1. Introduction
‘The era of Viktor Yanukovych’s governance is best remembered not only for a variety of high-profile corruption scandals, in which the senior management of the state was involved, but also for the open inactivity of law-enforcement agencies in investigating these crimes. The main role in covering up ‘the corrupt people in power’ was played by the General Prosecutor’s Office of Ukraine, which, fulfilling the function of general supervision of compliance with the law in public administration, did everything in his power to ignore the crimes committed by government officials.
The overthrowal of the regime of Viktor Yanukovych evoked expectations regarding the change in the approach of the prosecutor’s office to its work. However, a year after the revolution, the crimes committed by Viktor Yanukovych and his entourage remain uninvestigated; perpetrators of high-profile corruption scandals and crimes against activists of ‘EuroMaidan’, as before, continue to succeed in evading criminal liability. None of the individuals who ordered the shooting of civilians in the centre of Kiev in January and February 2014 have been punished for their criminal actions.
The prosecutor’s office, which performs a key role in the system of law enforcement agencies of the state, remains corrupt and does not easily yield to any attempts aimed at its reform. A clear example is the resistance to lustration from senior management of the department.
On 10 February, 2015, Vitaliy Yarema was dismissed, and the position of General Prosecutor was taken by Viktor Shokin. Prior to that, he served as deputy to Vitaliy Yarema, thus he shoulders responsibility for the management of the General Prosecutor’s Office of Ukraine (GPU) overall as well as for the department’s poor performance.
Viktor Shokin is currently facing the challenge of not only improving the work of the GPU, but also initiating an investigation into Vitaliy Yarema and his deputies for their illegal actions undertaken (and inactions) during the execution of their duties.
2. Criminal prosecution of the Victor Yanukovych regime
2.1. The opening of criminal cases and formal identification of persons as suspects
The criminal cases against members of the Viktor Yanukovych regime are currently at the stage of pre-trial investigation. Eighteen former Ukrainian officials and one businessman are suspected of committing various criminal offences. They include:
The prosecutor’s office, which performs a key role in the system of law enforcement agencies of the state, remains corrupt and does not easily yield to any attempts aimed at its reform. A clear example is the resistance to lustration from senior management of the department.
- Mykola Azarov – former Prime Minister; on 26 September 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in his custody (Article 191, section 5 of the Criminal Code);
- Sergey Arbuzov – former head of the National Bank of Ukraine; on 19 May, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Raisa Bogatyreva – former Minister of Health. On 20 October, 2014, she was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Vitaliy Zakharchenko – former Minister of the Interior; on 25 February, 2014, he was charged with conspiracy to mass murder, abuse of power and official authority, as well as embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Articles 27, 115, 191, 365 of the Criminal Code);
- Yuriy Ivanyushchenko – former MP of Ukraine from the Party of Regions; on 29 December, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Alexander Klimenko – former Minister of Revenues and Dues; on 29 April, 2014, he was charged with abuse of power and official position (Article 364, section 2 of the Criminal Code);
- Andriy Klyuyev – former head of the National Security and Defence Council; on 23 December, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Yuriy Kolobov – former Finance Minister; on 30 September, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Rinat Kuzmin – former First Deputy General Prosecutor of Ukraine; on 29 May, 2014, he was charged with knowingly ordering illegal detentions or arrests, as well as of compelling a judge to knowingly issue an unjust verdict, decision or judgment (Articles 27, 371, 375 of the Criminal Code);
- Sergey Kurchenko – a businessman; on 17 March, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Andriy Portnov – former first deputy head of the Presidential Administration of Ukraine; on 29 December, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 3 of the Criminal Code);
- Mykola Prysyazhnyuk – former Minister of Agrarian Policy and Food; on 31 March, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Viktor Pshonka – former General Prosecutor of Ukraine; on 27 May, 2014, he was charged with abuse of power or position, and on 22 December, 2014, he was charged with suspicion of embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 364, section 2, Article 191, section 5 of the Criminal Code);
- Artem Pshonka – the son of Viktor Pshonka; on 29 December, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Viktor Ratushnyak – former Deputy Interior Minister; on 11 March, 2014, he was charged with abuse of power and official authority (Article 365 of the Criminal Code);
- Eduard Stavitskiy – former Minister of Energy; on 25 March, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Alexander Yanukovych – the son of former President Viktor Yanukovych; on 31 March, 2014, he was charged with tax evasion and forgery. On 23 December, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Articles 212, 358, Article 191 of the Criminal Code);
- Viktor Yanukovych – ex-president of Ukraine; on 25 February, 2014, he was charged with organising mass murder of people (Article 115 of the Criminal Code). On 26 September, 2014, he was charged with embezzlement or misappropriation of another’s property on a grand scale, which was entrusted to a person or in its custody (Article 191, section 5 of the Criminal Code);
- Alexander Yakimenko – former head of the Security Service of Ukraine; on 12 March, 2014, he was charged with abuse of power and official authority, as well as the establishment of terrorist groups (Articles 365, 258 of the Criminal Code).
All of them are currently hiding from prosecution outside of Ukraine (in Russia).
It is worth noting that suspicions were presented to some former officials (Mykola Azarov, Raisa Bokhatyryova, Andriy Klyuyev, Yuriy Ivanyushchenko, Andrey Portnov, Artem Pshonka) only at the end of 2014, when the Ukrainian society began to voice their extreme dissatisfaction with the GPU’s performance.
