Anti-Corruption “Attack on Reformers” That Didn’t Happen

In recent days, progressive representatives of liberal Ukrainian society have been talking a lot about the case regarding the award to the ex-head of Naftogaz Andriy Kobolyev.

A new impetus for such dissatisfaction was the decision of the HACC Appeals Chamber to give him an interim measure in the form of a bail of UAH 229 mln. “The anti-corruption system attacks reforms,” “the Kobolyev case discredits the entire fight against corruption in the eyes of the liberal part of society,” “anti-corruption bodies have become instruments of repression,” journalists and expert reformers write in their posts.

I definitely respect the opinion, but I can’t understand it. At least because in all such calls the understanding of what really happened is lost. So, let’s take a closer look at it.

Firstly, at the Kobolyev case.

We forget that currently, it is purely about choosing an interim measure in a case that is at the stage of pre-trial consideration. No one has accused anyone yet, much less calls him guilty! We are only talking about a suspicion.

On January 23, the first instance of the HACC refused to decide on an interim measure for Kobolyev in the said award case. At that time, the first instance, in my opinion, quite thoroughly studied the issue — both in general, regarding the suspicion itself, and the details of the case. And that is why it denied the prosecutor’s motion.

Lawyers of Transparency International Ukraine, for their part, analyzed in detail the decision of the investigating judge and came to the same conclusion. For example, in the first instance, prosecutors argued that Kobolyev illegally received his award because the Resolution of the Cabinet of Ministers limited the size of such incentives. But already during the hearing, facts were provided that confirmed that the government introduced these restrictions for supervisory boards much later than Kobolyev received the very award.

And when prosecutors went to the appellate, they were able to convince the judges of the Appeals Chamber that an interim measure was needed. In the appeal, prosecutors stated that Andriy Kobolyev could not receive the award at all. The line of prosecution has changed, the judge has made a different decision, which we can understand only on March 6 when its full text is made public.

Therefore, the prospects for such an investigation remain in question. After all, at some point, the case will have to be referred to court, which, again, will in no way mean the guilt of Mr. Kobolyev. Up to this point, months may pass, or they won’t if the case really falls apart at the stage of pre-trial investigation.

But we see a public response now. 

After all, we are talking about a person who played a crucial role in the history of the transformation of Naftogaz and contributed to winning the Stockholm arbitration. All the work of Andriy Kobolyev in this company is undoubtedly perceived as a success story, and I completely agree with this.

However, all this time, Andriy Kobolyev held a position under the jurisdiction of the NABU and the SAPO. These institutions were created to investigate possible abuses of senior officials. And the HACC was created so that in the absence of the existing crime, Mr. Kobolyev could be acquitted. This is how justice works according to the European model to which we aspire.

And even more so, one such case, at the investigation stage, does not speak of the trend to destroy reformers. 

Let me remind you that over the past 3.5 years, the HACC has finalized 110 cases — these are those that have reached the court. And there are many acquittals on this list.

It is too early to even mention trends, let alone put Kobolyev’s case on a par with other high-profile proceedings, which we have also heard a lot about lately, such as the proceedings against ex-minister of infrastructure Andrii Pyvovarskyi or the verdict against the ex-director of Boryspil airport Yevhen Dykhne. All these proceedings are about completely different things.

Andrii Pyvovarskyi was not given an interim measure, such a need has even not yet been discussed. And since there was no court hearing, we do not know the details of the case at the moment to analyze or talk about certain types of pressure or repression. At the first glance, this case is in some way similar to another proceeding — against the ex-minister of infrastructure Volodymyr Omelyan. And back then, let me remind you, that proceedings passed a full trial, and Omelyan was acquitted.

As for the Dykhne case, it looks like he did break the law, for which he received the sentence by the HACC. Whether his actions correspond to the spirit of law is rather a yes. Whether they correspond to the letter of law is rather a no. However, even this fact can be appealed in the same HACC Appeals Chamber, and the final decision may differ significantly from what has been heard this week.

But here, it must be recalled that everything definitely did not start with Kobolyev, and not even with Dykhne, whose case the HACC considered for a year and a half. Once, Valerii Zaluzhnyi said that we have a “full zoo” in military equipment. And it seems to me that the same analogy can be applied to another area — we have a full zoo in the legislation. Unfortunately, 30 years ago, we decided not to “cut off” everything that was Soviet in our regulatory acts. And all these years, parliament has adopted new rules, which sometimes contradicted both what had been written much earlier and was adopted recently.

Even today, rules are often created for the sake of rules, not for efficiency or transparency. And this is also one of the factors that creates many pitfalls for a person who comes to work for the state system. And it can encourage even the most honest officials to initiate criminal cases. And the High Anti-Corruption Court should take the most balanced approach to its decisions, analyzing the facts and evidence, and not the reputation of the defendants in the cases.

In the end, many supported when the HACC Appeals Chamber did choose a strict interim measure for the former Deputy Minister of Development of Communities, Territories and Infrastructure of Ukraine Vasyl Lozynskyi, after, perhaps, a very lenient decision of the first instance.