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The first of many “wrongful dismissal” verdicts?

May 26, 2015

In October last year, an entry was published questioning the long term consequences that lay await after the “Lustration Law” – “The issue with “OK” legislation for a subject as serious as lustration, is that ultimately European Court of Human Rights appeals may very well result – with rulings granting compensation and strong suggestions of reappointment to follow, thus inflicting Ukraine to needless costs and possibly reinfection of a cleansed (or at least cleaner) system with the possible reinstatement of the corrupt it would have already once removed.”

The following is not a case of “lustration” per se, but nonetheless similar in nature, outcome and quite probably subsequent recourse for many “lustrated” that (whilst quite possibly guilty) where not dealt with correctly nor investigated properly.

This is the summarised case of Interior Ministry, Odessa District Investigator Vitaly Sofiyanik, sacked by the Ministry of Internal Affairs (not prosecuted in any way) for “separatism”.

The evidence employed to justify his sacking, a VKontakte social media account under the name Vitaly S, which displayed an avtar of the St George ribbon, a symbol that since last year has sadly become as associated with “separatists (and Kremlin fighters)” as it has with war veterans and those that sacrificed themselves in the fight against Nazi Germany.  The St George ribbon avtar was annotated with the word “Riot”.  The Vitaly S VKontakte account was also a member of the social groups “Odessa People’s Republic”, “South East Federation” and “Antimaidan”, all of which were anti-Kyiv and/or pro-Kremlin.  All ultimately failed in Odessa due to a severe lack of public interest in their cause(s).  There were also cartoon entries mocking the MIA and a displaying photographs of Sevastopol “2014, Russia”.

The 2007 VKontakte account of “Vitaly S” was exposed as indeed being a VKontakte account of Vitaly Sofiyanik, MIA District Investigator, by local journalist Dmitriy Bakaev, on “Circle TV”, a local television station in Odessa.

So far, so circumstantially condemning – thus the sacking of District Investigator Sofiyanik, by the MIA swiftly followed – creating a vacancy, subsequently filled, at his Suvorov station.

Mr Sofiyanik then appealed to the Odessa courts for wrongful dismissal – claiming in court that as a District Investigator, he had used the VKontakte account to infiltrate the separatist groups in an attempt to obtain intelligence and evidence.

If that be true, then he was certainly not alone in pursuing that line – the SBU, militsia, intelligence personnel attached to embassies and consuls were all trawling the social networks for “persons of interest” and any apparent signs of an “up-lift” in “separatist” sympathies.  No doubt amongst all that trawling a few other SBU and militia run VKontakte accounts also joined these aforementioned social groups for exactly the same intelligence gathering reasons.  Infiltration, infiltration, infiltration (though hopefully not agent provocateur).

Indeed, there are several marketing companies in Odessa that run a stable of fictitious VKontakte accounts across all demographic lines, carefully building each profile a history/legend and joining certain social groups.  These marketing companies then subtly employ these profiles to promote this or that – often having approving conversations over a product amongst the fake profiles for others to read and “take the bait”.

The upshot is that the Odessa District Administrative Court has now found in favour of Mr  Sofiyanik, accepting his version over the VKontakte profile, thus ruling that the MIA unlawfully sacked him and that he is to be reinstated – with UAH 11,800 back pay.  Judge Igor Zavalniuk stated that the MIA Commission’s conclusions “are based on assumptions and are not backed by facts.  The presence of the image of St. George’s ribbon, as well as accommodation in the photo comic material relating to the Minister of Internal Affairs of Ukraine, as well as photos of Sevastopol 2014 – Russia, cannot testify to support the separatist manifestations, or constitute actions which undermine the credibility or discredit the bodies of internal affairs.”

The learned Judge may indeed be quite correct.  What chances of a genuine and thorough internal investigation/discipline hearing within a still very politicised MIA – particularly to is those early, most volatile of days.

Questions therefore arise over the breadth of “discretion”, and the “depth” of confidentiality within which District Investigators work as individuals, and, of course, any oversight and supervision that District Investigators may or may not have, in what remain highly corrupt and Kremlin infiltrated institutional systems.

Perhaps others were aware of Mr Sofiyanik’s well-meaning actions but, as with the poorly crafted “Lustration Law”, when matters were exposed and likely to cause (perhaps violent) public disquiet, the man was sacrificed for the sake of “peace and stability”.  Something had to be seen to be done – and swiftly.

Maybe, in the still unreformed Odessa Courts, this verdict was simply “bought”.  Then again, as the MIA can appeal the decision, perhaps such a practice would be deemed too risky – for surely “lustration” will eventually reach the Odessa judiciary in a far more meaningful way than that which has so far taken place.  A decision reached purely upon the evidence (or lack thereof)?

Will the MIA appeal?

If the MIA do appeal and win, then it’s off to the ECfHR the case will go, adding yet another case originating from Ukraine to an already disproportionately high number – and as stated in the entry linked within the very first line of these ruminations, it will find company amongst numerous procedurally flawed/evidence lacking “lustrations” that will also head to Strasbourg.

If the MIA doesn’t appeal, then either justice for Mr Sofiyanik has been done, or there is a cancerous cell returning to a still  infected/infiltrated institution.

It is not a question of whom to believe, it is a question of the burden of proof and reasonable doubt, ladies and gentlemen of the jury.

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