The Committee on Rules of Parliamentary Procedure and Support to Work of The Verkhovna Rada of Ukraine
to the Prosecutor’s Citation on granting consent to bringing people's deputy of Ukraine
Vadym Vladyslavovych Novynskyi to criminal liability
2) The Citation does not contain any information about the results of the investigation and consideration by the court of the criminal offenses, of which I am an accomplice, according to the conclusion of the Prosecutor General's Office, without which it is impossible to make conclusion that there are any valid elements of crimes I am charged with, or my participation in them;
3) The conclusion from the Citation’s initiator about my complicity in the crime (if to presume that the crime really took place) is in direct contradiction to the information stated in the Citation;
4) The Citation contains a reference to a list of evidence that allegedly proves the fact of commission of the crime and my involvement in the commission, but does not contain any information regarding what particular circumstances prove this evidence (these are only protocols of interrogations of witnesses) and how they relate to me;
5) Not a single document has been added to the Citation from the criminal case file, which makes it impossible to conclude that the evidence is sufficient and was obtained legally;
6) The Citation does not contain any concrete facts and evidence supporting the fact that I committed a socially dangerous act defined by the Criminal Code of Ukraine;
7) Everything set out in the Citation is not sufficient for making a decision to grant consent to bringing me to criminal liability;
8) The Citation does not comply with the basic requirements of the Ukrainian legislation and international law standards, that is, it is illegal;
9) The Citation does not comply with the requirements of Part 3 of Art. 218 of the Rules of Procedure of the Verkhovna Rada of Ukraine, adopted by the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" dated 10 February 2010, #1861-VI and, in accordance with Part 4 of Art. 220 of the same Law, is subject to return to the Prosecutor General’s Office of Ukraine.
To justify these conclusions, I would like to provide the following reasoning:
1. Referring the actual circumstances set forth in the Citation by the Prosecutor General's Office of Ukraine as the circumstances of the criminal offense attributed to me
Nagirnyak B.N., a prosecutor of the second department of the Procedural Management Office for criminal proceedings of the Investigation Department for Investigation of Crimes Committed by Criminal Organizations, the Prosecutor General's Office of Ukraine, when describing the circumstances of the criminal offense I allegedly committed, appeals to three meetings and phone calls relating to the same person – Drabinko A.N.
Considering this, I find it necessary to explain why and under what circumstances these meetings and telephone conversations actually took place.
1.1. Regarding the circumstances of the application of security measures by the internal affairs (law enforcement) agencies of Ukraine towards Drabinko A.N.
As stems from the Citation, Drabinko A.N. was allegedly illegally deprived of liberty during the period from 17 June 2013 to 13 December 2013 by providing him with close protection under criminal case of 15 June 2013, #12013110060005375, on the abduction, on 14 June 2013, of the Mother Superior of the Sviato-Pokrovskyi Convent Kalisphenia (Shamailo T.T.) and her assistant Naumenko K.I from the territory of the Kiev-Pechersk Lavra.
I myself, in the period from June to August 2013, knew about a possible involvement of Drabinko A.N. in the abduction of the nuns of the Sviato-Pokrovskyi Monastery only in general terms from reports in mass media. At that time, these events were covered by press quite widely, because it was a high-profile scandal on the eve of the celebration of the 1025th anniversary of the Baptism of Rus.
On 24 August 2013, I was addressed by the Primate of the Ukrainian Orthodox Church Metropolitan of Kiev and all Ukraine Vladimir (Sabodan V.M.), whom I had known from 1998 and whom I treated with deep respect.
The essence of the address of the late His Beatitude was to assist to Drabinko A.N., who was involved in the abduction of the abbess of the Sviato-Pokrovskyi Convent Kalisphenia and her assistant. Having carefully listened to the request, I refused, because the issue raised was in the competence of law enforcement agencies and I did not have any legal grounds to interfere with the pre-trial investigation they were conducting. Nevertheless, His Beatitude Vladimir insisted on my best assistance to Drabinko A.N., who was his personal secretary, and blessed me for this. The Blessing of His Beatitude Vladimir for me as a churched person meant a commitment to fulfill his request within the framework of the effective legislation.
At that time, as I have already said, I was quite superficially familiar with the circumstances of the mentioned case about the abduction of nuns. However, in view of the attempt of the Prosecutor General’s Office to charge me with crimes that I did not commit, I was forced to study all available materials on this case.