At the same time, charges have not been filed against other known associates of Yanukovych and participants of major corruption scandals: Alexey Azarov, Yuriy Boyko, Sergey Klyuyev, Elena Lukash, Dmitriy Tabachnik and Viktor Yanukovych Junior. The GPU is investigating into a number of criminal proceedings regarding the embezzlement of state property and abuse of power, in which these persons are undergoing verification in order to determine their possible involvement in the commission of such crimes. All of them, except for Yuriy Boiko and Sergey Klyuyev (who are MPs of Ukraine and have deputy immunity) are also in hiding outside of Ukraine.
Thus far, no criminal case against former senior Ukrainian officials has been submitted to court. The iinvestigation stage of the criminal proceedings against them continues.
2.2. Protraction of investigations in Ukraine adversely affects the international prosecution of the Viktor Yanukovych regime
Due to the inefficient and untimely actions of the General Prosecutor’s Office of Ukraine, the EU can lift the sanctions against the former members of the Yanukovich regime. Ukrainian law enforcement agencies have not been able to sufficiently substantiate charges against former officials, and due to this, the EU cannot continue to uphold the sanctions imposed upon some of them.
Let us remind ourselves that on 5 March, 2014, the Council of the EU decided to freeze the financial assets of former Ukrainian officials, suspected of misappropriating public funds and involvement in human rights violations in Ukraine.
The EU issued a decision to freeze their assets in order to enable the Ukrainian authorities to repatriate funds which may have been illegally transferred from the country. One of the main conditions for the imposition of sanctions by the EU was the promise made by the Ukrainian authorities that an investigation regarding former officials would be carried out and that official charges would be presented against them.
On 6 March, 2014, a decision of the Council of the EU came into force. The assets of 18 people: Viktor Yanukovich, Alexander Yanukovych, Viktor Yanukovych, Jr., Mykola Azarov, Alexei Azarov, Andriy Klyuyev, Viktor Pshonka, Artem Pshonka, Vitaliy Zakharchenko, Viktor Ratushnyak, Alexander Yakimenko, Igor Kalinin, Andriy Portnov, Elena Lukash, Sergey Klyuyev, Sergey Kurchenko, Dmitriy Tabachnik and Raisa Bogatyreva, were frozen.
On 15 April, 2014, another 4 men: Sergey Arbuzov, Yuriy Ivanyushchenko, Alexander Klimenko, and Eduard Stavitskiy were included in the list of persons subjected to sanctions.
The decision to impose sanctions is valid for 1 year from the date of its adoption.
Shortly after the freezing of assets, most of the Ukrainian officials subjected to sanctions (including former President Viktor Yanukovych) filed motions with the European Court in Luxembourg demanding that the decision of the EU to impose sanctions on them be cancelled in the absence of any formal charges against them on initiated by Ukraine. The motions were admitted and proceedings were commenced in their regard.
In order to prevent the unfreezing of financial assets of former officials, the General Prosecutor’s Office of Ukraine was supposed to gather evidence of their crimes, present formal charges and issue international arrest warrants for them.
They haven’t succeeded in doing so with respect to any of the fugitive officials. According to recent reports, the sanctions imposed by the EU against 14 individuals (the identities of whom have not yet been disclosed) will be extended for one year. With regard to 4 persons (including Viktor Yanukovych, Jr.) the sanctions will be extended for only 3 months in order to give Ukraine a chance to provide evidence of their guilt. The sanctions will definitely be lifted with respect to 4 persons (their names have not been disclosed, but most likely, they are: Igor Kalinin, Alexander Yakimenko, Olena Lukash and Andrey Portnov), as Ukraine was not able to provide evidence of their guilt.
Some persons suspected of committing various criminal offences:
- Mykola Azarov – former Prime Minister;
- Sergey Arbuzov – former head of the National Bank of Ukraine;
- Vitaliy Zakharchenko – former Minister of the Interior;
- Andriy Klyuyev – former head of the National Security and Defence Council;
- Yuriy Kolobov – former Finance Minister;
- Viktor Pshonka – former General Prosecutor of Ukraine;
- Viktor Yanukovych – ex-president of Ukraine;
- Alexander Yakimenko – former head of the Security Service of Ukraine;
The results of the GPU’s activities regarding the forced repatriation of representatives of Viktor Yanukovich‘s regime is considered to have been even less efective. Of 22 representatives of the former government, who Ukraine was trying to place on an international wanted list through Interpol, only 4 people were actually declared wanted: Viktor Yanukovych, Mykola Azarov, Eduard Stawitskiy and Yuriy Kolobov. Other requests have been rejected by Interpol, as they were considered to be potentially politically motivated. The GPU failed to sufficiently substantiate charges against former officials.
Thus far, it has been determined that the majority of fugitive officials are hiding from criminal prosecution in Russia. At the same time, the Ukrainian side makes barely any efforts to bring about their extradition to Ukraine. As late as on 6 February, 2015, Vitaliy Yarema stated in a report to the Parliament of Ukraine that the General Prosecutor’s Office addressed the General Prosecutor’s Office of the Russian Federation with a request to determine the whereabouts of, detain and extradite to Ukraine the former officials: President Viktor Yanukovych, Prime Minister Mykola Azarov, General Prosecutor Viktor Pshonka, Head of the Security Service of Ukraine, Alexander Yakimenko, Interior Minister Vitaliy Zakharchenko and his deputy Viktor Ratushnyak. Predictably, the General Prosecutor’s Office of the RF refused the request. Nevertheless, the question as to why the request was made only a year after Viktor Yanukovych and his entourage had fled Ukraine remains unanswered.
