You're reading: Miscarriage Of Justice

The European Union is on the brink of dropping sanctions against many officials in Viktor Yanukovych’s administration, nearly 10 months after the former president and his cronies fled power amid allegations of murder and massive corruption.The reason?

Ukrainian General Prosecutor Vitaly Yarema has provided scant evidence of the crimes they allegedly committed, although the wrongdoing in some cases is as conspicuous as the billion-dollar Mezhyhirya estate north of Kyiv that Yanukovych abandoned.

As a result, many on the list of 22 Yanukovych allies currently under EU sanctions could see their frozen assets released to them and their travel bans lifted in the coming months – unless Ukraine makes a speedy breakthrough in the stalling criminal investigations against the suspects.

Ukraine originally accused the former top officials of “embezzlement of Ukrainian state funds and their illegal transfer outside Ukraine.” The EU introduced sanctions in March and April this year on the basis of the Ukrainian accusations, supplied by then-Prosecutor General Oleh Makhnitsky.

However, according to an official document from the Prosecutor General’s Office obtained by the Kyiv Post, prosecutors had not even filed charges against half of the 22 accused as of Oct. 24 – more than seven months after sanctions were first introduced.

The 11 people not charged include the following key officials:

Presidential adviser Andriy Portnov;

ex-presidential adviser Ihor Kalinin;

former Justice Minister Olena Lukash;

former head of the Security Service of Ukraine Oleksandr Yakymenko;

former Deputy Interior Minister Viktor Ratushniak;

former Minister of Education and Science Dmytro Tabachnyk;

former member of parliament Yuriy Ivanyuschenko.

They also include the following relatives, who acted as proxies for their family members in power:

Yanukovych’s son Viktor Jr.;

Oleksiy Azarov, son of former Prime Minister Mykola Azarov and a former member of parliament;

Artem Pshonka, son of former Prosecutor General Viktor Pshonka and a former member of parliament;

former Chief of Staff Andriy Klyuyev’s brother Serhiy Klyuev.

As of now, 14 of those targeted, including the former president and his sons Oleksandr and Viktor Jr., have filed a challenge to the sanctions in the European court, the Wall Street Journal reported on Dec. 11.

Without evidence to fight the appeals, sanctions could be lifted against most of them, and allegedly ill-gotten assets would be returned to the former officials. The release of millions – possibly billions – of dollars in allegedly stolen public funds could trigger an explosive public backlash among Ukrainians who thought they had won their bloody battle against the Yanukovych regime.

A protester rests in an armchair in the mansion of former Prosecutor General Viktor Pshonka on Feb. 24, shown in portrait with ex-President Viktor Yanukovych (Kostyantyn Chernichkin)

Oleksandr Kovalenko, head of the General Prosecutor’s International Relations Department, admitted that several people could see sanctions against them lifted, but refused to give a specific number. When the Kyiv Post put a possible figure of 18 to him, he replied:

“They are not 18 out of 22, they are much less,” said Kovalenko. “The reasons for lack of evidence are purely objective. Most of the accused are from Donbas and were stealing money through dummy companies registered there. Now a large part of the territory is not under control of Ukrainian authorities, so documents and other evidence could not be reached. Moreover, the suspects are also out of the country and out of reach.”

Kovalenko’s explanation is not persuasive to critics, who say there is already overwhelming evidence of criminal activity in the public domain. Investigative experts from the Anti-Corruption Action Centre, a leading anti-corruption watchdog, have even provided evidence of misuse of public funds directly to the General Prosecutor’s Office.

“There is plenty of evidence of misappropriation of state funds by the officials on the sanctions list,” said Daria Kaleniuk, executive director of the Anti-Corruption Action Centre.

“Our organization has been collecting pure facts and formulating them into criminal applications, which we have been submitting to the General Prosecutor’s Office since March 2014. We have delivered them evidence on the Klyuyev brothers, (Oleksandr) Yefremov,  Ivanyuschenko, Oleksandr Yanukovych, Oleksiy Azarov,  Tabachnyk and more,” she said.

‘No political will’

The inability to put together credible cases after 10 months is fueling speculation that an unsavory deal has been reached between the suspects and politicians or foot-dragging prosecutors.

“There is no political will to do these investigations properly,” Kaleniuk added. “Why? There is likely a deal on the top level of decisionmakers in the country to leave these people under sanctions alone.”

Ukraine’s chronic inability – or unwillingness – to credibly investigate, prosecute and try public officials for serious crimes has undermined democratic aspirations throughout its 23 years as an independent nation. Failure to bring Yanukovych and his officials to justice could deliver a serious blow to the political credibilityof President Petro Poroshenko, Prime Minister Arseniy Yatsenyuk and hamper Ukraine’s relations with the West.

EU officials were reluctant to comment, although one spokesperson who did not want to be named because of political sensitivity of the issue, acknowledged that a review of the sanctions is under way.

“A review of EU restrictive measures is required for each sanction regime and in this context – internal deliberations on the review of the sanctions regime concerning persons suspected of misappropriating Ukrainian state funds are ongoing,” the Brussels-based official said. “|I cannot give further details until the internal deliberations have finished.”

The EU says its sanctions are based on the rule of law and the targets have a right to challenge at the European Court. It’s unclear whether that review will make allowances for the obstruction of prosecutors’ investigations by Russia’s war against Ukraine and destruction of evidence by Kremlin-backed separatists or other factors.

In theory, the EU says, a legal challenge doesn’t have to bring about the immediate release of funds. There is a slim chance the appeals could still be defeated if the European court agreed to consider evidence from civil society.

“Theoretically, information can be collected from various available sources, but they carry varying degrees of weight. There are limits to the admissibility of information,” the EU official told the Kyiv Post.

More likely to succeed would be an entirely new set of sanctions, although the case for these would have to be put together in a hurry.

“The council always has the possibility to adopt new measures if there is unanimous agreement among the member states and a specific case is already prepared,” the official said.

The EU’s review of sanctions imposed against Ukrainian officials comes almost a year after the EuroMaidan Revolution succeeded in driving Yanukovych and his top officials from power.  But the revolution cost the lives of more than 100 protesters, allegedly killed on the orders of Yanukovych and other top officials. After taking office, the new Ukrainian government estimated that up to $100 billion had been pilfered by Yanukovych and his government during their time in office.

Given the amount of money involved, General Prosecutor Vitaly Yarema’s failure to account for the crimes and losses is staggering. With the prosecutor’s investigation now under an intense spotlight, officials began contradicting earlier statements, in an apparent effort to redirect blame to the EU.

Kovalenko of the general prosecutor’s office suggested that the EU’s decision would not be based purely on the evidence. “The reason for possible revocation of the sanctions would not be the lack of evidence, but appeals of those accused to the EU court in the first place,” he said.

Svyatoslav Laganyak, deputy head of the prosecutor general’s main investigative office, defended the investigation: “At the moment we can state that cooperation is being held in full compliance with international agreements and the prosecutor general is presenting all the information required by the EU.”

The denials look weak, however, especially following an announcement last week that Interpol – the world’s largest police organization with 190 member countries – would not be issuing an international warrant against Yanukovych for his alleged role in ordering the murders of more than 100 people when security forces opened fire on protesters in January and again on Feb. 18 and Feb. 20, two days before Yanukovych fled.

Interpol issues warrants only when sufficient evidence is provided by a member state.

Kyiv Post editor Maxim Tucker can be reached at [email protected]. Kyiv Post staff writer Olena Gordiienko contributed to this report.