From various publications in mass media and published documents on the criminal case, as well as from explanations of those who directly participated in the investigation of the abduction of nuns, it follows that Drabinko A.N. and Bout S.A., who were on friendly terms, in 2013 tried to return funds belonging to them and to other persons (different amounts are mentioned – from 3.6 million to 42 million US dollars), which they had earlier given to Panko N.M. to gain profit. The latter was a parishioner of the Sviato-Pokrovskyi Monastery and, according to some unconfirmed data, allegedly hid the money there. In search of the money, Bout S.A., with the direct participation of Drabinko A.N., organized the abduction of the abbess of the Kalisphenia Monastery and her assistant, committed by so-called athletes/sportsmen, with subsequent deprivation of liberty for a period of three days (the circumstances and incomplete investigation of this criminal case are described in more detail in the People’s Deputy’s (MP’s) Address to the Prosecutor General of Ukraine of 14 November 2016 #1611141).
Drabinko A.N. was repeatedly interrogated as a witness in the mentioned criminal case and provided evidence denouncing him and his accomplices.
On 18 June 2013, during a court hearing with the participation of Bout S.A. and his defense counsel, Drabinko A.A. gave his testimony to the investigating judge of the Pechersk District Court of Kiev that he and Bout S.A. jointly planned the abduction of Shamaylo T.T. and Naumenko K.I. for their further restraint, and also exposed Bout S.A. as the organizer of the crime.
According to the explanations from Lenko M.A., who, as deputy prosecutor of Kiev, supervised the investigation in criminal case #12013110060005375, and Kuzmenko A.P., the procedural manager in this crime case, Drabinko A. N. was afraid of revenge from Bout S.A. and his people for exposing the latter, and therefore submitted a personal application to the law enforcement agencies to provide him, as a witness, with security. On the basis of this application, by order of the investigator, he received close protection, which was provided by officers of the special division of the judicial militia, the "Grifon”.
In addition, during the above-mentioned court hearing, Drabinko A.N. reported the facts of threats to his life from creditors of Panko N.M.
Considering these circumstances, the statement of the Prosecutor General's Office of Ukraine that the investigator in criminal case #12013110060005375, without real threats of illegal encroachment on life and health of Drabinko A.N. and in the absence of any real grounds for application of security measures to him, made a ruling that they should be used, is seen as unfounded.
According to experts, in the situation with Drabinko A.N. there is a very fine line between the illegal deprivation of liberty and the right for a temporary restriction of freedom arising in connection with the provision of personal security.
The facts known to me that should be part of criminal case #12013110060005375 indicate that the application of security measures in respect of Drabinko A.N. is seen more truthful as in accordance to the Law of Ukraine On Ensuring Security of the Persons who Participate in Criminal Legal Proceedings as to a person who facilitates identification or solution of a criminal offense. The reason for that is known to be the personal statement of Drabinko A.N. as a participant in criminal proceedings, and the basis for taking security measures was the information that indicated a real threat to life and health of Drabinko A.N., which he pointed out personally in his application and during interrogation at the court hearing.
Drabinko A.N. was aware of the procedure for application of security measures and their cancellation, established by the mentioned Law, because he personally wrote a respective application. The reason for their cancellation in accordance with Art. 21 of the Law was the application from Drabinko A.N. as a participant in criminal proceedings to the investigator, who was in charge of the criminal case.
After such an application was filed by Drabinko A.N. on 22 February 2014, these measures were immediately abolished by the decision of the investigator.
Why Drabinko A.N did not file such an application to the investigator before, and if he did so, what were the results of its consideration, should be determined by the Prosecutor General's Office during the pre-trial investigation.
Since there is no answer to this question in the Citation, I would ask the Committee on Rules of Parliamentary Procedure and Support to Work of The Verkhovna Rada of Ukraine to reclaim the relevant files from the Prosecutor General's Office of Ukraine.
1.2. On the circumstances of my meeting with Yanukovich V.F., His Beatitude Vladimir and Drabinko A.N. on 5 September 2013.
As I have come to know, at the request of Drabinko A.N. regarding a suitable way out from the case of the abduction of nuns, His Beatitude Vladimir applied for help not only to me, but also to a number of other persons, including the former Ukrainian President Viktor Yanukovich.
In early September 2013, I was indeed present in the premises of the Administration of the President of Ukraine (APU), where I was invited to a meeting with Yanukovich V.F. after I took the oath of the People's Deputy of Ukraine.
I did not participate in the conversation of the Primate of the UOC Metropolitan of Kiev and all Ukraine with the former President of Ukraine in the premises of APU. I appeared only at its end, when Yanukovich V.F. promised to His Beatitude Vladimir to come to his residence in Feofaniya in the evening for a meeting at which Drabinko A.N. would be present "to look into the eyes of Alexander (Drabinko)." After the departure of His Beatitude, Yanukovich V.F. showed me a letter requesting to help solve the difficult situation related to the participation of Drabinko A.N. in the case of the abduction of nuns of the Sviato-Pokrovskyi Monastery. I remember that the letter began with the words: "... this is, perhaps, my last request to you in this life."