2.3. Failure to observe sanctions against members of the Viktor Yanukovych regime in Ukraine
Ukrainian authorities demand from the international community that sanctions be imposed on members of the Viktor Yanukovych regime; yet, they have failed to introduce similar sanctions in Ukraine. Some former Ukrainian officials, who fled the country after Euromaidan, find it relatively easy not only to avoid liability under the law, but also to protect their financial and property assets in Ukraine. Striking examples are the unfreezing of Sergey Arbuzov’s bank accounts and the failure to get attachment orders on the property of some representatives of the previous government.
The scandal which surrounds the unfreezing of Sergey Arbuzov’s banking assets has become one of the most notorious associated with the General Prosecutor of Ukraine. which occurred during the period when the office was headed by Vitaliy Yarema.
On 21 November, 2014, the Pechersk District Court in Kiev ruled to remove the attachment of property from Sergey Arbuzov and his wife Irina Arbuzova’s accounts in Ukrainian banks. The reason for the release of the assets was the fact that Sergey Arbuzov and his wife had not received a warning informing them that they were suspected of committing crimes, whilst the allegations became the grounds for freezing their accounts, and so they were not attributed the formal status’ of ‘suspect’ in criminal proceedings.
In fact, according to the GPU, Sergey Arbuzov was informed about the suspicions as early as on the 19 May, 2014, and so, in order to remove the attachment of bank accounts, the Judge of the Pechersk District Court in Kiev Vyacheslav Pidpaly, used false pretences.
This judgment became public only due to a leak from the court itself, an employee of which reported the incident to journalist Yuriy Butusov. It transpired that the court’s ruling was not published in the Unified Register of Court Rulings of Ukraine. This ruling was not published by the press service of the GPU. That is, the information was intentionally kept from the public.
According to Butusov, the removal the attachment from the Arbuzovs’ bank accounts was implemented as a result of collusion between senior officials of the General Prosecutor’s Office and Vyacheslav Pidpaly, the judge of the Pechersk District Court in Kiev. They acted in the interests of Sergey Arbuzov. Direct negotiations with the judge were carried out by the deputy chief of one of the departments of the GPU, Vladimir Orlov, whilenegotiations with Sergey Arbuzov (or his agent) were conducted by Anatoliy Danilenko and Nikolay Gerasimyuk, deputies of the former General Prosecutor Vitaliy Yarema (following Vitaliy Yarema’s ousting, they also left their posts).
After the judgment was handed down, it was intentionally prevented from being registered in the Unified Register of Court Rulings of Ukraine in order to conceal the incident from the public.
The information regarding the unfreezing of the Arbuzovs’ bank assets was published in the media on 24 November, 2014 and on the same day, according to the press centre of the GPU, a petition to freeze the banking assets was re-filed and admitted (according to Yuriy Butusov, part of the money had already been withdrawn). The GPU also began to verify the legality of the decision, handed down by Judge Vyacheslav Pidpaly. It is noteworthy that this was not done on the day when the illegal decision of the court was announced, although the hearing was attended by Prosecutor A. Popov.
Thus, in the case of the illegal unfreezing of the banking assets of Sergey and Irina Arbuzov, a criminal omission by the GPU is apparent, as it created the conditions for the withdrawal of Sergey Arbuzov’s liquid assets from Ukrainian banks.
On 5 December, 2014, criminal proceedings were instituted against Judge Vyacheslav Pidpaly. According to some media, he has already left the territory of Ukraine. Should this information be confirmed, it will be extremely difficult to prove that collusion between the GPU employees and Judge Vyacheslav Pidpaly Arbuzov took place in the interests of Sergey Arbuzov.
Failure to attach property of representatives of the Viktor Yanukovich regime serves as another example of non-compliance with sanctions imposed by Ukraine.
The GPU has repeatedly stated that all property of the former leadership of the country has been attached. However, as a result of investigations carried out by journalists, it was reported that former Ukrainian officials continue to freely control some of their assets in Ukraine. For example, in April 2014, Mykola Azarov’s Kiev apartment was sold, and in autumn 2014, Alexander Yanukovych’s house and Artem Pshonka’s apartment changed ownership. Thus far, Viktor Yanukovych’s apartment, Viktor Pshonka’s house (formally owned by his cousin) and Vitaliy Zakharchenko’s two apartments and a country house (formally owned by Zakharchenko’s company) have never been the subjects of an order of attachment.
3. Ineffective investigation into the crimes against the EuroMaidan activists
A year after Euromaidan, those guilty of murder and the battery of activists have yet to be brought to justice. Masterminds of the crimes managed to hide outside Ukraine, while those who executed the criminal orders (policemen and SBU workers) remain largely unpunished due to a protracted investigation and the inefficient conduct of the operation.
In June 2014, acting General Prosecutor Oleh Machnickiy presented a scheme relating to the assassinations of protesters during the Euromaidan protests. At the centre of the scheme was the ex-President of Ukraine Viktor Yanukovych, who gave a secret instruction to the Interior Minister Vitaliy Zakharchenko and the head of the Security Service of Ukraine, Alexander Yakimenko to use firearms and excessive force against the protesters.
