Oleg Bakhmatyuk's Address to Ambassadors

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Excellencies!

I’m writing to you to invite your attention to my case, which is an unprecedented story for Ukraine’s legal tradition. It is replete with numerous violations of the due process of law on the part of the investigative authorities and the vested interests of senior members of government.

The gist of my case is as follows. During a banking crisis in Ukraine, VAB Bank, in which I was a shareholder, received refinancing to the amount of UAH 1.2 billion by decision of the NBU (FYI, the NBU extended a total of UAH 319.9 billion in refinancing support to Ukrainian banks in the period between 2014 and 2016). As per reports of the NBU and the Deposit Guarantee Fund, the proceeds of refinancing were fully used according to their designated purpose, that is to settle clients’ claims. On 20 March 2015, the NBU adopted a decision to liquidate VAB Bank.  Other Ukrainian banks were also withdrawn from the market – 100 out of 180 as of 2014. I happen to be the only former bank owner to have consistently offered a debt settlement to the government, I have not received much response though. 

NABU is investigating a case based on allegations of fraud involving a stabilisation loan extended to the bank by the NBU. All the facts being investigated by the National Anticorruption Bureau were examined by the prosecutorial authorities, the Security Service of Ukraine and the National Police of Ukraine for four years. Investigative activities were being executed for a year and a half, almost forty interrogations were conducted, and the relevant cases were closed finding no criminal offence had been committed, which is confirmed by court decisions of all instances.  Furthermore, in the course of the NABU investigation, the allegations of misuse of the funds have been refuted by expert examinations conducted by the Deposit Guarantee Fund and other official expert examinations. 

Soon after Ruslan Ryaboshapka was appointed Prosecutor General, he directed his deputy, Kasko, to reopen the case in September 2019 to be investigated by NABU, which was a flagrant violation of the law.  The unlawfulness of the decision to reopen the case has been confirmed by a ruling issued by the Pechersk District Court of Kiev City on 5 June 2020 ordering the Office of the Prosecutor General to close the case. The ruling is final and not subject to appeal.  NABU has, however, refused to comply with the ruling or the decision by the Prosecutor General’s Office, which is a flagrant violation of the very foundations of the law.  On top of that, NABU has challenged the ruling of the Pechersk Court to the Appeals Chamber of the High Anticorruption Court of Ukraine.

I have reason to believe, based on facts known to me and journalistic investigations by respected Ukrainian media that the unlawful reopening of the case against me was orchestrated by the former head of the Office of the President, Andriy Bohdan, who has business interests in the agricultural sector. The target of his interest was my agricultural company, which is one of Ukraine’s largest. In a feature published by the Dzerkalo Tyzhdnia (Weekly Mirror) weekly, Yulia Samayeva claims that to the best of the weekly’s knowledge the plan pursued by certain senior members of government was to have the Asset Recovery and Management Agency (ARMA) take over my company, Ukrlandfarming. ARMA continues to be interested in Bakhmatyuk’s assets. According to various sources, it is currently controlled by somebody named Andriy or Bohdan, said the journalist in the article. The enforcer of the plan is NABU Director Artem Sytnyk who, on top of everything else, has a direct conflict of interest with me over his guilty-of-corruption verdict to the extent that the principal witness who testified against him was my sister’s aide.   

Throughout this whole time, my company and I have been subjected to improper pressures.  I was never duly served with a notice of suspicion in the case – I was on business abroad and I never received it. Importantly, both NABU and SAPO were notified of my whereabouts and the lawyers representing me. 

NABU has, however, been persistently obstructing my defence team, they’ve even attempted to strip me of my legal representation by forcing government counsels on me, which is against the convention for human rights. What is more, my lawyers had to complain publicly against NABU’s misconduct in order to invite public attention because Artem Sytnyk’s subordinates were withholding access to the case file. 

