To the West it smacks of selective justice, to many in power it’s a full fledged anti-corruption campaign.
By the time U.S. and European Union officials started publicly expressing concern about political persecution under President Viktor Yanukovych, some of the first alleged victims – former Customs Service chief Anatoly Makarenko and former Naftogaz deputy head Ihor Didenko – had already been languishing in prison for six months.
The statements, first by the U.S. Embassy on Dec. 30 followed by an EU statement of concern on Jan. 11, came too late for Makarenko and Didenko. The two men are among a growing number of political opponents, most with ties to ex-Prime Minister Yulia Tymoshenko, who may only be guilty of following her orders while in power.
Yanukovych describes the arrests and criminal investigations as part of an anti-corruption drive to restore law and order. In an interview at the World Economic Forum in Davos, Switzerland, Yanukovych flatly denied any political motives behind the investigations of Tymoshenko allies. “This is not true,” Yanukovych said in a recent interview with the Washington Post.
The country has started a broad campaign against corruption and violation of the law. It is not a selective approach based on political reasons. This campaign affects representatives [regardless of] political party.”
– Viktor Yanukovych, president of Ukraine.
“The country has started a broad campaign against corruption and violation of the law. It is not a selective approach based on political reasons. This campaign affects representatives [regardless of] political party.”
However, to others it looks like Makarenko and Didenko are simply the latest victims of a political feud between Tymoshenko and Yanukovych.
Now, with power having shifted decisively to the president, his allies have all the tools and agencies at their disposal to exact revenge – if those are the feelings they have been nursing during years in opposition to Tymoshenko.
Independent analysts and human rights activists say the arrests and pretrial confinement of Makarenko and Didenko appear designed to punish those who threatened the interests of the president’s inner circle and his billionaire backers two years ago in a dispute over 11 billion cubic meters of gas – worth more than $3 billion.
Yevhen Zakharov, head the Kharkiv Human Rights Group, said unclear accusations, excessive pretrial restrictions, arbitrary selection of evidence and failure to follow legal norms are all signs of political persecution.
“These men define the term,” Zakharov said.
“Recent repeated statements by the president calling on former officials ‘to prove their innocence in court’ contradict the presumption of innocence and should be setting off alarm bells. They run counter to what’s written in the constitution and give the impression this case is more about retribution than justice.”
| Excerpt from Ukrainian Constitution: Article 62 A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty. No one is obliged to prove his or her innocence of committing a crime. An accusation shall not be based on illegally obtained evidence as well as on assumptions. All doubts in regard to the proof of guilt of a person are interpreted in his or her favour. In the event that a court verdict is revoked as unjust, the state compensates the material and moral damages inflicted by the groundless conviction. |
Serhiy Taran, a political analyst and director of the Kyiv-based International Democracy Institute, said it looks like scores are being settled.
“Two years ago, Makarenko and Didenko were instrumental in taking away what Yanukovych and backers valued the most: wealth and influence.”
Taran was referring to the deal reached between by former Prime Minister Yulia Tymoshenko and her counterpart Vladimir Putin on Jan. 19, 2009, to remove Swiss-based RosUkrEnergo as intermediary in lucrative gas deals between Ukraine and Russia. Gazprom owns 50 percent of RosUkrEnergo, while Ukrainian businessmen Dmitry Firtash and Ivan Fursin reportedly control 45 and 5 percent stakes.
Andriy Portnov switched sides from Yulia Tymoshenko and is now in charge of judicial reform for President Viktor Yanukovych.
| That was then…this is now “Isn’t this a flagrant conflict of interest? [Security Service of Ukraine chief Valeriy Khoroshkovsky] has already admitted in an interview with Ukrainska Pravda that he is a business partner of [Dmytro] Firtash. And yet he is fully in charge and has inserted himself into an investigation directly involving Firtash. This is pure corruption. Doesn’t Khoroshkovsky think it would be appropriate for him to remove himself from this case altogether? If I were a small-town prosecutor, I would open a case against Khoroshkovsky for corruption. And if I were higher up in the prosecutor’s office, Khoroshkovsky today would be detained and brought before a court on charges of abuse of office.” – Andriy Portnov on March 5, 2009, when he was a parliamentarian in Yulia Tymoshenko’s bloc. |
Tymoshenko and Putin agreed in writing to use RosUkrEnergo’s $1.7 billion debt to Russia’s Gazprom for gas already transported as advance payment for transiting future Russian gas supplies to Europe.
