Case description
The head of the Administrative Department of the Prosecutor General’s Office, Apollinarii Nahalevskyi, was tried on charges of abuse of office. The HACC acquitted him, but the Appeals Chamber reclassified his actions as the unpromised concealment of a crime and released him from punishment due to the expiration of the statute of limitations.
NABU detectives established during the pre-trial investigation that, in 2015, Apollinarii Nahalevskyi, the head of the Administrative Department of the Prosecutor General’s Office, organized nine below-threshold procurement transactions. The contracts covered services such as sewer cleaning, flushing of heating system pipes, inspection of electrical equipment, and other maintenance services. Without conducting public procurement procedures, the Prosecutor General’s Office concluded nine contracts worth a total of UAH 1.5 million, thereby violating the Law of Ukraine on Public Procurement.
The State Audit Service found it impossible to verify whether the works had in fact been performed. This finding served as the basis for an investigation into possible misappropriation of funds.
The investigation established that the contracts were concluded with three companies that exhibited signs of fictitious activity: two of them used the same telephone number, the third company’s number was never used within a year, the companies had no employees, and their directors were later convicted of fictitious entrepreneurship. Furthermore, there was no genuine need for the procured services, and the actual performance of the works could not be verified.
It was also discovered that the contracts and work acceptance certificates had never actually existed. Employees of the Prosecutor General’s Office began backdating these documents after the violations were detected by the State Audit Service. To create the appearance of proper record-keeping, participants in the scheme falsified incoming and outgoing correspondence logs by inserting entries of alleged communication with contractors and assigning fabricated document numbers with a distinctive slash mark.
Thus, according to the investigation, Nahalevskyi arranged procurement only on paper, while funds transferred to the fictitious companies were misappropriated.
At first instance, HACC acquitted Nahalevskyi of misappropriation. The court concluded that the Prosecutor General’s Office had a multi-level approval system for administrative decisions: every contract, memorandum of necessity, procurement plan amendment, or acceptance act passed through approval by department heads, a Deputy Prosecutor General, economic and planning staff, building managers, technical specialists, and the accounting department. Accordingly, the court held that responsibility for potential misappropriation could not rest solely with Nahalevskyi as head of the Administrative Department. The prosecution also failed to provide evidence that he or any specific persons had personally appropriated the funds.
However, upon appeal lodged by the prosecutor, the Appeals Chamber of the HACC reached different conclusions. The panel of judges agreed that there was no evidence of corruption-related offenses in Nahalevskyi’s actions but found him guilty of another offense — concealment of a crime. The court noted that, as head of the Administrative Department, he was fully aware of the absence of need for the procurements and the actual non-performance of works, yet failed to report this and instead signed acceptance certificates, thereby verifying services that had never been provided. In so doing, he committed concealment of a corruption offense within the Prosecutor General’s Office.
Since concealment of a crime is a less serious criminal offense than abuse of office, it is subject to a shorter statute of limitations. Taking into account the expiry of that period, the Appeals Chamber released Nahalevskyi from punishment.
Thus, while the investigation had initially qualified the actions of the “procurement manager” of the Prosecutor General’s Office under Article 364(2) of the Criminal Code of Ukraine, the court eventually concluded that he had committed a crime under Article 396 of the Criminal Code of Ukraine.
This case also formed the basis of another criminal proceeding in which Nahalevskyi was again the defendant. NABU detectives established that shortly after the State Audit Service’s inspection, he attempted to bribe its auditors with USD 5,000 to secure a favorable decision and conceal possible violations of procurement law that were under NABU investigation. In this case as well, the Appeals Chamber of the HACC released him from liability due to the expiration of the statute of limitations.
