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18 December, 2015

“What we are witnessing is inaction aimed at preserving the old criminal schemes rather than revanche”

Ex-SBU Chief Valentyn Nalyvaichenko on who hampers the investigation of high-profile crimes, why lustration failed and what corrupt high-ranking Ukrainian officials fear and resist

Interviewed by Roman Malko

You resignation was contributed to a great extent to the accident in Vasylkiv, a town in Kyiv Oblast, where massive fire took place at the petroleum tank farms causing heavy pollution, killing six people and leaving many more injured. Recently, the State Labor Inspection Service said that accident was caused by negligence of its staff and management. How would you comment on this?

We must speak frankly here and answer the crucial question. June 8, the day when the tank farm was ablaze, was an ecocide for the Kyiv region that killed six people. This was a huge environmental crime. The very fact that these three petroleum bases exist in various regions, including Kyiv Oblast, was only possible through corrupt and essentially criminal deals. On the one hand, this was illegal handling of petroleum, tax evasion and infliction of losses to the budget of Ukraine. On the other hand, it was protection by the senior management of the Prosecutor General's Office that made this illegal business possible for such a long period of time. It was exactly on June 8 (the investigation team has the relevant materials to confirm this), that the management of the Prosecutor General's Office stopped the Ministry of Interior, which repeatedly demanded the investigation into the case. When a petroleum tank farm or any other oil processing facility works legally, it is under obligation to pay taxes, to handle oil products properly, to ensure fire safety, etc. All this is very expensive. But if you act illegally, without paying taxes, under the cover of the law enforcement officials, you don’t spend this much on safety. These were all components of the crime that resulted in casualties.

There is more. When we subsequently initiated ecocide proceedings, we aimed at returning the money stolen by this tank farm in order (this is very important) to compensate for the damages of the bereaved families and the residents of Kyiv Oblast that were really affected. I don't even mention the money needed for the reclamation of the lands and the recovery of the infrastructure that was also damaged, for fire protection measures, etc. Add to this the selfless work of many employees of emergency service and police to cope with the fire. In a word, this is a huge burden on the state budget. Who should cover these losses?

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I believe that it should be the four offshore companies that were identified at my initiative during the last days of my tenure. I said it publicly at that time, and the government supported me. With my then colleague, the Minister of Interior, we took a tough stand that all offshore companies linked to the tank farm had to be identified, their accounts seized, and the money returned. At that time, there were four such outlets: two in Singapore, and two others were owned by Russian companies. The investigation should not be closed, it should proceed to determine to which foreign banks these offshore companies channeled the money of Ukrainian citizens. If the investigation does not establish this, I am convinced that sooner or later the proceedings will have to be resumed.

The situation in Ukraine is increasingly being described as a revanche of old forces, allegedly, following certain arrangements between the current government and the has-beens...

I don't think it is a revanche. What we are witnessing is rather inaction aimed at preserving the old criminal schemes. Or (and this is equally dangerous) secret agreements exist on the non-return of the stolen money from abroad, and not only money, but also shares, participatory interests, bonds, loans... Here we are talking about the large-scale plundering of the Ukrainian economy, against which we stood on Maidan. There are some unofficial secret agreements, redistribution of businesses. Whether it is 50/50 or otherwise, it is no good at all at any rate. This is criminal complicity in redistributing assets instead of returning them to the budget. Again, the Prosecutor General's Office has been vested with the responsibility to return stolen assets by the current legislation and the current parliamentary coalition. If the mechanism is not working, it needs to be changed. Why has not it been done by the legislators? 45 million citizens of Ukraine have no answer to this. I believe that this should be done. This is what they did in Singapore. Even our president once mentioned the leader of Singapore in Parliament. But just quoting him is not enough. They took a whole set of specific measures: a special court, a special prosecutor appointed specifically to fight corruption and to return the money that had been stolen from Singapore. This scheme is still working. What makes their economic area so attractive? It is the fact that everyone knows clearly: while you work legally and pay taxes, you will have no problems. But as soon as you take your money offshore, the special prosecutor will seize your account immediately, no matter where your offshore outlet is located. Immediate seizure is followed by the disclosure of the actual beneficiary, who has to return the money. Not to mention the special court that will send him to jail. I believe that we don't need to reinvent the wheel, but we need to act. For a year already, the parliamentary majority has been telling us that everything is bad. But they are the ones who appointed everyone, so what stops them from changing the law on the Prosecutor General's Office?

