In Ukraine, a country that ranks 77th in the World Justice Project’s rule of law index, legal proceedings are often indistinguishable from theater — namely, the theater of the absurd.
Ukraine’s unreformed, corrupt and politically dependent judiciary is notorious for making absurd rulings, using shady schemes and routinely violating the law and common sense. Some criminal cases are nothing more than mere public relations stunts, political vendettas or attempts to legalize corruption.
The Kyiv Post has examined some of the most notorious tactics used by Ukrainian courts and prosecutors.
Fake lawsuits
One widespread tactic concerns the organization of dubious lawsuits that appear to be attempts to legitimize shady schemes rather than genuine efforts to seek justice.
In one such case, in August the Prosecutor General’s Office charged Pavlo Vovk, head of the Kyiv Administrative District Court, and other judges on the court with obstructing justice and issuing unlawful rulings.
The investigators allege that Vovk and other judges arranged for sham lawsuits to be filed in order to suspend the authority of High Qualification Commission members and have others appointed in their stead. In recordings released by the National Anti-Corruption Bureau of Ukraine, the judges appear to discuss organizing fake competitions for High Qualification Commission jobs. They deny the accusations.
Another apparently fake lawsuit involves a controversial court in the town of Baryshivka in Kyiv Oblast, where a woman named Oksana Pasenko supposedly filed a lawsuit against Ukrainian airline SkyUp, claiming she was dissatisfied with the service she received.
In May 2019, the Baryshivka court suspended the company’s license, stating it had provided customers with poor service.
When journalists investigated the case, they discovered that Pasenko had never flown on SkyUp and had never even been inside a plane. She suggested her identity had been stolen to file the case.
Yet another lawsuit by a little-known firm called Ibis was linked to a case against Interior Minister Arsen Avakov’s son Oleksandr on charges of embezzling Hr. 14.5 million by supplying overpriced backpacks to the Interior Ministry. Oleksandr Avakov denies the accusations of wrongdoing.
Ibis filed a lawsuit attempting to nullify the auction — a strange decision for a nearly unknown company to make two years after the auction in question. In July 2017 the Kyiv Administrative District Court rejected that motion, concluding that the 2015 auction for the backpack sales was lawful.
The ruling came as the National Anti-Corruption Bureau of Ukraine conducted a criminal investigation against Oleksandr Avakov.
Next, Ibis failed to appeal the administrative court ruling. This — combined with the strange circumstances of Ibis’ suit — led many to suspect that the proceedings were actually a sham to legitimize the auction and whitewash the reputation of Avakov’s son.
The Kyiv Administrative District Court is notorious for rulings that make no sense, according to lawyers and legal experts.
In December 2018, the court upheld a civil lawsuit by then-Poroshenko bloc lawmaker Boryslav Rozenblat against Artem Sytnyk, head of NABU, and then-lawmaker Sergii Leshchenko.
The court claimed that Leshchenko and Sytnyk had illegally interfered in Ukraine’s foreign policy when they revealed the surname and signature of Paul Manafort, U. S. President Donald Trump’s former campaign manager, in the so-called “black ledger” of ex-Ukrainian President Viktor Yanukovych’s Party of Regions. The ledger detailed off-the-book payments to Ukrainian politicians and consultants.
That ruling was later overturned by a higher court.
Case distribution
Sham lawsuits are not the only problem. Under Ukrainian law, cases are supposed to be distributed to judges randomly under the automatic distribution system. This is intended to ensure the objectivity and neutrality of judges.
However, in reality, courts often unlawfully interfere in the system in order to distribute cases to specific judges.
A common scheme is when judges become “sick” or take vacations en masse, leaving only a couple of judges available for automatic distribution, said Andrii Khymchuk, a lawyer at DEJURE Foundation, a legal think-tank.
The High Commercial Court, which was liquidated in 2017, had another approach for bypassing random distribution. It eventually led to Viktor Tatkov, the former head of the court, and his deputy Artur Yemelyanov being charged with colluding to issue illegal rulings under Yanukovych.
This is how the scheme worked: Judges of the court voted to effectively get rid of the automatic distribution of cases by assigning just one judge to each judicial specialization, which allowed Tatkov and Yemelyanov to select judges for cases that they wanted to profit from, according to investigators.
Several judges who participated in the scheme were appointed to the Supreme Court in 2017.