In return, state-owned Naftogaz acquired ownership of 11 billion cubic meters of gas belonging to RosUkrenergo.
While the deal was hailed in the West, former President Viktor Yushchenko, Yanukovych and the president’s allies – Dmytro Firtash and Valery Khoroshkovsky – criticized the seizure of RosUkrEnergo gas.
RosUkrEnergo filed a claim in the Stockholm arbitration court and, once in power, it appeared that the new Ukrainian government dropped its claim to the gas – allowing it to go back to RosUkrEnergo.
That wasn’t enough, evidently, to satisfy the new administration. Khoroshkovsky, who had business interests with Firtash in the nation’s most watched television station Inter, led criminal investigations as Security Service of Ukraine chief into officials involved in carrying out Tymoshenko’s order to seize the gas – which she says she had Moscow’s permission to claim, as part of the Jan. 19, 2009, accords.
And that includes Makarenko and Didenko, who participated in the transfer of ownership of the gas from RosUkrEnergo to state monopoly Naftogaz.
After Khoroshkovsky stepped down as Customs Service chief on Jan. 28, 2009, Yushchenko promptly appointed him deputy chief of the Security Service.
The premier law enforcement agency promptly launched an investigation into the gas transfer. Masked SBU agents in March 2009 stormed the offices of Naftogaz and its subsidiary, Ukrtransgaz, to seize records.
A Kyiv court quashed the probe, which was reactivated after Yanukovych won the 2010 presidential election and gave Khoroshkovsky the top job at the Security Service. Makarenko was summoned for questioning.
SBU agents called Makarenko this summer to ask him to cut short his family vacation abroad and return for questioning. He complied. A day after returning to Kyiv on June 22, he was summoned for questioning at SBU headquarters and arrested.
Next came Didenko, who was tackled a week later in Kyiv by members of the SBU’s elite “Alpha” special forces unit. Five more lower-ranking officials, three from the Customs Service and two from Naftogaz, were next called in for questioning and charged with various offenses. State prosecutors, meanwhile, announce criminal investigations against at least a dozen former government officials, including Tymoshenko.
Makarenko’s lawyer, Yuriy Sukhov, said SBU agents prevented his client from leaving the SBU headquarters building after the initial interrogation.
“They conferred with their superiors for a couple hours before bundling him off him to a temporary holding facility for convicted criminals in Kyiv’s Podil district,” he said.
Sukhov said Makarenko was subsequently transferred to the Lukyanivska pretrial detention center after Kyiv’s Pechersk district court ruled that he might flee trial or improperly influence the investigation.
Makarenko was held on suspicion of dereliction of duty for the first five months of his pretrial detention. The SBU on Sept. 30 dropped those charges, accusing him instead of abuse of office – a more serious offense. Initially charged with embezzlement, Didenko is now accused of exceeding his authority.
SBU spokeswoman Marina Ostapenko said her agency completed its pretrial probe of seven former Customs Service and Naftogaz officials on Oct. 8, 2010.
The entire case is based on the imagination of investigators – not testimony from witnesses or independent experts about any crime allegedly committed.”
– Yuriy Sukhov, Anatoliy Makarenko’s lawyer.
She said the SBU is carrying out the pretrial investigation because the law enforcement agency was the first to find evidence of wrongdoing. However, according Article 112 of the Criminal Procedural Code, the state prosecutor’s office is obliged to conduct investigations “in all cases related to crimes committed by high-ranking officials” – a description that fits the cases of Makarenko and Didenko.
“The entire case is based on the imagination of investigators – not testimony from witnesses or independent experts about any crime allegedly committed,” Sukhov said.
Serhiy Baturin, a lawyer representing Didenko, echoed the sentiment. “It’s Kafkaesque,” he said. “The fact that the SBU, which is headed by someone with ties to Firtash, is running the investigation is in and of itself a travesty,” Baturin said.
Yuriy Yakymenko, an expert at Kyiv’s Razumkov think tank, said the cases show the nation continues to be hobbled by “a dysfunctional judicial system and a security apparatus that retains many habits of the Kuchma era, a problem Yushchenko said he recognized but did little to fix. This doesn’t mean former officials, including Makarenko and Didenko, didn’t commit illegal acts. But it does mean it will be very difficult for them to get a fair trial.”
“Recent surveys show that very few people believe the arrests are part of a sincere effort to battle corruption,” Yakymenko added. “These cases only reinforce that sentiment.”
Kyiv Post staff writer Peter Byrne can be reached at [email protected].
