How the signatures of a mobilized prosecutor jeopardized Zlochevsky’s case

How the signatures of a mobilized prosecutor jeopardized Zlochevsky’s case

Two and a half years ago the country was rocked by a story about a record bribe of 5 million dollars for the leadership of the Specialized Anti-Corruption Prosecutor’s Office and the National Anti-Corruption Bureau.

According to the investigation, former ecology minister Mykola Zlochevsky, while wanted, tried to close the criminal case over misappropriation of funds from the NBU stabilization loan before his birthday.

The first to be put on trial for bribing the heads of NABU and the SAP were those considered to be the fugitive top official’s aides in Ukraine.

They are former first deputy head of the Main Department of the State Tax Service in Kyiv Mykola Ilyashenko, lawyer Andriy Kicha, who worked at Zlochevsky’s Burisma company, and former tax official Olena Mazurova.

Ex-tax officer Mazurova very quickly, after the indictment was sent to court, reached a plea agreement with the prosecutor, admitting guilt. This happened in a closed hearing and despite the categorical disagreement of the other two defendants — Kicha and Ilyashenko, who continue to be tried in the High Anti-Corruption Court (panel of judges: Viktor Maslov, Ihor Strohyi, Lesia Fedorak).

In March 2022, despite shelling of the capital and the invasion of Russian forces, including into Kyiv region, the High Anti-Corruption Court also received the materials regarding Zlochevsky himself for substantive consideration. He was charged in absentia with organizing the bribe to the heads of the SAP and NABU.

Defense lawyers say that Zlochevsky permanently resides in Cyprus and have provided detectives and the court with his current address. Nevertheless, the former minister is considered to be evading the investigation and the court, and the investigation against him was conducted in absentia. The trial is expected to be held in the same way.

Over time and with the slow pace of the court process, interest in this story predictably faded. Especially in wartime. And perhaps that is why interesting events began to unfold around it.

In November two people were detained who allegedly spent the last two years inciting Ilyashenko to close the case at the HACC for a bribe. “The initiators of the ‘resolution of the issue’ in favor of the participant in the bribery changed the price and boasted of connections in NABU, the SAP and the HACC that were supposed to persuade him to accept their proposal. In the end, the price reached more than 1,8 million USD. During the transfer of 50 thousand USD they were caught ‘red-handed,’” the press release said.

Decisions on pretrial restriction measures were not published. From related decisions in this case that are publicly available, it is known that one of the suspects was arrested with an alternative bail of 10,4 million UAH, and the other — with bail of 780 thousand.

“In the victim’s report about the commission of a criminal offense… information was indicated about possible involvement in the crime of judges and/or employees of the HACC… On 12 October 2022 (the day the information was entered into the Unified Register of Pretrial Investigations) the prosecutor made a decision to designate NABU as the body of pretrial investigation, which began conducting a number of overt and covert investigative (search) actions. It was established that prosecutors of the SAP figure in the case, however information about the involvement of judges of the High Anti-Corruption Court in the events within the criminal proceedings was not confirmed, in connection with which on 11 November 2022 a decision was made to reclassify the criminal offense from part 3 of article(s) 369-2 of the Criminal Code of Ukraine to part 4 of article 27 and part 3 of article 369 of the Criminal Code of Ukraine. After the reclassification, exclusive jurisdiction of the High Anti-Corruption Court arose,” the court rulings state.

The second, lesser-known story, which is what follows below, concerns a HACC decision of 19 October that granted the motion of defense lawyer Halyna Oshedsha and returned the indictment against Zlochevsky to the prosecutor because the prosecutor’s signatures on the indictment were allegedly made by another person. The decision was issued by a panel composed of judges Serhii Moisak, Olha Salandiak and Kateryna Shyroka.

The defense presented in the court hearing the conclusions of seven expert examinations (by the appeal stage there were eight — editor’s note), stating that the signatures on the indictment and the accompanying letter do not belong to SAP prosecutor Ihor Semak.

The indictment was signed on 1 March 2022. In the first days of the full-scale invasion some SAP prosecutors joined the defense of the country. On 17 March Prosecutor General Iryna Venediktova signed an order releasing Semak from performing prosecutorial duties from 25 February due to mobilization. After the de-occupation of Kyiv region and neighboring regions, Semak and several other anti-corruption prosecutors continue to fight in the east.

It was precisely the circumstances of martial law and the possible effect of medications that could affect a person’s signature that SAP prosecutor Ihor Harvanko, who now represents Zlochevsky’s case in court, drew attention to.

In his appeal Harvanko asked the appellate chamber to examine Semak’s written explanations from 30.08.2022, stating that the signature on the indictment was his expression of will. According to Harvanko, the trial court unjustifiably rejected a motion to question Prosecutor Semak at the hearing. He considers the expert analyses carried out by the defense incomplete because samples of Semak’s signatures from that time were not obtained. Instead, the expert compared signatures with those on letters Semak had previously sent to the defense. It was not taken into account that the indictment was signed not in an office but while participating in combat operations, under conditions of danger to life, which could have affected the handwriting.

