In a rules-based society, an investor can assume that he is operating within a system where negotiated and signed contracts will be fulfilled in good faith, that if there is a dispute between parties that cannot be resolved through good faith discussion, then there is recourse to the courts which would, on the basis of facts, render a fair and timely decision, and that if there was a deliberate act of criminality, then the investigative authorities, guided by the principle of “serve and protect”, would undertake an impartial criminal investigation to establish a factual basis on which justice could be rendered. In Ukraine, both in principle and practice, such principles do not effectively exist.
There is no doubt that the actions of the Igor Kolomoisky controlled Nikopol FerroAlloy Plant effectively cut off Canada’s TIU access to the electrical grid in contravention of its agreement, causing millions in financial damages.
The crux of the matter remains the same: The disconnection of TIU’s solar operations from the electrical grid by the company controlled by the oligarch Kolomoisky under the guise of needed renovations that have been proven to have never taken place, was an illegal act, an example of corporate “raidership”.
Two years after court proceedings began, a full investigation has yet to be undertaken by police authorities. An investigation, whose results would be essential to rendering a financial verdict if it is so decided, and where a compilation of the potential criminal facts surrounding the actions of the Plant management and have not been investigated or explored on even a preliminary level.
In these legal proceedings, there is little, to no evidence, that this matter has followed a comprehensive procedure in properly investigating and adjudicating this matter.
Frustrated by the lack of a comprehensive approach, a show of any initiative by the local police force, and the local prosecutor, the complainant, at their own expense, prepared, and in August, presented a dossier of documents to local authorities that would act as a road map to getting to the gathering of facts and the truth.
According to a number of state regulators, there is evidence that a criminal act may, and probably occurred, however, the police have never set foot on the property to investigate.
The complainant’s lawyers, to expedite matters, because it was clear to them that this exercise of basic fact-finding was not being undertaken and that the matter was not being pursued, have waited for the local authorities to act.
Four months after receiving this information, and two years after legal proceedings began, local authorities still have not gone to court to obtain a court order to enter the Nikopol premises to investigate. And this, despite promises from the local prosecutor.
At the same time, the complainants also secured experts with extensive industry knowledge to help local investigators. This opportunity was not pursued by local authorities.
The lawyers for the complainant cannot surmise a reason for this inaction.
Therefore, after all this time and effort, there has been no investigation, and so, no results.
Thus, in a matter that has national implications on the energy sector and Ukraine’s overall energy security, and in light of the aggressive actions of Russia attempting to use energy as a form of warfare, especially during the upcoming winter, Ukraine’s investigative and judicial institutions have not proven that they are prepared to act in the nation’s interest.
But why is this so?
Is it a question of competence?
Is it a question that there is a “corrupt” connection between the prosecutor, the local police and the operators of the Nikopol plant? At the moment, one can only speculate even if that was the case.
Whatever the situation may be, this case reveals the true nature of the standard of professional competence and institutional initiative and responsibility within Ukraine’s justice system.
The frustrating thing in Ukraine is that though there are consistent calls for change in how the country is governed and as to how it should operate, Ukraine’s culture, its’ mentality and moral positioning is averse to change. And furthermore, many, if not all individuals in government continue to sabotage any change that would affect their interests and governing methodologies.
In present-day Ukraine, the main agenda throughout its institutions, despite the protestations of the president, is to maintain the status quo. The essence of the strategy being implemented for at least the last year is to simply wait out those who want to make changes within the country, so that reformers will grow weary and give up in frustration and that their western friends would lose interest, stop caring and go away.
Ukraine is a country of continuing frustration with a very thin record of accomplishment for any substantive, structural and institutional change. At the same time, it is also true that Ukraine’s state of mind contains an acknowledgement that change is needed and an intellectual ascendance for change. However, knowing what has to be done, but being unable and unwilling to make the needed changes to enter the European democratic world are two vastly different things.
That is why the TIU case against the oligarch Kolomoisky is pertinent, and perhaps more important, educational, for it reveals the essential characteristics of Ukraine’s institutional life and the lack of transformative changes.
There is no sense of urgency or imminence to establish and practice forms of institutional behavior that would create a sound base for a rules-based order.
Just like the investigators in this case, there is no sense of individual nor institutional initiative to pursue a proper path to establish a fact-based foundation, or the truth, that would inform proper and just decision making and governance.
There is a continuing feeling of suspicion regarding the motivations of official actions. There is no transparency with any notion of responsibility. There are so few examples of individual acts of independence, and if there are, these people are “punished”.
In this case, in particular, there seems to be a feeling that the reason that the truth is not being pursued is that to do so, one would have to wait for “permission” from some higher up to do what is essentially one’s job. This implies that there are other factors than the pursuit of the facts and truth, that have to be taken into consideration before anything is done or decided.
Sadly, Ukraine is a country where resolving conflict is not based on facts, the truth, or the pursuit of justice.