Andriy Kobolyev: $10 million bail and TikTok-justice syndrome

• In 2017, the National Joint-Stock Company “Naftogaz of Ukraine won the case against Gazprom at the Stockholm Investment Arbitration: the court recovered 4 billion 600 million US dollars from the defendant.
• For this victory, the then head of Naftogaz, Andriy Kobolyev, received a bonus in the amount of approximately 10 million US dollars.
• The investigators of the National Anti-Corruption Bureau decided that Kobolyev received the award illegally.
• Last week, the appellate chamber of the High Anti-Corruption Court set Andriy Kobolyev bail in the amount of 229 million hryvnias.
• Yesterday, the court posted the full text of the decision on Facebook.

We asked Andrii Sliusar, a partner of the “Nazar Kulchytskyi and Partners” Attorneys Association, to read the decision of the first instance and the appeal and explain why Andriy Kobolyev received one of the largest bail bonds in the history of Ukraine.

Disclaimer. Usually, in such cases, we write editorial material. But Svitlana Panaiotidi is a member of the Board of the Dead Lawyers Society, and we have a conflict of interest, so we asked Andrii Sliusar’s opinion; we did not coordinate the thesis of his column and did not edit the text (although we usually edit everything very powerfully).

It takes more time to read a book than to watch its adaptation; viewing a movie on YouTube will take only 20 minutes, and if you limit yourself to YouTube Shorts clips, you can make it in a few minutes. But I wouldn’t want J.R.R. Tolkien’s trilogy to be replaced by a few memes on the topic “One does not simply.”

Unfortunately, the burden of clip thinking has also spread to criminal justice.

Few people are interested and are eager to delve into the essence of procedural procedures, the nuances of legal qualifications, the quality and admissibility of the collected evidence, and then wait several years for the court to consider the indictment in another high-profile and loud case.

And it looks like quite an attractive and comfortable alternative — to see how justice is done on the air in a few hours and someone “corrupt” who just the day before was a respected member of society today will spend the night in an isolation cell for all those millions he “stole” from the state and each of its citizens.

Last but not least, this perception was cultivated by anti-corruption detectives and prosecutors. Observing the work of the National Anti-Corruption Bureau and Specialized Anti-Corruption Prosecutor’s Office, someone might have the impression that the only preventive measure is to keep a person in a cell of a pre-trial detention center because that is the only thing they almost always ask the courts for.

Given the resonance surrounding this case, there is a chance that society, or at least that part of it that is somehow interested in the prevention of corruption, will begin to delve a little more into the content of legal procedures. It is unlikely that Andriy Kobolyev will be comforted by such an enlightening role, but if life has already given him this lemon, then let’s try to squeeze some legal literacy (out of the lemon, not from Andriy).

Unfortunately, even the Facebook discussions surrounding this case vividly demonstrate the problem I wrote about above. Since the vast majority of controversies revolve at best around the subject of the investigation — who and how determined the amount of the bonus and whether or not there were violations and at worst, they generally boil down to the question “is it ok in a poor country to receive million-dollar bonuses.”

Although, everything that has happened in the courts of two instances, in this case, concerns one narrow issue — the application of a pre-trial restriction.

What is a pre-trial restriction?

The pre-trial restriction is not a method of punishment or a mechanism for restoring social justice or taking away the “looted”. The only legitimate reason for the application of any pre-trial restrictions is to ensure the proper procedural behavior of the suspect while detectives and prosecutors conduct an investigation (as a result of which they can simply close the case without any trial).

If detectives and prosecutors have no real reason to believe that the suspect may flee or interfere with the investigation in any way, then regardless of what crime and how reasonably he is suspected, he can calmly defend himself using legal methods without any preventive measures until the end of the investigation.

If, in order for detectives and prosecutors to worry less, it is enough to oblige the suspect to hand over his passport for traveling abroad, then there is no reason to keep him in custody in a pre-trial detention center or to force him to constantly wear a bracelet with an electronic movement sensor on his leg.

In general, when applying to the court with a request to apply any pre-trial restriction, the prosecutor must convince the judge of three circumstances:

• there are reasonable grounds to believe that the investigated crime took place and that a specific person was involved in its commission;
• the prosecutor has actual reasons to believe that there is a risk of the suspect’s inappropriate behavior that will hinder the investigation;
• that none of the milder restrictions (of which there are as many as five) can prevent such risks.

Since NABU detective Khazar Tanryverdiyev and SAPO prosecutor Yelena Drobotova asked the court to place Andriy Kobolyev in pre-trial detention for two months, and the law requires in such a case, the mandatory appointment of the amount of alternative bail, by paying which a person will be able to leave the detention center, they additionally had to prove and that the proposed amount of bail, on the one hand, will be a sufficient guarantee against any violations, and on the other hand, it is not notoriously excessive for the suspect.

