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19.05.2020 | Halya Coynash
The right to a fair trial

Ukrainian court ignores Geneva Convention in worrying sentence against former POW

   

Ivan Beziazykov is facing a 13-year sentence imposed by a Ukrainian court although all the actions he is accused of fall under the Geneva Convention on the treatment of prisoners of war, which Ukraine is a party to. 

This is just one of the reasons why Dnipro lawyer Vitaly Pogosian is critical of the charges against Beziazykov and the verdict  passed by the Shevchenkivsk District Court on 7 April 2020.  The court found Beziazykov, a colonel of Ukraine’s Armed Forces and, at the time of his capture, the head of a military reconnaissance unit, guilty of treason, under Article 111 § 1 of the Criminal Code and of involvement in a terrorist organization under Article 258-3 § 1.  The charges sound very serious, however Pogosian is not alone in questioning their justification given that they pertain to actions carried out while totally under the control of the POW’s captors. .

Pogosian believes that, “in passing the sentence, the court resorted to an arbitrary interpretation of events in Eastern Ukraine and reached conclusions on the basis of legislation which came into force after the events that Beziazykov was charged with.”

Pogosian quotes the relevant passages from various laws which demonstrates, he asserts, that the court has wrongly denied the existence in Ukraine from 18 March 2014 of “a special period”, which the court says “is defined as war”, and  that its conclusions regarding the definition of an internal armed conflict are faulty.

This is of importance given the changing definition of the military conflict in Ukraine and the charges that were laid against a military officer held in captivity. 

It is clear that Beziazykov was in possession of state secrets, yet there is nothing in the verdict to suggest that at any time during his captivity, from 16 August 2014 to 5 July 2016, any such secret information was used by the militants.

As mentioned, the court did not take the Geneva Convention on Treatment of Prisoners of War into consideration despite constantly repeating that Beziazykov was held in captivity on non-government-controlled territory in Donetsk and Donetsk oblast.  It did not deny that from 16 August 2014, Beziazykov had been held, together with other POWs in Donetsk and that he had been subjected to physical violence and interrogated.  This was the first of several places where Beziazykov was held prisoner. He was not allowed any contact with his family and was held separate from the other POWs.

Although Beziazykov was in captivity for almost two years, the charges of state treason and involvement in a terrorist organization pertain to only nine months.  The question therefore arises, Pogosian says, as to why a person who, according to the prosecution, was carrying out certain tasks for the militants, remained in captivity for a further year after the end of these alleged services.  He cites several articles of the Geneva Convention applicable in Beziazykov’s case: Article 17 On being bound to give, if asked his rank, army number, etc; Article 27, on receiving clothing; 49 and 51 on labour; 60 and 62 on payment; and 70 and 71 about contact with family.  All of the conditions were clearly violated by the militants, but Pogosian’s point is that all of the actions that Beziazykov was accused of fall under the Geneva Convention. 

Beziazykov was taken prisoner, together with two subordinates, on 16 August 2014 while trying to retrieve the bodies of soldiers killed in a battle near Stepanivka. 

He has spoken of the torture that he was subjected to, with his account similar to that of other POWs, hostages and Ukrainian political prisoners held in occupied Crimea or Russia.  He said in court that he had seen no sense in concealing either the fact that he was in command or his name, since the militants would have simply used torture against him or his men to obtain the information. In fact, Article 17 of the Geneva Convention says that such details are part of the limited information that a POW is bound to provide.  Beziazykov says that, having understood that he was no rank and file soldier, the militants held him separately from his two subordinates who were exchanged over the following year.   

Virtually nothing was heard from Beziazykov during that period, though he was able to phone his wife briefly in May 2015.  Then in April 2016, he called her again and asked that he be added to the exchange list.  He returned home on 5 July 2016, and at that stage, was treated as a hero, and videoed at a meeting with President Petro Poroshenko. 

He was arrested on 12 December 2016 and initially accused only of collaborating with the DPR militants.  The more serious charge, of state treason, was added later. He and his lawyers assert that this was after the SBU [Ukrainian Security Service] tried to get him to give essentially false testimony, about the downing of the Malaysian MH17 airliner, or about financing of terrorism (which Ukraine is accusing Russia of, in a court case before the UN’s International Court of Justice). 

