April Theses of the Prosecutor General’s Office

The assassinations of NBU former Chairman Vadym Hetman and People’s Deputy Yevhen Shcherban, the Ukrainian budget looted of tens of millions of dollars by former Premier Pavlo Lazarenko, followed by millions of cubic meters of Russian natural gas, mysterious disappearance of the journalist Heorhy Gongadze, cassette scandal, and the bankruptcy of Ukraine’s major commercial bank provides tomes of files in these and other resonant cases that are kept under lock and key at the Prosecutor General’s Office in an imposing building in the Ukrainian capital. Prosecutor General Mykhailo Potebenko told a press conference he would not resign until these cases are solved. In an interview with The Day he confirmed that “you can quit politics only after you die,” noting what he called considerable headway in the most publicized cases. Mr. Potebenko stands more than a fair chance of getting a seat in parliament (in fact, being placed twentieth on the Communist Party roster is a 100% guarantee). This will confront him with a choice between the parliament and his current office.

ZHERDYTSKY AND LAZARENKO MIGHT RETURN BUT WITHOUT MONEY

The Day: Did the Prosecutor General’s Office find out how Hradobank, being an ordinary Ukrainian bank, was authorized to make payments to Ukrainian Ostarbeiters? Why Hradobank, and was the bank executive responsible for handing the money over to a private business entity, which then stole it?

Potebenko: They had to select a bank to handle the payments, so they chose Hradobank; they must’ve trusted it. This case is practically solved. As you know, Zherdytsky was arrested before his trip to Germany. Then, like certain others, he was elected to parliament and received the attendant immunity. And then he got where he did. As for the other guilty parties, the law says everything has to be done comprehensively, depending on the degree of magnitude of offense. Such persons will go to trial and punishments will be considered simultaneously, with regard to others but only after the case is completed. Without doubt, Didenko is not the only one to be brought to account; others will also have to answer for transactions with the Ostarbeiter money.

The Day: What about all those allegations saying that Yushchenko was involved with the appointment of Hradobank [as Ostarbeiter money manager]?

Potebenko: The prosecutor’s office has been ordered to remain silent. You often accuse us of not adhering to glasnost. The law reads that the Prosecutor General is a liable person. What would you do in my place? If the Prosecutor General discloses data relating to a prejudicial inquiry, and if such disclosure is qualified as an abuse of office, he could be sentenced to a term of up to twelve years. When that law was enacted I told someone above what you’ve done is as good as gagging the prosecutor’s office’s mouth. And so I avoid direct answers until the case is in court.

The Day: We learned recently that Germany passed a law on the extradition of foreigners condemned by German courts. Zherdytsky is to stand trial on March 29. Suppose he is found guilty and gets elected to the Ukrainian parliament on March 31. How would you act under the circumstances?

Potebenko: I would act precisely the way I did in the Lazarenko case. I would request Verkhovna Rada’s consent to his arrest and trial.

The Day: Stripping him of immunity?

Potebenko: No, just their consent. He would lose his immunity when condemned by the court. As for extradition, this problem has been practically solved even without such a law. There is, however, the financial aspect. The US side views the situation like this: if Lazarenko stands trial in November, we have to solve the money issue now.

The Day: You mean they want him to stand trial at our expense?

Potebenko: I wouldn’t rule out such a possibility. They could give us something like a tip and keep the rest of Lazarenko’s money, considering all the expenses involved: investigation, keeping him in prison, and so on. Actually, we knew this as soon as they arrested Lazarenko. It’s an ethical as well as economic issue. They tell us that he violated the US fiscal laws. But we may ask in return whose money he stole. It’s Ukrainian money and the amount is very large, millions of dollars.

The Day: But it is also possible that they do not want to return people under arrest to Ukraine because they think that our judicial system is imperfect and they can’t be sure that those cases will be handled in accordance with the law.

Potebenko: That’s speculation and a way to influence our national policy. We can see this quite clearly during the election campaign. Why do we let them meddle in our national interests? We must take a firm stand and say we’ll manage our own affairs without anyone’s help.

The Day: In his last public appearance in Ukraine Lazarenko admitted that he was anything but an angel. We all knew what he was like, yet we allowed him to leave Ukraine. How could that happen?

Potebenko: You could’ve added why the state, competent authorities, and the president didnot do anything. I’ll answer this one if you’ll print it.

