The main reason President Volodymyr Zelensky and his party used for appointing Iryna Venediktova as prosecutor general on March 17 was to satisfy the popular demand for justice for top corrupt officials.
Indeed, justice has been slow in coming – so far, not a single top official has been successfully prosecuted in the entire history of independent Ukraine.
Venediktova has promised to deliver results. As acting head of the State Investigation Bureau, she drafted charges for ex-President Petro Poroshenko in February.
However, the key question is whether Venediktova will prosecute suspects lawfully or will opt for violations of the rule of law and selective justice.
There are already concerns because the charges her bureau drafted against Poroshenko were lambasted by legal experts as lacking legal grounds.
Venediktova is seen as a staunch loyalist of the president, like almost all of the previous prosecutors general. This highlights the continued lack of independent law enforcement institutions in Ukraine, with top politicians preferring their friends to independent professionals.
Another key question is whether Venediktova will continue the prosecution reform launched by her predecessor Ruslan Riaboshapka. Her opponents already see her appointment as the comeback of the old guard and the victory of corrupt officials and oligarchs like Ihor Kolomoisky, whose allies pushed for Riaboshapka’s dismissal.
“I promise not to sell criminal cases, not to sabotage them and not to reinstate tainted prosecutors,” she said in the Rada on March 17.
She also pledged to “comply with the rule of law and build a prosecution service in line with international standards.
Venediktova and the Prosecutor General’s Office did not respond to requests for comment.
Loyalty
A staunch loyalist of Zelensky, Venediktova is unlikely to go after the president’s allies. Zelensky became her ticket to politics in 2019.
Venediktova, 41, was born in Kharkiv and used to be a law professor at Kharkiv Karazin University before entering politics in 2019.
She said in a 2019 interview that she had gotten acquainted with Zelensky in October 2018 and had become an advisor on legal affairs for his presidential campaign.
Venediktova was elected as a lawmaker from Zelensky’s Servant of the People in July 2019 and became the head of the Rada’s legal policy and justice committee. In December 2019 she was appointed as the State Investigation Bureau’s acting chief.
“Between professionalism and loyalty, Zelensky stubbornly keeps choosing the latter,” Oleksandr Lemenov, a former aide to Riaboshapka and head of civic watchdog StateWatch, wrote on Facebook. “As a result, this will lead to a complete political fiasco of (Zelensky), who appeared a year ago ready to change a lot in the country. She is not a specialist in criminal law and is a political representative — all goals set by the Presidential Office will be carried out without any complaints.”
Responding to accusations that Zelensky appoints loyalists over professionals, the president’s spokesperson Yulia Mendel said that “the prosecutor general is nominated by the president and approved by parliament, and the Rada can either approve or not approve.”
Poroshenko cases
One of the key issues is whether Venediktova will charge Poroshenko and other former top officials lawfully or will sign flawed notices of suspicion that will be viewed as lawless political persecution.
Commenting on whether she would sign charges for Poroshenko in the Rada on March 17, Venediktova said that “everything that can be completed quickly and lawfully will be completed quickly and lawfully.”
“Currently we have a situation in the country that we don’t have time to procrastinate,” she added.
Responding to accusations that she was appointed to persecute political opponents, Venediktova said in the Rada that “there is no political persecution in Ukraine but a thief must be in jail” – an apparent reference to representatives of the previous administration.
In February, the State Investigation Bureau, which was then headed by Venediktova, drafted charges for Poroshenko and passed them to Riaboshapka for signing. Poroshenko sees the cases as an unlawful political vendetta.
According to the Kyiv Post’s sources inside the Prosecutor General’s Office who weren’t authorized to speak to the press, Riaboshapka rejected the drafts because they were of poor quality.
Specifically, the Prosecutor General’s Office refused to authorize abuse of power and usurpation of power charges against Poroshenko for his allegedly illegal appointment of two members of the High Council of Justice in May. In April, a court banned Poroshenko from appointing them because competition procedures had allegedly been violated.
Another case where Riaboshapka’s office reportedly refused to press charges alleges that Poroshenko abused and usurped power by appointing a notorious official, Serhiy Semochko, to a position in the Foreign Intelligence Service that didn’t legally exist.
“Poroshenko violated the law (by appointing High Council of Justice members) but I don’t think it was a crime,” Judge Larysa Golnyk told the Kyiv Post. “This can be compared to Zelensky’s actions.”
Ironically, Zelensky himself scheduled a competition for two High Council of Justice jobs in June and then changed the rules of the competition before it was completed in a way similar to Poroshenko, refusing to appoint one of the nominees.
Two other judges also agreed that Poroshenko violated the law. They spoke off the record because they said they have no right to influence investigations.
“Poroshenko changed the procedure to appoint High Council of Justice members before the new president (Zelensky) took over,” one of the judges said. “Why? He realized that the commission could select people other than the ones he wanted to be appointed.”
Vitaly Tytych, a former coordinator of civic watchdog Public Integrity Council, said that Poroshenko broke the law by appointing the High Council of Justice members and Semochko and said that there could be grounds for charging him with abuse of power, but not with the usurpation of power in this case. However, the draft charges do not contain any convincing evidence of either of the crimes and everything depends on whether such evidence will ever emerge in this case, he added.
