Why are only three Ukrainian top-corruptionaires behind bars?

The slow pace of reforms and lack of fruitful results in fighting corruption in Ukraine often overshadow all the positive steps of the last 4 years. For instance, two institutions which were created from scratch to tackle top corruption - the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) - are doing more or less well. Both have significant problems. However, they have proven themselves as major changemakers in Ukraine - by breaking the caste of “untouchables.” Never before had Ukrainian society observed criminal cases against top-level officials suspected in corruption. Of course, if we don't count the politically motivated cases of Yuriy Lutsenko (now Prosecutor General) and Batkivshchyna Party leader Yuliya Tymoshenko during the regime of runaway President Viktor Yanukovych. The most recent proof of this is a suspicion notice which NABU handed to Infrastructure Minister Volodymyr Omelian. He is suspected in illegal enrichment and not declaring his assets. The NABU detectives revealed his income for the last 18 years. During all the time working in public service from 2000 to 2018, he officially earned UAH 2.17mn ($77,000 at today's exchange rate). However, his expenditures only during 2008-2015 amounted to UAH 3.45mn ($122,470). Also, the detectives revealed that the minister did not declare the expenditures for the rent of a house in 2015 and for a country house with a plot of land which his family used in 2016.

The SAPO asked the court to make Omelian pay a UAH 5mn pledge ($177,490). But the court released Omelian on bond. Also, the minister has to hand over his passports. Omelyan himself denies all the allegations and says that his suspicion notice means the election campaign in Ukraine has already started. While so far it's too early to predict the outcome of the case against Omelian, some other high profile cases of the anti-corruption institutions reveal their main problems. Lately, the unprofessionalism of the NABU detectives and quarrels between the heads of NABU and SAPO have been mentioned among them. However, focusing on them distracts attention from the biggest problem. First and foremost, this is the Ukrainian judiciary which prevents the cases of the high-level corruption from being considered properly. This particular reason made the reformers in Ukraine promote the idea of the creation of the High Anti-Corruption Court, which would deal exclusively with top-level corruption cases. The process of its creation has been launched. But for now, NABU and SAPO are still dealing with the current unreformed courts.

Weak cases of NABU or courts protracting with top corruption cases?

Up to October 4, NABU and SAPO directed 155 cases to courts. Among them are the cases against Ukraine's “untouchables” - like the one against Fiscal Service head Roman Nasirov, who is suspected of causing $73.7 mn damage to the state or the one against the gray cardinal of Ukrainian politics Mykola Martynenko who is accused of embezzling more than $17.2 mn from the state enterprise “Eastern Mining and Processing Plant.” But how many people were really punished? As of 25 September 2018, only three. In this regard, NABU is often blamed for providing the court with weak cases.

“Nowadays, many politicians tell us that that the reason why the cases of the Anti-Corruption Bureau fail in courts and have no verdicts is that they l are very weak. This is not true. The courts haven't even started considering some 40% of cases. So we can’t even know if the bureau works good - we do not see them,” Anastasia Krasnosilska, advocacy manager of the NGO Anti-Corruption Action Centre told Euromaidan Press.

Recently, NABU itself also complained about the lack of verdicts.

“Out of more than 150 cases of NABU and SAPO, court decisions have been made for only 33. And out of them, imprisonment-related verdicts were made in only two cases: three people have been sentenced to real punishment,” says the statement of the bureau.

In 21 cases, the verdicts were softened due to the suspects’ cooperation with the investigation, in nine cases the accused were released from criminal liability. Once, the court decided to close the proceeding. According to NABU Head Artem Sytnyk, the case of the abovementioned head of the Fiscal Service of Ukraine, Nasirov, is one of the fastest to move through court. The consideration of most cases is severely delayed.

“The case got to court in October 2017. We are still reading the indictment, hearings take place once a month. However, at least they are taking place. Unfortunately, this is a trend. We need to create a new judicial institution which will consider these cases,” said Sytnyk in April 2018.

On September 28, the court canceled Nasirov's obligation to wear an electronic bracelet. According to the bureau, 49 of the cases NABU submitted to courts have not even gone through the preliminary stage of consideration of merits. Some cases have been stuck in court offices for over one and a half years.

The first and the largest case

One of NABU's first cases was the so-called Gas Case. The site of the institution stresses its large scale, considering the status of the organizers and participants of the scheme, amount of involved people and amount of losses caused to the state - about UAH 3bn ($106mn). Its main organizer is MP Oleksandr Onyshchenko. In the summer of 2016, the Ukrainian Parliament stripped him of immunity and voted for his detention and arrest. However, at that time, Onyshchenko was already out of the country. NABU argues that the courts were far too lenient when choosing preventive measures for the figurants, allowing some of them to escape Ukraine. For example, in the summer of 2016, when the court chose a precautionary measure for the first 10 participants of the case, it was the secondary members of the group who were ordered to pay the largest share of the pledge - from UAH 50 to 200mn ($1.8 mn to $7mn). At the same time, the suspected co-organizer of the scheme was offered to pay only UAH 1.5 mn ($53,250) as an alternative to being jailed. According to NABU, this amount is incomparable to the size of the damage done. The court’s selection of preventive measures for another key suspect - the head of “Nadra Geocenter” - raises questions as well. He was detained during an attempt to cross the Ukrainian border in the direction of Russia. When the time for preventive measures came, an investigative judge, according to NABU, did not consider the place and the circumstances of detention, as well as evidence proving the key role of the suspect. A SAPO prosecutor filed a petition for the detention of the suspect. The court refused. In result, when his term of 6 months of house arrest expired, the suspect fled Ukraine and is currently wanted.

