Lawyer Ilya Remeslo summarises the process in the case of Nadezhda Savchenko and considers options for further developments.
Ilya Remeslo, a lawyer for Rossiya Segodnya [Russia Today –trans.]
In the Donetsk City Court is coming to an end the criminal trial of Ukrainian servicemen Nadezhda Savchenko accused of complicity to murder of correspondents from VGTRK [The All-Russia State Television and Radio Broadcasting Company –trans.] Anton Voloshin and Igor Korneliuk. The prosecution has asked for Savchenko penalty of 23 years imprisonment. March 9 court will hear the last word of the defendant, and then retire for sentencing.
With high probability the sentence would be an indictment, and punishment – harsh. What will be the fate of Savchenko? Whether will she be exchanged for other persons who are held in custody by the Ukrainian authorities; how can this exchange be carried out ?
But first, let us make a brief summary of the process.
Evidence of the prosecution and defence
Firstly, the defendant’s lawyers argued that Russia has no right to judge Savchenko on its territory, since she is a citizen of Ukraine and the crime of which she is accused was committed on the territory of Ukraine.
However, in accordance with Paragraph 3 of Article 12 of the Criminal Code, foreign citizens who committed a crime outside Russia may be prosecuted on the territory of the Russian Federation, if the offence was directed against a national of the Russian Federation. The victims of the crime, which Savchenko is accused, were Russian citizens, so the prosecution is legal.
Secondly, it was argued that as PACE deputy, Savchenko has immunity from prosecution.
Russian law and international law (Statute of the Council of Europe) do not allow exemption from criminal liability in connection with the membership in PACE.
Article 40 of the Charter of the PACE and Article 14 of the General Agreement on Privileges and Immunities of the Council of Europe said that the deputy immunity applies solely to his statements and voting in the course of the PACE. Savchenko committed the alleged offences long before her “election” to the PACE; and they have nothing to do with her “activities” in the PACE.
Thirdly, the lawyers tried to dispute the charges, presenting into the case filed documents from Ukraine. They demanded to hold a series of examinations. The admission of documents from Ukraine was denied as Savchenko’s lawyers had no powers to gather evidence on the territory of Ukraine.
The Location of Savchenko and her the function as a gunner at the time the crime was committed were confirmed by data and testimony of witnesses. Finally, Savchenko herself confessed on Video that she served as the gunner. This video has been the subject of a psycho-linguistic examination, which confirmed that Savchenko really performed the functions of a gunner.
Based on the available physical evidence, a similar conclusions about Savchenko was also made by forensics: having with her a topographic map of the area, binoculars, mobile radios and mobile phones, Savchenko could adjust artillery fire.
Not to win the trial but to discredit it
Savchenko’s lawyers tried to compensate for the lack of legal competence by the abundance of public relations in the Ukrainian media, scandals in court and rallies in support of Savchenko. The lawyers emphasized that their goal was not to defend the accused but “to discredit the court”. Lists of Russian citizens involved in the “persecution” of Savchenko were compiled; there were calls for the introduction of additional sanctions against Russia. All this has clearly not benefited the defendant. On the contrary it set up the public, prosecutors and court against her and ultimately made the punishment harsher.
This has long been understood in Ukraine. Thus, the Head of Central Investigation Department of Security Service of Ukraine Vasily Vovk said that the “Russian lawyers were interested that Nadia stayed there as long as possible. PR, alas, is more important than her fate”.
Why do lawyers have gone on this path? The answer lies in the source of their fees. It was not Savchenko who paid but the Polish Foundation “Open Dialogue”, which was “founded on the basis of experience and contacts obtained during the Orange Revolution in Ukraine in 2004”. It funded Euromaidan and itself is sponsored by funds that are close to the US government. The founder and president of the Foundation Lyudmila Kozlovskaya said that any lawyer working with the Foundation is obliged to act according to its instructions. The interests of the client, apparently, is not taken into account. How this is consistent with the Russian law on the legal profession and legal ethics rules is unknown.
Punishment or exchange?
Based on the aggregated evidence Savchenko is likely to be found guilty. Advocates have said they are not going to appeal the verdict and they do not care about the length of Savchenko’s sentence. They argue that the return of Savchenko to Ukraine is a matter of the nearest future.
However, the defendant herself acted against her exchange for Russian citizens Alexandrov and Yerofeyev held by Ukraine. Negotiations between the Russian and Ukrainian sides regarding the exchange of Savchenko were conducted earlier on, but their results are not known for certain.
In December 2015, President Vladimir Putin was asked about the exchange of Savchenko. The President pointed out that the exchange should be equivalent and called for exchange all for all not selectively.
For several reasons there are not so many options for exchange of Savchenko.
Firstly, there is a moral aspect. Savchenko is charged with complicity to murder of two citizens, while the Ukrainian prisoners Yerofeyev and Alexandrov did not kill anyone. They are accused in “terrorism”, i.e. only in participation in hostilities as the part of an illegal armed formation. Obviously, this exchange cannot be considered adequate.
Secondly, whatever Savchenko told about her discharge of military duty in Donbass, the Ukrainian leadership has not declared a war and imposed a martial law. In fact, the Ukrainian authorities have committed a war crime, by using the army in time of peace against their own people. Accordingly, Savchenko has no status of a prisoner of war; the rules and the mechanisms of conventions for the exchange of prisoners of war do not apply to her. Therefore, the exchange is possible only in the plane of the criminal process, in two versions: either a pardon or a dispatch for completion of sentence in Ukraine.
Pardon or dispatch for completion of sentence?
