How Corruption Cases Are Closed

How Corruption Cases Are Closed

The High Anti-Corruption Court (HACC) closed the case on the first episode of “Rotterdam+” involving 18,9 billion UAH because of the so-called “Lozovyi amendments.” According to the panel of judges, the pretrial investigation period allegedly expired after the notification of suspicion.

Before this, the case had already been closed four times and each time those closures were overturned, the publication ZN.ua notes. To remove this problem and take the case off the “brakes,” it would be enough to remove the “Lozovyi amendments” from the legislation, and two draft laws have already been registered in the Rada — No. 10100 and 10060-2, which provide for this.

In short, the “Lozovyi amendments” diligently help bury many corruption cases. The main thing is to delay the trial. Some defense attorneys representing defendants in HACC cases make significant use of this. As a result — even if a person is found guilty — the court will release them from serving a sentence due to the expiration of the statutory period for bringing to responsibility.

However, the “Lozovyi amendments” are not the whole story. In some high-profile cases, delays last for years and there is no light at the end of the tunnel. Among the most popular tactics by defense counsel to abuse their procedural rights in criminal proceedings are: filing groundless motions, multiple and identical recusals, numerous absences from hearings without valid reasons, and so on. This issue was supposed to be addressed by the draft law of the head of the relevant committee, Denys Maslov, No. 5661, which got stuck under the carpet of his colleague, the head of the law-enforcement committee, Serhii Ionushas. However, a number of provisions in it that are unrelated to abuses of procedural rights require at least revision.

Therefore, while the court and the case continue, some defenders continue to steadily use available tactics to block the judicial process. Sometimes lawyers allow themselves excessive emotions and brazen behavior. Of course, not all lawyers resort to such tactics or behavior. Most conscientiously carry out their mission to defend clients. However, there have already been many cases of the opposite behavior over four years of HACC’s work. And it has long resembled a system in which specific people operate.

The Anti-Corruption Center investigated which violations occur most often, how often HACC judges complain about lawyers to the qualification-disciplinary commissions of the bar (QDCA) and whether such lawyers are held accountable.

Statistics with nuances

According to HACC, as of 31 July 2023, trial judges of HACC referred 158 complaints to the QDCA (regarding 101 lawyer). Another 85 complaints concerning 27 lawyers were sent by judges of the Appeals Chamber.

Most often the qualification-disciplinary commission was approached by panels chaired by HACC Judge Lesia Fedorak — 45 complaints (28,48% of the total). The top five by this metric also include judges: Oleh Tkachenko — 14 complaints, Viktor Maslov and Oleksii Kravchuk — 12 each, and Viktor Dubas — 10 complaints.

But it is important to understand that quantity does not always mean quality. Oleh Tkachenko is the very judge who used the “Lozovyi amendments” to justify his refusal to seize Ihor Kolomoyskyi’s property and to deny preventive measures for two defendants in that case. And in the “amber case” against former MPs Boryslav Rozenblat and Maksym Polyakov, where Tkachenko also presided, the preparatory hearing lasted almost four years, and the terms for bringing three of the defendants to responsibility have already expired.

In HACC’s Appeals Chamber the judge who reacted most actively to lawyers’ violations was Serhii Bodnar — 77 complaints (90,59% of the total). However, almost all of them concern a single case — the “VAB Bank” case against Denys Maltsev.

Other first-instance HACC judges referred fewer than ten complaints to the QDCA. Again, this does not mean that their cases are being heard at incredible speed or that all participants conscientiously fulfill their procedural duties.

For example, Judge Oleh Fedorov filed a complaint to the QDCA only once. However, he is the presiding judge in one of HACC’s problematic cases — the OGOK case accusing Ruslan Zhurilo and Yurii Pertsev. The case has been with HACC since 2019, but since 2022 it has practically not been heard, because Zhurilo has been mobilized into the Armed Forces and allegedly cannot participate in hearings even via video link.

In September the panel granted Zhurilo’s motion and suspended proceedings against him for the duration of his mobilization. This should have allowed the trial regarding Pertsev to continue, since the time limits are expiring. But Pertsev’s defense insists on returning Zhurilo to the process, because, in their view, it is impossible to split this case.

The panel decided to send an inquiry to the military unit to find out whether it is possible to organize Ruslan Zhurilo’s participation in hearings via video link. It is currently unknown what solution HACC will find in this situation.

Systemic violators exist, but they are a minority

We focused on classic methods of delay, the main offenders, and the sanctions applied to them.

Good news — most violations are not systemic. For example, only 30 lawyers out of 101 were the subject of two or more complaints from HACC (19 had two each, nine had three each, two had four). HACC complained most often about lawyers Oleksandr Miroshnyk — five complaints, Olha Muzyka and Oleksandr (Leonidovych) Dulskiy — six complaints each.

Regarding Appeals Chamber referrals, the situation is different. Of 27 lawyers who were the subject of complaints, one received two complaints. For three pairs of lawyers there were three, four, and five complaints respectively. A group of five lawyers stood out, against whom the Appeals Chamber sent more than five complaints. These defenders are Elvir Lazarenko (six complaints), Tetiana Kozachenko (eight), and also Oleksii Sutkevych, Dmytro Loshakov and Kostiantyn Hloba (ten complaints each).

