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The Brink of War — Prosecutor General Against NABU

Thursday, 11 August 2016, 11:23

There is no ideal Prosecutor General, like there is no ideal boyfriend. No other law-enforcement agency survived such an amount of management changes and disturbances like the Office of the Prosecutor General of Ukraine (GPU).

For example, Arsen Avakov of Narodnyi Front political party has been continuous leader of the Ministry of Interior since the times of Maidan. Avakov has a close grip on his ministry, yet if we analyse it thoroughly, the transformation of the Yanukovych era ‘militsiya’ into a truly modern National Ukrainian Police is also a type of foot-dragging.

Yet Avakov is wise enough not to start an open offensive against his ‘reformers’. At least these conflicts never appear in public.

The situation is radically different in the GPU. Ukraine now has the fourth Prosecutor General since Yanukovych fled, and for these two years the GPU was the source of public discontent and bad ratings for Poroshenko, while traditionally the GPU is the President’s fiefdom within the modern Ukrainian political system.

All internal conflicts within the GPU happened publicly. The apogee occurred at the times of Viktor Shokin, who started a personal feud with his own deputies Vitaliy Kasko and Davit Sakvarelidze.

After the ‘case of the diamond prosecutors’ an internal conflict within the GPU started looking more like the ‘old system’ battling the ‘reformers’. The outcome was that both teams: ‘the old ones’ and ‘the reformers’ were fired and Poroshenko appointed his close friend and Ukrainian political heavyweight Yuri Lutsenko to put out the fire.

The reasoning, explaining why a politician without any legal education should lead the law-enforcement agency which theoretically should have had nothing to do with politics, is clear — because of his political weight Lutsenko can resist any political influence and he is also capable of finding a compromise with all healthy factions within the GPU.

Yet it looks like the Prosecutor General will have to face yet another grave conflict within the Ukrainian law-enforcement system. Even if Lutsenko was not the initiator of the war between GPU and the National Anti-Corruption Bureau (NABU) — he will be the one to resolve it, which he should do before considering his return to ‘big politics’.

A Germ of War

A lot of skepticism surrounded the law on creation of the National Anti-Corruption Bureau. In the world of the Ukrainian prosecutors the new agency was regarded with calm, as since 1991 the big bosses among prosecutors worked under several Presidents of Ukraine and a dozen Prosecutors General. They are well adjusted in their comfortable seats and they already saw enough of ‘reforms’ and other empty statements. The total number of the initial employees of NABU is a size of a team, which a Prosecutor General sometimes involves to work on a single case. That is why the people in the GPU initially decided not to worry themselves with a dozen new quasi prosecutors which they truly considered to be ‘their own guys’.

"The entire team of NABU and SAP (Office of the Special Anti-Corruption Prosecutor who reports directly to the Prosecutor General) are former prosecutors of various ranks and the former ‘fixers’ in the illegal land distribution schemes in the times of Prosecutor Haysynskyi. They were directly involved in these schemes, yet hyper-protection by the United States gave them a feeling of total authority," — one highly ranked source in the GPU told us.

A first scuffle between the GPU and NABU, which is related to the transfer of old cases, should be regarded as infighting. Viktor Shokin, who by then was Prosecutor General, decided to transfer a heap of hopeless corruption cases to NABU, as they had no prospects within the GPU.

The plan was for Artem Sytnyk (the head of NABU) to become buried under this heap without actually being able to do anything meaningful. Yet Sytnyk and Nazar Kholodnytskyi (the head of SAP) managed to walk out of this trap: their teams got assigned on the new cases and all these old ‘treasures’ were returned back to the GPU.

After that small defeat, Shokin got his own internal war to fight in between his visits to Western medical clinics. The feud with Vitaliy Kasko and Davit Sakvarelidze in the very end got Shokin fired and launched the political careers of his unsubdued reformist deputies.

NABU used this break to launch a number of high-profile investigations, some of which proved to be sensations. They were launched against the ‘untouchables’ of Ukrainian politics, who were immune even to the GPU of the Yanukovych era.

Primarily, this means one of the sponsors of the People’s Front political party and a close ally of ex-Premier Yatseniuk, Mykola Martynenko. Investigation by NABU and pressure by Western partners cost Martynenko his mandate as MP and a lot of stress.

