Pros­e­cu­tor Gen­eral Lut­senko’s ‘facts’ don’t hold up to scru­tiny

Ed­i­tor's Note: The fol­low­ing is a sum­mary of Pros­e­cu­tor Gen­eral Yuriy Lut­senko’s talk­ing points at the 14th an­nual Yalta Euro­pean Strat­egy fo­rum on Sept. 16. His com­ments were fact-checked by the Kyiv Post.

Kyiv Post Legal Quarterly - - Contents - By Oleg Sukhov [email protected]

Yuriy Lut­senko: “We have car­ried out a thor­ough over­haul of the pros­e­cu­tion ser­vice, cut its staff by a fourth, dou­bled their wages and opened pros­e­cu­tors' jobs to those who had never worked there.”

Fact Check: A com­pe­ti­tion for lo­cal pros­e­cu­tors' jobs car­ried out in 2015 was ef­fec­tively blocked by then-pros­e­cu­tor Gen­eral Vik­tor Shokin, with 84 top lo­cal pros­e­cu­tors keep­ing their jobs as a re­sult. Lut­senko held com­pe­ti­tions for about 600 rank-and-file jobs last year but failed to hold com­pe­ti­tions for top lo­cal, re­gional and na­tion­wide pros­e­cu­to­rial jobs, as he promised be­fore, with cor­rupt and dis­cred­ited pros­e­cu­to­rial es­tab­lish­ment still hold­ing sway.

Lut­senko: “As long as I'm pros­e­cu­tor gen­eral, not a sin­gle per­son will hide be­hind their govern­ment po­si­tion or party if there is sound ev­i­dence.”

Fact Check: There are many ex­am­ples of pow­er­ful peo­ple ac­cused of high cor­rup­tion who have noth­ing to fear from Ukrainian pros­e­cu­tors. Some of the most no­table in­clude bil­lion­aire oli­garch Ihor Kolo­moisky, who al­legedly stole $5 bil­lion from the now na­tion­al­ized Pri­vat­bank, ex-law­maker Mykola Mar­ty­nenko, ac­cused of steal­ing $17 mil­lion in the sale of Kazakh ura­nium ore to a state-owned firm; Mykola Zlochevsky, a for­mer ecol­ogy min­is­ter ac­cused of giv­ing state gas ex­trac­tion li­censes to his firms, while $35 mil­lion found in his U.K. bank ac­count; set­tled on tax eva­sion charges; and on and on and on, in many sec­tors.

Lut­senko him­self acknowledges $40 bil­lion was stolen from the state dur­ing ex-pres­i­dent Vik­tor Yanukovych's rule from 2010–2014, but only $1.5 bil­lion was re­cov­ered, and that amount by du­bi­ous le­gal means.

Two more ex­am­ples: The In­te­rior Min­istry’s State Sec­re­tary Olek­siy Takhtai ne­go­ti­ated a cor­rupt deal in a video with a per­son who has al­ready been con­victed for the deal. The video footage has been recorded by the Se­cu­rity Ser­vice of Ukraine and has been rec­og­nized by courts as gen­uine. How­ever, Takhtai has not been charged in any crim­i­nal case.

Mean­while, law­maker Sergii Leshchenko on May 16 pub­lished the text of what he says is a draft par­lia­ment mo­tion to strip Yuriy Boyko, the leader of the Op­po­si­tion Bloc, of his im­mu­nity from crim­i­nal pros­e­cu­tion. Leshchenko said the mo­tion was blocked first by Shokin and then by Lut­senko. In any case, no­body has been con­victed of any crime. Lut­senko: “As pros­e­cu­tor gen­eral, I asked my col­leagues in par­lia­ment to cre­ate cham­bers in the cap­i­tal and re­gional cen­ters where new (anti-cor­rup­tion) judges will be se­lected through open com­pe­ti­tions with the par­tic­i­pa­tion of NGOS,” he said. “…The plan of (Pres­i­dent Petro) Poroshenko and (ex-u.s. Sec­re­tary of State John) Kerry (on anti-cor­rup­tion courts) is closer to me.”

Fact Check: The bill on anti-cor­rup­tion judges that Lut­senko sup­ports has been spon­sored by Ser­hiy Alex­eyev, a law­maker from the pres­i­dent's bloc. Non-gov­ern­men­tal or­ga­ni­za­tions say that com­pe­ti­tions en­vis­aged by the bill will not be trans­par­ent and open. Un­til such com­pe­ti­tions are held, in­cum­bent judges of Ukraine’s dis­cred­ited and cor­rupt ju­di­ciary will choose anti-cor­rup­tion judges from among them­selves, which may con­tinue for a long pe­riod of time, ac­cord­ing to the bill. At ap­peal courts, there will be no com­pe­ti­tions at all, with anti-cor­rup­tion judges cho­sen by in­cum­bent judges.

Lut­senko also ma­nip­u­lated a state­ment by Kerry that all courts in the United States are “anti-cor­rup­tion courts”, claim­ing that he sup­ported Poroshenko. In fact, Kerry's state­ment was a cri­tique of Poroshenko's re­fusal to cre­ate in­de­pen­dent anti-cor­rup­tion courts.

