On the pettiness of suspicion of Petro Poroshenko
Yevgeniy Zakharov, Board Chairman of the Ukrainian Helsinki Human Rights Union, Director of the Kharkiv Human Rights Protection Group
On 20 December 2021 SBI and SBU notified Petro Poroshenko by mail of suspicion of treason. Later the text of the suspicion appeared in media.
As it turned out, Petro Poroshenko is accused of treason (Article 111 of the Criminal Code of Ukraine) and aiding and abetting the activities of a terrorist organization (Article 258-3 of the Criminal Code of Ukraine).
Essence of the suspicion
The investigation maintains that several high-ranking officials, Ukrainian citizens, have conspired to promote “terrorist organizations” in order to harm Ukraine’s territorial integrity, inviolability and defence capabilities. These high-ranking officials were Petro Poroshenko, Viktor Medvedchuk, former Energy Minister Volodymyr Demchyshyn, and Serhiy Kuzyara, allegedly responsible for communication with the “LPR/DPR”.
According to the investigation, in October 2014, representatives of the top military and political leadership of the Russian Federation decided to involve Viktor Medvedchuk in criminal activities.
Medvedchuk, assessing the complexity of the tasks set by the Russian Federation, under circumstances not established by the investigation, involved the then President of Ukraine, Petro Poroshenko, in the subversive activities.
The main subject of Poroshenko’s treason is the purchase of coal from Ukrainian enterprises, which they mined in the temporarily occupied territories of Luhansk and Donetsk oblasts.
According to the suspicion, Ukraine was critically dependent on coal mined by “L/DPR”, and the loss of part of Donetsk and Luhansk oblasts threatened a major energy crisis. To avoid a crisis, the government has decided to establish coal supplies from South Africa so as not to buy coal in the Russian Federation..
When the first consignments of coal from South Africa arrived in Ukraine in October and November, Medvedchuk and high-ranking Russian officials decided to cut off supplies from South Africa and establish supplies from “L/DPR”.
To implement this plan, Medvedchuk enlisted Poroshenko, who was to coordinate all decisions and exert administrative influence on executive officials who opposed the plan.
To implement this plan, Poroshenko convened a meeting of the National Security and Defence Council on November 4, 2014, where he questioned the quality of coal from South Africa. He allegedly gave verbal instructions to law enforcement agencies to check the quality of coal and the contract for the supply of coal. After the meeting of the National Security and Defence Council, law enforcement agencies began to check the contract and the quality of coal.
Because of that South Africa refused to supply coal to Ukraine.
According to the investigation, such actions of Poroshenko and Medvedchuk were aimed at organizing the supply of coal from “L/DPR”.
Volodymyr Demchyshyn, who was not against the purchase of coal from the temporarily occupied territories, was appointed Minister of Energy to organize coal supplies with “L/DPR”. Two mines were found in the temporarily occupied territory, they were officially registered in Ukraine, contracts were signed and coal was purchased.
Serhiy Kuzyara, whose actions were coordinated by Medvedchuk, was directly involved in the agreements with the “L/DPR” representatives in the temporarily occupied territories.
We would like to recall that Poroshenko is involved in about 20 criminal proceedings – from receiving a Tomos of OCU to bringing a collection of paintings to Ukraine. Only one case concerning Poroshenko appointing Serhiy Semochko as the first deputy head of the Foreign Intelligence Service made its way to the indictment. All, without exception, criminal proceedings were initiated after the coming to power of Volodymyr Zelensky’s team.
Analysis of the validity of the suspicion
Surprisingly, the 32-page suspicion concerning the events of 2014-2015 begins with a lengthy account of the creation of the United Nations in 1945. Three pages of text in the suspicion are given to the constituent documents of the UN, which have nothing to do with the subject of criminal proceedings. The next 13 pages describe the history of Russian aggression in Ukraine, the purpose and objectives of the “L/DPR”, the Constitution is quoted, as well as the regulations that have been adopted in connection with Russia’s armed aggression. The description of the actions allegedly committed by Petro Poroshenko and their legal qualification begins only on page 17. More than 50% of the text of the suspicion, which either has nothing to do with the case or has an indirect relationship, already raises doubts about its validity.
Let’s move directly to the crimes incriminated to Petro Poroshenko. In particular, we are talking about crimes under Part 1 of Art. 111 and Part 1 of Art. 258-3 of the Criminal Code of Ukraine. Part 1 of Art. 111 of the Criminal Code of Ukraine provides for liability for an act intentionally committed by a citizen of Ukraine to the detriment of sovereignty, territorial integrity and inviolability, defence, state, economic or information security of Ukraine: transition to the enemy in martial law or armed conflict, spying, providing a foreign state, foreign organization or their representatives assistance in carrying out subversive activities against Ukraine.
