“LPR (the so-called Luhansk People's Republic – ed.) put him on their list. SBU (Ukrainian security service – ed.) already paid him a visit and had him sign a document stating he agrees. It is quite possible he will be exchanged,” Poljakov's (36) lawyer in Ukraine Tetyana Montian told Postimees.
Postimees did not manage to secure confirmation of plans to exchange Poljakov from the separatists in Luhansk; however, I asked Novaya Gazeta journalist Julia Poluhhina, who writes on prisoner exchanges in the Donbass region, to verify the information. The journalist said that Olga Koptseva, who is in charge of prisoner exchange in Luhansk, has confirmed Poljakov has been added to the list of people LPR wants to trade for Ukrainian soldiers held in Luhansk.
“Exchange is the best prospect for Poljakov as he is facing jail time in Ukraine,” Montian said. The lawyer said that she was asked to defend the man by Estonian Member of the European Parliament Yana Toom whom she knows from when she was defending Ukrainian journalist Ruslan Kotsaba whose case Toom was looking to promote in Brussels.
Ukrainian courts do not indulge the accused in such cases. The court in Kiev sentenced Brazilian citizen Rafael Lusvargh to 13 years in prison after it was proved he actively fought for Donetsk separatists' (the so-called DPR) Viking battalion from fall of 2014 to spring of 2015. Poljakov is facing the same charges.
Exchange for vital assets
Postimees' sources in Kiev say that the next major prisoner exchange between Ukraine and the Donbass separatists is scheduled for late February. No one knows who will be exchanged until after the event: it is impossible to predict anything here. Prisoner exchange following the principle of “everyone for everyone” is prescribed by the Minsk-2 agreements.
If Poljakov, who has been on trial for three months now, is exchanged, several interesting questions will arise.
For example, would it mean Luhansk separatists recognize him as one of their own as well as acknowledge the fact that he fought for them in 2014 as claimed by the Estonian internal security service and SBU? Poljakov denies having done so.
Prisoner exchange expert Poluhhina said that the Ukrainian side sees exchanges as acknowledgment of fighting, even though LPR has also sought to exchange people who have nothing to do with armed resistance.
Poluhhina gave the example of Anastasia Kovalenko from Luhansk whom the SBU accuses of plotting a terrorist attack in Kiev on behalf of LPR. “Everyone understands it is fiction, while she cannot be acquitted as someone has already been promoted for “uncovering” the story etc. The only thing to do is to exchange her, even though she has had no hand in hostilities,” the expert said. “It is the only way to save the person. It could be the case regarding Poljakov.”
Poluhhina said both sides hold prisoners called the “exchange fund” who can be traded for useful people. “My information suggests LPR has 60 Ukrainian soldiers and the DPR another 45 the Ukrainian side has to exchange for someone,” she said.
Information available to Postimees suggests Poljakov was put on the list courtesy of LPR activist Svetlana Konoplyova. The woman met Poljakov after she was released by the Aidar battalion of volunteers fighting on the Ukrainian side and received help from Poljakov in the summer of 2014. Konoplyova kept an eye on Poljakov after that. Because she is a social policy activist among the Luhansk separatists and is quite a well-known figure in the “people's republic”, she was able to add names to the prisoner exchange list.
Tetyana Montian did not wish to comment on why separatists want to trade Poljakov. She said that rather Ukraine wants to exchange him for one of their own.
The other interesting question is what happens to Poljakov after he is traded? Will he be able to return freely to Estonia as the country's citizen?
Spokesperson for the Estonian Ministry of Justice Maria-Elisa Tuulik told Postimees that the ministry has no information on Poljakov's status having changed in Ukraine. “That is why we do not wish to speculate on the matter,” she said. “Estonia has handed Poljakov over to Ukraine, and we believe that if he has committed the acts he is accused of, he will be handed a proportional punishment. We can provide a legal assessment of the situation if his status changes in Ukraine.”
The Estonian government decided to extradite Poljakov in December of 2015. The legality of the decision was confirmed by the Tallinn District Court in May of last year after which the man was handed over to Ukrainian authorities.
Poljakov, who has served in the French Foreign Legion, is accused of becoming a member of Valeri Bolotov's (deceased on January 27 this year – ed.) terrorist organization called the Luhansk People's Republic and fighting on its behalf as part of the Luhansk military command regiment headed by Col. Grachev. The charges claim Poljakov fought for LPR on two occasions in 2014.
Montian said that the bulk of evidence against Poljakov consists of photographs recovered from his phone after he was apprehended in Estonia that show him wearing a camouflage uniform and holding an automatic rifle. The photographs were taken in areas controlled by the Luhansk separatists.
That is not the whole story, however, as information available to Postimees suggests the Estonian security police even have a copy of Poljakov's credentials in the LPR command, signed by commander Grachev. In addition, Poljakov is pictured wearing a typical LPR fighter's uniform as well as holding and firing a sniper rifle.
“Poljakov maintains that everyone wore camouflage fatigues there at the time, that they were like the national dress,” Montian said. “As concerns photographs depicting weapons, most men have the handicap desire to pose with them. However, is that a crime or proof of anything?”
No war officially
Montian said that Poljakov cannot be accused of belonging to the LPR terrorist group as Ukraine has never legally designated the separatist “people's republics” as terrorist organizations.
Despite sounding incredible, this turns out to be true – even though Ukraine is officially conducting an anti-terrorist operation, not fighting a war, in Donbass, there are no legal documents to classify LPR and DPR as terrorist organizations. The Ukrainian parliament has discussed corresponding draft legislation but has not passed it, and no court has made any such decision concerning either LPR or DPR.
That said, Estonia extradited Poljakov after criminal charges were brought against him for belonging to a criminal organization, which were approved by the courts. It turns out that LPR and DPR have been designated as terrorist organizations in Estonia but not in Ukraine. At least officially. Poljakov's trial is taking place in the small town of Troitske on the Russian border in the northern part of Luhansk oblast. The region is accessible via a night train from Kiev after which one has to undertake a 100 kilometer taxi ride as there are no buses to Troitske from the nearest train station.
Montian said that the SBU justified moving the trial to the Luhansk oblast through the fact that Poljakov's last phone call in the summer of 2014 was traced to the October district of the city of Luhansk. Because the city is under separatist control, the process was moved to a court that had free judges. That is how the trial ended up taking place in Troitske that is actually relatively far from Luhansk.
“The SBU deliberately found such a remote court so it would be as inconvenient as possible for me to defend Poljakov,” Montian is convinced.
The trial has seen three court sessions; however, deliberation of the contents of accusations has not begun as of yet. The accused has not been heard. “The court is not in a hurry; they are also hoping Poljakov gets traded that would rid them of this case,” the defender said.
Poljakov is currently held in the Starobilsk preliminary investigation prison in Luhansk oblast. Montian said the conditions are very poor: 10-20 people sharing a single cell the temperature of which hovers around 10 degrees Celsius. The cells are ventilated and the prisoners fed very poorly and cannot go for walks.
“By keeping Poljakov there, Ukraine is in violation of the obligation of holding him in appropriate conditions,” Montian said.
The spokesperson of the Estonian public prosecutor's office said the government extradited Poljakov based on the European Convention on Extradition without any special conditions. The convention makes no mention of conditions of detention.
Novaya Gazeta journalist Julia Poluhhina said that the conditions at Starobilsk aren't as bad as those in the preliminary investigation prison in Kharkiv. “Starobilsk is usually the destination of prisoners being prepared for an exchange,” she said. “At least they don't beat them there.”