One more important section

First of all, the refusal of the Investigating Judge of the State Criminal Court Oleh Fedorov to apply any preventive measure was dictated by the fact that Judge Fedorov stated that there was no well-founded suspicion of committing the incriminated crime.

The unpleasantness of such a conclusion of the investigating judge for the anti-corruption prosecutor’s office is evidenced by the fact that, in addition to the prosecutor Yelena Drobotova, the head of the Specialized Anti-Corruption Prosecutor’s Office Oleksandr Klymenko personally filed separate additions to the appeal, and the deputy head of the SAPO, Andrii Syniuk, participated in the appeal proceedings together with the prosecutor Drobotova.

In any case, no matter how well-founded the suspicion may be, the law prohibits the application of any restriction measure unless the prosecutor proves the presence of specific risks and the impossibility of avoiding them by applying milder measures.

So let’s compare how the arguments of the detective and the prosecutors regarding these circumstances were evaluated by the investigating judge in the first instance and a panel of three judges in the appellate instance.

Presence of risks

Position of prosecution

The prosecution requests that Andriy Kobolyev be held in pre-trial detention in order to prevent three risks: (1) that he would abscond from the investigation or the court; (2) because he would destroy or conceal evidence; and (3) because he would illegally influence the witnesses and the expert.

The prosecution justified the risk of absconding by the following:

• Mr. Kobolyev may be frightened by the prospect of being convicted of a particularly serious crime;
• he has been abroad 85 times in the last five years;
• as the father of three minor children, he does not have a travel ban during martial law;
• he lived abroad for the previous 11 months and returned on January 12, 2023;
• his property status allows him, if he wishes, to live abroad;

The prosecutors saw the risk of destruction or concealment of evidence in the following:

• NJSC “Naftogaz of Ukraine” previously did not provide part of the documents requested by the detectives, explaining that they were sent at the request of the audit service or foreign lawyers;
• Andriy Kobolyev has maintained friendly relations with the employees of Naftogaz of Ukraine, who, at his request, can conceal the documents needed by the detectives;

The prosecutors explained the risk of illegal influence on witnesses by the facts that:

• part of the employees of Naftogaz of Ukraine could not or did not want to answer the questions of the detectives (in response to the judge’s clarifying question, the prosecutor reported that none of the witnesses reported any pressure on them);
• detectives have not yet interrogated all members of the supervisory board of Naftogaz of Ukraine, and Andriy Kobolyev may illegally influence them;
• the detectives did not conduct an economic examination, and therefore, when they finally appoint one, Andriy Kobolyev can find out which expert will conduct the study and try to influence them.

During the appeal hearing, prosecutor Yelena Drobotova additionally emphasized the judges’ attention to the fact that Andriy Kobolyev does not have his own house in Ukraine and rented a house in January 2023 after returning from abroad, which, in her opinion, also confirmed the existence of a risk of absconding from the investigation.

Defense position

The defense emphasized the voluntary return of their client to Ukraine to defend his rights during the investigation, the fact that he is currently a member of the Supervisory Board of PJSC “Kyivstar” and is also involved in the implementation of international sanctions against the Russian Federation.

In addition, the lawyers noted Mr. Kobolyev’s transfer of about 11 million hryvnias of wages received from Naftogaz of Ukraine to the accounts of well-known charitable funds.

The lawyers also drew the judge’s attention to the fact that during five years of investigation, detectives and prosecutors did not record any attempt by Andriy Kobolyev to put pressure on witnesses or destroy any evidence. And also on the fact that at the time of consideration of the petition, Mr. Kobolyev has not worked for Naftogaz of Ukraine for a long time and therefore does not even have theoretical access to the Company’s documents or any other evidence that may be in its possession.

During the appeal hearing, the lawyers additionally drew the judges’ attention to the fact that the appeal hearing took place 37 days after the decision of the investigating judge and 41 days after Andriy Kobolyev was notified of the suspicion. All this time, there were no procedural restrictions on Mr. Kobolyev, but he tried neither to abscond from the investigation or the court nor to obstruct the investigation.

What the first instance said

The investigating judge, having come to the conclusion that there is no reasonable suspicion, could refuse to apply a pre-trial restriction measure for this reason alone and not even assess the alleged risks. But judge Oleh Fedorov, in his ruling, also evaluated this aspect of the petition of the detective and the prosecutor.

The investigating judge noted that mainly the prosecutor’s arguments about the presence of risks of obstructing the investigation are based on the gravity of the crime charged against Andriy Kobolyev and the severity of the punishment he faces in case of conviction. At the same time, the judge assessed the probability of such risks as extremely low due to the groundlessness of the suspicion and insufficient evidence for further criminal prosecution.