Mandatory element of the crime under Part 1 of Art. 111 of the Criminal Code of Ukraine is a direct intention to harm the sovereignty, territorial integrity, defence or security of Ukraine. That is, the person had to be aware of the danger of their action, understand its consequences and directly want such consequences. Treason committed through negligence (in any of its subspecies), as well as with indirect intent, will not be considered a crime.
According to the investigation, Poroshenko’s main intention is to satisfy his own political interests, prevent the fall of political ratings and the level of trust as a result of a possible further aggravation of relations with the aggressor state – the Russian Federation. That is, Poroshenko’s intent to commit treason is not seen even from the formulation of intent in the suspicion.
It is difficult to prove direct intent, as it is necessary to specifically justify the person’s subjective perception of certain circumstances. Especially in the case where the suspect committed acts that belonged to the scope of his powers and tasks. In turn, the suspicion, where 3 pages are devoted to UN statutory documents and 13 pages to the history of Russian aggression in Ukraine, the goals and objectives of “L/DPR”, citing the Constitution and regulations adopted in connection with Russia’s armed aggression, does not devote any paragraph to justifying the existence of direct intent to commit treason in the actions of Petro Poroshenko.
Similar is the situation with Part 1 of Art. 258-3 of the Criminal Code of Ukraine, which provides for responsibility for the creation of a terrorist group or organization, its leadership, participation in it, or assistance in the creation or operation of a terrorist group or terrorist organization. The mandatory element for the formation of a crime under this article is the presence of direct intent to promote the activities of a terrorist organization, while the published suspicion does not substantiate that Petro Poroshenko was guided by such motives, and not, for example, overcoming the energy crisis, which took place in autumn 2014.
We would like to recall that in autumn of 2014 an energy crisis began in Ukraine, due to military aggression and economic blockade by Russia, which led to power outages. State mines producing anthracite coal were in the temporarily occupied territory. Coal from South Africa, which was supposed to save the situation, according to examinations conducted as part of the pre-trial investigation, was not of the required quality and was unreasonably expensive. Coal from the temporarily occupied territories was both cheaper and much better. It was common for Ukrainian thermal power plants.
The suspicion does not provide any argument in favour of Poroshenko’s goal of treason and aiding terrorism, and not the state’s position aimed at providing Ukraine with heat and electricity, primarily the provision of two heating plants – Zmiivska and Trypilska, to which investigators refer in suspicion.
The then Prosecutor General Vitaliy Yarema notes that in 2014-2015, the Prosecutor General’s Office did investigate criminal proceedings related to the delivery of low-quality coal to Ukraine from South Africa. Investigative actions were carried out, which included several examinations and interviews with experts, as well as specialists in the coal and heat industries. Several investigative experiments were conducted with the combustion of coal delivered from South Africa, which showed that in thermal power plants, coal delivered from South Africa does not burn on its own and does not create the necessary temperature for the operation of thermal power plants.
The investigation is trying to claim in the suspicion that the examinations that took place in the pre-trial investigation in 2014-2015 were conducted in poor quality or forged. However, there are no criminal proceedings against experts, investigators and others involved in the pre-trial investigation. In addition, the suspicion does not provide any argument in favour of the fact that the examinations are fake or of poor quality.
It should be noted that the suspicion lacks specifics. The most frequently used words in the text of suspicion after the word “Poroshenko” are the words “unknown” and “not established”. In particular, the following is constantly mentioned: “at an unknown time”, “in an unknown place”, “unidentified circumstances”, “unidentified persons”, etc., there is no specific date. Suspicion cannot be justified when most of the details of the alleged crime are “unknown”. Because of so much of the unknown, this suspicion is more like a story than a suspicion. It is impossible to consider Poroshenko’s direct intention to commit treason and aid a terrorist organization justified with such a large number of gaps in the facts.
As for serving the suspicion
The SBI tried to serve the suspicion to Poroshenko on December 17, 2021. However, he ignored attempts by investigators to serve the suspicion and flew to Turkey. On the same day, December 17, 2021, the news appeared on the official website of the political party “European Solidarity”. After that, 4 news items appeared on the official website of the European Solidarity Party from December 18 to 19, 2021, covering Poroshenko’s international meetings, which reflected where, when and with whom he met. That is, his whereabouts were known from public sources. It is incomprehensible to try to “serve” a suspicion as soon as possible, when it is well known about the person’s whereabouts and the reason for his trip..
Later, the SBI and the SBU reported that they had served the suspicion to Poroshenko by mail, however, the CPC does not provide for such a method. The notice of suspicion is the “message” itself, i.e. informing about its essence, so the moment of serving the suspicion must be consistent with the principle of legal certainty. Thus, the suspicion can be considered served only from the moment the person actually receives such notification. This principle cannot be observed in the case of formal sending of a notice of suspicion by mail, without evidence of receipt by the future suspect of such notice.
