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22 February, 2013  ▪  Oleksandr Mykhelson,  Milan Lielich,  Andriy Kovalenko

Phantoms From the 90s

The Shcherban Case trial against Tymoshenko shows yet again that, just like in Soviet times, the government is ready to prove anyone guilty of anything, if necessary

The trial against Yulia Tymoshenko – this time over the murder of Yevhen Shcherban (see The Characters) – is likely to further discredit the judiciary and law enforcement within the Family model of authoritarian state. The actual court sessions, the arguments of the Prosecutor General’s Office, the conduct of people involved as witnesses, and their chaotic testimony – often contradicting and absurd – against the backdrop of the prosecution’s confident statements that everything confirms Tymoshenko’s involvement in the murder as charged by the Prosecutor General and those in power earlier, proves that the whole show is essentially being adjusted to a pre-determined verdict.  

The prosecution has used every opportunity the new Code of Criminal Proceedings has to offer, accepting testimony that refers to third persons, which in the Shcherban case, include dead people and migrants who had left Ukraine. This leaves the impression that the provision about “third persons” was specifically drafted to put Tymoshenko in jail for life. Meanwhile, witnesses can barely hide their links with law enforcement authorities, whose scenario they back up with their testimony. Some act as if they were afraid of meeting with the defendant in person. After Tymoshenko asked to be present at the session to hear testimony from Volodymyr Shcherban, the Head of Donetsk Oblast State Administration (see The Characters) in the 1990s, he suddenly fell ill.

THE DEAD TALKING BACK?

The first witness to speak was Ihor Mar’yinkov (see The Characters). He did not hide his intent to leave Ukraine “for business matters” as soon as the interrogation was over. His recollections, however, sounded a lot like an improvisation by an amateur actor. He had not said a word about Tymoshenko’s involvement in the murder for almost 17 years, and now he has suddenly recollected everything, even thought his recollections are quite bizarre. Mar’yinkov mentioned a dozen people who had said something 16 or 17 years ago, thus giving him the grounds to talk about Tymoshenko’s guilt. At this stage, most of them are dead or missing. Moreover, Mar’yinkov was already a witness in the case in 2003 when the living members of the “Kushnir gang” that arranged the murder were sentenced. He made no mention of Tymoshenko back then.   

READ ALSO: Tymoshenko’s “Killer” Case

Now, he has a different explanation as to why he did not speak of her during that process. On 13 Febraury, Mar’yinkov said that he had given testimony proving Tymoshenko’s involvement back in 2002, yet prosecutors hushed that up. “Perhaps, this was because someone had tea with the president,” Mar’yinkov said ironically. The testimony is confusing as the legend of Tymoshenko’s “tea drinking” with the then President Leonid Kuchma, which reportedly helped her get through the troubles with her patron Pavlo Lazarenko unharmed, refers to 1999. In 2002, she faced several criminal cases and escaped the arrest narrowly (the judge who released her himself immediately faced a criminal case), while many people from her close circle remained under arrest. On 14 February 2013, Mar’yinkov hinted that he had been afraid to give testimony against Tymoshenko back then.

Mar’yinkov then mentioned that the late Milchenko and Kushnir (see The Characters), both suspected in arranging the murder of Shcherban for Tymoshenko, “had a nice little chat” on the date he mentioned as “late fall”. If the prosecutors really wanted to investigate the case, they would have looked for other witnesses of their chat, including the staff of the hotel they were at. But then they would also have to explain why the locations of the chat he mentioned at different times over the two days of interrogation varied from “near the restaurant on the third floor” to “near the elevator” or the hotel reception desk in the hallway. Indeed, it is hard to remember every detail after fifteen years, yet Mar’yinkov’s memory proves surprisingly good with regard to other details.   

When asked by her lawyers what Tymoshenko was wearing that day, Mar’yinkov says confidently: “Tymoshenko had a Chanel purse. No… it was a Gucci but her perfume was Chanel. And she was wearing Louis Vuitton.” How observant of him, especially given that the first line of Louis Vuitton – the brand Tymoshenko preferred during her first term as premier – came out two years after the events he mentioned in the testimony. In the 1990s, meanwhile, Tymoshenko wore black baggy blazers – at least she did on all her photos from those years.  Mar’yinkov’s maths is also confusing. At the two interrogation sessions in court, he mentioned three different sums that Tymoshenko/Lazarenko supposedly paid to have Shcherban murdered. One was USD 3mn, the other two were USD 1.8mn and USD 2mn. When asked to clarify the statement by Tymoshenko’s lawyer Oleksandr Plakhotniuk, the witness said: “This is all around three million – both 1.8 and 2.”

