Prosecutor General Yuriy Lutsenko. Photo: Sputnik
A bit over a year ago in Ukraine, Yuriy Lutsenko was appointed to the position of Prosecutor General. The thing he did best during this year was to generate good PR for his activities, experts say. In the pursuit of impressive headlines (like the recent helicopter-assisted raid against taxmen conducted precisely at the time Lutsenko was reading his report to Parliament), substance has been tossed out the window.
Appointed after the scandalous dismissal of Viktor Shokin on 29 March 2016, Lutsenko, rumored to be President Poroshenko’s man, had the Parliament vote to change the law specifically to make it possible to be Prosecutor General without a legal education.
He promised to do what other Prosecutor Generals failed – to investigate who is guilty of killing Euromaidan protesters; to bring ousted President Yanukovych and his accomplices to responsibility; to return the assets they stole; and to reform the Prosecutor’s office (GPU), renewing trust in it and appointing truly independent prosecutors.
Let’s see what he achieved.
The “Trial of the Century”: bringing Yanykovych to responsibility
The start of the treason trial against ousted President Yanukovych is likely to be Lutsenko’s greatest accomplishment over this year.
As Yanukovych fled to Russia following the Euromaidan revolution, Lutsenko chose to open proceedings in absentia, for which he persuaded the Ukrainian parliament to change the law – previously, there was no possibility of such a form of trial. However, his subordinate Serhiy Horbatiuk, who heads the Office of Special Investigations which dealt with Yanukovych’s crimes, doesn’t agree neither with such a step nor with the speediness with which Lutsenko started the “Trial of the Century.” According to him, trials in absentia go against the Ukrainian Constitution and European conventions, in the result of which it’s even possible that Yanukovych will sue Ukraine in the European Court of Human rights. In response to Horbatiuk’s skepticism, Lutsenko reformed the Special Investigations Department, transferring the investigation of the economic crimes of Yanukovych to a more loyal subordinate.
Meanwhile, Anatoliy Matios, head of the Military prosecution, took on Yanukovych’s case, suggesting to use Yanukovych’s “invasion letter” demonstrated by Russia’s representative to the UN on 3 March 2014, in which Ukraine’s fugitive ex-president asked Russia to deploy troops to Ukraine, as proof of his state treason. Critics say this approach is far from being leakproof – to commit an act of treason, Yanukovych would need to be in a position of authority; however, at the time, Yanukovych was deprived of his presidency by a parliamentary decision.
So, despite Lutsenko taking great pride at the start of the trial, which received great publicity, the premises of the accusation are actually shaky.
Prosecuting Yanukovych’s “family”
Recently, Ukraine’s Justice Minister announced that in the 2.5 years of Yanukovych’s reign, the ousted ex-President and his surroundings stole $40 bn from Ukraine – a number equal to one annual state budget. From this $40 bn, $1.1 was arrested in Ukraine. The rest is now under different jurisdictions in different states, being withdrawn through complex schemes. Ukraine has not yet adopted the special confiscation mechanism which would enable the international cooperation making it possible to return those funds.
Lutsenko proclaimed that prosecuting these people who enriched themselves at the expense of ordinary Ukrainians was of prime importance. One year later, it didn’t happen. Vitaliy Shabunin, Head of the Anti-Corruption Action Center, claims that with the “trial in absentia” novelty made it possible to open proceedings against them. Despite this, the corruption crimes of Viktor Yanukovych, his son Oleksandr Yanukovych, ex-Minister of Interior Vitaliy Zakharchenko, ex-Prosecutor General and his son Viktor Pshonka, ex-Minister of Justice Olena Lukash, Andriy and Serhiy Klyuiev, ex-National Bank Head Serhiy Arbuzov, Azarov and many others are not proven (although a petition on the conviction of Azarov in absentia was submitted to the Pechersk court days ago).
“Nothing is confiscated, the cases are falling apart before our eyes.[…] These people are still under the sanctions of the EU and other countries. Each day of delay of the criminal cases against the figures of the sanction list gives more reasons for international institutions to consider these cases to be politically motivated and disintegrates the evidence already found,” Shabunin claims.
Proving Shabunin’s point, Interpol announced it was taking Viktor Yanukovych and his son off its wanted list. Out of 27 Ukrainian officials that were in Interpol’s database on August 2014, suspected of embezzlement of public funds and property, now there are none left. It is important to prove to Interpol that the suspect is implicated in criminal activity and is not merely facing political persecution.
Representatives of the GPU stated that Interpol’s decision was caused by flaws in the Ukrainian legal framework on applying preventive measures to wanted persons. But over the last year, the GPU had not raised the issue on amending Ukraine’s legislature to bring it in accordance with the demands of Interpol. Lutsenko shrugged off the incident, suggesting that Ukraine would submit a repeat application to Interpol after the final verdict of the court in Yanukovych’s case.