On 15 April 2020, the High Anticorruption Court dismissed the motion filed by the National Anticorruption Bureau and the Specialised Prosecutor’s Office seeking an arrest warrant against me in absentia finding no grounds for granting it. That ruling was consistent with precedents in similar cases, in particular, in the cases of Oleksandr Klymenko, Andriy Kluyev and Rayisa Bogatyryova, the court also refused to impose a precautionary restriction in the form of custody pending trial. On May 2020, however, the Appeals Chamber of the High Anticorruption Court ruled to remand me in custody against its previous ruling. 

What is more, on 24 June 2020, an investigating judge with HACCU dismissed a motion by the prosecution seeking an arrest warrant in absentia against the former CEO of VAB Bank, Denys Maltsev, who is implicated in the same case as me, having the same legal status.  Thus, the first instance of the High Anticorruption Court of Ukraine has issued a ruling, completely contradictory to a recent decision by the Appeals Chamber of HACCU against me.

Further violations of the norms and principles of law continue as we speak. NABU and SAPO have been refusing to comply with the final decisions of the Pechersk District Court of Kiev City and of the Office of the Prosecutor General to close the case, which are not appealable. They have stated that they will challenge the judgement, despite its being definitive and not subject to appeal. Furthermore, NABU believes HACCU has jurisdiction to review their appeal and it is certainly just a coincidence that the same panel of three judges, who are responsible for the travesty of justice against me, that has been appointed to review their appeal.  

I would like to inform you that such actions by NABU and the delay in complying with the judgement on the part of SAPO have invited reactions of surprise from reputed Ukrainian lawyers. In particular, Zoya Yarosh, the President of the Bar Association of Ukraine has stated that the situation deserves particular attention because NABU’s lack of restraint has crossed all possible boundaries, Given the fact that the Judgement of  05.06.2020 by an investigating judge of the Pechersk District Court was handed down after the High Anticorruption Court had commenced its operation, the judges of the Appeals Chamber of the High Anticorruption Court have no jurisdiction to review an appeal against the judgement of  05.06.2020 as part of case № 757/22567/20-k to the extent that any appeals challenging the ruling of investigating judges of the Pechersk District Court of Kiev City are to be brought before the Kiev City Court of Appeal.  

Mykola Golomsha, a former deputy prosecutor general, argues that NABU’s statements in which it refuses to comply with the judgement and close the case, on the grounds that it has appealed the Pechersk Court’s judgement to the High Anticorruption Court, is a violation of the Constitution. The ruling of the Pechersk Court is not subject to appeal. NABU’s stated refusal to comply with the judgement is a violation of Article 19 of the Constitution and laws of Ukraine. Any disregard for or interference with the activities of any individual branch of government is improper and prosecutable, stated the lawyer. Such statements are inappropriate. Appealing a ruling by the Pechersk Court to the Anticorruption Court is unlawful and against the Constitution.

Lawyers conclude that we stand a good chance of winning in international courts, in particular the European Court of Human Rights.  Amid flagrant violations of the law and human rights in Ukraine, however, such lawful decisions by international courts in our favour may come too late with the company taken over by individuals connected with the government and the legitimate rights of its international investors trampled.  

We ask you to pay attention to the grossly unlawful and biased actions of NABU Director Sytnyk that show all signs of a conspiracy. I can’t rule out the possibility that the purpose of those actions is to hand over control of my agricultural company employing 27 thousand people, generating 1% of GDP and having contributed UAH 7.7 billion in taxes over the past 3 years, to other people. The court found that the case against me had been opened unlawfully and that the attacks against me and my company by Artem Sytnyk were being pursued based on a case that had been conclusively closed by court.   All those unlawful actions against me serve as evidence that the investigation is biased while the improper pressure on the part of NABU leadership against my rights and freedoms is a pursuit of personal gain, both their own and those of other interested parties, as I believe that Artem Sytnyk’s improper actions have been driven by economic interests in relation to my company.