The European community is closely watching the law enforcement authorities in Ukraine. It is up to these authorities to investigate high-impact crimes, while not stepping away from the path of reform, of becoming more independent and transparent. We discuss these issues with Deputy Prosecutor General and Chief Military Prosecutor of Ukraine Viktor Chumak.
Mr. Chumak, please tell us how the Military Prosecutor’s Office was established. As is known, it did not exist until 2014. Which countries’ experiences were drawn on to form it?
By and large, the Military Prosecutor’s Office is a heritage of the Soviet system. The fact is that the Soviet model of the military prosecutor’s office had to be changed. After all, it performed supervisory and other functions that are not exercised by any prosecutor’s office in the world. For example, it provided oversight of law enforcement by all authorities, enterprises, and institutions, and monitored the legality of the decisions they made. We are currently transforming the Military Prosecutor’s office. The newly-created Specialized Prosecutor’s Office for Security and Defence will provide procedural guidance to investigate all crimes related to military personnel, all crimes committed by military personnel, and crimes against security and defense of the state. Procedural guidance for the investigation of war crimes, that is, crimes against Ukraine in the form of aggression against its civilians, such as shelling, will be investigated by another unit of the Prosecutor General’s Office.
Does this unit already exist, or is its establishment still just planned?
Such a unit already exists within the Military Prosecutor’s Office, and another one exists outside the Military Prosecutor’s Office. These units will be combined and will conduct investigations of crimes in the field of international humanitarian law.
Who will be responsible for investigating the crimes committed by Russia-backed militants in Donbas?
This will be within the competence of the newly created units.
Your posts on social media suggest people ask you about “imprisoning criminals”, and that you would rather talk about reforms. What questions are you not asked, what would you like to say about the reform to people, in particular those who are not interested in the changes?
You see, people are very impatient; they want quick decisions and quick actions. The prosecutor’s office cannot operate as a factory. Criminal proceedings are the processes of evidence gathering for criminal hearings in court. Evidence must be properly collected, properly documented, and admissible in litigation. This is not a job that can be done in one day. It is not possible to register criminal proceedings today, lay criminal charges tomorrow, and send those proceedings to court the next day. A great amount of evidence is collected to establish whether a person is guilty or innocent. In addition, the problem is that a new team has come to the prosecutor’s office, and we can see that the crimes have either been ignored or improperly investigated. The new team of executives is made up of 5-10 people, for the whole prosecutor’s office of 11,000 prosecutors. The same crimes were investigated by the same people who now work in the office. We cannot tell them that they were doing things illegally, so we need to start investigations from scratch. That is why the recruitment of new personnel, who will have a high level of integrity, is extremely important for us today. But the recruitment process takes time. That’s where the discord between expectations and realities arises.
Is it possible for suspects to leave Ukraine while investigations are being carried out?
If a suspect wanted to leave Ukraine, they would have done so already. Of course, this is a risk. These are complicated cases. A great number of time-consuming analyses are required to prove a financial scheme, a corruption-related crime, or latent, that is, hidden crime.
Does your jurisdiction include procedural guidance for investigating the Ilovaisk tragedy?
Yes, the prosecutor’s office will take measures with regard to this case. In particular, investigative actions will take place in the Office of the President of Ukraine, namely the seizure of documents related to this tragedy. Following this, the political, organizational, and military decisions made will be assessed. (The day after the interview, an announcement was made that the Prosecutor had obtained the permission of the investigating judge to temporarily access the Office of the President of Ukraine and remove documents concerning the circumstances of conducting the anti-terrorist operation in August 2014 in Ilovaisk District – Ed.)
Does your jurisdiction include procedural guidance for investigating Maidan crimes?
My responsibility is to supervise the activities of the Office of the Prosecutor General of Ukraine, which is responsible for investigating these crimes. But there is a problem. In accordance with the regulations of the Constitution of Ukraine from November 2019, the prosecutor’s office is deprived of the function of pre-trial investigation and all materials for conducting investigative actions should be submitted to the State Bureau of Investigation (SBI). The procedural guidance for the investigation, however, remains within the competence of the prosecutor’s office. We now need to create a special unit to conduct procedural guidance of the SBI investigators responsible for investigating the Maidan crimes. We would like the investigators from the prosecutor’s office investigators to become part of the unit within the SBI. We would also like prosecutors, who are now the procedural heads in the Maidan crimes, to enter the unit of the Prosecutor General’s Office, which will be in charge of the procedural management of the Maidan cases. I have already made these suggestions about the possible structure of such a unit in submissions to the Attorney General.
When are you planning to complete the reform?
Full reform of the prosecutor’s office will take up to a year. In terms of stages, the Office of the Prosecutor General of Ukraine will start operating from about January 2020 and should be staffed by prosecutors by April 2020. In June-July, we plan to complete such reform at the regional level, and at the local level by the end of 2020.
In terms of global trends on gender issues, how many women currently serve in the Military Prosecutor’s Office?
Indeed, only a few women currently work in the military prosecutor’s office, about 7 percent of military personnel, without taking into account employees working in administrative positions. We aim to level the gender balance.
