"The missing Ukrainians": Legal basis for the exchange of prisoners within the framework of the Minsk process

Material prepared by the human rights platform

"Uspishna Varta", Kiev, Ukraine, 13.11.2018

The topic of prisoner exchanges within the framework of the Minsk process has today virtually disappeared from public discourse. The last exchange that is known to the general public took place almost a year ago - December 27, 2017. It was carried out by the Ukrainian side on very questionable legal grounds and without the adoption of a special law on Amnesty. The consequences of this exchange continue to be felt today by both the judicial system, which found itself in a deadlock concerning the cases of Ukrainians sent for an exchange, and, more importantly, the fate and lives of hundreds of people who refused to confess their guilt and be exchanged, as a result of which they continue for several years to be actual hostages of the Ukrainian judicial system.

The exchange of prisoners as an important marker of dialogue between all parties around the settlement in Donbass has been carried out within the framework of the implementation of the Minsk Agreements of February 12, 2015. The fifth point of the agreements, in particular, stipulates the granting of pardon and amnesty through the enactment of a law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Lugansk regions of Ukraine. The sixth point of the Minsk Agreements stipulates the provision and exchange of all hostages and illegally detained persons on the basis of the principal "all for all".

The essence is that the last and only large-scale exchange, as is known, took place in December 2017, when the Ukrainian side transferred 233 people to the LDPR (out of the 306 initially declared), and received 73. Prior to this, the exchange process was frozen for 14 months. Before this Yury Suprun and Vladimir Zhemchugov were the last prisoners to be transferred to the Ukrainian side, in September 2016.

The exchange of the pilot, deputy, and "national heroine" Nadezhda Savchenko for two Russians, which took place on May 25, 2016, was certainly the most resonant. Since then, a lot of time has passed - Savchenko is again in prison, but this time in a Ukrainian one. And she is implicated in one case of state treason together with Vladimir Ruban, who previously gained a reputation of being almost the main negotiator concerning exchange issues from the Ukrainian side.

Since December 2017, the topic of exchanges has been raised periodically, but no serious steps have been taken in this direction. Thus, the last time a possible exchange was announced was in July 2018 by the first Vice-Speaker of the Verkhovna Rada Irina Gerashchenko. She reported that at a meeting in Minsk, the Ukrainian side in the Trilateral contact group raised a question regarding the official response of the Russian Federation to the proposal to transfer 36 Russians in exchange for Ukrainian political prisoners in the Russian Federation[1]. Words about the journalist Kirill Vyshinsky, who has been in a pre-trial detention center in Kherson since May 2018, being sent for an exchange have been repeatedly heard.

We can imagine how these lists for exchange are being formed by using the example of Farukh Kamalov, whose case was being constantly monitored by the "Uspishna Varta" human rights platform. In August, the Ukrainian Ombudswoman Lyudmila Denisova ("People’s Front") toured the colonies/detention centers and compiled lists of "those who wish to be exchanged". Thus, on August 14, she said that the citizens of Russia Aleksandr Sattarov and Farukh Kamalov, who were arrested in Ukraine, appealed to the President of the Russian Federation with a request to exchange them for Ukrainian political prisoners who are in prison in the Russia Federation[2]. According to the lawyer representing the interests of Kamalov, Valentin Rybin, Lyudmila Denisova fraudulently received a statement addressed to the President of the Russian Federation from the political prisoner. The lawyer claims that people find themselves in complete ignorance and write such statements in the absence of their lawyers and without the opportunity to receive any objective information concerning this issue[3]. Rybin’s client Farukh Kamalov[4], by the way, legally, in agreement with the Prosecutor, later received a suspended sentence and was released from jail.

The journalist Dmitry Vasilets and Evgeny Timonin also earlier stated that during their stay in a pre-trial detention center they were inclined to write a statement for an exchange during the consideration of their appeal.

In any case, there apparently still isn’t the political will or a legal mechanism for the implementation of a new exchange.


