How to plant a corrupt
Head of the Department of Special Investigations GPU Sergei Gorbatyuk on why the crimes of officials are not being investigated.
“Our money” continues to find out why there are no sentences for officials. If the “current” correspond to the NABU and SAP, then the “former” is the prerogative of the GPU.
Therefore, we talked with Sergei Gorbatyuk about the “former”. After the conversation, we grouped the problems into three main blocks with the conditional names “Law”, “Prosecutor’s Office” and “Court”.
Honestly, after the interview, it left the impression that at least with regard to the “former” the situation will not change for the better for a long time. Some individual successes are possible, and that – are generated not by the system, but by the efforts of individual investigators and prosecutors.
In the end, judge for yourself. Before you – a direct speech of one of the key investigative countries.
on the laws
– I analyzed that in the CPC within three years the actions of this Verkhovna Rada have made more than 65 changes. Almost every month, some changes. They are so led into the chaos of the regulation of the criminal process, talk about some kind of speed, the quality of the investigation is not necessary.
The consequences of all these changes and, if they come into effect, the “Lozovaya amendments” will be visible by the end of the first half of the year. It will just stop.
The consideration of motions by investigators by judges is actually in fact a collapse. On the day the court considers where 100-200 petitions. In the first days after the changes within the framework of the so-called “mask-show stop” idea, investigators with petitions first started at 5:00, then with 3, then from 11 pm, then started making lists, on the doors to nail. Now it was somehow used a little, but it did not improve: just investigators on the checkpoint are recorded. But that list is growing – for tomorrow, the day after tomorrow, they are already being registered for consideration of motions for a week ahead.
After those changes that have come into effect on March 15 of this year, the investigators of the same judge will extend the terms of the pre-trial investigation. If we take in Ukraine, these are hundreds of thousands of criminal enterprises where individuals are installed. In addition, the investigators of the judge will now begin to appoint examinations. The same will add to the possibility of suspects to challenge the suspicions put forward by him in court.
It all turns out simply that practically all the questions of the investigation will be taken by the investigators by the judges, who are now simply overwhelmed with cases. And now there is a mass of corruption loopholes: there tighten, there Accelerate. The court will be delayed with consideration (for which, based on the above-mentioned situation with the consideration of petitions, no additional efforts are needed), and the investigator or prosecutor, according to the changes in the CPC, will be obliged to close the case. We see these lines, we see where this leads to.
They accept the law of “mask-show stop” and argue that we are changing the law to protect business. But today there are practically no convicted law enforcement officers for abuse during searches. For example, hear about the verdict in the case of the robbery of the jewelry store Graff in Kiev in 2014 by prosecutors, police and soldiers of the Falcon.
They believe that we will make changes and this will all stop. What should it be stopped if those who violate the law are not punished? Yes, you at least write down “during the search does not go into the room at all”, still someone who wants to steal, go. Because he does not do it for investigation, he does not care about those laws and restrictions if he wants someone’s right to break. Punishment for violation is the best reform.
For example, now the search can only be with video recording. Maybe this is good, but if there is any technical failure in the recording – this proof becomes unacceptable.
And the investigator, who goes on searches in order to “dig up” or steal, then he has no problems. He will exclude this video and let the proof be unacceptable, for him it does not matter. And a big question is whether this evidence can be used in the proceedings against the investigator.
So changes are made to stop the violation, but they do not care about those who violated and are going to do it. They will continue to conduct illegal searches, and steal, and crush, etc. Because practically no one is responsible.
Conditionally speaking, how does the resolution of the search turn out. It is necessary to provide evidence to the court that something is important for the case. As a rule, an operative worker reports that at a certain address it is established that there are some material evidence. The investigator, on the basis of this, makes a petition to the court. The prosecutor agrees and goes to court. The judge hears the prosecutor, makes decisions. By order, a search is conducted.
There should be a clear algorithm for responding to possible violations of the law in each of the above stages of obtaining a permit and conducting a search and bringing the perpetrators to justice. This is the main guarantee of protection against illegal actions.
In most legislative changes, the suspect is in the first place, protecting the rights of the suspect. And everyone forgot about the victim. Everyone has forgotten that, first of all, the state takes upon itself the responsibility to protect the victim, punish the guilty party and pay damages as soon as possible, but at the same time ensures that the rights of the participants in the process, and in particular of the suspect, will not be violated.
We have recently adopted laws with the main message – to limit the investigator, the prosecutor so much that he simply had fewer opportunities to conduct an investigative action, and, accordingly, seemingly should reduce the chances of violating someone’s rights. And whether at the same time the crime is solved and the rights of the victim are restored – this has become secondary.
