Weak evidence presented by prosecutors and domestic and international pressure were among the factors that led to the release of ex-Georgian President Mikheil Saakashvili from custody on Dec. 11 by Kyiv’s Pechersk Court, analysts and lawyers say.
The prosecutors’ case presented during the Dec. 11 ran counter to Prosecutor General Yuriy Lutsenko’s claims that he has bullet-proof evidence of Saakashvili’s alleged crimes and President Petro Poroshenko’s earlier promise to “ensure transparency of the investigation, complete openness, impartiality of the investigators, and a transparent, fair, and effective trial.”
Lutsenko has accused Saakashvili of getting funding from oligarch Serhiy Kurchenko, an ally of ex-President Viktor Yanukovych, to finance rallies against the authorities and plot a coup d’etat. However, formally Saakashvili has been charged only with “complicity in an organized crime group.”
Saakashvili believes the arrest to be a political vendetta by Poroshenko and says the criminal case is fabricated.
Lutsenko said he would appeal the court ruling, and a trial is expected regardless of whether Saakashvili is under arrest.
Court decision
There are three versions of why Pechersk Court Judge Larysa Tsokol on Dec. 11 released Saakashvili and rejected the prosecutors’ motion to put him under house arrest.
First, she could have found that the prosecutors’ case was extremely weak and made the decision independently. Second, she could have made the decision due to fear of a backlash from civil society and the West. Third, Tsokol could have been ordered by the authorities to release Saakashvili due to their fear of a potential domestic and international fallout.
About 20,000 protesters demanded Saakashvili’s release on Dec. 10 in what appeared to be the largest rally in Kyiv since 2014. Moreover, Western governments have expressed concerns about Ukrainian authorities’ crackdown on anti-corruption institutions and the opposition.
Zlata Simonenko and Volodymyr Petrakovsky, law enforcement experts from the Reanimation Package of Reforms, said that the Pechersk Court is effectively controlled by the Prosecutor General’s Office.
“The prosecutors didn’t prove that the notice of suspicion was justified,” Simonenko told the Kyiv Post. “It is controlled (by the Prosecutor General’s Office) but the court doesn’t always make decisions that they want.”
Petrakovsky, himself a former prosecutor, offered a different explanation.
“The prosecutors’ position was weak, the case materials were absolutely confusing, and Saakashvili was illegally arrested, the lawyers worked well, and the judge was quite competent,” he said. “But if Western pressure on the Presidential Administration had been weaker, the judge would have put Saakashvili under house arrest, as requested by the prosecutors. No independent decisions are made at the Pechersk Court.”
Judge’s background
Tsokol has a mixed record – she had made decisions in favor of the authorities but also ones that contradicted their interests. She has tended to release high-profile suspects.
In 2015 Tsokol released Hennady Korban, an opponent of Poroshenko, from custody.
Tsokol refused to arrest top prosecutor Oleksandr Korniyets, a suspect in a major corruption case, in 2015.
In 2004 she also ruled to close the criminal case against senior police official Oleksiy Pukach. He was later caught and convicted in 2013 of murdering journalist Georgy Gongadze.
Weak evidence
The alleged evidence that the prosecutors presented in court has been described by both Saakashvili’s lawyers and independent ones as unconvincing and extremely weak.
The prosecutors referred to alleged testimony given by unidentified Security Service of Ukraine (SBU) agents “Hare” and Wolf” to make their case.
Saakashvili’s lawyer Valeria Kolomiets accused the prosecutors of falsifying and backdating the alleged evidence because the alleged events to which the agents referred as having happened in the past took place after the agents mentioned them, according to the prosecutors’ documents.
In his testimony dated as the afternoon of Oct. 11, Hare said that he was asked to transfer Kurchenko’s money to Severion Dangadze, an associate of Saakashvili, early on Oct. 12, Kolomiyets said. Wolf also talked in the afternoon of Oct. 11 about the transfer that allegedly happened early on Oct. 12, she added.
Wolf and Hare also testified around midday on Oct. 19 about alleged events that happened in the evening of Oct. 19, and they also testified on Nov. 28 about events that allegedly happened on Nov. 29, Kolomiyets said.
Saakashvili’s lawyers said all three attempts to arrest him – on Dec. 5, Dec. 6 and Dec. 8 – were illegal because no arrest warrants were issued by courts.
The prosecutors could not explain during the hearing why they tried to detain him on Dec. 5 and Dec. 6 without court warrants and said that the Dec. 8 arrest happened without a court warrant because Saakashvili was in the process of committing a crime. They refused to elaborate which crime he was committing.
The Prosecutor General’s Office and the Security Service of Ukraine did not respond to repeated requests for comment.
Kurchenko tapes
To prove Saakashvili’s alleged guilt, Lutsenko has played what he claimed were an intercepted phone conversation allegedly between Saakashvili and Kurchenko and also alleged conversations between Dangadze and an unidentified associate of Kurchenko. Saakashvili said that the tapes had been faked.
Lutsenko said on Dec. 11 that he was ready to prove that the tapes are genuine and to involve experts from the U.S. Federal Bureau of Investigations and British police for the purpose.
“I disagree with the judge’s decision,” Lutsenko said. “I can’t imagine in what country a stateless person can break through the border and organize a movement to overthrow the government financed by Kurchenko.”
Saakashvili responded to Lutsenko’s accusations on Dec. 10 by accusing Ukrainian authorities of colluding with Russian dictator Vladimir Putin.
“Saakashvili in a Kyiv prison is the biggest dream of Putin and Russia’s Federal Security Service,” Saakashvili said during the hearing. “Here we witness high treason. Someone on Bankova Street (where the Presidential Administration is located) has decided to give such a gift to Putin.”
The Prosecutor General’s Office also said on Dec. 12 it had summoned Saakashvili for an interrogation on Dec. 18.
Five independent lawyers said that they saw no evidence of a crime in the recordings, even if they are genuine. They included Vitaly Tytych; Mykola Khavronyuk, a law professor at the Kyiv-Mohyla Academy; Sergii Gorbatuk, head of the in absentia investigations unit at the Prosecutor General’s Office; criminal law expert Hanna Malyar, and Halya Coynash, a member of the Kharkiv Human Rights Protection Group.
Kramatorsk link
The Saakashvili case was initially opened as part of another controversial case linked to the confiscation of $1.5 billion by a Kramatorsk court. Critics have dismissed the confiscation hearings as a political show, as both the investigation and the trial were conducted in secrecy and over just two weeks, and the ruling was not published.
The prosecutors claimed that the confiscated money was linked to Kurchenko. But in November the National Anti-Corruption Bureau said $157 million of that amount belonged to fugitive lawmaker Oleksandr Onyshchenko’s firms, not Kurchenko, and that it was stolen by unknown people after being confiscated and transferred to Oshchadbank.
Kurchenko’s comments
Kurchenko on Dec. 11 denied any links to Saakashvili, saying he would file a lawsuit against Lutsenko for accusing him of financing the ex-Georgian president.
He also said that he bought UMH media group from Poroshenko in 2013 for $400 million, and no taxes were paid on the sale in Ukraine.
Formally the group sold by Boris Lozhkin, a close associate of Poroshenko and later his chief of staff, but Poroshenko has been accused of having an informal stake in the group. In 2014 Austrian authorities opened a money laundering investigation into the sale. Poroshenko and Lozhkin denied the accusations of wrongdoing.
