After making very little progress in the four years after the EuroMaidan Revolution that drove President Viktor Yanukovych from power, high-profile investigations into the crimes of the former regime — as well as current crimes — face an even worse scenario: total collapse.
The reasons are manifold.
First, the Prosecutor General’s Office led by President Petro Poroshenko loyalist Yuriy Lutsenko legally had to transfer its cases to the State Investigation Bureau, which has not even been created yet. As a result, many cases are paralyzed.
Second, Lutsenko’s prosecutors are transferring top-level graft investigations to the National Anti-Corruption Bureau of Ukraine, overloading its tiny staff with work, effectively burying it with cases.
Third, procedural code amendments signed by Poroshenko on Nov. 22 make it much more difficult or even impossible to conduct criminal investigations in many cases, critics argue.
Poroshenko, Lutsenko and other top officials have denied accusations of sabotage, arguing that these processes are technicalities that will not harm the criminal cases.
Lutsenko and Chief Military Prosecutor Anatoly Matios have also faced criticism for Facebook posts that could violate the presumption of innocence – for example, they have called suspects “corrupt” without proving their guilt in court or disclosed their personal data. However, the Qualification and Disciplinary Commission of the Prosecutor General’s Office on Nov. 22 rejected the complaint against Matios.
NABU paralyzed
The NABU said on Nov. 15 that it would have to stop all of its ongoing graft investigations if the Prosecutor General’s Office transferred its cases to the bureau by the Nov. 20 deadline set by Ukrainian law.
The Prosecutor General’s Office is supposed to transfer about 3,500 cases to the NABU, which has only 200 detectives. This would effectively make both investigations into Yanukovych-era corruption and incumbent graft impossible, the bureau argued.
Lutsenko said on Nov. 20 that the Prosecutor General’s Office would start transferring its graft cases to the NABU, arguing that the bureau would be able to handle them.
Reformist lawmaker Sergii Leshchenko said that this was a ploy used by the authorities to destroy the NABU.
NABU Chief Artem Sytnyk said on Nov. 22 that he faced mounting pressure because of the bureau’s graft cases against top incumbent officials. The Prosecutor General’s Office on Nov. 16 opened a case against Sytnyk, accusing him of divulging a secret of the investigation during an interview with journalists, which he denies.
Saving loyalists
In another blow to the NABU, Chief Anti-Corruption Prosecutor Nazar Kholodnytsky failed to appoint a prosecutor for the NABU case into alleged graft at the National Agency for Preventing Corruption, blocking the investigation. Eventually Kholodnytsky asked Lutsenko to take the case away from the NABU, and Lutsenko sent it to the presidentially controlled Security Service of Ukraine, or SBU, on Nov. 17.
Lutsenko and Kholodnytsky attributed the transfer to NABU Chief Artem Sytnyk’s alleged conflict of interest because the NABU is investigating NAPC Chief Natalia Korchak over an undeclared Skoda Octavia A7 car.
The NAPC graft case was opened after Hanna Solomatina, a top official of the agency, accused it of being a political tool of President Petro Poroshenko, mass-scale corruption and forgery and provided documents that she says prove her claims.
The transfer of the case to the SBU is deemed by critics to be an effort to bury the investigation, since the SBU is controlled by the Presidential Administration, which was accused by Solomatina of influencing the NAPC. The administration denies the accusations.
Solomatina on Nov. 18 lambasted Lutsenko and Kholodnytsky for the decision, saying that the transfer of the case to the SBU would constitute a conflict of interest because her testimony implicates Serhiy Karpushin, an SBU official and simultaneously an advisor to Korchak.
Sergii Gorbatuk, head of the in absentia investigations unit at the Prosecutor General’s Office, and lawyer Vitaly Tytych told the Kyiv Post that the transfer of the case to the SBU was illegal because only the inefficiency of investigations can be legal grounds for such a transfer, and it has not been proven. They dismissed the conflict of interest justification because only a specific NABU detective, not the agency as a whole, can have a conflict of interest.
Moreover, the SBU has no right to investigate top-level graft cases under the law, and Lutsenko would have to change the Criminal Code article to transfer the case, which is an illegal manipulation, Gorbatuk added. The SBU did not respond to a request for comment.
