The Ukrainian Week talks to Oleksiy Bahanets, Yuriy Lutsenko’s lawyer, about the proceedings and the virtual switch of witnesses from the position of accusation to defence, an extremely rare occurence in court practice, particularly in a situation where prosecutors are acting to please the government.
U.W.: According to the press, the prosecution listed nearly 150 witnesses in the Lutsenko case, compared to those listed by the defence – a mere 16. The former were either questioned or their testimony was read. Did any of the witnesses for the defence have an opportunity to speak in court?
The Office of the Prosecutor General of Ukraine declared that a list of 145 people had been added to the charge sheet, who will be summoned to give evidence in court, making a total of 148 witnesses. The defence only declared 16 witnesses, including three employees of the Prosecutor General’s Office, namely two investigators and one Deputy Prosecutor General of Ukraine. They participated in the falsification of materials in the criminal case and applied illegal investigative means. However, the court denied our petition without providing substantiated grounds.
U.W.: Many prosecution witnesses refused to confirm the written testimony they had given at the Prosecutor General’s Office and essentially supported Mr. Lutsenko. How many were there? Who were they?
– The Office of the Prosecutor General interrogated more than 200 people during the pre-trial investigation of the case against Mr. Lutsenko. At first, nine signed the interrogation transcript, where they confirmed that when he was Minister of the Interior, he had allegedly given supposedly illegal orders concerning his former driver, police officer Leonid Prystupliuk. These were his former colleagues including Mykhailo Kliuyev, First Deputy Minister; Oleksandr Fokin, Deputy Minister; Valeriy Melnyk, Chief-of-Staff for the Interior Minister; Mykola Kurko and Volodymyr Kryvolapchuk, both heads of the Human Resources Department for the Interior Ministry; Oleksiy Prylipko, Serhiy Levchenko and Volodymyr Stepanenko, heads of the Operational Services Department; as well as Vasyl Sheludko, Head of the Maintenance Department.
They all refuted the data of the pre-trial investigation, saying they had not received a single illegal order from Mr. Lutsenko, either directly or indirectly. They were confident that they had acted in accordance with valid legislation when checking and initialing all draft orders and instructions, subsequently signed by Mr. Lutsenko. They said that the differences in their testimonies could be largely explained by pressure from the Prosecutor General’s Office and the deliberate of what they had said distortion by the latter, as well as the recording of information that they had not provided.
As for other witnesses listed by the prosecution, they were all middle and lower level management employees of the Interior Ministry headquarters, such as heads of sectors, departments, divisions or individual units, as well as investigators. Since they were not eye-witnesses to the incidents of which the minister is now charged, to make it look as if they had a lot of evidence, during their questioning of these people, investigators from the Prosecutor General’s Office did not investigate the facts that they already knew, merely clarified their assumptions and opinions, asking them “could Lutsenko have acted this way…,” “could he have given such instructions” and “do you think that similar actions by other Interior Ministry employees would be considered illegal”..
This is why all of them said they knew nothing of Mr. Lutsenko’s crimes and that the information set forth in their interrogation transcripts were only assumptions, moreover they were twisted and falsified by the investigators of the Prosecutor General’s Office.
Thus, 87 of 145 witnesses presented by the public prosecutors were questioned in court. None gave evidence against Mr. Lutsenko.
U.W.: Several dozen witnesses from the prosecution refused to appear in court. Mr. Lutsenko insisted that they should be summoned and questioned in court, but the judge dismissed this request. Can the court legitimately take such evidence into account?
Since the court stated evidence supposedly given during the pre-trial investigation, it can be used by the court to prove either the guilt or the innocence of the defendant. As for the legal grounds for calling so many witnesses – they are a complete fabrication. The materials of the case had no evidence, which would explain why these people could not come to court.
UW: What are the prospects for the case against Lustenko? Rumor has it that the prosecution is rushing to announce its verdict before the European Court of Human Rights makes its decision on the ex-minister’s application.
It’s difficult to say anything at this point, since the law and legislation of Ukraine are ineffective, at least in cases against the government’s political opponents. There are no legal grounds to give Mr. Lutsenko a guilty verdict. The defence has no doubt that the court is being controlled from outside. Evidence of this is that almost as many witnesses were questioned and as much evidence declared over two weeks of 2012, as over eight months in 2011. Moreover, nearly every day, the process took up just about all working hours, despite other cases being assigned to the judges for consideration during the same period, but they were not heard. This gives objective grounds to conclude that instructions have indeed been issued to speed up the consideration of the case, so that the verdict is announced before the ECtHR announces its decision on Lutsenko’s application, and it is quite obvious what the latter decision will be.
