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19 July, 2016  ▪  Stanislav Kozliuk,  Hanna Chabarai

Double imprisonment

Ukrainian prisoners in Crimea are being transferred to Russia, given Russian passports and punished for rejecting them

They are the Ukrainians convicted in Crimea, who were held in Simferopol remand prison and other pre-trial detention centres on the peninsula. According to the Human Rights Information Centre, which among other things monitors prisoners, more than 3 thousand were being held in Crimean penitentiary institutions at the time of the annexation. Not only Crimeans, but also residents of other Ukrainian regions, who were taken to the peninsula to serve their sentences. Later, they began to experience problems. Firstly with citizenship. As you know, the occupying Russian authorities decided to forcedly issue Russian passports to Ukrainian citizens. They had a month to turn down this "service". But prisoners had some trouble with this. According to lawyers, they were given forms for refusing a Russian passport, but it seems most of these documents went missing without a trace.

"In some cases, prisoners were handed forms and told that they should fill them in if they do not want to be citizens of the Russian Federation. They completed them and the forms were collected without any comments. After that, the prisoners were given Russian passports. The Ukrainians said that they filled in the refusal documents. However, prison authorities have responded that they have no information about this. There were times when they didn't even hand the forms out," lawyer Roman Martynovskyi, Ukrainian Helsinki Human Rights Union expert, said in a comment to The Ukrainian Week.

According to him, those who renounced Russian citizenship were thrown into solitary confinement.

RELATED ARTICLE: Gulnara Bekirova on the political and cultural situation in Crimea

"It is clear that their refusal was not the direct cause. Guards found the slightest reasons to put the prisoners in solitary. And when they came back, they were offered citizenship again. They refused again. So they were thrown back into solitary confinement. It also happened that prisoners with a pro-Ukrainian position were put in cells with those who supported the 'DPR and LPR'. It got to the point that these people were sent to Russia to 'serve their sentences' before others were," said Martynovskyi.

DOUBLE TRIAL

And the problems did not end with the assignment of citizenship. The occupants began to create their own "courts" in Crimea, which started to review Ukrainian prisoners' sentences and "bring them in line with Russian law". Next – a transfer to Russian territory. The Ukrainian Foreign Ministry in a reply to The Ukrainian Week's request stated that they are currently aware of about 170 cases when Ukrainians were reconvicted and 179 cases of transfers from the annexed Crimea to Russia.

According to Deputy Justice Minister Serhiy Petukhov, the sentencing of Ukrainian citizens in Crimea by Russian courts and their transfer to Russian territory is a violation of international humanitarian law, which defines the legal regime of occupation. In particular, this is in reference to the Hague Convention of 1907 and the Fourth Geneva Convention (1949). In addition, in 2014 Ukraine adopted a law on ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory. According to international norms, the judicial system should remain unchanged in such a territory. There is also a ban on transporting people to the aggressor state.

Meanwhile, the Foreign Ministry has stressed that the number of transferred Ukrainians may be much higher. According to Parliamentary Commissioner for Human Rights Valeriya Lutkovska, Ukrainian prison authorities still do not have a list of citizens sentenced before the annexation.

"We do not know how many people are left in Crimea that were sentenced by our courts in accordance with Ukrainian law. There is an approximate figure – 2 thousand people, but no one knows exactly how many and which institutions these individuals were in," she said in an interview with Radio Liberty.

Lutkovska added that about 20 relatives of Ukrainian prisoners who are now in Russia have contacted her.

RELATED ARTICLE: Crimean Tatars and Islam

"We have two forms of data: names and the total number. Our list differs from the ministry's and contains about 90 people. But the numbers change daily. For example, today there are 28-29 prison camps in Russia where Crimean prisoners are serving their sentences. We only have information from 16. There alone there are roughly 2,200 inmates. And there are another 11-12 colonies for which we don't have any data. We know that people are there, but we don't know how many," said Martynovskyi.