Are there statistics on how much female military personnel has committed crimes and how many women may have been victims of crimes committed by servicemen?
There are only a few of them. There is, for example, Nadiya Savchenko, who has been the subject of several investigations from both Ukrainian and Russian investigators. Unfortunately, there are no statistics regarding the violence of military personnel against women.
Is the Turkish and Greek experience of Cyprus used to optimise the work of the military prosecutor’s office on the return of the Crimea to Ukraine, and what actions can possibly be taken by the Military Prosecutor’s Office to return Donbas?
We do not use the experience of Cyprus and the experience of other countries where armed conflicts have taken place. At the same time, I do not want to say that the conflict between Russia and Ukraine is unique. The situation is that we do not have an internal conflict. This is another type of war, the so-called hybrid war, which is being waged by new means. Aggression against Ukraine is conducted using diplomatic, economic, political, and information instruments. Military tools are used in this war as a last resort. We have become participants in a new generation conflict.
Does the prosecutor’s office have any competence to investigate so-called “cyberattacks”?
Yes, of course. The Prosecutor General’s Office has established a structural unit for procedural guidance on the investigation of cyber crimes. In order to investigate such crimes, the necessary knowledge of the regulatory framework, the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine, is required, as well as special knowledge in the field of information technology. But our times require the investigation of such crimes.
The military strategy of the Russian Federation includes “information troops” subordinate to the general headquarters. Does Ukraine deploy any similar type of soldier?
Many countries currently face the information war. It is conducted through social networks. All countries are considering how to resist such phenomena. I do not think that any country other than Russia is considering the option of launching an information attack. Today, only Russia has such serious tools for such an attack. In Russia, there is a doctrine of hybrid war that stipulates conducting informational and cyberattacks. But every country should have mechanisms against “cyberattacks”, “cyber crimes”, and “cyberwars”.
Do you consider the occupation of Crimea to be an act of war?
Undoubtedly. You have to understand that with all the international rules, international legal mechanisms that ensure the territorial integrity and inviolability of another country, one state makes a decision on international level and illegally annexes a part of the territory of another state. And everything happens while holding a referendum at gunpoint.
Was it then necessary for Ukraine to declare martial law in 2014?
It is difficult to say. This is probably a political issue, rather than a prosecutorial one. I am not sure whether the country was capable of using all the mechanisms of martial law at that time. Martial law is not just words. It is an appropriate toolkit that includes diplomatic relations, the mobilization of the army, and the mobilization of the economy and other measures. The previous leadership of the state had such intentions. However, it is difficult to predict what the consequences of introducing martial law in Ukraine would have been.
The Dutch Minister for Foreign Affairs has said that the Dutch parliament wishes to receive information on the shut-down of airspace over Donbas immediately prior to the shoot-down of flight MH17. Does your office have jurisdiction to investigate this catastrophe? How will your office communicate with the Netherlands on this issue?
No, it is not within my competence to investigate this case. I cannot say if it will be so in the future. I cannot say whether Ukraine has any fault in this tragedy. We will monitor what questions the Netherlands will raise during the investigation.
Might it be related to Ukraine’s transfer of those suspected of involvement in the tragedy to Russia during an exchange of prisoners?
No, I do not think so. Dutch investigators had access to the suspect.
Is there any correlation between the Ukrainian and Russian Prosecutor’s Office in connection with the war?
I have been in this new position for almost a month. I do not have any information about maintaining any contacts between the prosecutors’ offices of the countries and I have not personally seen any documents confirming such connections.
What message would you like to send to Europe?
I would like to say that Ukraine’s problem was that foreigners did not want to visit Ukraine, investors did not want to make investments, and Ukrainians left the country and did not return. There was no access to justice and fairness. My task is very simple. I want public trust in the Ukrainian Prosecutor’s Office to be restored. I want people to trust the law enforcement system, investors to trust the courts, and human rights protection to become a top priority in prosecuting. I want investor protection to be a general practice, not a state-sanctioned raiding. The only reason why I agreed to take this position was to restore public confidence in this institution. When the prosecutor’s office starts operating, criminal justice in Ukraine will then start operating too, because all law enforcement institutions revolve around the prosecutor’s office and therefore they will change the nature of their activity. This mechanism will start working precisely due to the reform of criminal justice and the prosecutor’s office. It is not only me; the whole team of newly appointed first executives have come to the prosecutor’s office for this purpose.
Do you believe the reform of the Prosecutor’s Office will affect judicial authority?
Yes, without a doubt. I believe that the Prosecutor’s Office is the place from which all reforms in the system of justice and restoration of justice is launched. I consider, therefore, that the reform of the prosecuting authorities is crucial. After all, the court will not make an unlawful decision unless the prosecutor consents. Because of the prosecutor, the court is objective in its decision. Another key to a fair judicial decision is the prosecutor’s integrity. The prosecutor must not falsify the cases, “sell” them, or ignore their investigation.
Mr. Chumak, we wish you the best of luck in your professional career and in your plans. Thank you for the interview!