• regarding the risk of absconding, the investigating judge noted that, despite his long-term residence abroad and the possibility of unimpeded border crossing, Andriy Kobolyev independently and voluntarily returned from abroad five days before he was notified of the suspicion. Mr. Kobolyev’s voluntary return to Ukraine and his proper procedural behavior, to which there were no objections from detectives and prosecutors, convinced the investigating judge of the suspect’s intention to contribute to the investigation and not evade it;
• both the risk of destruction or concealment of evidence and (3) the risk of illegal influence on witnesses were assessed by the investigating judge as unlikely since the prosecutor substantiated them with Andriy Kobolyev’s connections with the employees of Naftogaz of Ukraine; however, given the termination of his employment at the company in April 2021, the prosecutor did not provide any information about contacts with such employees after dismissal. The judge also noted the inconsistency of the prosecutor’s arguments, which, on the one hand, claimed that due to living abroad for a year, Mr. Kobolyev lacked strong social ties in Ukraine and, on the other hand, tried to convince the court of his close relationship with certain former colleagues two years after termination of employment with the company.

What the appeal said

The panel of the Appeal Chamber of the High Anti-Corruption Court, consisting of judges Valeriya Chorna, Oleh Pavlyshyn, and Andrii Nikiforov, canceled the decision of judge Oleh Fedorov and imposed a restriction measure in the form of bail on Andrii Kobolyev.

This board agreed with the arguments of the prosecutors and stated the existence of all three risks specified in their petition.

As requested by the prosecutors, the panel of judges saw the risk of absconding in the severity of the potential punishment to avoid which the suspect could flee. And also in the fact that Andriy Kobolyev has been abroad 85 times over the past four years and that his children, ex-wife, mother, and common-law wife live outside of Ukraine.

Separately, the panel of judges noted that the investigative judge’s conclusion that Mr. Kobolyev returned to Ukraine in order to facilitate the investigation and not evade it is only an assumption.

The panel of judges saw the risk of destruction and concealment of evidence in the fact that earlier when Mr. Kobolyev was the head of NJSC Naftogaz of Ukraine, detectives were unable to obtain all the documents they wanted from this company. The board also came to the conclusion that Andriy Kobolyev has a close relationship with current and former employees of this company, whom he can instruct to destroy or distort certain evidence.

Three judges justified the risk of illegal influence on witnesses by the fact that the detectives have not yet questioned all the witnesses, and Andriy Kobolyev can induce one of the witnesses to give false testimony to the detectives or change the testimony to false already during the interrogation in court.

How it looks like from the couch

The panel of the Appeal Chamber referred to the decision of the European Court of Justice in Ilijkov v. Bulgaria as determining that the severity of the prescribed penalty is an essential element in assessing the risk of absconding.

Such a sentence is indeed in this decision, but the irony is that in this case, it was about the legislation and judicial practice of Bulgaria, which determined that in the case of a threat of more than ten years imprisonment, it was the suspect who was actually forced to prove the absence of a risk of flight and, as a rule, this meant automatic detention, barring serious illness or other exceptional circumstances.

And precisely in this context, the European Court noted that the severity of the potential punishment should, of course, be taken into account when assessing risks, but this factor alone cannot justify deprivation of liberty.

In this case, after rejecting the “assumption” of judge Fedorov about Andriy Kobolyev’s proper behavior, the panel of judges agreed with the prosecutor’s assumptions that such behavior may change at a certain moment.

At the same time, unlike the investigating judge, judges Chorna, Pavlyshyn, and Nikiforov had one more factor at their disposal — 41 days from the moment of notification of suspicion. And the panel of judges could evaluate both the behavior of the suspect during this time and the conduct of investigative actions by detectives and any obstacles they might encounter.

However, this circumstance did not receive any evaluation in the decision of the Appeal Chamber of the High Anti-Corruption Court.

Ineffectiveness of milder measures

The prosecution convinced the court that nothing other than holding Andriy Kobolyev in a pre-trial detention center could prevent the identified risks, taking into account:

• his financial situation (at the same time, the prosecutor emphasized that Mr. Kobolyev has received a total of UAH 412 million in income since 2017 and also owns a car, a water vehicle, and works of art); and
• the possibility of going abroad and living there.

The investigating judge, logically, did not assess the possibility of applying other restriction measures because he came to the conclusion that there are no legal grounds for any of them.

The defense: during the session in the court of first instance, five people declared their readiness to take Andriy Kobolyev on bail and personally guarantee his proper procedural behavior, in particular: military serviceman Yurii Hudymenko, Members of Parliament Yaroslav Zheleznyak, Maksym Khlapuk and Volodymyr Tsabal, and public figure Andrii Suprun.

The Appeal Chamber noted only that it used the “reasonable probability” standard of proof, according to which it should be assumed that other milder measures would not be able to prevent the identified risks.