“Maybe not everyone knows Ihor Anatoliiovych Semak… He is quite slender. Not a master of sport. He actually held a weapon for the first time. He heard a shot live for the first time in his life. A situation where there is a real threat to his life and health… I think that in similar circumstances each of us would have not only changed handwriting, but many other things… One thing is when you sit in a warm office, you have no stressful situations, you drank hot coffee in the morning, had a nice breakfast and you sit signing documents. The other situation is when you sit somewhere in a trench, in a pit, you realize that troops are advancing who will not warn or play games, they are coming to destroy those who stand in their way. What mental state, what anxiety… Maybe your hands were frozen when the signing occurred. None of these circumstances were taken into account by any expert,” Harvanko indignantly said.

He adds that when it comes to signature forgery, an expert opinion alone is not sufficient for proof, and there must be a court decision.

The presiding judge, after listening to Harvanko, clarified that the prosecutor’s position amounts to saying that the expert’s conclusion about the signature is erroneous and the court could not take it into account and made a decision without sufficient evidence.

Defense lawyer Oshedsha explained that Semak was the lead prosecutor in the case and signed a great many documents, some of them in the presence of defense attorneys. And all those signatures, she said, look very similar, just look at them. But upon receiving the indictment the defense was allegedly surprised by how different those signatures were. Later, examining the copy of the indictment that arrived at the court, they saw that same previously unfamiliar signature. And, learning of Semak’s mobilization, the defense doubted that while in military service he could have signed those documents.

The Kyiv Scientific Research Institute of Forensic Expertise (KNDISE) concluded that the signature was not made by Semak. Then the same conclusion was reached by the Bokarius Institute and the Ministry of Internal Affairs’ NDECC. After that the lawyers also commissioned two expert examinations in London — there the expert explained that the documents contain seven disputed signatures and it is impossible for them to have been executed in the same manner under the influence of disorienting factors; moreover, those seven signatures were executed almost perfectly and without significant variation. This indicates that the person who signed tried to imitate Semak’s signature but failed. At the same time Semak’s mere “expression of will,” as he states in his explanations, is not sufficient, because the law clearly requires who and when must approve and send the indictment to court.

Lawyer Petro Boiko says the law requires indicating the place of signing and when Semak signed documents not in his office that should have been reflected. But the documents state that their signing took place in the premises of the law enforcement agency.

“I have known Semak since 2015. Believe me, an absolutely imperturbable person, whatever the circumstances. Calm, measured. No matter how much his lawyers irritated him in court proceedings, a measured, calm reflection,” Boiko said.

Also contentious was Venediktova’s order releasing Semak retroactively. The reason for this was allegedly that there were initially no mobilization documents and Semak only later received a certificate from the commander of the military unit, which he submitted to his employer.

This gave the defense lawyers grounds to claim that on 1 March Semak could not have signed the indictment because he had already been mobilized. But Prosecutor Harvanko disputes this and stresses that as of 1 March there was no document limiting Semak’s prosecutorial powers.

Harvanko explains that in March prosecutors in practice combined their usual work with participation in the country’s defense, although there were no official mobilization documents yet. Harvanko and his unit evacuated to Lviv, but he says that even there at night prosecutors with weapons helped the territorial defense patrol the city.

“If there are seven expert conclusions that this is not Semak’s signature, then what shall we say, that the experts are stupid or, on the contrary, intelligent?! We will proceed from the fact that the expert conclusions were given,” reacted the presiding judge of the Appeals Chamber panel of the HACC.

The indictment could also have been signed by other prosecutors besides Semak. The Criminal Procedure Code allows authorizing a prosecutor to sign an indictment.

The court raised the question why, given the expert conclusions, the indictment was not re-signed by another prosecutor.

“That can be asserted if these conclusions are complete and objective… To go along and start all over again — in my opinion, that is wrong,” Harvanko replied.

The prosecutor did not say this explicitly, but it can be assumed that unwillingness to re-sign documents may also be connected with the risk of the case being dismissed by the court if the indictment is sent to court outside the term of pretrial investigation.

On 13 December the Appeals Chamber of the HACC composed of judges Viktor Pankulych, Serhii Bodnar and Ihor Panaida satisfied Prosecutor Harvanko’s complaint and overturned the decision to return the indictment. The case was sent for new consideration to the first instance in the same composition of the court from the preparatory hearing stage.

“We did not agree with either the prosecutor’s arguments or the defense’s arguments. We will not answer the question of whose signature it is. We concluded that the court is not authorized to verify the authenticity of a signature on an indictment. Especially at the preparatory stage of a court hearing and, most likely, at all… We will not give an answer as to whether the conclusion about the authenticity of the signature corresponds… Otherwise we will go too far if we check the authenticity of signatures on every document,” explained the motives for the decision the presiding judge Viktor Pankulych.

Thus, Zlochevsky’s case was saved. At least for now.

Source: Sudovyi Reporter