Holosiivskiy District Court of Kiev continues to hear the case of illicit enrichment of the former military prosecutor of the Anti-Terrorist Operation (ATO) forces Kostiantyn Kulyk, despite the fact that the article of which he is accused has been declared unconstitutional.
Details: In the previous court sessions the prosecutor’s motion to dismiss Kulyk case was twice rejected. According to the court, the prosecutor addressed the grounds on which the case could be closed at the preliminary hearing only.
The judges discussed the conflict in legislation and advised the prosecutor to adjust his yposition. Pursuant to the Criminal Procedural Code of Ukraine, the court is allowed to close the case during a trial, if the prosecutor drops the charge. But the Anti-Corruption Prosecutor Office refuses to give its consent.
At a hearing on 29th of July, prosecutors have included documents on the property acquisition by mother of Kulyk’s children, Irina Nemets, in 2014-2015. They have also included insurance documents, in which Ms. Nemets is indicated as married. The prosecutor said that it was exactly about relationship between Kulyk, although they were never officially married.
The lawyers argued that the evidence was inappropriate, in particular, because it involved the acquisition of objects that did not incriminate Kulyk. In addition, the defense believes that the evidence could be considered in a summary manner so that the prosecutor would file it in one package, since there is no credible path forward in court.
The picture would not be complete without mentioning the fact that, despite all the charges and trials, Kostiantyn Kulyk still manages to remain at senior positions in the law enforcement authorities. This is evidenced by the order published on 19th of July 2019 on the GPU website.
The Prosecutor General’s Office, represented by Yuriy Lutsenko, at least for now the Prosecutor General of Ukraine, decided to tone down the situation by simply demoting Kulyk to the Head of the Fourth Unit of the Second Department of the Pre-trial Investigation of Criminal Offences Organizational and Procedural Management Office. Formerly Kulyk was a Deputy Head of the International Legal Cooperation Department at the Prosecutor General’s Office and Ex-head of the Department’s Prosecution Unit.
It should be mentioned that a few years earlier Yuriy Lutsenko said that he wouldn’t take up the cudgels for Kulyk, if the anti-corruption authorities prove his guilt.
Apparently, with this approach, old prosecutor regime and the Prosecutor General itself trembling in the balance is trying by all means to have cronies in the system, before the arrival of new ones, under the cover of statements about their effectiveness.
One has also to keep in mind that during the inauguration, President of Ukraine Volodymyr Zelenskiy called on parliament to dismiss the Head of the Security Service of Ukraine, the Prosecutor General and the Minister of Defense and gave two months for its implementation. Since then, two months have passed and seems like the old regime is seeking to catch up at the last feeble hope.
Kulyk’s proceedings should be submitted to the Supreme Anti-Corruption Court, which is scheduled to start in the fall of 2019. It will then be considered from the outset and prosecutors will be able to request its closure at the preliminary hearing.
Let`s recall some facts concerned:
- NABU started the investigation into possible illicit enrichment by Kulyk on December 25, 2015.
- The indictment was sent to the Holosiivskiy District Court of Kyiv for consideration on the merits on October 21, 2016.
- Kulyk is accused of spending more than his income and hiding new expensive acquisitions.
- The Constitutional Court declared unconstitutional Article 368-2 of the Criminal Code, which provides punishment for officials for illegal enrichment on February 26, 2019
- The Court found that the provisions of the article did not comply with the rule of law and the assumption of innocence. In particular, the article on illegal enrichment allegedly obliges the suspect to prove legitimacy of his/her property.
- Criminal liability for illegal enrichment was introduced in 2015. It was one of the EU requirements to implement Visa Liberalization Action Plan, as well as one of Ukraine’s commitments to the IMF, enshrined in the memorandum.