The Citizens of Ukraine as Political prisoners in the Russian Federation: international legal aspects

1. The legal qualification of actions of the Russian Federation in relation to arrests and trials of Ukrainians on political grounds  

1.1. Violation of international law, international humanitarian law and the European Convention on Human Rights regarding the right to fair trial

1.1.1. The definition of political prisoner and its application in respect of Ukrainian citizens arrested and sentenced in the Russian Federation

         The term “political prisoner” is often used by international organizations, officials, mass media but it is often used incorrectly. The information gap results in problems regarding the definition, whether the person is a political prisoner and states in their turn avoid responsibility for political persecution.

International organization Amnesty International has already been using such definitions as political prisoner and prisoner of conscience for more tha 50 years in its practice. These terms are similar but they are different.

Prisoner of conscience is a person who has been jailed because of his or her political, religious or scientific beliefs.The term was introduced by the founder of Amnesty International and British lawyer Peter Benenson at early 1960’s. According to him the prisoner of conscience is a person who has been jailed because of his or her political, religious other conscientiously-held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status provided that he or she has neither used nor advocated violence [1]

International Amnesty prepared the list of criteria to qualify a person as a prisoner of conscience. The most common carriteria include political activity, criticism of the state authorities, articles on human rights violation, participation at social organizations, strikes and demonstrations, struggle for independence, belonging to religious, sexual minorities. Lawyers of organization believe that all prisoners of conscience are imprisoned solely because of their beliefs, but not of crimes committed and must be immidiatly released. The International Secretariat decides whether to grant a status of prisoner of conscience after thorough examination of all the facts.

There is a political element in the cases of political prisoners, but the persons who resorted to violence (committed a crime), called for violence or hatred may also be political prisoners. But all these charges or their parts must be recognized as false. Most of the cases of the political prisoners are carried out violating the right to a fair trial. There are cases when such persons have been detained for years without a trial. Amnesty International requires such cases should be considered in a reasonable time and in compliance with all guarantees of a fair trial.

The definitions of political prisoners and prisoners of conscience must be distinguished. The head of the Moscow Helsinki Group Lyudmila Alexeyeva believes that "today all those who are persecuted for political reasons, can be called prisoners of conscience". She gives an example of Oleg Sentsov who is really the prisoner of conscience because he defended his views and beliefs without violence But Nadiya Savchenko due to her occupation can not be referred to such a category of persons. She didn’t commit any crime; she acted as the pilot had to act during the war. She can be captured and she was a prisoner of war. But if there is no war between our states how can she be captured? That is why for political reasons they deprived her of liberty. So, Nadiya Savchenko is a political prisoner” [2].

The special attention to the political prisoners is paid by the European Court of Human Rights, the United Nations Working Group on Arbitrary Detention and the Council of Europe. The independent experts of the Secretary General mandated to assess cases of alleged political prisoners in Armenia and Azerbaijan in the context of the accession of the two States to the Organisation gave the definition of political prisoners. Basing on the events of civil war in Namibia in 1989 experts formulated the criteria for recognizing a person as a political prisoner.

The above criteria were confirmed in paragraph 3 of Resolution of PACE 1900 of 2012 “The definition of political prisoner”: A person deprived of his or her personal liberty is to be regarded as a ‘political prisoner’:

a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;

b. if the detention has been imposed for purely political reasons without connection to any offence;

c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;

d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,

e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities” [3].

It should be noted that the key element in this case is the deprivation of freedom, that means inability to change their place of residence by choice. It does not matter whether a person is detained in a private facility or a public institution or detained by a formal decision, or without it.

The Assembly, in its turn, invites the competent authorities of all the member States of the Council of Europe to reassess the cases of any alleged political prisoners by application of the above-mentioned criteria and to release or retry any such prisoners as appropriate.

The note of lawyers of Kharkiv rights group is important. They stress that even if there are all above criteria person who: a) committed violent offenses against persons except for cases of self-defense or emergency;

b) committed a crime against the person or property on grounds of animosity or violence called for a national, ethnic, racial, religious or other grounds " can’t be recognized as a political prisoner [4].

In recent years, the number of criminal and administrative persecutions on political grounds in the former Soviet Union have significantly increased. This issue became particularly noticeable in our country after the dissolution of peaceful action at night of November 30, 2013, the Revolution of dignity, the temporary occupation of the Crimea and some areas of Luhansk and Donetsk regions. In connection with these events Euromaidan SOS was established. It is a self-organized group of human rights defenders, civil society activists, journalists and lawyers who initially were collecting information about the missing, beaten, detained or persecuted persons following the events on Maidan, and now it defenses the persecuted, missing persons in the temporarily occupied Crimea and Luhansk and Donetsk regions [5].

Euromaidan SOS started its project «Let my people go», the main task of which is to spread the information in Ukraine and abroad about people who were illegally imprisoned in Russia. Yuriy Yatsenko, a student from Lviv who was imprisoned in Russia for a year accused of keeping of explosives jointed this project. He believes that his release was only due to wide publicity [6]. Now «Let my people go» cares about 13 imprisoned persons in Russia and 8 imprisoned persons in temporarily occupied Crimea

The Ministry of foreign affaires of Ukraine name 11 citizens of Ukraine as political prisoners sentenced or imprisoned in Russia. However the human rights advocates consider that neither state authorities nor human rights organizations have all data regarding the number of persons imprisoned within the territory of the Russian Federation.

The meeting of representatives of Ukrainian and Russian civil society on January 25, 2016 during the session of the Parliamentary Assembly of the Council of Europe was an important event. This meeting took place in the framework of Kyiv Dialogue Foundation and "open dialogue" on the Ukrainian-Russian relations to discuss the situation regarding Ukrainian political prisoners in Russia and implementation of the Minsk agreements. The foundation "Open Dialogue" and Euromaidan SOS presented a joint report on "28 hostages of Kremlin", which provide detailed evidence of the illegal detention of Ukrainian citizens in the Russian Federation and the temporarily occupied Crimea [7].

It is the first attempt to analyze and combine in one document all cases of Ukrainian prisoners in Russia imprisoned exclusively on political grounds, the case of Estonian citizen Eston Kohver is also analyzed. The document deals with the following cases: Nadiya Savchenko, Stanislav Klykh, Mykola Karpyuk, Oleg Sentsov, Oleksander Kolchenko, Hennadiy Afanasiev, Oleksander Chyrnyi, Oleksander Kostenko, Hayser Jemilev, Yuriy Ilchenko, Eskender Kantemirov, Eskender Emirvaliev, Talyat Yunusov, Akhtem Chyygoza, Ali Asanov, Mystafa Degermenji, Eskender Nabiev, Ruslan Zeytulaev, Nuri Primov, Rustem Vaitov, Ferat Sayfulaev, Serhiy Lytvynov, Bohdan Yarychevskyi, Yuriy Yatsenko, Valentyn Vygivskyi, Yuriy Soshenko, Victor Shur and Eston Kohver [8].

it was found during the analysis of of these cases that the charges in these cases are falsified or at least disproportionate to the offense commited. Ukrainian political prisoners were detained by Russia to use these cases in their propaganda. These cases have a common feature of human rights violations. In most cases - the right to a fair trial, the right to freedom from torture, right to effective legal protection. There is reason to believe that the respective Russian authorities had violated the rules of inquiry and investigation.

1.1.2. Violation of the non-discrimination principle (discrimination on a national basis and on political basis)

The prohibition of discrimination is entrenched in Article 14 of Convention for the Protection of Human Rights and Fundamental Freedoms of 1950: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Provisions on general prohibition of discrimination are also contained in article 1 of Protocol 12 to Convention for the Protection of Human Rights and Fundamental Freedoms of 2000: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1”. [9].

