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Why key-persons of journalistic investigations remain unpunished?

11 July 2017

We invite you to join the discussion and find your own solutions to the problem of the lack of formal follow-up on journalistic investigations in the energy sector and coordination between investigative journalists and law enforcement authorities in charge of handling anti-corruption cases.

Why key-persons of journalistic investigations remain unpunished?

This round-table was organized in the context of the Initiative for Counteracting Corruption and Improving Fiscal Transparency in the Energy Sector of Ukraine (the “Transparent Energy Project”) aimed at fighting corruption and enhancing financial transparency in the energy sector of Ukraine.

Anton Antonenko: Good afternoon, dear colleagues! Let us begin our round-table. Today, we have an unusual discussion with the participation of representatives of law enforcement authorities, journalists, and civil society representatives. I would like to express my sincere gratitude to all friends and colleagues who are present in this room and to Ukraine Crisis Media Center (UCMC) for its partnership and for the site they have provided for this discussion which we believe to be very important. We have organized this discussion in the context of the Transparent Energy Project run by DiXi Group with the support of USAID.

So, we first came up with the idea of holding such a discussion back in February, when we had a big forum. It included a separate panel discussion dedicated to investigative journalists. They shared their stories, their discoveries, and their views as to what had to be done and how. I will probably not be mistaken to say that the prevailing mood among our colleague journalists then was: “we investigate, but, unfortunately, we are not satisfied with what happens next”. True, after a journalistic investigation is released, absolutely nothing happens.

We started thinking that it would be interesting to have an honest discussion between representatives of the journalistic community and law enforcement agencies on how to build this bridge, how to organize such a format of work that would make sure that the efforts invested by journalists in their investigations would be converted to aid law enforcement authorities and achieve actual results.

We have even invited Ms Livija Saplakan, a representative of the Romanian anti-corruption authority, to learn her views and experience related to similar processes in Romania.

As the outcome of this discussion, we want to gain the understanding of how we can launch the result-oriented format of cooperation. Cooperation between journalists, community activists, civil society representatives and those who are supposed to use this information for its intended purpose to achieve actual results.

Roman Nitsovych: Our today’s event has a certain allusion to the movie Catch Me If You Can. The main character in this movie is a former check forger. He once wrote a letter to his dad about an honest man having nothing to fear. He wrote: “I’m trying my best not to be afraid”. People who have gathered here today have overcome their fear and now help to expose law offenders. Some of them do this more publicly (i.e. investigative journalists), while others do this less publicly, i.e. detectives, investigating officers, and judges.

Our objective in this context is to find common points between journalism as the purely epistolary genre and journalism as a ground for instituting proceedings. In fact, this discussion received a certain impulse several weeks ago when journalists released their independent investigation into the high-profile case of [Belarusian prominent investigative journalist] Pavel Sheremet’s death. Their report was followed by a certain reaction from the competent authorities investigating this case.

Our key concerns now are whether media reports can be used to institute criminal proceedings and whether these reports can be included in the introductory part of a judgment.

As the matter of fact, the energy sector, with its huge financial flows, with its considerable publicly owned segment of state-run enterprises and with its yet considerable subordination to government regulation, still involves high corruption risks. Specially for this discussion, we have conducted an expert survey and have identified the Top 5 journalistic reports which raised certain pressing issues but which received no attention from the relevant authorities.

I am happy to see here today journalist Yevhen Holovatiuk who is the author of the top two reports. Both reports cover the rather long-standing problem of coal supplies from the occupied territories. The first report analyzes such coal supplies to Russia in 2015. The second report is about the alleged imports of South African coal via intermediary companies who actually carried this coal through the Russian Federation.

The Top 5 list also features Hanna Babinets from with her report on activities of the State Agency for Investments and National Projects of Ukraine and its notorious ex-head Vladyslav Kaskiv.