Later on the same day, in the evening, a meeting took place in the suburban residence of Metropolitan of Kiev and all Ukraine Vladimir (15 Akademika Lebedeva Street, Kiev) with the participation of His Beatitude, Yanukovich V.F., me and Drabinko A.N. The latter, during the meeting in the private office of Metropolitan Vladimir, turned to Yanukovich V.F. with a request like: "If I did something like that in my youth and because of a lack of experience, then please forgive me and help me not to defame my dignity and so that no shadow would fall on the Church." To which Yanukovich V.F. answered something about mistakes of youth and noted that since His Beatitude asked for help, he would help. After that Yanukovich V.F. suggested Drabinko A.N. to turn to me, Novynskyi V.V., in case of further requests, because I was more reachable for communication than he was and, given my attitude to the church and due to various possibilities, could help him solve his issues. That is exactly what he said: "Turn to Vadym (Novynskyi) for any help."
I want to emphasize that at these meetings the issue of the procedure of granting permission for transfer of Drabinko A.N., any conditions that in one way or another related to the dismissal of His Beatitude from the post of Primate of the Ukrainian Orthodox Church, the appointment to this post of other persons, were neither discussed, nor even raised.
It is not clear to me on what grounds the prosecutor of the Prosecutor General's Office of Ukraine Nagirnyak B.N. interprets this meeting as the fact that "Yanukovich V.F. laid the responsibility for further illegal detention of Drabinko A.N. on Novynskyi V.V., to which the latter agreed".
Except Drabinko A.N. and me, information about the circumstances of this meeting can only be given by another participant – Yanukovich V.F., since His Beatitude Vladimir, unfortunately, died on 5 July 2014.
If the pre-trial investigation body, in criminal case #42014000000000416 dated 21 May 2014, has got Viktor Yanukovich's testimony confirming what is stated in the Citation, I consider it necessary for the Committee on Rules of Parliamentary Procedure and Support to Work of The Verkhovna Rada of Ukraine to get acquainted with it for evaluation as evidence of my alleged illegal actions. Also, if the Prosecutor General's Office has other evidence – audio or video recordings of this conversation, evidence obtained as a result of the covert investigative (searching) actions, etc. – I ask the Committee to get acquainted with them in order to determine the sufficiency and legitimacy of obtaining evidence of me allegedly carrying out the criminal tasks incriminated to me by the prosecutor Nagirnyak B.N.
Otherwise, I have every reason to consider it slander of me and a deliberately false statement about the commission of crime, because, despite repeated interrogations in April and May 2014, the testimony of the victim Drabinko A.N. against me was provided by him only after his verbal statement of a criminal offense on 28 July 2014, that is, after the death of His Beatitude Vladimir.
1.3. As for my telephone communications with the former chief of the Main Department of the Ministry of Internal Affairs of Ukraine in Kiev, Koryak V.V.
I did have repeated phone contacts with the then chief of the Kiev militia Koryak V.V. Did they all relate to Drabinko A.N. only and were a reaction to his appeal – there is no reason to assert.
In the period from September to November 2013 inclusive, Drabinko A.N., himself or through his assistants, indeed addressed me several times on various issues, came to my office, etc. Sometimes his requests were related to the possibility of traveling to places where the close protection refused to accompany him for various security reasons, incl. - outside the city of Kiev - to Rovno region, which created additional complications and expenditures for law enforcement officers. In these cases Drabinko A.N. asked me to address one of the militia chiefs. Responding to his requests, I sometimes indeed appealed to Koryak V.V. by due process of law, relaying the requests of Drabinko A.N. – a person who was protected by the militia officials as a party to criminal proceedings.
I would like to emphasize that during this period I personally communicated, more than once, with Drabinko A.N. in the territory of the Kiev-Pechersk Lavra, during church service, in the premises of my reception room as a people's deputy in Kiev at Igorevskaya Street, 7A, as well as by phone, but he never reported that someone was forcibly holding him.
In addition, according to the statement of Anatoliy Petrovich Shmatko, who, from 29 March 2010, to 25 December 2014, was the commander of the special battalion of the judicial militia "Grifon" of the Main Department of the Ministry of Internal Affairs of Ukraine in Kiev, during the implementation of protective measures for Drabinko A.N. he personally communicated with the latter, and no complaints were ever received from him. On the contrary, he was very pleased with the application of security measures on him, because he was concerned about the threat to his life in connection with criminal case entered into the Registry of Pre-Trial Investigations under ref. #12013110060005375. Drabinko A.N. was very grateful to militia for the provided protection. During the implementation of security measures, he conducted his services in the church without obstruction, communicated with others freely, gave them advice. Restrictions were imposed only on the use of his personal phone, based on security measures (the billing information of a mobile subscriber can give away his location with sufficient accuracy). At the same time, he freely made calls from other telephones without any supervision or interference. He understood and agreed that it was necessary to protect his interests.