On Maidan, we demanded that the punitive functions of the PGO be changed and that a single anti-corruption body be established instead. Didn't we? I myself fought for it. By now, the law on the Prosecutor General's Office has only undergone cosmetic changes. The general supervision by the Prosecutor’s Office is still in place. But what is the point in it?

Are the current political elites capable of such change?

If they are not, then they must take the responsibility and stop lying to people. What is absurd in the current situation? MPs appoint security officials and then say that they don't work well enough. If you appointed them and they don't work, then we have the parliamentary-presidential republic, where you can raise the issue not by collecting signatures, which is a waste of time, but by voting in Parliament. Then it will be clear, that anyone who did not vote for replacing security officials or the GPO management is in the camp of evil and is reluctant to act. Anyone who voted and demanded changes to the legislation in a transparent way is on the side of the people. It is that simple.

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What do you think about the performance of the law enforcement sector on the eve of the second anniversary of Maidan? Ukraine was expecting at least some results of the investigation into the crimes, but has so far seen little.

I remember the report by the law enforcement authorities released in April 2014. This was a much needed report. Minister of Interior Arsen Avakov and I went out and said honestly and frankly: here are the 12 detained members of Berkut. By the way, we found Dmytro Sadovnyk (Berkut officer suspected of shooting at Maidan protesters – Ed.) then. We succeeded. But this was in April 2014. Then it was possible, and that was enough. I say it was possible, because in April we could send them to jail. After that, in May, we arrested an SBU General for collaborating with the FSB and for acting against Maidan (I'd like to see at least one other general from some other departments that was arrested for persecuting Maidan activists). Based on our evidence, another senior official of the SBU was detained. That is, the SBU chose the path of purging its ranks, and not only purging, but also arresting those who acted against the country's citizens. Other agencies, including the General Prosecutor’s Office, the Interior Ministry, and the Tax Police, should have acted likewise. During Maidan protests, tax policemen in disguise were sent along with titushky to beat us here. It's no use pretending that they were not here. They were. And we remember it. And two years later, it hardly makes sense to file reports or show the same materials that were available already in April 2014. I know for sure that Minister Avakov and the SBU submitted to the Prosecutor General's Office everything that had been documented: hundreds of files, proceedings, agency checks, proofs of illegal tapping of MPs, surveillance, harassment of activists, kidnapping, FSB involvement. This is a huge package. The second year is running out, and the prosecutors should have already found an indictment or indictments, if proceedings cannot be combined, and submitted them to court one after another. I myself proposed a bill last year, even though I am not a legislator, but I offered to the President or parliamentary committees to introduce it. It provides for creating a special trial chamber at the Supreme Court of Ukraine to hold public judicial inquiry and to punish all the participants and perpetrators of the crimes against the citizens during the Revolution of Dignity. So much for idle talks and empty statements. Reports should be heard during tribunal sittings. This would be right. In April last year, reports were fine and probably enough. But as of December 2015, we already should have an open court hearing.

Is this because no evidence is available?

— I am sure it is. The SBU alone from March 2014 through June 2015 collected over two hundred materials: letters, proofs, witnesses. A huge package of this information was submitted to the Prosecutor General's Office. And I don’t mention separate proceedings against our own traitors and individual criminal cases that were taken to court: over illegal wiretapping, surveillance, etc. I mean, people will not be able to understand or assess the amount of work done unless there is a public court hearing. It's pointless to keep talking on TV that Yanukovych is bad, it is already annoying. This should be said in court. Here you have the man who organized the investigation into the theft of UAH 220mn from Ukrtelecom. It was in April 2014. Already in May, we transferred the materials to the Prosecutor General's Office. Finally, two months ago, they resolved to open criminal proceedings. Fine, but where is the court hearing?