The next on the list are journalists who did research into how the Prosecutor General’s Office of Ukraine investigated the case of [Ukraine’s former energy minister Yurii] Boiko’s drilling rigs. They analyzed why Oleksandr Katsuba, an ex-deputy head of Naftogaz, had paid himself off with a relatively small sum and had struck a bargain with the investigating authority, and why the formal investigation ignored some other persons involved in these cases, e.g. Yurii Boiko or [Naftogaz’s former board member] Yevhen Bakulin.

And the last name in our short list is Censor journalist Serhii Holovnov. He investigated a rather controversial decision of the National Commission for State Regulation of Energy and Public Utilities (NCSREPU) on raising charges for connection to electrical grids. He also looked into the ownership structure of those distribution companies who had benefited the most from this decision.   

Having mentioned these investigations, we have to bear in mind that new acts of corruption may be committed somewhere right now and that they will also become the objects of journalistic investigations. But the question is whether the materials of these investigations, which include evidence in the form of insiders’ statements, excerpts from relevant registers, and statistical data, will become the object of the work of investigating officers who also collect similar evidence but under a somewhat different procedure. Now, we will try to find the answer to this question.

Yevhen Holovatiuk: Everyone knows that supplies and financial aid to the “Donetsk People’s Republic (DPR)” and the “Luhansk People’s Republic (LPR)” are taboo subjects in the Russian media. But there are also good journalists in Russia. And they are looking for channels to spread the information in their possession. Actually, I have become one of such channels. I have contacted several Russian journalists who have helped me to get this information. Of course, I cannot reveal their names.

The second part is merely an analysis of some financial documents and the publicly available Russian customs statistics, plus social media correspondence with representatives of the respective enterprises operating there. We have got used to calling them “militants”, but in fact they are ordinary people who have found themselves in certain existing circumstances. They absolutely frankly share the information about where the coal goes, who benefits from this and how, and who controls the respective cash flows both in Ukraine and in Russia. This information stops being a big secret if you work in your office 12 hours per day during two or three months. I think that it is not a problem to write about this.

I recently published another report on the same subject, this time covering the period of 2016 and the beginning of 2017. This subject is much talked of at present, and reports on this subject will continue. As to the corruption component of these coal supplies, I would sooner put the blame on our security services. Those companies, which transported the coal to the Russian Federation in 2015, actually smuggled it. There are no Ukrainian customs authorities operating there. Meanwhile, these smuggled coal supplies are registered as exports in the Russian Federation. The same companies supply the coal to Ukraine, in particular to Kramatorska CHPP, Tsentrenerho, and other power plants. I am convinced that the Security Service of Ukraine (SSU) is aware of this. Since the SSU authorized the importation of this coal in 2015, they simply saw no point in disrupting these huge financial flows.

Anton Antonenko: What is your vision of cooperation with law enforcement authorities after the release of your investigative report? What kind of reaction would you expect from them?

Yevhen Holovatiuk:  None. I do not want to cooperate with the currently existing law enforcement authorities (perhaps with few exceptions). The reason is that I have absolutely no trust in them. The most recent investigation into Sheremet’s death has proven once again that the farther journalists stay away from law enforcement authorities, the better.

Anton Antonenko: I mean, what kind of reaction would you expect from them?

Yevhen Holovatiuk: In the currently existing situation, no reaction can be expected from them with regard to the coal. The SSU is now one of the main end users of the sums of money earned from the coal supplied to Ukraine and Russia. I have no doubts about this. I can name 10 companies which monthly transport thousands of tonnes of coal, but which remain left out from Ukrainian sanction lists. Somehow, other companies have been included in these lists. If we analyze those companies, the names of the Melnychuk brothers will surface. One of them lives in Kyiv, while the other is a deputy “LPR minister”. They buy DTEK’s coal, transport it to Ukraine and then further export it to third countries. In any normal country, this subject would have been closed within a month.

