Ukraine’s NABU violates the rule of law

On July 10, the NABU (The National Anti-Corruption Bureau of Ukraine) website published news [1] about a serving of suspicion to Georgiy Logvynskyi, a lawyer, Member of the Ukrainian Parliament of the 8th convocation, and an honorary member of the PACE, under the criminal proceedings No. 52017000000000361 of June 1, 2017 NABU suspects Bernatska N.I, the former Deputy Minister of Justice, Babin D.V., the former Government Commissioner for ECtHR, and other persons in the misappropriation of UAH 54 million of state budget funds by executing the ECHR judgment in the case of Zolotoy Mandarin Oil v. Ukraine.

In other words, this criminal proceeding is exclusively focused on investigating the considering of the case in the European Court of Human Rights (ECHR). The reason for applying to the ECHR was the failure to execute a Ukrainian court decision confirming one business organization’s debt to another. Failure to enforce a national court decision is a systemic problem that the ECHR has noted several thousand times. The ECHR constantly receives similar complaints about the non-enforcement of court decisions from Ukraine. Thus, to relieve its workload, the ECHR itself proposes countries enter into peace agreements or make unilateral declarations recognizing violations of the European Human Rights Convention and paying appropriate compensation, which is most often equal to the amount of the debt established by the national court. This is the standard general practice of the ECHR in cases of repeated human rights violations where there are no doubtful circumstances and no legal uncertainty. This practice exists with all countries in Europe and is generally accepted.

In this case, the amount of debt owed by Kyivenergo company to Zolotoy Mandarin company was established by a Ukrainian court, the decision was not enforced for a long time, and the application to the ECHR concerned the failure to execute the national court’s decision. Therefore, from a legal point of view, there was no need for further consideration of this case in the ECHR. Such consideration would be repetitive because the human rights violation under question was apparent. Moreover, further consideration of the case would have led to an increase in the amount of compensation since when the state unreasonably demands further consideration, it usually leads to a significant increase in the amount of satisfied claims of the applicants, in particular, due to the rise in indirect or non-pecuniary damage. That is why state representatives agreed to the standard procedure of paying the damages and signing a unilateral declaration recognizing human rights violations.

The NABU’s policy of considering such actions detrimental to the state’s interests and worthy of criminal prosecution has already led the Ukrainian state to abandon the practice of signing unilateral declarations to the ECHR. State representatives will now be afraid to sign such documents, as the very signing is already interpreted as actions that lead to the loss of public funds. However, in such cases, the problem is the failure to comply with court decisions at the national level, not the actions of state representatives in the ECHR, who recognize the obvious fact of human rights violations by the state. As a result, such NABU policy will cost the state budget of Ukraine significant multimillion-dollar losses in the future, as the ECHR will increase the amount of compensation for human rights violations when the state refuses to recognize it.

Thus, the NABU’s actions evidently violate the rule of law principle, according to which the requirement to comply with a national court decision cannot be conditioned by anything.

Many civil society activists have spoken out about this case, accusing Logvynskyi and others of corruption. We have seen no evidence of this. The most significant fact today is that a Ukrainian court ruling established the debt of Kyivenergo company to Zolotoy Mandarin company. This court decision has not been canceled and is still in force today. Its execution had to be enforced following the rule of law principle and human rights standards.

If there are suspicions that this debt arose due to some corrupt practices, such actions should be investigated. But to date, there is no public information on the investigation into the circumstances of this debt.

There are several other essential elements in this criminal case.

First, the NABU conducted covert investigative actions against Logvynskyi when he had immunity from prosecution as a family member of the ECHR judge from Ukraine, A. Yudkivska. The Prosecutor General’s Office appealed to the ECHR to lift the immunity, but on July 6, 2020, the ECHR refused [2] because the Court did not see any proper grounds for it. ECHR considered all of the NABU’s arguments to be unconvincing. The ECHR also stated that the surveillance of Logvynskyi was carried out in violation of immunities, which was also accompanied by unlawful pressure on the participants in the process. In fact, the ECHR accused NABU of violating the immunities of ECHR judges and their family members. Very likely that it will lead to the invalidation of all possible evidence collected by the NABU before 2021. Thus, it can be claimed that the charges against Logvynskyi and others are based on evidence obtained illegally.

Moreover, Logvynskyi and other participants of this case filed applications with the ECHR for violation of their rights. Their cases were communicated to the Government of Ukraine in 2021 [3], and a decision is expected soon. Communicating cases to the government clearly shows that the ECHR does not consider these complaints to be manifestly unfounded. It is not difficult to predict that the state will lose these cases due to obvious violations by the NABU. This will lead not only to financially negative consequences for Ukraine but also to significant reputational losses, as this is an extremely rare case of prosecution of a lawyer and the husband of an ECHR judge. This is impossible in a democratic country, where law enforcement agencies must act within the legal framework and respect the rule of law and human rights.

Human rights activists have previously made public statements on these cases, but they were all sent for consideration to the same officers who conducted the investigation and whom we criticized. There was no independent investigation into the abuse of power by individual NABU employees.

Given this, we consider the continued criminal prosecution of Mr. Logvynskyi and other participants of this case to be contrary to the rule of law, in violation of international law, and based on repeated human rights violations by NABU officials. We believe this investigation should be closed, and an independent body should investigate the actions of the NABU employees who carried out illegal covert investigative activities violating ECHR immunities.

Center for Civil Liberties
Oleksandra Matviichuk, Head of the organization

Kharkiv Human Rights Protection Group
Yevgeniy Zakharov, Director

The Association of Jewish Organizations and Communities, The VAAD of Ukraine
Joseph Zissels, Executive co-president

[1] Golden Mandarin case: ex-MP who organized the scheme is served a notice of suspicion

[2] DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

[3] Application no. 32671/20 Georgiy Volodymyrovych LOGVYNSKYY against Ukraine