The National Agency for Preventing Corruption (NAPC) believes that Oleksandr Babikov, the former lawyer of ex-President Viktor Yanukovych, has a legal right to work at the State Investigation Bureau and currently has no conflict of interest, according to documents released by the agency.
Meanwhile, the bureau is pursuing cases against Babikov’s former client Yanukovych.
Babikov’s appointment to the State Investigation Bureau in January triggered a flurry of indignation from civil society due to his links to Yanukovych and the potential conflict of interest that created. Many perceived Babikov’s appointment and whether it would be accepted as a litmus test for whether the NAPC’s newly selected chief, Oleksandr Novikov, would be able to oppose the corrupt establishment.
But the NAPC, which is legally entitled to identify conflicts of interest, concluded that Babikov, the first deputy head of the bureau, would only have a conflict of interest were he to become the acting head of the State Investigation Bureau.
The agency expressed this viewpoint in a letter to lawmaker Andriy Osadchuk, obtained by the Kyiv Post on April 9, and in a letter to the Advocacy Advisory Panel, a group of lawyers, published on April 10.
Babikov previously denied having represented Yanukovych. However, this claim contradicts the official court cases register. The NAPC has also refuted Babikov’s claim.
The NAPC said it could not currently comment for this story. The State Investigation Bureau did not respond to requests for comment.
Legal reasoning
Yanukovych is charged with the murder of protesters during the EuroMaidan Revolution, which ultimately drove the former president from power in February 2014, as well as with corruption during his presidency.
Until Feb. 5, the so-called “EuroMaidan cases,” in which Babikov previously served as Yanukovych’s lawyer, were investigated by a sub-unit of the bureau’s third department, which was supervised by Babikov.
However, the NAPC noted that, on Jan. 21, then-State Investigation Bureau Chief Iryna Venedyktova said she would supervise the sub-unit directly to avoid a conflict of interest. This created the bizarre situation in which a subdivision of Babikov’s own unit was allegedly not supervised by him.
But the bureau’s second department, which is directly subordinate to Babikov, is investigating a usurpation of power case against Yanukovych. Babikov was a defense lawyer in this case, Sergii Gorbatuk, the former top investigator for EuroMaidan cases, and Vitaly Tytych, a lawyer for the families of the EuroMaidan protesters, told the Kyiv Post. Gorbatuk argued that this constitutes a conflict of interest for Babikov.
In the case, Yanukovych and ex-Constitutional Court judges are under investigation for unlawfully canceling the 2004 constitutional amendments on expanding parliament’s powers, thereby increasing Yanukovych’s authority.
Tytych also said that Babikov is legally banned from holding his job at the State Investigation Bureau by Ukraine’s law on defense lawyers.
The law states that lawyers cannot switch sides in a criminal case because that would constitute a conflict of interest. The law also says that everything possible must be done to prevent defense lawyers from violating attorney-client prvilege and revealing their clients’ secrets, which can happen when they switch sides.
First deputy chief
Gorbatuk and the EuroMaidan lawyers also argued that, contrary to Venedyktova’s claims, Babikov still has huge administrative influence on EuroMaidan cases due to the nature of his job as first deputy chief.
Moreover, Babikov will still automatically become the acting chief of the bureau when Maksym Sokolov, the current acting chief, is on vacation or resigns. In that situation, Babikov will oversee the EuroMaidan cases.
By law, Babikov should have become the acting chief when Venedyktova was appointed Ukraine’s prosecutor general in March. But the State Investigation Bureau said that Sokolov, a deputy chief of the bureau, had assumed the top job instead. Tytych argues that there were no legal grounds for that, and Sokolov was appointed unlawfully.
Competition
Venedyktova has also been accused of choosing Babikov through a non-transparent and rigged competition. She has denied the accusations of wrongdoing.
Venedyktova announced the competition on Dec. 29, during the slow holiday season, and candidates had only three days to file applications. This made it impossible for any independent candidates to apply, since it takes weeks to collect the necessary documents and the state institutions that issue them were not working due to the holidays.
Moreover, Babikov had filed an application to terminate his status as a lawyer on Dec. 28. That triggered suspicions that he knew about the competition beforehand and that it was rigged in his favor.