In the beginning of 2015, Luhanskvuhillia [‘Luhansk Coal’] State Enterprise was headed by a former – then acting – “LPR minister”. And this state-owned company supplied the coal from the occupied territories to Tsentrenerho at the price of USD 20, while the price stated in the respective financial documents was three times higher. You may guess in whose hands the difference stayed.

Anton Antonenko: Now I would like to give the floor to Oleksandr Komarov, the head of an investigations department of the National Anti-Corruption Bureau of Ukraine (NABU). Oleksandr, what are your institution’s usual reactions to such reports? The reports which contain facts. How do you usually work?

Oleksandr Komarov: Journalistic investigations generally render great assistance to NABU detectives pursuing their own investigations. They often become grounds for the institution of criminal proceedings and they often serve merely as a good source of information which may be further verified and also result in the institution of criminal proceedings.

But I would like to ask the investigative journalists to bear in mind the formal criteria necessary for a report to become a valid ground for the commencement of our investigation. First, I would like to stress that all conclusions made in your investigation must be verified and based on certain facts or, even better, on official documents. I am perfectly aware of the tools available to journalists. They may have no direct access to all government databases, unlike NABU detectives. And yet, when they draw conclusions with respect to certain circumstances, they should better make references to documents, to verified information. The thing is that in the future, should criminal proceedings be instituted, we, as detectives, will go almost the same way as the journalists, but we will have to use tools permitted by the Criminal Procedure Code and strictly follow the requirements of this Code, including those concerning the relevance and admissibility of evidence, as well as the legality of the means of obtaining such evidence. Therefore, all information must be verified.

I would further like to draw your attention to certain evaluative judgments and conclusions contained in some investigative reports. It often happens that they are not really supported by any actual evidence. They may sound nice in a report presented in the media, but then the respective facts are not always confirmed in the course of a pre-trial investigation.

When carrying out covert investigative activities, we also employ a wide range of tools to verify these facts, and we are interested in establishing the objective truth in all investigations. But the objectivity means that our investigation may either confirm or refute the respective facts.

I would like to mention that the energy sector, which is the subject of today’s discussion, is the object of more than 25 criminal investigations currently pursued by NABU detectives. They involve over 40 criminal episodes. These investigations target major companies operating in the energy sector, and the estimated amount of the already proven damages is above UAH 6 bln.

We already have over 30 suspects, 2 accused persons, and 5 persons convicted under a plea bargain. The work continues in this context. Some of these investigations have become possible, among other things, due to properly conducted journalistic investigations. 

Anton Antonenko: Now I would like to introduce our Romanian colleague. This is Ms Livija Saplakan. Ms Saplakan is the head of the Department of Public Affairs at the National Anti-Corruption Directorate of Romania.

Livija, could you please tell us about Romania’s experience in these matters? In particular, how did you react to journalistic investigations? What is your experience? How do you cooperate with journalists?

Livija Saplakan: I am very happy that you have invited me as a representative of my organization – the DNA (National Anti-Corruption Directorate of Romania). I am very lucky. I am both a journalist and a prosecutor. At first, I worked as a journalist. I started as a journalist, and since 2005 I have also been working at the prosecution authority. Since then, I have been a spokeswoman for the prosecutor’s office. I see both sides of the coin. I see the situation with the eyes of both a journalist and a prosecutor.

 The DNA was established in 2005 (on the eve of Romania’s entry to the EU) as a specialized institution for combating corruption. My organization has three criteria of jurisdiction (if a bribe amounts to over EUR 10,000; if damages caused to the State amount to over EUR 200,000; or, regardless of the amount of a bribe or caused damages, if the suspect holds a high-ranking position, such suspect falls within our jurisdiction).

There are not only prosecutors at the DNA, but also policemen, who work only with us, and our own experts in many different fields. Year by year, the list of our accomplishments and professional achievements grew longer. In 2016, 1,271 persons were handed over to courts. In particular, they included three ministers, 47 mayors, and 16 magistrates.

