It has been two years since the High Anti-Corruption Court made its first judgment. Since then judges have delivered 45 verdicts, and among the convicted are members of parliament, judges, prosecutors, lawyers, heads of state enterprises, and so on.
But there are complaints that the High Anti-Corruption Court, the National Anti-Corruption Bureau of Ukraine and the Special Anti-Corruption Prosecutor’s office are not touching the “big fish.”
Several cases are, indeed, delayed often because of the behavior of the defendants and their lawyers.
Here is a status report:
Onyshchenko
Former member of parliament Oleksandr Onyshchenko and his associates sold natural gas of the state-owned 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 is $28 million.
The indictment against Onyshchenko 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 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 him.
Some 75 court meetings were scheduled in a 22-month period. The panel has to examine 50 of the 560 volumes of material and question about 25 witnesses.
Onyshchenko’s lawyers delayed the proceedings. Last October, for instance, three defenders left the meeting without permission, which disrupted the examination of the search video.
Judges appealed to the Qualification and Disciplinary Commission of the Bar for discipline because of the lawyers’ absence without good reason. However, the disciplinary bodies of the bar refused to initiate proceedings.
Judges are at least trying to ensure consideration in a reasonable time. Last July, they scheduled hearings 16 days in a month. This pace provides a chance that next year the case will be finished, at least in the first instance. Onyshchenko faces up to 12 years of imprisonment with confiscation of property.
Nasirov
Former head of the State Fiscal Service Roman Nasirov is accused of abuse of office and forgery. He allegedly 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 $75 million. His former subordinate, Volodymyr Novikov, is on the dock with Nasirov. They face up to 6 years of imprisonment.
Nasirov was detained at Feofania Hospital in 2017. At the end of November 2017, the indictment was sent to Shevchenko District Court of Kyiv. About 30 court meetings were scheduled during two years. But all this time, prosecutors simply read all 774 pages of indictment at the insistence of Nasirov’s lawyers.
In September 2019, the case was transferred to the High AntiCorruption Court. At the same time, legislation was change which allowed prosecutors to summarize the indictment in just 10 minutes.
Judges have already spent 22 months on the case. During this time, more than 60 court meetings were scheduled. Some of them were postponed due to the quarantine or the illness of judges or participants in the case.
Former lawyer of the accused Novikov tried to delay because of the coronavirus. 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 Oblast in self-isolation and could not attend court meetings, although prosecutors recorded his meeting with his client in Kyiv at the same time. This lawyer got replaced by a lawyer from the free legal aid system.
So far, the court has questioned several key witnesses, including Igor Bilous, who headed the State Fiscal Service in 2014, and Yuriy Dubynskyi, who was responsible for creating the fictitious enterprises for Onyshchenko.
Defendants keep 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. The accused now have only three meetings for each issue to announce their position regarding documents, which speeds up the consideration a little bit.
Judges respond adequately to the abuses of defense, trying to optimize work by changing the procedure, or finding opportunities to schedule additional meetings when there is free time on the schedule.
Martynenko
Ex-member of parliament Mykola Martynenko and accomplices are accused of organizing schemes of embezzlement of funds from the state enterprises SkhidGZK and Energoatom. The state allegedly suffered more than $26 million in damages. Martynenko faces up to 12 years of imprisonment with confiscation.
Ex-People’s Front party lawmaker Mykola Martynenko during considering the issuance of his arrest warrant in Kyiv’s Solomyansky Court on April 21, 2017. (Volodymyr Petrov)
The indictment was sent to Shevchenko 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 before, in November 2019, it was transferred to the High AntiCorruption Court.
The defense changed began to prolong consideration as much as possible, arrange hysterics, démarches, making unfounded appeals, doubtful resignations, initiating criminal cases against judges, changing lawyers and asking for a break of three or four months to study materials.
The behavior of some participants was simply inappropriate. One defendant was brazenly rude to judges. Lawyer Nonna Nadich arbitrarily left the court meeting to disrupt proceedings.
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 not allowed to open disciplinary proceedings. Judges’ appeals to the Higher Council of Justice with reports regarding interference in their activities also had no effect.
The case of a grenade explosion 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 Higher Council of Justice and the prosecutor general. As the result, as many as three criminal proceedings were registered.
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.
By contrast, Martynenko’s case regarding the laundering of 2.8 million euros in Switzerland was started in 2013 and sent to the court in December 2019. Six months later, the Swiss Federal Criminal Court sentenced the former member of parliament to 28 months of imprisonment. The case is currently in the process of appellate review.
Consideration of the case in Ukraine may go on forever with such delays provoked by defense and the lack of proper response from the disciplinary authorities.
Trukhanov
Odesa Mayor Hennady Trukhanov and his accomplices are accused of illegal seizure of $3.5 million from the local budget, 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 Odesa in late October 2018.
It was considered there in turbo mode. Almost 60 court meetings were scheduled for eight months, and the acquittal was adopted two months before the start of work of the High Anti-Corruption Court. The acquittal was reviewed by the appeals chamber of the High AntiCorruption Court. Despite all efforts of the defense, the appeals chamber cancelled the illegal acquittal. The case as sent for new consideration of the High Anti-Corruption Court.
More delays followed. Two defense lawyers did not appear in the court five times in a row. Judges complained about the lawyers to the Qualification and Disciplinary Commission, and one of them was even fined $500.
However, so far these methods did not work. Preparatory meetings were not held for seven months.
The amber case
Former members of parliament Maksym Polyakov and Boryslav Rozenblat and their accomplices are accused of receiving more than $300,000 in a scheme to obtaining permits for extracting amber. They face up to 12 years of imprisonment with the confiscation of property.
In October 2018, the indictment was sent to Holosiyivskyi District Court of the capital. However, it was transferred to Pechersk District Court a few months later, where the case stayed for another six months. Until in September 2019, it was finally sent to the Anti-Corruption Court.
A lawmaker from President Petro Poroshenko’s Bloc Borys Rozenblat listens his lawyer in Kyiv’s Solomyansky Court on July 18, 2017. (Volodymyr Petrov)
Judges scheduled 20 meetings during 21 months, but were unable to complete the preparatory proceeding. The vast majority of meetings did not take place for various reasons.
In total, the case materials have 111 volumes. The Special Anti-Corruption Prosecutor’s Office also plans to question 44 witnesses. After that, they can proceed to the study of defense’s evidence. However, given the pace, the chances of such development in the near future are almost zero.
How to solve the problem
Today, judges of the High AntiCorruption Court of Ukraine 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 court will receive indictments in cases of Kyiv District Administrative Court tape recordings, the PrivatBank and VAB Bank fraud cases and others.
To prevent delays, these changes should be made:
- The court should have the right to bring violators to administrative responsibility for showing contempt of court;
- it is also necessary to significantly increase the financial penalty for the refusal of participants to appear in court without sufficient reason. Today, the maximum penalty is an absurdly low $180.
- Improve disciplinary proceedings. During two years, judges sent about 40 claims to the Qualification and Disciplinary Commission. But only three lawyers were brought to responsibility. A large part of the bar community is a closed clan;
- The High Council of Justice, as the disciplinary body for judges, needs to be replaced.
- The workload of judges of the High Anti-Corruption Court should be lightened with the addition of more judges;
- Simple cases should be heard by a single judge rather than a panel.
Vadym Valko is a lawyer with the Anti-Corruption Action Centre in Kyiv.