Article 26 of International Covenant on Civil and Political Rights of 1966 provides for the prohibition of discrimination and equaty before the law. Article 14 of this document recognizes the equaty before the court, the right to be presumed innocent until proved guilty according to law. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure, right to   his conviction and sentence being reviewed and other rights. Paragraph 1 of above article states that “all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. Gurantees envisaged in paragraph 3 are very important. “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt [10].

The rights of the accused persons are also assigned in paragraph 3 of article 6 "The right to a fair trial" of the Convention on Human Rights and Fundamental Freedoms of 1950.

The case Nadiya Savchenko, the former pilot, the Member of Parliament of Ukraine, the delegate to the Parliamentary assembly of the Council of Europe from Ukraine is especially ostentatious in respect of non-fulfilment of most of these requirements. According to official data of the Ministry of foreign affaires of Ukraine Nadiya Savchenko was kidnapped by militants of self-proclaimed LPR near the town Shchastia on June 17, 2014. She is accused of accessory to murder of two or more persons. Russia insists on Nadiya Savchenko detention within the territory of the Russian Federation. That is why on April 24, 2015 she was accussed of illegal border crossing. According to the charges she faces 25 years of imprisonment [11]. 

Nadiya Savchenko was detained in one of the hotels of Voronezh. Thus she was deprived of liberty without the decision of the court. The questioning was carried out without her advocate. The Investigative Committee of the Russian Federation rejected the witness statements interviewed in the territory of Ukraine. The Court gives no opportunity to interview all Savchenko’s witnesses on the same terms that the witnesses against her were interviewed. The witnesses for the prosecution gave the same testimonies that gives evidence of prior conspiracy and inveracity of testimony. The most of prosacution requests were satisfied and Nadiya Savchenko’s and her defendant’s requests were rejected during the trial. On February 1,  2016 the court rejected the testimonies of witnesses that are citizens of Ukraine because they were in Ukrainian [12].

On April 29, 2015 the European Parliament adopted the special resolution on Nadiya Savchenko case that reminds Russia of its international obligations to respect her immunity as a member of PACE and asks for her immediate release; [13]. Russia refused to release Nadiya Savchenko because Savchenko had committed a crime before she received diplomatic immunity.

Savchenko case is the most well-known case of citizens of Ukraine persecution on political beliefs basis in Russia, but it is not the only case.

On July 2, 2015 Yuriy Ilchenko, the teacher of foreign languages, was arrested in Sevastopol on the count of extremism. He was accused that on his web-site he went off on Russian occupation of Crimea and war of the Kremlin in the Donbas. Ilchenko has been arrested in pre-trial detention center in Simferopol. He is charged with plea for extremism.

The meeting of supporters of integrity of Ukraine took place on February 26, 2014 near the Supreme Council of Crimea building. Meanwile pro-Russian organisations had a meeting to support the annexation of the Crimea to Russia at the same place. The participants of these meeting had a fight and several criminal preceddings were opened upon these facts. Eskender Kantemirov, Eskender Iemyrvaliev and Taliat Yunusov Were detained and then released on bail. We note that meeting of February 26, 2014 took place before official annexation of Crimea.

Nearly in a year time, at the beginning of 2015 three Crimean Tatars were arrested and are still in jail. Ali Asanov and Mustafa Degermenji confirm the fact that they participated in the meeting to support the integrity of Ukraine, but they did not take part in riots. Akhtem Chyigoz, the Deputy Head of The Mejlis of the Crimean Tatar People was arrested on January 29, 2015, took part only in peaceful meeting, but he is accused of organization of riots.

On October 12, 2015 Eskender Nabiev, the operator of the Crimean Tatar TV-channel ATR was sentenced to 2.5 years of imprisonment with a probation period of 2 years also for participating in riots of February 26, 2014.

It should be mentioned that criminal cases were opened only against the participants of pro-Ukrainian meeting.

1.1.3. Violations of principle of proportionality  (the punishment that is not proportional to the offence committed)

As it was already mentioned the right to fair trial was envisaged in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950: “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

In particular the Court clarifies that the decisions of courts and other dispute settlement bodies should properly state the grounds which the decision is based on. The reasoned decision demonstrates to the parties that they have been heard. In addition, this decision provides the opportunity to appeal it and get the review. Only when a reasonable decision is made the public control over the justice can be secured [14].

Principle of proportionality in practice of the European court of human rights, first of all, is connected with the problem of legal implementation of human rights restrictions. That means that the Court determines the criteria of admissible intervinion of state during the implementation of each general human right. In any such case the Cout determines whether such restriction is envisaged by law, whether its purpose is to reach legal purposes mentioned in Convention, is it necessary in democratic society or is it coherent with the legal aim to be reached [15]. In accordance with the principle of proportionality not only purpose but the means of legal regulation should correspond the principle of legal definition.

Under Article 14 of the Criminal Procedure code of Ukraine of April 13, 2012 “the punishment improper to severity of criminal offence and the accused person is the punishment that doesn’t exceed the limits stipulated by respective article or its part of law of Ukraine on criminal liability but due to its type and amount is manifestly unjust because of its leniency or severity» [16]. It is mentioned in Resolution No. 7 of the Plenum of the Supreme Court of Ukraine of October 24, 2003 “On practice of assignment of punishment by courts ” that “the person who committed the crime should be imposed a punishment that is necessary and sufficient to reclaim and prevent new crimes’. The principles of legality, justice and reasonability  are implemented by the assignment of commensurable decision [17].

The court fails to adhere the principle of proportionality  in many cases of political prisoners in the Russian Federation. The case of so-called terrorists of Sentsov group is quite demonstrative in this aspect. In May 2014 four citizens of Ukraine – Hennadiy Afanasiev (lawyer), Oleksandr Kolchenko (student), Oleg Sentsov (Ukrainian filmmaker, Automaidan activist) and Oleksiy Chyrniy (historian) who had an active pro-Ukrainian position and spoke out against the occupation of peninsula by Russia were arrested. They are accused of crimes connected with terrorism. Afanasiev, Chyrnyi and Kolchenko really took part in arson but the character and consequnces of these offences can be qualified as hooliganism. The investigation authorities of the Russian Federation purposely gave wrong classification of these offences to hold demonstrative trial against pro-Ukrainian activists from the Crimea. According to the investigators Oleg Sentsov gave orders to the members of terroristic group to organize arson to destabilize the situation on the peninsula.

On May 23, 2014 the arrested persons were transported to Moscow to the further investigation actions. After tortures Hennadiy Afanasiev and Oleksiy Chyrniy confessed in all alleged crimes and gave false testimony against Oleg Sentsov and Oleksandr Kolchenko. Chyrnyi and Afanasiev were sentenced to 7 years of imprisonment in maximum security penal colony. Oleg Sentsov and Oleksandr Kolchenko didn’t plead guilty. The witnesses of state persecution were politically motivated, the evidence against Sentsov were based only on the testimonies of Afanasiev and Chyrnyi. Oleg Sentsov was plead guilty in establishment of terrorist organization, commitment of two terrorist acts and illigal trafficking in weapons. Oleg Sentsov was sentenced to 20 years of imprisonment in maximum security penal colony. Oleksandr Kolchenko was accused of participation in terrorist organization and execution of terrorist act. He was sentenced to 10 years of imprisonment in maximum security penal colony.

Serhiy Lytvynov, a farmer, the resident of village Komyshne of Stanychno-Luhansk district that is situated in 5 km from the border with Russia was arrested on the next day after the Investigation committee opened criminal proceedings on henoside of the Russian-speaking population at the east part of Ukraine. He was accused of commitment of dozens of murders; rape that he commited under the order of commandment of squadron “Dnipro-1” and personally under the order of Ihor Kolomoyskyi. The case was framed up, he gave testimonies after tortures. On November 30, 2015 Lytvynov’s advocate received a resolution on the suspension of criminal proceedings due to "lack of sufficient evidence". However, Lytvynov is still suspected of committing a robbery..

