BBC: When was the last time you met Nadiya and how was she doing physically and emotionally?
MF: We met about a week ago. She has been detained at the Novocherkassk jail (Rostov), at the so called Detention facility no.3. We met straight after the court hearing of 30 July. Sometime later we managed to see her, and my colleague Nikolai Polozov is supposed to be visiting her today.
She’s well overall. She has done well through the jail transfer. Can you imagine what it’s like in Russia – 1000 km in two weeks on the road? She had been staying in Voronezh for some time (before transfer to Rostov). She was having problems with her legs, they were swelling up due to the heat. But she tries to see the best in everything, so she said she liked the South of Russia. She finds Novocherkassk better than Moscow because, as she put it, she could see many more Ukrainians in there.
BBC: But wouldn’t it have been better for you, her lawyers, and the international campaign to #FreeSavchenko, that the trial be held in Moscow?
MF: Yes, absolutely, we would like the trial to be held in Moscow, and due to political reasons as well. You see, this case has politics all over it and it catches global attention. So surely, we would benefit from the hearings in Moscow, we are Moscow lawyers after all. We could visit her daily in Moscow. And when she is detained in Rostov Oblast we are naturally limited in options, and we are able to meet with her only once or twice a week, and we must fly there to see her every time. This constitutes an obstacle in communication with our client from one point. And this problem is not artificially created by someone, but obviously, everyone understands that you are to get through this 1000km somehow – by plane, and then take a car ride to Novocherkassk.[quote style=”boxed” float=”left”]We are preparing Nadiya for the verdict in which she will most likely be sentenced for 25 years. Moreover, the verdict has nothing to do with what will be happening during the hearing.[/quote] And then again, Moscow’s big advantage is that many foreign Consular posts are located there, and not only that of Ukraine’s, but of many European states, as well as the USA, who are all watching closely how the Savchenko’s case is being handled and take an active role in defining her destiny. And it would have been so very much easier for them to follow the process in Moscow, and not from a 1000-km distance.
BBC: The West and Ukraine calls the Savchenko’s case political, and you call it political, but Russia insists it’s a criminal background and that it is only for the court to decide whether the Ukrainian is guilty or not guilty of correcting fire which has allegedly led to the deaths of two Russian reporters in June 2014. You, as her lawyer, have repeatedly stated that you don’t believe in a fair court decision and that Nadiya Savchenko will be found guilty regardless of the presented evidence. What verdict are you preparing Nadiya for?
MF: My opinion on the Russian court is that it is not an independent arbiter between the state and the citizen, or between private individuals. This is not based on my critical attitude towards the Russian autocratic authorities, but on my legal practice and my experience with political cases. There’s been quite a number of those in the Russian criminal and political practice recently. We have watched the indictment of Pussy Riot, participants of the Bolotnaya Square case and many more. None of those cases ended in the court, which would have acted as an independent judicial authority towards those accused.
How can one call a court independent, when it doesn’t take into consideration numerous evidence detailing Savchenko’s innocence and proving that the case is fabricated, which the defence had been submitting regularly during the year that Savchenko has been facing charges? The prosecution allegations that Savchenko voluntarily crossed the Russian border and went into Russian territory after she had been released from captivity on 23 June 2014 are absurd. No other Aydar combatant has been released by then, they have all been either shot or exchanged. But in spite of these absurd charges, the court has always been siding with the prosecution. This has led us to believe that the court was politically corrupt, a long time ago.
That’s why we are telling Nadiya at this stage to be prepared for the verdict and that she will most likely be sentenced for 25 years. Moreover, the verdict has nothing to do with what will be happening during the hearing. We will prove she is innocent during the trial. But she will nevertheless be found guilty because it is not the court who decides her case – the verdict is being drawn up in Kremlin
BBC: However, unlike the political and criminal cases you previously mentioned, Pussy Riot and the organizers of protests on Bolotnaya Square, Nadiya Savchenko’s case isn’t an entirely Russian internal matter. Do you think that pressure from the international community and the world’s attention won’t stop this overtly political verdict?
MF: You know, they act regardless of anyone. Despite the fact that Savchenko is a citizen of Ukraine, she has been kidnapped, illegally transferred to Russia and indicted, and all that merely for propaganda purposes. There are no other reasons. This was done to show: look, there’s the junta, there’re punitive units, and Savchenko as a Ukrainian Armed Forces officer is a part of the punitive operation, and Russian journalists are its casualties. And all this is happening at the backdrop of war.[quote style=”boxed” float=”left”]Savchenko may be allowed to serve the sentence in Ukraine, upon an official request from Ukrainian authorities, formally – in Ukrainian prison, but everyone realizes that this is a conventionality only and no one would be serving anything. But this is an opportunity, completely legal in terms of procedural rules. [/quote] The threshold of how far the society can take has shifted. Something like a kidnapping of a citizen of a neighbour state, an officer, would be unthinkable in 2012, but it became possible in 2014 because of the war, which Russia is a party to, undoubtedly, and this is no longer a question. But the emphasis clearly shifted. The international community pressure, which you are talking about, will eventually lead to the release of Savchenko, but not to her acquittal. There are no acquittals in Russia, and in political cases – even more so. It is impossible.
BBC: For you and for Nadiya’s defence team, the verdict will be a starting point for the next phase of the fight for her release. What’s your scenario for the forthcoming events? Can you give an approximate date when Savchenko will be set free?