At the same time, the panel of judges did not provide any assessment of the possibility of bailing out Andriy Kobolyev to those persons who claimed this in the court of the first instance.

Also, the court of appeal refused the prosecutors to impose on Andriy Kobolyev the obligation to wear an electronic bracelet because it noted that the applied obligation to hand over passports for traveling abroad would prevent him from absconding from the investigative authorities and the court.

How it looks from the couch

If the panel of the Appeal Chamber stated that handing over passports for preventing traveling abroad eliminates the risk of absconding, then which of the established risks should the bail prevent?

At the same time, Andrii Kobolev was ordered not to communicate with a wide range of existing or potential witnesses.

Considering that such duties could be assigned to Mr. Kobolyev separately, without the use of bail, it is not clear from the decision why the court of appeal decided that the prohibition of communication alone could not prevent the granting of instructions or influence on these persons, and it is also necessary to oblige order the suspect to pay 229 million hryvnias to the court account.

Although the judges established that Andriy Kobolyev has been renting a house in the Kyiv region since January, they forbade him to leave Kyiv without the permission of the detective and the prosecutor, so he will need such permission every day.

The amount of the bail

The prosecution asked to determine alternative bail for Andrii Kobolyev in the amount of over 338 million hryvnias.

At the same time, detective Tanryverdiyev in the petition convinced the court that Mr. Kobolyev could pay such bail in the amount of the bonus paid to him (which is the subject of the investigation) and the financial situation of the suspect.

In order to substantiate the amount of the proposed bail, the prosecutor additionally provided the judge with a report on the payment in 2021 to Andriy Kobolyev in connection with the termination of work at the Company in the amount of 338 million hryvnias for the previous years.

The defense emphasized the unreasonableness of the amount of the bail proposed by the prosecutor but did not provide the court with information about the amount of bail Andriy Kobolyev can realistically pay, if necessary.

The investigating judge, naturally, did not evaluate the arguments of the prosecutor regarding the amount of bail, as he did not apply it.

The court of appeal decided to apply for bail in the amount of 229 million hryvnias to Andriy Kobolyev.

In their decision, the panel of judges did not indicate why they decided not to apply 338 million hryvnias of bail, as requested by the prosecutors, but 229 million hryvnias.

As factors that judges Chorna, Pavlyshyn and Nikiforov took into account when determining the amount of bail, they indicated 413 million hryvnias of Andriy Kobolyev’s income over the past five years, the fact that he owned a car, a water vehicle, a trailer and works of art; as well as the presence of certain movable and immovable property of his common-law wife and savings in the amount of 20 thousand US dollars and 93 thousand hryvnias.

Separately, the judges noted that after returning to Ukraine, Mr. Kobolyev rents a house for 100,000 hryvnias per month and is a member of the Supervisory Board of Kyivstar PJSC.

Separately, the panel of judges noted that they believe that Andriy Kobolyev is able to pay the specified amount of bail because the prosecutors did not provide information about the blocking or seizure of his accounts, and the defense did not refer to the presence of circumstances that complicate the realization of the right to deposit bail.

How it looks from the couch

It should be emphasized separately that bail is money that must be deposited in cash or non-cash into the court’s account in full within five days.

At the same time, the presence of real estate, vehicles, securities, or other assets, although certainly a reflection of a person’s financial situation, does not in any way mean the ability to immediately deposit hundreds of millions of hryvnias into the court account.

In order to really understand how much the suspect can pay as bail, along with the amount of total income for five years, it is logical to evaluate the balance of funds in bank accounts or other data that can indicate the cash and non-cash funds available to him.

Because even if someone earned several hundreds of millions, he obviously spent some of it at the same time, and some, most likely, invested, and therefore the amount of income in previous years cannot and should not be correlated with current solvency.

Also, although bail can be provided for the suspect by other bailors, the court imposes the obligation to pay it on the suspect and must determine it in an amount that is not excessive for him.

There is not a single word in the decision of the Appeal Chamber of the High Anti-Corruption Court about why the sum of 338 million hryvnias proposed by the prosecutors was rejected and by what logic the court decided that exactly 229 million hryvnias Andriy Kobolyev can deposit into the court account in five days.

A separate type of suffering is to read how the panel of judges justifies the amount of bail with five paragraphs that corruption “represents a huge threat to democracy”, “distorts the moral state of society”, “threatens law and order” and “undermines democratic institutions”.

What else the court forbade Kobolev

Judges Valeriya Chorna, Oleh Pavlyshyn and Andrii Nikiforov decided to satisfy the request of detective Tanryverdiyev partially and imposed a restriction measure on Andriy Kobolyev in the form of bail in the amount of 229 million hryvnias, which he had to pay to the court account no later than March 6.