The cases of students Yuriy Yatsenko and Bohdan Yarychevskyi were also framed up. By the efforts of human rights defenders and the Ministry of foreign affaires of Ukraine they have already returned home.

It should be mentioned that all procedings in the cases of Ukrainian political prisoners arrested by Russia were and are executed with gross violation of provisions of the Convention on Human Rights and Fundamental Freedoms of 1950. All cases have the following characteristics: the arrested persons were refused to provide legal and diplomatic protection, the cases are made secret, the suspected are isolated from their families, physical and psyhological violance is used, the accusion is usually based on testimonies of unreliable witnesses, the punishment doesn’t correspond the alleged crimes. It is obvios that the question of Ukrainian political prisoners release is not a legal but political and diplomatic battle [18].

1.2. Violations of internation humanitarian law

1.2.1.Occupation of the Autonomous Republic of Crimea as the ground of Geneva conventions application in the whole territory of the Occuping Power and the occupied state

Article 42 of Regulations concerning the Laws and Customs of War on Land that is the annex to Convention (IV) respecting the Laws and Customs of War on Land 1907 [19] contains the definition of “occupation”: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

There is no consensus regarding the list of characteristics of occupation now. The following characteristics of occupation are outlined:

1.                Temporality, non-permanent status. Occupation has a temporarily status and doesn’t provide for transfer of sovereignity or legal title of the occupied territory to the Occuping Power. The occupation of the Autonomous Republic of Crimea by the Russian Federation and city of Sevastopol with the view of international law doesn’t mean that the Russian Federation has an imperium over this territory. On the contrary international law recognizes Ukraine as a sovereign of this territory that is its integral part [20].

2.                Invasive nature of armed forces of Occuping Power invasion. Towards the end of February –at the beginning of March 2014 the Russian troops without identifying insignia and militaries of the Black Sea Fleet occupied the Crimean peninsula. On February 23 Sevastopol illegally elected Alexei Chaly, a Russian citizen, as mayor. Under the law of Ukraine, it was not possible for Sevastopol to elect a mayor, as the Chairman of the Sevastopol City State Administration should be appointed by the President of Ukraine. [21]. On February 25 the meetings of separatists were held near the Crimean Parliament [22]. On February 27, the unidentified troops widely suspected of being Russian special forces seized the building of the Supreme Council of Crimea and the building of the Council of Ministers in Simferopol and the Russian flags were raised over these buildings [23]. Whilst the "little green men" were occupying the Crimean parliament building, the parliament held an emergency session. It voted to terminate the Crimean government and replace the Prime Minister Anatolii Mohyliov with Sergey Aksyonov. The parliament also voted to hold a referendum on greater autonomy. [24]. The airport “Belbek” in Sevastopol was captured on the same day, ferry line in Kerch was stopped. By 2 March, Russian troops moving from the country's naval base in Sevastopol and reinforced by troops, armour, and helicopters from mainland Russia exercised complete control over the Crimean Peninsula. Russian troops operated in Crimea without insignia. On 1 March 2014, Aksyonov declared Crimea's new de facto authorities would exercise control of all Ukrainian military installations on the peninsula. He also asked Russian President Vladimir Putin, for "assistance in ensuring peace and public order" in Crimea. Both Chambers of the Russian Federation Parliament voted to bring troops to the territory of Ukraine and to the Crimean peninsula.

3.                Obligatory assumption of control functions, establishment of administration on the territory of the occupied state. On 17 March, following the official announcement of the referendum results, the Supreme Council of Crimea declared the formal independence of the Republic of Crimea and Sevastopol [25]. Parliament also formally requested that the Russian government admit the breakaway republic into Russia. The Autonomus Republic of Crimea became the self-declared Republic of Crimea headed by the prime-minister Aksyonov, the head of newly formed State Council of the self-declared Republic of Crimea V. Konstantinov and self-declared mayor of Sevastopol, the citizen of the Russian Federation O.Chalyi.

On March 18, 2014 the President of Russia Putin and the prime-minister of the self-declared Republic of Crimea and the head of the State Council of the self-declared Republic of Crimea V. Konstantinov and self-declared mayor of Sevastopol, the citizen of the Russian Federation O.Chalyi signed so-called “Agreement for acceptance of the Crimea to the Russian Federation” [26]. On March

 4. Existance of victum-state. Ukraine didn’t recognize the results of so-called referendum of March 16, 2014 [27]. The Ministry of foreign affaires of Ukraine filed a note of protest with regard to airspace violation and breach of agreement on the Black Sea Fleet location in Sevastopol [28]. The Supreme Rada of Ukraine adopted an act “On addressing of the Supreme Council of Ukraine to states guarants in accordance with Memorandum on Security Assurances in connection with the Ukraine's accession to the Treaty on the Non-Proliferation of Nuclear Weapons [29] and called on the Russian authorities to cease the steps bearing the marks of invasion to state sovereignity and territorial integrity of Ukraine”and addressed to the states that signed the Budapest Memorandum to take all necessary steps to stabilize the situation. The Verkhovna Rada addressed the Security Council of the United Nations Organization to call an extraordinary U.N. Security Council meeting

5. International recognition of occupation. On March 27, 2014 the General assembly of the United Nations Organization supported the territorial integrity of Ukraine and recognized the Crimean peninsula and Sevastopol as its integral parts [30]. The Parliamentary Assembly of the Council of Europe adopted Resolution 1988 (2014) “Recent developments in Ukraine: threats to the functioning of democratic institutions”where “strongly condemns the authorisation of the Parliament of the Russian Federation to use military force in Ukraine, the Russian military aggression and the subsequent annexation of Crimea, which is in clear violation of international law” [31].

On  July 02, 2014 the Parliamentary Assembly of OSCE adopted Resolution on “Clear, Gross and Uncorrected Violations of Helsinki Principles by the Russian Federation” [32], which “condemns the occupation of the territory of Ukraine”, “Considers these actions, which include military aggression as well as various forms of coercion designed to subordinate the rights inherent in Ukraine’s sovereignty to the Russian Federation’s own interests, to have been unprovoked, and to be based on completely unfounded premises and pretexts” and “Calls on the Russian Federation to end its intervention in Ukraine and to bring itself into compliance with the Helsinki principles in its relations with Ukraine”.

Besides that the Verkhona Rada of Ukraine adopted the Law of Ukraine No. 1207- VII of April 15, 2014 “On guarantees of rights and freedoms of citizens and legal regime on temporarily occupied territory of Ukraine”, where the territory of the Autonomous Republic of Crimea, Sevastopol, internal maritime waters and territorial sea of Ukraine around the Crimean peninsula, territory of exclusive (maritime) economic zone of Ukraine along the seashore of the Crimean peninsula and continental shelf and air space over these territories are recognized as occupied territories” [33].

Thus the situation that arose in the Crimean peninsula with the view of international humanitarian law is recognized as the temporal occupation by the Russian Federation of the part of Ukraine that is the Crimean peninsula.

That means that article 2 joint for all four Geneva conventions on protection of war victums of August 12, 1949 determines that Geneva conventions shall be applied in all cases of partial or complete occupation of territory of the state that is a party to this Convention even if there is no rebelion to occuuption. The legal regime of occupation and applicatiotions all Geneva conventions on protection of war victums of August 12, 1949 shall be spread on this territory and Russia as an Occuping Power has obligations to protect and adhere human rights in accordance with provisions of the fourth Geneva convention of 1949 – Convention relative to the Protection of Civilian Persons in Time of War.

