The author of this column, Andriy Sliusar, defended the interests of MP Yuriy Kamelchuk in this lawsuit.
The High Anti-Corruption Court of Ukraine acquitted MP Yuriy Kamelchuk and found him not guilty of making false declarations. Earlier, prosecutors of the Specialized Anti-Corruption Prosecutor’s office suspected Mr Kamelchuk of failing to include an apartment he rented in Kyiv and a bank loan in the declaration.
Recently, prosecutors have referred a bunch of similar cases to the court. Still, it is obvious even for them that these cases do not pose any real threat to the society.
It is a pity that NABU detectives, SAPO prosecutors and HACC judges waste their time and resources on such cases instead of leveraging them more efficiently.
It is even a greater pity that applicants, accused of such ‘criminal offences’, have to spend months in court to just prove obvious facts.
The biggest tragedy is that prosecutors will waste a lot of their and other people’s time appealing the court decisions in such cases. The Specialized Anti-Corruption Prosecutor’s office has already stated that it’s going to appeal the verdict in Yuriy Kamelchuk’s case.
What Yuriy Kamelchuk was accused of
Prosecutors of the Specialized Anti-Corruption Prosecutor’s office accused Yuriy Kamelchuk of intentionally failing to include in his declaration for 2020 information about an apartment he rented in Kyiv and a loan to the bank in the amount of almost $49,000.
What the Court has found about the apartment
The panel of judges stated that Yuriy Kamelchuk rented the mentioned apartment to perform his deputy activities and received compensation for its rental costs from the state’s budget.
Therefore, the Apparatus of the Verkhovna Rada of Ukraine did not only know about the rent of this apartment but also regularly published this information on the official website and newspaper ’Voice of Ukraine’. Moreover, Yuriy Kamelchuk informed the NAPC about the rent of the apartment and its rental costs prior to filing the declaration.
Taking into consideration that the fact of Mr Kamelchuk receiving compensation from the budgetary funds for the apartment’s rent was publicly known, the panel of judges came to the conclusion that failing to include it in a declaration is not against the law.
Also, the panel stated that the conviction of the MP for failing to include in his declaration the rent of the apartment, which he used for performing his deputy activity and which was compensated from the budgetary funds, while the information about it was publicly available, does not meet the purpose of criminal liability and is formalized.
What the Court has found about the ‘loan’
In his indictment, the prosecutor had stated that Yuriy Kamelchuk’s expense transactions in 2017 exceeded his account balance by $16,500, while later the bank added a $32,000 fine to them.
Yet, the evidence the prosecutor provided clearly demonstrated that after all the transactions, Yuriy Kamelchuk still had $5,75 on his account balance and did not exceed any limits.
At the same time, the prosecutor did not provide the court with any credit contract, loan agreement or any other documents that could possibly lead to the idea that Yuriy Kamenlchuk could have had a bank loan. Moreover, the prosecutor did not provide any evidence that the bank has attempted any pre-trial or court attempts to collect ‘the debt’ since 2017. The judges stated that the evidence provided by a prosecutor did not prove the presence of any financial liability the applicant had to report in the declaration.
How the prosecutor got hold of sensitive personal data
First of all, it took judges 2 sheets of A4 paper to just enumerate all the irrelevant and not related to the case pieces of evidence provided by the prosecutor.
Besides, it was revealed during the case that despite the anti-corruption court ran running its procedures in an ordinary mode, prosecutors got temporarily access to the documents based on regulations specific to the martial law period.
The prosecutors received access to the list of all caller IDs who Yuriy Kamelchuk had talked to via phone last year without court permission. Not to mention that this information did not have any practical value for the investigation.
Prosecutors obtained this information without the court’s decision (as it is required in Articles 159 and 162 of CPC of Ukraine) and even without the resolution of the chief prosecutor (as it is allowed to be done in specific circumstances during martial law by Article 615 of CPC of Ukraine).
The prosecutor requested and obtained these sensitive personal data using a resolution signed by himself. In his actions, the prosecutor relied on Paragraph 20-7 of the Transitional provisions of the CPC of Ukraine, which was adopted on March 15, 2022, when there were still no regulations adopted for responding to the challenges of the investigation caused by the military aggression of the russian federation.
Since then, a whole new section was added to the ‘main’ part of the CPC (not to the Transitional provisions) that defined simplified procedures for the period of martial law. In October 2022, it was even possible to run the ordinary procedure of judicial control, as the Anti-Corruption Court was working even during blackouts (which deserves a special appraisal).
Yet, neither the ordinary court functioning that could have provided a resolution about accessing this information, nor Article 615 of CPC of Ukraine could outweigh the fact that Paragraph 20-7 had been still present in the Transitional provisions of the CPC of Ukraine since March 2022, so the prosecutor decided to act based on it.
I am sure that Paragraph 20-7 of the Transitional provisions cannot justify ignoring established procedures.
If Members of Parliament do not want prosecutors to access information about their phone calls without any control, maybe it would be more efficient to remove this atavism from the CPC than just rely on the regular or special norms that were adopted later.
Andriy Sliusar, a partner at Nazar Kulchytskyy & Partners.