Separately, the judges assigned the following duties to Andriy Kobolyev:

• to attend to the detective, prosecutor, or court at each call;
• not to leave Kyiv without the permission of the detective and the prosecutor and to inform them about the change of residence;
• to refrain from communication with the persons listed in the decision;
• and to hand over all passports for traveling abroad and even the internal passport of a citizen of Ukraine.

And now what?

First of all, if Andriy Kobolyev is unable to pay the amount of bail determined by the court, the prosecutors can again ask to put him in custody in the pre-trial detention center.

And secondly, let’s get used to the fact that justice is a long process, and a person can be put in a pre-trial detention center not because he “stole millions”, but because there is no other way to prevent him from obstructing the investigation.

And when next time the prosecutors ask the court to place some official or businessman in a pre-trial detention center, journalists and observers will probably be interested in the circumstances that led to their request, and secondly, how the prosecutors assumed that this a person, if necessary, can immediately deposit several tens or even hundreds of millions of hryvnias as collateral to the court account.

Because “One does not simply” put every suspect in a pre-trial detention center.

If someone is ready to spend a little time getting to know the bizarre world of pre-trial detention in Ukraine, I advise you to start such an acquaintance with this thorough study by my colleague Markiyan Bem.

Some other comments from the couch

We asked several top lawyers to comment on the case, but it turns out that many are involved in one way or another. If you feel competent and have something to say about the case or this column, please write to us, and we will publish your opinion.

Dmytro Trut, Head of White-Collar Crime practice at PwC Ukraine

Dmytro Trut, photo from his Facebook

My comment is based solely on information from mass media and Facebook. I have not seen the case materials, I could have missed something. The Kobolyev case and other recent cases are upsetting.

1. I do not think that this is a political reprisal. Although the terms of the investigation are impressive. It seems to me that the current leadership of NABU is chasing cheap PR and alleged effectiveness. The comparison of the bonus with the size of the pension occurs to average citizens. Decentralization and the fight against the bourgeoisie have been deeply rooted in the minds of Soviet times. At the same time, even in my circle there are people who mix everything in the world when arguing — civil service with entrepreneurial activity, civil servants with JSC heads, administrative relations with corporate ones, communism with social justice, and so on. At the same time, they really want quick reforms, an economic boom, professional and honest leaders who should work for the idea:).
2. As far as I know, in the developed capitalist world, the size of income (including bonuses/premiums) of the top management of Naftogaz-level companies is approximately 600:1, compared to the income of an ordinary employee of this company. In this case, it’s not every day you win at Gazprom, which probably tried in every possible way to influence/bribe/intimidate. This is regarding the debate about the ethics of size.
3. There is an argument that the top management of Naftogaz did nothing to win the arbitration — there were the lawyers who did it, so why the bonus? It’s funny because there are 1001 ways how to “blend” a case due to inappropriate actions of the client. Without the powerful work of collecting the evidence base and building/implementing the strategy on the part of the Naftogaz team, the lawyers would not have achieved the result. Also, let’s remember who is behind Gazprom and what methods they use.
4. Even if it is considered that there was a corporate and/or administrative offense during the payment of the bonus, this does not lead to criminal charges. In my experience, NABU likes to cling to some procedural offenses and turn them into “crimes”, as well as confuse other types of legal relations with criminal ones.
5. It is not entirely clear to me why in such a case, there are no suspicions against the members of the Supervisory Board who gave the green light. Knowledge of legislation on their part is presumed.
6. I see a huge problem with NABU representatives with knowledge of the basics of economics and management and in some places, elementary financial literacy. I will not repeat how the Kobolyev case will affect the attraction of top professionals to the public sphere/reforms, as well as the demonstration that it is better to build schemes quietly. There are lots of comments on this. If we talk about the restriction measure and the amount of the bail, then for me, the first thing that stands out is the unfoundedness of the suspicion, and therefore many questions arise regarding the adequacy of its application. Although the standards of proof are low at this stage, this does not mean that the court should blindly follow the “whims” of the prosecutor. Risks of absconding, destruction, or concealment of evidence — no comments at all, given the duration of the criminal proceeding and the behavior of the suspect.

To sum it up, I don’t see any conspiracy theories in this case at this point. Rather, it stinks of some kind of primitivism and stupidity…

Serhiy Hrebenyuk, partner of Asters

The photo was taken from Sergey’s Facebook page without his permission

From the beginning, I want to make a certain caveat that I am not a lawyer in Andriy Kobolyev’s case, so I can judge only on the basis of publicly available information.

In my personal opinion, the prosecution was not sufficiently convincing in terms of the existence of a well-founded suspicion of such a serious criminal offense. And this is key for me. What is the crime? As a person who has special legal education and specializes in criminal law, it is not clear to me what the essence of the crime is. For years there was a public debate on this topic (regarding the size of the award, whether the award was small), but all government institutions that were empowered to do so did not take any action and did not see any violations. It could be civil, administrative, any case, but not criminal, as far as I’m concerned. The version of the investigation about how the cunning and insidious head of Naftogaz paid these funds to himself misled everyone, no one noticed anything — is refuted by public events, and it is absolutely obvious, as far as I am concerned.

