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Partner, AVER LEX
The large number of politically-motivated cases has been one of the notable trends in the modern legal reality of Ukraine since 2014. Over this period, there have been several waves of high-profile accusations against representatives of the current or previous government of committing crimes — misappropriation of funds by abusing power or authority (Article 191 of the Criminal Code), accepting unlawful benefits (Article 368 of the Criminal Code), fraud (Article 190 of the Criminal Code), up to high treason (Article 111 of the Criminal Code), unlawful enrichment (Article 368-2 of the CC) and back to popular accusations.
The demand for such cases was fueled by two factors:
1. Mass promises of a current at the time government official to bring all their predecessors to responsibility.
2. Reciprocal media and public demand for fulfillment of these promises.
There are many reasons for holding officials accountable, and, unfortunately, they are not always aimed at getting justice, but can also be of a more self-serving nature: elimination of potential competitors, settlement of current issues of an economic and managerial nature, “appointing” the ones to blame to create the appearance of fighting corruption and personal insults and hostility with application of the principle of “eye for an eye”.
At the same time, most frequently the accusations are voiced publicly, for all to hear, both Ukrainian citizens and foreign partner countries. Unfortunately, such public statements are practically never supported by legal (evidential) arguments: accusations that are voiced from rostrums (at press conferences, briefings, etc.) are factually not confirmed by real evidence collected within a pre-trial investigation. The materials of the latter may be compiled during the process, after announcement of the ‘official’ position of law-enforcement agencies, and this is often done by way of ‘suiting’ them to that position.
Today, the leaders of law-enforcement agencies intentionally substitute real results of investigations of the criminal cases, establishment of the guilty parties, ensuring their prosecution as established by the law with their public statements. That is why, as a rule, politically motivated cases, initiated against a specific individual and not against a specific real crime remain only in words; they are not considered by a court and there are no guilty verdicts for them.
Politically-motivated criminal cases can be divided into two main categories:
1. Falsification of criminals cases with accusations against a political opponent or undesirable individual of crimes that this individual did not commit (prosecution of already reinstated Head of the State Emergencies Service Serhiy Bochkovskiy, against whom a criminal case was artificially initiated with forgery of documents and detainment broadcast live on all national channels. As of today, the case materials have been brought to court, but court sessions are not scheduled, as the case has no procedural prospects due to falsification of evidence by the prosecution).
2. Selective justice. This happens when criminal prosecution is initiated for actions carried out by a wide circle of individuals (corruption, abuse of power for personal enrichment). At the same time, globally, only the appearance of fighting such phenomena is created, while in reality law-enforcement agencies are investigating such crimes not in relation to all potential offenders, but against specific individuals or for the sake of making a demonstration of it. As a rule, either provocation or falsification is used to uncover such crimes.
Typical attributes of politically-motivated cases:
1. Political motives (fight for power, defamation of position, punishment of individuals who fell out of favor, or those who do not share the pro-government position).
2. Media factor and public accusations by high-ranking officials and representatives of law-enforcement agencies.
3. Increased activity by the law-enforcement agencies regarding investigation, which is not typical of other categories of cases.
4. Presence of pressure factors on the court and defense, including involvement of so-called ‘national activists’.
5. Carrying out investigations as an attempt to justify publicly announced accusations, not with the purpose of studying real factual circumstances.
6. Falsification of evidence with the purpose of justifying the announced accusations and ignoring the real circumstances and facts, particularly those that contradict the announced positions.
7. Defense in conditions of presumption of guilt (a publicly accused under political motives individual is considered by all government agencies, including judicial bodies to be guilty and must prove his innocence in violation of the Law on Presumption of Innocence).
Recipes for Effective Defense
As a rule, the majority of investigations of such cases follow the identical scenario: a task is set from the “top” to accuse an opponent or disgraced individual and an instrument for its realization is sought; then the accusations are voiced loudly by top officials of law-enforcement agencies in the mass media and the case materials are quickly ‘formed’ using operative measures; then the pre-trial restriction is chosen based on the “Remain in custody” principle and then public opinion about the guilt of the individual is formed using available methods.
That is why, at the first signs of prosecution, a clear legal position, supported by firm arguments and evidence must be established. Firstly, an evidentiary base needs to be formed, confirming the position of the defense, refuting the accusation announced in the mass media and confirming politically motivation prosecution. Secondly, a claim must be filed to court on the issue of protection of honor, dignity and (or) business reputation. One must keep in mind that public opinion about the guilt of the client has already been formed thanks to the actions of the law enforcement agencies, which is why the defense counsel is forced to resort to public options: publish information about illegal actions by the bodies of pre-trial investigation. In addition, entry of information about the criminal offense under Part 2 of Article 387 of the Criminal Code of Ukraine into the Unified Register of Pre-Trial Investigations and criminal prosecution of corresponding individuals for publication of data of pre-trial investigation that slander honor and dignity can be used as an effective instrument to counter accusations made in public.
It is also important to establish good communication with the representatives of mass media in order to provide the public with a sufficient amount of information about the true situation and not only the version aired by the prosecution. Such publicity requires that the lawyer has the skills to communicate the position for the wider population in simple and clear language. After all, the ability to act in public and behave in public battles plays an important role in the achievement of the desired result in defending the client.
In addition, access to international resources needs to be gained; work with Interpol needs to be established for confirmation of the fact of political prosecution and prevention of your client being placed on an international wanted list.
Naturally, personal safety of the individual being prosecuted and their families needs to be ensured, as the investigation may depend on their testimonies. The safety of the defense needs to be ensured, because very often an active position of the defense counsel could become an obstacle for achievement of goals of the individuals interested in such accusations.
This is an election year in Ukraine, so law-enforcement agencies are being used more and more as an important and necessary instrument for political fighting. Political opponents have no shame in using different compromising materials in election races. And quite traditionally, the newly-elected representatives of power promise to punish those predecessors who are, in their opinion, guilty. That is why the number of politically-motivated cases may increase substantially in the next few years.