What do you think about the quality of lustration, especially at the law enforcement bodies?

— I think that Yehor Sobolev and Karl Volokh (MP and activist campaigning for lustration and reform of the judiciary – Ed.) proposed a very good idea. Professional Ukrainian politicians and lawyers, instead of discrediting the idea by making sure that lustration spares themselves or their friends, should have implemented it in stringent precise legal standards and laws, and then in regulations for each agency. Justice Minister Pavlo Petrenko started off quite well at his ministry, but then every other agency did everything possible to conceal accurate information about its current management, turning everything into a bureaucratic, Soviet-style system of letters, enquiries and responses. As a result of this lustration law and the effort to comply with its procedure, I had to sign 3,000-3,500 enquiries and responses to letters to various departments daily. What time did it leave me for work? You can survive these thousands of applications for a few days, but reading them is unrealistic. As a result, the idea drowned in millions of sheets of paper. All those papers in the 21st century of electronic document flow, electronic checks and the modern world, ended up discrediting the law and concealing the facts.

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In fact, there was no need to check 100,000 officials, because the layer of those who had to be checked in the first place is the maximum of a thousand or two of top and middle managers. Besides, some absolutely incomprehensible amendments were made to the legislation later. We check everyone in some ministries, but not in others. Does this mean that the Foreign Ministry under Yanukovych defended Maidan? Quite the opposite. I worked in the opposition at that time, at the Committee of Foreign Affairs. What the ambassadors abroad said about us, the opposition, was no better than what the titushky did when the beat people with bats. Why was there no lustration there? Politicians and professional lawyers have to do everything possible, and they still have this opportunity, in order to remove the bureaucratic Soviet pressure, stop discrediting lustration and implement it openly. Besides, a mechanism needs to be found to check the accuracy of the information provided by all kinds of officials as a proof that they are clean and that their agencies are not subject to lustration. The rule here should be one for all.

What do you do now?

— I started an Anticorruption Movement with my associates, because I believe that the one and only true reform that we need is the anti-corruption one. Power and business should be separated. It is a matter of survival. I just returned from the United States, where I spoke at the Carnegie Foundation. Our civic Anticorruption Movement has huge international support in that Ukraine will be able to stop the external aggressor and to gradually restore our territorial integrity if it overcomes corruption and thus becomes stronger. That is, the key to ensure the country's survival and further development is clearly the fight against corruption. It has to be very specific and based on one key principle: while you're in government, you have no right to do business. And while you're in business, I'm sorry, but you have nothing to do in government. Without any double standards. We have one minister who has a bank, a fund and is also engaged in the energy sector. This is abnormal.

How are our anti-corruption efforts seen in the US?

There has been no progress. This is their vision. And these are in fact questions to the current government. There is nothing good about it, and I'm not happy with it. Honestly, like most Ukrainians, I would rather live in a completely different environment. Americans say clearly: we have offered assistance more than once, both the FBI and other special investigative bodies are ready to help: seize accounts, seek support in European countries in order to return the money. But where is the political will in Ukraine to file cases and investigate into them? Today, there is no political will. And this is not normal. For the Anticorruption Movement, the key issue is to have more support, to work more closely with civic organizations and ordinary people in order to put pressure on the authorities. Nevertheless, if you ask me how I feel, I can answer: more than efficient. Because I have no constraints. Previously, I used to work with classified information, we couldn’t tell anything, we would report and wait for the decision on whether we would file a case or not. Now this is not holding me back; on the contrary, I can and I will actively push forward, demanding to stop corruption where possible.

Is there a possibility of early elections in Ukraine?