According to Shmatko A.P., Drabinko A.N. freely used the services of lawyers in the specified period, he knew well the procedure for both the application and the cancellation of security measures.
The words of Shmatko A.P. are confirmed by the statement of Drabinko A.N. himself on the removal of security measures dated 22 February 2014, in which he himself wrote "Thank you" at the end.
Due to these circumstances, the charges against me, set out in the Citation, that I "repeatedly gave Koryak V.V. instructions by telephone for the possibility or prohibition to move Drabinko A.N. from the territory of the bathhouse complex "Vyshgorod" for the performance of church services by him, by which I factually limited his rights and freedoms" seem unfounded and groundless.
At the same time, the isolation of Drabinko A.N. from His Beatitude Vladimir, if at all used to be, had a rather unusual nature.
Thus, in the period of allegedly illegal deprivation of liberty – from June to December 2013 – Drabinko A.N. quite often attended the church services and other events near the Metropolitan of Kiev and all Ukraine Vladimir.
In particular, during the celebration of the 1025th anniversary of the Baptism of Rus on 27-28 July 2013, Drabinko A.N. was near to His Beatitude Vladimir.
In the period of the so-called illegal deprivation of liberty and the alleged isolation from the Primate of the UOC by the militia, Drabinko A.N. often lived in the out-of-town residence of the Metropolitan of Kiev and all Ukraine Vladimir (15 Akademika Lebedeva Street, Kiev), which he himself repeatedly recalled in his interviews.
Thus, in an interview to the internet media resource "Ukrainskaya Pravda", Drabinko A.N. quotes his diary, which he allegedly kept during restraint: "... 2 November 2013, I spent the whole evening in Feofaniya in the office. From time to time the Metropolitan got up, or rather was raised, so that he would not lie long. Called me several times. I would enter and ask: "What happened?" He says: "Nothing, I just want to know that you are here".
From 22 to 24,November 2013 Drabinko A.N. was close to His Beatitude Metropolitan Vladimir, who at that time was receiving congratulations on his Birthday.
Just at that time, on 23 November 2013, after the elevation of Drabinko A.N. to Metropolitans, in the conversation with His Beatitude Vladimir I informed the latter that I would not respond to any more requests of Drabinko A.N. for personal reasons. After insistence of His Beatitude Vladimir, I said: "Your Beatitude, please forgive me, but I did not kidnap the nuns!".
If the pre-trial investigation agencies own direct evidence of my prohibition on movement of Drabinko A.N. to any places (except, of course, the testimony of Drabinko A.N.), I would ask the Committee on Rules of Parliamentary Procedure and Support to Work of The Verkhovna Rada of Ukraine to reclaim them for examination and assessment on the presence or absence of facts and circumstances that are relevant for the criminal proceedings.
1.4. Regarding letters about the allegedly illegal restraint of Drabinko A.N.
The Citation says: "Novynskyi Vadim Vladislavovich`s guilt in the commission of a criminal offense provided in Part 5 of Art. 27, Part 2 of Art. 146 and Part 5 of Art. 27, Part 1 of Art. 365 of the Criminal Code of Ukraine, is objectively and convincingly confirmed by letters from Metropolitan Vladimir to Yanukovich V.F., Pshonka V.P. and Zakharchenko V.Yu.”
Based on the text of the Citation, this relates to the letters of Metropolitan of Kiev and all Ukraine Vladimir to the President of Ukraine Yanukovich V.F. of 29 August 2013, to the Prosecutor General of Ukraine Pshonka V.P. of 4 December 2013, #2117, to the Minister of Internal Affairs of Ukraine Zakharchenko V.Yu. of 2 December 2013, 6 December 2013, #1295, 10 December 2013, #1299.
As far as I know, in the materials of the criminal case file there is an official response from the head of the Chancellery of the Kiev Metropolitanate of the Ukrainian Orthodox Church against the inquiry of the investigator of the Prosecutor General's Office that in accordance with the registration of outgoing correspondence, there were no appeals of the Primate of the Ukrainian Orthodox Church His Beatitude Metropolitan Vladimir of Kiev and all Ukraine to the ex-President of Ukraine Viktor Yanukovich, former Prosecutor General of Ukraine Pshonka V.P. and to the Minister of Internal Affairs of Ukraine Zakharchenko V.Yu., as well as to other persons, concerning prevention of interference of representatives of public authorities into church affairs, as well as regarding cancellation of the armed guard to the Metropolitan of Pereyaslav-Khmelnitsky and Vishnevsky Alexander (Drabinko A.N.).