I would move from this further. In addition, the restriction measure itself, which was chosen, raises questions. Sorry, but my perception of what I have seen from open sources is the treatment of the prosecution as a person who was either caught with a bribe of 400 million or found out about some stolen billions from a state-owned company or something like that. Many lawyers have a question: is the prosecution abusing their rights? Asking for any restriction measure is a right, not an obligation. When the prosecution has a very controversial case — how adequate is it to ask for bail of more than UAH 300 million??? What is this — they want to put a person in a pre-trial detention center and force him to plead guilty to a crime he did not commit, as in the days of the Soviet government? Seriously? Does the prosecution really think it would be fair to have a debate where they are using all their options and the suspect is in a cell? In other conditions, they are not sure that they will prove what the crime is.

Perhaps I have a purely lawyer’s view of this case, I apologize in advance for my categoricalness, but this is how I feel about the law and the principles of the criminal process. In this case, I have questions about compliance with the principle of proportionality, a fair approach and ensuring equal conditions for all participants in the criminal process. And so law enforcement agencies include their punitive mechanism already at the stage of choosing a preventive measure. The defense side must have the opportunity to prove its arguments to both the prosecutor and the court.

I am sure that enough has been written and discussed the risks — these are mandatory provisions that the prosecution must prove regarding their existence, and everyone can form their own opinion here.

As a small conclusion, I will say the following. The prosecution took on a very difficult task. In fact, the political problem that really bothered the society — whether in Ukraine, with its state of economic development, such large bonuses for the managers of state-owned companies — can be solved by means of the criminal process. It will be very difficult because the main question is whether this is the task of law enforcement agencies and there is a criminal offense. Therefore, harsh actions of the prosecution, pressure, and efforts to establish such a bond in order to imprison the opponent in the cell will be perceived as uncertainty in the legal position, a violation of the right to defense, and will not contribute to public trust in law enforcement agencies. If I were the prosecution, I would not have asked the question of a restriction measure at all, I would not have been afraid of defense arguments, and I would have behaved openly and calmly, understanding that the case is quite debatable and it seems that only the court will be able to find answers to all questions. I hope that the judicial branch of government will not give in to the pressure of the parties and will be able to ensure a fair trial of the case.

Volodymyr Sushchenko, lawyer, scientist, the first dean of the Faculty of Law of the National University of Kyiv-Mohyla Academy

This photo appearedthanks to a photo taken from Volodymyr’s FB and our artistic talent using Prisma

I consider the decision of the Appeal Chamber of the High Anti-Corruption Court to be unmotivated, groundless and wrong, including regarding the future consequences for the activity of the court as an institution and the lowering of the level of trust in the entire justice system, although the purpose of creating this specialized court was, as far as I know, the opposite. At the same time, I affirm that all of us must treat the court decision with respect and obey it without fail. I wish the lawyers and Kobolyev success in protecting their rights and freedoms, relying on the principles and laws of the justice system that we have today.

I decided to use this example to speak about several problematic issues of the functioning of our legal system in the field of criminal justice, including in the field of combating corruption:

A. Lack of public trust in the activities of state bodies operating in the criminal justice system and absolute lack of understanding of the purpose and tasks of the pre-trial investigation, which for some reason is called “bringing a person to criminal responsibility” instead of “criminal-procedural prosecution of a person”. In this particular case, NABU, SAPO and High Anti-Corruption Court are competing with each other for this very “trust” through, first of all, PR campaigns regarding their anti-corruption activities.

B. Genetically and traditionally extremely low level of legal culture and its basic component — legal consciousness — in our society and in a significant part of our legal community. To this, it is necessary to add the usual human envy and the desire to punish the guilty immediately, preferably on the second day after the discovery of the fact of misconduct. Prosecutors and judges play on these moods to their advantage, lawyers try to restrain them in various ways and at the opportunity to do everything possible and impossible so that even the guilty person is still recognized as innocent.

C. I do not understand how the official receipt of a monetary award by the head of the organization was included in the category of “criminal offenses” because the corresponding article, according to which the intermediate criminal-legal qualification of the event took place, does not contain any hints of such an assessment. If the procedures for receiving the bonus were violated, its amount was incorrectly calculated, or the person did not pay the tax for the corresponding amount, it is much easier for the prosecutor’s office to apply to the court with a claim for compensation of the corresponding losses to the budget with the accrual of all possible fines and to return the corresponding amounts to the budget. If, at the same time, some other real criminal offenses were committed (deception, falsification of documents, etc.), then those who committed them must be punished for these actions. If there were no violations of the established rules for receiving the award, then NABU and SAPO should prepare an analysis of the causes of the conditions that were created by the relevant bodies and their officials with the possibility of receiving excessively disproportionate monetary payments from the state budget and provide a submission to the Government to bring them to certain criteria.