THE LEGAL BASIS FOR THE EXCHANGE OF PRISONERS BETWEEN UKRAINE AND THE LDPR

Based on the appeals made by people and those cases that are available in open sources, the legal team of the "Uspishna Varta" human rights platform analysed the legal mechanism for the implementation of exchanges from the non-government-controlled territories of Ukraine that took place under the auspices of the Minsk Agreements. It contains a fairly large number of unresolved legal issues and legislative gaps. In addition, the principles of the supremacy of law, the rule of law (articles 5 and 6 of the Criminal Procedure Code of Ukraine), and the presumption of innocence (article 62 of the Constitution of Ukraine) are grossly violated during the exchange.

First of all, it is important to distinguish between an exchange between Ukraine and Russia and an exchange between Ukraine and the LDPR.

For example, the exchange of Ukrainian citizen Nadezhda Savchenko for two Russian citizens in 2016 took place between two countries - Ukraine and Russia, on the basis of an individual act of presidential pardon.

But the exchange on December 27, 2017 was carried out between Ukraine and the self-proclaimed republics of the LDPR, whose legal status is not recognised by Ukraine. I.e., in fact it is an exchange of Ukrainian citizens for the same Ukrainian citizens that is being carried out.

As a result, 233 people from a list of 306 were transferred to non-government-controlled territories from Ukraine by pardoning and releasing them from custody. The question of whether the guilt of these people was proved in accordance with the procedure established by the court before sending them for the exchange remained outside the equation.

It is important to note that on the website of the President of Ukraine there are no Decrees that relate to the issue of pardon for December 2017[5]. According to the statement of the press service of the apparatus of the Verkhovna Rada Of Ukraine, the December exchange became possible "thanks to the position of the President of Ukraine, who raised this issue as a priority in the Normandy format, and also thanks to the work of the humanitarian subgroup in Minsk, and the consolidated cooperation of the SBU, GPU, Interior Ministry, Foreign Ministry, and the courts, which made every effort to unblock the process of releasing hostages”[6]. In the message of the Verkhovna Rada it is also specified that "these people committed crimes, but changing the measure of restraint or the pardon procedure was applied to them in those cases where it was allowed by the legislation. Among those transferred [for exchange], there are none who have committed murder and other serious crimes that do not fall under the pardon procedure."

I.e., in fact, it is likely that the guilt of some of those transferred for an exchange wasn’t proven in accordance with the law. This is difficult to find out, because the list of these people who were transferred for an exchange also wasn’t published.

Based on the cases known to us, the legal team of "Uspishna Varta" considered the procedure of exchange that took place through the "release from custody" (the abolition of the measures of restraint) in December 2017.


THE DECEMBER DECISIONS OF THE COURTS

Thanks to the Unified register of court decisions we were able to analyse criminal proceedings that, at the time of the exchange, were in court at the stage of consideration of the indictment. This category of cases in which people were exchanged relates to section I "Crimes against the foundations of the national security of Ukraine" (articles 109-111) and section X "Crimes against public order" (articles 258, 258-3, 263) of the Criminal Code of Ukraine.

From those cases that were studied by our legal team, it is possible to draw the conclusion that prior to being exchanged, these people were under a measure of restraint in the form of detention for a long time, and the measure was being extended year after year. The courts formally motivated their decisions by the presence of risks and reasonable grounds for a permanent extension. But just before the exchange in December 2017, these people were released in one day.

Only in isolated cases did the judges, in December 2017, "have the time" to pass a sentence, having cancelled the measure of restraint beforehand. Thus, the accused was left at large until the court verdict entered into force[7]. As an example, criminal proceedings concerning the inhabitant of the Lugansk region Sergey Nazarenko under articles 258-3 and 263 of the Criminal Code of Ukraine - participation in the activity of a terrorist organization and carrying ammunition without the permission provided by the law. The case was heard in court from March 21, 2017, the accused did not admit his guilt, but on December 13 the court cancelled his measure of restraint under the auspices of an "exchange"[8]. And the following day he concluded a deal with the Prosecutor, which was approved by the court - 8 years of imprisonment[9]. Before his sentence had entered into force, this person formally remained at large and was sent to a filtration camp for an exchange.

