The Prosecutor demanded 10 years

The following is not, unfortunately, about Mikhail Khodorkovsky, and this is not only because the latest Moscow show trial-remake could carry an entirely real 22 year sentence for fictitious crimes. The words also apply to what has all the hallmarks of a frightening travesty of justice unfolding in Ukraine. How it is treated now will demonstrate whether the Ukrainian leadership’s commitment to democracy and the rule of law is real or for show only.

On 2 March, the Voroshilovsky District Court in Donetsk sentenced Boris Penchuk to 8 years imprisonment for extortion (Article 189 § 4 of the Criminal Code) and giving false testimony (Article 383 § 2). The former Director of the Donetsk shopping complex “Bely Lebed” [“White Swan”], and later co-author of a book entitled “Donetsk mafia”, was convicted of the same crime he had accused another man, also Boris, of back in 2005. It was this man, Boris Kolesnikov, in 2005 Head of the Donetsk Regional Council and now National Deputy from the Party of the Regions, who made the claims against Penchuk which have led to this sentence. Kolesnikov has never concealed his burning desire to punish all those responsible for four month imprisonment on remand in 2005, and it would be hard to imagine a better form of revenge.

There are any number of things we can imagine however we are dealing here with a court ruling. It is therefore extremely disturbing that in many reports and articles in the media we can learn a great deal about all kinds of political intrigues, battles and reprisals, as well as about the personal views of the journalist (or those behind a given text). Nor have politicians been in any way reticent, with quite a number, especially members of the Party of the Regions expressing very strong views about the case and “who else” should be brought to answer.

I am not offering my point of view with regard to the case. I have no such point of view and am anyway more accustomed to relying on the verdict of the court than on the verbal outpourings and vitriol of politicians. Nonetheless the verdict does present difficulties. Despite the specific legalese, it is difficult not to notice the unsubstantiated and monotonous repetition of phrases like “venal motives” etc. When the point is so stubbornly laboured, it is difficult not to find the argumentation in such a responsible document less than convincing.

There is also another problem which makes the need for public attention to this case so imperative. In a thoroughly bizarre twist one of the lawyers supposedly representing Penchuk has stated that he does not expect justice in Donetsk and is therefore intending to lodge not a normal appeal, but a final cassation appeal with the Supreme Court. This could seriously jeopardize his client’s right to a fair trial, and with questions already legion, must be prevented.

The case in brief

In 2002 Boris Penchuk and members of his family sold a controlling package of shares in the shopping complex “Bely Lebed” to Boris Kolesnikov. According to the Verdict, Penchuk asked for the amount of each share to be given as 0.63 UAH, whereas the real price was 2.60 UAH.

In spring 2005 Penchuk accused Boris Kolesnikov, former Head of the Donetsk Regional Council and a prominent figure in Yanukovych’s Party of the Regions of having extorted the shares for much less than their market level on threat of physical reprisals if he refused.

Kolesnikov was under fire from the new regime following the Orange Revolution and these charges were used to remand him in custody for a few months before lawyers and prominent friends managed to secure his release. The Human Rights Ombudsperson Nina Karpacheva spoke out in his defence. The two were to become political colleagues when they both secured mandates from the Party of the Regions and became National Deputies in the March 2006 parliamentary elections.

In April 2006 the Prosecutor General closed the criminal investigation into the allegations made by Boris Penchuk. As mentioned, Kolesnikov has been vocal in calling for those who had him imprisoned, including the Minister of Internal Affairs, Yury Lutsenko, to themselves be prosecuted. In July 2007 the Donetsk Regional Prosecutor declared Penchuk on the wanted list, and initiated a criminal investigation against him under Articles 383 § 2 (knowingly making a false report of a crime”) and 384 § 2 (“knowingly false testimony”). At this stage, no mention was made of the more serious charge of extortion and Penchuk was never detained, although he made no attempt to hide from the police.

Rather dramatically in October 2007, Penchuk publicly withdrew all his accusations and claimed that he had made them under pressure from the then (and present) Minister of Internal Affairs Yury Lutsenko. The latter denied all such claims.

Boris Penchuk was suddenly taken into custody in October 2008. It is unclear when the charge of extortion was added.

It is for another court, and if necessary all other courts right up to the European Court of Human Rights, to determine what the truth was in this case.

It is extremely disturbing, however, to read in the Verdict used to sentence a man to 8 years imprisonment of an “unidentified individual” with whom Penchuk was supposedly conspiring to commit the imputed crime and who, without identifying himself (!) gave testimony to the police.

A tragic farce is unfolding at present in Moscow, with the courts playing their part. Whether or not all players will, puppet-like, meekly follow instructions, is this time not one hundred percent clear, and will to a large extent depend on how intent international scrutiny remains.

It is frustrating to hear entirely similar accusations and assumptions regarding puppet courts made about the situation in Ukraine. It is even worse that the optimism needed to reject such allegations would seem clinically diagnosable. Not one politician has seen fit to mention the importance of judicial independence. They have all, including the Minister of Internal Affairs effectively commented not on a legal case, but on a political event acted out in a courtroom.

It is baffling – and worrying – that Penchuk’s lawyer could even be thinking of not following the proper procedure in this case. There is no reason to assume unquestioningly that the Supreme Court will overturn the ruling, and it will then be too late to follow the normal avenues. Even the European Court of Human Rights would then be likely to turn down an application on the grounds that domestic measures were not exhausted.

It is vital not only that the right each person has to a fair trial, including all stages of appeal, is fully observed, but also that attention both within Ukraine and from concerned observers outside the country is firmly focused on this case, to ensure that the rule of law prevails.

The reader may well think that it’s already too late, that the judiciary is corrupt to the core and that there’s nothing left to salvage. Over recent times this is what all, including politicians, have been bellowing. It’s convenient for them if everybody believes this, after all only an idiot will try to reform what cannot be changed.

And yet, despite the worrying sentence in Penchuk’s case, we are still a long way from the legal travesty which is increasingly known by the name of one most notorious Moscow court – “Basmanny justice”. Let’s make sure that this remains the case.

Halya Coynash.

( categories: Editorials )