"In addition, we don't have all the names yet either. We don't know where 25 people are now. It is known for sure that they were in the Simferopol pre-trail detention centre, from where they were sent to serve their sentences in Russia. After that, the trail is lost," he added.

Inmates transferred to Russia repeatedly tried to contact Ukrainian diplomats, but this was not made easy for them. For example, Dmytro Sotnikov, the lawyer of Ukrainian political prisoner Oleksandr Kostenko, published a statement from prisoners sent to the Kirov Region in late March. When Ukraine announced an amnesty, prisoners demanded that the Russians apply it to them too. However, this was denied because of their "new sentences", i.e. the ones "brought in line with Russian law". In addition, as Sotnikov explained to The Ukrainian Week, representatives of Ukrainian consulateswere prevented from coming into contact with the prisoners. In particular, the Ukrainians were thrown into solitary confinement, which made it impossible to meet diplomats.

Later, on May 11, Ukrainian citizen Elvis Asanov tried to slit his throat in court, protesting against the attempts of a Crimean court to convict him as a Russian citizen and transfer him into the penitentiary system of the Russian Federation. His life was saved.

Asanov and other prisoners wrote a letter to the Ukrainian government that has been published in the media. They asked for forgiveness from Ukrainian society for their crimes and declared that they want to return home, as they are being forced to serve their sentences in a state whose laws they did not violate.

"What we once did not does not deprive us of our country’s citizenship. We want and hope to return home to our loved ones. We want to live for the good of our country, but we cannot see the desire of the country to help us," referred to in the letter.

AN EPHEMERAL RETURN

Ukraine may demand the return of its imprisoned citizens based on at least three documents: the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases, the Convention on Serving Criminal Sentences Abroad and the European Convention on the Transfer of Sentenced Persons. However, when Lutkovska made a request to Russia in 2015 for these people to be transferred to Ukraine in order serve their sentences, Russian ombudsman Ella Pamfilova replied that this would only be possible in accordance with the Convention on the Transfer of Sentenced Persons, which provides for the transfer of prisoners from one state to another. And here a big problem arises: since Ukraine does not recognize Crimea as Russian territory, it is impossible to use this mechanism.

"Ukraine cannot request the transfer of prisoners to serve their sentences, because they are already in Ukraine. Otherwise, there wouldbe recognition of the fact that Crimea is not our territory. Problem number two: Russian authorities have revised the Ukrainian sentences. And passed new verdicts according to which the Ukrainians are now serving time. If the two Ministries of Justice were to prepare documents for the return of these people, our ministry would have to recognise the judgments of courts created in Crimea. But they were ‘created’ after the annexation, so are not recognised by Ukraine," explained Martynovskyi.

RELATED ARTICLE: Crimea: chronicles of the occupation

The same position was supported by Justice Ministry advisor Petukhov.

"Even if they are serving their sentences in Russia, the reason for this is a decision made by a Crimean 'court'. And when these people make a request to be returned to Ukraine, we get documents from this 'court', which is not recognised by Ukraine. According to the law ‘On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine’, which is currently in force, we do not accept any documents created by the occupying authorities. That is why these people cannot be brought back through the Convention on the Transfer of Sentenced Persons," explained Petukhov.

So Lutkovska proposed Pamfilova a draft memorandum for returning Ukrainians on an ad-hoc basis. The memorandum envisages that the transfer of people convicted in the Crimea before the annexation to Ukraine in order to serve their sentences would be coordinated by the ombudsmen of the two countries without appealing to these conventions.

The Russian Ombudsman rejected the proposal, so the plan was stopped in its tracks.

In April 2016, a new human rights commissioner was appointed in Russia – retired police major-general Tatyana Moskalkova. Riding the wave of "humanity" following Putin's pardon of Nadia Savchenko, the newly-minted ombudsman said that Ukraine "is not doing anything" to take back its prisoners from Crimea and Russia "hasno reason to hold them", because they committed crimes before the annexation, "on the territory of another state".