Frankly speaking, I do not really understand the moral and psychological qualities of people who are able to receive from the state budget, which is formed at the expense of taxes of fellow citizens, sums of money that are in no way correlated with the standard of living of the vast majority of the people.

Yes, I contributed with my knowledge and intellect to ensure that significant funds were returned to the treasury, but do I have the moral right to receive payments that are hundreds of times higher than the standard of living of people in the country?

I finished reading two books, two US federal prosecutors and one FBI director: James Comey’s A Higher Loyalty and Preet Bharara’s Doing Justice. There was a desire to suggest to all competition commissions that carry out selection for the positions of investigators/detectives, prosecutors, and judges in our country to conduct tests and interviews with candidates for these positions based on these books (instead of tests for “knowledge of the law” and interviews for “integrity”.

The judge, who asked to remain anonymous (may it be on his conscience)

Picture of Ludwig Wittgenstein. According to the Stanford Encyclopedia of Philosophy, Ludwig Wittgenstein is the most prominent philosopher of the twentieth century and one of the founders of analytical philosophy.

The Kobolyev case or something from Wittgenstein’s treatise

(a) The appeal decision of the High Anti-Corruption Court is a draft conviction (this is the impression from the text read by the judge’s eye)

(b) Appeal: “it is not possible to analyze the case materials on the merits at the stage of selecting a pre-trial restriction”, further on the text of the appeal: analyzes the case materials on the merits (instructing the first instance “how it should be”, does not give reasonable answers to the basic questions of choosing a restriction measure — what are the risks, justification of the bail amount, alternative restriction measures) and, as a result, decides the case on its merits (it is obvious to the judge).

(c) As their colleague, I am sure that the HACC judges (most of them) do not understand the public indignation and the wave of hate against them. This happened because their understanding of justice came into violent conflict with common sense and has lost.

(d) There are three main reasons for this:

1. chain of reforms in the form of “activists -> email from the United States ambassador -> money/support/pressure -> quickly passed (mostly poor quality) law -> absolute inability of activists to have a dialogue with anyone but their reflection in the mirror -> the result of the reform, the success of which is measured by Facebook posts;
2. the NABU/SAPO/HACC vertical, with the help of activists, has achieved some success in creating an alternative legal reality in which they exist for themselves and for each other;
3. HACC is so used to the approving applause of activists (from time to time, questions arise, but not for long) that he has become addicted to this needle and is no longer able to make a decision “against society” (isolated cases like Judge Fedorov’s do not affect the overall picture yet);

(e) Conclusions:

1. There is no universal recipe for success (read — reforms).
2. Everyone makes mistakes (activists no less than inveterate corruptors), but no one wants to admit them.
3. Ukrainian society will be searching for an answer to the question of what justice is for a long time and in agony.
4. Kobolyev will lose to the HACC.

(f) Disclaimer: this is an extremely serious text in which there is no irony, post-irony, and any other kinds and types of irony.

Live with it.

Taras Poshyvaniuk, partner of EQUITY, one of Andriy Kobolyev’s defenders

My comment on Andrii Sliusar’s publication should be qualified as the position of a direct participant in the process, as I am in the team of lawyers who defend Andriy Kobolev in court.

In the previous comments of colleagues, the question was raised: why the defense did not indicate to the court that Andriy Kobolev is ready to pay the bail in the “Х” amount? However, in my opinion, such a position of the suspect is inadmissible because precisely by such actions, he, in fact, automatically recognizes the suspicion as justified, in other words, we would simply make the work of the prosecutor in court easier. Then questions may arise: and what was the purpose of inviting guarantors, which is also a certain agreement on a precautionary measure, only of a different kind? The answer is simple — the guarantors themselves expressed their desire to support Andrii; it is their desire and will!

Next, I will give my modest comment on the decision of the Appeal chamber of the HACC, by which a restriction measure was chosen for Kobolyev in the form of bail in the amount of 229 million hryvnias.

First, some conclusions contained in the above-mentioned decision are directly opposite to others.

The panel of judges claims that the investigating judge, during the consideration of the petition, resorted to assessing the appropriateness of the sufficiency and admissibility of the evidence, which clearly went beyond the scope of consideration of the petition, but also violated the general principles of criminal proceedings (such as adversarial and dispositive). At the same time, on another sheet of the judge’s decision, the judge concludes that the judge of the first instance did not evaluate any of the evidence of the prosecution, neither individually nor in their entirety. How to fulfill both requirements at the same time remains a mystery to me.

