Olek­siy Don­skiy:

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

The Ukrainian Week - - POLITICS - In­ter­viewed by Stanislav Ko­zliuk

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 con- struc­tion (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 ac-

cused 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.

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.

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.

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.

THE PROB­LEM IN A BRIBE CRIME IS LACK OF EV­I­DENCE EVEN AT THE LEVEL OF CON­FIRM­ING SUS­PI­CIONS. THOSE WHO ARE AC­CUSED OF BE­ING IN­VOLVED OB­VI­OUSLY DENY EV­ERY­THING

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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