Archive for December 9th, 2017

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Saakashvili arrested – Impeccable due process required

December 9, 2017

In between recent NABU related commentary, an entry was published relating to how The Bankova had managed to frame the most recent accusations surrounding MIsha Saakashvili in the most counterproductive way appeared.

There is no doubt that President Poroshenko is a vengeful man.  So is Mr Saakashvili.  There is no doubt that both men feel betrayed by the other.  They are from the same school whereby treachery requires a very public smiting.  Neither are probably as smart as they think they are, yet both consider themselves to be a more wily politician than the other.  In playing out their personal differences upon the public stage of Ukraine, both are damaging the image of Ukraine, and both are probably aware of that.  They just appear incapable of taking their personal fight away from the public realm and back behind the curtain.

The entire operation against Misha Saakashvili has been bungled from the start, leading to successive public, yet unnecessary humiliations for President Poroshenko and The Bankova.  That bungling has almost gone beyond the extremes of incompetence.

Misha Saakshvili’s response has been equally erratic and inconsistent to the point where belligerence for the sake of belligerence has often appeared to be the only mens rea – no doubt to the joy of Ms Tymoshenko who appears an almost “sensible” populist in comparison.  Maybe that is indeed the plan concocted between the two.

With every bungled step, and every spontaneous but less than creative reaction, both seem intent upon being recorded in history as mere squabbling politicians.  The epitaph of “Statesman” will not easily be applied to either as they continue to swap (unless proven) spurious allegations while simultaneously projecting a perception of Ukraine as something akin to a political Banana Republic, otherwise held together by a far wiser population.

So be it.  History is generally kind to a “Statesman”, for a “Statesman” through deliberate, or brave, or enlightened deeds, has a habit of writing history for themselves.  Politicians of limited action and less vision become mere historical footnotes – in recognition of their folly and failures for the most part.  The trajectory of these two men and the incredible amount of wasted energy they are spending attacking each other to the detriment of Ukraine points only toward becoming a Ukrainian historical footnote.

Whatever – the wise readers of the blog are drawn toward policy and not political personality anyway.

The above linked entry concentrated upon the framing of the latest accusations.

Until now, the trading in spurious allegations has been based upon anecdotal evidence at best – as bitter personal relations often are – with the exception of the “Lviv crossing” whereby Mr Saakashvili illegally entered Ukraine and subsequently paid the administrative fine for doing so.

The latest allegations of involvement in a criminal organisation – namely the alleged collusion of Mr Saakashvili with Sergei Kurchenko, a notorious member of the “Yanukovych Family” regime, for once rely upon more than bitter, spurious public comment.

Mr Saakashvili was finally been successfully arrested relating to these allegations on the evening of 8th December.

No doubt he will not be incarcerated for long.

Conditional bail would seem a probable outcome – house arrest, or a large financial commitment, or an electronic tag, or a combination thereof.  Perhaps even unconditional bail.  Whatever the outcome, it will not be time in jail.  The appearance of proportionality, despite the intensity of dislike for Mr Saakashvili by the President, will have to be observed if the international community are to remain mute over the matter.”

Indeed it should be expected that the international community will remain silent for as long as proportionality is observed in any bail arrangements, and for as long as due process remains strictly in adherence with Ukrainian law.  For as long as that remains the case, it will be considered an internal matter for Ukraine – and a mess otherwise best avoided.

In the on-going feud between the these two men however, now evidence is offered by way of SIGINT telephone conversations allegedly between the Messrs Saakashvili and Kurchenko, and an alleged cash for political favour agreement over Mr Kurchenko’s remaining or seized Ukrainian assets, the game has changed.

There are questions to be asked and answered based upon any produced evidence intended for criminal proceedings – and not simply barbed soundbites for public consumption.

Mr Kurchenko is rightly wanted in Ukraine and thus self-exiled to Russia, but it is unclear how he would believe Misha Saakashvili would be able to deliver either the protection of, let alone return of his assets in Ukraine.  Is he anticipating a President Tymoshenko and with that her appointment of Misha Saakashvili to a Cabinet position, or expecting Mr Saakashvili to at least create an “understanding” regarding the deal with Ms Tymoshenko?

Who carried out the SIGINT?

The only authorised body for wiretapping in Ukraine is (unfortunately) the SBU.  Yet it may perhaps be erroneous to jump to the conclusion that it was the SBU.  Perhaps this SIGINT arrived via a different source.  Assuredly it is not only the SBU that monitors Mr Saakashvili’s telephone.  If that source was not the SBU, then who?  And why?

Crucially however when that SIGINT was received whatever the source, did the Prosecutor General have the authenticity verified prior to making it public?

Having presented that evidence in public, the court of public opinion requires a settlement regarding the authenticity of the SIGINT – as will a court of law.  Yet before considering whether the SIGINT is sufficient to convict Mr Saakashvili, it is important to stress the high political stakes this public presentation of the SIGINT has now caused.

It is either genuine, and whether it is sufficient to prove any criminal guilt or not, that Mr Saakashvili simply entertained Mr Kurchenko at all is likely the end of his political efforts in Ukraine – or it is fake, in which case Prosecutor General Lutsenko is finished, and depending upon the speed at which the SIGINT is proven authentic or otherwise, it may well bring about the swift unraveling of the Poroshenko presidency and any reelection prospects – or indeed a second term Poroshenko administration if matters drag on.

No doubt the defence, once it receives the SIGINT, will send it to external experts – if it is sure of its client’s innocence.  Indeed if it is certain of Mr Saakashvili’s innocence, more than one external expert assessment will probably be sought to insure the politically burying, and end of Prosecutor General Lutsenko, and as a result irreparably damaging (a first or second term) President Poroshenko.

There is also the question, for whichever party is lying, of who else may have such SIGINT.  As stated not only the SBU will be listening in to Mr Saakashvili’s telephone.

Inevitably, the timeliness – or not – of any due process and verdict will be called into question.

Who is seen to be delaying matters and why?

A Sword of Damocles meant to hang over Mr Saakshvili and curtail his “unhelpful” actions during electioneering (akin to a similar sword that for years has now hung over Mayor Kernes in Kharkiv), or will it be inferred that any stalling by either defence or prosecution is a de facto admission upon the SIGINT authenticity?

The court of public opinion is a fickle and excitable one, not prone to objectivity.

More broadly, while a court of law will examine any SIGINT in and of itself, the court of public opinion is less stringent in such matters.  If this SIGINT was proven to be fake, then the court of public opinion will question what other publicly released SIGINT is also fake – and there will naturally be certain parties very keen to encourage that line of thinking and take advantage of it.

In short, extreme care will have to be taken to fully follow the evidence and due process rules – as no doubt an international media will be following the trial if and when it comes.  Conviction or otherwise however, the authenticity (or not) of the SIGINT evidence will have repercussions.

The blog however, is far more inclined to follow the Nasirov trial which already appears to be set upon the path of nefarious irregularity via the appointment procedure of a judge with a litany of very dubious historical rulings.  Every effort will be made to insure that case results in Mr Nasirov’s acquittal – so the UK had better be prepared to follow through with its claim on Mr Nasirov as a UK citizen under The Bribery Act.

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