READ ALSO: Oleksandra Kuzhel: “Yanukovych is digging a hole for himself by putting pressure on his own men and the oligarchs”

Despite obvious flaws in the testimony, the prosecution insists on the charges. “The lawyers tried to put pressure on the witness by repeating questions that the witness had answered earlier,” Prosecutor Oleh Pushkar interpreted bizarre testimony at the court session. “This does not change things as the witness explained where from he knows about the events that took place in 1996 and the role of the suspect in them; he clearly determined Tymoshenko as the person responsible for the payment to arrange the murder of Shcherban,” he added.

THIRD PERSONS

At one point, Deputy Prosecutor General, Rinat Kuzmin, lamented publicly about the hard time the US officials had given him in the process of investigating the Shcherban case, i.e. in getting testimony from Petro Kyrychenko, Pavlo Lazarenko’s partner in the 1990s. After he failed to get the testimony from Kyrychenko, the Prosecutor General’s Office replaced him with the new witness for the court session, Serhiy Zaitsev, related to Kyrychenko through his wife. He told the prosecution about his wife’s birthday party in California where Kyrychenko, “in a state of deep alcoholic intoxication”, bragged about how much he had once done for Lazarenko, mentioning the Shcherban case in the conversation. According to Zaitsev, Kyrychenko told him that it had been he who had “cleverly arranged” the murder of Shcherban and mentioned a “filly” (the word in Russian indicates that it was a woman) whom he “cheated out of a three”. Apparently, he concluded that Tymoshenko had paid for the murder of Shcherban from two conversations with a drunk Kyrychenko who, according to Zaitsev, had been a hard core drug user from the late 1980s until the mid-1990s, and got his whole family involved in it.    

The first attack of Tymoshenko’s lawyers focused on questions about who transferred the money for the murder and when, to whom it was paid and the amount. Zaitsev specified that Kyrychenko had first told him “we paid”, evidently meaning himself and Lazarenko; then he said that the “filly” paid the “three”. However, he could not explain where another million had come from. In the end, Zaitsev got completely confused and started pulling nervously at his watch. The lawyers switched to Kyrychenko and his drug addiction. The witness realized that saying “deep alcoholic intoxication” was too much and started insisting that they had only had one bottle of wine with Kyrychenko.

READ ALSO: Another Former Official Finds Asylum Abroad

The lawyers tried to find out whether Zaitsev had been involved in any other criminal cases, yet the witness refused to answer that until the judge told him to do so. He said that he had been a witness in the case on the murder of businessman Yesikov in 2003-2004, which is still pending. This led one of Tymoshenko’s lawyers, Serhiy Vlasenko, to the conclusion that witnesses in Ukraine can easily turn into suspects, which is why Zaitsev is dependent on the prosecutor’s office. “With whom did you come to this session?” Vlasenko asked his final question. “Stepan Bohdanovych brought me here,” Zaitsev muttered. “Who is he?” the lawyer asked. “Stepan Bohdanovych Bozhylo,” the witness spelled out the name of the investigator from the Prosecutor General’s Office who in charge of the Shcherban case.

After the interrogation of the first two witnesses, the defence clearly sounded more convincing. Arguments against Tymoshenko came from people with questionable reputations, who referred to something they had heard from one-time criminals and drug addicts. But the key trend is obvious: although the first sessions are completely bizarre, so far there is no chance of Tymoshenko’s acquittal.

NO PROOF?

What data on the Shcherban-Tymoshenko case is ultimately available to the public? The prosecution is evidently promoting just one of several scenarios suggested by the media, experts and lawyers. Yet, apart from the scenario where Pavlo Lazarenko and Yulia Tymoshenko remove a rival who had supposedly been a serious obstacle to YeESU (United Energy Systems of Ukraine) becoming a gas supplier for the Donbas plants, there is a number of alternative scenarios with different possible participants ranging from the current Donbas team of those in power and oligarchs, to the close circle of the then President Leonid Kuchma, and more. Moreover, the proof seems to boil down to the testimony of witnesses that can hardly be viewed as independent. This should be taken into account by the court, investigators, and most importantly by the prosecution.