It is also worth noting who signed the suspicion of Petro Poroshenko. According to the CPC, the Prosecutor General or his/her deputy has to sign the suspicion of the People’s Deputy. However, it so happened that both Prosecutor General Iryna Venediktova and her first deputy Roman Hovda were on vacation, and the suspicion was signed by Deputy Prosecutor General Oleksiy Symonenko. In our opinion, this may indicate that I. Venediktova and her first deputy do not want to be involved in this case.
It should also be noted that Poroshenko’s suspicion was signed on December 20, 2021, although it was first attempted to be served on December 17, 2021.
In accordance with Part 1 of Art. 278 of the CPC, a written notice of suspicion is served on the day of its preparation by the investigator or prosecutor, and in case of impossibility of serving it in such a way – in the manner prescribed by this Code for service of notices. The CPC does not specify such cases. On December 17, 2021, investigators tried unsuccessfully to serve a notice of suspicion to Poroshenko, and on December 20, 2021, investigators allegedly served the same suspicion, but by mail, but it was dated December 20, 2021. There are two possible options: either the investigators did not comply with the CPC’s requirements and violated the law, or they are two different suspicions.
Signs of the political persecution
Volodymyr Zelensky, starting with the election campaign, has constantly spoken directly or indirectly about the need to “imprison” Petro Poroshenko. The slogan “when spring comes we will imprison” was, first of all, addressed to Poroshenko. Later, such statements began to be made by the Prosecutor General, MPs and other high-ranking officials. This is a clear sign of the political motives for the persecution of Petro Poroshenko.
Thus, the President of Ukraine, the Office of the Prosecutor General of Ukraine, MPs of Ukraine in their statements made direct or indirect accusations against Petro Poroshenko before the conviction, contrary to the principles of fair trial set forth in Article 6 of the Convention for the Protection of Human Rights and Fundamental freedoms.
Thus, according to the case law of the European Court of Human Rights (ECtHR), the right of every accused person to be presumed innocent and to impose on the prosecution the burden of proof is a general notion of a fair trial within the meaning of Article 6 § 1, which is applied to the procedure of delivering the sentence (“Grayson and Burnham v. the United Kingdom, §§ 37 and 39).
At the same time, Article 6 § 2 of the Convention seeks to prevent the violation of the right to a fair trial by prejudicial statements directly related to the trial (Ismoilov and Others v. Russia, § 160). Thus, the presumption of innocence may be disregarded not only by a judge or a court, but also by other public authorities (Allenet de Ribemont v. France, § 3). This applies, for example, to police officers (Allenet de Ribemont v. France, §§ 37 and 41), the President of the Republic (Peša v. Croatia, § 149). Speaker of Parliament (Butkevičius v. Lithuania, § 53), prosecutor (Daktaras v. Lithuania, § 42), etc.
Article 6 § 2 of the Convention prohibits any statements by officials of public authorities concerning an ongoing criminal investigation which would give the public grounds to convict the suspect and would prejudge the views of the facts by the relevant judicial authorities (Ismoilov and Others v. Russia, § 161). The ECtHR emphasized the importance of choosing the words used by officials in statements concerning a person who has not yet been convicted and recognized as guilty of a criminal offence (Daktaras v. Lithuania, § 41). At the same time, the prosecutor’s biased remarks in themselves raise issues under Article 6 § 2 of the Convention, notwithstanding other considerations under Article 6 § 1, such as those relating to unfavourable pre-trial publicity (Turyev v. Russia, § 21).
Given the above, it is typical that Poroshenko’s criminal prosecution has hidden political motives. Such motives are: the elimination of the main opposition candidates for the post of the next President of Ukraine, the prevention of opposition non-pro-governmental rhetoric and the implementation of election promises of the current government and the increasing of its political rating. If the state successfully attempts to detain Poroshenko and place him in custody, Article 18 in conjunction with Article 5 of the Convention will be violated. The ECtHR has already recognized human rights violations in the criminal prosecution of opposition figures in Ukraine, in particular Articles 5 and 18 of the Convention in cases “Tymoshenko v. Ukraine” and “Lutsenko v. Ukraine”.
In conclusion, in our opinion, the investigation did not substantiate the suspicion of treason and aiding and abetting the activities of a terrorist organization, as it did not provide any arguments as to whether Petro Poroshenko intended to commit these acts. The investigation illegally tried to hand over this unfounded suspicion to Petro Poroshenko. Even the event of a crime under Article 111 of the Criminal Code of Ukraine (treason) and Article 258-3 of the Criminal Code of Ukraine (assistance to a terrorist organization) is not seen in the case.