Saturday, December 10, 2022

Explainer: Is Poroshenko treason case justice or political persecution?

by Oleg SukhovJanuary 25, 2022 9:30 pm
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Ex-President Petro Poroshenko, who has been charged with treason, talks to journalists after his arrest hearing in Kyiv on Jan. 19, 2022. (Mikhail Palinchak)

The treason case against ex-President Petro Poroshenko has polarized Ukrainian society.

Some see it as the realization of the public demand for justice and for holding politicians accountable. President Volodymyr Zelensky was elected in 2019 due to a backlash to the alleged corruption and abuses committed under Poroshenko.

But Zelensky’s critics view the case as a petty political vendetta that undermines democracy and the rule of law. They have compared it to the jailing of ex-Prime Minister Yulia Tymoshenko by pro-Kremlin President Viktor Yanukovych in 2011.

Ukraine's society is also split and confused on the issue. A recent poll showed that nearly half of Ukrainians consider the case political persecution, while 40% thought it was a legitimate investigation, and 14% couldn't answer the question.

The agencies involved in the case – the Prosecutor General's Office and the State Investigation Bureau – did not respond to requests for comment for this story. Neither did Zelensky's presidential office.

The Kyiv Independent explains why Poroshenko was charged and whether it is possible for the ex-president to end up behind bars.

What is Poroshenko accused of?

In December, the State Investigation Bureau charged Poroshenko with high treason for allegedly aiding Russian-controlled militants in the occupied Donbas. He is accused of organizing the supplies of coal from Russian-occupied areas to Ukrainian firms in 2014-2015. If found guilty, he is facing 10 to 15 years in prison.

Poroshenko has denied wrongdoing.

Prosecutors sought to arrest him with a Hr 1 billion ($37 million) bail option, but the court decided not to arrest him on Jan. 19.

Here's how the events of the case unfolded:

After Russia started its war against Ukraine in 2014 and occupied parts of eastern Ukraine, the country lost access to its main coal-mining areas. Ukraine depends on coal for energy production.

In 2014, Poroshenko, then a newly-elected president, publicly supported buying coal from Russian-occupied areas instead of the alternative – the coal coming from South Africa.

State-owned energy company Centrenergo was supposed to pay for the coal to companies registered in Ukrainian-controlled territory through bank branches in the Ukrainian-held part of the Donbas. This was intended to guarantee that the supplies did not violate Ukrainian law – that the payment didn't go to the Russian proxies, which would be classified as financing terrorism.

From this point on, the versions told by Poroshenko and the investigators get different.

The investigators say that the money did end up in the hands of Russian proxies -- and that the president authorized it. They say that Poroshenko colluded with Russian dictator Vladimir Putin’s right-hand man in Ukraine, politician Viktor Medvedchuk, to organize the supplies directly from the Russian proxies -- who supposedly got the payment instead of Ukrainian mining companies. Medvedchuk is in turn accused of coordinating the supply scheme with Russian government officials.

Under the scheme, employees of the Security Service of Ukraine (SBU) allegedly withdrew cash from Ukrainian banks on Poroshenko’s orders and transported it to Russia’s proxies in the occupied areas of the Donbas.

Poroshenko has denied personally organizing coal supplies, but said that the supplies didn't involve Russian proxies, and the money for the coal was paid to Ukrainian companies. At the time, he claims, Russian proxies didn't yet control the coal mines.

It is unclear why the case is being investigated by the State Investigation Bureau since terrorism and treason are articles within the jurisdiction of the Security Service of Ukraine (SBU), lawyer Vitaly Tytych told the Kyiv Independent.

How is the case linked to South African coal?

In 2014, Ukraine began buying coal from South Africa to reduce the nation’s dependence on coal produced in Russia and Ukraine’s Russian-occupied territories. Ukraine, once a coal exporter, was cut off the energy-rich anthracite coal after Russia occupied part of the Donbas in 2014.

However, Poroshenko criticized coal imports from South Africa at a meeting of the National Security and Defense Council, claiming that the coal was of low quality.

One forensic assessment claimed the coal was of low quality, while another one argued the opposite. As a result, a criminal case was opened into the South African supplies scheme, and shipments were halted.

Eventually, the Prosecutor General’s Office closed the case in 2016, citing a lack of evidence.

Sergii Gorbatuk, a former top investigator at the Prosecutor General's Office, told the Kyiv Independent that he did not see the point of stopping South African coal supplies because it increased Ukraine’s dependence on Russia and its proxies. He argued that this undermined Ukraine’s sovereignty and security.

Is there any evidence?

Lawyers interviewed by the Kyiv Independent agreed that everything depends on whether investigators and prosecutors would present concrete evidence to support their claims.

The charges brought against Poroshenko refer to secret negotiations involving the ex-president's alleged treason, but no proof of such negotiations is publicly available, said Olga Veretilnyk, a lawyer at a Kyiv-based law firm Miller. These charges don't specify what kind of collusion took place and how exactly.

“If there is no proof of secret negotiations, the charges are unfounded,” she added.