In order to understand, since November 20 there is no investigative body that investigates ordinary crimes committed by police, prosecutors, SBU, people’s deputies, high officials, stipulated in part 4 of Article 216 of the Code of Criminal Procedure of Ukraine. There is no body that is investigating. The prosecutor’s office lost power, and the GDB is not investigating yet. And it does not bake anybody. We can say that the people’s deputies have written out to themselves, to other officials and law enforcement officers, carte blanche for the virtually unpunished commission of ordinary crimes.
Investigators of the prosecutor’s office are currently unable to register new proceedings for “Maydanov” crimes, and applications continue to arrive. The legitimacy of the investigation of the “Maidan” crimes, which started by the police investigators, is questionable. For it is written that we can complete only the crimes initiated by the investigators of the prosecutor’s office.
Wait until the GDB is created. Of course, if some prosecutor or a policeman commits murder, robbery or some other serious crime, the investigation of the case will be determined by the police or the SBU, and they will investigate. But a large number of cases of the investigation of the GDB are currently suspended in the air.
about the Prosecutor General’s Office
The absence of a single center
– Our unit was established as the central unit for investigating crimes committed by former high-ranking officials – both Maidan and economic (the Department for Special Investigations was established in December 2014, reorganized into the Department in June 2016 – ed.). But even then the leadership decided to transfer only part of the cases, and part – to leave in another unit of the Main Investigation Department.
All this happened in a manual mode. The Department of Special Investigations then transferred the cases on suspicion of Klyuev, Pshonka and his son, Zakharchenko, Viktor Yanukovich, Tabachnik, Klimenko, Azarov (Ukrtelecom), and also the production, where the actions of Elena Lukash, Azarov Jr., Portnov, Lavrynovych and for a number of others.
At the time of the transfer, some of the cases were already with suspicion, the same “Ukrtelecom”. However, in most cases, the investigation was at the initial stage.
Lutsenko came. I wrote him a memorandum on the importance of the center investigating these economic cases as part of the investigation of a criminal organization. Even if we can not cover all the cases by investigators, there should still be their coordination. Either we, or someone else, but a single center investigating the production of former high-ranking officials should be. It was not done.
But, in addition to our Department, a criminal organization, Yanukovych, was registered by the Main Military Prosecutor’s Office, the Main Investigation Department, then the Office for Investigation of Crimes committed by criminal organizations, as well as the Investigation Department in the Department of International Legal Cooperation
That is, five divisions are engaged in the investigation of the criminal organization of Yanukovych. And they do not coordinate activities with each other. May and probably do in many cases ten times the same thing – cause for interrogation, suspicions report, the same international legal orders are sent.
And this all leads to the fact that the qualitative result is not achieved. If the investigators do not coordinate with each other, and do not exchange information – this maximally delays the investigation process or simply does not lead to its achievement.
Judging by the shortcomings of the organization of the investigation, in many cases the results will not be. I don `t want. Now with examples I will explain what are the obstacles.
The “nomadic” activities of Zlochevsky, Zakharchenko, Prisyazhnyuk and “Boyko’s towers”
– Only in June 2016 the Department of Special Investigations transferred from the Main Investigation Department those cases that were not transferred in 2014. This is – on suspicion of Alexander Yanukovich (on the seizure of mines and on lending to the “All-Ukrainian Development Bank”), “Boyko’s towers”, the case of the unjust decision of the Constitutional Court, Nikolai Zlochevsky (unlawful enrichment with suspicion), another tax offense (by deputy Klimenko). I will add that the cases on suspicion of Sergei Kurchenko, Sergei Arbuzov and Raisa Bogatyreva have never been in our Department, although we raised this issue.
We begin to investigate … and begin to withdraw. According to Nikolai Zlochevsky – in June they were transferred, and in August this case was taken back. That is, Prosecutor General Lutsenko gave us an investigation, and after two months as an ineffective investigation transfers to another unit.
The same is true of Boyko’s towers. They give a request: what do you have for Boyko? We write a memorandum to Lutsenko that now we can not speak about suspicion, but we are moving and we see how to achieve the result, there is already the possibility to report suspicion below the links. And after this memorandum came in, the prosecutor general ruled that the investigation was ineffective. Without reading the case …
And then in the press, when Leshchenko criticized, Boyko’s suspicion is not reported, they gave the clippings from a memorandum (it was published in his Facebook spokesman Lutsenko Larisa Sargan-ed.) – where we write that on today there is no case for the documents that Boyko himself signed, and there is not enough data to report the suspicion. This they hung out. And the next paragraph that “but we see how to achieve the result,” it was not published. And so in September 2016 they took this case.
At the same time in November 2016, more economic episodes were taken over Vitaly Zakharchenko – a bribe, and a number of fictitious firms that laundered money.