Early elections will only take place on the condition that the current coalition fails to fight corruption. If no criminal proceedings are opened, if no MPs actually involved in offshore money laundering are deprived of immunity and arrested and, most importantly, if the money is not returned, then neither this coalition nor any other coalition in this Parliament has any future. It shouldn't be like with the escape of Serhiy Kliuyev (ex-Party of Regions member and brother of Viktor Yanukovych’s Chief of Staff Andriy Kliuyev who fled Ukraine shortly after the Maidan – Ed.). When the Prosecutor General's Office finally applied to deprive him of immunity, I called the President and the Prosecutor General and insisted: arrest him right away, it's your authority after all. I instructed my people, and we blocked both airports. We needed only one thing: the signature of the Prosecutor General or of his deputy to prevent this person from leaving the country. We didn't get the signature. This is just one case. What's next? It has to be the same with others: either actual decisions or imitation.

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Please comment on the attitude of the authorities to volunteers fighters. Today this raises many questions.

— There is only one way out of this obscurity, and I keep repeating and promoting it. After the Revolution of Dignity, there was obscurity as well, empty SBU, traitors. I'm talking about the office to which I was again appointed by the Parliament on February 24. The first people who came and supported us were the patriots. My deputy was the head of the Self-Defense of Maidan. I am grateful for life to these guys, and not only me, but the whole country. I am convinced that this was the right way to reform the law enforcement and security services, and also Ukraine's Public Administration. We should be open to this. And the natural continuation of this was the adoption of the law that was introduced by Yarosh and supported by me on the creation of the Ukrainian Volunteer or Reserve Army. This is just terminology, but in essence those were the people that at that time really rose to the defense of the country, without weapons, when there were no law enforcers in the East, except for traitors, when there was no Ukrainian Army and no one to defend the country, they stood up and did it. Therefore, they should be offered a path to legalization through the Volunteer or Reserve Army of Ukraine. Besides, there should be a radical upgrade of the Armed Forces and the law enforcement agencies with Ukrainian patriots and members of patriotic and volunteer organizations. The fact that activists today perform the functions of the government when they block Crimea is just another proof that I am right. I am not the only one who shares this standpoint: we have to be open to these people. They deserve to be in the government. Appoint them.

What do authorities expect to achieve by persecuting them?

— I think it's only one thing: "we have come to power, and this is all ours, it all belongs to us." This is not true, they do not own the country. How many of those who came to power have been to Maidan? Avakov was a commandant of Maidan, we used to meet at night, when the situation was very tough, Arsen did what he could. Turchynov was there, Parubiy. But who chairs the High Council of Justice, who is the Prosecutor General, who sits in the Supreme Court, the Constitutional Court, the Central Election Committee? The powers of the CEC expired last April, and we have a group of activists called OPORA, who have been fighting for fair elections for a long time. Can you name at least one of them that became a member of the CEC? I can say quite diplomatically: CEC should be made of such people.

On whom does it depend?

— On one person: the president. If the president nominated Aivazovska for the Head of the CEC, I would be the first to support her. And you would also support her, as well as 46 million citizens. Then, finally, issues such as organizing elections, parallel vote counting, vote rigging by electoral commissions or delivery of ballots to Mariupol would no longer be on the agenda. There will already be other people, the youth that grew up fighting. Today, members of the Central Election Commission have the status of a Deputy Prime Minister: car, office, salary, assistants. I think that those young people would refuse half of that right away. They will work professionally, and save budget money. We will stop playing with those papers and protocols. I only mentioned CEC. But we can look at any other government body in Ukraine from this angle. They are all the same.

BIO

Valentyn Nalyvaichenko was born in 1966 in Zaporizhzhia, South-Eastern Ukraine. He attended Kharkiv and Kyiv National Universities before entering the KGB Institute and graduating from it in 1993. In 1994, Mr. Nalyvaichenko joined diplomatic service and has since worked at the Ukrainian embassies in European states and USA. He served as Chief of the SBU in 2006-2010, and in 2014-2015.

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