There is literally a media campaign underway in front of our office. We do not invite journalists. But they are there every day. They know that every day some high-ranking government officials walk in and out of our office. As the prosecution authority, we have a limited range of available means of liaison with the general public, because we have to keep our investigations confidential. I remember that when I was a journalist, I used to say that prosecutors always hushed things up and did not respond quickly, but when I started working at the prosecutor’s office I understood why it was so.

I have understood that journalists often want to know information that has to be kept confidential. The first lesson I have learned is that the media and the law enforcement authorities work at a different speed. Journalists want to see both the investigation and the conviction completed in a second. But [journalists and prosecutors] work at totally different paces. A prosecutor’s work is about gathering evidence. This evidence must be very serious and powerful.

We have to remain silent until a certain stage of investigation and preserve confidentiality. We have developed a code of rules governing our communication with journalists.

Let me give you an example of our cooperation with the media. One of our cases began with a newspaper article in 2006, when the prosecutor’s office began its work after the prosecutor had read the journalist’s report. The report was about the illegal export of football players and the shadow accounting. An investigation was launched. It was completed in 2008. At the end, eight heads of Romanian football clubs stood trial for money laundering and tax evasion. 

Anton Antonenko: Now I would like to give the floor to Ms Larysa Holnyk, a judge of the Oktiabrskyi District Court in Poltava. Larysa, when do cases ultimately reach the trial stage? Why do they often yield little result? What is lacking for journalistic investigations to have a more successful history of trials?

Larysa Holnyk: Indeed, we now see a lot of journalistic investigations. But the most important thing is that they do end with guilty verdicts. Personally, I think that quantity has to convert into quality. The objective of a journalistic investigation is to outline an existing problem and to draw attention to a certain committed law violation. Meanwhile, only law enforcement authorities may conclude whether it is a criminal or other offense, and they must also ensure the actual implementation of the principle of the inevitability of punishment. Courts play a very important role in this context. But courts actually reaffirm the result achieved by investigating authorities, and then, during the trial, the burden of proof rests on the prosecution, while the court has to evaluate the evidence gathered in the course of a pre-trial investigation.

Only an honest investigating officer, an honest prosecutor, an honest judge and an honest lawyer protecting the legitimate interests of his client can achieve a positive result. So far, however, I have not seen any actual change of approach in the work of either investigating authorities, or prosecuting authorities, or judicial authorities.

The job of a court is to objectively evaluate the provided evidence. Courts play an important role not only at the final stage, when the verdict is delivered, but also during the pre-trial investigation. Our investigating authorities file motions with courts seeking authorization of certain investigative actions. They also apply to courts for interim relief in the course of criminal proceedings.

Mutual trust is necessary here. Law enforcement authorities should trust journalistic investigations. Journalists perform a huge amount of analytical work. This is not something that can be waved off. And yet, we often see that law enforcement authorities treat journalists as if they were absolutely unnecessary.

The political will is now focused on sabotaging certain investigations. And tremendous leverages are being used now to prevent these criminal proceedings from progressing into guilty verdicts.


Tetiana Boiko, OPORA Civil Network

Are there any pending proceedings related to coal supplies from the occupied territories? And what is their current status?

 Oleksandr Komarov: Certain criminal proceedings are currently pending but, unfortunately, I cannot give you any more details. I am not the person in charge of the pre-trial investigation in the context of those proceedings. I am not in the position to revoke the investigatory privilege here. 

 Anton Antonenko: In your opinion, what role should be played by journalists to enable you to cooperate with them more effectively?

Oleksandr Komarov: Journalists already play a very significant role and perform a very large amount of work in the context of these investigations. I cannot say that their work is insufficient or of poor quality. They perform a huge amount of work that is significant both for us and for society. I would only ask them to verify their information. And then NABU detectives will act.

I know this from practice. We now have many investigative journalists who perform thorough in-depth research. 

The event was held in the context of the Transparent Energy Project with the financial assistance of the United States Agency for International Development (USAID). The opinions expressed herein do not necessarily represent the views of USAID or the US Government.

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