Vitaly Tytych, former coordinator of the Public Integrity Council — the judiciary’s civil society watchdog — believes that this makes these judges accomplices in the Tatkov-Yemelyanov case, although they deny the accusation.
Halia Chyzhyk, a member of the Public Integrity Council, cited the pervasiveness of such unlawful interference in another example: at the Uman City Court in Cherkasy Oblast, the State Judicial Administration revealed 45,000 cases of interference in the automatic distribution of court cases after conducting an audit.
Plea bargains
In Western countries, plea bargains are usually used to identify the organizers of crimes, impose larger fines for the state budget and give important evidence and testimony.
In Ukraine, the opposite is often the case: a plea bargain is a tool used to let criminals off the hook and reduce the amount of money they pay the state.
Under ex-Prosecutor General Yury Lutsenko, prosecutors reached plea bargains with several associates of Yanukovych: Oleksandr Katsuba, the former deputy head of oil and gas firm Naftogaz; Andriy Holovach, an ex-deputy head of the tax agency; and former Deputy Economy Minister Oleksandr Sukhomlyn were all given suspended sentences in corruption cases.
However, the content of the plea bargains is unknown because they were made secret, in violation of the law, Tytych says.
He also says that the amounts the officials paid back to the state under the deals are far less than the losses incurred in the investigations, and this could imply that corrupt payments to prosecutors may be involved.
Instead of going to jail as a result of the plea bargains, higher-level suspects have escaped prosecution. Pro-Russian lawmaker Yuriy Boyko, who was investigated over the alleged theft of $400 million during the purchase of oil and gas rigs, has not been charged in the case involving Katsuba.
In another dubious plea bargain in 2017, the Kramatorsk City Court struck a deal with Arkady Kashkin, the nominal owner of a firm allegedly linked to Yanukovych associate Serhiy Kurchenko.
The plea bargain allowed the court to confiscate money and state bonds worth $1.5 billion linked to Kurchenko’s firms.
Both the investigation and the trial were conducted in secret and in just two weeks — an impossibly short time for the Ukrainian judiciary.
Lawyers and anti-corruption activists have argued that the ruling on confiscation does not contain any evidence or legal grounds for the confiscation and may result in Ukrainian authorities returning the confiscated funds to the offshore firms that held them.
A plea bargain was also involved in the Hr 14-million embezzlement case against Avakov’s son Oleksandr, Avakov’s former deputy Serhiy Chebotar and IT firm Turboseo’s CEO Volodymyr Lytvyn. They deny the accusations of wrongdoing.
The investigation against Oleksandr Avakov and Chebotar had already been completed and was expected to be sent to trial, but Chief Anti-Corruption Prosecutor Nazar Kholodnytsky’s office closed it.
The anti-corruption prosecutor’s office said Lytvyn had agreed to a plea bargain and testified that Oleksandr Avakov and Chebotar had not been involved in the scheme.
This version contradicts video footage in which Chebotar and Oleksandr Avakov negotiate the corrupt deal.
Another video under investigation shows Chebotar, the Interior Ministry’s State Secretary Oleksiy Takhtai and state firm Spetsvervis CEO Vasyl Petrivsky, an ex-aide to Avakov, negotiating a corrupt deal to sell sand at a rigged auction and implicating Avakov himself. They also deny the accusations of wrongdoing.
Petrivsky also agreed to a plea bargain for the scheme and was given a suspended sentence. However, Takhtai and Chebotar have never been charged.
PR cases
Some of the high-profile cases pursued by Ukrainian law enforcement appear to be mere public relations stunts and political vendettas. Usually such cases do not result in anything and may drag on for many years without any serious investigation, let alone verdicts.
In December 2017, the Prosecutor General’s Office charged Mikheil Saakashvili, former president of Georgia and ex-governor of Odesa Oblast, with complicity in tycoon Serhiy Kurchenko’s criminal group. The prosecutor alleged he was receiving money from Kurchenko to finance protests against then-President Petro Poroshenko.
Former Georgian President Mikheil Saakashvili gestures inside a defendants’ cage as he attends a court hearing in the criminal case against him in Kyiv on Dec. 11. 2017. The Saakashvili case was widely seen as a political vendetta by ex-President Petro Poroshenko. Instead of pursuing the case, Ukrainian authorities deported Saakashvili in February 2018 without a court warrant, while Ukrainian law explicitly requires court authorization for deportation. Saakashvili is now back in Ukraine, and the case has seen no progress whatseoever. (Volodymyr Petrov)
The case came amid a bitter political conflict between Poroshenko and Saakashvili, with then-Prosecutor General Yuriy Lutsenko staging a high-profile public relations campaign to discredit the former Georgian president.