1.2.2. Violations of Geneva Convention on prisoners of war (articles 84, 99, 102, 103)

The massages and video and photo proof of abuse, humiliation, abuse and murder of militaris of the Armed Forces of Ukraine and volunteer formations, captured gross violation of the Geneva Convention respective the treatment of prisoners of War of 1949 appeared in mass media. [34].

The violations of provisions of Geneva Convention regarding the trial over the prisoners of war, their rights and guarantees of protection by the Russian Federation should be highlighted.

Nadiya Savchenko’s case is classical in this context. The violations of of provisions of Geneva Convention on prisoners of war. First of all under article 84 of this Convention A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

After being kidnapped and transported to the territory of the Russian Federation Nadiya Savchenko was under arrest in the pretrial detention facility  in Voronizh, her case was heard in Basmannyi court in Moscow. Her case is heard in Donetskyi city court of Postov region, but not in military court. Besides that on December 12, 2014 Mark Feygin, Savchenko’s advocate notified that he applied for suspend the proceedings due to her status of prisoner of war. [35]. The Court refused to recognize her as a prisoner of war.

Paragraph 2 of Article 84 of Geneva convention provides for the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105 of this convention: the right to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter.

Several times Nadiya Savchenko refused to speak Russian during the hearing of her case. There was no service of competent interpretert that is an obvious violation of article 105 paragraph 1 of Geneva convention.

The Russian Federation violated paragraph 3 of above article concerning the freely visit of the accused and interview her in private. Savchenko’s advocate Mykola Polozov spoke to her throgh the glass in presence of 5 members of Federal Penal Enforcement Service , including colonel.

“No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused”. The advocates of Ukrainian pilot for several times stated of tortures and restiction of rights of prisoner: her personal belongings were retrieved, she didn’t receive correspondence, and she had no opportunity to speak with other prisoners. The members of Parliament of the Russian Federation suggested Nadiya plead guilty and so on. The above facts prove not only moral but physical pressure on Ukrainian military officer .

Under article 103 judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

Nadiya Savchenko has already been confined in pretrial detention facilities of the Russian Federation since July 2014 that is more than one and half a year and is the violation of article 103 of Geneva Convention.

Under Article 102 of Geneva convention a prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Powet. Thus any sentence pronounced by Donetskyi city court of Rostov region or any other court of the Russian Federation shall be regarded as pronounced by improper judicial institution due to the case of prisoner of war should be heard at military court.

Cosequently with the view of international humanitarian law Nadiya Savchenko should be regarded only as a prisoner of war, because she is member of armed forces of Ukraine, took part in military activities, was illigally arrested on the territory of LPR and transported to the Russian Federation. At this time the courts of Russia have not delivered any special decisions in respect of Nadiya Savchenko status and under article 45 of Additional Protocol to III Geneva convention she is a prisoner of war. And it means that all procedure actions against her are forbidden. Provisions of Geneva Convention on prisoners of war shall apply.

1.2.3. Violations of Geneva Convention relative to the Protection of Civilian Persons in Time of War (articles ст. 4, 64, 67, 68)

The violations of Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 can be observed in some headline-making cases being heard in Russian courts. [37].

In compliance with paragraph 1 of article 4 of this international document “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. In Sentsov-Kolchenko case Ukrainians de facto were deprived this right, because Russia considers them as citizens of the Russian Federation. They categorically deny that and declare themselves as citizens of Ukraine. The similar situation is observed in the case of Kh. Jemilov.

Under article 64 of Geneva Convention “the penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws”. That means that criminal legislation remains in force on the territory of Crimea and for the residents of peninsula.

In compliance with article 67 of Geneva convention “The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with general principles of law, in particular the principle that the penalty shall be proportioned to the offence. They shall take into consideration the fact that the accused is not a national of the Occupying Power”. In May 2014 four citizens of Ukraine – Hennadiy Afanasiev, Oleksandr Kolchenko, Oleg Sentsov  and Oleksiy Chyrniy who had an active pro-Ukrainian position and spoke out against occupation of peninsula by Russia were arrested. They are accused of crimes connected with terrorism. The crucial element of the Crimean terrorists case is the discrepancy the charges of alleged crime. The offence commited by “Crimean terrorists” caused a damage that is equal to 400 Euro and 2600 Euro. The urgent question is: can the arson that didn’t cause serious damages be qualified as a terrorist act? As the investigation authorities say the arson was commited with a view to “to intimidate the population and influence the decision of the authorities”. Such a formulation let accuse these persons of terrorism. The state persecution paid attention to the fact that both arsons were committed in offices the names of which contain words “Russian” or “Russia” and there were Russian flags. However it should be mentioned that in April 2014 there was no party “The in the Crimean peninsula “The United Russia” and that office belonged to the Party of regions of Ukraine. “The United Russia” has no connections with this office [38].

Oleg Sentsov was sentenced to 20 years of imprisonment in maximum security penal colony. Oleksandr Kolchenko was accused of participation in terrorist organization and execution of terrorist act. He was sentenced to 10 years of imprisonment in maximum security penal colony. The above-mentioned sentances are the clear evidence of violation of paragraph 1 of article 68 of Geneva Convention in respect of the principle that the penalty shall be proportioned to the offence

Russia as an Occuping Power violated paragraph 1 of article 70 of Geneva convention: “Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war”. The vivid prove of that is the case of Khaser Jemilov [39], who killed F. Edemova in 2013. Jemilov was detained in Bakhchsaray pretrial detention facility and after the occupation of the Crimean peninsula by Russia the reconsideration of his case began in Krasnodar Krai. Khaser Jemilov is the citizen of Ukraine and refused to accept the citizenship of the Russian Federation. That is why in accordance with the above rule and paragraph 3 of article 12 of the Criminal code of the Russian Federation [40]: the foreigner that commited a crime beyond the territory of the Russian Federation shall bear criminal liability under the laws of the Russian Federation only if the aim of the crime is against the interests or citizen of the Russian Federation. The hearing of Jemilov’s case in Krasnodar Krai is illegal because the crime was committed in the territory of Ukraine by the citizen of Ukraine in respect of the citizen of Ukraine. The same situation is observed in the case of Pro-Ukrainian activists who participated in meeting near the Parliament of Autonomous Republic of Crimea on February 26, 2014, before the occupation of Crimean peninsula by the Russian Federation.

Thus Russia violated Geneva conventions relative to the Protection of Civilian Persons in Time of War with regard to application of this international treaty to political prisoners that are citizens of Ukrane, guarantees of their rights to fair trial and sentencing according to the severity of the offense committed.

2. The legal and political means to solve the problem of political prisoners

2.1. The availability and efficiency of legal means to influence Russia

2.1.2. Interstate appeal to the ECHR : duration of the process and high possibility of non-compliance of its judgement

On August 26, 2015 Ukraine submitted the fourth lawsuit against Russia to the European Court of Human Rights (ECHR). One of the reasons of this lawsuit was the violation by Russia the right of Ukrainian citizens to justice, especially the filmmaker Oleg Sentsov [41].

The Minister of foregn affaires of Ukraine P. Klimkin named 11 political prisoners that are citizens of Ukraine who are now in jails of the Russian Federation. There is even no consular access to some of them. Klimkin also noted that the Ministry of foreign affaires applies similar efforts to release all political prisoners [42]. Ukrane in its claim stressed on the massive violations of rights of Ukrainians and political prisoners captured by the Russian authorities. Besides that three interstate cases “Ukraine against Russia” concerning the annexation of Crimea by Russia and conflict in Donbas are already in the court. In September 2015 third lawsuit in case of Khayser Jemilov was recalled because he applied individually. Generally there are three interstate claims submitted by Ukraine.

