Oleksiy Shevchuk, a partner at Barristers, LLC, gave an interview to the publication "Law and Business"

Oleksiy Shevchuk, Managing Partner of the Barristers Law Firm: “NABU is the greatest legal oxymoron of our time”

Having burst onto the scene of the Ukrainian legal community during the trial against Hennadiy Korban, attorney Oleksiy Shevchuk did not rest on his laurels but began to rally like-minded individuals and top-tier professionals around him. In less than a year of operation, the new “Barristers” law firm—of which O. Shevchuk is a partner and founder—has achieved a great deal. High-profile clients, new high-profile cases, confrontations with the law enforcement system and the state apparatus of coercion, thousands of appeals and complaints. And it’s only just beginning, because working as a lawyer today is not only prestigious but also difficult. After all, in court, one has to fight not so much against the arguments and evidence presented by the prosecution,

but against the arbitrariness within the walls of “anti-corruption” agencies. What does this mean, and what are the prospects? This was the topic of a conversation with Oleksiy Shevchuk, managing partner of Barristers Law Firm.

“The independence of the NABU has transformed into a kind of hybrid lack of accountability”

— Oleksiy Anatoliyovych, one aspect of the reforms carried out in Ukraine recently was the creation of the National Anti-Corruption Bureau. Was it necessary to create a separate anti-corruption law enforcement agency?

— You might be surprised, but unlike many activists who don’t even have a legal education and practically idolize NABU, I’m going to say something very unpopular: The National Anti-Corruption Bureau is the greatest legal oxymoron of our time. On the one hand, it was supposed to be an extremely powerful, impartial, and independent anti-corruption agency. Legally, that’s exactly what it is. But in practice, things are completely different.

NABU receives inexplicable support from the U.S.—not only political, but often financial as well. It has even reached the point where the U.S. Embassy in Ukraine has expressed official dissatisfaction with the “opponents” of NABU Director Artem Sytnik, and the Federal Bureau of Investigation has become involved in provocations against Ukrainian members of parliament.

On the other hand, NABU’s “independence” has transformed into a kind of hybrid lack of accountability. After all, for three years now, a law enforcement agency has been operating in Ukraine that is completely removed from any form of oversight—judicial, parliamentary, or public.

For example, the Public Oversight Council at NABU simply does not respond to any violations committed by its investigators. One need only recall the recent scandal involving the beating of attorney Alina Samaret by a NABU investigator. Furthermore, it took parliament two years to appoint auditors for NABU, but it remains unclear when, how, and on what basis such an audit will be conducted.

The result of NABU’s activities is PR stunts, sensational statements in the media, the use of its powers to pressure

“dissatisfied” individuals, and not a single corruption case brought to its logical conclusion—a guilty verdict.

— Over the course of NABU’s three years of operation, investigators have handled 500 cases, 130 of which were referred to court. How do you assess these figures, given that corruption is the only topic of conversation in Ukraine?

— Purely theoretically, the figures would look respectable if these were 500 cases against top officials. But when NABU refers to court only cases against “heads of village administrations or mid-level managers of state-owned companies,” it’s nothing more than a cheap imitation of the fight against corruption. But even in high-profile cases, where one would think NABU investigators would at least try to uphold their reputation, we see a complete ignorance of the Criminal Procedure Code, a cavalier attitude toward legal requirements, and sheer bureaucracy. They do not even shy away from procedural tricks, such as adding blank sheets of paper or duplicate printouts to the case files just to make the case look more “impressive.”

“The creation of the High Anti-Corruption Court and NABU is a move that is correct in form but entirely unhealthy in substance.”

— What will change with the establishment of the High Anti-Corruption Court? Won’t the new court, together with NABU, develop a closed-door mechanism that will make it extremely difficult for individuals drawn into their orbit to defend their rights?

— First of all, I would like to emphasize that the creation of both the Anti-Corruption Court and NABU is a move that is correct in form but entirely unhealthy in substance. Because even if three or even four more anti-corruption agencies were established in Ukraine, this would in no way reduce the level of corruption itself.

In my opinion—and I have repeatedly heard comments from colleagues, both lawyers and journalists, confirming this—over the past three years, NABU has become the most corrupt government agency. Extrajudicial detentions, the falsification of criminal case materials, the instigation of crimes, illegal surveillance of officials, and high-profile PR campaigns aimed at diverting public attention from

the complete professional incompetence of the agency’s leadership. And this institution has become known for its flagrant violations of the Constitution, Ukrainian laws, and the state’s international human rights obligations.