Kholodnytsky has been repeatedly accused of blocking NABU investigations and being influenced by Poroshenko – accusations that he denies.
Blocked EuroMaidan cases
Since Nov. 20, the Prosecutor General’s Office has been stripped of investigative functions and has not been able to open any new investigations.
As an exception, the Prosecutor General’s Office can continue investigations that it opened itself for two more years after Nov. 20, 2017. The problem is that many of the investigations into the murders of and crackdowns on EuroMaidan protesters were opened by the police, not the prosecutor’s office, and have to be transferred to the yet-to-be-created State Investigation Bureau.
Moreover, graft cases against top Yanukovych-era officials cannot be continued by prosecutors and had to be transferred to the NABU after Nov. 20.
Gorbatuk said on Nov. 20 that, as a result, the EuroMaidan and Yanukovych-era graft cases had effectively stopped.
Lutsenko has dismissed this as a technicality, saying that he could transfer cases to the police and the SBU instead of the State Investigation Bureau until it is created.
But Gorbatuk said that this would constitute a conflict of interest since police officers and SBU officials are suspects in many EuroMaidan investigations. He said these cases would likely be closed by the police and the SBU.
Gorbatuk has repeatedly accused the Interior Ministry of obstructing EuroMaidan investigations by refusing to cooperate with investigators, supporting suspected police officers and failing to suspend them.
Tytych, a lawyer for the families of killed EuroMaidan protesters, said that now the authorities had effectively destroyed Gorbatuk’s department and blocked all EuroMaidan investigations in an effort to cover up for top incumbent officials implicated in the cases. Lutsenko has denied the accusations.
“Now they have decided to destroy our main achievements,” Tytych said. “They’ll tear the cases apart and destroy them and eliminate the evidence.”
Deadly amendments
Poroshenko on Nov. 22 also signed amendments to procedural codes that could make any criminal investigations impossible, according to Tytych and anti-corruption activists Vitaly Shabunin and Daria Kaleniuk. The authorities have denied the accusations, touting the amendments as a major judicial reform aimed at protecting suspects’ rights.
The NABU said on Nov. 15 that, if Poroshenko signs the amendments, this would lead to “the collapse of the work of the NABU and other investigative agencies, and paralyze Ukraine’s law enforcement system.”
Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, on Nov. 20 published what he says is evidence for the falsification of the procedural code amendments.
The amendments, which were passed by parliament on Oct. 3, may kill any corruption investigations due to the limited terms of investigation and other hurdles they impose. But it is not clear what the final text of the amendments is because it has not been published yet.
According to the initial text of an amendment initiated by Radical Party lawmaker Andriy Lozovy, prosecutors would have to file notices of suspicion for suspects in criminal cases within six months for grave crimes, and within three months for crimes of medium severity. Moreover, all cases must be sent to trial within two months after a notice of suspicion is filed, according to the amendment.
People’s Front lawmaker Leonid Yemets said on Oct. 5 that the final version of the codes envisaged a term of one-and-a-half years for grave crimes, and one year for crimes of medium severity. The courts will be able to block investigations by refusing to extend their terms, and their decisions to close cases cannot be appealed.
According to the amendments, corruption cases can also be blocked through appeals against notices of suspicion. The amendments also put an end to the judiciary’s transparency by allowing judges to ban even open trials from being filmed.
Moreover, the amendments were adopted amid numerous procedural and legal violations, since the lawmakers were not given the final text to read and thus did not know what they were voting for, while some lawmakers were filmed voting for others, which is illegal.
Gorbatuk said that many EuroMaidan cases would have to be closed due to the amendments.
There is still a chance, however, that the amendments will allow prosecutors to continue Yanukovych-era corruption cases but the final text is not known, Kaleniuk said.
Corrupt courts
To make matters worse, a lack of an independent judiciary will contribute to the collapse of the law enforcement system, lawyers and anti-corruption activists say.
Poroshenko on Nov. 10 signed the credentials of 25 new Supreme Court judges deemed corrupt or dishonest by the Public Integrity Council, a civil-society watchdog, and appointed many political loyalists to the court.
Iryna Lutsenko, Poroshenko’s representative in parliament, said on Nov. 6 that he was ready to submit to parliament within two weeks a bill to create an independent anti-corruption court. Poroshenko has failed to deliver on the promise.