In most cases, the measure of restraint imposed on accused persons who agreed to be exchanged was simply changed without sentencing and the completion of the trial. In the middle of December hearings were held in the regional courts, during which the prosecutors filed a motion for the cancellation of the measure of restraint in the form of detention. And the courts unconditionally granted it.

Judging by the decisions that the legal team of "Uspishna Varta" had the opportunity to study, the courts are not particularly bothered about justification when it comes to changing the measure of restraint.

For example, the collegium of judges in the Kramatorsk city court of the Donetsk region in its ruling from December 14, 2017 changed the accused’s measure of restraint in a number of articles, including under part 2 of article 260 of the Criminal Code ("Creation of non-legal paramilitary or armed formations"), directly referring to the Minsk Agreements, although they are not a rule of law in Ukrainian legislation. The court ruling states that "at the present time, in Minsk a set of measures was developed for the de-escalation of the armed conflict in Eastern Ukraine. Thus, the Minsk Agreements from 12.02.2015 stipulate the need to ensure the release and exchange of persons brought to criminal responsibility, including under part 2 of article 260 of the Criminal Code of Ukraine. Proceeding from the fact that the life of Ukrainian citizens is of the highest value, and the fact that person_5 expressed a desire and provided voluntary consent to be released for further transferal to territory temporarily non-controlled by the authorities of Ukraine, the collegium of judges considers it possible to cancel the imposition of a measure of restraint on person_5 in order to protect Ukrainian citizens”[10].

The Malinovsky district court of Odessa, in its ruling from December 14 2017, released from custody the listed for exchange Aleksey and Elena Vlasenko, who were suspected of "transferring information about military transportation along the Odessa railway to the enemy" (a charge of assisting terrorism), with reference to the fact that they were in custody for more than 19 months and also to the proof that they "have social ties in Ukraine, where they are registered and permanently reside”[11].

As a reminder, the guilt of these people wasn't proved in an order established by the court. However, in our opinion, more than 19 months of stay in a pre-trial detention center and selective justice forced Vlasenko's family to agree to an exchange as the only way to be released[12]. Concerning why, according to the "separatist" articles, people are not able to post bail and are in jail, read here[13].

The most common wording in the December court rulings before the exchange of prisoners was: on the basis of the Prosecutor's request that "presently the risks stipulated by article 177 of the Criminal Procedure Code of Ukraine, which were taken into account during the specified elected of a measure of restraint for the accused, are irrelevant”.

Only in a few cases did the courts not agree to such a formulation. Thus, in 2016 there was a question about the abolition of the measure of restraint imposed on the Odessa journalist and Director of the TV company "Novaya Volna" Elena Glishchinskaya. In the 6th month of her pregnancy she was detained in the Odessa pre-trial detention center under article 110 of the Criminal Code of Ukraine “Encroachment on the territorial integrity of Ukraine”. During the cancellation of the measure of restraint before the exchange, the judge - a member of the panel - made a separate determination[14], in which he did not agree with the arguments of the Prosecutor, considering them to be groundless and such that have already been taken into account when extending the measure of restraint. The judge in particular pointed out that on June 13 the Prosecutor referred to the health certificate of the accused from April 30 as a reason to abolish the measure of restraint. Although on the basis of this same certificate the court already extended the journalist’s measure of restraint in the form of detention on June 9. This situation once again testifies to the formal approach of judges in deciding on a measure of restraint.


Journalist Elena Glishchynska, Odessa, was transferred to the exchange of the Ukrainian side July 14, 2016.

As it is known from the media, on June 14, 2016 Elena Glishchinskaya with her husband and newborn child were exchanged for Yury Soloshenko and Gennady Afanasyev, one of the key witnesses in the case of Oleg Sentsov[15].


"HOSTAGES" OF THE EXCHANGE

From the cases that our legal team has studied, it is also necessary to pay attention to the following legal paradox. If several people were involved in one case, but only one or several of them agreed to an exchange, then the accomplice who refused an "exchange" actually remains a hostage of the Ukrainian legal system. He is not released, but his case isn’t being considered and is constantly postponed on formal grounds.