U.W.: To what extent is the information provided by Hennadiy Moskal to the court regarding the assassination attempt on Yuriy Lutsenko, allegedly planned by Maksim Kurochkin, a Russian businessman, reliable?
It’s difficult to answer this question, since I wasn’t an eyewitness. The only thing I can confirm is that Mr. Lutsenko also mentioned the attempt to me prior to Hennadiy Moskal, the First Deputy, announced it to the court.
U.W.: Mr. Lutsenko’s lawyers insisted on summoning Leonid Kravchuk and Oleksandr Turchynov to court to give evidence. Why do you think it’s important to hear these people?
The defence wanted to subpoena Mr. Kravchuk since he was the one who issued the decree in 1992 instructing authorities to celebrate Police Day every year, while public prosecutors wanted to see Mr. Turchynov in court. Our request to question the first president of Ukraine was dismissed, while Turchynov was interrogated on February 10. Despite being summoned to court on the prosecutors’ insistence, Mr. Turchynov categorically denied any wrong-doing on the part of Mr. Lutsenko as regards the charge of abuse of office for celebrating Police Day in 2008 and 2009. He pointed out the decree issued by the Cabinet of Ministers the following year, which only banned celebrations requiring additional public spending, which the Interior Ministry did not.
U.W.: On February 8, the court partly satisfied the requirements of the defence. Why, in your view?
This can only be explained by the fact that from the court’s point of view, these requests will have no impact on the decision as to Yuriy Lutsenko’s fate, which has been made in advance. This is my personal opinion.
U.W.: The panel of judges described demands in the PACE Resolution to release Yulia Tymoshenko and Yuriy Lutsenko as an attempt to exert pressure on the Ukrainian judiciary. Viktor Klymenko, the public prosecutor, said the same. Do you agree with this?
Both the panel of judges, headed by Serhiy Vovk and the prosecutor, Viktor Klymenko turned a blind eye to my appeal to revoke preventive measure against my client. In the justification to my requests I mentioned that all the circumstances taken into account by the Pechersk Court when opting for the harshest preventive measure – arrest – were no longer effective, although these grounds were far-fetched and illegal from the very start.
Firstly, the circumstance based on the clearly false claim that my client is dragging out the pre-trial investigation made by the investigator is inapplicable, since the investigation has long been concluded.
Secondly, the fact that Mr. Lutsenko exercised his constitutional right to not plead guilty and contest the charge he is facing, cannot serve as grounds to apply preventive measure against him.
Thirdly, the Code of Criminal Procedure of Ukraine does not provide for grounds, such as the investigator’s statement that Mr. Lutsenko had distorted the information available to him on the case in his interview for the press, to keep someone under arrest. Moreover, as most witnesses examined in court said, the Prosecutor General’s investigators were the ones who had twisted the evidence given during the pre-trial investigation while some had also been subjected to psychological pressure.
Fourthly, the materials of the criminal case, collected during the pre-trial investigation and verified during its consideration in court, contain no data on the attempts or intent of my client to violate the previous preventive measure – an undertaking not to leave.
I based my requests on our criminal procedure legislation, not the PACE Resolution. I only referred to it, as well as the new law on the liberalization of Ukraine’s Criminal Code on crimes related to commercial relations, as additional circumstances the judge should take into account when considering my appeal. I also referred to the declarations of President Yanukovych and Prosecutor General Pshonka, whereby they instructed the judiciary to restrict the use of arrest as a preventive measure for non-violent crimes and to release people, who have been detained for more than two months from temporary detention centers. In other words, there has been no pressure on judges whatsoever, especially on the part of PACE.
U.W.: In your opinion, what will be the verdict of the Pechersk Court in the Lutsenko case?
Given the fact that I now live in a non-democratic, extrajudicial state, where courts are dependent on the executive branch, whose representatives, including the Prosecutor General, constitute a majority in the Supreme Council of Justice and the Supreme Court of Ukraine, I’m not expecting a legitimate verdict. However, according to the law, the only possible verdict is “not guilty”.