He has been in custody since December 2016, with the court trial having dragged on for over two years.  The sentence passed at the Shevchenkivsk District Court on 7 April 2020, under presiding judge Lidiya Shchebunyaeva, together with Vitaly Tsyktich and Oksana Holub is only the first stage.  It will be appealed, with the defence adamant that, if necessary, they will approach the European Court of Human Rights.

The SBU, and then the prosecution, asserted that, while in captivity, Beziazykov changed sides and helped the militants to recruit Ukrainian POWs.  They claim that he became deputy head of ‘DPR Intelligence’ on 25 August 2014 (10 days after being taken prisoner) under Oleh Shlyapin (nom de guerre ‘63rd’), a former Donetsk judge who betrayed his oath and joined the militants.  They were, the prosecution asserts, led by  Sergei Dubinsky, a Russian ‘former’ military intelligence officer and one of the four men now on trial (in their absence) in the Netherlands for their believed role in the downing of MH17.

Beziazykov rejects the charges.  He says that he never denied that the militants had tried to get him on their side, but is adamant that they failed. 

He insists that from 25 August 2014 until the end of September, he was held in the basement of one of millionaire Rinat Akhmetov’s dachas, which had been seized by the militants.  He says that he was taken from there each day to the so-called ‘DPR intelligence unit’ where he spoke with Shlyapin and Dubinsky.  Beziazykov says that he was totally under the control of these militants, and that the person named in court as his ‘driver’ was, in fact, the convoy guard bringing him from his place of imprisonment.  He asserts that he was forced to carry out certain paperwork, to hold telephone conversations, etc.  As a military intelligence man, he was aware that any such calls were being listened to, and says he hoped that the SBU would understand where he was and help to get him out.  He is adamant that he never said anything that could hurt Ukraine during the course of such calls.  This is at least partially confirmed by the court verdict, which does not mention any state secrets that Beziazykov is accusing of passing on.

The calls were, indeed, intercepted, and appear to be one of the main pieces of evidence presented against him, although it seems more the fact that they took place that is brought against him, rather than their content. Pogosian is scathing of the fact that no expert assessments appear to have been made of the tapes to formally identify Beziazykov as one of the voices.

The defence maintained that, while held prisoner, Beziazykov used his intelligence skills to gather information.  After his release in 2016, he asked to be questioned in the SBU and that information be provided to Ukraine’s Military Intelligence.  Shortly afterwards he met with members of the Joint Investigation Team on the downing of MH17.  He was seized by the militants a month after the disaster, but was able to provide information about two of the men now on trial in the Netherlands – Dubinsky and Oleg Pulatov (who is also Russian).

Beziazykov was represented by Oleh Veremiyenko and Vitaly Tytych.  The latter is the coordinator of the Public Integrity Council, a civic judicial watchdog, and offered to represent Beziazykov for free. The defence are adamant that the prosecution did not provide any direct evidence that Beziazykov had collaborated with the militants.  Most of what there is, they say, is essentially hearsay.   The key witness, officer Ruslan Kosinsky seems to have consistently claimed to have seen Beziazykov in uniform, but given two very different statements about what such uniform consisted of. 

Pogosian is equally dismissive of the witness testimony which the verdict was based upon.  He says that it does not confirm that Beziazykov committed any acts that would indicate treason or involvement in a terrorist organization. Their inadequacy as evidence is only compounded by the fact that most such testimony is passing on other people’s words.  He notes also that much of the case material, including the results of wiretapping and similar operations in other criminal proceedings and information about militant positions, etc. from the website Stop Terror, are evidently inadmissible forms of evidence, 

Pogosian calls the verdict “a collection of systematized violations of current legislation and a glaring example of a one-sided court examination with a bias towards conviction.  He hopes that the appeal court will issue a fair and lawful verdict. 

Among those closely following the case are former POWs.  According to the Media Initiative for Human Rights, most released POWs whom they have spoken with recount experiences, including being forced to work for the militants which do not significantly differ from those over which Beziazykov has been sentenced to 13 years’ imprisonment.