Secondly, justifying the need to apply for bail, they actually started collecting evidence that was not in the materials of the criminal petition. In section 4.3. rulings, the court refers to publications from the website of NJSC “Naftogaz of Ukraine” regarding “Corporate Governance Reform” and describes the content of this publication. However, neither the prosecutors nor the defense provided such evidence.

Thirdly, in describing the unjustified salaries of managers of Ukrainian companies in the oil and gas sector, information and clear statistical data are provided, which are not at all in the case materials, for example, regarding a comparison of the level of salaries of managers of companies in the energy markets of Libya, Poland, Pakistan, the Czech Republic, Germany and Lithuania. One can only wonder where the court got such data from.

It is also worth noting the fact that the court, in substantiating Andriy Kobolyev’s solvency, referred to the presence of a sufficiently high property status of his wife, indicating that she has two expensive cars in her possession, although these cars were sold by her long before the suspicion was served on Andriy.

And finally, the withdrawal of the passport of a citizen of Ukraine as one of the additional duties incumbent on Andriy. Please note that not only passports for traveling abroad but also the passport of a citizen of Ukraine must be submitted to the State Immigration Service! This fact alone is indicative.

Well, and at the very end)))) the appeals chamber of the HACC posted on its own website (I pay attention to the wording “in connection with wide public publicity”) the full text of the court decision, which could be copied easily, with all personal data of not only the suspect but other persons, such as his wife. In fairness to the council, it should be noted that after raising an uproar in social networks, such a defect was corrected.

Here is such an interesting and, at the same time, sad situation.

Kateryna Hupalo, partner of Arzinger

Photo, well, you understand where it’s from (from Katya’s FB)

What resonates with me in this case as an outside observer?

1. “the court will figure it out!”

This thesis has already been, for a long time, quite annoying for defense lawyers. What is hidden behind this thesis?

And there are investigating judges who believe that at the stage of choosing a restriction measure, it is not necessary to delve deeply into the validity of the suspicion, and that is the norm. And it may be conceptually correct — well, the investigating judge should not turn the consideration of procedural motions into the consideration of the merits of the case. However, the investigation still has time to investigate, gather evidence, and may even decide that the case should be closed; all kinds of things happen.

But in practice, this “court will figure it out” turns into a great temptation for law enforcement officers to write an essay on a free topic instead of suspicion. I am sure that most of my colleagues have read more than one such exciting adventure novel by the authorship of law enforcement agencies.

And here they forget about another seemingly obvious thing — about the suspect himself. For him, “the court will figure it out” means lost years. Until there will be a trial on the merits and until a verdict is handed down. And it is even more fortunate if he is acquitted because statistically, the number of acquittals in our country fluctuates around one percent from year to year. Not very encouraging, let’s agree.

For law enforcement officers, their work is routine. Suspicion is the same everyday formality. It was interesting to watch the lawyers — former prosecutors, who, on the other hand, saw a stormy reaction and hour-long discussions with the participation of the top management of the companies and the head office of just a request in accordance with Art. 93 of the Criminal Procedural Code of Ukraine. And what emotions does a person get suspicious of?

2. low hanging fruit VS systemic fight against corruption?

If you remove Kobolyev’s last name and, in fact, the amount of the bonus, from Kobolyev’s case, there will be a fresh and not-so-interesting plot (here I am in no way belittling the importance of the case itself and the work of colleagues from the defense side). For specialists in criminal law, the answer to the question of whether the suspect’s actions are part of a crime, based on the introductory information, is quite obvious. A lot has already been written about this.

But something else is important here. I would expect and expect the anti-corruption infrastructure to work on really complex cases, on systemic manifestations of corruption. And not by trying to “make” statistics in the pursuit of medals.

For example, not so long ago, the temporary investigative commission analyzed systemic extortions and schemes at customs, which probably have a centralized vertical and apparently involved complex financial instruments for obtaining/accumulating illegal benefits (including using cryptocurrency, etc.). But such cases are oh so difficult to investigate, so many covert investigative search actions need to be conducted, agencies must be involved, resources must be spent… It is easier to cling to the procedural, debatable aspects of public activity and make a mega-case out of it. This is a low hanging fruit in the work of NABU, which has no significant positive effect on society.

3. what about the collected bail?

It is known from public information that bail has been partially paid. The SAPO publicly declares that the decision of the investigating judge has not been implemented, and they followed the change of the restriction measure. If a miracle does not happen and Koboylev does not make to pay the full amount of the bail before the investigating judge makes a decision, then I do not think that we should expect a change in the position of the SAPO regarding the fact that the decision has not been implemented.

And now about the interesting thing. The Criminal Procedure Code of Ukraine stipulates that in case of non-fulfillment of the obligation by the pledger, the bail is turned over to the state’s income… Then what about the partially paid bail in this case?

✍️ Andrii Siusar