Another signal came from the notorious Major Melnychenko and his reaction to Leonid Kuchma’s words in Davos. The latter said that Yulia Tymoshenko was not viewed as the one involved in the murder of Shcherban when he was president. Melnychenko rushed to state that he had heard Kuchma mention something like “Lazarenko… Tymoshenko… Shcherban” many times. Therefore, a plausible scenario is for the prosecution to involve Melnychenko (also on the prosecution’s hook due to the criminal case over the illegal wiretapping and recording of Kucham’s conversations) as a witness.

A wild yet possible scenario is for the “Lazarenko… Tymoshenko… Shcherban” fragments to suddenly appear on the Melnychenko tape, and for the Constitutional Court to decide that the tape is perfectly legitimate as opposed to its earlier decision, and therefore perfectly fine as evidence.   

READ ALSO: Kuzmin: a No-Nonsense Prosecutor

Other than that, the prosecution seems to have nothing else to provide as physical evidence. There are the “invoices” provided by Shcherban’s son Ruslan in spring 2012 after 16 years of keeping mum about them. Perhaps, in the eyes of the prosecution, a transfer from one offshore entity’s accounts to another’s confirms that the money was for a gang of killers. Then, however, the purpose of the transfer should directly state: “For the murder of Yevhen Shcherban”. Otherwise, this could have merely been a routine business transaction, or a bribe that had nothing to do with the murder.

Meanwhile, Petro Kyrychenko reportedly mentioned settlement in “black cash”, i.e. unreported and untaxed, in his testimony. What can then confirm that the settlement did take place, other than the arrest of the person who paid it on the spot with marked bills? So far, nothing has been reported of any such operation.

Shcherbangate risks turning into a case orchestrated by Yanukovych’s people in the eyes of the independent audience in Ukraine and abroad for a number of other reasons. Firstly, the prosecution has no access to Pavlo Lazarenko, whom it lists as the main client of the killers because he is in the US. Secondly, all executors of the murder are dead. As a result, the testimony of third parties seems insufficient to find Tymoshenko guilty of ordering the murder. Meanwhile, ex-General Oleksiy Pukach, alive and jailed for the murder of journalist Georgiy Gongadze, mentioned Leonid Kuchma and Volodymyr Lytvyn as those who had ordered the murder in the closing court session. Given the prosecution’s reasoning in Shcherbangate, doesn’t this prove that they are guilty?

Ukrainian criminal justice stands on the two pillars of misinterpreting the law and the selective use of false testimony as evidence, and it looks like the public has no question about this. The law itself has been designed by those in power as a collection of “open texts”, comprised entirely of obscure definitions and interpretations. Only someone totally honest would not use this for his benefit, and such people do not work at the Ukrainian Prosecutor’s Office. 

 

THE CHARACTERS

Who is who in the Shcherban case and what they did in 1996

Yevhen Shcherban Co-founder of the Donbas Industrial Union and the Liberal Party of Ukraine. Counsel to Premier Yevhen Marchuk (March 1995-May 1996). CEO of the Anton Corporation. Assassinated at the Donetsk airport on 3 October 1996, with three other people including his wife. Law enforcers launch a series of inspections at Anton shortly after his death, resulting in the suspension of its operations.

Ruslan Shcherban Yevhen Shcherban’s son. In 1996, he witnessed the assassination of his father. At the 2003 trial, he insisted that Pavlo Lazarenko had ordered the murder. Later he said that the investigators had not found all those involved in it, but did not mention any names. In April 2012, he said for the first time that Yulia Tymoshenko was also involved in ordering the assassination. He claimed that he had handed documentary evidence of her involvement to the prosecution, but failed to show any of them to the press. The prosecution has yet to do so.

Pavlo Lazarenko Premier in 1996-1997. According to investigators, he demanded that Ukrainian enterprises only bought gas from YeESU. Then, the corporation transferred up to 50% of income to the offshore accounts of Lazarenko’s companies. After local businessmen and Volodymyr Shcherban, Head of Donetsk Oblast State Administration, founded the Donbas Industrial Union, which supplied fuels bought by Ihor Bakai’s Respublika company in Russia to Ukrainian plants, Lazarenko supposedly ordered the assassination of the Donbas Industrial Union founders, including Yevhen Shcherban and Oleksandr Momot. He was arrested in 1999 in the US and sentenced for money laundering. He was released on 1 November 2012.

