Ukrainian authorities cannot try many of former President Viktor Yanukovych's allies due to Interpol’s refusal to put them on a wanted list and technicalities in Ukraine's law on trials in absentia, Serhiy Horbatiuk, the prosecutor in charge of the investigations, told the Kyiv Post.
Investigations have also been impeded by the complicated ownership structure of assets of Yanukovych allies, police failure to collect evidence during the 2013-2014 EuroMaidan Revolution and the flight of high-ranking officials from Ukraine who are now abroad.
Critics say, however, that these are just lame excuses for stalling murder and corruption cases against Yanukovych and his associates, particularly probes into the slayings of more than 100 EuroMaidan activists.
So far, the only top Yanukovych allies on trial are former Deputy Interior Minister Serhiy Lekar, who is accused of buying Russian riot control weapons to disperse EuroMaidan demonstrators; former Kyiv Mayor Oleksandr Popov, who has been charged with ordering police to assault protesters on Nov. 30, 2013; and Kharkiv Mayor Gennady Kernes, who is accused of kidnapping and torturing EuroMaidan activists.
Apart from these, two ex-Berkut riot police officers and one pro-Yanukovych hooligan, or “titushka,” are on trial.
Other cases may be submitted to a court within six months, according to Horbatiuk, head of the special investigations department of the Prosecutor General’s Office. “We are doing our best to complete these investigations as soon as possible,” he said.
The establishment of Horbatiuk’s department on Dec. 18, 2014, was intended to speed up the investigations, which are facing multiple stumbling blocks a year after the EuroMaidan Revolution propelled pro-Western leaders to power. Vitaliy Tytych, a pro bono lawyer for EuroMaidan victims, said the department’s creation has been the only achievement of the Prosecutor General’s Office in investigating EuroMaidan cases.
Prosecutors insist a major impediment is Interpol’s refusal to put suspects in the EuroMaidan murder cases on an international wanted list because the international law enforcement agency believes the investigations to be politically motivated – a claim dismissed by EuroMaidan supporters. Interpol declined to comment.
If a suspect is not on Interpol’s wanted list, he cannot be tried in absentia in Ukraine, Horbatiuk said.
In October, the Verkhovna Rada passed a bill authorizing trials in absentia if a suspect cannot be extradited. However, in January parliament adopted an amendment according to which only those who are internationally wanted can be tried in absentia.
Former Prosecutor General Vitaliy Yarema justified the amendments in December by saying that the original version of the law did not allow prosecutors to try Yanukovych allies unless they proved where they were located.
Since Interpol is refusing to issue warrants, consideration of Yanukovych allies’ alleged crimes against humanity by the Hague-based International Criminal Court could be a solution, Horbatiuk believes. However, Ukraine has so far not ratified the Rome Statute of the International Criminal Court, which recognizes the court’s jurisdiction in specific countries.
In contrast to the EuroMaidan murder cases, Interpol has agreed to put some suspects in corruption cases against Yanukovych allies on its wanted list.
They are former President Viktor Yanukovych, his son Oleksandr, former Prime Minister Mykola Azarov, former Finance Minister Yury Kolobov, former Health Minister Raisa Bohatyryova, former Deputy Prime Minister Serhiy Arbuzov, former Revenue and Tax Minister Oleksandr Klymenko, former Energy Minister Eduard Stavytsky and businessman Serhiy Kurchenko, according to Horbatiuk.
Formal extradition requests have been sent to Russia for Yanukovych, Azarov, Kolobov and Bohatyryova and requests to put other suspects on a wanted list in the Russian-led Commonwealth of Independent States have also been sent, Horbatiuk said. Russia has not responded to any of these requests, which also impedes the investigations.
Another obstacle is the difficulty of freezing suspects’ assets. It is hard to prove that a specific company is owned by one of the suspects because of extremely complicated ownership structures with the ultimate beneficiaries in offshore jurisdictions, Horbatiuk said. Out of the 22 people subject to EU sanctions, the assets of about 10 have been found.
Moreover, when Ukraine tries to get information on a specific bank where a suspect keeps his assets, the government where the bank is based sometimes says that Ukrainian authorities should first prove the criminal origin of the funds, Horbatiuk said.
“There is no full-fledged cooperation with the law enforcement agencies of some countries,” he added.
Yet such claims are contested by activists like Daryna Kalenyuk, executive director of the Anti-Corruption Action Center.
“It’s true that assets are transferred to relatives, brothers, in-laws and offshore companies,” she said by phone. “But it’s not true that these assets can’t be frozen either in Ukraine or abroad. For that, they only have to do their work properly – collect evidence, including proof of the criminal origin of these assets.”
The investigations have also been thwarted by problems linked to evidence, Horbatiuk alleges.
During the EuroMaidan crackdown in February 2014, “volunteers and other activists were helping the injured to reach places where they could receive medical aid and removed bodies (of the dead),” Horbatiuk said. “Although it is nobody’s fault, none of those murdered was inspected at the crime scene.”
Serhiy Horbatiuk, head of the special investigations department at the Prosecutor General’s Office.
The Prosecutor General’s Office also lacks evidence to convict Svetlana Volkova, the judge who released Berkut riot police commander Dmytro Sadovnyk in September, Horbatiuk said. However, the “unlawful component is obvious,” he added.
Sadovnyk is accused of killing EuroMaidan protesters as head of the so-called Berkut “Black Squadron” that was caught on video shooting down protesters. He was reported by authorities to have fled Ukraine after his release.
Problems with evidence are partially due to the Interior Ministry’s failure to report each instance of the use of weapons during the EuroMaidan Revolution. Under Ukrainian law, such cases must be investigated, and each missing cartridge must be accounted for.
“This did not happen, and all documents on Berkut riot police were destroyed (by the previous government),” Horbatiuk said.
Also disappearing were those responsible for registering criminal cases against activists and issuing notices of suspicion. They fled the country to escape punishment on Feb. 21-22, while the new appointments were made only on Feb. 23. Thus, there was virtually no one to carry out the investigations at that time, according to Horbatiuk.
A lack of human resources was also a problem at the beginning.
“At that moment, the main investigation department of the Prosecutor General’s Office comprised two bureaus, each staffed with 12 investigators, a director and two deputy directors,” Horbatiuk said. “Obviously, 28 people were not enough to investigate crimes of such an unprecedented scale and to administer daily proceedings.”
Horbatiuk had been one of the investigators working on the cases since Feb. 2014 — long before he became head of the department responsible for the investigations in December. Since then, the cases have seen little progress.
He was also responsible for prosecuting a misappropriation of funds case in 2010-2011 opened against Yulia Tymoshenko, a former prime minister and an opposition leader. Tymoshenko was later imprisoned as part of a different case due to what human rights groups believe was a political vendetta organized by Yanukovych.
In 2004 Horbatiuk also investigated an embezzlement case against opposition leader David Zhvania that critics thought to be politically motivated. Horbatiuk denies all accusations of fulfilling political vendettas.
He says that he dropped the Tymoshenko case after seeing that no crime was committed, while the Zhvania case was transferred to another investigator after the 2004 Orange Revolution that propelled Viktor Yushchenko to the presidency.
Kyiv Post staff writer Oleg Sukhov can be reached at [email protected]. Kyiv Post legal affairs reporter Mariana Antonovych, who contributed to this report, can be reached at [email protected].