The Day: Certainly.

Potebenko: There is a law on the status of people’s deputies, so a prosecutor can’t call a lawmaker to account for a criminal offense without parliament’s consent; he can’t even arrest such a deputy. If I do it without the Verkhovna Rada consent, it would constitute an abuse of power and I would get a term in prison. So I understand this. I’m also human, why should I go to jail because of Lazarenko?

The president is in no position to give instructions to a court of law or prosecutor. If he does, he will also answer under the law. And so the lawmakers took advantage of the situation. The prosecutor’s office promptly requested parliament to authorize Lazarenko’s arrest; the request found its way to the special parliamentary committee and they took their time processing it; it was as though the crime had been committed by the prosecutor, not Lazarenko. Finally, they decided to refuse consent. We knew he was flying abroad and there was nothing we could do. Verkhovna Rada must assume responsibility for Lazarenko finding his way to America; if they handled our request quickly and properly, nothing unexpected would’ve happened.

The Day: You say that the peoples, deputies are responsible for allowing Lazarenko to fly to America. But it’s also true that quite a few members of his cabinet team and business partners would subsequently join new cabinets. Who is responsible here?

Potebenko: If you mean Yuliya Tymoshenko and the Yushchenko cabinet, she did not seem aware of her responsibility. But you’re right in asking about responsibility. Someone allowed her to join the cabinet, didn’t he? Were there legal grounds on which she could become a cabinet member and be appointed vice premier at the time? I’m not sure. If I were to decide, I would never have her as a deputy, no matter how charming and clever she is. I told the premier so at the time. There is not only a legal but also, and more importantly, a moral aspect to the case. They all understood it, but, well, everything happened the way it did.

“YEVHEN MARCHUK IS NOT INVOLVED WITH ARMS TRAFFIC; HE IS A VICTIM OF DIRTY GAMES”

The Day: You mentioned the campaign to discredit Yevhen Marchuk, what do you think should be done to prevent such things?

Potebenko: I’ll tell you what will be done in this particular case. The investigation is practically completed. We requested documents from Italy. We know everything, including the fight over these documents. I’m sure the case will be closed. What’s to be done about the consequences? I think Yevhen Marchuk will know what to do. If the libel and slander clause weren’t canceled, we would make this case public and bring the architects to account. I no longer have such powers, for there is no such article of the law. The only option is to claim moral damage. Mr. Marchuk can use it, but he is the one to decide.

The Day: So there is no legal qualification? Couldn’t the whole thing be viewed as an attempt to discredit a body of the state?

Potebenko: Like I said, the article of the law no longer exists.

The Day: Granted, but in a way it means discrediting Ukraine?

Potebenko: You’re right, but there isn’t an article in the criminal code which I could bring to the court. If there were, I’d do just that with pleasure. I have worked with Mr. Marchuk, and I’ve always known him as a decent man. When I read those incriminating articles I had some doubts. It stands to reason. But I’m a prosecutor, and I have to investigate before I can make a statement. I’m often asked questions like yours. My deputy, the judge advocate, will also tell you that Yevhen Marchuk is not involved with arms trafficking, he is a victim of dirty pool. As for the amenability of all those who drafted and carried out the campaign — we thought about it over and over again. We would like to make our findings public knowledge. Let them all read the documents. And they can be brought to account only in terms of liability.

The Day: Material or moral?

Potebenko: Moral goes without saying. Damages could be claimed. They could be made to retract and offer a public apology through a lawsuit, but I know Mr. Marchuk, and I think he won’t do it. And he’d be right; it’s best shrugged off, for normal people will understand everything.

The Day: Indeed, but again, the whole things smears Ukraine’s reputation. The trial took place in another country and the kind of publicity it received was meant to spread not only in Ukraine.

Potebenko: Yes, it’s an act of defamation of the state. I know it, but there’s no legal qualification. There’s no clause we could use to make them answer. We did our best to check everything out, every slanderous allegation; we had to order people off other cases, but it was necessary, for it was a matter of our national prestige. We will make our findings public: let people take a good look at the characters behind it all.

The Day: Yes, but impunity provokes.

Potebenko: Impunity not only provokes but corrupts society. After seeing them get off, others will want to try it.