Petro Kyrychenko Opened accounts and created shell companies to transfer the income of Lazarenko’s businesses abroad. Moved to the USA after Lazarenko left the premier’s office and worked with US investigators after he was arrested there. In the fall of 2011, his wife was arrested in Ukraine and spent three months in a detention centre. Over that time, her husband told Ukrainian investigators that he had transferred the money to the killers of Yevhen Shcherban as instructed by Lazarenko through Oleksandr Milchenko known as Matros (Sailor). Thereafter, Kyrychenko’s wife was released and the seizure of his property was lifted. The court closed the case on his assistance to Lazarenko.

Oleksandr Milchenko (Matros, Sailor)

Was sentenced to 12 years in jail in 1986 but returned to Dnipropetrovsk in 1995 and soon became a crime boss. According to investigators, he was instrumental in organizing the assassination and was paid a portion of the sum in cash by Kyrychenko. On 22 November 1997, Milchenko tried to leave Ukraine but died suddenly on the border. In May 2012, his body was exhumated and examined for poison but the outcome has not been announced.

Yulia Tymoshenko was CEO of United Energy Systems of Ukraine (YeESU) when Yevhen Shcherban was assassinated. According to the Prosecutor General’s Office, Lazarenko ordered the assassination because Shcherban had posed a threat to Tymoshenko’s life. The corporation ultimately failed to enter the Donetsk Oblast gas market. On 18 January 2013, Tymoshenko faced official charges of ordering the assassination.

Yevhen Kushnir moved to Israel in 1993. On his return to Ukraine, he founded a gang with Anatoliy Riabin and Mahomed Aliev. Vadim Bolotskikh (imprisoned for life for the assassination of Shcherban), a professional killer from Russia, later joined the gang. In the late 1990s, Kushnir’s gang organized the scandalous murder of FC Shakhtar’s President Akhat Bragin known as Alik Grek. Gang members were also accused of murdering Yevhen Shcherban in 1996 and NBU Chairman Vadym Hetman in 1998. In March 1998, Kushnir was wounded and died five weeks later from an “allergic reaction” to medicines at the hospital.

Vadim Bolotskikh Siberian-born professional killer. On October 3, 1996, he shot Yevhen Shcherban and his wife, while his companion Hennadiy Zangelidi started shooting randomly from a machine gun. Zangelidi, now dead, killed two airport employees, while Bolotskikh was injured on the shoulder. In 2003, the Luhansk Court sentenced Bolotskikh to life in prison. Nothing is known about his possible testimony regarding Tymoshenko’s involvement.

Ihor Mar’yinkov spoke in court on 13-14 February 2013, as a witness in the Shcherban case. Running his own business in the mid-1990s, he personally knew Milchenko, Kushnir and the leaders of the Kushnir gang, and said in court that he was on friendly terms with them. According to journalist Tetiana Chornovil, he co-owned a business with Yuriy Vandin, Yuriy Zemliansky and Petro Shatkovsky, all generals in the police now and SBU deputy chairmen at different times. According to The Ukrainian Week’s sources, Mar’yinkov was the police’s informant in the Kushnir gang when the assassination took place. When the criminals discovered this, the police staged his arrest and a verdict for illegal arms trafficking to save his life, but Mar’yinkov never went behind bars.

Serhiy Zaitsev spoke as a witness after Mar’yinkov. His late wife Svitlana Novakovska was the sister of Petro Kyrychenko’s wife. In 1991-1995, Zaitsev chaired the Dnipropetrovsk-based AgroPromZbut. Other founders with equal stakes in the company were his wife, and the Kyrychenko couple. According to the prosecution, this company was the first source of windfall profits for Lazarenko as its beneficial owner.

Volodymyr Shcherban headed Donetsk Oblast State Council in 1994-1996 and Donetsk Oblast State Administration in 1995-1996. He had been friends with Yevhen Shcherban (the two share one family name but were not family) and headed his Liberal Party. In 2002, Volodymyr Shcherban was elected to parliament as part of the Nasha Ukrayina (Our Ukraine) list but switched to the pro-presidential majority and was appointed Head of the Sumy Oblast State Administration. After the Orange Revolution, he fled to the USA after he faced a criminal case for abuse of office and the illegal disruption of peaceful assemblies, but was deported back in 2006. He was arrested at the airport but released shortly thereafter with three Party of Regions’ MPs acting as his sureties. 


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