The investigation was opened after media statements of the Ex-minister of Economy Aivaras Abromavičius accused Ihor Kononenko, an MP from Poroshenko Bloc, of pressure and nepotism. NABU did not find anything to incriminate Kononenko, yet the mere fact of the criminal investigation of the current President’s closest friend and business partner was something groundbreaking for Ukrainian law enforcement.

Another brave move of NABU was launching investigation of military prosecutor for the ATO zone Kostyantyn Kulik. On December 25, 2015 NABU launched an investigation against Kulik, based on a complaint of Vitaliy Kupriy of the so-called Kolomoyskyi Group in the Rada.

The essence of the case is rather simple: NABU found that Kulik and his civil partner Iryna Nimets own an apartment and cars costing over several million hryvnias, while their official income declarations cannot explain the origin of the funds to buy all this luxury.

On March 23, 2016 Sytnyk sent Kulik’s subpoena to Nazar Kholodnytskyi for his approval. In a week the ATO Prosecutor was all of a sudden transferred to the GPU to join a group of investigators in charge of Kurchenko and other friends of Yanukovych. This appointment was done by Yuri Lutsenko under the protection of the Chief Military Prosecutor Anatoly Matios.

Kulik was quick to get the first results in his new position: in early June he detained a number of important persons of interest in Kurchenko’s case, including ex-Deputy Minister of Economy Oleksandr Sukhomlyn, top-manager of Kurchenko’s SEPEK [Ed.: some Western media are using VETEK — the Russian transliteration of the Ukrainian ‘Skhidno Evropeiska Palyvno-Enerhetychna Companiya’] Andriy Koshel and ex-Deputy Head of Naftogaz Oleksandr Katsuba.

"Matios is on good terms with Kulik. When Matios was restoring the Office of the Military Prosecutor from scratch, he selected truly the best talent that was available at that time, including Kulik, who was in charge of the cases of Kurchenko and Klymenko back in 2014. Moreover, Kulik was helping NABU and assisted them with a number of corruption cases," — one of our sources in GPU tries to explain Lutsenko’s decision on the transfer of Kulik.

Yet Sytnyk’s team ignored the previous merits and tried interrogating Kulik three times, still failing to reach him. In the very end NABU decided to visit Kulik’s apartment with a search and seizure warrant to hand the subpoena over to him in person. Kulik responded by shutting all the doors and windows to his apartment not to let the investigators in.

"He locked himself up in his apartment and he did not let the investigators in. This case is not related to his stellar rise in the case of Kurchenko, yet now he is telling media that Kurchenko bought NABU to disrupt investigation of his schemes. This is nonsense," — Kholodnytskyi was indignant at that time.

In the very end Kulik got his subpoena and was suspended from his office for some time, until the court lifted the suspension and restored him to the position.

The court restored Kulik to his position

The case of Kulik, in which two institutional teams of prosecutors could not ‘sort things out quietly’, as is the norm for the current Ukrainian law-enforcement culture, was the most major conflict between the GPU and NABU until recently. It was evident that Sytnyk is not ready for compromises and that the GPU is eager ‘to pay its dues’ as well.

Casus belli

On August 5 the investigators of NABU, who already became used to visiting corrupt Ukrainian officials with searches and seizures, became subject to a search themselves when all of a sudden a group of investigators from the GPU came at the doors of their offices in Solomyanka District of Kyiv. 

They GPU envoys were led by Dmytro Sus of the Department of High Profile Economic Crimes, which the media, activists and some of the Ukrainian MPs call the ‘Kononenko-Hranovskyi Department’ [Ed.: referring to the influence two MPs of the Poroshenko Bloc have on it].

Sus presented a ruling of the Pechersk District Court, which listed no suspects and thus allowed searching entire office of NABU for the whole month. Yet the ‘envoys’ were surprised to meet the combat armed and trained special enforcement unit of NABU, which Sytnyk invited ‘to keep law and order’.

In the outcome, Sus and his ‘envoys’ were voluntarily presented with the copies of the documents which NABU ‘deemed necessary’ to provide while Sytnyk stated that this search was illegal and said that he is not wiretapping anyone, as NABU has no legal means of doing so because wiretaps are an exclusive right of the SBU.

In his media statements Lutsenko was convincing the public that he is ready to conduct searches and seizures at the offices of the SBU, should such need arise. Yet, off the record, our sources in the GPU say that there were legal grounds for the search.

"A former prosecutor from Poltavska Oblast became a NABU detective. He decided to wiretap the mobile of a Croatian businessman who owns a business in Poltava," — tells our source in the GPU.

