How to free Ukrainian citizens kidnapped by Russia

by Mykola Myrnyi

Russia continues to kidnap and persecute “inconvenient” Ukrainians. The case of Nadiya Savchenko is not the first by far and probably not the last. Experts believe that international courts could restrain Russia and free the Ukrainian hostages.

“Never in my life did I think that this could happen to my nephew,” Sofia Postuha says, wiping away tears.” This is now the third month that her nephew Yuriy Yatsenko and his friend Bohdan Yarychevskyi have been imprisoned in the Kursk Oblast in Russia in a special institution for persons slated for deportation. Yatsenko is a law student at the Lviv Ivan Franko National University and Yarychevskyi is a graduate of the same university.

The Lviv residents were arrested by Russian police on May 6, in Oboyan in the Kursk Oblast. The Federal Immigration Service accused them of violating Chapter 2, Article 18.8 of the Code of Administrative Violations of the Russian Federation — “Violations by foreign nationals entering or staying in Russia.”

When they first entered Russia by taxi, the two men indicated a personal reason for their trip on their immigration cards. They then rented a car and drove around the Kursk and Belgorod oblasts and settled in a hotel. One of the men told the Oboyan district court that they wanted to observe the quality of life of Russians. The court decided that tourism was the real purpose of the young men’s trip. The judge then fined Yuriy Yaksenko and Bohdan Yarychevskyi 2,000 rubles (for the discrepancy in the stated purpose of the trip — Ed.) and ordered them expelled from Russia.

However, the deportation service has been in no hurry to carry out the order, and service employees say they lost the passports of the Ukrainians.

“Recently the Ukrainian consul came to see them at the institution and created temporary documents for their return to Ukraine. Therefore, there is absolutely no reason for them to be kept there any longer,” Yatsenko’s classmate Ostap Kumanskyi explains. He adds that on May 22, masked FSB (Federal Security Service) employees took Yuriy to a wooded area, where they beat and tortured him, demanding that he confess to transporting and storing explosives.

Attorney Nazar Kultchytskyi is convinced that the young men’s deportation is being delayed in order to give the FSB more time to “beat out” of them confessions to crimes they have not committed.

“The FSB took them out of the deportation center and conducted these interrogations,” Kulchytskyi says. “However, we must begin with the (court’s) refusal to institute criminal proceedings (against the FSB — Ed.) by charging them with the beatings. The FSB states they have no documentation. Now if the FSB is taking them and interrogating them, then these interrogations must be conducted within the criminal case or there should be some kind of other documents — for example, the interrogation protocol, etc. There is nothing like this. The only document that exists is a decision to dismiss the criminal case (against the FSB) made by the chief of police. If Yatsenko and Yarychevskyi are not released soon, we will definitely appeal to the European Court,” he concludes.

Russian police have refused to provide any legal assistance to the two men since their arrest. Finally, out of desperation, Yuriy Yatsenko cut his veins and stomach to demand legal representation.

He described his ordeal in a phone conversation with his father. “After the arrest, they refused to provide an attorney, and on May 22 they took me away and beat me. They threatened to use violence again. I realized I would not be able to endure it again. The following day I cut my left wrist with my right hand and also cut my stomach. I think I must have lost around 400 grams of blood. I was dizzy, I fainted, I felt weak. I thought it was the only thing I could do to make them begin to respect my rights. After I did that, the violence stopped and they gave me a lawyer.”

Nazar Kulchytskyi says the beatings stopped only after the Ukrainian consul was able to come to the deportation center. When he arrived he discovered there were 40 more Ukrainians there that the consulate did not even know about.

The attorney is convinced that a new trend has started in Russia whereby local law enforcement employees see a “Pravyi Sector” (right wing party in Ukraine — Ed.)  representative in every Ukrainian. There is a deliberate effort to intimidate and harass Ukrainians, he says.

Currently 21 employees of Russia’s Investigative Committee are working on the so-called “big Ukrainian case,” which plans to charge Ukrainians in murders, use of prohibited means and methods of war, kidnappings, and also the obstruction of legitimate activities of journalists. According to previous data, the investigators have already conducted 17,915 interrogations, with 11,168 from witnesses and 5,443 from victims.

The proceedings against the Ukrainian pilot Nadiya Savchenko are part of this case. She was initially seized in the ATO (anti-terrorist operation) zone by militants of the so-called “Luhansk People’s Republic,” which Ukraine considers a terrorist organization. Then, according to Savchenko, she was taken in handcuffs and with a bag over her head to the town of Boguchar in the Voronezh Oblast. The Russian investigative committee claims that Savchenko had crossed the border as a refugee without documents and was arrested. The committee is accusing Savchenko of  a crime under Article 105, Paragraph 2 , item 3, under “Involvement in the murder of two or more persons.” The Ukrainian pilot is being is charged with the murder of two Russian journalists from the Rossiya TV channel, Igor Kornelyuk and Anton Voloshin near Metalist village in the Luhansk Oblast on June 17

Attorney Mark Feygin, who managed the defense of Pussy Riot and Arctic Sunrise and is one of the three attorneys for Nadiya Savchenko, is convinced that there is a trend in Russian law enforcement to kidnap and persecute Ukrainians. “I found out that soldiers of the 72nd Brigade have ended up in prison in Donetsk in the Rostov Oblast (in Russia). They are being charged as part of this “big Ukrainian case.”