This astronomical statistic was generated by a single case — the “VAB Bank” case. Due to constant nonattendance by lawyers, the Appeals Chamber of HACC for two years could not resolve a simple issue — to consider the appeal against in-absentia preventive measures. Finally, on 10 November 2022 the lawyers’ appeal was dismissed. That ruling is now under review by the Supreme Court.

In most cases the reasons for complaints were lawyers’ absences from hearings without valid reasons — 134 complaints from HACC (84,81% of all complaints) and 84 (98,82%) from HACC’s Appeals Chamber. Single instances of complaints involved violations of lawyer ethics, groundless motions to delay the process, misleading the court, and leaving the courtroom without the judge’s permission. I will describe the most scandalous cases below.

Procedural spam, tricks, and exposed deception

One of the most absurd examples of violations was the behavior of lawyers in the Skhidnyi GZK (Eastern Mining and Processing Plant) case concerning former MP Mykola Martynenko.

At first the lawyers tried to postpone pre-agreed hearings citing quarantine, but the judges refused. Then there was an unsuccessful attempt to recuse the judges, followed by repeated recusals and motions. And as soon as the court tried to proceed to the examination of evidence, the lawyers began to shout loudly, ignored the presiding judge’s orders, and obstructed the prosecutor’s speech. As a result the hearing was disrupted and the lawyers received a complaint to the QDCA. It concerned defenders Petro Boiko, Yevhen Kramarenko, Anna Nadtochiieva, Hanna Palahytska and Tetiana Cherezova. However, the QDCA refused to hold them accountable. Interestingly, one of the lawyers, Petro Boiko, heads the Bar Council of Kyiv region.

Another absurd example — in the case of Moldovan businessman Serhii Nerukh concerning a bribe to a military prosecutor to lift the seizure from a vessel. There the defense tried to mislead the court. For several hearings in a row the defendant and his defenders, Mykola and Oleh Zamkovenko, did not attend hearings.

When the question arose about transferring to the state the bail of 1,3 million UAH posted by the defendant’s brother, the lawyers appeared and tried to justify their absence with quarantine. However, a check of the court registry showed that the same quarantine did not prevent Mykola Zamkovenko from attending hearings in other courts. Despite blatant lies and manipulation, the QDCA did not punish the defense and closed the proceedings.

A stand against “torture,” a performance for the panel, and other lawyer scandals

In the case of Poltava judge Serhii Kononenko, the court-appointed defender Andrii Domanskyi called the trial “torture,” said he did not want to participate, and simply left the courtroom on his own. Before that the lawyer was an hour late, asked for extra time to study the case materials, and two hours later asked to postpone the hearing because he did not have enough time. The court denied the adjournment, after which the lawyer staged his walkout. And that was not all. In the best traditions of “Nasirov-style” theatrics, Kononenko was visited by an ambulance during the break because his blood pressure allegedly rose.

A similar situation occurred in the case of Kyiv investigators Denys Nevesiolov and Eduard Makarchuk. Thus, on 21 November 2021, while the judges were in the deliberation room, lawyer Serhii Demchenko left the courtroom and did not return. The defendant explained that his defender had gone to a hearing in another court. Presiding Judge Oleh Fedorov decided to refer Demchenko to the QDCA for disciplinary proceedings. As of the time the response was received, disciplinary proceedings against lawyers Domanskyi and Demchenko were still being considered by the QDCA.

In the aforementioned Skhidnyi GZK case against Mykola Martynenko, lawyer Ivan Anhelin decided to stage a “performance” for the court. The defender was involved in the case on the basis of a power of attorney from the Free Legal Aid Center on 25 July 2020. Three days later, on 28 July 2020, Anhelin appeared at the hearing for the first time. At that hearing the lawyer greeted the defendant, they shook hands and said they were pleased to meet.

During the year Anhelin did not attend hearings, so the judges replaced him with another defender. However, at the hearing on 28 September 2021, Anhelin produced a copy of a legal aid agreement that was allegedly concluded as early as 20 June 2020. Representation under a contract and by court appointment at the same time is not permitted. Especially as the contract was allegedly signed on 20 June 2020, while they supposedly first met the defendant only at the hearing on 28 July 2020.

The QDCA delayed consideration of the complaint in this situation and closed the case due to the expiration of limitation periods.

Abandoned by lawyers: refusal of a client as a method of “defense”

In the case of fugitive ex-MP Oleksandr Onyshchenko, lawyers Vadym Markevych, Oleh Ishchenko and Oleksandr Miroshnyk also decided to demonstratively leave the courtroom. This happened after the judges refused to examine a search video in full and left without consideration the recusal motion filed on this ground. The QDCA did not hold any of these lawyers accountable.