Minister of Justice of Ukraine P. Petrenko said that during its history there were only 16 international lawsuits in the ECHR, three of which are from Ukraine. He is convinced that Ukraine will receive a positive decision from the ECHR with relevant compensation, establishment of facts, and punishment of the perpetrators of the top management of the Russian Federation who have been involved in these human rights violations. The Minister noted that the sentence delivered to filmmaker Sentsov fail to meet the international standards and rules of common sense [43]. Russia, in its turn, denies the accusations of Ukraine of its involvement in the conflict at the East of Ukraine. In 2014 According to the press service of the ECHR Moscow announced the first motion to suspend proceedings "against Ukraine." The ECHR agreed to prolong the period of admissibility observations submission by the government of Russia.

On January 05, 2016 the Minister of justice P.Petrenko stated that the Russian Federation didn’t provide explainations on any lawsuit and accusiotions against it. [44]. The hearing of the claim of Ukraine postponed to autumn of this year.

The Governmental Commissioner for the ECHR Boris Babin considers that Russia will try to delay the consideration of cases initiated by Ukraine to the bitter end. He also noted that Ukraine, in its turn, will insist on urgent interlocutory decisions, at least on the initial phase of these cases. In his opinion the results of consideration of these cases can be expected in 2-5 years [45].

According to the former representative of Ukraine to the UN Council on Human Rights Volodymyr Vasylenko, “Ukraine has good chances to win at the ECHR. Procedural and legal formalities can delay the consideration of cases, but Ukrainian government should constantly provide the Court with new materials testifing the gross human rights violations by Russia. This will contribute to the rapid resolution of the case” [46]. 

Arkadiy Bushchenko, the executive director of Ukrainian Helsinki Human Rights Union (UHHRU), noticed, that the hearing of the case in the ECHR may last for years. Especially taking into account that the government of Ukraine united the cases concerning the annexation of the Crimea and events in the Donbas. He also reminded that hearing of case "Cyprus v. Turkey" on compensation lasted '40 years. In case “Georgia against Russia” upon the application of March 2007 the ECHR delivered a judjement only in July 2014. Official Tbilisi accussed Russia of illegal arrests and massive deportation during anti-Georgian campaign in 2006-2007. The ECHR delivered a judgement in favour of Georgia, but till 2015 the parties had to agree on compensation payment or conclude peace agreement but they didn’t agree. Now Georgia in the ECHR demands Russia to compensate 70 million Euro [47].

Advocate Markiian Halabala considers the ECHR as quite effective mechanism but due to severe overloading the Court can not cope with the volumes of complaints coming to it every year. Therefore, in his opinion, we should not expect fast judgements on claims of Ukraine to Russia [48].

On December 14, 2015 the President of Russia V. Putin signed the law that envisages the right of the Constitutional court to recognize it impossible to execute the decisions of international courts. The law was designed and based on the resolution of the Constitutional Court of the Russian Federation, issued in July 2015. Thus Russia established the unnecessary character of the ECHR judgements. Practically it means that the authority that protects the interests of Russia in international courts shall apply to the Constitutional court of the Russian Federation entitled to decide whether Russia will execute the decision of international institutions on the human rights and freedoms protection. The Constitutional court shall have the right to recognize the decisions of international courts, first of all the ECHR, as unenforceable if they contravene the Constitution of the Russian Federtion [49]. 

In accordance with article 46 of the European Convention on Human Rights  of the Council of Europe all members of the Council of Europe are obligated to execute the final decision of the court. But as it mentioned in official statement of the Council of Europe of December 15, 2015 The Council of Europe shall formulate its position in respects of adherence of commitments that Russia undertook only after the ECHR deliver the judgement [50].

On January 2016 the President of the ECHR Guido Raimondi mentioned at the press-conference that refusal of the state to execute all judgements of the ECHR shall result in withdrawal of a state from the Coucil of Europe. If the national system of any state fails to execute the decisions of the ECHR such a state can not be a part of institution that considers the judgement as obligatory. He also noted that it is difficult for states to execute the judgement of the ECHR , but cases of failure to respect the court's decision can be counted on the fingers [51].

The officer of the ECHR administration in conversation with journalist of German edition Deutsche Welle on condition of anonymity stated that after the Constitutional court of the Russian Federation shall deliver a judgement the judgement of the ECHR brought by Ukraine has no chances to be executed even if such judgement will be in favour of Ukraine. He underlined that Russia had already established a legal basis for non-fulfilment of Judgements of the ECHR [52].

The Deputy Foreign Minister of Ukraine for European Integration Olena Zerkal said in a recent interview that the decision of the Russian authorities to abolish the primacy of international law proves, in particular,that Ukraine intends to confront in defending their sovereign and commercial interests [53].

There was a precedent to recognize the state liable for the support of the separatists in violations of human rights stipulated in the European Convention on Human Rights [54]. However Ukraine needs to take into account that the international courts usually need 2-10 years to deliver a judgement. Within the framework of the ECHR this process usually takes 2 years in individual cases. It is obvious that consolidated claim of Ukraine will require each fact being proved that means the complicity of the proceeding and long-term consideration of the case. Besides that Ukraine should prepare a good evidence to prove the amount of compensation.

Actually it is likely that the most difficult for Ukraine will be related to the execution of court judgements and payment of appropriate compensation. So far, there were no effective mechanisms to make the national governments implement the judgments of the ECHR. But on September 30, 2015 the Parliamentary Assembly of the Council of Europe adopted resolution “Implementation of judgments of the European Court of Human Rights” that provides for new methods of pressure on states that break their international obligations and fail to execute the judgements of the ECHR. It deals in particular with the application of article 46 of the European Convention on Human Rights under which the Committee of Ministers of CE may address the ECHR in respect of adherence by a state of its obligations to implement all the court’s judgements. Should the Court determine the breach of this obligation by a state, CM is entitled to determine the method of punishment to the perpetrator state and impose more severe sanctions and even the exclusion of such a state from the Council of Europe [55].

In addition, as the Yukos case proves, the court significantly reduces the amount of claims of the plaintiffs. Specifically, in the suit where the shareholders demanded compensation amounting to 98 billion Euro, the ECHR awarded them compensation in the amount of 1.86 billion Euro. According to the annual report of the Committee of Ministers on the implementation of judgements of the ECHR in 2014 Russia was the first among the members of the Council of Europe who failed to pay compensation under the judgement of the Court. It always takes a long time for Russia to implement the judgements of the ECHR, which is 9.7 years. In addition, Russia has the third place regarding the number of outstanding decisions of the ECHR (after Italy and Turkey) [56]. So it is vain to expect that Russia will willingly and quickly implement the ECHR judgement in the case against Ukraine. The implementation in cases "Ukraine v. Russia" becomes more complicated due to political component they are based on.

Due to interstate complaint of Ukraine against Russia and huge number of individual complaints connected with the annexation of theCrimea and conflict in the Donbas, the European court of human rights for the first time faced a serious problem of application of theEuropean Convention on Human Rights in armed conflict. The judgements delivered by the Court will be critical to the court practice.

2.2.1. The problem of liability for violations of Geneva conventions: the perpetrator fails to recognize the international armed conflict, lack of availability of institutional mechanisms of liability

The main problem of international responsibility of the Russian Federation is a contractual nature of jurisdiction of the existing international judical institutions. However now Ukraine itself creates additional obstacles to exercise the justice over the persons plead guilty in annexation of the Crimean peninsula and crimes commited during the armed conflict in the Donbas. Such approach of Ukrainian authorities gives Russia additional arguments to blame Ukraine of double standards. Ukraine should adopt clear-cut and tough position in investigations of violations of Geneva conventions and bring the guilty persons to liability First of all it is for the benefit of Ukraine itself and than for the benefit of international community. The long-lasting armed conflict is a sufficient reason to refuse from the excessive caution in establishing the guilt of some persons.