According to the GPU, the former Prime Minister Mykola Azarov prompted the Cabinet of Ministers to adopt illegal decisions on 22 January, 2014 on the basis of which, the police used stun grenades, enhanced smoke grenades and water cannons without temperature restrictions against protesters.
The persons implicated in the murder of protesters on Independence Square also included the ex-Deputy Interior Minister Sergey Lekar, former director of the department of material support of the MIA, Pavel Zinov, former Deputy Interior Minister Viktor Ratushniak, former commander of the Interior Troops Stanislav Shulyak, former Assistant Minister of the Interior, Viktor Zubritskiy and former commander of the Kiev office of the special police forces ‘Berkut’ Sergey Kusyuk. In particular, the latter gave an order to Commander of the Special Forces Company Dmitriy Sadovnik to arm the personnel of the company and use firearms against protesters.
Dmitriy Sadovnik was the man accused of the directly ordering the killing of protesters on Independence Square. On 22 April, 2014, the court sanctioned the measure of restraint against him in the form of pre-trial incarceration. On 19 September, 2014, the preventive measure was changed from pre-trial incarceration to house arrest. On 4 October, 2014, it became known that Dmitriy Sadovnik had fled. Presumably, he is hiding in the territory of the Crimean peninsula or the Russian Federation. A criminal case on suspicion of knowingly issuing an illegal decision was instituted against Judge of Pechersk District Court, Svetlana Volkova, who had ruled to release Sadovnik and place him under house arrest. On 26 December, 2014, on the request of the GPU, the High Judicial Qualifications Commission of Ukraine ousted her from office.
Thus, all those suspected of involvement in the murders and the battery of protesters, except Sergey Lekar, have so far managed to evade prosecution and hide outside of Ukraine. Sergey Lekar was placed under house arrest in July 2014.
Those who carried out the criminal orders, in most cases, have not yet been brought to justice, as there are problems with the evidence bases and the identification of a number of persons involved in the crimes against the Euromaidan participants.
In fact, thus far, only two law enforcement officers have been held accountable for their criminal actions during Euromaidan. On 28 May, 2014, two soldiers of the Interior Troops received suspended sentences of 2 and 3 years’ imprisonment for beating Mikhail Gavrylyuk on 22 January, 2014. Also, currently, the cases of two employees of the ‘Berkut’ Special Police unit, involved in the murders of the Euromaidan participants, have been submitted to the court. For now, these remain the only ‘successes’, which Ukrainian law enforcement agencies and the GPU, in particular, can boast about. Murders, beatings and exertion of torture on activists, the beating of journalists and medical workers, illegal detentions and arrests throughout Ukraine – there are many instances of these crimes which are yet to be fully investigated.
It was only in December 2014 that a special department charged with investigating crimes against Euromaidan activists was established. This begs the question: why was the office established as late as at the end of 2014, rather than immediately after the revolution?
4. Investigation into the crimes in the east of Ukraine and the Crimea
The General Prosecutor’s Office of Ukraine provides procedural guidance of criminal proceedings initiated by the Security Service of Ukraine in respect of more than 300 individuals who had contributed to the annexation of the Crimea by the Russian Federation. They are accused of actions aimed at the violent change or overthrowal of the constitutional order or the seizure of state power (Article 1, Article 109 of the Criminal Code). Among the accused are self-proclaimed leaders of the so-called ‘Republic of Crimea’ Sergey Aksyonov and Vladimir Konstantinov. The management of the prosecutor’s office stated that Interpol had refused to issue an arrest warrant for these persons citing that the organisation’s charter prohibits engagement in cases of a political or military nature.
The General Prosecutor’s Office also provides procedural guidance in criminal cases against leaders of the unrecognised ‘Donetsk People’s Republic’ (DPR) and ‘Lugansk People’s Republic’ (LPR):
- A criminal case was instituted against Igor Girkin on charges of establishment of a terrorist group, committing a terrorist act, as well as organising mass disorder (Art. 258, 258.3, 294 of the Criminal Code);
- A criminal case was instituted against Pavel Gubarev on charges of committing actions aimed at the violent change or overthrowal of the constitutional order or the seizure of state power (Article 1, Article 109 of the Criminal Code);
- A criminal case was instituted against Igor Bezler on charges of organising mass disorder (Article 294 of the Criminal Code);
- A criminal case was instituted against Denis Pushilin on charges of establishment of a terrorist group and committing actions aimed at the violent change or overthrowal of the constitutional order or the seizure of state power (Articles 109, 110, 258.3 of the Criminal Code);
- A criminal case was instituted against Alexander Boroday on charges of establishment of a terrorist group and committing actions aimed at the violent change or overthrowal of the constitutional order or the seizure of state power (Articles 109 and 258.3 of the Criminal Code);
- Leaders of the LPR Igor Plotnytskiy and Alexander Popov have been presented with charges of kidnapping Ukrainian soldier Nadiya Savchenko. They are accused of illegal deprivation of liberty of a person, the illegal smuggling of people across the state border of Ukraine, as well as committing a terrorist act (Article 146, 258, 332 of the Criminal Code).