The appeal against the sentence was lodged on 7 May, 2020.  Beziazykov remains in custody, three and a half years after his arrest.

Beziazykov says that he saw no sense in concealing either the fact that he was in command or his name, since the militants would simply use torture against him or his men to obtain the information.  Having ascertained his rank (and understood that he was no rank and file soldier), they held him separately from his two subordinates who were exchanged over the following year.   

Virtually nothing was heard from Beziazykov during that period, though he was able to phone his wife briefly in May 2015.  Then in April 2016, he called her again and asked that he be added to the exchange list.  He returned home on 5 July 2016, and at that stage, was treated as a hero, and videoed at a meeting with President Petro Poroshenko. 

He was arrested on 12 December 2016 and initially accused of collaborating with the DPR militants.  The more serious charge, of state treason, was added later. He and his lawyers assert that this was after the SBU [Ukrainian Security Service] tried to get him to give essentially false testimony, about the downing of the Malaysian MH17 airliner, or about financing of terrorism (which Ukraine is accusing Russia of, in a court case before the UN’s International Court of Justice). 

He has been in custody since December 2016, with the court trial having dragged on for over two years.  The sentence passed at the Shevchenkivsk District Court on 7 April 2020, by presiding judge Lidiya Shchebunyaeva, together with Vitaly Tsyktich and Oksana Holub is only the first stage.  It will be appealed, with the defence adamant that, if necessary, they will approach the European Court of Human Rights.

The SBU, and then the prosecution, asserted that, while in captivity, Beziazykov had changed sides and helped the militants to recruit Ukrainian POWs.  They claim that he became deputy head of ‘DPR Intelligence’ on 25 August 2014 (10 days after being taken prisoner) under Oleh Shlyapin (nom de guerre ‘63rd’), a former Donetsk judge who betrayed his oath and joined the militants.  They were, the prosecution asserts, led by  Sergei Dubinsky, a Russian ‘former’ military intelligence officer and one of the four men now on trial (in their absence) in the Netherlands for their believed role in the downing of MH17.

Beziazykov rejects the charges.  He says that he never denied that the militants had tried to get him on their side, but is adamant that they failed. 

According to his version, from 25 August 2014 until the end of September, he was held in the basement of one of millionaire Rinat Akhmetov’s dachas seized by the militants.  He says that he was taken from there each day to the so-called ‘DPR intelligence unit’ where he spoke with Shlyapin and Dubinsky.  Beziazykov insists that he was totally under the control of these militants, and says that the person named in court as his ‘driver’ was, in fact, the convoy guard bringing him from his place of imprisonment.  He asserts that he was forced to carry out certain paperwork, to hold telephone conversations, etc.  As a military intelligence man, he was aware that any such calls were being listened to, and says he hoped that the SBU would understand where he was and help to get him out.  He is adamant that he never said anything that could hurt Ukraine during the course of such calls. 

The calls were, indeed, intercepted, and appear to be one of the main pieces of evidence presented against him, although it seems more the fact that they took place that is brought against him, rather than their content.

The defence maintained that, while held prisoner, Beziazykov used his intelligence skills to gather information.  After his release in 2016, he asked to be questioned in the SBU and that information be provided to Ukraine’s Military Intelligence.  Shortly afterwards he met with members of the Joint Investigation Team on the downing of MH17.  He was seized by the militants a month after the disaster, but was able to provide information about two of the men now on trial in the Netherlands – Dubinsky and Oleg Pulatov (who is also Russian).

Beziazykov was represented by Oleh Veremiyenko and Vitaly Tytych.  The latter is the coordinator of the Public Integrity Council, a civic judicial watchdog, and came to the case  later, offering to represent Beziazykov for free. 

In the lawyers’ view, the prosecution did not provide any direct evidence that Beziazykov had collaborated with the militants.  Most of what there is, they say, is essentially hearsay.   The key witness, officer Ruslan Kosinsky seems to have consistently claimed to have seen Beziazykov in uniform, but given two very different statements about what such uniform consisted of.


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