As the President of the European Committee for the Prevention of Torture  Mykola Gnatovkyi notes, that the recognition of international armed conflict between Russia and Ukraine is the question of fact, it needs no additional applications and recognition or non-recognition by the belligerent states does not impact the qualification of this conflict. If the state exercises an effective control over anti-governmental armed troops in another state, such state must be responsible for all actions of such armed troops and is deemed to be a party to international armed conflict. It is not necessary the armed forces of controlling state should take part in conflict. War between Russia and Ukraine is a vivid example of such control execution. [57].

Human Rights Watch considers that subject to international law Russia is an Occuping Powerat at least starting from the late February 2014 and its actions are occupation. Russia exercises the control over the Crimea without the consent of the government of Ukraine and in absence of legal transfer of sovereignity to Russia. So-called referendum that took place by local authorities without any sanctions of the government of Ukraine and without wide recognition by international community and unilateral actions of Russia do not correspond the criteria of international law concerning the transfer of soverighnity due to which the war occupation shall be deemed as terminated [58].

On March 17, 2015 the Verkhovna Rada adopted a resolution which recognized some districts, cities, towns and villages of Donetsk and Luhansk regions as temporarily occupied territories [59]. To opinion of Oleksandr Merezhko the adoption of above resolution shall have serious legal and political consequences. Essentially it means that not only laws of Ukraine, but also international humanitarian law and, first of all, Geneva convention 1949 relating to protection of civilians during the war shall apply. This Convention is applied even if one of the parties fails to recognize the war. Thus Russia as the Occupying Power has the duty of ensuring the food and medical supplies of the population (article 55 of Geneva Convention). The Russian Federation shall be fully responsible for humanitarian situation on the occupied territory of Donbass [60].

Following the annexation of Crimea Russia for several times committed harassment of the Crimean Tatars, illegal searches and arrests, kidnapping, murder and assaults to murder that finally led to a large number of refugees among this ethnic group. In this case the Geneva Convention prohibits cruel treatment of the civilian population of the occupied state, and especially - its depopulation. In addition to attacks on human life, Russia can be accused of other crimes, such as the seizure of another's property in annexed territory, electoral fraud, infringement of the rights and freedoms of journalists and mass destruction of a free press, illegal withdrawal of the license of dozen of Crimean media that were forced to close. In accordance with article 52 of Geneva convention “All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited”.

The problem of bringing Russia to responsibility for violatins of international humanitarian law lies in the fact that Russia still failed to ratify the Rome statute which it signed in 2000 [61].

Mykola Gnatovskyi noted that Ukraine recognized the jurisdiction of the International criminal court that includes all events of armed conflict on our territory starting with the occupation of the Autonomous Republic of Crimea and continued in Donetsk and Luhansk regions. Such definition of jurisdiction has no time limit, it is impossible to revoke or question it. The delay of the Rome statute ratification because of the desire to protect Ukraine and its defense from attempts to abuse the international criminal justice of the anti-Ukrainian forces have no basis in reality. International crimes already commited, being committed or that will be committed during the armed conflict on the territory of Ukraine are already under the jurisdiction of the International criminal court despite the citizenship of whose who committed such crimes. The ratification of the Rome statute shall add no new rights of the International criminal court in relation to Ukraine or its citizens – everything has already happened. Ukraine has already undertaken all obligations including the obligation to cooperate with the International criminal court in relation to all crimes committed on its territory.

Now the ideas to ban the ratification of the International Criminal court Statute will not only contravine the obligations of Ukraine under the Agreement of association with EU. It will contravine it to elementary logic and will only create a ground to Ukraine detractors to speculate on its alleged unwillingness to bring to justice those responsible for the most serious international crimes [62].

On December 11, 2015 the Deputy Attorney General of Ukraine Vitaliy Kasko stated that the Office of Prosecutor of the ICC is now studing the cirtumstances in the framework of statement of the Verkhovna Rada of Ukraine of February 4, 2015 No. 145-VIII «On recognition by Ukraine the jurisdiction of the International criminal court in respect of crimes against humanity and war crimes committed by the highest official of the Russian Federation and the leaders of terrorist organizations DPR and LPR that led to very serious consequences and massive killing of Ukrainian citizens” submitted to the Court on September 8, 2015 by the Minister of foreign affaires of Ukraine Pavlo Klimkin”.

As Kasko explained all materials and evidence gathered by the General Prosecutor’s Office to execute the above statement of Ukrainian parliament that contain information about crimes against humanity and war crimes commited at the east of Ukraine and in the Crimea including the circumstances of occupation of this peninsula are submitted to the Office of the Prosecutor of the ICC. He also specified that the International criminal court shall not study the annexation of Crimea by Russia in a separate proceeding.

Kasko stressed that the procedure of preliminary invastigation of the situation according to above statement of the Verkhovna Rada and obtained material from Ukraine is taken place in the Office of Prosecutor of the ICC. There is no time limit for such procedure.

In his turn, the spokesman of the International criminal court Fadi El Abdalla stated that the ICC can’t open the criminal proceeding upon the statement of Ukraine in respect of illigal annexation of Crimea by Russia. According to him starting from 2017 the ICC shall have the new function that is to consider the cases connected with aggration acts and annexation is one of them. Even if the respecting amendment to the Statute shall be ratified, Ukraine is unlikely to address the ICC because the the amendment will not apply retroactively [63].

In this connection Mykola Gnatovskyi noticed that no one knows where the agressor will stop, because the state that starts aggression rarely stops at one thing He therefore suggests that after the ICC receives jurisdiction over a crime of aggression, it will be possible to talk about the continuing aggression associated with the annexation of foreign territory.

According to V. Vasilenko, doctor legum, the former judge of the International Tribunal for crimes committed in former Yugoslavia, it is practically impossible to bring to responsibility the Russian leaders taking an active part in any activity against Ukraine. It has sense only politically. He also stresses that “The international criminal court is not a cure-all sollution. The International criminal court at its best may consider and will consider only the cases of the leaders of the state. In case of other officials and military officers the victum state should prosecute them at national level. The Criminal code of Ukraine provides for the punishment for the war crimes and crimes against humanity. It is only Ukraine who should prosecute the persons committed these crimes on the basis of its national legislation”[64].

Simon Papuashvili, the head of Georgian coalition “Pro international court” and the former Government Commissioner of Georgia at the European Court, the experience of Georgia is similar to Ukraine’s experience, that there are many rumours that Ukraine committed many crimes. But there is no substantial proof or there is little information about the crimes from Ukraine. He considers that “it will be more advantageous for Ukraine to invastigate the crimes and organize justice, prosecute the perpetrators of crimes in the manner as international commitments require, but not to do as Georgian government did. Ukraine needs to ratify the Rome statute and introduce amendments to article 124 of the Constitution of Ukraine. Besides that there are also great chances to interprete the crime of aggression as a long-lasting act consisting of episodes that pass one into the other. And may be these episodes will continue after ratification or entry of protocol into force in 2017 and the Court will be able to initiate the investigation of aggression.  

In his turn Oleksander Delemchuk, the coordinator of international programms of Civil organization “Civilian freedoms center” states that Ukraine repeats the past mistakes, mistakes that Georgia made. Georgia did not give anything substantive to the International criminal court. Non-governmental organizations gathered all evidence. The same is now. Non-governmental organizations provided the information and evidence to Hague concerning the events at Maidan [65].

Amnesty International in Ukraine in its official letter calls upon the President of Ukraine Petro Poroshenko to “show his political will and take all necessary steps to ratify the Rome statute of International criminal court (ICC) by Ukraine as fast as possible». [66].