It is obvious that this list should be much longer, given the scale of the crimes in the east of Ukraine.
Yarema's successor
Viktor Shokinchosen by former members of the ‘Party of Regions’
Under public pressure, V. Yarema was forced to resign. The Verkhovna Rada of Ukraine by a majority of votes supported the nomination of Viktor Shokin for the post of the General Prosecutor of Ukraine. It is noteworthy that all members of the ‘Oppozitsyonnyi Blok’ voted in favour of Shokin.
The GPU displays ostensible passivity towards the investigation of war crimes in the east of Ukraine and the Autonomous Republic of Crimea. In particular, no criminal cases have yet been instituted against government officials of the Russian Federation, involved in organising the capture of military units and office buildings in the Crimea and eastern Ukraine, as well as those responsible for the military and financial support of separatists in eastern Ukraine.
Investigations into specific cases involving calls in support of separatism in the South-East of Ukraine have proven to be unsatisfactory.
In particular, those who haven’t been brought to criminal liability, include: the Mayor of Kharkov, Gennady Kernes, and former Head of Administration of the Kharkiv Province, Mikhail Dobkin, who were the organisers and active participants of the Congress of MPs of the South-Eastern Provinces of Ukraine, which was held in Kharkiv in February 2014. Members of the Congress were in favour of the federalisation of Ukraine. The congress was attended by MPs of the State Duma of the Russian Federation, Alexey Pushkov and Mikhail Margelov. After the congress, Dobkin and Kernes hurriedly left for Russia. With regard to Dobkin, criminal proceedings were initiated in connection with suspicions of violations of the territorial integrity of Ukraine (Article 110, section 2 of the Criminal Code), but in August 2014, the case was closed due to a lack of evidence. Gennady Kernes has not been declared a suspect in connection with his role in promoting seperatistism. Currently, he is suspected in the kidnapping of activists of the Kharkov Euromaidan.
Also, those who are yet to face criminal liability include persons, who on 8 May, 2014, issued a decision to release Konstantin Dolgov, co-chairman of the movement ‘People’s Front of New Russia’ and one of the leaders of the pro-Russian demonstrations in Kharkiv from custody in which they were being held pending trial. Also, assassinations, kidnappings and acts of torture against people in the territories of Ukraine, occupied by Russia, have not been duly investigated. A striking example is the case of the murder of Vladimir Rybak, a member of the Gorlovka District Council in April 2014. The assassination has not yet been investigated and the perpetrators have not been brought to justice.
5. Obstruction of lustration in prosecution bodies
Immediately after its adoption by the Parliament, the Law ‘On purification of Government’ (lustration law) was criticised by the then General Prosecutor Vitaliy Yarema, who labelled the law ‘not consistent with the Constitution of Ukraine and international legal standards’. Shortly after taking office, the new General Prosecutor Viktor Shokin also stated that he considered the Law ‘On purification of Government’ underdeveloped. “I will approach each lustration case individually, and this regards not only prosecutors of the regional level, but also all employees of prosecutor’s offices, as they’re all people. If anyone is guilty, naturally, they will be dismissed,” – Shokin stated. Rather than to simply comply with the Law ‘On purification of Government’, former General Prosecutor Vitaliy Yarema, and now also the newly appointed Viktor Shokin, publicly confirmed their selective approach to its implementation. It is obvious that such a position, represented by high-ranking officials, not only raises suspicion with regard to their political apathy, but also adversely affects the stability of the state in its period of transformation. Additionally, it may indicate their ties with the old, pre-revolutionary system, the final dismantling of which was the very purpose behind the Law ‘On purification of Government’.
During the first wave of lustration 156 people have been dismissed from their posts in the prosecution bodies. 120 of them appealed against their dismissal in court. In approximately 50% of the cases, the court decided to suspend the consideration of the prosecutor’s claims until the Constitutional Court handed down its ruling regading the constitutionality of the Law ‘On purification of Government’. Prosecutors were also dismissed from their posts. Lest we forget that a month after the entry into force of the Law ‘On purification of Government’, the GPU announced its intention to lay off approx. 1,000 workers whilst the Office employs a total of 20,500 people overall.
Immediately after its adoption by the Parliament, the Law ‘On purification of Government’ (lustration law) was criticised by the then General Prosecutor Vitaliy Yarema, who labelled the law ‘not consistent with the Constitution of Ukraine and international legal standards’. Shortly after taking office, the new General Prosecutor Viktor Shokin also stated that he considered the Law ‘On purification of Government’ underdeveloped.
Ukraine’s first court decision on the reinstatement to office of officers subjected to lustration was issued in relation to a worker of the prosecutor’s office. And so, in November 2014, Kharkov Judge Valentina Samoylova, illegally reinstated prosecutor Vladimir Sukhodubov as the head of the Personnel Department of the Prosecutor’s Office of Kharkov Province. Under public pressure, Vladimir Sukhodubov was forced to withdraw his claim, previously filed in the court, to be reinstated in office. This case clearly illustrates that prosecutor’s offices and courts are dependent bodies, which, having close corruption ties, will hamper the implementation of lustration in Ukraine.
Another method which workers of prosecutor’s offices resort to in order to avoid lustration involves the status of ‘participant of the antiterrorist operation (ATO) in the east of Ukraine’. Persons who hold this status, according to the Law ‘On purification of Government’ are exempt from lustration (Article 7, section 1). According to the existing regulations, the status of an ATO participant may be granted not only to soldiers who take part in military operations, but also to those who are engaged in the ‘facilitation of conducting the ATO’.
