Lawyers have noted that the story NABU and SAP are trying to spread against a group of Kyiv lawyers contradicts the Criminal Procedure Code. This is not just about wiretapping lawyers in their office and accusing them of allegedly interfering with electronic court registries to review decisions. It is also about an attempt to keep the case within the orbit of the anti-corruption triad NABU-SAP-HACC by seeking a corruption component where there appears to be insufficient evidence of its presence. UNN tried to understand the details of this saga and gathered opinions from various parties.
What NABU and SAP say
The prosecution's information states: "NABU and SAP have notified two lawyers of suspicion who planned to bribe a judge. According to the investigation, the suspects, having connections in one of the expert institutions, offered the accused in the case of sand embezzlement from JSC 'Ukrzaliznytsia' to obtain a 'necessary' expert opinion for a bribe. Based on this, the amount of undue benefit to a judge of one of the capital's courts was to be determined so that he would issue an acquittal in the said case. In April of this year, one of the exposed lawyers was already notified of suspicion of unauthorized access to the closed part of the Unified State Register of Court Decisions. As a result of the scheme, 39,615 search queries were made and 7,572 court decisions were reviewed."
These suspicions are in addition to those previously announced by NABU and SAP regarding alleged interference with electronic systems. They were preceded by NABU wiretapping lawyers directly in their office.
However, the latest suspicions do not concern the main target of anti-corruption activists - former Deputy Chief Military Prosecutor Dmytro Borzykh, who has had the status of a lawyer since 2019. It is in his actions that detectives are actually looking for a corruption component.
Lawyers' opinions
Commenting on NABU and SAP's statement about "corruption" suspicions against lawyers, lawyer Oleksandr Babikov emphasized: from the content of the anti-corruption bodies' messages, it is completely unclear to whom and in what specifically corruption is being imputed, directly indicating that the detectives forgot that they were created to fight corruption among officials.
It is unclear whether they incited to bribe an expert or a judge? Or is the judge mentioned only to justify the violation of jurisdiction? Reread Article 1 of your law - why NABU was created
The judge, whom NABU and SAP mention in their "story," previously filed a complaint with the High Council of Justice, stating that the information from anti-corruption bodies was false, and searches at his place, where nothing was found, were pressure on the court.
For reference: The National Anti-Corruption Bureau of Ukraine (hereinafter - the National Bureau) is a central executive body with a special status, entrusted with preventing, detecting, stopping, investigating, and disclosing corruption and other criminal offenses falling within its jurisdiction, as well as preventing new ones. The task of the National Bureau is to counter corruption and other criminal offenses committed by high-ranking officials authorized to perform state or local self-government functions, which pose a threat to national security, as well as to take other measures provided by law to combat corruption.
Lawyer Oleh Shram noted that the qualification written by NABU is legally shaky: "An attempt is already more an attempt to commit a crime, which can be completed or uncompleted, and you are imputing preparation (Article 14) - 'finding or adapting means or instruments, finding accomplices or conspiring to commit a criminal offense, removing obstacles, as well as other intentional creation of conditions for committing a criminal offense.' Moreover, the issue of possible voluntary refusal in an uncompleted criminal offense is not disclosed - as always, you do not report how much time has passed from the commission of the actions you impute to the notification of suspicion."
What the lawyers say
The lawyers themselves say that this is not the first time they have encountered "desperate attempts" by NABU detectives and SAP prosecutors to loudly invent corruption where it does not exist, and then look for reasons why the verdicts are acquittals. As former prosecutors of the Prosecutor General's Office, in response to NABU and SAP's statements, they recall the difference between the procedural concepts of "chatter," "preparation for a crime," and "the crime itself" with a simple example.
When the leadership of NABU and SAP discussed how to take a well-known person, a defendant in criminal proceedings, abroad - that's chatter. When they started looking for the necessary train, carriage, and people to accompany him - that's preparation. And when they actually took him out with an escort and hid him from justice - that's when it should be qualified as a completed crime. And, as they say, all coincidences with real people and events
They add that NABU installed wiretaps not just in the office, but in negotiation rooms where the defense of clients, who were under investigation by NABU and SAP themselves, was discussed, which is a direct violation of attorney-client privilege. At the same time, all suspicions against lawyers are signed exclusively by SAP head Oleksandr Klymenko, compromising material on whom was recently published by his former subordinate anti-corruption prosecutor Stanislav Bronytskyi.
So it's unclear why they behave this way, if they themselves were watching us through all the cracks - just to understand how we defend clients and why they lose to us
A conflict that has lasted for years
The lawyers emphasize that, having significant anti-corruption experience in investigations, they well understand the logic of NABU detectives' and SAP prosecutors' actions, without the need to interfere with any registries. At one time, while still working in the Prosecutor General's Office, these same lawyers investigated the high-profile case of "ex-tax official" Oleksandr Klymenko - one of the key figures of President Viktor Yanukovych's era. In 2019, due to changes in legislation, this case was taken over by NABU. And subsequently, detectives, together with SAP prosecutors, closed it on formal grounds, thanks to which Klymenko lifted arrests from assets worth millions of dollars and avoided punishment. So, it is obvious that this case is not an intersection of interests of lawyers and the investigation; it is an old knot of tension.
Will corruption be proven in court?
There were no facts of corruption and could not have been. That is why the prosecution cannot show them to society
They call the anti-corruption investigation a "mix of procedural violations," which, according to them, could only be implemented with the participation of loyal SAP prosecutors and friendly investigative judges of the HACC.
Their motive is obvious: to maintain control over the case in this trio at all costs
And finally, the lawyers add that they are confident in their arguments in court.
We are in the game. It will be interesting to see how they prove "corruption" to the HACC judges, based on a violation of jurisdiction and edited audio recordings. Even more interesting is how the HACC will evaluate this. We have our own evidence base. We hope that by then we will also receive decisions from the European Court of Human Rights, which has already opened eight proceedings based on our complaints