26 February 2021
By Lev Ponomarev, chairman of the national public organization For Human Rights, member of the Moscow Helsinki Group
“THIS MESSAGE (MATERIAL) WAS CREATED AND DISTRIBUTED BY A FOREIGN MEDIA OUTLET PERFORMING THE FUNCTIONS OF A FOREIGN AGENT, AND (OR) A RUSSIAN LEGAL ENTITY PERFORMING THE FUNCTIONS OF A FOREIGN AGENT” — a mandatory epigraph as required by the Federal Service for Supervision of Communications, Information Technology and Mass Media.
Can an appeal to a court under civil law end in prison for the claimant? Yes, if the defendant is a corporation that has had to carry out instructions from the FSB.
This is the story of Konstantin Ponomarev, a businessman who, trying to protect his legitimate economic interests, faced the FSB. He went to court to claim the return of the 71st industrial diesel generator, leased for the energy supply of Crimea. As a result, Ponomarev received not rent and his generators, but a sentence for attempted fraud and confiscation of all his generators by the state.
How is this possible? Very simple.
In the spring of 2014, when there was a danger of Ukraine disconnecting Crimea from the power supply, our authorities found a way out of this situation in the form of supplying autonomous sources of electricity to Crimea – diesel generator sets. Done and dusted. However, the installations available to the state, including those that private companies supplied to Sochi to service the Olympics, were not enough to supply electricity to the entire Crimea, so they began to look for the shortfall in generators from private suppliers.
This search was entrusted to the Public Joint Stock Company of Power Industry and Electrification of Kuban (Kubanenergo PJSC), which began sending letters to private suppliers asking them to find a way to deliver more generators. Such a request was also sent to NTT Centre LLC which took part in supplying power for the Olympic Games in Sochi.
As is customary in our country, the request quickly turned into a demand. The General Director of NTT Centre LLC insisted on the official registration of the generator lease agreement, and Kubanenergo PJSC gave only the following arguments:
“The case is of state importance and is under the control of the FSB, obstruction can be regarded as treason to the Motherland, and the next conversation will be in the Matrosskaya Tishina pre-trial detention center” (quote from the materials of the criminal case, the interrogation of the director of NTT Centre LLC – author’s note.)
After such a “request,” no one could resist, no one wanted to talk in Matrosskaya Tishina. The work on the search for generators began. At that time, the largest collection of generators that could be leased was owned by the businessman Konstantin Ponomarev. He signed an agreement with NTT Centre LLC, which handed over the generators to NTT Construction LLC, they signed the lease paypers with Kubanenergo, which, in turn, handed them over to the Mobile Gas Turbine Power Plant JSC, and they sent the generators to Crimea free of charge … It seems a mystery why the state needs so many links in the Konstantin Ponomarev-Crimea chain. In fact, the answer is simple, as soon as the chain of contracts is interrupted, the ultimate beneficiary has the opportunity to say “I didn’t sign anything, I don’t know anything.”
In short, Pomomarev and Kubanenergo were linked by a chain of agreements, and after this Kubanenergo began to transfer generators by non-contractual means – judging by the quote shown above, by the order of the security services.
Konstantin Ponomarev gave his generators to NTT-Centre, which transported them to Crimea at their own cost, and an acceptance certificate was signed with Kubanenergo, containing all of the terms of the lease agreement, and therefore, from a legal point of view, equated to such an agreement. And then…silence. No rent, and no replies to the calls to pay (significant sums). For example, the debt of Kubanenergo to NTT-Centre, to which Ponomarev transferred the generators on contractual terms, amounted to 5 billion roubles. But Kubanenergo acted simply and unpretentiously. Kubanenergo replied that they were only engaged in assistance in relocating generators, we did not promise any rent, and the acceptance certificate is just an accounting document that has no legal force. Although before the transfer of the generators to Crimea, Kubanenergo had promised the suppliers “mountains of gold,” giving them written guarantees to conclude lease agreements and sign the relevant documents. Suppliers were left without generators and without the money to use them.
In 2015, the state took pity and bought generators from some suppliers for an amount much lower than their real value. They got something, and that’s all – do not argue with the state.
However, Konstantin Ponomarev never received any money. What could he do in such a situation? Go to court with a claim to return the generators from the illegal possession of PJSC Kubanenergo, which continued to insist that as it was only responsible for assistance in relocation, the generators could not be returned. The court did not agree with this position and recognized that it was Kubanenergo that expressed its written consent to conclude lease agreements and subsequently signed a document, which, although called an act of acceptance and transfer, includes all the terms of the lease agreement. So Kubanenergo received the generators for possession and use, and therefore was obliged to return them to their rightful owner, that is, Konstantin Ponomarev.
Yet Ponamarev did not receive the generators even after the court ruling was handed down, and so in November 2016 he once again took Kubanenergo to court, suing the company for a sum of 5 billion rubles on the grounds of unjust enrichment. The court overturned the action on formal grounds. As soon as June 2017, criminal proceedings were initiated against Konstantin Ponomarev in connection with attempted fraud; it was asserted that he had unlawfully attempted to defraud a State-owned company of money.
It turns out that failure to return generators and pay the loan fee is not a valid reason to take a company to court. We should not be surprised at that, in particular when the generators are supplied for the purpose of providing energy to Crimea, and when the entity failing to pay the loan fee is the State itself. Why return the generators, and why pay billions in loan fees? It is much easier to put someone in prison and to seize the generators for the State’s benefit. The State incurs no costs whatsoever – it simply profits.
One of the reasons why the State decided not to purchase Ponomarev’s generators was an FSB enquiry labelling Ponomarev as “untrustworthy”.
Everyone can draw their own conclusions from this story. My personal conclusion is that it is extremely challenging to mount a fight against the State if the State can be equated with the FSB. I see a lot of similarities between this case and the Network case, the New Greatness case, the case against Aleksandr Shestun and other no less illustrative examples of the FSB’s actively anti-constitutional stance, which is what really dictates our State’s internal policies, inter alia with regard to certain economic issues. At a very basic level, this is not an isolated case – I can list other examples of the FSB’s protection racket that it runs against businesses.
It is necessary for us to understand that law enforcement agencies can set their sights on anyone; a school pupil who posts (and later deletes) a comment on a social networking site, or a businessperson who has amicably concluded a contract with IKEA and received 25 billion roubles from this huge corporation. And there’s no way around it with our current authorities. We need to apply peaceful methods to achieve a change of power, and the next opportunity to do so will present itself at the 2021 elections. There are things that each one of us can do to avoid becoming a victim of the regime like Konstantin Ponamarev (and there can be no doubt that a victim is what he is); we can campaign, vote for opposition candidates and get involved as observers.
P.S. Konstantin Ponomarev and I are not related in any way – neither closely nor distantly (over three generations, I checked).