A case in October 2014, when in Kramatorsk (Donetsk region) a theoretical and practical seminar (organized by the General Prosecutor Office) for employees of prosecutor’s offices was held, has become widely known. The seminar was attended by 52 prosecutors, each of which occupies a high position in the prosecutorial bodies. The mere fact of their presence in the ATO zone could have served as a pretext for assigning individuals the status of ATO participant. The participants of the seminar included: Prosecutor of Donetsk Province, Nikolay Frantovskiy (was fired 14.02.2015), Military Prosecutor of the Southern Region of Ukraine, Pavlo Bogutskiy and Military Prosecutor of the Central Region of Ukraine Yuriy Viytev. All of them should have been dismissed as early as the first wave of lustration due to the fact that during the presidency of Viktor Yanukovych, they held senior positions in the central apparatus of the GPU. They managed to avoid dismissal due to their statuses as ATO participants. It is possible that they were granted this status due to their participation in the seminar.
Officially, the status of an ATO participant is granted on the decision of the Special Interdepartmental Commission. Formally, everything was done legally; however, it is obvious that trips to the east of Ukraine are purposely organised for high-ranking workers of prosecutor’s offices in order so that they could obtain the status of ATO participant.
On 14 February, 2014, the new General Prosecutor Viktor Shokin signed a decree on the dismissal of Nikolay Frantovskiy from the department. However, Frantovskiy’s name does not appear in the registry of persons who have been subjected to the execution of the Law ‘On purification of Government’. This indicates that the prosecutor of Donetsk Province was not dismissed from his job due to lustration, although there are serious grounds to do so.
And so, Nikolay Frantovskiy held the post of Prosecutor of Donetsk Province from March 2014. Prior to that, he served as a prosecutor of Zhytomyr Province (from 2007 to 2011), as well as Deputy Head of the Main Directorate for the Support of Public Prosecution in the Courts at the General Prosecutor’s Office of Ukraine (from 2011 to 2014). According to the Law ‘On purification of Government’, Frantovskiy should have been automatically dismissed in October 2014; however, he filed a lawsuit in which a request was made that the then General Prosecutor Vitaliy Yarema did not dismiss him until the legality of his dismissal had been examined on the basis of the Law ‘On purification of Government’. The court dismissed the claim, but Nikolay Frantovskiy remained in his post. In January 2015, he was granted the status of ATO participant in eastern Ukraine, which allowed him to avoid further lustration measures.
On 14 February, 2015, Vladimir Orlov, another senior official of the GPU who had long evaded lustration, was dismissed from his job. Contrary to the Law ‘On purification of Government’, he managed to hold several senior positions in the central office of the General Prosecutor’s Office of Ukraine. During the presidency of Viktor Yanukovych, Vladimir Orlov headed the Sumy Customs Office (from 2010 to 2012), as well as the Lugansk Customs Office (from 2012 to 2014), and earned a reputation as a ‘jobster’. In August 2014, Vladimir Orlov was appointed Deputy Head of the GPU to protect the rights and freedoms of citizens and interests of the state, supervise the observance of the law in the Special Forces and other bodies fighting against organised crime and corruption.
In November 2014, an attempt was made to appoint Vladimir Orlov to a higher position: Head of the Directorate for Procedural Guidance in the Proceedings of Investigators of the Central Office of the General Prosecutor’s Office, yet this provoked a public outcry, which resulted in the department issuing a statement in which it denied the possibility of Orlov being appointed to a position in high office. In December 2014, Orlov was appointed Deputy Head of the Main Directorate for Procedural Guidance and Supervision of the Observance of the Law by Special Forces and Other Bodies Fighting Against Organised Crime and Corruption, in the area of transport and in criminal proceedings of the investigating authorities of the GPU. Thus, the desire of the previous management of the GPU to maintain Vladimir Orlov’s position in one of the highest positions in the department’s central office is evident. Orlov’s appointment to the post of deputy head is an example of an attempt to evade lustration by transferring officials to lower positions.
Similarly to Nikolay Frantovskiy, Vladimir Orlov is not listed in the registry of people subjected to lustration, although he falls under the criteria of lustration. This may pave the way for further re-appointments to high positions in the GPU in the near future.
6. Persecution of the kazakh opposition
The Ukrainian Prosecutor’s Office is not only unable to combat the negative consequences of the authoritarian regime in Ukraine, but it also continues to participate in corrupt schemes along with other authoritarian regimes of the former Soviet space.
The published evidence (part 2, 3, 4) of Kazakhstan’s influence exerted on Ukrainian investigative authorities in order to fabricate an extradition request for Kazakh opposition politician Mukhtar Ablyazov, captured the headlines.
It is common knowledge that through the Ukrainian law firm ‘Ilyashev and Partners, the Kazakh side transferred Ablyazov’s personal data to an investigator of the MIA of Ukraine, Maksim Melnik (who was running the case against Mukhtar Ablyazov); it drew up interrogation reports, written allegations and requests for extradition for the investigator; discussed with the investigator, the requests for disclosures of bank secrecy; provided guidance on the placing of Mukhtar Ablyazov on the Interpol wanted list.
