Tatarov’s case has become a test for the authorities, who showed a complete lack of readiness for a fair investigation of cases against the “entourage.” Representatives of the authorities made every effort and went beyond the legal framework to actually take away the case from the NABU and transfer it to the SBU, where the proceeding was “buried.”
On January 12, this case once again “came to the surface” in the media in connection with the decision of the Shevchenkivskyi District Court, which once again undermined confidence in the judicial system.
Let us remind you that Oleh Tatarov was involved in a separate episode of the fraud case regarding apartments for the National Guard. He was suspected of bribing Kostiantyn Dubonos, expert of the Kyiv Scientific Research Institute of Forensic Expertise of the Ministry of Justice of Ukraine. According to investigators, Tatarov was supposed to give Dubonos a bribe in the form of a parking space in the Aristokrat residential complex worth UAH 250,000, and the latter was supposed to forge documents that would hide losses of UAH 81.64 mln.
On December 1, 2020, Prosecutor General Iryna Venediktova secretly replaced prosecutors in this proceeding. Since then, the irreversible process of “burying” the case has begun.
Our have lawyers analyzed the decision that drove the last nail into the coffin of Tatarov’s case.
What happened?
On December 14, 2021, the ruling of the Shevchenkivskyi District Court of Kyiv obliged the prosecutors to close the case due to the expiration of the pre-trial investigation period. This was done in accordance with the complaint of lawyer Volodymyr Lysenko. It is worth noting that the formally specified ruling is not yet the closure of the case, but only a reason to do so.
The grounds for the ruling were that the term of pre-trial investigation began to count from the next day after serving any person involved in the case with charges in criminal proceedings, and not to each suspect separately. In accordance with this, in Tatarov’s case, December 1, 2020 should be considered the beginning, after all, on November 30, one of the defendants in the case was served with charges, despite the fact that the suspicion for Tatarov was announced on December 18, and he was served with charges on December 21.
On January 25, 2021, the deputy Prosecutor General extended the pre-trial investigation period to three months. Therefore, March 1, 2021 should have been the last day when the statute of limitations expired. At the same time, February 28, 2021 was mentioned as the last day of the pre-trial investigation in the court’s conclusion, the day of the week was Sunday.
On February 25, 2021, another investigating judge of the Shevchenko District Court refused to extend the pre-trial investigation period to 5 months. He thus justified this solution:
- The prosecutor did not provide objective data that would indicate the particular complexity of the criminal proceeding.
- The deputy Prosecutor General has not calculated the total period of pre-trial investigation in a joint criminal proceeding, and the investigating judge cannot do it on their own.
An attentive reader will notice that the case was investigated by the NABU, so any disputes should be resolved by the HACC, and not by the Shevchenko District Court. But Tatarov’s legal genius decided very simply: if you don’t like the court, just change the court. Tatarov used all legal and non-legal means of blocking the investigation. For example, he appealed to the Shevchenkivskyi District Court with a request to cancel the charges he was served with, but even this court refused to do so, noting that the suspicion was in compliance with the CPC.
However, the question arises why the pre-trial investigation was not completed on Friday (February 26, 2021) because after familiarizing the participants with the materials, it would be possible to send the indictment to the court within 3 days.
The court also drew attention to this point in the decision of December 14, 2021. According to the provision of Article 295-1, part 7, of the Criminal Procedural Code of Ukraine, if an investigating judge refuses to extend the term of pre-trial investigation, the prosecutor is obliged to perform one of the actions provided for in part 2 of Article 283 of the Criminal Procedural Code within five days — to close the proceeding, apply to the court with an indictment, and so on.
The investigating judge ordered to close the criminal proceeding, and not to perform one of the specified actions, since the prosecutor’s powers are no longer discretionary. There is only one legitimate and legally justified version of the behavior of an authority (the Supreme Court composed of the panel of judges of the Cassation Administrative Court when considering a case No. 320/4182/20), namely, the closure of a criminal proceeding.
The investigating judge adhered to the principle of competition and provided an answer to the prosecutor’s arguments, which came down to the fact that the SBU had not yet received materials of the criminal proceeding from NABU detectives. However, it is not clear why the SBU and the prosecutor’s office need these materials, if they believe that Tatarov’s case is not under investigation by the NABU, and in this regard, the evidence collected by the NABU would be considered inadmissible.
What’s next?
What’s next is bad. Formally, the case still exists, although barely, but in reality, this is its “procedural death.” After all, the decision of an investigating judge is not subject to appeal. This story should be considered comprehensively, in terms of the national trend as an attack on the bodies of the anti-corruption ecosystem, starting from mocking Telegram channels that accumulate dirt and fakes and ending with a 15-month story with the election of the SAPO head.
Now, the selection commission is twisting the procedure of its work so that the head is not elected. It was the absence of the head that allowed the Prosecutor General’s to take the case from the NABU. Such an artificial delay on the part of individual members of the SAPO commission is the reason of an arbitrary and extra-legal incident with Tatarov’s case.
This case also became a test for the authorities that were elected because of the anti-corruption slogans and repeatedly assumed international commitments to combat corruption. The test is failed.
The co-authors are Andrii Nevtrynis, junior lawyer of TI Ukraine, and Serhii Kurinnyi, legal advisor to TI Ukraine.