The people of the Prosecutor General told Ukrayinska Pravda that the story started back in May 2016, when SBU reported to the GPU that a NABU detective was wiretapping the wrong person. 

According to our source, "Lutsenko was asking to provide documents silently and fire the rat. Yet Sytnyk organized an emergency meeting and asked his team to clean things up. So they provided us with an empty disk. So naive! All traffic of this wiretap is on the record with the SBU."

Artem Sytnyk, the Head of NABU
Photo by FOCUS

In this situation, the interesting fact is that Kholodnytskyi was quite moderate and promised ‘not to cover for his men’, if they really violated the law. Lutsenko also took a conciliatory tone, stating that NABU and SAP are his ‘partners in fighting corruption’ and that there is no feud between them.  

"Everybody got their rats, everybody admits mistakes. Yet they [Ed.: NABU] took the stance of a skunk: don’t approach us and don’t try touching anyone. This is nonsense: to consider themselves ‘saints’ only because they were selected in an open competition," — our source in the GPU explains position of his agency.

Many experts did not believe the conciliatory tone of the GPU. For example, the Head of the Anti-Corruption Action Centre Vitaliy Shabunin is convinced that the search was needed as a media hook. Shabunin is convinced that: "Poroshenko and Co. are generating excuses for the IMF, explaining why they do not allow NABU to have autonomous wiretapping."

Shabunin is talking about the draft law allowing NABU to install wiretaps on their own, without filing a request with the SBU. This draft was already reviewed by the Rada committee, Sytnyk and Kholodnytskyi are sparing no effort to get it passed.

Combined with the independent anti-corruption court, which is stipulated by the recently adopted changes to the Constitution, it can turn NABU into a truly independent and influential player in Ukrainian law enforcement. And that is why it is growingly becoming a pain in somebody’s neck.

Drôle de Guerre. The Strategy and the Tactics

As it turned out, even being a part of the existing system NABU has guts to launch investigations of very influential people. Turning NABU, which is not perfect but works, into a truly independent agency might have important long term effects. According to MP Mustafa Nayyem, the current political system of Ukraine is very scared of this scenario.

"In a situation in which NABU has no independent working mechanisms and an entire political system is trying not to allow creating an independent anti-corruption court, the search in NABU is an invitation for compromise and conformism," — summarizes Nayyem.

Yet it looks like NABU refused this offer. On August 10, 2016 Sytnyk’s team caught Mykola Chaus, a judge of the Dniprovskyi District Court of Kyiv red-handed when he was digging a glass pot with money into the ground apparently to ‘fertilise the soil around his trees with $150 thousand’.

Recently this judge was in charge of many cases that are sensitive to Bankova. He is considered to be the ‘domesticated judge’ of MP Hranovskyi of Poroshenko Bloc.

Currently the law enforcement and the political system appear to be in a situation of a ‘strange war’, when the first fights are over, yet nobody knows what comes next.

Mykola Chaus, a judge preferring very expensive garden fertilizers
Mykola Chaus, a judge preferring very expensive garden fertilizers
Photo by TSN

NABU itself fears a massive media smearing campaign. According to our various sources it will be launched in Autumn 2016. The first steps in this war were already made. Our sources tell a story about a symbolic present of the Chief Military Prosecutor Matios to Kholodnytskyi.

After his deputy Kulik was suspended for failing to prove sources of income Matios sent a bottle of champagne, croissants and chocolate to the head of SAP. This present was a hint of some audio recording containing ‘kompromat’ on Kholodnytskyi.

Head of NABU Sytnyk reassured Ukrayinska Pravda that his agency is getting prepared for future media assaults. "We are preparing ourselves as well as we can, but we cannot cope without public support," — told Sytnyk.

Taking into account what kind of enemies NABU is now facing, the scale of the possible media assault can be truly impressive. But we should also take into account that NABU has a resource no other law enforcement agency had before — they have public trust.

Original article by Roman Romaniuk, Ukrayinska Pravda. Translated by Gennadiy Kornev.

Publications of the English version of Ukrayinska Pravda are not verbatim translations of the source publications from the Ukrainian or Russian language versions of our website. For the sake of clarity and editorial effectiveness our translators might take the liberty of shortening and retelling parts of the source publications. Please consult the text of original publication or the English editorial staff of Ukrayinska Pravda prior to quoting our English translations.