Prosecutor in Rotterdam+ investigation rejects bringing case to court

A Ukrainian prosecutor has refused to bring an investigation into one of the largest energy schemes in modern Ukrainian history to court, despite clear evidence of corruption, detectives say.

The Rotterdam+ coal pricing formula allegedly cost Ukrainian consumers Hr 39 billion, or $1.4 billion. Despite that, on Dec. 9, prosecutor Vitaliy Ponomarenko argued before the Verkhovna Rada’s committee on anti-corruption policy that the case into the scheme cannot be taken to court.

“In my opinion, we have no right to go to court with the materials we have,” he said, according to the Slovo i Dilo media outlet. 

Detectives of the National Anti-Corruption Bureau of Ukraine (NABU) have been investigating the case for three years. 

Named Rotterdam+ after the coal hub in the Netherlands, the infamous formula made Ukrainian energy consumers pay extra for coal, according to NABU. 

After Russia invaded and occupied Ukraine’s coal-rich Donbas region, the country sought to import more coal from abroad. However, the vast majority of coal still came from domestic producers.  

Despite that, Rotterdam+ set energy prices based on the coal index in European hubs “plus” the cost of the coal’s delivery to Ukraine. The formula ran from 2016 until July 2019.

In his address to the parliamentary committee, Ponomarenko said that he did not have enough clear information on the effects of the formula and who it had harmed to bring the case to court.

“First of all, we do not have the losses estimated. Second of all, we do not have the victims identified. So, we cannot even say that there is a certain amount of losses and that there is someone who suffered from it,” he said. 

NABU detective Denys Gulmagomedov told the Kyiv Post that Ponomarenko was “manipulating the facts.”

NABU obtained as many as three expert analyses that estimate the losses, he said. According to one of them, the formula cost public energy consumers Hr 39 billions ($1.4 billion). 

This money became additional profit for DTEK Group, a company owned by Ukraine’s wealthiest oligarch, Rinat Akhmetov. The NABU found evidence that DTEK, which controls 70% of the county’s coal energy, created the formula and colluded with the regulator to make it law. 

DTEK denied the accusations. 

The energy company also acquired three expert analyses. According to them, the formula caused no losses. 

Such contradictory claims are normal in a competitive court case, Gulmagomedov said, but, as a prosecutor, Ponomarenko should have taken the side of the detectives.

Addressing Ponomarenko’s claim that there were no victims in the case, Gulmagomedov said that the victims of the scheme were Ukrainian customers.

“If we put it simply, the victim is the one who paid extra money under the tariff of the state’s regulated price,” the detective said.

The criminal code of Ukraine does not oblige every single energy customer in the country to go to court and sue DTEK, the detective argued. 

“The prosecutor is trying to manipulate (the case by raising) the absence of specific victims, although he knows for sure that their presence or absence is not significant for this criminal proceeding,” Gulmagomedov said. 

The Cabinet of Ministers is supposed to represent Ukrainian energy consumers in the court, he added.

Read more: Why authorities are trying to kill key Rotterdam+ investigation

This is not the first time that Ponomarenko has halted the investigation. 

In August, he partly suspended the case because he believed there was a lack of evidence against the six suspects, who included DTEK employees, and that it was impossible to establish the size of the losses.

Since late October, Gulmagomedov and his colleagues have been asking Prosecutor General Iryna Venedikova to replace Ponomarenko with a different prosecutor. She has declined. 

In response to the Kyiv Post’s request for comment, the Special Anti-Corruption Prosecutor’s Office refused to address the allegations against Ponomarenko and only said that it is an independent body that closed the case for a reason.

On Oct. 27, the High Anti-Corruption Court ordered that the Rotterdam+ investigation be reopened.

Ponomarenko has the power to do this, but he has chosen not to. 

“If we pose the question of what reasons the prosecutor in the case has for such behavior, the short answer would be: political will,” Gulmagomedov said.