MF: I predict that there will be a guilty verdict. It will lead to an incredible outrage. Playing in prediction of when Russian authorities will let Savchenko go free is a very ungrateful thing. But it is my belief that Savchenko will be released as a result of political dialogue, some bilateral exchange or similar actions – and this would happen upon an agreement.
But if the international community pressure is not strong enough, nothing will make this government negotiate Savchenko’s destiny and Russian authorities would not feel the danger of these excesses. An innocent woman has been indicted, with an undeclared Russian aggression against Ukraine as the background. Negotiations will be on the table only if the international community keeps up the pressure and sends a tangible, direct and clear message to release Savchenko.
Kyiv has been investigating two Russian military officers, Yerofyeyev and Aleksandrov, who can theoretically be exchanged for Savchenko. The procedure for this exists: Ukraine and Russia, despite the war and all those twists and turns in the bilateral relations, are parties to an agreement on legal assistance signed in 1993, which allows prisoners in both countries to serve their sentences in countries of their citizenship.
Savchenko may be allowed to serve the sentence in Ukraine, upon an official request from Ukrainian authorities, formally – in Ukrainian prison, but everyone realizes that this is a conventionality only and no one would be serving anything. But this is an opportunity, completely legal in terms of procedural rules.
BBC: Is this the most realistic scenario?
MF: Indeed it is realistic, as it allows Russia ‘to keep its face’ – to state that they allegedly convicted her, they allegedly punished those guilty of killings of Russian journalists, and then they could legally send her back to Ukraine to serve the sentence. Afterwards they will claim that everything ‘Junta’ does with Nadiya – making her a hero, MP or the PACE delegate, etc. – is not their responsibility, not their issue.
In this case, it is important for the Russian leadership, for the Kremlin: a) to get dividends for Savchenko – direct political dividends; b) ‘to keep its face’ for purely propagandistic reasons. To show that they didn’t cave in, didn’t go back, were firm, but kept up to the agreement in not yielding to the principles and consistence in the fight with Kyiv authorities. To my mind this is the most realistic way, but this will be impossible without persistent international pressure from Western states, who are not just observers, but efficient players of political dialogue between Russia and Ukraine. International appeals to free Savchenko are extremely important.
BBC: So, you are saying, relatively speaking, that the pessimistic scenario is the one where Savchenko is, without substantial international community pressure on Russia, convicted and sentenced to 25 years in prison, and the optimistic one is that she’s convicted, but serves a year or two, and upon the request of Ukraine, is allowed to “serve the rest of her sentence” in her homeland, and in fact gets her freedom?
MF: I don’t think it will last longer than a year. Because according to the procedural terms the case might go through yet another judicial authority, before the verdict comes into force, the court of appeal will hear the case. Once the higher judicial authority has heard the case, and this might be at the Moscow District Court, or Donetsk/Rostov, the verdict comes into force.
And from that moment Savchenko can be sent to serve her sentence either in Russia, or, should Ukraine file an official request, back to her homeland. Thus, the matter might be decided in no more than 5 to 6 months provided that the Russian leadership has a political will to negotiate and come to an agreement on Nadiya’s exchange on Yerofyeyev-Aleksandrov, or whatever else. This is not me who should define the terms, it is up to the political leadership to decide. But ultimately, the period we are talking about is 5-6 months.
BBC: Could you share your own personal impressions on Nadiya Savchenko? Is she the first Ukrainian woman your have been defending? How have you been getting along?
MF: This is absolutely another story. Do you know why? This all is happening at the backdrop of the war. This is a real drama, it’s not invented. It differs radically from the Pussy Riot case. Despite all the courage and even riskiness of their 40 seconds dancing performance on the pulpit, it was all about a rather tiny situation. It had a huge surge of interest, but it is nothing compared to the Savchenko case.
In the Savchenko case we see a real drama, real deaths, with post-mortem examinations with the relatives observing the case. We have the war in Ukraine, which led to the Savchenko case. If there was no war, there would be no case. Besides, she is an officer, a pilot, which is not that typical even for Britain, not to mention Ukraine, which hasn’t yet left aside its post-Soviet mentality, but is working hard on it now.
Savchenko shared the barracks with men, because “the army is one for all.” She is a bright and strong personality. If you ask about Savchenko herself, she is rather a straightforward person, which is not a compliment. We argue all the time, as she wants to see results as soon as possible. She is a kind of person who wants to get results – positive or negative. She used to tell me that death is also a result. For me as a lawyer, it is unacceptable as the main aim of Nadiya’s defence, to release her at any price, but not at the price of her reputation. To confess is not an option for Nadiya: she will never concede to it.
BBC: And how will Savchenko’s case affect society?
MF: Oh! It will become a great milestone, because the extent of publicity in this case is immense and Savchenko faces quite a sentence – 25 years, it’s not the two years the Pussy Riot were charged with. 25 years for an innocent man might be compared to the Dreyfus affair, or something similar. No Russian courts, or authorities would ever be the same in the eyes of international community.
You know how it is: you do not become “ISIS” that buries people alive just because you are not the person to do the job. But this does not mean that you do not condemn them. Being seen as “ISIS” is very sad. You cannot forget something like that the next day. It’ll take decades to get your hands clean again. We won’t be able to prove the world that we live in a civilized state and our courts are real, not simply a decoration. And we will have to walk a long road to get over that past, even after there will be a new post-Putin Russia. I understand this perfectly as a lawyer.