A famous attorney:” Nasirov was arrested in the same way as Lutsenko”
A famous attorney:” Nasirov was arrested in the same way as Lutsenko”
The criminal proceedings against the Head of State Fiscal Service of Ukraine (SFS) Roman Nasirov were initiated with much fanfare in March this year. The materials were sent to court in November. However, the defense insists that the actions of the Head of SFS even don’t contain elements of crime and all charges are not more than PR.
Obozrevatel decided to talk with Nasirov’s attorney Igor Fomin, who is one of the maîtres of Ukrainian bar, famous for a successful defense in public cases against numerous politicians, managing partner at Fomin and Partners Law firm, about the peripeteia of the investigation, justice in Ukraine and acknowledgment of high-profile cases.
- You had and still have many public and even scandalous clients and high-profile cases. It’s, probably, worth talking about the past and foreseeing the future at New Year’s Eve. From your point of view, how the system of justice works in Ukraine now? How do you estimate the work of new anti-corruption bodies in particular? Especially taking into consideration media stories of last weeks…
- I would estimate the state of affairs as critical. The system of Justice must, first of all, carry credibility for people. That doesn’t exist. And the court is the only place where a citizen can address to defend his rights. The other institution has not yet been invented. When courts don’t work, people take the justice into their hands. As the result we have public disturbance and destroying revolutions. That’s why I find the judicial branch the most important and complicated. The criminal case doesn’t have no one’s results. The criminal proceedings have two parties each bearing its own aim. The prosecution cares about the defense of public interest. All of us want to walk freely on the lighted streets and know that nobody will rob us or kill. That’s why the prosecution combines a range of mechanisms: detectives, investigators, prosecutors, etc. The second task is the victims as there are people who suffered from the crime. And to my regret and pain these people are totally forgotten. They are defenseless from the point of view of law as well as in practice. Attorney is the defense of human rights. But the defender also performs a social duty. Not guilty ones should not be sentenced, but the guilty one should receive the punishment corresponding to the crime committed by him. Nobody thinks that attorneys, except suspected, also defend witnesses and victims. The judicial system should work defending personal as well as public interest.
- The judicial system is constantly moving. New laws, new bodies and new courts. What has changed?
- Unfortunately, we change the plates but not the essence. Perhaps I will not be popular, but I wonder why we need to create also Anti-corruption court? To soft soap with the new illusion of fight against corruption? To put it rough, the corruption crimes are only 5 articles in the Criminal Code. People need fair court judgments, no matter the verdict of guilty or acquittal. We need competent and fair courts, but not new pompous names of the courts.
- It’s more of the category of justice. If we don’t have justice in usual court, it means it will be for sure in some new one?
- It’s the misconception. For example, all the Presidents change the Constitution in Ukraine. The USA Constitution has had about 10 amendments in 300 years. And not a big deal, people live in a working system of power. But we have a new Constitution every time. To my mind it’s related to the formation of politicians-reformators image. Not always they follow public interest and it’s normal. We just need the harmony between the interest of society and a person.
- We have already experienced two revolutions. The society hopes the justice to come. We don’t have courts or fair courts. What shall we do with that?
- The problem, to my mind, is when the revolutionists come to power and their positions change. It seems that the angle of down sight differs from the up sight. The judicial system in this case is illustrative. Folk wisdom says “Don’t be afraid of the court, but be afraid of the judge”. The court not necessarily should consist of professional judges. We have the trial by Jury in the Constitution of Ukraine. The right to choose the court is the citizen’s right, but not the gift given by the power. There are two draft bills on classic jurors, but, unfortunately, they are not realized.
- We are used to slandering the legislature. Maybe the problem only is in laws?
- Parable about King Solomon’s court is a good example. I’m talking about the way how the king solved the dispute between two women concerning the child. He offered to cut the child into halves and give it to every woman. He gave the child to that one, who refused from her rights. She was the real mother. At that times the legislature didn’t exist, there were neither attorneys nor prosecutors. But the court existed. The king caused the situation which helped him to establish the truth. That’s what the court should do. And we are only its assistants. Let’s go back to revolutionary changes. I came to conclusion that the revolutions are not useful and the consequences are not foreseeable. They overturn the system which isn’t changed sequentially, calmly and reasonably. The kitchen maid, nonetheless, can’t manage the state.
- The pressure on court is a separate topic. We haven’t passed away from it yet.
