Ukrainian authorities have thrown the country into legal chaos by introducing legislative discrepancies that could potentially block all criminal investigations at the Prosecutor General’s Office.
Although the investigations technically continue, their legality starting from March 1 is questionable and has already been disputed in the nation’s courts.
The problems were caused by a law signed in January that transfers investigative functions from the Prosecutor General’s Office to the State Investigation Bureau on March 1.
Under the law, the Prosecutor General’s Office lost its investigative functions. However, the bureau, which was to take over those functions, had not been created by the March 1 deadline and is now likely to be launched only next year.
In an effort to patch up the legal problem, the High Specialized Court on March 3 issued a ruling according to which the prosecutor’s office can carry out investigations until the State Investigation Bureau’s launch. But lawyers say lower courts are not required to comply with that ruling.
Meanwhile, critics argue that the president, the Verkhovna Rada, the Cabinet and the Prosecutor General’s Office all share blame for the fiasco.
The legal problems also add to critics’ claims of sabotage by the prosecutor’s office of high-profile corruption investigations against ex-President Viktor Yanukovych and his allies, and into the killing of more than 100 protesters during the EuroMaidan Revolution.
However, the National Anti-Corruption Bureau, the Interior Ministry and the Security Service of Ukraine retained their investigative functions and have encountered no legal problems.
Authorities’ response
President Petro Poroshenko’s spokesman Sviatoslav Tsegolko did not reply to a request for comment.
The Cabinet told the Kyiv Post in e-mailed comments that it “had done its best” to launch the bureau and said the parliament and president were to blame for the delays.
Vladyslav Kutsenko, a spokesman for the Prosecutor General’s Office, has claimed that prosecutors would continue investigations and denied there would be legal problems. However, his statements have been contradicted by other top prosecutors.
Serhiy Horbatiuk, head of the prosecutorial department for trials in absentia, repeatedly warned over the past few months that missing the March 1 deadline to set up the bureau would lead to the probes being blocked. In the end, the prosecutor’s office banned him from commenting on the issue.
Deputy Prosecutor General Anatoly Matios also said on March 1 that problems would emerge as the law on the State Investigation Bureau had led to the “collapse of investigations.”
Court problems
The problem first manifested itself when Kyiv’s Pechersk Court rejected all of the prosecutors’ motions on March 1, saying that they no longer had any investigative functions, Oleksiy Donsky, a prosecutor at the department of the Prosecutor General’s Office for trials in absentia, told the Kyiv Post.
However, a media scandal over the suspended investigations prompted the Pechersky Court to reconsider its position.
“After yesterday’s publications in the mass media, the situation drastically changed and the courts started accepting all of our motions,” Donsky said.
Although the courts are resolving the issue on a case-by-case basis, the legal situation still remains uncertain, Serhiy Hrebenyuk, a partner at law firm Yegorov, Puginsky, Afanasyev and Partners, told the Kyiv Post by phone.
In the future, any investigative actions carried out by the Prosecutor General’s Office after March 1 could be disputed in court, Hrebenyuk said.
The High Specialized Court attempted to resolve the situation with its March 3 ruling that prosecutors are allowed to continue investigations. However, the ruling itself is no more than a legal opinion, and the higher court has no authority to require lower courts to interpret the law in a specific way, Hrebenyuk said.
“(Such a ruling) doesn’t mean anything,” Hrebenyuk said. “Until the situation is corrected by the Verkhovna Rada, there will be certain grounds for saying that some (investigative) actions are illegal.”
Sabotage of the law
Reformist lawmakers like Sergii Leshchenko from the Petro Poroshenko Bloc have urged the Verkhovna Rada to pass amendments extending the deadline for the bureau’s creation and allowing the Prosecutor General’s Office to continue the investigations.
The parliament’s next meeting is scheduled for March 15. It could hold an emergency meeting before that date but this is unlikely to happen, Leshchenko told the Kyiv Post.
The bill on creating the State Investigation Bureau was passed by the Verkhovna Rada on Nov. 12, 2015 and sent to Poroshenko for signing on Nov. 24. However, it was almost two months before Poroshenko finally signed the bill into law, making it extremely difficult to meet the March 1 deadline.
The Prosecutor General’s Office also supported the bill.
Poroshenko and the prosecutor’s office ignored criticism that there was no time left to create the bureau by March 1, Leshchenko said.
Even after the bill was signed, almost nothing was done to create the bureau: Poroshenko and the Cabinet appointed their members to the commission charged with choosing the bureau’s head only in late February, while the Verkhovna Rada has not yet selected its representatives.
Parliament also failed to consider amendments extending the March 1 deadline for the creation of the bureau before the Rada went into recess on Feb. 19.
Leshchenko said that the authorities had been “deaf to the voices crying in the wilderness – Horbatiuk and others,” although they had known about the problem.
“To resolve the issue of the visa-free regime (with the European Union), they told the Europeans that we’ll have a State Investigation Bureau starting from March 1,” Hrebenyuk said. “But everyone understood that this was unrealistic.”
The Cabinet contributed to the problems by officially creating the bureau “on paper” on March 1 without being able to actually launch it, Hrebenyuk added.
“It was either malicious sabotage that led to the collapse of investigations, or just negligence,” he said.
Another reason for delaying the creation of the bureau is that prosecutors “simply don’t want to transfer their investigations,” Hrebenyuk argued.
“There have been attempts to strip the Prosecutor General’s Office of investigative functions for more than 10 years,” Hrebenyuk said. “Obstacles have always appeared.”
Corruption probes
The legal conundrum triggered by the investigation law reinforces critics’ claims that the criminal investigations are sabotaged by the Prosecutor General’s Office.
Last week reformist Deputy Prosecutor General Davit Sakvarelidze published documents proving the existence of criminal cases that he said were intended to put pressure on those of his subordinates who are investigating corruption cases against their fellow prosecutors.
“More criminal cases have been opened against our employees than against (ex-President) Viktor Yanukovych,” he said. “… Today the Prosecutor General’s Office responds to any steps aimed at reforming the system by punishing their initiators.”
Another scandal was prompted on March 1 by the earlier appointment of Volodymyr Derzhavin, an ex-aide to lawmaker Ihor Kononenko, as a deputy head of the State Property Fund.
Critics say this proves that investigations against Kononenko, a friend and business partner of President Poroshenko, are likely to go nowhere.
Last month Economy Minister Aivaras Abromavicius quit after accusing Kononenko of corruption and trying to impose his placemen at state-owned firms.
Ex-Deputy Prosecutor General Vitaliy Kasko said last week that Prosecutor General Viktor Shokin had tried to force him to implement “Kononenko’s instructions.”