The charge of usurpation of power is unfounded, given that Poroshenko already had power and did not take away the authority of any other institutions in this case, former top investigator Sergii Gorbatuk said. He added, however, that the abuse of power charge in the Semochko case could be lawful since he got a job that didn’t exist and caused losses to the state by getting wages.
However, the State Investigation Bureau has no jurisdiction to investigate abuse of power cases if they are not combined with other charges within its jurisdiction.
Yanukovych-era cases
There are also doubts that Venediktova will be willing to prosecute crimes into the era of ex-President Viktor Yanukovych, including the murder of dozens of protesters during the 2013-2014 EuroMaidan Revolution.
In January Venediktova appointed Oleksandr Babikov, Yanukovych’s former defense lawyer, as the first deputy head of the bureau. The bureau has been investigating cases against Yanukovych in which Babikov had represented him.
The National Agency for Preventing Corruption is currently considering a complaint that Babikov’s appointment was a violation of conflict of interest rules under the anti-corruption law. Moreover, the law on defense lawyers explicitly says that lawyers cannot switch sides in a criminal case, which constitutes a conflict of interest.
Also in January, Venediktova made Oleksandr Buryak the bureau’s top investigator in charge of EuroMaidan cases.
Buryak, a former deputy of ex-State Investigation Bureau Chief Roman Truba, was appointed to the bureau in a selection process that civic activists claim was rigged in 2017. Buryak was among the officials featured in alleged audio recordings implicating judges of the Kyiv Administrative District Court in obstruction of justice.
Moreover, Venediktova and Riaboshapka decided not to file charges for several other judges drafted by ex-investigator Gorbatuk’s unit, as well as for an ex-judge of the Constitutional Court accused of helping Yanukovych usurp power. Yanukovych and the judge are under investigation for unlawfully canceling the 2004 constitutional amendments on expanding the Verkhovna Rada’s powers and thus increasing Yanukovych’s authority.
In her defense, Venediktova has said she had been actively pursuing EuroMaidan cases as head of the bureau. During her stint, charges for several judges accused of issuing unlawful rulings against EuroMaidan protesters were filed.
These charges were initially drafted when Gorbatuk was the top investigator for EuroMaidan cases until October.
Venediktova has also been lambasted by the opposition for supporting the cancellation of a 2014 law that exempts participants of the EuroMaidan Revolution from criminal responsibility. The opposition fears that this will lead to the prosecution of EuroMaidan protesters.
However, lawyers for EuroMaidan protesters and Gorbatuk have criticized this law as unconstitutional and unenforceable. They argue that the law actually thwarts cases into crimes against EuroMaidan protesters and against potential agent provocateurs among them.
Prosecution reform
Venediktova’s critics like Lemenov see Venediktova’s appointment as the triumph of the old prosecutorial guard and argue she will reverse the cleansing of the prosecution service under Riaboshapka.
According to the Kyiv Post’s sources in Zelensky’s party and the Prosecutor General’s Office who declined to comment on the record as they are not authorized to speak with the press, Serhiy Kiz will be appointed deputy prosecutor general.
Kiz, a former deputy prosecutor general, made some decisions viewed as sabotage by lawyers for EuroMaidan protesters. In August he closed a case against ex-Verkhovna Rada Deputy Speaker Ihor Kaletnik, claiming that he committed no crime. The case involved alleged violations during the adoption of the so-called “dictatorship laws” of Jan. 16, 2014, which restricted the right to protest and other civil liberties. Kiz didn’t reply to a request for comment.
Venediktova herself promised to continue prosecution reform, however.
“We need to make very necessary and lawful decisions to continue the prosecution reform without any imbalances on the one hand and to make sure that absolutely lawful procedural decisions take place,” she said without elaborating. The remark was an apparent reference to the reinstatement of prosecutors by courts.
There are concerns that Venediktova may reinstate tainted prosecutors fired under the 2014 lustration law on the dismissal of Yanukovych-era officials and those dismissed as a result of vetting carried out by Riaboshapka in 2019.
Under Ukrainian law, there are many procedural safeguards that make it difficult to fire prosecutors as part of efforts to protect individual prosecutors’ independence.
Riaboshapka initially claimed he would bypass such safeguards by liquidating the old Prosecutor General’s Office and creating a new entity. Thus, he claimed, the safeguards will not apply to the new entity, and courts will not reinstate fired prosecutors.
However, the Prosecutor General’s Office has not been formally liquidated but has been just renamed, according to the official register. Moreover, courts have already ruled to reinstate several lustrated prosecutors and several of those fired as part of Riaboshapka’s reform.
It is also unclear whether the reform will be fair and transparent.
One of the complaints against Riaboshapka was that his vetting of prosecutors, during which 55.5 percent of prosecutors at the central office were fired, lacked transparency. Specifically, the Prosecutor General’s Office has not published videos of interviews with prosecutors and decisions on why specific prosecutors were fired or kept in office.
The Prosecutor General’s Office declined to respond to requests for comment by the Kyiv Post on the reasons for the successful vetting of several controversial prosecutors. It also failed to respond to several complaints on the alleged crimes of the prosecutors submitted by lawyer Tytych.