Even at the time of NABU’s creation, it was obvious that it would have no impact whatsoever on the level of corruption in the country. And not only because the “civil society activists” involved in selecting the agency’s director chose A. Sytnyk, the former head of the investigative department of the Kyiv Regional Prosecutor’s Office, who has a long history of scandals. The very idea of reducing corruption in the country by creating new government bodies and new bureaucratic positions is doomed to failure.

As for the High Anti-Corruption Court, it will not begin its work until mid-2019 at the earliest, so it is still too early to say exactly what kind of closed-door mechanism they will develop. Especially since it will not be closed to lawyers. However, it is not certain that the court will pay attention to the defense attorneys’ arguments. Everything will depend on the political expediency of a given criminal case.

I would very much like to hope for a fair trial within the walls of the High Anti-Corruption Court. But I would like even more to see a fair trial in all courts, without exception. Because justice, if it exists only within the confines of a single institution, will “die” just as quickly as some animals accustomed to living in the wild do—in a zoo.

— Have you ever defended individuals who were or are under investigation by the National Anti-Corruption Bureau of Ukraine (NABU)? What are the particular challenges of a lawyer’s work in such cases?

— On numerous occasions. Most recently, of course, there was the case of Boryslav Rosenblat, against whom the so-called “amber case” was provocatively fabricated. We’ve encountered just about everything. For example, forensic experts analyzed letters, documents, and draft laws that B. Rosenblat allegedly signed and that appear in the case file. However, it turned out that he did not sign any of the draft laws. The experts’ conclusion is unequivocal: the signature purporting to be B. Rosenblat’s on the letters that NABU cites as evidence was actually made by another person.

One more detail: the fianit, topaz, and amethyst worth

$43—these are the “countless” jewels that B. Rosenblat allegedly attempted to smuggle out of Ukraine when law enforcement officers removed him from a flight bound for Germany and conducted a search at Kyiv International Airport.

In short, provocation is the only thing the NABU knows how to do—but, unfortunately, this is in no way regulated by law.

“The most serious violation is the breach of attorney-client privilege”

— Recently, the legal community has been increasingly complaining about violations of lawyers’ rights by law enforcement officials. What proportion of these violations are committed by NABU officials?

— Over the past two years, the number of violations against attorneys has increased severalfold. But this systemic crisis of legal awareness is not limited to the agency’s employees. The General Prosecutor’s Office, the Security Service, and the Fiscal Service all treat attorneys’ rights in the same way.

On the one hand, this is somewhat surprising, because a lawyer has

weapon other than their intellect; on the other hand, everyone “fights” as best they can. If law enforcement agencies have no other arguments besides intimidating lawyers, they’re still bound to lose the case. And if not in Ukraine, they’ll certainly lose in the European Court of Human Rights.

At the same time, it seems to me that NABU detectives, having faced serious pushback from the legal community on several occasions, have toned down their behavior somewhat and are now wary of “harassing” lawyers at the first opportunity.

— What are the main violations of lawyers’ rights?

— The most serious violation is the breach of attorney-client privilege. I recently learned that the Specialized Anti-Corruption Prosecutor’s Office has launched a pretrial investigation pursuant to Part2 of Article 397 of the Criminal Code following a complaint from the Committee on the Protection of Lawyers’ Rights and Guarantees of Legal Practice of the National Bar Association of Ukraine regarding interference with attorney-client privilege. Lawyers were simply “put under wiretap surveillance.” This is abnormal, but

even more outrageous is the sawing open of safes during a search of the offices. This is a direct violation of the law and the guarantees of the legal profession.

But for some reason, I can’t recall a single conviction against law enforcement officers for violating lawyers’ rights. Moreover, to date, not a single law enforcement officer has been dismissed or received any real punishment for offenses committed against a lawyer during a search or other investigative actions.

— Has anything changed with the amendments to the Criminal Procedure Code? After all, its drafters have repeatedly emphasized that certain provisions directly concern the interests of attorneys.

— Despite the fairly large number of controversial provisions, the adoption of which still gives rise to ambiguity in law enforcement and judicial practice, I must generally acknowledge that the CPC has unequivocally changed a lawyer’s perspective. There are now more defense tools and more options for developing strategies. That’s all good. But the NABU—and often the judges as well—seem to be using some “special” version of the CPC, one that was apparently issued for them somewhere in America or on Bankova Street. Their

standards are unknown to lawyers. Because, even when citing the exact same articles, we end up with completely opposite conclusions, verdicts, and rulings.

— What do Ukrainian lawyers lack in order to feel protected: changes to the law or solidarity within the community?

— Both. But the measures mentioned are merely countermeasures against the consequences, not solutions to the root causes. Even while still in law school, students at all law schools must be taught that violating a lawyer’s rights is unacceptable under any circumstances, and if such a violation is proven, punishment will be inevitable. Until that happens, all talk of legal reform is just empty rhetoric