very simple. Anyone who used the camera on the phone understands that if the phone is destroyed, this does not mean that the video, which was made on it and stored on some other device, become automatically fake.
The same situation is with materials of the clandestine investigative actions which are represented by this video. The NABU has repeatedly emphasized that there is original disc with recording in materials of the case, the authenticity of which was confirmed not only by forensic evaluations, but also by other investigative actions.
However, prosecutors, who have repeatedly referred to these materials during the public trial of choosing preventive measures, began simply ignoring them.
Forensic evaluation is a ping pong worth 9 million UAH
Prosecutors as well as the detectives of the NABU in the case more than once publicly announced the size of losses of procurement agreement of backpacks.
In particular, at court hearings during selection of preventive measures, the amount of losses was announced as 14 million UAH. The price of one backpack was overestimated of its real value by 5 times.
Later in the media there was information about bringing the expert, who carried out calculations in this case, to disciplinary responsibility.
Even the head of the NABU, Artem Sytnyk told about pressure on the expert, who in June reported that the police were investigating the fact of forgery of the conclusion in this case. The fact of investigation of such forgery by the police was already alarming and apparently was aimed at both expert and, above all, leveling out of the forensic evaluation itself.
Indeed, after unexpected change of prosecutor’s position and re-qualification of the crime in the case, new forensic evaluation appears, which has been already conducted at the request of Lytvyn’s defense party at lightning speed.
The date of forensic evaluation was July 20, 2018, while the case was reopened on July 11. Usually this kind of forensic evaluation lasts at least for a month. The result is that the amount of losses decreases threefold and amounts about 5 million UAH.
At Lytvyn’s trial, the prosecutor is confidently denying the legality of forensic evaluations, which previously were sufficient, and called new forensic evaluation professional.
Plea deal instead of transparent trial
If the lightning-fast forensic evaluation ended on July 20, then on July 25, prosecutor Kryvenko concluded plea deal with Lytvyn.
Between these events, the Qualification Commission of Prosecutors evaluated actions of the head of the SAPO recorded on the “aquarium tape recordings”, left him on his position and gave him reprimand.
In late August, plea bargain agreement with Lytvyn was forwarded to Kharkiv for approval by the court.
Plea bargain agreement with the prosecutor by its nature is simple and important tool created to optimize the process of punishing perpetrators and enable law enforcement officers to encourage executors and accomplices of the crime to expose organizers of the crime and other participants.
That is why, in case of particularly grave Lytvyn’s crime, the obligatory condition of plea bargain agreement was to expose accomplices and organizers.
As it turned out during the single court hearing, Volodymyr Lytvyn exposed a person who died at the end of 2015.
Plea deal essentially reminds of sales promotion “bring a friend and get a discount”. Like the store, the state does not hold “sales” without benefit to itself – punishment is reduced according to agreement, only in exchange for important social case – exposure of other perpetrators and closing of other crimes.
Now imagine that you bring deceased friend to the store and require discount. It is very unlikely that this will satisfy sellers and owners of the store because no matter how cynical it sounds, what benefit they will get of the deceased. But disclosure of the deceased has completely satisfied the SAPO prosecutors, even though the case regarding him will automatically be closed, and this certainly will not prevent new crimes.
If entrepreneur Lytvyn exposed his friend and accomplice Avakov junior and Chebotar, this would, of course, result into punishment of the latter and would prevent them from committing further crimes. At the moment, at least one of the subjects is absolutely not guilty and stays close to the state resource.
However, in the end, Lytvyn was sentenced to 5 years of imprisonment with probation period of 2 years. This means that he will not receive real punishment, and in two years he will have criminal record.
In return, key subjects avoided serious accusations and open court hearing in the Anti-Corruption Court. If only one episode regarding Lytvyn was listened in proper court hearing, his punishment would have been much more severe, and the court, like everyone else, could evaluate importance of every evidence.
Moreover, such quick review of the case and approval of plea deal were also needed in order the case of backpacks in any circumstances was not forwarded to the new Anti-Corruption Court.
Legal grounds to appeal the plea deal approved by the court are absent.
Instead, it is likely that seized backpacks will be returned to the Ministry of Internal Affairs, and other inconvenient evidence could be destroyed according to the scenario at any moment, as it happened with the recording device from the office of the deputy Minister.
But the worst thing is that other top-corruption cases may also not get to the newly created Anti-Corruption Court. Closure of resonant cases and unexpected plea deals seem like only the beginning. And the reason for this is the head of the SAPO, who is a huge threat to the whole new infrastructure of anti-corruption authorities.
The “aquarium” criminal case in the SBU is hanging as a sword of Damocles over the head of ‘trained’ special prosecutor. And the issue of signing a notice of suspicion to Kholodnytskyi, which was prepared, according to journalists, long time ago, is exclusively jurisdiction of current Prosecutor General.