Feygin is convinced that Russia is using its “big Ukrainian case” to advance its position on the political-legal front and that the only thing that can help Ukraine is an appeal to the International Criminal Court or the ratification of the Rome Statute.

“If Ukrainian officers should cross the border for any reason tomorrow, they again will end up within the scope of this investigation of the Ukrainian case,” Feygin explains. “The number of prisoners will grow. It would be appropriate to begin some kind of process with  the International Criminal Court,” he says.

Savchenko case is like a suitcase without a handle

Ilya Novikov, another Savchenko lawyer, believes that the Russian investigators did not expect Savchenko to refuse to cooperate with the investigation.

“Nadiya  is not that kind of person. From the very beginning she demonstrated toughness. Now Savchenko’s case is like a suitcase without a handle for the Russian investigative team. They try to carry it and carry it, but it’s difficult and they can’t simply quit now, ” he says.

Mark Feygin explains the source of the problem for Russian investigators. He believes there is simply no way to prove there was a deliberate attempt to murder the two journalists. Expertise is needed, as well as material evidence and witness testimony that establish a causal link between the actions that  Nadiya Savchenko could have taken, when viewed objectively, as well as her intent. In the current situation, it is impossible to meet most of the procedural requirements, he says.

In particular, the murder was supposed to occur in the Luhansk Oblast. This territory is part of the sovereign state of Ukraine. There are no alternative procedures for carrying out legal proceedings there. It is necessary to contact the appropriate law enforcement agencies in Ukraine, who independently carry out the requested procedures — whether they deal with examination of the crime scene, obtaining evidence, search and seizure, expertise, questioning of witnesses, etc.

According to Feygin, Russia by itself cannot do all this on the territory of the Luhansk Oblast. This is why it is not entirely clear how the evidence base will be formed, including the essentially subjective aspect of the crime. In fact, Nadiya Savchenko’s crime cannot be proven because it requires cooperation between the law enforcement agencies of two sovereign states. In the current situation this is impossible. This is why determining any significant aggravating evidence for these crimes, as discussed by the investigating committee in the previous investigation, is impossible in principle. What happened in the town of Metalist is a drama. Mortar crossfire. Dispersal of the fragments by 200 meters. It would be almost impossible to aim the mortar fire so that the shells specifically hit the journalists,” he says.

Additionally, Feygin believes that evidence is of poor quality and insufficient to establish the guilt of Nadiya Savchenko. ” I want to emphasize that she is accused not simply of willful murder but of being involved in the murder of two of more persons. According to Article 105 the maximum penalty is life imprisonment. Women in Russia are not imprisoned for life. At most, they receive 25 years. In order to find Savchenko guilty, there must be significant and irreversible evidence of guild. This evidence does not exist so far,” he says.

According to the Feygin, included in the materials presented by the investigators (to justify) preventive detention, there were testimonies of two secret witnesses who saw the video recordings (of interrogations of wounded captured members of the volunteer Aidar battalion — Ed.) They had never met Savchenko. They never witnessed the crime. They saw the video recording where one of the fighters from the Aidar Battalion said that Savchenko supposedly had said “All in armor.” This is the only sentence that is supposed to indicate the quality of her command in the Aidar Battalion.

“Then the head of the investigative committee said in an interview that there is Savchenko’s phone. Naturally, the phone was not with her, as it was passed from hand to hand. In this telephone there is phone call that they think could be used as evidence of targeting  instructions (for mortar fire). But to prosecute Savchenko simply based on this amount of evidence is nonsense,” Feygin says.

Prospects at the European Court of Human Rights

On July 14, the representative of Nadiya Savchenko at the European Court of Human Rights, Valentyna Telychenko, appealed to this court, which gave the matter a priority status the same day. Strasbourg submitted a request to the Russian government to answer a number of “uncomfortable” questions.

“As of July 22, the Russian government sent a formal response. It never managed to explain the circumstances under which Nadia Savchenko ended up on the territory of the Russian Federation, why complete information on the presence of a Ukrainian citizen in (Russian) custody was not given in time to the (Ukrainian) consulate. Similarly, the European Court never received any explanation as to why it took so long before the Ukrainian consul was allowed to meet with Savchenko,” Telychenko says.

The attorney notes that Russia’s current behavior towards Ukraine represents a new reality for the European Court of Human Rights (ECHR): “So far we have mostly considered cases where a person was illegally detained in a certain state but was not turned over to terrorists. In this case, we have to place the political realities  that have not yet been described sufficiently in a legal framework .

Telychenko is convinced the ECHR will require Russia to release Savchenko and turn her over to Ukraine. “When will this happen? I think within a year and a half. Eighteen months is the minimal time for the examination of the case in the European court.”

by Mykola Myrnyi, Information Center on Human Rights, August 17, 2014

Translated by Anna Mostovych

Radio Svoboda