At the same time, registration numbers #1295 and #1299 of the Chancellery of the Kiev Metropolitanate of the Ukrainian Orthodox Church have been assigned to other outgoing correspondence, not related to the mentioned issues, which was registered and sent out much earlier than December 2013, namely:
- #1299 stands for the Letter to the President of Ukraine of 3 July 2013 "About the celebrations dedicated to the 400th anniversary of the founding of the Mgarsky monastery";
- #1295 stands for a certificate of 2 July 2013, issued to Shukalo Roman Vasilievich.
In the process of considering the issue of compliance of the Citation with the requirements of Art. 220 of the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" of 10 February 2010, #1861-VI, I would ask the Committee of the Verkhovna Rada of Ukraine to do the following:
1) to request the mentioned documents from the Prosecutor General’s Office of Ukraine and the official response of the authorized person of the UOC;
2) to receive information from the investigators of the Prosecutor General’s Office of Ukraine about whether expert investigations have been carried out in the criminal proceedings for the authenticity of these letters, and whether the incoming correspondence at the Administration of the President of Ukraine, the Prosecutor General's Office of Ukraine and the Ministry of Internal Affairs of Ukraine was checked to establish registration of letters from the Primate of the UOC concerning prevention of interference of representatives of public authorities in church affairs, as well as regarding the cancellation of the armed guard to the Metropolitan Pereyaslav-Khmelnitsky and Vishnevsky Alexander (Drabinko A.N.).
At the same time, I want to draw your attention to the obvious inconsistencies in the testimony and publications of Drabinko A.N. concerning the alleged deprivation of his freedom.
Thus, on 27 October 2016, in the so-called "Live Journal of Metropolitan Alexander Drabinko" (http://ol-drabinko.livejournal.com) in the Internet, Drabinko A.N. laid out his Report of 14 December 2013 to His Beatitude Vladimir on restriction of his freedom and a photocopy of a letter from the Metropolitan of Kiev and all Ukraine Vladimir of 10 December 2013, #1299 to the Minister of Internal Affairs of Ukraine Zakharchenko V.Yu. with a request to resolve this issue.
Why the Report, on the basis of which the letter to the Ministry of Internal Affairs was drafted, is dated later than the mentioned letter, is a question that should have been put to Drabinko A.N. by the investigators of the Prosecutor General's Office of Ukraine, whose Citation states that Drabinko A.N. received "the possibility of free movement on 13 December 2013”.
It turns out that on 13 December 2013, Drabinko A.N. had already got freedom, and the next day - on 14 December 2013, he addressed a report regarding his restriction to His Beatitude Vladimir, who, in his turn, as follows from the photocopies provided by Drabinko A.N., had signed the letter on 10 December 2013, responding to the report dated four days later?!
The foregoing circumstances cast doubt on the reliability/authenticity of the documents provided to the pre-trial investigation agency to confirm the testimony of Drabinko A.N. concerning his illegal detention and interference of representatives of public authorities in church affairs.
1.5. Concerning the conversation that allegedly took place on 6 September 2013 between me, Metropolitan Anthony (Pakanich I.I.), Zhigulin S.M., Derkach A.L. and Drabinko A.N.
Meetings in this format, in various circumstances, were taking place repeatedly throughout 2013, but they never raised the topic of removal from office of the Primate of the UOC, His Beatitude Vladimir, or fulfillment by me of any tasks from Yanukovich V.F. regarding appointment of certain persons to the church office.
The statement below that is quoted in the Citation, which can be considered as a quotation: "... there is only one way to resolve the situation, namely: His Beatitude Vladimir retires to rest and he is granted certain titles and privileges; The Council elects the new Primate of the UOC, Metropolitan Anthony (Pakanich I.I.); Drabinko A.N. leaves the country for six months, and after his return his official destiny will be resolved by a new church leadership ", was never used by me.
The Citation does not contain a reference to where this quotation came from: either special means were used as part of the so-called covert investigating work and this is a printout of a recorded conversation, or somebody recorded the conversation and provided the device with a record to the investigation.
In any case, such a conversation, even if it happened, cannot confirm the version of the Prosecutor General's Office about my participation in the illegal deprivation of liberty of Drabinko A.N. in June 2013 or assistance in his restraint from August to December 2013 (it is this period that is incriminated to me in the Citation).
There are no grounds for statements about my alleged participation in the exertion, by any means, of pressure on the Metropolitan of Kiev and all Ukraine Vladimir (Sabodan V.M.) with the purpose of his retirement and election of Pakanich I.I. to his post.