According to published documents, in August 2014, Deputy General Prosecutor of Kazakhstan, Mr. Andriy Kravchenko met with Deputy General Prosecutor of Ukraine, Mr. Vitaliy Kasko and the General Prosecutor, Mr. Vitaliy Yarema, in order to discuss the case of Ablyazov. In his statement, Mr. Kravchenko uttered the words: “We are grateful to our Ukrainian colleagues for their decisive actions regarding the criminal prosecution of Ablyazov’s group”.
On 11 September, 2014, a lawyer from the firm ‘Ilyashev and Partners’, Roman Marchenko reported to the leadership of Kazakhstan’s BTA Bank as follows: “Colleagues! I am pleased to announce that we have ‘advanced’ our investigators with regard to M. Ablyazov[‘s case]; namely, a criminal case under Article 190, section 4 of the CC of Ukraine was instituted with regard to M. Ablyazov… The key element of the prosecution is that there was an organised criminal group ‘Ablyazov, Zharimbetov and others’.
On 2 September, 2013, the firm ‘Ilyashev and Partners’ made an offer to the GPU to engage lawyers on an ex gratia basis (the legal fees totalled 320,000 euros and were paid by Kazakhstan’s BTA Bank in agreement with the GPU) in order to ‘ensure the representation’ of the interests of Ukraine in a French court; in response to that, on 13 November, 2013, they received a reply from the GPU stating: “I have no objections”. Thus, the GPU has agreed to the representation of the interests of Ukraine by a company which provides services to Kazakhstan’s BTA Bank. In turn, ‘Ilyashev and Partners’ instructed lawyers from ‘Winston & Strawn LLP’ to participate in the case. On 18 November, 2013, the investigator Maksim Melnik issued a document entitled ‘Permit to appear in court’, which authorised ‘Winston & Strawn LLP’ to represent Ukraine in court. Under the law, foreign lawyers should receive remuneration for such services from the state budget of Ukraine following the conclusion of an agreement with the Ministry of Justice.
The issuance of the mandate for ‘Winston & Strawn LLP’ by the investigator contravenes Ukrainian legislation. The right to delegate to a law firm, the authority to represent Ukraine at an extradition hearing is not a privilege legally afforded to an investigator of the Ministry of Internal Affairs, but the GPU (Art. 575 of the CCP). That is why, ‘Ilyashev and Partners’ strived to get the GPU’s confirmation regarding this mandate for several months. The influence exerted on the GPU came from the Kazakh prosecutor’s office.
On 25 September, 2014, the Court in Lyon questioned the legality of the mandate acquired by ‘Winston & Strawn LLP’, and forbade the firm from participating in the extradition proceedings.
The incidents of undue influence by the Kazakh authorities on the activities of the investigator Melnik received a lot of publicity; as a result, on 30 July, 2014, law enforcement bodies initiated a criminal case against Melnik and removed him from the Ablyazov case. Still, immediately after that, following the recommendations of ‘Ilyashev and Partners’, the Kazakh Prosecutor’s Office requested that their Ukrainian colleagues close the case against Melnik.
Following the meetings of representatives of Ukrainian and Kazakh prosecutor’s offices in August and September (from the Ukrainian side, the meetings were attended by Vitaliy Yarema and his deputy Vitaliy Kasko), Sergei Khodakovsky, an investigator of the Kiev Prosecutor’s Office has twice (on 25 September, 2014 and 20 October, 2014) issued an order to close the criminal case against Melnik. The draft decision was drawn up by ‘Ilyashev and Partners’, and the document, published by the investigator, replicated the content of the draft verbatim. As a result, on 17 December, 2014, the court ordered that the prosecutor’s office continued with the investigation in respect of Melnik, but the prosecutor’s office argued that it had not received the case file from the court.
According to the published documents, Viktor Shokin, occupying the post of Deputy General Prosecutor of Ukraine, oversaw the criminal case against Mukhtar Ablyazov.
7. Vitaliy Yarema’s ousting and the appointment of a new General Prosecutor
On 9 February, 2015, under public pressure, Vitaliy Yarema was forced to resign. On 10 February, 2014, the Verkhovna Rada of Ukraine by a majority of votes (318) supported the nomination of Viktor Shokin for the post of the General Prosecutor of Ukraine. It is noteworthy that all members of the ‘Oppozitsyonnyi Blok’ [‘Opposition bloc’], consisting of former members of the’Partia Regionov’ [‘Party of Regions’], voted in favour of Shokin.
Year after the victory of the revolution, serious crimes of the former government have not yet been investigated and the perpetrators have not yet been punished. The blame for this state of affairs lies with the law enforcement bodies and, in particular, with the General Prosecutor’s Office, headed, until recently, by Vitaliy Yarema.
In 2005, whilst fulfilling the duties of Deputy General Prosecutor of Ukraine, Viktor Shokin voiced the opinion that Interior Minister Yuriy Kravchenko, who had died under mysterious circumstances in March 2005, took his own life by shooting himself in the head twice. Presumably,Yuriy Kravchenko could have had a conflict of interest with Ukrainian President Leonid Kuchma and his entourage.
It is a well-established fact that close relatives of Viktor Shokin occupy high positions in the prosecutorial bodies of Ukraine and that they were appointed after Viktor Shokin took up the role of Deputy General Prosecutor of Ukraine in June 2014.