- Everybody is used to thinking that somebody, the president or the prosecutor, picked up the receiver and told the judge to pass this or that decision. But there are different types of pressure. The pressure from corruption, when the judge has money interest. There is public pressure, which often looks for someone to blame, but not a guilty one. Then the justice levers head to the wrong side.
- Public interest is always formed by someone.
-Sure. We are never present at the crime scene, if it at least happened. We always get the picture from someone else. But people perceive everything in another way, through someone. In most cases via media and journalists. They give their assessment of guilt not going into depths, they don’t care. And so we have “guilty”. Any state officer is always guilty in the eyes of society, at once. If you are there, if you managed to get there, it means you are guilty. We have observed psychological pressure from in all views. The demonstrations, courts blocking, and squadrons. How can a judge render the verdict when a squadron of people are standing and crying that they will tear your limb from limb? The judge is a living person, he has family, he wants to get home and finally get some sleep. He must make decisions thinking about the justice, but not his security.
- As a result it turns out that many legal actions lose sense as a matter of fact.
- Many people just don’t understand what they are doing. Unfortunately, but revolutions often throw unqualified people to the surface who are ready to do everything. For example, new bodies being created on the wave of revolutionary moods. I don’t know why, but I have a feeling of war, but not of some changes. Why? It’s not necessary to fight; there is no reason for the courts to fight, as well as to attorneys, prosecutors and detectives. As a matter of fact, we do the same job, we are parts of one mechanism. I’m one of ideologists, the author of introducing detectives. I thought they reflect their functions better than investigators from the society view. A detective is someone who gathers evidence for a prosecutor to go to court with them. Nobody has committed any crimes before the court decision. But in our country the person is guilty even before he or she finds out that there is something. When you switch on TV, you see someone handcuffed, then take them off, or arrest triumphantly and then release with the same fanfare. The system works for the show, PR, but not for the search of truth. Hence our post-revolutionary bodies have also set goals more connected with PR, than with the justice.
- What are the reasons for that? New bodies with wide powers have been created. They had a gigantic vote of confidence form the society. From the other side, the crisis of fairness and demand for that is obvious.
- Maybe they need some results. To sentence someone…
- The results to whom?
- First of all to the society. You have created us to fight against corruption, and we are fighting against that. They won’t fight the corruption bringing the Head of local housing authority to responsibility. They need prominent figures...
- The Head of SFS, for example?
- Yes, they need the suspects of this kind. PR instead of search for the truth. Such approach made this case a key one in Ukraine. It will answer to a number of questions illustratively. What are the aims of officers at anti-corruption bodies; how mature are they to perform the tasks of justice; why do we need them after all? Do we need NABU? Of course, we do. Nobody wants to live in the world of corruption. I, as an attorney, need the fight against corruption as well. If there is no corruption, the client is looking for the master, but not the transporter of money. A professional can win the case by means of his knowledge and skills. We are interested in the fair process. Unfortunately, it happened so that NABU is in the center of attention also because of the financial backing from our western partners. American, European. The money is invested in Ukraine in order to combat corruption. It’s a kind of report on effectiveness of financial and other investments to some extent. We are waiting for the conclusions after results of Nasirov’s case. To my mind, further changes will be made after that. Here, unfortunately, the question of justice on the guilt of the suspect itself takes a back seat.
- Let’s consider a famous serving the notice of suspect.
That’s really out of sight! Why am I saying this? Because the essence and reason for legal procedures are lost. For example, why the prosecution serves the notice of suspect to the person? The main point of it is to inform the person in the written way what exactly she is accused of. You should understand I can’t defend the person from all existing crimes in the Code. The notice of suspect is the frame which the prosecution gives to me, as the attorney, and to my client, as the defendant already. Now he knows what to defend himself from. From procedural point of view the notice of suspect is the volume of first evidence set forth by the prosecution according to which they came to conclusion that a person, allegedly, committed a crime. So what happens in our extorted reality? I don’t know why, but the notice of suspect has turned to indictment. This is big news in the eyes of journalists. And these, so called law enforcement officers, are running and break into the hospital to serve this document.
- What did really happen then in Feofaniya? Everybody saw only that what NABU showed.