Roman Nasirov could have also become the hero of a “great escape” story, has there been no public attention to his case. Activists had physically prevented Nasirov's escape when his preventive measures expired, by standing all night near the court building where he was held. Thanks to them, Nasirov is still in Ukraine and eligible to face justice.

The confusing jurisdiction

The incident with MP Borislav Rozenblat serves as one more telling illustration of how Ukraine‘s judiciary system deals with top-corruption. The anti-corruption institutions claimed that Rozenblat (an unaffiliated MP) and Narodny Front MP Maksim Poliakov demanded a bribe from a non-resident company for the extraction of amber in Ukraine. Rozenblat is accused of receiving $200,000 to influence the officials of the State agency on Geology and Minerals and the local government to give the company Ukrtechdobych special permissions for extracting the gemstones. The MPs deny their involvement. The investigators published audio and video materials where Rozenblat talks to the participants of the scheme. Some of the recordings feature discussions about bills which suggest amendments to Ukraine's Tax and Custom codes on the taxation of amber extraction and tax exemptions for persons importing ambergris industrial production equipment into Ukraine. On 20 September 2018, the District Administrative Court of Kyiv satisfied Rozenblat's claim to NABU and the Prosecutor General on the recognition of their actions during the operational-search activities as illegal. The court decided that the law enforcement institutions did not follow the legislation on immunity for MPs - they worked without a mandate from Ukraine’s Parliament to bring the MP to criminal responsibility, which led to unlawful interference to his personal life. However, this decision of the court violates Ukrainian legislation itself. As according to the criminal legislation of Ukraine, questions of the criminal justice can’t be considered in administrative courts. NABU’s press service stated that the institution is going to appeal the decision.

Strained relations between NABU and SAPO

Another threat for the fight against corruption came from an unexpected direction - the SAPO. It turned that there are big questions toward the professional ethics of the head of the institution Nazar Kholodnytskyi. In the spring of 2018, bugs established by NABU and the Prosecutor’s General Office employees in Kholodnytskyi’s office revealed that he intervened in the cases, disclosed the secrets of the investigation, grossly violated prosecutor’s ethics, influenced prosecutors etc. Nevertheless, the Qualification-Disciplinary Commission of Public Prosecutors decided only to impose a disciplinary penalty on Kholodnytskyi – he got a mere reprimand.

Read also: Divorce of Ukrainian anti-corruption institutions: will it affect the investigations against top-corrupts?

This incident was like heavenly manna for the foes of the anti-corruption fight in Ukraine. They say that the two institutions are stuck in inner conflicts and can’t work properly. But despite all the hiccups, the anti-corruption activists still consider the work of NABU a success. According to Oleksandra Drik, head of the Council of Civic Lustration Committee, the political elites of Ukraine see that the creation of an anti-corruption court in the country is inevitable, which is why they try to obscure the fight against corruption and not let the SAPO and NABU work properly.

“NABU does its work and SAPO interferes with it. It is incorrect to call this a conflict. Here is a question to those who guaranteed security [to SAPO head] Nazar Kholodnytskyi and left him in that position. Even though the Qualification Disciplinary Commission of Prosecutors recognized that the cases are crushed in SAPO, Kholodnytskiyi only received a mere reprimand. This is done to break the “unnecessary” cases and to discredit anti-corruption institutions and the fight against corruption in general,” said Drik.

The first alert bell confirming the fears of the activists went off when SAPO closed the case against Oleksandr Avakov, son of the Minister of Internal Affairs Arsen Avakov. In 2015, Avakov Jr., Serhiy Chebotar, ex-deputy head of the Minister, and entrepreneur Volodymyr Lytvyn were involved in purchasing backpacks for the National Guard with the money of the Ministry. The price for them was much higher than the market average and the backpacks did not fit the criteria of the Ministry. It is estimated that as a result, UAH 14mn ($533,750) of state funds were embezzled. In April 2018, NABU informed about finishing the pre-trial investigation regarding all three suspects. By that time, Volodymyr Lytvyn pleaded guilty. But in July 2018, SAPO closed the case against Avakov Jr. and Chebotar, claiming that evidence was lacking. In September, Lytvyn was sentenced to 5 years in jail with a two-year probation period and compensation for damages of almost UAH 5mn ($177,495). The probation period means that he will not actually sit in prison - during 2 years he is obliged to check in to penitentiary institutions. After that, he will be considered to have served his sentence.

“It is obvious that it is not Kholodnytskyi himself who interferes with the proper work of NABU. It is the Parliamentary coalition, the President, Prosecutor General Office, Security Services or the Ministry of Internal Affairs who stands behind it. In other words - Petro Poroshenko’s Bloc and Narodnyi Front. They are against a real fight against corruption in Ukraine. It’s because they themselves can turn up on the prisoner’s dock. Talking about Sytnyk, he has an administrative position and can’t influence the course of investigations. Unlike Kholodnytskiyi, he does not have such responsibilities. Those talking about the conflict between NABU and SAPO want to persuade us that these institutions are busy fighting each other instead of working,” said Drik.

The work of NABU is also often accompanied by different kinds of dirty campaigns. For example, on October 1, Kyivans observed an advertisement campaign in the metro where Sytnyk was pictured with the slogan “I'll expose the top-corrupts." The posters announced the date of the Parliament’s anti-corruption committee meeting with the participation of Sytnyk. The head of NABU said the institution has nothing to do with the posters and called it a provocation. Also, in his statements, Sytnyk assumes he might be suspended from his duties in the pre-election time which might happen through provocations and decisions of the Parliament.