“Sometimes lawyers defending a lower level official are actually protecting the interests of the kingpin”

14 August 2016, 22:45

Interviewed by Roman Malko

In October 2012, Ukraine’s Prosecutor General launched a major building project in the courtyard of its own offices on vul. Riznytska in Kyiv. Local residents complained about the endless noise and sometimes even about huge cracks that were appearing in their walls, actually tearing their residences apart. After the odious Viktor Pshonka followed his “patron,” Viktor Yanukovych into exile, his subordinates began to look into the crimes of their boss and determined that, prior to fleeing abroad, Pshonka managed to make nearly UAH 70 million on his little skyscraper and on renovations to other offices of the PGO. In 2014, the agency that was once run by Pshonka finally began to investigate his crimes. The Ukrainian Week spoke to the PGO Senior Prosecutor Oleksiy Donskiy about the financial crimes of the one-time Prosecutor General, money-laundering centers, and the base of evidence collected in this case.

So how did the Pshonka case start?

In summer 2014, materials came to the PGO from the National Security and Defense Council with accusations of crime. It was not just about the embezzlement of UAH 69 million during PGO construction (the skyscraper on vul. Riznytska – Ed.), but also about abuse of power, bribery and so on. The trouble was that most of the claims were either not supported by evidence or were overly generalized. For instance, someone wrote that Pshonka was appointed for money. Who looked into it… nothing was specific. Or, say, someone mentioned a bribe to have a case closed and states which one. We interrogated the people involved and they all deny it. So as it stands, we’ve only been able to accuse him of embezzlement. You have to understand that in bringing someone to justice, there have to be established and confirmed facts and evidence. Even suspicion has to be justified and be based on documents, witness testimonies and so on, according to law.

Did the materials presented state who was getting bribes? Is it possible to bring those individuals to justice?

The problem is lack of evidence even at the level of confirming suspicions, never mind the kind of evidence that is needed for this category of crime. The classic approach is to record the transfer of a bribe as it happens. In this case, there was obviously no such recording. And those who are accused of being involved obviously deny everything. There is nobody who will either admit to the Prosecutor General that they gave a bribe or, if they did not pay, will state for the record that someone demanded one from them.

It’s very hard to say what exactly the NSC information was based on.

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So far, how many people have been sued for the embezzlement of the UAH 69mn? Who’s wanted in this case?

So far, five people have been convicted. They are the ones who made it possible to embezzle this amount of money. Four of them have already been sentenced. In the fifth case, Pshonka’s lawyers are working on an appeal. They are also trying to file suit in the cassation courts against two of the sentences that are already in effect. These sentences involve those who cooperated with the investigation, pleaded guilty, and actively exposed other accomplices in the crime. So it’s hardly surprising that these sentences don’t suit Pshonka’s own lawyers.

Two more individuals are in custody right now, including Borys Kruk, the son of Yuriy Kruk, who was a deputy from Batkivshchyna and then Party of the Regions. These two suspects have been taken into custody as a preventive measure. Unfortunately, our criminal procedural law and judges themselves are sometimes overly humane towards individuals who are suspected for good reason in especially serious crimes involving corruption. Ukrainian law requires that, in those cases where custody is chosen as a preventive measure for such crimes, the alternative of bail has to also be available.

In short, the key figure in this particular case is the director of one of the Odesa branches of a bank, without whom the UAH 69mn could not have been embezzled. He made it possible for the money that Pshonka stole to be withdrawn using documents involving straw man counterparts. This individual refused to carry out his procedural obligations prior to the preventive measure being applied: he failed to appear in Kyiv supposedly because he couldn’t afford the travel costs. Now, he’s out on bail, since the court offered the alternative of UAH 97,0000 bail (about US $4,000 – Ed.), which is the lowest possible bail. The prosecutors had asked for bail of UAH 5mn. But neither the investigating judge in the district court nor the appeals judge listened to us and so this guy, who “didn’t have” UAH 400 to come in for questioning, immediately “found” UAH 97,000 in order not to sit in the SIZO.

The court then demonstrated its humaneness once again regarding this banker, who has categorically refused to cooperate with the investigation, and withdrew his ban on leaving the place of his permanent residency. Now he can freely move anywhere in the country.

Another suspect is the joint organizer and accountant of the conversion center (conversion centers are equivalents of centers laundering money and legitimizing illegally gained cash into acceptably legitimate sums – Ed.). Thanks to her, money was acquired and converted to cash using forged documents. The appeals court reduced her bail from UAH 5mn to UAH 1mn, which someone paid for her and so she’s also been released.

Incidentally, for this particular group of “converters,” helping Pshonka embezzle UAH 69mn is hardly the first such episode. According to evidence in the investigation, they have been breaking the law for at least 15 years now. We found quite a few criminal cases tied to such commercial crimes, in particular, the laundering of dirty money. You’re talking about tens of millions of hryvnias. However, in every one of these cases, there was a point when the investigation was blocked in one way or another. For instance, one of the cases was “coincidentally” dropped just as these same UAH 69mn were actively being converted to cash. Obviously, that was no coincidence.

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How many people are currently on the wanted list?

Right now, we’re looking for two people: Viktor Pshonka and his son and former deputy, Artem Pshonka. We’re pretty certain, though, that there are many more accomplices in this crime. It couldn’t have been done without the cooperation of PGO officials. But proving their guilt is a different matter, as there is the basic principle of reasonable suspicion.

We’re continuing to collect evidence and the important point here is not to allow potential suspects any opportunity to avoid justice, which happens all to often when the individuals are informed that they are under suspicion prior to sufficient conclusive evidence of their guilt being collected.

In March this year, you were removed from the case. Why was that? Did you run into a conflict with someone?

