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What is an appropriate sentence for espionage in Ukraine? Questions of proportionality

June 5, 2017

It is not that often that spies get jailed.  Especially foreign spies.

Most of the time spies are not arrested as most that are known to be thus are inserted under diplomatic cover.  At best they are sent home persona non grata when they are deemed to overstep the acceptable parameters of their spookery per their diplomatic cover.   Most of the time these people are known to be what they are and not what they purport to be by the host nation.

Illegals, the spies without diplomatic cover are more difficult to identify, and even when they are identified the decision may be made not to do anything immediately – if ever.  Identifying and rolling up networks is not a regular occurrence.

However natives engaged in espionage on behalf of a foreign power, when caught, are generally not dealt with lightly.  Neither should they be.  Dante quite rightly saved the 9th circle of hell for the treacherous.

What then should be the punishment for a senior Ukrainian military officer who passes information to the Russian GRU (military intelligence)?

Certainly an offence that would probably result in incarceration during “peacetime”.

What therefore when passing sensitive and classified information to a nation that is at war with Ukraine at the time of passing?  Would that surely not invite a robust sentence indeed?

Notwithstanding the gravity (or not) of information passed and its effect on national security, there is also the small matter of clearly displaying a severe cost for others that may be engaging in, or that would consider, similar acts of treachery.

About this most readers would agree – even if the guilty repent and fully cooperate, incarceration would both be expected and deemed a proportionate method of punishment (the number of years depending).

A reader may therefore raise an eyebrow, or indeed suffer a furrowed brow at the following court ruling in Ukraine over the subjective issue of proportionality – or not.

Oleh Chebotarev, until very recently was senior Navy officer working within the department responsible for technical support, the accounting of weapons and military equipment of the Naval Forces and special forces planning APU office.

During the period December 2014 to April 2015 Mr Chebotarev spent some time at his apartment in Yalta – within the illegally annexed peninsula by Russia.  During this time he was approached by, and agreed to assist the Russian GRU.

In December 2015, Mr Chebotarev used a flash drive to store information relating to Ukrspetsexport and planned purchases of foreign manufactured UAVs (drones).  In January 2016 whilst visiting Yevpatoria in the illegally annexed Crimea, he  handed the flash drive to the GRU.

It maybe that this was or was not the only document passed.  It is the only document mentioned in the court judgement.  It may or may not have been particularly sensitive at the time.  It may or may not have been classified particularly highly (although a lot of chicken feed is often over-classified when neither content nor method of collection would warrant it so) .  In short it appears to have been chicken feed and not the Crown jewels – at least as far as that which is disclosed within the court judgement.

That said, who is to judge what is chicken feed and what are the Crown jewels?  That may be very much dependent upon where it fits into what the other side has already.  More fundamentally the act of committing be it chicken feed or otherwise is a permanent compromising.  A hook from upon which it may be somewhat difficult to wiggle free from.  It may be that the individual when passing chicken feed is considered a Crown jewel forever compromised.

Whatever the case, the theft of a chocolate bar and the theft of $1 million remain the same crime of theft.  What differs is the proportional response of the judicial machinery when handing down sentencing.

Mr Chebotarev was caught after having returned to Ukraine – though when and how remains undisclosed.  He apparently fully cooperated with the Ukrainian authorities on the proviso a deal be struck regarding his treachery.

Upon going before the court Mr Chebotarev and the Prosecutor General’s Office had agreed no jail time for this act of espionage and his banning from holding office or engaging in the activities of the Ukrainian Armed Forces for 3 years.

The court sentenced Mr Chebotarev to 3 years in prison, but suspended it with 1 year probation during which, naturally, no crime can be committed, and also barred him from holding office or engaging in the activities of the Ukrainian Armed Forces for 3 years.

Proportionate for an act of espionage and treachery by a senior Ukrainian military officer?  Does it send an appropriate message considering the level of infiltration in Ukrainian institutions?

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