However, instead of pursuing the case, Ukrainian authorities deported Saakashvili in February 2018 without a court warrant, making it impossible to prosecute him in Ukraine.
Deportation without a court warrant is illegal under Ukrainian law.
After Volodymyr Zelensky defeated Poroshenko in the April 21, 2019 presidential election, Saakashvili was allowed to return to Ukraine. The case against him has not made any progress as of now: it is still suspended but has not been formally closed, Saakashvili’s lawyer Ruslan Chornolutsky said.
In a similarly hopeless case, in March 2018 the Prosecutor General’s Office arrested lawmaker Nadiya Savchenko on charges of plotting to carry out a terrorist attack.
“The investigators have irrefutable evidence that Savchenko was planning and managing a terror attack in this (Verkhovna Rada) hall,” Lutsenko claimed then.
“Her plan was to blow up the (government and guest seating areas) of parliament, then destroy the Rada ceiling using mortars. After that, she was planning to finish off all the lawmakers who survived by shooting them with machine guns.”
Since then, the Savchenko case appears to have gone nowhere, with her being released from custody in April 2019 despite the gravity of the charges.
Lutsenko was also behind another stillborn case: a sting operation by the Security Service of Ukraine to thwart the assassination of Russian-born journalist Arkady Babchenko in May 2018.
In August 2018, Borys Herman, the alleged organizer of the murder attempt, was sentenced to 4.5 years in prison after reaching a plea bargain. However, in November 2019 he was released ahead of schedule due to an illness — an extremely short jail time for someone accused of murder.
Security officers arrest the alleged organizer of a murder attempt on journalist Arkady Babchenko on May 30, 2018. He spent a year and a half in prison after reaching a plea bargain and is at large again – amazingly short jail time for such a serious crime. (Volodymyr Petrov) (AFP)
Sham lawyers
In the adversarial system adopted all over the world, defense lawyers are supposed to fight against prosecutors in court.
Oddly enough, in Ukraine there have been cases when the lawyers of defendants were on the same side as plaintiffs’ lawyers in civil cases or prosecutors in criminal ones.
The tradition has precedents in the Soviet era, when defense lawyers were usually a mere tool of the Soviet government.
For example, in 1980, Viktor Medvedchuk, who is now Ukraine’s most prominent pro-Russian politician, was a state-appointed lawyer for Ukrainian poet Vasyl Stus and declared in court that Stus was guilty, after which he was sentenced to 10 years of compulsory labor for “anti-Soviet propaganda” and died in prison in 1985.
The role of Andriy Bohdan, currently Zelensky’s chief of staff, as a legal representative of Prime Minister Mykola Azarov’s government in 2012 has also been questioned.
Bohdan represented the Ukrainian government in a case over the Russian Defense Ministry’s Hr 3.1 billion debt claim against United Energy Systems of Ukraine in 2012. Anatoly Ivchenko, a judge of the Kyiv Commercial Court, upheld the Russian government’s claim.
United Energy Systems was co-owned by former Ukrainian Prime Minister Yulia Tymoshenko, a political opponent of Yanukovych.
According to an investigation by the Bihus.info journalism project, Yanukovych’s administration was interested in helping the Russian government get the money because it would get an additional argument in an embezzlement case against Tymoshenko.
Specifically, Bohdan submitted to the court former Ukrainian Prime Minister Pavlo Lazarenko’s letters to former Russian Prime Minister Viktor Chernomyrdin about the company’s debt — without Ivchenko even asking for them. The letters were considered a major argument in the Russian government’s favor.
Ivchenko and Bohdan have been investigated in the case into the allegedly unlawful ruling. However, Lutsenko and incumbent Prosecutor General Ruslan Riaboshapka have not authorized a notice of suspicion for Ivchenko, and the investigator who pursued the case has been fired, Sergii Gorbatuk, the former top investigator in charge of cases into Yanukovych-era crimes, told the Kyiv Post.
Bohdan and the Prosecutor General’s Office did not respond to requests for comment on the issue.