A more egregious case occurred in the case concerning procurement abuses in fuel purchases by one of Ukrzaliznytsia’s branches. Lawyer Ihor Honcharov suddenly decided during a hearing to terminate his contract with his client. The defendant initially said he would not refuse his defender, but after a private conversation with the lawyer changed his mind. The court did not accept the refusal and decided that the lawyer, contrary to rules of attorney ethics, had abandoned his client and forced the latter to refuse his services. At the next hearing the lawyer Honcharov did not appear, so the court forwarded a complaint to the QDCA. However, it was returned to the court because the commission decided HACC should pay the fee for processing the complaint.

In the Skhidnyi GZK case against former MP Mykola Martynenko in October 2020 the lawyer Nonna Nadich stood up on her own during a hearing and left, abandoning her clients without a lawyer. She even threatened the judges with a criminal case. The Anti-Corruption Center and the panel of judges filed disciplinary complaints against her. In December 2020 the Mykolaiv QDCA refused to hold her even minimally accountable.

Therefore the Anti-Corruption Center and the HACC panel filed separate complaints with the High Qualification-Disciplinary Commission of the Bar. The HQDCA partially granted them and sent the case back for reconsideration to the regional commission. In particular, the decision explicitly states that the actions of lawyer Nadich contain signs of a disciplinary offense, violations of law and ethical rules. However, there is no information on the results of the repeated consideration of the complaint to date.

How lawyers are punished for ethics violations and disrupting hearings

Bad news: real punishment of lawyers for discipline violations in HACC is very rare.

Of 158 analyzed HACC complaints, only 13 were satisfied. That said, there is no information on the outcomes of 46 complaints.

In 11 cases out of 13 the QDCA limited itself to warnings, and two lawyers had their attorney certificates temporarily suspended. For example, lawyer Stepan Semkovych had his right to practice law suspended for one month, and Oleksandr Dovbysh for three months. Both defenders were punished for failing to appear at a hearing without valid reasons.

Lawyer Olha Muzyka received a disciplinary warning twice.

In the case of former official of the State Judicial Administration Oleksandr Slonitskyi she orally challenged the investigating judge because he refused to adjourn the hearing after working hours. The recusal was to be heard the next day at 8:30, but after receiving the summons the defender refused to appear. The next morning the lawyer filed a motion with the registry to postpone the hearing.

It turned out that at 8:00 she was participating in a hearing in the neighboring HACC courtroom, where her motion to recuse the investigating judge was also being heard. The defendant and the court clerk tried to invite her to the courtroom after that hearing, but the lawyer categorically refused and left the court. The court interpreted such actions as an attempt to delay proceedings. The QDCA upheld HACC’s complaint and imposed a disciplinary warning on Muzyka.

The same lawyer received a warning for disorderly conduct in the courtroom during the hearing of the case of the head of Druzhkivka City Court, Hennadii Moliboha.

In 45 cases the QDCA refused even to open disciplinary proceedings, and in 36 cases it did not state reasons for the refusal. In nine other cases the QDCA saw no signs of a disciplinary offense in the lawyers’ actions.

After reviewing another 13 complaints, proceedings were initially opened but then closed after the check. Additionally, in five cases proceedings were closed allegedly due to the absence of signs of a disciplinary offense in the lawyers’ actions and in three cases due to expiration of the limitation period for bringing to account.

Also 15 complaints were returned to HACC for various reasons, including nonpayment of the fee or errors in naming the commission that should consider the complaint, etc.

At the time the Anti-Corruption Center received the response, commissions were considering 16 complaints, and the execution of the decision in one case had been stayed due to an appeal to the High Qualification-Disciplinary Commission of the Bar.

Thus, in a significant number of cases the qualification-disciplinary commissions of the bar cover for their colleagues, even when blatant violations of the law or rules of legal ethics are obvious. And justice suffers first and foremost because of this.

Judicial proceedings require discipline from all participants. And justice in the High Anti-Corruption Court, from which society expects swift and fair punishment of corrupt officials, requires it even more. Unfortunately, the behavior of some participants in the process, including some lawyers, in no way complies with either procedural law or standards of professional ethics.

This problem is deepened by the apparent inaction of the QDCA. As we see, most lawyers receive at best a warning. Or they are temporarily prevented from practicing law for laughably short periods of several months — a kind of small forced vacation.

Another problem is the absence in the Criminal Procedure Code of a separate article on liability for abuse of procedural rights. Only members of parliament can solve this by refining draft law No. 5661.

Also, to fix the situation with cases being closed for blatantly trivial formal reasons, they must now consider the draft laws No. 10100 and 10060-2, which remove the “Lozovyi amendments,” through which tens if not hundreds of corrupt officials may avoid punishment.

Unfortunately, the ability to delay proceedings for years by abusing procedural rights and blatantly violating lawyer ethics has in some cases already led to the expiration of the time limits for bringing criminal liability.

And such risks continue to exist in other high-profile cases. This violates the principle of the inevitability of criminal punishment for crimes committed.

Such cases, unfortunately, undermine public trust in justice overall.

Author: Roman Koliukhov, lawyer, NGO “Anti-Corruption Center”

Source: ZN.ua