The ratification of the Rome statute is one of the key obligations of Ukraine before the European community and is the only opportunity to investigate the crimes against humanity and war crimes in the Donbas. The corresponding amendments should be introduced to article 124 of the Constitution of Ukraine in respect of recognition of provisions of the Rome statute. The process is blocked now and the proposed reform of the justice system ratification of the Rome Statute postponed for three years without explanation. Ukraine has no right to submit the case to the ICC without the ratification of the Rome statute. In case of recognition of jurisdiction Ukraine may only hope that the Prosecutor of ICC will iniciate the invastigation of some case. The ICC shall carry out its investigation only concerning the limited number of persons. That is why Ukraine should not cherish hopes that the ICC will determine the fate of all persons involved in annexation of Crimea or armed conflict in the Donbas. The respective investigations should be carried out first of all at national level. It is necessary to reform the national judicial system and open proceedings in respect of persons that commited the most severe crimes. Russia should bear responsibility for the violations of international humanitarian law by local authorities of so-called DPR and LPR and their proxy allies because it is obligated to prevent such violations and prosecute them. The ICC has a complementary jurisdiction and that is why the huge burden of investigation bears on national courts. The legal proceedings in the ICC are quite expensive. And the delivery of judgement can run over for years.

In fact, Ukraine voluntarily renounces the possibility to bring to justice the initiators and participants of Russian aggression in the Donbas. But such opportunities in our country is not too much, because of the contractual and legal nature of most international judicial institutions and active resistance of Russia to recognize itself bound to implement decisions made by them.

The fact that on January 27, 2016 the ICC decided to initiate investigation of crimes commited in South Osetia from July 1 till October 10, 2008 can be a positive for Ukraine. The Pre-Trial Chamber of the ICC decided there are serious grounds to consider that the crimes in Georgia belong to the jurisdiction of ICC. The crimes against humanity, such as murders, the forcible transfer of population and harassment and war crimes such as attacks on civilians, arbitrary killings, deliberate attacks on peacekeepers, destruction of property and robbery that took place during the international armed conflict are mentioned among the possible crimes. Besides that the Chamber concluded that there were no obstacles to consider the cases submitted to ICC [67]. 

2.2.2. Influence by means of international organizations, pressure on Russia by the third states (example – the activity of USA to release their citizens in Iran in the absence of diplomatic relations)

There is a right opinion that it is possible to force the Russian Federation to release Ukrainian citizens from the political capture only by means of international observers and organizations participation.

The spread of information about political prisoners in the Russian Federation is carried out by different channels and by campaign #LetMyPeopleGo, established by Ukrainian organizations EuromaidanSOS and Center for Civil Liberties. The main purpose of this campaign is to spread information about citizens of Ukraine and other states illigally detained within the territory of the Russian Federation on political grounds by support of Ukraine and public demonstrations against Russian aggration in Ukraine [68].

There were also attempts to exercise the political pressure on the Russian Federation to make it release one of political prisoners that is Nadiya Savchenko by means of the Council of Europe mechanisms. Anne Brasseur, the President of the Parliamentary Assembly of the Council of Europe, has asked Russian Duma Speaker Sergey Naryshkin for his assistance in securing the urgent release of detained Ukrainian pilot Nadiya Savchenko, “in time to allow her to be present for the opening of the January part-session of the Assembly” as a member of the Ukrainian delegation. [69]. 

Subject to article 15 of the General Agreement on Privileges and Immunities of the Council of Europe “During the sessions of the Consultative Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy: a) on their national territory, the immunities accorded in those countries to members of Parliament; b) on the territory of all other member States, exemption from arrest and prosecution”. [70]. The same provision is envisaged in article 3 Protocol to the General Agreement on Privileges and Immunities of the Council of Europe of November 6, 1952 [71]. At the same time article 9 and article 11 of the General Agreement shall apply for functional immunity to the actions of Assemby while exercising their functions [70].

In accordance with information of the Investigation committee of the Russian Federation there is no grounds to apply provisions on functional immunity from arrest and prosecution in respect of Nadiya Savchenko because the alledged crime and respective actions of law-enforcement bodies concerning her arrest had taken place before she became the member of delegation of Ukraine in the Council of Europe [72].

A number of statements were declared and several resolutions were adopted within the framework of the Council of Europe with the view to force the Russian Federation to release the citizens of Ukraine. They include Resolution 2063 (2015) “Consideration of the annulment of the previously ratified credentials of the delegation of the Russian Federation (follow-up to paragraph 16 of Resolution 2034 (2015)” (paragraph 8.4. - Immediately release Nadiia Savchenko and allow her to return to Ukraine; paragraph 8.5. – release all captives, in particular civilians and those held in the Russian Federation) [73]; the Statement of the President of PACE of August 25, 2015 on the sentencing of Oleg Sentsov and Oleksandr (“The sentencing of Oleg Sentsov and Oleksandr Kolchenko on charges of terrorism, respectively to 20 and 10 years in prison, appears to be manifestly excessive and raises concerns about respect for the standards of the European Convention on Human Rights in the legal proceedings against them”) [74].

There are also appeals from the Parliamentary Assembly of the Organization for Security and Cooperation in Europe to release the citizens of Ukraine from political captivity of the Russian Federation. The results of the annual session of the OSCE Parliamentary Assembly (5-9 July 2015) adopted the Helsinki Declaration and a number of protocols, that includes Resolution on abducted and illegally detained Ukrainian citizens in the Russian Federation. In this document the Parliamentary Assembly “strongly condemns the abduction of Ukrainian citizens from the territory of Ukraine, including Member of Parliament Nadiya Savchenko, filmmaker Oleg Sentsov and others, their illegal transfer across the Ukrainian-Russian state border and further detention in the Russian Federation”. In paragraph 13 it calls on the Russian Federation to “strictly abide by the norms and principles of international law, the OSCE principles and commitments, the Minsk Agreements and to immediately release Nadiya Savchenko, Oleg Sentsov and other Ukrainian citizens that are illegally detained in Russia, as well as to ensure their safe return to Ukraine” [75].

On April 30, 2015 in the framework of the European Union The European Parliament adopted Resolution 2015/2663(RSP) on the case of Nadiya Savchenko, stressing that “whereas Nadiya Savchenko is a member of the Verkhovna Rada and of Ukraine’s delegation to the Parliamentary Assembly of the Council of Europe (PACE) and referring to the PACE Resolution 2034(2015) asking for her immediate release and for her parliamentary immunity as a member of the Ukrainian delegation to PACE to be respected;and the obligations of the Russian Federation under Minsk Agreements” [76].

On June 25, 2015 the Parliamentary Assembly of the Council of Europe adopted the Resolution 2067 (2015) “Missing persons during the conflict in Ukraine”where the Assembly urges the authorities of the Russian Federation to release all prisoners illegally captured in Ukrainian territory (paragraph 9.1) [77].

The European Parliament adopted the special Resolution by the European Parliament on Russia, first of all, in regard with the cases of Eston Kohver, Oleg Sentsov and Olexandr Kolchenko of September 10, 2015, where the European Parliament “strongly calls on the Russian Federation to immediately release Oleg Sentsov and Olexandr Kolchenko and guarantee their safe return to Ukraine” [78].

February 4, 2016 became an outstanding date when the political pressure on the Russian Federation by international organizations and especially by the European Union became more considerable. The European Parliament resolution on the human rights situation in Crimea, in particular of the Crimean Tatars 2016/2556(RSP) was adopted. In accordance with this document The European Parliament calls on the Council to continue with these sanctions until the completion of Crimea’s full reintegration into the legal order of Ukraine. Paragraph 14 is also very important as it  Calls on the Russian Federation to “release prisoners such as Oleg Sentsov and Oleksandr Kolchenko, as well as Ahtem Chiigoz, the deputy chairman of the Mejlis, Mustafa Degermendzhi and Ali Asanov who were arrested in Crimea for their peaceful protest against the occupation, and to guarantee their safe return to Ukraine; urges the Russian Federation to end the politically motivated prosecution of dissidents and civic activists; condemns their subsequent transfer to Russia and the forcible attribution of Russian citizenship”. There was also an address to the Council of the European Union to prepare the further sanctions againt the Russian Federation [79].

