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The Korniychuk Case – evidence of the start of repression in Ukraine?

11.01.2011    source:
Oleh Berezyuk
The author, Head of the Ukrainian Juridical Society analyzes what he considers to be unconvincing grounds for the criminal case brought against former Deputy Minister of Justice, Yevhen Korniychuk and the court’s willingness to remand him in custody and draws very worrying conclusions

Sviatoslav Oliynyk, National Deputy [MP] recently pointed out something terrible for any modern European country: the total collapse of Ukraine’s law enforcement bodies linked with the lack of independent courts. He stated that “until the change in political regime in the country independent courts were a factor which restrained the arbitrary will of the law enforcement bodies. Now this too has been lost.”

I would add for myself that the loss of such a factor has not happened by chance, but was done deliberately through the so-called judicial reform which was in fact a means of subjugating the courts and destroying those seeds of independence of the judiciary which had existed up till then.

The lack of an independent and impartial court in Ukraine means the total defencelessness of the country’s citizens from encroachments on their rights, the curtailing of democracy and establishment of authoritarianism. This at the same time makes it possible for the punitive bodies to demonstrate arbitrary lawlessness with impunity, to carry out systematic repressions against those inconvenient to the regime, and in the final analysis – the return to Ukraine of 1937 (the worst year of Stalin’s Terror – translator).

The developments in Ukraine over the last few months confirm ever more strongly the likelihood of the country’s move in that direction. Sufficient to mention the following:

the initiating of criminal cases and arrests of political opponents of the current regime (for example, against Yulia Tymoshenko, Yury Lutsenko and other former government officials – Makarenko, Didenko, Ivashchenko, Danylyshyn),

the reinstating of criminal cases from 10 years ago (for example, the 9 March 2001 Case over protests as part of the Ukraine without Kuchma movement);

prosecutions of participants of civic protests (for example, the leaders of the Tax Code protest);

obstruction of the constitutional right to peaceful assembly (for example, the special operation to dismantle the tent camp on Khreshchatyk St citing the need to erect a New Year Tree as the reason);

the disappearance of journalists carrying out journalist investigations into the activities of present high-ranking law enforcement officials (for example, the Kharkiv journalist Vasyl Klymentyev), Such political repression and persecution was recently commented upon by well-known Ukrainian human rights activist Yevhen Zakharov.

The prosecution of Yevhen Korniychuk is symptomatic and a vivid demonstration of the above. Yevhen Korniychuk is the former First Deputy Minister of Justice in Yulia Tymoshenko’s Government and leader of the Ukrainian Social Democratic Party which is party of BYuT [Tymoshenko’s Bloc), and at the end of the day the son-in-law of the Head of the Supreme Court, Vasyl Onopenko. The latter has consistently spoken out against the “barbaric” judicial reform, stood up for the constitutional status of the Supreme Court, the independence of the judiciary and has not changed his stand on these fundamental issues despite the radical change in the political situation in the country.

The illegality of Yevhen Korniychuk’s arrest

The first shocking aspect of this case is the cynicism (from a purely human point of view) of the arrest by the Prosecutor of Yevhen Korniychuk. This was on 22 December 2010, the day that his daughter was born. Mr Korniychuk went  straight from the maternity unit to the Prosecutor General’s Office following a summons from the investigators. His two underage children were at home at the time. It later transpired that Korniychuk had been summoned for the first time in a case initiated against him under Article 365 § 3 of the Criminal Code (Exceeding power or official authority).

What is interesting is that it turns out this case under Article 365 § 3 has been initiated twice which is in itself a legal nonsense. First on 15 December 2010 by the Investigator on Particularly Important Cases of the Prosecutor General’s Office, Harbuza, and then on the day his daughter was born, by the First Deputy of the Prosecutor General Renat Kuzmin.

In fact, with respect to the same matter, against the same person, on the same grounds and with the same charges, two criminal cases cannot be initiated. If that happened, then the initiating of one of them was clearly illegal.  When initiating for the second time a criminal case against the former Minister, Kuzmin did not revoke as unlawful the decision by investigator Harbuza which is indicative. One must therefore understand that at the present time there are two different rulings on initiating a criminal case against Yevhen Korniychuk under Article 365 § 3, and thus two criminal cases. For a country moving at speed towards 1937 that is, perhaps, normal.

However if the assessment of Yevhen Korniychuk’s arrest from a purely human point of view is, so to speak, a mainly emotional aspect, at the level of law the legal aspect, the presence of lawful grounds for arrest, takes precedence. We need to establish, in the first instance, the nature of the charge laid.

Korniychuk is accused of having, while First Deputy Minister of Justice, on 23 February 2009 (we would note, almost two years before his arrest) he signed a letter regarding the presence of conditions for the use by Naftohaz Ukraina of procurement procedure from one bidder, “Magisters”. The First Deputy of the Prosecutor General Renat Kuzmin (we will return to his decision which was issued later, with his position much higher, than that of investigator Harbuza) sees in this misuse of official authority which cause Naftohaz considerable damage. Incidentally, and this is also noteworthy, Naftohaz itself did not report such damage to the Prosecutor’s Office. The pretext for the initiating of a criminal case was an application from Volodymyr Sivkovych, who, according to media reports, is on friendly terms with Renat Kuzmin.