I do not understand how I, a secular person, with the aim of electing the Metropolitan "necessary for those in power", would have been able to influence the decision of about 80 bishops who, according to the Charter "On the Administration of the Ukrainian Orthodox Church," elect the Primate at the Council of Bishops?!
According to the Clarification of the Synodal Information and Educational Department of the UOC of 13 September 2016, "deep concern arises from the Prosecutor Office’s attempts to investigate the circumstances of the last years of His Beatitude Metropolitan Vladimir as the head of the UOC. After all, the grounds for this have never been officially voiced neither by the deceased His Beatitude himself, nor by those who have been delegated the rights to represent the interests of the UOC in government bodies.
The circumstances, under which these investigative actions were conducted, which appeared in mass media, give grounds to talk about attempts to distort the idea of the activity of His Beatitude Metropolitan Vladimir as the head of the UOC by speculating on the physical condition of the deceased Bishop, slander and utter gossip.
As for the formal removal of His Beatitude Metropolitan Vladimir from direct participation in the administration of the Church, it should be recalled that it occurred on 24 February 2014, according to the decision of the Holy Synod of the UOC, which considered the report of His Eminence Metropolitan Pereyaslav-Khmelnitsky and Vishnevsky Alexander (Drabinko A.N.), who was at that time responsible for the treatment of Metropolitan Vladimir. In his report, Metropolitan Alexander (Drabinko A.N.) detailed the situation with the health of the Primate and informed the Holy Synod that there was no opportunity for its restoration, which resulted in the election of the Locum Tenens of the Kiev Department of the Ukrainian Orthodox Church.
As for the use of such expressions as a "watcher" over the church in the Citation, I consider it absolutely inacceptable for responsible employees of the Prosecutor General's Office of Ukraine, since such a concept has no legal definition and is used, as a rule, by representatives of criminal environment.
The fact that I obtained the citizenship of Ukraine, as well as the trip of Bishop Anthony and Yanukovich V.F. to Athos have nothing to do with the crime.
Thus, my particular actions, which were established by the Prosecutor General's Office of Ukraine as factual circumstances of the case and took place, do not contain any signs of a criminal offense.
2. On the validity and motivation of the Citation
Under the validity and motivation of the Citation one should understand the presentation of the actual circumstances of the case and the evidence that it is the specific actions, decisions or omissions that I made that form the composition of the incriminated offences. That is, the Citation must contain concrete facts and evidence confirming the commission of a socially dangerous act by me as defined by the Criminal Code of Ukraine.
According to the requirements of paragraph 1 of Part 1 of Art. 91 of the Criminal Procedure Code of Ukraine, the event of a criminal offense (time, place, method and other circumstances of the commission of a criminal offense) is a circumstance subject to mandatory proof in criminal proceedings.
The non-establishment of mandatory signs of a criminal offense excludes the possibility of qualifying any act as a crime.
Since the Citation states that I was allegedly a member of a criminal group that by prior conspiracy, by exceeding their official powers, committed crimes against freedom, honour and dignity of the person, the following should be clear and substantiated in the Citation:
- when, where, by whom and under what circumstances a criminal group was formed;
- when, where and under what circumstances I became aware of the intent of members of this group to commit a crime and how, in what form and under what circumstances I gave consent to the conspiracy
- when, where, and how I carried out actions that in the Citation are qualified as "complicity" in the commission of a crime, and what exactly these actions were;
- what causative-consecutive relationship exists between my actions and the damage they caused to the victim (if any).
For example, on pages 3-4 of the Citation it is stated that: "... in a place and at a time unidentified for objective reasons, but not earlier than 7 November 2011 (the date of appointment of Zakharchenko V.Yu. as the Minister of Internal Affairs of Ukraine), the former President of Ukraine Viktor Yanukovich aiming to ensure for himself a positive outcome of the presidential elections, which were due to take place in 2015, among which by removing from office the Primate of the UOC Metropolitan of Kiev and all Ukraine Vladimir (Sabodan V.M.) and the appointment to this post of Metropolitan Boryspilsky and Brovarskoy Anthony (Pakanich I.I.), who with his authority and administrative power would influence through his subordinate priests the electoral moods of parishioners of the Ukrainian Orthodox Church, entrusted the Minister of Internal Affairs of Ukraine Zakharchenko V.Yu. to collect through the departments subordinate to him compromising statements on the persons who were close to the head of the UOC - Metropolitan of Kiev and all Ukraine Vladimir (Sabodan V.M) and provide data on possible unlawful actions of these individuals.