Pardon seems unlikely, since Savchenko does not consider herself guilty and is not going to ask about it. Therefore, it remains only a variant of transferring her to serve her sentence in Ukraine in exchange for a similar move by the Ukrainian authorities. This option is going to be relevant immediately after the sentence comes into force. Perhaps in order to accelerate the entry of the sentence into force Savchenko intends to abandon her appeal.
Questions of transferring a foreign citizen to serve his sentence in his state are governed by Chapter 55 of the Criminal Procedure Code.
According to these norms, the basis for the transfer of an alien is a judgment of the court based on the results of consideration of the application of the Federal Penitentiary Service (FSIN of Russia), the sentenced or the competent authorities of a foreign country, which has asked for the transfer of the convicted person. A convicted person should himself compensate the damage caused by the crime.
At the same time a reciprocal transfer of sentenced persons must be provided by an international treaty. Currently, Ukraine is a member of the CIS Convention on the transfer of convicts to serve out their sentences. The Convention leaves to the State the right to refuse a transfer for serving the sentence, if it can be detrimental to the State’s interests.
It should also be borne in mind that in accordance with paragraph “b” of Part 2 of Article 471 Code of Criminal Procedure, the State in which the person is sent to serve the sentence, shall recognize the sentence.
Thus, if Ukraine accepts Savchenko to serve the sentence, it will automatically mean the recognition of Savchenko’s guilt by Ukraine.
Exchange “all for all”: the ways of forcing Kiev to dialogue
As we can see, from a legal and a moral point of view, the exchange is quite possible and justified, since Russia needs to get the Russians released – Alexandrov and Yerofeyev.
However, the exchange must be made in accordance with the scheme proposed by Vladimir Putin, “all for all”, to finally close the issue and release the rest of civilians illegally detained by Kiev .
Obstacles may arise only from the side of Ukrainian authorities, who may not agree on the proposed scheme of the exchange. They are holding hundreds of captives, most of whom were detained not for participating in hostilities against Kiev but for disagreeing with the policy of the new authorities. And how to reconcile the transfer under the rules of the CIS Convention those who have not yet received the verdict and in general are not Russian citizens?
The only way for such mutually agreed exchange is an international agreement within the framework of negotiations between Moscow, Kiev and representatives of Donetsk and Lugansk People’s Republics. If Ukrainian government really wants to return Savchenko, they must be ready to make serious counter-concessions.
The “FreeSavchenko” signature-collecting machine is working round-the-clock. I keep receiving appeals and demands for her immediately release, demands to apologise, to admit her innocence, to admit to our guilt in what amounts to Russia persecuting a fragile, heroic woman for merely doing the military duty of defending her Motherland. Moreover, PACE and other international bodies, which prod Russia along as it hangs around the pasture with them [a pun in the original Russian, PACE being homonymous with пасти, “to herd”, “to graze” ―ed.], these bodies demand the continuation of existing sanctions as well as the creation of a set of new ones unless Russia immediately frees Savchenko and halts her prosecution. Their latest idea—to regard Savchenko’s trial as a breach of the Minsk Agreements [NB: Russia is NOT one of the contracting parties of the Minsk Agreements, but merely a guarantor, as are France and Germany ―ed.].
In response to heaps of such petitions, all demanding that I sign my name under them immediately, my answer is that once upon a time there was a fragile, heroic man named Hitler, who, without doubt, was performing his military duty. If he would have won—and we all know that nobody sues the winning side—today PACE and their ilk would be demanding an apology to him and an admission of guilt from Russia. Praise the Lord, it was not Hitler who conquered Russia, but Russia who overpowered this fragile, heroic man of duty. I was eight years old back when this happened, a solid grown-up age for a thinking person.
Savchenko has announced she is on hunger strike, refusing food and water. In the courtroom, she jumps up on the bench defiantly giving everyone the middle finger.
The Russian journalists, killed as a result of her target-correcting for artillery fire, can neither declare a hunger strike nor collect signatures for a petition to release them from violent death.
I will do it in their place, a petition demanding freedom from death for all the murdered journalists, all the murdered children of the Donbass, all Serbs executed in the Hague for doing their military duty and defending their Motherland. I demand the release from American prisons—where they are unjustly serving twenty-five year sentences— of the kidnapped Russian citizens, Bout and Yaroshenko, who have not murdered, raped nor robbed anyone. Only when all these people are set free, will I spare a thought as to whether Savchenko is getting hungry.
America behaves as the victor of the Cold War against Russia, and all the international organizations dance to their victory tune. They are dictating to Russia their rules—the rules where “their people” are given license to kill, rob and jail with impunity those deemed “not their people.” In the eyes of those adhering to this kind of Russophobic policy—I am one of “not their people”, I do not fit in, I do not belong. But I do have a place where I belong, I stand for those who are innocent and defenceless, and I sign my name in their defence—in defence of the murdered Oles Buzina; in defence of the dissenters against Maidan; in defence of those burned alive in Odessa; in defence of peaceful Donbass residents, killed while trying to procure bread and medicine for their children; in defense of Donbass children, huddled in basements, under artillery fire from those fragile, heroic, Ukrainian Europeans who are just doing their military duty, while serving their own schoolchildren fruit punch aptly named “Russian Babies’ Blood.”
In small restaurants throughout Ukraine they now serve dishes named after the internal organs of “Moskals”, “Katsaps”, “Colorados” and “Vatniks” [pejorative terms for Russians ―ed.]. They find it humorous, you see—dismemberment, butchering of Russians is nothing more than an innocent joke for those who are just doing their military duty. I do not subscribe to this brand of humour—Savchenko’s kind of humour—with so much “heroic” acting, one might mistake her for a leading character from the film “La Femme Nikita.”