The law entitles the investigator to arrest a suspect, but only where there are lawful grounds.  These grounds, the author explains, are the following according to Article 106 of the Criminal Procedure Code

1)       where a person is caught committing a crime or directly afterwards.  Clearly this was not the case with Korniychuk, since the alleged offence is two years old;

2)       when witnesses, including victims, directly point to the given person as the perpetrator; in the given case this does not apply;

3)       when traces of the crime are found on a person’s clothing, on the person or in his/her home;

The law then goes on to say that “given the presence of other information providing grounds for suspecting a person of a crime, s/he may be arrested only if this person tries to escape or where the place where s/he is living or staying is not registered, or when the suspect’s identity has not been established.”

However it is well-known that Korniychuk did not attempt to abscond. On the contrary on the day of his arrest he went voluntarily to the Prosecutor’s Office at the investigator’s summons despite the above-described family circumstances.  The author explains why the other two continues are clearly not applicable in the case of Kyiv resident and former Deputy Minister of Justice, Yevhen Korniychuk.

Thus in the given case the Prosecutor had none of the grounds envisaged by law for arresting Mr Korniychuk. This means that it was overtly unlawful and can be deemed Prosecutor’s arbitrary lawlessness, this requiring legal assessment from the point of view of Article 371 of the Criminal Code (knowingly wrongful arrest) and Article 365 (exceeding power and official authority).

I am convinced that the Pechersky District Court in Kyiv (Judge Vovk) which at the Prosecutor’s application remanded Korniychuk in custody for 2 months) also had no grounds envisaged by law for applying this preventive measure.

The author stresses that, pursuant to Article 148 of the Criminal Procedure Code, preventive measures (any, not only remand in custody) are applied where there are grounds for believing that a person will try to abscond or avoid carrying out procedural decisions, impede the course of justice or continue their criminal activities, as well as to ensure the enforcement of procedural decisions

From an analysis of the material published by the press, Korniychuk’s behaviour, his family circumstances, etc make it possible to conclude that there were no adequate grounds for remanding him in custody or even applying a writing undertaking not to abscond.

In any case arrest and remand in custody are clearly excessive measures of procedural force, suited neither to the circumstances of the case, nor to the actual suspect.

In the given situation it would have been entirely sufficient to take from Korniychuk a written undertaking that he would appear if summoned and would inform of any change of residence (Article 148 § 3 of the Criminal Code).

Incidentally, leading Ukrainian lawyers have pointed out that specifically such a preventive measure was expedient and adequate. See the statement issued by Serhiy Konnov, President of the Association of Lawyers of Ukraine.

The arrest and detention of Korniychuk can be seen as a demonstrative show of brute force and sense that they can do anything, an attempt to denigrate a person and use violent means of reprisal.

The lengthy Prosecutor’s “hunt”

In order to gain a full impression of the “Korniychuk Case”, one needs to consider the fact that this present attack by the Prosecutor for signing the above-mentioned letter is not the first.

The media reports that back in June 2009 with regard to this letter the Investigator on Particularly Important Cases Ishchuk (a subordinate of Renat Kuzmin) initiated a criminal case over the forging by officials of the Ministry of Justice which had grave consequences (Article 366 § 2 of the Criminal Code).

Korniychuk appealed against this decision in the court and the court found that the case had been initiated without the legally envisaged grounds and revoked it.

In July 2009 investigator Ishchuk made another “foray”, regarding the same signing of the letter he initiated a new criminal case, this time over alleged misuse by officials of the Ministry of Justice leading to grave consequences (Article 364 § 2 of the Criminal Code). This decision was also found unlawful by a court and revoked.

After this there was a certain break in the Prosecutor’s “hunt” of Korniychuk. Going by everything this was due to the fact that in summer 2009 Renat Kuzmin was stripped of his authority over investigations. A year later these powers were returned to him, moreover in autumn 2010, after the appointment of a new Prosecutor General, he is promoted from “just” Deputy to First Deputy of the Prosecutor General.

And the consequences of this career reshuffle didn’t take long to emerge. In December 2010 two decisions appeared at the same time to initiate a criminal case against Yevhen Korniychuk over the same fact of signing that letter. Of course now the case was initiated under Article 365 § 3 of the Criminal Code (exceeding power or official authority leading to grave consequences).

The mere fact of these twists in search of the “necessary” article of the Criminal Code over the same signing of a letter with the same pretext (an application from Volodymyr Sivkovych), the hurtling from one charge to another and determination however to put him “inside” can demonstrate a biased approach to the application of the criminal and criminal procedure legislation. They place in grave doubt the justification and lawfulness of the prosecution. These doubts turn into firm conviction when one analyzes the nature of the actual charge.

The essence of the old-new charge

The author considers this from an analysis of the decision of 22 December 2010 to initiate a criminal case (issued by First Deputy of the Prosecutor General Renat Kuzmin).