The cases of the doctor from Kharkov Igor Dzhadan[16] and the resident of Bakhmut (Artemovsk) Nikolay Sidorenko are being constantly monitored by the "Uspishna Varta" human rights platform[17].

The small businessman from Bakhmut Nikolay Sidorenko was detained in April 2017, and since that time he has been in jail under several articles of the Criminal Code of Ukraine simultaneously. According to Sidorenko, in December 2017, all those who passed through the criminal case with him agreed to an exchange. They were released in the courtroom, having their measure of restraint cancelled. And they respectively didn't come to the following hearing. At the same time, the motion on changing the measure of restraint imposed of Sidorenko, who didn't show the desire to opt for an exchange, considering himself as innocent in relation to the brought charges, was rejected by the court. In the determination of the court the following motivation was given: "Concerning the motion stated by the lawyer ... to change the measure of restraint … it should be refused because the risks established by the ruling on electing a measure of restraint and on extending the measure of restraint indicated in subsequent decisions of the court has not disappeared, victims and witnesses in the case were not questioned, the health condition ... at the present time allows to keep him in custody, which is evidenced by a certificate on the possibility of giving him treatment whilst in isolation”[18].

Subsequently, defendants who are without a measure of restraint, and who were transferred for an exchange, of course, didn’t come to court anymore for the consideration of case. In response, the court is obliged, according to the requirements of the procedural code, to declare a recess, because it cannot consider a case in the absence of the accused. After several adjournments, the court gives the order to find the accused, who a priori is not on controlled territory, because he was transferred for an exchange[19]. At this time, concerning Sidorenko, who passes through the same case, only one procedural action is carried out – extension of the period of detention.


Igor Dzhadan, a doctor from Kharkov, spent 3.5 years in jail without sentencing


A similar situation developed in the case of Igor Dzhadan. The employees of the SBU in Kharkov detained him on April 29, 2015 whilst he was exiting the hospital where he worked as a doctor. Employees of the "law enforcement" body put a bag on his head, put his hands behind his back, and threw him into a car. After this Dzhadan was taken to some basement, where he was struck with a baseball bat and tortured via water being poured through a wet towel. Then, in order to hide their actions, employees of the SBU brought Dzhadan in a semi-conscious condition to hospital, indicating that they found him on the street beaten. In hospital he was registered under a false name, at this time his relatives searched for him in hospitals and law enforcement agencies. After three weeks of detention, without being given the opportunity to contact his relatives or a lawyer, Igor Dzhadan on May 21, 2015 (on a stretcher, in an ambulance) "arrived" at the SBU for interrogation, where he was officially detained. After this, the investigating judge elected a measure of restraint for him in the form of detention. The main charge is the creation of a terrorist organization

On December 18, 2017, according to the court's ruling, the measure of restraint imposed on two persons, who, like Dzhadan, were accused in the case and agreed to opt for an exchange, was cancelled with the following reasoning of the court: "since, as is indicated in the Prosecutor's motion, presently the risks stipulated by article 177 of the Criminal Procedure Code of Ukraine, which were taken into account during the election of a measure of restraint for the accused, are irrelevant." But in respect of Dzhadan, who refused to plead guilty and opt for an exchange, changing the measure of restraint was not granted, because "the Prosecutor hadn’t requested the relevant motion against him and hasn’t given sufficient circumstances that refute the continuation of the existence of previously defined risks”[20].

Further, the same "script" used in the case of Sidorenko was implemented in the case of Dzhadan: summoning the accused and a search. Concerning Dzhadan himself, only one procedural action was carried out amongst the actions of the court - the extension of the period of detention, where he has been for already 3.5 years without a court verdict and without prospects of its pronouncement.


"DISAPPEARED" FROM THE POINT OF VIEW OF THE LEGAL SYSTEM

The next paradox is that due to the exchange lists being private, it is impossible to trace whether all of those released from custody left for an exchange. In fact, these people have "disappeared" from the point of view of the legal system of Ukraine.