Since the case is often criticized as being politically motivated, the prosecutors should have presented bullet-proof evidence from the beginning to dispel doubts, argued Miller’s founder Masi Nayyem. If they had solid proof, they would have presented it already, he said.

In 2021, the Bihus.Info investigative project published alleged leaked recordings of Medvedchuk’s conversations with Russian officials and Russian proxies in the occupied Donbas. The recordings contain references to Medvedchuk getting approval from Poroshenko for his efforts to organize coal supplies from the Donbas.

However, no recordings of Poroshenko’s conversations with Medvedchuk have been leaked.

Moreover, it is not clear if the prosecutors will present the recordings in court and whether the evidence will be recognized as admissible.

Despite that, Gorbatuk said that the charges against Poroshenko look credible, although they have to be proven in court.

Eugene Krapyvin, a criminal law expert at the Center of Policy and Legal Reform, said that the case is still in its early stage, which does not require final and bullet-proof evidence.

“Based on the evidence published by the State Investigation Bureau during the current stage of the investigation, the charges are justified,” he said.

What was Poroshenko’s motive?

The investigators argue that Poroshenko’s motive was to “promote his political interests and prevent his approval rating from falling further as a result of deterioration in the relations with the aggressor country.”

But Tytych argued that this motive does not constitute a crime, and that “this is the motive of any politician.”

Miller's Veretilnyk also said that investigators would have to prove that Poroshenko’s motives were criminal.

“It could have been just a management decision for solving a crisis,” she said.

And if Poroshenko’s motive was to enrich himself through coal supplies, then it is a corruption-related crime subject to the National Anti-Corruption Bureau of Ukraine (NABU), not high treason, Veretilnyk said.

Lawyers say that prosecutors have to prove that Poroshenko’s motive was to help the enemy.

“The motive has not been proven in either the (treason or terrorism) articles,” Nayyem said.

Was there any damage?

Tytych and Veretilnyk also argued that there is no information in the charges on damages allegedly incurred by Ukraine as a result of the coal supply scheme. Nor is there any mention of an expert assessment of such damages.

But such an assessment is necessary to prove the investigators’ claim that Poroshenko’s actions caused damage to Ukraine.

Poroshenko can argue that he, on the contrary, helped Ukraine by resolving the energy crisis, Tytych said.

What is treason?

Historically, treason charges have often been used in many countries not only against those selling out to the enemy but also as a convenient excuse to crack down on government critics.

According to Ukrainian law, treason is an action that “damages sovereignty, territorial integrity, as well as the national, economic or information security of Ukraine; deserting to the enemy in the case of martial law or during an armed conflict, espionage, aiding a foreign state, foreign organization or its representatives in its sabotage against Ukraine.”

Since the definition is broad and vague, it can be interpreted differently.

Gorbatuk and Tytych say that if a very broad definition is accepted, many actions can be considered treason - such as any trade with Russia.

For example, Ukraine imported electricity from Russia in 2021, while Zelensky’s Kvartal 95 comedy studio has sold films on the Russian market through a Swedish intermediary.

Why treason and not corruption?

During his presidency, Poroshenko and his allies were exposed in numerous journalist investigations alleging large-scale corruption, which they denied. Poroshenko’s top allies have also been investigated and charged in corruption cases implicating Poroshenko himself.

“He could have been jailed for economic crimes for life,” Tytych said.

However, instead of prosecuting Poroshenko for alleged corruption with strong evidence, the incumbent authorities decided to go after him in a much more dubious treason case that is harder to prove.

Nayyem argued that the authorities chose the treason charges because their aim is not to deliver justice but to discredit Poroshenko politically by associating him with Medvedchuk and Russia.

Is the case political?

Whether Poroshenko committed a crime or not, the case is widely seen as politically motivated.

Poroshenko, who leads the 27-member European Solidarity faction in parliament, has been one of the main opponents of Zelensky.

Both have made their antipathy for each other public. In 2020, Zelensky said that everyone in Ukraine was "waiting for Poroshenko to be jailed."

This goes along with the fact that numerous cases against incumbent top officials and their associates have been blocked.

These include investigations against Zelensky’s deputy chief of staff Oleh Tatarov, the brother of Zelensky’s chief of staff Andriy Yermak, and members of parliament from Zelensky’s party – Oleksandr Trukhin, Oleksandr Yurchenko and Pavlo Khalimon.

“There are signs of politically motivated persecution (in the Poroshenko case),” Nayyem said, adding that this may allow Poroshenko to win the case in the European Court of Human Rights.

He referred to Zelensky’s critical remarks about Poroshenko when he commented on criminal cases against him previously.

But Krapyvin argued that the substance of the case will be clearer when it is sent to court.

“Until an indictment is sent to court, it’s too early to consider the prospects of the case," he said.

Oleg Sukhov
Oleg Sukhov
Political reporter

Oleg Sukhov is a political reporter at the Kyiv Independent. He is a former editor and reporter at the Moscow Times. He has a master's degree in history from the Moscow State University. He moved to Ukraine in 2014 due to the crackdown on independent media in Russia and covered war, corruption, reforms and law enforcement for the Kyiv Post.

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