In particular, in November 2014, Shokin’s daughter, Tatiana Gornostayeva was appointed Deputy Prosecutor of the Prosecutor’s Office of Odessa Province. Her husband, Alexey Gornostayev, was appointed Deputy Prosecutor of the Kiev District in Odessa in September 2014. In October 2014, Alexey Gornostayev’s father, Nikolay Gornostayev was appointed Deputy Prosecutor of Dnepropetrovsk Province. Thus, career advancements of Viktor Shokin’s relatives coincided with his tenure as Deputy General Prosecutor of Ukraine.
On 16 February, 2015, Viktor Shokin appointed two deputies – Vladimir Guzyr and David Sakvarelidze. The former is famous for having represented the state prosecution in one of the first political processes in the history of Ukraine: the case against Boris Feldman and the ‘Slavyanskiy’ bank in the early 2000s. The criminal case against Feldman was initiated illegally; it was accompanied by multiple violations and attracted the attention of the international community. David Sakvarelidze, in turn, is one of the members of the ‘reform’ team of the President of Georgia, Mikheil Saakashvili; in the past, he held the position of Deputy General Prosecutor of Georgia and the Prosecutor of Tbilisi. Society is pinning its hopes on the appointment of Sakvarelidze, as they are yearning for real reform in the Ukrainian Prosecutor’s Office. Time will tell whether he can successfully take advantage of his previous experience in Georgia or whether his appointment will serve purely to cleanse the public image of the GPU.
8. Conclusions
One of the key promises of the new Ukrainian government to the Ukrainian people and the international community was bringing to criminal responsibility Viktor Yanukovych and his closest associates, involved in major economic crimes, the usurpation of power in Ukraine and crimes against Euromaidan activists.
Unfortunately, we must state that a year after the victory of the revolution, serious crimes of the former government have not yet been investigated and the perpetrators have not yet been punished. The blame for this state of affairs lies with the law enforcement bodies and, in particular, with the General Prosecutor’s Office, headed, until recently, by Vitaliy Yarema.
The failure to investigate the high-profile criminal proceedings and poor supervision of observance of legislation by bodies, involved in operational and investigative activity, interrogations and the pre-trial investigation of these proceedings by General Prosecutor’s Office sets a precedent for evading responsibility for those crimes by high-ranking officials and undermines the authority of Ukraine in the international arena.
The new leadership of the General Prosecutor’s Office should not mirror the mistakes of their predecessors. The department must make every effort to investigate the resonant crimes committed by representatives of the Viktor Yanukovych regime. A competent and thorough investigation is also required with regard to the activity (or criminal inactivity) of Vitaliy Yarema during his tenure as the General Prosecutor of Ukraine, as well as the activities of other senior executives of the central apparatus of the GPU.
In this connection, we consider it necessary to:
- Bring to criminal responsibility the former senior management of the General Prosecutor’s Office of Ukraine (Vitaliy Yarema and his deputies), which allowed the delay of the urgent investigative activities in respect of Viktor Yanukovych and his associates. This prevented the adoption of lawful and objective decisions regarding the bringing of the perpetrators to justice for the committed crimes.
- Conduct a thorough, impartial and independent investigation into all cases of unlawful use of force by representatives of law enforcement bodies during the Euromaidan protests;
- Accelerate the investigation of criminal cases where suspects are former Ukrainian officials on whom the European Union imposed sanctions in March 2014.
- Re-submit requests to Interpol to place members of the Viktor Yanukovych regime on the international wanted list.
- Accelerate the investigation of corruption offences which allegedly involved the current deputies of the Verkhovna Rada of Ukraine, Yuriy Boyko and Sergey Klyuyev.
- Carry out a verification of the legality of tenure in connection with the Law ‘On purification of Government’ of the following persons: Nikolay Frantovskiy (Prosecutor of Donetsk Province until 14 February, 2015), Pavel Bogutskiy (Military Prosecutor of the Southern Region of Ukraine), Yuriy Viytev (Military Prosecutor of the Central Region of Ukraine), Vladimir Orlov (Deputy Head of the Main Directorate for Procedural Guidance and Supervision of the Observance of the Law by Special Forces and Other Bodies Fighting Against Organised Crime and Corruption in the sphere of transport and in criminal proceedings of the investigating authorities of the GPU until 14 February, 2015).
- With regard to Nikolay Frantovskiy and Vladimir Orlov, who were dismissed from their jobs on 14 February, 2015, provisions of the Law ‘On purification of Government’ should be applied, and their names should be entered in the Unified State Register of persons with respect to whom the provisions of the law have been applied.
- Investigate into the matter of unfreezing Sergey and Irina Arbuzov’s bank accounts in order to detect possible collusion between Judge Vyacheslav Pidpaly and employees of the prosecutor’s office: Vladimir Orlov, Anatoly Danilenko and Nikolay Gerasimyuk.
- Withdraw the request for the extradition of Mukhtar Ablyazov, as it was filed as a result of corrupt collusion between the Ukrainian and Kazakh prosecutors and is harmful to the international reputation of Ukraine.
All those willing to support our demands are welcome to address their appeals to the General Prosecutor Viktor Shokin: 01011, Kiev-11, 13/15 Reznitskaya Street.
For more detailed information, please address:
Andriy Osavoliyk – [email protected]
Lyudmyla Kozlovska – [email protected]