The Day: By the way, one of Derkach’s “Versions” of March 11 (we all know that Derkach always keeps behind his journalists; he doesn’t like to appear in the limelight) has it that all taking an interest in Marchuk’s alleged wheeling and dealing might well be offered an excursion to the Tarashcha forest. Could there be another provocation brewing, so they are trying to point out the guilty parties in advance. One can only sympathize with the journalists working for Derkach; they face two hazards. First, they could end up discredited themselves, and second, if their bosses lay a trap for someone they could become pawns. After all, the helplessness of law enforcement authorities in such cases make people hostages.

Potebenko: Assessing is one thing and what course events will actually take is an altogether different thing. As for assessment, I’ve said that assess we will; a decision will be made and evidence duly assessed. Amenability? Let me stress again that after September (the new criminal code was enacted on September 1 — Ed.) we can’t do anything. The more so that they took away my legislative initiative. The prosecutor has become helpless before the lawmakers. Let’s be frank. The president cuts the largest figure in the state — I don’t mean Kuchma but the president as such. Today it is Leonid Kuchma, tomorrow it might be someone else. Can we protect him from such lampoons today? See where we’ve ended with our legislative endeavors. Does the number of laws matter? I, for one, told my people at the Prosecutor General’s office that I want quality. Just that. I don’t want 30 or 50 cases. I want one but handled as thoroughly and professionally as the Lazarenko case. We have enough such cases, even if not at the same level. Our state is being robbed in broad daylight. So we must talk not about the number of codes but about their quality. Otherwise things will get so that the highest leaf on the birch tree will be protected one way and lowest leaf another. Our legislation is all mixed up. And this makes quality suffer. If you drew up a comparison table of the old and new criminal codes and criminal statistics, you’d think the same.

EVERYBODY INVOLVED WITH THE UKRAYINA BANK WILL FACE JUSTICE

The Day: About the Ukrayina Bank; we know that several executives are in custody. Do

you really believe that they acted without instructions from above?

Potebenko: Yes, we arrested those bank executives. In the first stage six are charged with the bank losing eight million hryvnias, among them Mikheyev, former chairman of the board, and his accountant Goldstein. In the second episode (loss of UAH 23 million and $9 million) we have former chairman of the board Kravets and others. I must say that the case is unfolding rather actively and effectively. We can see the finale. Everybody involved with the bankruptcy will face justice, and I’m not trying to cover up for anyone.

The Day: As a sequel to the bank saga, you said that there are no people on the Communist Party roster involved with financial fraud. Yet the parliamentary committee of inquiry insists that ex-Speaker Tkachenko’s daughter, back in 1998...

Potebenko: All right, let me tell you here and now that I see no Communists involved in or with financial fraud. Your question relates to a nonaffiliated person. I don’t know who you mean, but that’s outside the context of your question.

INVESTIGATING THE GONGADZE CASE REQUIRES QUESTIONING MAJOR MELNYCHENKO

The Day: You said recently that there are prospects in investigating the Gongadze case. When will this investigation be over and what turn of events can be expected ?

Potebenko: There must be a turn of events in this case. The thing is that we need Melnychenko. The investigation is following a course of working out and discarding leads, but when proceed to another lead and can get a little more evidence, we see that we must question Melnychenko. I don’t know whether it will get us anywhere, but we need him to work out and discard leads. That brings us to the authenticity of his information. You know that Melnychenko’s tapes incriminate the president, head of the Presidential Administration, and other high officials. I can tell you that we have studied them all, and I can also state that these people are not involved in or with the disappearance of Gongadze. The investigating authority ruled to dismiss their cases, meaning that they are not in any way involved. The lawyer of the journalist’s mother appealed our decision to the courts. Despite all the fighting over the Pechersk Court, the judges found the prosecutor’s office’s decision correct. You know what everybody said after the assassinations of Hetman and Shcherban — that everything had fallen into oblivion... It is the same with the Oliynyk case...

Speaking of Shcherban and Oliynyk, a group of people have already gone to the court. The Lazarenko case is being handled separately. Some of the persons involved are already in custody, others are not, because they are dead. The underworld is always careful to get rid of accomplices. As for the Oliynyk case, we studied it five days ago and we have some leads. I think the case will be solved.

Getting back to the Gongadze case, I’m sure that solving it is a matter of not only honor but also the prosecutor’s immediate duty. We must prove that events and facts are falsified, and finally get the criminals.