In addition, in a place and at a time unidentified for objective reasons, the former President of Ukraine Yanukovich V.F. gave a similar task to Novynskyi V.V. as to a person with whom he had a fairly lasting friendly relationship and who was a member of the Ukrainian Orthodox Church and was on good terms with the UOC leadership. At that, the role of Novynskyi V.V. consisted in completing the criminal plan of Yanukovich V.F. concerning the removal of Metropolitan of Kiev and all Ukraine Vladimir from office with the purpose to elect to this post Pakanich I.I., who would provide a positive result for Yanukovich V.F. at the upcoming presidential election, which was to be held in 2015 ".
The absence of any signs of the objective side of the crime that is incriminated to me in the Citation does not allow to conclude that such events as creation of a criminal group with my participation, definition of my role, communication of criminal tasks to me and my commission of specific actions for execution of these criminal tasks did not take place at all.
Also, in the Citation there is no reference to my specific actions that would build such offences as "unlawful deprivation of liberty or kidnapping of a person" (Article 146 of the Criminal Code of Ukraine) and "Excess of power or official authority by a law enforcement agency" (Article 365 of the Criminal Code of Ukraine).
3. Regarding the sufficiency of evidence
Proofs in criminal proceedings are factual data obtained in accordance with the procedure established by the Criminal Procedure Code of Ukraine, on the basis of which the investigator, prosecutor, investigating judge and the court establish the presence or absence of facts and circumstances that are relevant to criminal proceedings and are subject to be proved.
The procedural sources of evidence are testimony, material evidence, documents, expert opinions (Article 84 of the Criminal Procedure Code of Ukraine).
As follows from the contents of articles 218, 220 of the Rules of Procedure of the Verkhovna Rada of Ukraine, the Committee charged with providing an opinion should not only examine the contents of the Citation, but should analyze the concrete evidence on which this Citation is based.
At the same time, as is seen from the contents of the cover letter of the Prosecutor General’s Office of Ukraine of 3 November 2016 #25/2/2-32877-14 to the Verkhovna Rada of Ukraine, in addition to the very text of the Citation, the Prosecutor General's Office did not submit to the Verkhovna Rada a single evidence from the materials of the criminal case file.
Thus, the Committee is at all unable to provide the opinion on the sufficiency of evidence and the legality of their obtaining.
It should be emphasized that the provision of certain materials of the criminal case file (or extraction from it) for consideration by the Verkhovna Rada of Ukraine is not a violation of the secrecy of the pre-trial investigation, since Part 3 of Art. 220 of the Rules of Procedure of the Verkhovna Rada of Ukraine directly provides for the right of the committee to study materials of criminal proceedings and, if necessary, to reclaim additional materials.
In connection with the above, I can draw the conclusions that the Citation does not comply with such a criterion as sufficiency of evidence.
4. Regarding the legality of obtaining evidence
As stated above, no evidence of my commission of a criminal offense is attached to the Citation at all.
At the same time, analyzing the content of the Citation it is possible to draw some conclusions about the source of origin of the evidence (its legality) and the proper nature of the evidence. particular, the conclusions and circumstances stated in the text of the Citation, which are allegedly supported by cumulative evidence, contradict each other.
Thus, on pages 1 to 10 of the Citation, its initiator points out that the group that committed the "crimes" included the former Ukrainian President Yanukovich V.F., the former Minister of Internal Affairs of Ukraine Zakharchenko V.Yu. and the former head of the Main Department of the Ministry of Internal Affairs of Ukraine in Kiev Koryak V.V.
However, further on in the text of the Citation, the group additionally includes the former Prosecutor General of Ukraine Pshonka V.P. Thus, the following is stated on page 10: "In addition, the fact of awareness of Yanukovich V.F., Pshonka V.P. and Zakharchenko V.Yu. about illegal restraint of Drabinko A.N. … etc.…"
Furthermore, the composition of the group changes several times more throughout the text of the Citation.
Thus, in paragraph 2 on page 11 it is stated: "The unlawful deliberate acts of Yanukovich V.F., Novynskyi V.V., Zakharchenko V.Yu., Koryak V.V., investigators Vyzhga V.V. and Kozlyuk M.V., as well as employees of the special division of the judicial militia "Grifon” Shmatko A.P. and Olishevich O.V. led to the violation of the rights and freedoms of Drabinko A.N. protected by the Constitution of Ukraine, which was expressed through the illegal deprivation of his freedom for a period of 179 days ... ".
It should be noted that several pages earlier, namely in paragraph 3 on page 6, the initiator of the Citation indicates that "the major case investigator of the Investigation Unit of the Main Department of the Ministry of Internal Affairs of Ukraine in Kiev, the major of militia Vyzhga V.V. was not aware of the criminal plan of Yanukovich V.F., Zakharchenko V.Yu. and Koryak V.V. to illegally deprive Drabinko A.N. of his freedom ... ".
Thus, with reference to the same evidence, contradictory conclusions are made in the Citation regarding the involvement of the investigator Vyzhga V.V in the "criminal" group.