Evgeny Mefedov and Sergey Dolzhenkov, persons involved in the case on “May 2 in Odessa”, have been detained since May 2014 without a court verdict
This, for example, applies to Evgeny Mefedov, who, after being released for an exchange, was again taken into custody. Evgeny Mefedov and Sergey Dolzhenkov[21], along with 19 other suspects, in September 2017 were acquitted in the case on the events of "May 2" in Odessa. But the employees of the SBU in the court hall immediately presented a new suspicion to them under articles 109 and 110 of the Criminal Code of Ukraine for organising the Odessa-Nikolaev car rally on March 28, 2014. And once again, the investigating judge put them in jail.

As is known from the media[22], the Primorsky district court of Odessa on 14 December 2017 released Mefedov from custody, supposedly for an exchange. But on December 29, 2017 the same court[23] elected a measure of restraint for him in the form of detention (this decision, as usual, is closed from the public[24]). The question of where and on what grounds Mefedov was detained from 14 to 29 December remains open. Mefedov told the coordinator of "Uspishna Varta" that after he was released from the pre-trial detention center in December 2017, he was in the Donetsk region in a special colony/filtration camp on the territory of the sanatorium in Svyatogorsk, along with other participants of the exchange. The public doesn’t know why he wasn’t transferred for an exchange.

Also, it’s not clear why the Brazilian citizen and DPR volunteer Rafael Lusvarghi, who was released by the Pechersky district court of Kiev on December 14, 2017 under a personal obligation, was not exchanged, and the court proceedings themselves were sent to the Court of Appeal of Kiev to determine the jurisdiction. Information about Lusvarghi reappeared in May 2018, when he was detained by radicals from the “C14” organization on the territory of the Embassy of Brazil. Only then did it become known that he hadn’t been included on exchange lists in December 2017.

As we can see, after the accused has been released from custody for the purpose of an exchange, from a legal point of view, such people simply "disappear", even if they are not included on exchange lists.

Criminal proceedings against the "exchanged" continue to be registered for the judge and they have to carry out some "active" actions (for example, summoning the accused). The judges do this in order to show the High Council of Justice that the judge isn’t delaying consideration of the case and takes all possible measures for its consideration.

For example, some courts since December 2017 continue to hand down rulings that are in advance impossible to implement - a summons - concerning accused persons who were transferred for an exchange. Such a decision, for example, was made on September 4, 2018 by the panel of judges of the Primorsky district court of the city of Mariupol, Donetsk region[25].

Some courts try to imitate activity concerning such cases and send requests to the State Border Service about crossing the borders of Ukraine and to the SBU regarding the establishment of a location (for example, the ruling of the Melitopol court of the Zaporozhia region from May 3, 2018[26] and the Oktyabrsky district court of the city of Mariupol of the Donetsk region from April 23, 2018[27]).

We also drew attention to the ruling of the Primorsky district court of Mariupol, Donetsk region, dated September 3, 2018, according to which the court found that the person who was sent for an exchange "evades the court". Although in the motivating part of the ruling there is a reference to the letter of the Headquarters of the Antiterrorist center of the SBU, stating that the accused involved in the case, in terms of the practical implementation of measures envisaged by the Minsk Agreements, was "involved in the negotiation process, which resulted in 74 hostages being released on 27.12.2017”[28].

Thus, according to the official terminology of the SBU, people sent for an exchange have only the uncertain legal status "involved in the negotiation process".

We remind you that in this entire situation we are talking precisely about citizens of Ukraine (!) who were transferred to the LDPR for an exchange. As was stated by President Poroshenko[29], Russians who are sitting in Ukrainian prisons were deliberately not chosen for an exchange in December 2017. They will be exchanged only for those Ukrainians who are in Russian prisons. In this case, the procedure must be legal, as it was with the exchange of Nadezhda Savchenko, because the process involves two States, and not the unrecognized territory of the LDPR.

These same Ukrainians who were released from custody and went for an exchange, from a legal point of view, are legally under the jurisdiction of the court (announced as wanted) and have the status of accused persons (suspects). And this means that, having returned to the territory of Ukraine, they will be detained and arrested as persons who evades from the court. Taking into account the provisions of article 49 of the Criminal Code of Ukraine, people who agreed to an exchange will be able to return to the territory of Ukraine in no less than 15 years (exemption from criminal responsibility in connection with the termination of the statute of limitations).