Signifying the lack of action against criminals of the old regime within Ukraine, on 18 May 2017 the Ukrainian Parliament, remarkably, failed to approve sanctions against Yanukovych allies.
Another cause for indignation inside Ukraine were Lutsenko’s actions to cover up a major corruption scandal involving Yuriy Boiko, currently the leader of the Opposition Bloc (successor to Yanukovych’s Party of Regions). Boiko is suspected of stealing $180 mn from the Ukrainian budget through a purchase of drilling rigs in the Black Sea in 2011 and participating in the criminal schemes of Serhiy Kurchenko, a fugitive oligarch evading prosecution in Russia. Now there is a petition calling for a vote of no confidence in Lutsenko in the Ukrainian parliament which currently has 44 signatures out of the necessary 150.
Transparency International, Ukraine’s leading international anticorruption NGO, is unimpressed by Lutsenko’s efforts. In its statement on 24 May, it claims that Ukraine is losing the last opportunity to demonstrate the efficiency of its anti-corruption program to the world.
“There is no case in a court against Yanukovych, who is the most famous corrupt official in the world, according to the poll result conducted by Unmask the Corrupt, that directly deals with corruption offenses. The total amount of stolen money is still unknown, but the sum ranges from approximately $7.5 billion up to $40 billion. It seems that officials and the authorities do not perform well and depend on the community. The previous year had passed, but there was any action to develop the anti-corruption court. Such a court is the only opportunity to break the cycle of impunity,” said the Chair of Transparency International Jose Ugaz.
This is a statement Yuriy Lutsenko did not take lightly, accusing the organization of “discrediting the whole country.”
Returning the $40 bn Yanukovych stole from Ukrainians
Neither does Transparency International trust Lutsenko’s efforts in returning Ukrainian assets stolen by Yanukovych and company. In an interview to Kyiv Post, Mr.Ugaz said they are considering filing civil cases on the behalf of the $40 bn Yanukovych and his accomplices stole from the Ukrainian people.
This comes after Ukraine’s National Security and Defense Council on 28 April announced the sensational news that an unspecified court had allowed confiscating $1.5 bn of the money of Yanukovych and his cronies to the state budget.
Widely hailed as a victory, the move raised questions among anti-corruption activists. Lawmaker and journalist Serhiy Leshchenko contends, without citing his sources, that the court, which turned out to be located in the remote city of Kramatorsk, has confiscated the money from another criminal proceeding in the case of Arbuzov, through a case against a certain Arkadiy Kashyn which was started two years ago. The decision of the Kramatorsk court has not yet been made publicly available.
Leshchenko reminds that in September 2016, Lutsenko said that it was previously impossible to return that $1.5 bn because it was impossible to establish the owner of the offshore companies acting as nominal holders of the securities. Cyprus still hasn’t provided that information.
This makes Daria Kaleniuk from the Anti-Corruption Action Center fear that the absence of the decision of the Kramatorsk court in the public domain will mean that Ukrainians might need to pay this sum back:
“Lutsenko announced that this confiscation of some mythical $1.5 bn which were in securities of offshore companies and which were supposedly connected to Yanukovych, is a victory for the Prosecutor’s Office and for him personally. But in violation of all legal norms and standards, he somehow managed to hide this court decision from public scrutiny. We would like to professionally assess this document and understand whether (and when, if it is so) we will need to return this confiscated $1.5 bn to the Yanukovyches? If the confiscation procedure is violated, returning them is only an issue of time.”
Confirming Kaleniuk’s fears, on 12-17 May seven offshore Cyprus companies appealed the Kramatorsk court decision, according to their lawyer.
Kaleniuk says that this case is emblematic of the work of Lutsenko as Prosecutor General: the Prosecutor’s Office has become his PR platform and launchpad into a political career.
Lutsenko’s empty words about returning stolen assets to the government were also recently disproven by the financial transparency NGO “Nashi Hroshi.” The NGO embarked on a mission to proof check his impressive statement about returning UAH 10 bn ($380 mn) of corrupt money to the state budget in 2016 by analyzing 51 volumes of court decisions which the GPU provided to an official request of an MP.
It turned out that from the declared UAH 10 bn, only 12.6% – UAH 1.26 bn – could be verified by court decisions.
Justice for slain Euromaidan activists
After over 100 activists were shot to death in February 2014 during Euromaidan protests. More than three years later, justice has still not been established.
While Lutsenko had not sabotaged the investigation, he had not taken any actions to facilitate it. His little interest in progress in this field is demonstrated in populist statements in which he hurries up investigators to submit the cases to court, thus increasing the danger that the hastily made cases will fall apart during hearings.
As mentioned above, after the conflict with Horbatiuk, Lutsenko split up the Special Investigations Department, singling out the economic crimes of Yanukovych and his entourage. This has not helped to establish justice, according to Pavlo Dykan, a lawyer of the relatives of the slain Euromaidan protesters: coordination, as well as the effectiveness of the investigation, has suffered. Neither did the GPU initiate the harmonization of Ukraine’s legislature with international humanitarian law, like the ratification of the Rome statute, and resolve the legal implications of holding trials in absentia.