On page 10 of the Citation, prosecutor Nagirnyak B.N. formulates the "final" conclusion about the composition of the criminal group and the composition of the crimes that this group committed.
So, he informs the Verkhovna Rada of Ukraine about the following:
"Thus, Vadym Vladyslavovych Novynskyi with his willful actions, which expressed themselves in the aiding to Yanukovich V.F., Zakharchenko V.Yu., Koryak V.V., Shmatko A.P. and Olishevich O.V., who, acting intentionally exceeded their official powers, i.e. deliberately carried out actions that clearly went beyond the rights and powers granted to them, which caused significant damage to the rights protected by the law and the interests of citizens, having committed a criminal offense under Part 5 of Article 27, Article 365 of the Criminal Code of Ukraine."
However, in this "final" conclusion Pshonka V.P., Vyzhga V.V. and Kozlyuk M.V., whose participation in the "criminal group" was reported previously, disappeared from the "criminal group". At the same time, the Citation does not contain any information whether a decision has been taken regarding these persons to close down criminal proceedings, or whether any other procedural decision was made.
5. Regarding the classification of my actions as aiding in committing a criminal offense
According to Part 2 of Art. 29 of the Criminal Code of Ukraine, the organizer of a criminal group, the instigator and the accomplice are liable to criminal liability under the relevant part of Article 27 and the article of the Special Part of this Code that provides for the crime committed by the perpetrator. Therefore, the guilt of the perpetrators must be established and confirmed by the collected evidence, and they must be brought to criminal liability before the accomplices or other members of the group are brought to justice.
In the case of existence of all accomplices in a crime, the court first examines the evidence that the perpetrators have actually committed the crime, and only having established this important circumstance, proceeds to analysis of the role of other accomplices.
As follows from the Citation, by now Yanukovich V.F., Zakharchenko V.Yu. and Koryak V.V. have not been brought to criminal liability for the illegal deprivation of Drabinko A.N. of his liberty. They have not been given a notification of suspicion either in person or in absentia. The verdict regarding the perpetrators of the "crime", who, in the opinion of the Prosecutor General's Office, are the investigators who made the decision to grant Drabinko A.N. close protection and the staff of Grifon special militia, who guarded him, is missing.
The indictment against the mentioned staff of Grifon special militia was sent to court, but was returned to the prosecutor four times. The basis for the return of the indictment was its shortcomings, which was established by the court decision, namely:
1) contrary to Point 5 of Part 2 of Art. 291 of the Criminal Procedure Code of Ukraine, the indictment does not contain a statement/description of the actual circumstances of the criminal offense that the prosecutor considers as established. It does not contain the legal classification of the criminal offense, with references to the provisions of the law and article (parts of articles) of the Criminal Law of Ukraine and the formulation of charges;
2) contrary to Point 5 of Part 2 of Art. 291 of the Criminal Procedure Code of Ukraine, the indictment does not specify what exactly are the components of the crimes provided for by Part 2 of Art. 146, Part 1 of Art. 365 of the Criminal Code of Ukraine, since they are characterized only by direct intent;
3) no significant damage has been determined, which is a qualifying sign of the offense provided for in Part 1 of Art. 365 of the Criminal Code of Ukraine;
4) the indictment does not specify what exactly the objective side of the crime consists in. It is not specified what is the wrongfulness and excess of official powers, due to which the victim suffered significant damage.
That is why failure to establish direct intent in the commission of the incriminated crimes under Part 2 of Art. 146, Part 1 of Art. 365 of the Criminal Code, absence of significant damage, failure to define the procedural status of investigators of Pecherskiy District Office of the Main Department of the Ministry of Internal Affairs of Ukraine in Kiev Vyzhga V.V. and Kozlyuk M.V., who issued and prolonged the decision to provide security measures (close protection), which was mandatory for execution, contradict the Criminal Procedure Code of Ukraine and are sufficient grounds for return of the indictment to the prosecutor.
Absence of any information about the decision of the court's consideration of the indictment against the officers of Grifon and about the criminal prosecution of other members of the "criminal" group, for whom I allegedly was an accomplice, serves as evidence of the unfounded and premature Citation on bringing me to criminal liability.
Thus, at the time the Citation was drafted, no events have been established that, in the opinion of prosecutor Nagirnyak B.N., supported by the Prosecutor General of Ukraine, would confirm the signs of conspiracy of officials aimed at unlawful deprivation of Drabinko A.N. of his liberty in order to put pressure on His Beatitude Metropolitan Vladimir, and my participation in this conspiracy.
The events that have been established and the time and place of which are indicated in the Citation do not contain any signs of a crime, the participation in which is incriminated to me.
People's Deputy of Ukraine V.Novynskyi