Lut­senko: "We have cre­ated an In­spec­torate Gen­eral that is elim­i­nat­ing cor­rup­tion within the sys­tem."

Fact Check: The In­spec­torate Gen­eral, cre­ated in 2016, has the au­thor­ity to in­ves­ti­gate only rank-and-file pros­e­cu­tors, while the Na­tional Anti-cor­rup­tion Bureau of Ukraine in­ves­ti­gates all mid-level and top pros­e­cu­tors. The

in­spec­torate has kept a low pro­file, and the Kyiv Post has not found ev­i­dence of its achieve­ments so far. The Pros­e­cu­tor Gen­eral’s Of­fice could not im­me­di­ately com­ment on the is­sue.

Lut­senko: "We might get rid of our in­ves­tiga­tive func­tions by the end of this year. We have also cre­ated pros­e­cu­to­rial self-reg­u­lat­ing bod­ies."

Fact Check: Ukrainian au­thor­i­ties have so far failed to strip the Pros­e­cu­tor Gen­eral's Of­fice of its in­ves­tiga­tive func­tions and trans­fer them to a newly-cre­ated State In­ves­ti­ga­tion Bureau since a law on the bureau was passed by par­lia­ment in Novem­ber 2015. An­driy Sliusar, an ex­pert at the Re­an­i­ma­tion Pack­age of Re­forms, said that, given the slow speed at which the bureau is be­ing cre­ated, it will be set up by Novem­ber 2018 “in the best case sce­nario.”

More­over, con­tro­ver­sial loy­al­ists of the govern­ment are lead­ing in the com­pe­ti­tion for the bureau's top jobs, which is rife with al­le­ga­tions of po­lit­i­cal in­flu­ence and le­gal vi­o­la­tions.

Lut­senko's crit­ics also ar­gue that pros­e­cu­to­rial self-reg­u­lat­ing bod­ies, which ap­prove ap­point­ments and dis­missals, are block­ing the cleans­ing of the pros­e­cu­tion ser­vice be­cause they are run by old cor­rupt pros­e­cu­to­rial cadres. Lut­senko: “This month we will send to trial the case against the or­ga­niz­ers of Euromaidan mur­ders.”

Fact Check: Sergii Gor­batuk, head of the in ab­sen­tia tri­als de­part­ment at the Pros­e­cu­tor Gen­eral’s Of­fice, has ar­gued that the cases can­not be sent to trial be­cause Ukrainian au­thor­i­ties have so far failed to bring leg­is­la­tion on in ab­sen­tia tri­als in line with in­ter­na­tional stan­dards.

Lut­senko: “We have re­turned $1.5 bil­lion of (ex-pres­i­dent Vik­tor) Yanukovych's mafia to the bud­get.”

Fact Check. In March the Kram­a­torsk City Court con­cluded a plea bar­gain with Arkady Kashkin, the nom­i­nal owner of a firm linked to Yanukovych ally Ser­hiy Kurchenko. The plea bar­gain al­lowed the court to con­fis­cate the funds. But crit­ics have dis­missed the con­fis­ca­tion hear­ings as a po­lit­i­cal show trial. Both the in­ves­ti­ga­tion and the trial were con­ducted in se­cret and in just two weeks.

The Pros­e­cu­tor Gen­eral’s Of­fice and the Kram­a­torsk City Court have re­fused to pub­lish the rul­ing, in what crit­ics be­lieve to be an ef­fort to con­ceal vi­o­la­tions of the law and be­hind-closed-door deals.

Among oth­ers things, the con­fis­cated funds were spent on Poroshenko’s ally, the agribusi­ness ty­coon Yuriy Kosyuk, who got 42 per­cent of all agri­cul­tural sub­si­dies al­lo­cated by the govern­ment from Jan­uary to June.

Lut­senko: “Over the past year, we have de­tained 6,931 sus­pects in bribery cases. Of these, 3,934 are on trial.”

Fact Check: The prob­lem is that top of­fi­cials are usu­ally re­leased on bail and are al­most never con­victed. Dur­ing the first six months of 2017, 74 peo­ple were con­victed to prison terms for cor­rup­tion, ac­cord­ing to the Nashi Hroshi watch­dog. Of these, 65 may be re-con­sid­ered or can­celed by ap­pel­late courts. Of the nine whose ver­dict is fi­nal, the big­gest term, 5.5 years, was given to a mi­nor bank ex­ec­u­tive.

Lut­senko: “Pri­va­ti­za­tion is the only way to get rid of (state) com­pa­nies, which are the source of po­lit­i­cal cor­rup­tion.”

Fact Check: The Poroshenko Bloc fac­tion, which was headed by Lut­senko in 2014 to 2016, and its al­lies in par­lia­ment have blocked pri­va­ti­za­tion since 2014. Ihor Kononenko, a lead­ing mem­ber of the fac­tion, faces ac­cu­sa­tions of prof­i­teer­ing from many state firms, which he denies.

Ex-pres­i­dent Vik­tor Yanukovych tes­ti­fies at Kyiv's Svy­atoshin­sky Court on Nov. 25, 2016, in the case into the mur­ders of Euromaidan Revo­lutin de­mon­stra­tors. (Volodymyr Petrov)

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