No reforms inside the ministry
However disappointing the previous assessments may be, they are dwarfed by the troubling transformations inside the Prosecutor’s Office itself over the last year. Yuriy Lutsenko was appointed to head a corrupt system which made the crimes of Yanukovych and company possible in the first place, which was, following a short-lived rebellion of new faces against the system, crushed by the old regime. The reform of the local prosecutors announced under Shokin was essentially destroyed: virtually all of the people heading the newly created local prosecutor’s offices are representatives of the old system.
The irony is that without honest prosecutors, there can be no justice. It is the Prosecutor’s Office that can put an end to large-scale organized crime. And “restoring confidence” in the GPU through lustration was one of Lutsenko’s stated goals. One year later, there is little to celebrate, according to Oleksandr Banchuk from the Center of political and legal reforms, and Tetyana Pechonchyk, Head of the Human rights information center:
Undemocratic, opaque decision-making
Banchuk and Pechonchyk state that, ironically, democracy in the GPU got tossed out the window in the formation of the very organs which were supposed to ensure it – the Qualification-disciplinary Commission and the Council of Prosecutors, which were formed as prosecutorial organs of self-governance that would decentralize the appointment, promotion, and dismissal of prosecutors. Sadly, this didn’t happen: the candidates which the All-Ukrainian Conference of prosecutors appointed to the self-governance organs in 2016 were dismissed and others were chosen in a hastily held conference on 27 April 2017, with the participation of military prosecutors, apparently loyal to Lutsenko, who have a totally different system of governance and are in no way related to the functioning of the GPU. Although it has been argued that the 2016 conference elected loyalists of the previous compromised Prosecutor General Viktor Shokin, the 2017 conference ostensibly elected loyalists of Lutsenko, which begs the question: how is he different from his predecessor?
Neither does the Prosecutor General make publicly available his orders on the appointments, dismissals, orders, and financial spendings as the law prescribes, making public scrutiny over law and order inside the GPU impossible.
GPU seeks more power, contrary to the Constitution
Amendments adopted to Ukraine’s Constitution on 2 June 2016 convert the GPU from a separate oversight structure into an organ of the system of justice. But to this day, the GPU has not only not adopted a plan on how to limit its functions, it has lobbied for a law that extends them, contradicting the Constitutional amendments (it was not adopted), Banchuk and Pechonchyk say. Additionally, they state, the GPU seeks to extend its control by lobbying for a law to create a subsidiary University, which would be at odds with academic freedom and create endless corruption opportunities.
Shokin’s compromised deputies still in the system
Despite Lutsenko’s announcement of an overhaul in the GPU, the compromised deputies of the previous prosecutor Shokin still work inside the system, Banchuk and Pechonchyk write. Yuriy Stoliarchuk and Yuriy Sevruk still hold high positions and are busy launching campaigns against anti-corruption activists, while genuine reformers like Valentyna Telychenko and Petro Shkutiak were not appointed to any positions allowing them to have real influence. Such a personnel policy essentially means that after being appointed as Prosecutor General, Yuriy Lutsenko decided not to go against the system. The promised renewal didn’t happen: even though there was a contest for 627 vacancies in the local prosecutor’s offices held in 2016-2017, this is only 5% from the total number of prosecutors in the system. Moreover, the Prosecutor General did not hold any similar contests for the higher positions of the GPU – they are all occupied by old faces.
Fight against corruption inside the GPU: mission failed
Lutsenko’s love for populism has manifested itself in the strategy to fight corruption inside the GPU, according to Banchuk and Pechonchyk. Ukrainian law specifies that prosecutors shall be subject to secret tests of integrity. Though Yuriy Lutsenko has developed such a procedure, it is neither secret nor establishes the integrity of prosecutors. The 12,500 declarations on the site of the GPU feature yes/no checkmarked answers to a few questions like “have you ever committed acts of corruption,” which could hardly be considered effective methods to eradicate these acts. Questions like “where have you vacationed in the last three years?” “who paid for it?” would go a lot a further, and even more effective would be not questions but secret tests to see whether a given prosecutor would take a bribe. Now, however, even if the public submits facts testifying to a lack of integrity of a prosecutor, an investigation can only be launched under the approval of the chief of the local prosecutor’s department. Moreover, the GPU is involved in conflicts with newly created anti-corruption organs, most notably – with the National Anti-Corruption Bureau of Ukraine.
Distortion of functions within the GPU
During Lutsenko’s time in office, the functions of GPU departments were artificially altered. The military prosecutor, despite being created in August 2014 to investigate actions on territories where warfare is conducted, is now investigating corruption crimes, but not overseeing crimes in which representatives of the Ukrainian Army or volunteer battalions are implicated. In many cases, the National Police, and not the military prosecutor, are investigating crimes of which servicemen are suspected.
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