If can be seen from this that on 23 February 2009, the First Deputy Minister of Justice Yevhen Korniychuk signed a letter that there were conditions for the application by Naftohaz Ukraine of the procurement procedure from one bidder Magisters. This letter was handed to Naftohaz which approached the Ministry of Economy for permission to run such procedure. The latter gave permission.  Naftohaz then signed a contract with Magisters for the latter to provide legal services. These came to 2 million 111,300 UAH  (1 euro is roughly 10 UAH).

First Deputy of the Prosecutor General Renat Kuzmin considers that the value of these services was unwarrantedly overestimated by a sum of 1 million 697,600 UAH which caused Naftohaz serious damage leading to grave consequences. What is more, Renat Kuzmin believes that the damage was caused by the criminal actions of Yevhen Korniychuk.

Following Kuzmin’s logic, Korniychuk, who did not pass any legally significant decision regarding the contract, or sign any documents regarding payment for work, is guilty of all the actions which caused damage to Naftohaz. From the point of view of the law, this logic is terrible, leading to arbitrary lawlessness.

This becomes clear by even somewhat delving into the legal material of the case. 

The author considers the legal status of the document which Korniychuk signed. He disputes the statement in the 22 December decision that this is an “expert opinion” but points out that this description is of fundamental importance with regard to establishing the crime. An expert opinion, he explains, only expresses a point of view and is not an instruction from somebody in power.  It may – or may not – be taken into consideration.

He points out that Renat Kuzmin cannot fail to be aware of this, being both a lawyer and the first Deputy of the Prosecutor General.

This means that the document which Korniychuk signed was of purely recommendatory nature.

The Naftohaz management and Ministry of the Economy were free to heed it or not. The letter did not lead and could not objectively lead to the consequences which First Deputy of the Prosecutor General Renat Kuzmin is claiming.  This, the author notes, is clear to all, not only lawyers and quotes Ukrainska Pravda journalist Mustafa Nayem.

Whether the signing by Korniychuk of the letter exceeded his official powers is at least questionable, this being reflected in the way the Prosecutor has veered from one charge to another – forgery, misuse, exceeding powers. The Regulations on the Ministry of Justice do envisage the providing of explanations of legislation to state bodies, enterprises, institutions and organizations.  This was essentially what Korniychuk provided.

For the above reason the author says that criminal exceeding of official authority cannot be proven since there is no cause and effect link between Korniychuk’s action in signing the letter and any material losses.

He points out that the 22 December decision states that the “expert opinion” was sent, together with other relevant documents of Naftohaz to the Ministry of Economy.

It thus follows that Korniychuk’s letter was one of many initial documents sent by Naftohaz in order to carry out procurement procedure with only one bidder.  According to Naftohaz’s procedure there were no less than ten (!) different types of documents.

The legally definitive decision was not taken by Korniychuk, nor even purely on the basis of his letter.

Nor was that decision final and decisive in leading to the stated consequences, since these followed from the signing of a contract between Naftohaz and Magisters.  Violation of the law must therefore be sought in the actions of the officials of Naftohaz who concluded a contract with Magisters.

The later passing of money from one to the other could not have taken place without the contract, but could certainly have without Korniychuk’s letter. 

The author also stresses that criminal liability for exceeding power or official authority must involve significant damage. Having shown that any damage was the result of a contract between Naftohaz and Magisters, not the letter from Korniychuk, he also disputes whether there were even significant losses as a result of the contract.  He suggests that the Deputy Prosecutor General has applied a method which makes it possible to accuse anybody who has every concluded a contract.  The method involves a formal comparison of the value of the work completed and the services provided, with the comparison carried out at their discretion. The comparison was made between Magisters and another law firm called Bondarchuk and Partners.  The difference between the two firms’ fees was thus deemed the material losses incurred by Naftohaz.  The author’s explanation of how firms can differ can be predicted.  It should, though, be mentioned that in 2010 Magisters was awarded the British Award: The Lawyer European Awards and was rated the best law firm in Russia and the CIS.  He gives more information about Magisters, then states that he was unable to find any such information about Bondarchuk and Partners.

He mentions also, and quotes Korniychuk who stated this in an interview, that Magisters (Magister and Partners) has provided legal services to Naftohaz since 2001, presumably at an appropriate level given the many changes in management of the latter.

The author concludes that the analysis of this case gives grounds for asserting that the criminal case against Korniychuk was initiated unlawfully, and repeats his assertion that it shows signs of misuse of power and wrongful arrest.

It can be concluded, he says, that the criminal prosecution of Korniychuk has political and / or subjective motivation and is being carried out as revenge, reprisal, blackmail or pressure. Including pressure on Yevhen Korniychuk’s father-in-law, the Head of the Supreme Court, Vasyl Onopenko.

He says that the Korniychuk Case is a flagrant example of Prosecutor’s arbitrary will which together with other cases demonstrates the imposition of systemic repression in Ukraine.

The author is the Head of the Ukrainian Juridical Society

(Only the last section, involving details about Naftohaz’s agreement, other cases involving Renat Kuzmin, etc, has been substantially abridged)

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