There are also a number of statements from the third states on release of Ukrainian citizens from captivity of the Russian Federation. France spoke that the states should joint their efforts to release Nadiya Savchenko and other hostages [80].

The legal mechanisms prove to be ineffective in respect of political prisoners. There are also certain doubts concerning political pressure and that the resolutions of international organizations shall fail to force Russia to release the citizens of Ukraine. The political deal-making process is the only exception. For example, concerning the renewal of voting rights and its representation in the governing bodies of international organizations it was deprived by respective resolution in April 2014 because of the Crimea annexation and it hasn’t been renewed yet. PACE sanctions were twice prolonged. Due to this fact the Russian delegation refused to take part at annual winter session of PACE in accordance with resolution of both Chambers of the Russian Parliament [81, 82, 83]. Such actions of intions may result in so-called political blockade and isolation of the Russian Federation.

2.2.3. «Exchange of hostages» is the direct pressure with the view to release Ukrainian citizens to exchange the Russian militaries (participation of France in exchange of hostages with the view to release its citizen illigally arrested by racist regime in RSA)

The procedure of exchange of hostages between the parties to the conflict is quite widespread. The exchange of hostages between Iran and USA sounds familiar. Iran released four imprisoned citizens of America and USA released seven Iran citizens and revoked its INTERPOL requests for arrest and withdrew the prosecution of fourteen Iranians [84].

The case of Albertini, a French volunteer, captured and imprisoned in Republic of South Africa in 1987. The Exchange of hostages took place with participation of Angola, France, the Netherlands and Republic of South Africa following the months of negotiations. Upon signing the arrangement the President of RSA Piter Bota expressed the hope that such agreement shall serve as an impulse for all regional leaders to settle disputes by means of negotiations. According to statements of government of Republic of South Africa it was in their interests to release Albertini to improve its relations with France. [85, 86, 87].

The hostages exchange between Ukraine and the Russian Federation was envisaged in Minsk argeements, in the Package of measures for implementation of the Minsk agreements. That includes the release of all hostages and illegally detained persons based on "all for all" principle”. This process is to be finished on the day 5 after the withdrawal of all heavy weapons by both sides at the latest” [88]. The Parliamentary Assembly of the Council of Europe received the Written declaration “Exchange of captives between Ukraine and the Russian Federation: the way to resolve” No.601 (Doc.13967) of January 26 2016. It stresses that the Ukrainian and Russian Presidents have respectively publicly declared at their press-conferences on 17 December 2015 and 14 January 2016 their will to exchange political prisoners according to Chapter 6 of the Minsk agreements of 12 February 2015 [89]. The PACE delegates have signed the declaration giving Secretary General of the Council of Europe Thorbjorn Jagland the mandate to ensure the dialogue between the Presidents of Ukraine and Russia on exchange of captives without intermediaries.[90].

Besides that in the framework of the Trilateral Contact Group in Minsk that took place on January 13, 2016 the special attention was drawn to the return of Ukrainian citizens from captivity. The spokesperson of representative of Ukraine Leonid Kuchma Darka Olifer noted that “Ukraine on the initiative of all parties have reached mutual agreement to release more than 50 people on both sides - especially the wounded, sick and women” [91,92]. According to information provided by the Presidental Commissioner on the peaceful settlement of situation in occupied Donbas Iryna Herashchenko “the exchange will take place starting from 25 Ukrainians being tortured and those who have health problems and who have hard deases” [93]. 

By the way the director of the Center of prisoners release” by "officer corps" Vladimir Ruban said that parties accepted model of exchange of prisoners "two by two": the exchange of two Russian officers Alexandrov and Yerofeyev for Ukrainian citizens Sentsova and Kolchenko, but after the delivery of the judgment of Alexandrov and Yerofeyev. It should be noted that Ukraine has offered another option exchange - two Russian officers Nadiya Savchenko, but while there is no political will of the Russian Federation [94].

Thus there is some progress in the issue of exchange of prisoners between Ukraine and the Russian Federation. The crucial meaning has a political will of parties to the confilct, especially the political will of the Russian Federation which is not restained by sanctions imposed on behalf of the international community. But it is worth noting that the new resolutions of international organizations, including in respect of the exchange of prisoners, acutely when the Russian Federation of its international legal obligations.

CONCLUSIONS

To legitimize the annexation of the Crimean peninsula and participation of Russian militaries in armed conflict in the Donbas the Russian authorities use propaganda. One of its displays is to open obviously fake criminal cases against Ukrainians accusing them of terrorism, mass murders and espionage. Innocent people become the victims of such prosecution. With a view of horrification the wave of prosecution and suppression of the fundamental human rights swept on the territory of the annexed Crimean peninsula. The Russian Federation also uses Ukrainians as hostages and tries to profit from their possible release.

Now approxiametly 30 political prisoners and the prisoners of conscious are known be within the territory of Russia, but there may be more such persons. All criminal cases against political prisoners have the following characteristics: unclear circumstances of their arrests or kidnapping, refusal of Russia to provide appropriate legal and diplomatic protection, isolation of detained persons from any contacts with relatives and members of the family, physical and psychological violence and absence of sufficient evidence and disproportion of alleged crimes to charges.

The Russian Federation violates the rules of Geneva conventions relative to the Treatment of Prisoners of War. Geneva and  relative to the Protection of Civilian Persons in Time of War. There is no special judgement with regard to the status of Nadiya Savchenko and that is why subject to article 45 of Additional protocol to the Third Geneva convention she is a prisoner of war. And that means that all procedures regarding her are prohibited. Prosecution and precautions are illegal. The Gross violation of international humanitarian law can be observed in other high-profile cases against Ukrainians (case of Crimean terrorists, case of Jemilev and others).

Ukraine filed a lawsuit to the European Court of Human Rights against Russia for the violation of the right to justice concerning Ukrainian citizens. But the hearing of the case may take several years. The implementation of any judgement of this international institution by Russia. The problem of bringing the Russian Federation to international responsability lies in the fact that Russia hasn’t ratified the Rome Statute yet. Ukraine hasn’t ratified this important international document yet too, in 2015 it recognized the jurisdiction of the International criminal court. The Russian Federation doesn’t recognize the international armed conflict in the Donbas and considers the occupied Crimean peninsula as its territory.

The permanent political and economic pressure, condemnation of the actions of the Russion Federation actions by international organizations and by Ukraine as a victim, the prolongation and increase of imposed sanctions are also important. The political deal-making process especially concerning the voting right at The Council of Europe or hostages exchange in accordance with the Minsk agreements may also be effective.

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 The Citizens of Ukraine as Political prisoners in the Russian Federation: international legal aspects

Authors:

Zadorozhnii Oleksandr, DLL, professor, President of the Ukrainian Association of International Law

Herasymchuk Natalia, post-graduate of international law department of Institute of international relations of Taras Shevchenko national university of Kyiv

Derunets Natalia, post-graduate of international law department of Ukrainian State University of Finance and International Trade

Zaporozchuk Anna, candidate of legal sciences, lawyer of Nonprofit organization “Rishychi gromadyany”

Article deals with the legal aspect of political prisoners in the Russian Federation. The authors study the definition of this legal phenomenon and criteria to recognize a person as a political prisoner. The special attention is drawn to the violations by Russia of the fundamental human rights regarding the political prisoners and prisoners of conscience, the violations of international humanitarian law. The article provides the comparative analyses of different international mechanisms and their probable effective to force Russia to release the prisoners and bring this state to international responsibility.

Key words: prisoner of war, prisoner of conscience, right to fair trial, the non-discrimination principle, violation of fundamental human rights, prosecution, detention, hostages.