On March 18, the investigating judge of the Pechersk District Court, Khrystyna Tarasiuk, sustained an application by one defendant’s lawyer to remove me from the case. This particular lawyer had violated the principles of ethical behavior on the part of an advocate in representing, not the interests of his client, but those of Borys Kruk, whose main objective came down to preventing his client from testifying—which was against her own interests. There weren’t any conflicts on my part, only Kruk’s desire to remove me from the case, although at that point he hadn’t been accused of any crime. He clearly thought that this was the way to solve his problems with the law, because changing investigators, prosecutors and investigative offices in order to block a case from moving forward is standard practice, as I mentioned earlier. In this case, as we can see, it didn’t help him.

The decision to remove me was made by a judge whose illegal actions I had mentioned in the past. She had violated the reasonable terms for launching a case over the shootings on the Maidan. At that time, MP Serhiy Leshchenko had filed a complaint against her with the Higher Qualification Commission of Judges about violating her oath of office, but for some strange reason, it has not been reviewed to this day, more than 18 months later.

What constituted the violation then?

Failure to review a petition within a reasonable amount of time. At the end of 2014, we were supposed to have been granted access to information about connections to Russian mobile operators whose subscribers were in direct contact with Viktor Yanukovych during the shooting of demonstrators on Institutska on February 20. The Criminal Procedural Code does not specify a timeframe within which such petitions should be handled. However, Art. 28 of the Code says that every procedural action of procedural decision should be executed within the “acceptable timeframes” necessary to carry them out. Access to phones we typically get within two or three days. In this case, it was really critical for us to get it within the shortest time possible. Right from the start, Judge Tarasiuk scheduled this petition to be reviewed only in 11 days, and then, without any grounds, delayed it for another 8 days. How can anyone talk about a swift investigation under these conditions?

I asked Tarasiuk through her assistance to review the petition in the shortest possible time after she failed to review it in the initial 11-day term she had set! Of course, she was offended by this, because the next day I received a baseless refusal to sustain the petition. Of course, a few days later a different investigating judge sustained our petitions. Still, I decided to publicly mention interference in the investigation of the murders on the Maidan. I’m sure she did not forget about that.

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What were the grounds for the judge to remove you from the case?

To keep it short, we had a suspect—he’s been convicted at this point—who, against his own interests as a defendant, refused to provide any testimony for six months. Then he admitted openly in court that his lawyers, at the request of another accomplice in the case, were pressuring him, trying to force him to remain silent. After this, the suspect began to fully cooperate with the investigation, exposing other participants, and so a plea bargain was signed with him.

The situation with the suspect whose lawyers asked me to be removed was the same. This suspect was informed in the presence of his attorney—who has since been proven to be Kruk’s trustee—about the plans of the investigative team. She declared herself prepared to provide testimony in court regarding the allegations against her. But just a few hours later, her lawyer called after a confidential meeting with his client, and informed us that his client would not be testifying.

Obviously, in a situation where a similar precedent had taken place with another suspect in the case, this sudden change of behavior required some explanation. We at least needed to determine whether she had made this decision voluntarily. When a suspect says that she wants to testify but changes her mind after her lawyer talks to her, this reminds you of the mafia movies of the 1990s.

As the prosecutor, I was supposed to meet with the suspect, primarily to make sure that she wasn’t under any pressure. In addition, we had to determine how she might be protected, tell her about her right to provide testimony that might lead to a lighter sentence for her. Prosecutors are obligated, not just empowered, to meet with suspects who are in custody, including one-on-one, without the presence of their lawyers.

Just when I was planning such a visit, Judge Tarasiuk sustained the petition of the lawyer to have me removed. Moreover, this was done without even bringing the suspect into court. In any case, the suspect ended up agreeing to cooperate with the investigation and confirmed that Kruk himself had been trying to prevent her from providing testimony and actively defending herself.

There is one fundamental aspect that we too often see in cases involving particularly serious crimes carried out by a group of individuals, including crimes involving corruption. The lawyers who are supposed to be defending the middle or lower echelon accomplices are, in fact, defending the interests of the kingpins in the crime, which is against all the principles of the lawyer-client relationship and ethics. In this kind of situation, the lawyer’s main purpose is not to allow the suspect to say anything, to simply shut them up by promising them something. The goal is to break the incriminating links at the lowest possible level so that only those who carried out the orders get blamed, preferably secondary players.

And if these underlings only received verbal orders when carrying out their part in the crime, the evidence can only come from their verbal testimony. So how can anyone talk to a defendant and persuade them to testify, if the only person who has the inviolable right to talk to them confidentially is their lawyer—which effectively means whoever organized the crime—, while the prosecutor has no such right? If the lawyer functions as a channel to the organizer of the crime, while the suspect is afraid to say something in his presence, what then? Where is the two-sidedness and balance?

The mechanisms that are currently in the Criminal Procedural Code are basically sufficient for the investigator and prosecutor to be able to communicate with suspects one-on-one, preferably at the express wish of said suspect, of course. The right of a lawyer to engage in such communication is unconditional and unlimited.

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Born in Kyiv on March 20, 1978, Oleksiy Donskiy graduated from the Yaroslav Mudriy National Legal Academy of Ukraine in Kharkiv and the Institute for Prosecutorial Personnel in 2000. He has worked in the Prosecutor’s Offices in investigative posts since March 2000, starting as the investigator in the PO of the Podilskiy District of Kyiv.

Since April 2008, Donskiy has been working in the Office of the Prosecutor General of Ukraine. In June 2016, he became the assistant director of the management of the procedural administration for criminal cases investigated by the administration of special investigations in the Department of Special Investigations under the Office of the Prosecutor General of Ukraine.

Translated by Lidia Wolanskyj

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