Then another episode of Nikolai Prisyazhnyuk was likewise taken away – this is an episode of the buildings on Khreshchatyk. Well, at least, thank God, the result (in June 2017 Prisyajnyuk was informed of suspicion – ed.).
Imperfection of correspondence procedure
– The cases of Dry and Mezhyhir were taken from us in November 2016 and transferred again to the Office for Investigation of Crimes committed by criminal organizations.
These cases were actually ready to go to court. For example, in the case of the seizure of the Mezhyhirya residence, it was reported that Alexander Yanukovich, Viktor Yanukovich, Eduard Stavitsky, director of Tantalit LLC Pavel Litovchenko and director of Medintestrade LLC were suspected (originally the residence was re-registered at Medinvesttrade, and then “Tantalite”). According to the director of Medinvesttrade there is already a verdict – an agreement has been concluded. He had a nominal function that was actually a driver. In addition to occupying the residence, another second episode is the construction of the Mezhgorye, that is, the origin of these funds, which were spent on construction, whether they were stolen, they are not bribes, etc.
But we had and have well-founded objections about the impossibility of applying the procedure of conviction in absentia. It is understood that the procedure for a special pre-trial investigation is not perfect and contradicts the requirements of international conventions and the practice of the European Court that, according to Art. 9 of the Code of Criminal Procedure of Ukraine, takes precedence over national legislation. This is not only my position, but also many other lawyers, scientists.
The essence is that if you do not make qualitative changes to the existing “correspondence” procedure, then the defendants, in my opinion, undoubtedly have a chance to obtain recognition of this sentence in the European Court illegal. And the state will still pay them a refund.
As for me, “trial in absentia” has the right to life, but its procedure should be clearly prescribed taking into account the practice of the European Court and international conventions, and to use it primarily in economic crimes.
On this occasion, I wrote a memorandum Lutsenko with suggestions for improving this procedure in parliament, but the answer was that he referred the case to the Office for Criminal Organizations, because they had no warning points. They started the correspondence procedure.
The same thoroughness is needed with special confiscation. So that later there was no need to return the confiscated funds, it is necessary that there be evidence that there really was a criminal organization; that its members jointly committed crimes, indeed members of this criminal organization, and these means – precisely these members of the criminal organization.
That is, of course, you can, without waiting for the search and detention of other members of the criminal organization and its leader, to condemn one and obtain confiscation. But this must be proved by evidence and there is no doubt.
If they did not gather evidence that it was the money of a criminal organization, they were abducted and they returned to Ukraine and were further used, that is, the high chances of reversing this sentence.
The Supreme Council of Justice considered and granted for 2.5 months, without even inviting prosecutors and investigators, whose actions were appealed, to the session.
How to get rid of things and do so that they do not move anywhere
– More than 30 proceedings against former high-ranking officials in mid-December 2017 were passed by the decision of the Prosecutor General from the Department of Special Investigations to the NABU.
On November 20, 2017 investigators of the prosecutor’s office lost their powers to investigate and “old” cases, under investigation by the NABU.
However, in connection with the enactment of the law on “judicial reform” on November 30, it became known that from December 15, the powers of investigators of the prosecutor’s office to investigate the affairs of NABU will resume. I wrote a letter to the Prosecutor General that these cases should remain with the investigators who are investigating, otherwise – do harm to the investigation, it will just stop. However, we simply received the order “for execution.”
Moreover, again, selectively. How are the cases on the suspicion of Lukash, Yanukovych, transferred? And on suspicion Klyuev – remain. As regards the ownership of Mezhygorem, it is transferred, and in connection with the theft of state funds for the construction Mezhyhirya also remains. And on the suspicion of Kurchenko what are you passing?
In SAP, NABU, as far as I know, in accordance with the requirements of the law, prepared procedural documents on the return of these cases back. There is no other way out. And the Prosecutor General is against it. That is, more than two months the investigation of these proceedings through the failure of the legislation and the whim of the Prosecutor General is not investigated and it is not known when the investigation will be continued. And some of them should already be completed.
“Whatever we do, there will be no punishment without a trial.” All this is understood, and the NABU wants an Anti-Corruption Court. Not so much in the sense that it was anti-corruption, but in that it was truly independent, impartial and professional, that is, qualitatively different from many current courts.
We have more than 9000 judges, and about half of them are administering justice. They are overwhelmed in most, they do not have time, cases are considered for years.
In such circumstances, you can delay the consideration of any case. Suppose, the same case for the seizure of the land Sukholuch’e. We sent indictments to the Shevchenkovsky court for the former head of the Kiev Regional State Administration (Vera Ulyanchenko – ed.) And another 14-15 people from Yanukovych’s entourage, where the land plots were registered.