***

It is precisely in this way, from a legal point of view, that a set of measures to implement the 6th point of the Minsk Agreements, stipulating the release and exchange of all hostages and illegally detained persons on the basis of the principle "all for all", was carried out.

In order to implement it within the legal framework, point 5 of the agreement must first be implemented: “pardon and amnesty through the enactment of a law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Lugansk regions of Ukraine”. To resolve this issue, a Law on Amnesty should be adopted, however, as is known, there is no political will in the Ukrainian Parliament to do this.

The adoption of such a law would not only abolish the legal collapse that was created, but also protect people -Ukrainian citizens who went for an exchange - from the threat of ending up in the “basement” of the SBU should they return to Ukraine.


[1] https://www.segodnya.ua/politics/ukraina-ozhidaet-otveta-rf-na-iniciativu-obmena-36-rossiyan-na-ukrainskih-politzaklyuchennyh-1153974.html

[2] https://newsone.ua/news/society/denisova-rossijane-sattarov-i-kamalov-prosjat-putina-obmenjat-ikh-na-ukrainskikh-politzakljuchennykh.html

[3] https://riafan.ru/1089211-ombudsmen-ukrainy-poluchila-zayavleniya-ot-rossiiskikh-politzaklyuchennykh-obmannym-putem-advokat

[4] https://uspishna-varta.com/ru/pravozashhitnye-kejsy/103

[5] https://www.president.gov.ua/documents/decrees?s-num=&contain-rule=contains&s-text=&date-from=01-12-2017&date-to=28-12-2017&order=asc&

[6] http://rada.gov.ua/news/Top-novyna/153343.html

[7] http://reyestr.court.gov.ua/Review/71038780

[8] http://reyestr.court.gov.ua/Review/70961189

[9] http://reyestr.court.gov.ua/Review/71100133

[10] http://reyestr.court.gov.ua/Review/71171201

[11] http://reyestr.court.gov.ua/Review/70979711

[12] http://reyestr.court.gov.ua/Review/73676611

[13] https://uspishna-varta.com/ru/novyny/sizo-ili-zalog-pochemu-sudy-ne-naznachayut-zalogi-po-politicheskim-delam

[14] http://reyestr.court.gov.ua/Review/58295167

[15] https://ru.tsn.ua/ukrayina/tsn-poluchili-foto-odesskoy-zhurnalistki-kotoruyu-ochevidno-obmenyali-na-ukrainskih-plennyh-648406.html

[16] https://uspishna-varta.com/ru/pravozashhitnye-kejsy/118

[17] https://uspishna-varta.com/ru/pravozashhitnye-kejsy/110

[18] http://reyestr.court.gov.ua/Review/71171201

[19] http://reyestr.court.gov.ua/Review/71171178

[20] http://reyestr.court.gov.ua/Review/71061255

[21] https://uspishna-varta.com/ru/pravozashhitnye-kejsy/63

[22] http://dumskaya.net/news/odesskih-terroristov-figuranta-dela-2-maya-i-pra-080459/

[23] https://www.unian.ua/incidents/2325384-v-odesi-sud-prodovjiv-perebuvannya-pid-vartoyu-figuranta-spravi-2-travnya-mefodova.html

[24] http://reyestr.court.gov.ua/Review/71679434#

[25] http://reyestr.court.gov.ua/Review/76303490#

[26] http://reyestr.court.gov.ua/Review/73773818

[27] http://reyestr.court.gov.ua/Review/74279004

[28] http://reyestr.court.gov.ua/Review/76303468

[29] https://strana.ua/video/114370-video-petr-poroshenko-objasnil-strane-pochemu-rossijan-ne-privezli-na-obmen.html?fbclid=IwAR2sSFicO7qHgxcKN6fwzDjEcTYEEVuF-YBj2lQtptbaUsH3VlQH2S6o07I