In an open letter on the same day, Lutkovska reminded Moskalkova that Ukraine has been trying to initiate the return of these prisoners for the past two years and re-sent the same draft memorandum that was offered to Pamfilova. The fate of the document is as yet unknown, but the ombudsmen have talked over the phone (on Lutkovska's initiative) and agreed on a personal meeting "within a short timeframe" to solve the problem of getting the prisoners home.

At the same time, Martynovskyipoints out, there is no universal solution to this problem.

"There are options for various categories of prisoners. The first is Lutkovska's plan, the signing of a memorandum between the two countries' ombudsmen. The second is fulfilling the requirements of the convention that provides for the transfer of persons to serve their sentences in their home country. There is also the option of pardoning them and returning them to Ukraine. People whose sentences have not yet come into forcecan be brought back through cooperation between the public prosecutors. As you can see, there are a lot of ways to solve this problem," said the lawyer.

According to the Ministry of Justice advisor, not all is lost for the Ukrainians convicted by Russian courts. Appeals for their return are being received and the process is continuing. Therefore, legally Ukraine should bring the Russian court's verdict in line with its own legislation, determining the time and place where the sentence should be served.

However, there is yet another problem. Because of differences between Ukrainian and Russian laws, there is a category of people who had their sentences reduced by Russian courts. It is logical that these prisoners would not want to return to Ukraine, so as not to do "extra" time. It is not yet clear how to deal with them and how they can be brought home without violating their rights.

Martynovskyi stresses that a return home is based solely on a prisoner's desire. If they do not want to come back, they will serve their sentence in Russia. In this case, a consul must visit the prisoner and make sure that they made the decision voluntarily and not under the pressure of certain circumstances.

"There were situations when terms were reduced, but also vice versa. Ukraine's position should remain unchanged: it is not possible to worsen a prisoner’s situation following a return to Ukraine. This would beinhumane and unfair. And a further obstacle to coming back. Imagine a person who got life in Ukraine, but 15 to 20 years in Russia. They've served this term and should return to Ukraine. But then there's a risk of going back behind bars. A former prisoner, who has remained a Ukrainian citizen, cannot continue to live in Russia: sooner or later, they will be deported. In my opinion, we must apply the principle of humanism. That is to say, the situation of prisoners should not get any worse," says Martynovskyi.

A separate problem is determining the status of persons who were sentenced by Ukrainian courts and taken to Russia, where they have already finished serving their sentences and want to come home. Especially since the new, so-called "Savchenko law" in Ukraine stipulates that each day of pre-trial detention should count as two days in prison. The mechanism of applying this law to such people has not yet been thought out.

"Otherwise, tomorrow we will have a problem when people will return to Ukraine after serving their sentences and go to court demanding that their imprisonment over the term that should have been reduced by the 'Savchenko law' be recognised as illegal," said Martynovskyi.

In this context, the Ministry of Justice has drafted a law on regulating the legal status of persons who have served sentences in the occupied territory of Ukraine and the ATO zone. There are promises to publish it for public comment in the near future. According to Petukhov, the document provides a legal mechanism for reviewing the legality of their release and, accordingly, regulating the status of these people. The law should specify that such prisoners have served their sentences in full and are free to move around Ukraine.

The Ukrainian ombudsman, commenting on the release of our citizens from the occupied part of the Donbas, has already stated that prisoners who completed their terms there would not have to go back behind bars in Ukraine. We can therefore assume that the Ukrainian government is ready to take this step for other detainees too.

But the problem is not yet solved. And the public has still not seen the announced draft law. What's more, Ukrainians in Crimea whose sentences have not entered into force still remain deprived of their rights. Equally, more and more Crimeans, especially Tatars, are being held in Simferopol remand prison, waiting to be tried according to Russian law. This only means more work for Ukrainian diplomats and lawyers.

Translated by Jonathan Reilly

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