In fact, it’s already been two years in court, and there has not been any progress. With proper organization of the trial, such proceedings can be considered in a month or two. But, since she obeys, it will probably be 3-5 years in court. And in such a regime of long consideration it is possible to translate any case.
Or production against the former Minister of Justice (Alexander Lavrynovych – ed.) On charges of embezzlement 8500000 UAH. This case was tried in August 2016. And just about the majority of “Maidan” cases.
Each judge violates the time limits for a reasonable investigation in accordance with clause 2, part 1, article 106 of the law “On the Judicial System and the Status of Judges”, can be brought to disciplinary responsibility. But there is almost no chance for that, because we will hear in response: how can we attract them if we demanded his statistics, and he reviewed 3,000 different cases in a year, and your one was delayed. But, for some reason, in one case, the judge can also review the case in a week, and in another – the review lasts for years.
The Supreme Council of Justice has a universal explanation for accusations of prolonged non-examination of our complaints or other complainants about violations of legislation by judges: we received 12,000 complaints from the WCCC, in general we have 20,000 materials under consideration, respectively, we are gradually considering everything and rather we can not. When the turn comes – it is not known. But the question is that during this time and the limitation period for bringing to justice will end. The High Council of Justice, which has the responsibility to prosecute judges for unreasonably prolonging the consideration of cases, itself in most cases actually delays the consideration of complaints. At the same time, the judge’s complaint on alleged interference in his diabolism by the Department of Special Investigations
And so, in the manual mode, one can only complain about the judges for months or, probably, for years, and with regard to other judges that are objectionable, it can be done more quickly … The same judge, regarding the preventive measure, Saakashvili took a decision. On the one hand, this is a complaint in this case, but quite another. But why did you take it? To the complaints of the Department of Special Investigations submitted to GRP in April 2017 and to the VCCS in the fall of 2015 on judges of Kiev courts, you have not yet reached. And this judge opened the production. (22.12.2017 GRP opened a disciplinary case against the judge of the Pechersk District Court of Kyiv Larisa Tsokol on the complaint filed on March 14, 2017 – Ed.).
That is, regardless of who we throw into this heap and do not reach it, but who needs it – then in manual mode we take.
I sometimes have a feeling that some judges are sure that they will not be punished for violating the law. They go to such decisions, in which a conscious violation of the law is visible.
For example, a recent decision in one of the former leaders of the Supreme Special Court. He is wanted, but is abroad. And the district court decided to arrest him. We are already directing this decision through Interpol, and the lawyers of the suspect have appealed to the court of appeal, the district’s decision cancels.
The district court made decisions without the permission of the Supreme Council of Justice, because this judge in 2016 the Verkhovna Rada for the violation of the oath was released. Therefore, he is no longer a judge, and not even a retired judge. In addition, the investigator before applying to the district court, in order to discard all doubts, wrote to the Supreme Council of Justice, they need their permission to choose a preventive measure. GRP replied that such a decision should be taken by a district court without the need to apply to GRP. However, the appeal canceled the arrest, saying: No, we believe that GRP should give permission. After that, the investigators were compelled to apply to the GRP, because the appeal can not be appealed, where they again answered that the GRP decision is not necessary, only apply to the district court. During this time, the suspect could calmly go anywhere.
How does all this affect the future?
– These theft of state property, abuse, crimes – this is not directly related to high, but according to their instructions – subordinates. The present punishment of all those involved in all parts can break existing systems of embezzlement of state property in ministries, departments, state enterprises.
If in any agency for theft of state property all the links of the persons involved in this are brought to justice, beginning with the leader and further all those who carried out his criminal orders, then the next time the instruction is issued, for example: “Well, sign me the documents groundless compensation of 100 million USD for this firm “, the answer will be:” Are you out of your mind, or what? And I’m not something that I will not sign, I’ll go to the NABU, the Ministry of Internal Affairs, to the Security Service, to the prosecutor’s office, and I’ll tell you what instructions you give. ” So to say, to others it was not vain.
If we take the same reimbursement in the proceedings on the suspicion of Alexander Klimenko in the possession of 3200000000 UAH, then if all this involved a line of criminals involved in the crime during the investigation with a preventive measure – detention, sent to court and receive sentences with real punishment, ranging from district fiscals, etc., then unequivocally, no further conditional Klimenko can not go unpunished: you here take this enterprise refund VAT or give installments unreasonably.
And the result of many deals concluded is you tell them: guys, so, do further, the main thing is to put off some part of the amount and agree with the investigators.
Information taken from:http://nashigroshi.org/2018/02/06/yak-ne-posadyty-koruptsionera/