- It’s necessary to differentiate between the law and PR. What’s so interesting in the procedure of serving a notice of suspect to a person? Nothing. But the repression, arrest, getting to court for the arrest- here is the whole program of emotions and a wonderful picture for TV. Do you know that now, the arrest of a suspect by NABU is possible only if they have evidence that the suspect wants to hide from the court and investigation? You can ask yourself if there is a state border of Ukraine in Feofaniya? If he was secretly arrested in the airport when he was trying to get into the plane, it would be a quite different situation. The law gives the right and duty to this body to bring the person to court within 72 hours. Such arrest is the direct violation of the law, the actions out of legal boundaries. I’ll set not a famous example. How was Yuriy Lutsenko arrested? In the same way. We had been going to the prosecution for two months, giving testimony, and then he was arrested on Sunday when he was walking his dog in flip-flops. Where was he going to run? What was the legal point in this arrest? The same is about the pressure on court. I mean well-known events with the blocking of court in Nasirov’s case. He would sleep well, got medical help and would come in the morning. Anyway the court had to impose pre-trial restraint: to arrest, set the bail or release. What about the bail, I was shocked about the amount. How can you take from family, even if they have 100 million and block the money? It is taken from the business, the life… It’s obvious that people don’t eat away 100 million. They took them out from where they could and gave them away. What for? Bail is the guarantee of person’s appearance summoned by the investigator to court and that’s all. The bail has no other function. Everybody was surprised when Saakashvili was released. Do you think he won’t appear in court? He will pay in excess to come there; it’s a conference for free for him. Will he run away from the country? He hardly came back, broke through the customs; why should he run away? It’s important to understand that restrictive measure is the procedure aimed at providing the appearance of the person in court. That’s all! End of story!
- By the way, concerning the bail. The prosecutors asked 2 billion. What are the grounds for such amount?
- It’s not normal. The so called Portnov Code containing amendments has been in action for 5 years already. Even if the court rules to arrest the person, he or she can stand bail, the amount will be higher in this case. This money is withdrawn to budget if you fail to appear in court being summoned by the investigator or the court. The main idea of the procedure is to secure appearance and nothing more. It’s the same as loan security. The loan is not paid off, so the money is taken. If you run away, you’ve lost the money. It’s very simple. The majority of our people stand bail. But the law enforcement officers don’t know what to do with such defendants as our system is used to living and working with imprisoned. We had a famous Attorney General Vyshinskiy who called pleading guilty “the queen of evidence”. And you know what? This queen of evidence lived in our system 70 years as the ground for the verdicts of guilty. My first task as a defender is to make the person psychologically stable, otherwise he is of no help to me. Only 3-5% of people were stable in prison in my practice. These people are unique and can overcome colossal psychological pressure. Merciless machine of prosecutors with genetics from Soviet dictatorship. It grinds the fates and promises the dream. You sign here and tomorrow you are in a white suit and free. The person signed confession and turned up in prison. And how to work now? The person is at home, and with his attorney. No public case has been logically finished during last 3-4 years. 3 or 4 Attorney Generals have changed, new bodies are created. But things aren’t moving.
- They can’t and haven’t studied in their career to investigate cases. It’s a difficult job. The conversations don’t substitute the cases. If you want to estimate the effectiveness of the new body, look at its results. No matter what we say, but the crime detection rate is awful. The crimes are committed every day, organized crime, banditism everywhere and nothing more. There is a great number of high-profile, public criminal cases, hundreds found guilty, but not by the court.
- Can a healthy society have such a big number of high-profile cases? Is it normal?
-Of course it’s not normal. Do you know why it happens so? Because the system appoints the guilty ones at first and then looks for the crime matching them. The crime should be first and then the search for the guilty one. 100 people died at Maidan. Who is guilty? Where are the criminals? Show them to me. Four years have passed. 100 people were executed publicly. Defenseless people were shot to death in the Kyiv center. Who did that, who shot, who organized and how? That’s the investigation of a crime. What results do we have? Zero. In general we have criminals, but we don’t have their crimes and vice versa. Coming back to our new bodies, to NABU. There is a group of people who support this organization and provoke events which actually is a crime. We must understand the pressure at court is a crime. We can’t push on judges. It doesn’t matter if they are fair or unfair. If you want to have court, don’t push on the judge.
- How can you estimate the actions of some people’s deputies from the point of law, who blocked Nasirov in court with signs “we won’t let the corrupt official go”?
- They have created mass disturbances and blocked state agency. The defendant was deprived illegally of free movement.
- It means we can say they put pressure on court?
- Sure. They did all this with the aim to put pressure on court. I know many of them and respect them. I fought for my clients who were politically persecuted during Yanukovych times. We were fellow thinkers then. But they have taken a wrong way, to my mind. The motives of their actions are not important. They have no right to put any pressure at court.