Lawyer Ilya Remeslo summarises the process in the case of Nadezhda Savchenko and considers options for further developments. Ilya Remeslo is a legal consultant for ‘Rossiya Segodnya’ media outlet in Russia.
The criminal trial of Ukrainian servicewoman Nadezhda [Nadiya] Savchenko is coming to an end in the City Court of Donetsk, Russia. She stands accused of complicity in the murders of journalists Anton Voloshin and Igor Korneliuk of the All-Russia State Television and Radio Broadcasting Company (VGTRK,). The prosecution has asked for a penalty of 23 years imprisonment. The court will hear the last words of the defendant on March 9 and then retire for a decision.
It is highly likely that the sentence will be an indictment the punishment harsh. What will be the fate of Savchenko? Will she be exchanged for other persons who are held in custody by the Ukrainian authorities, and how oculd such an 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 it is accused was committed on the territory of Ukraine.
However, in accordance with Paragraph 3 of Article 12 of the Russian 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 of which Savchenko is accused were Russian citizens, so the prosecution is legal.
Secondly, it was argued that as a deputy of the Parliamentary Assembly of the Council of Europe (PACE), 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 PACE and Article 14 of the General Agreement on Privileges and Immunities of the Council of Europe say that deputy immunity applies solely to statements and voting in the course of the work of PACE. Savchenko committed the alleged offences long before her “election” to PACE and they have nothing to do with her activities in PACE.
Thirdly, her lawyers tried to dispute the charges, presenting into the case file 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 functioning as a gunner at the time the crime was committed were confirmed by the data gathering and the testimony of witnesses. Finally, in video declarations, Savchenko herself confessed that she worked as a gunner. This video has been the subject of a psycho-linguistic examination, which confirmed that Savchenko really performed the functions of gunner.
Based on the available physical evidence, a similar conclusion about Savchenko was also made by forensics. At the time of her detention, she was in possession of a topographic map of the area, binoculars, mobile radios and mobile phones, all of which could serve Savchenko to 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 emphasised 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 and there were calls for the introduction of additional sanctions against Russia. All this clearly did not benefitethe 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 the Central Investigation Department of Security Service of Ukraine, Vasily Vovk, said that the “Russian lawyers are interested in having Nadiya stay there [in detention] as long as possible. Public relations, alas, is more important than her fate.”
Why did the lawyers go down this path? The answer lies in the source of their fees. It was not Savchenko who paid them but the Poland-based ‘Open Dialogue Foundation‘, which was “founded on the basis of experience and contacts obtained during the Orange Revolution in Ukraine in 2004”. It funded the ‘Euromaidan’ movement and is itself sponsored by funding sources close to the U.S. government. The founder and president of the Foundation, Lyudmila Kozlovskaya, has said that any lawyer working with the Foundation is obliged to act according to its instructions. The interests of clients, apparently, are not taken into account. How this is consistent with Russian law, the legal profession and ethical legal rules is unknown.
Punishment or exchange?
On the aggregate 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 for 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 exchanging all for all, not selectively.
For several reasons, there are not so many options for a prisoner exchange of Savchenko.
Firstly, there is a moral aspect. Savchenko is charged with complicity in the murder of two citizens, while the Russian prisoners Yerofeyev and Alexandrov held by Ukraine did not kill anyone. They are accused of “terrorism”, i.e. of participation in hostilities as 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 [eastern Ukraine], the Ukrainian leadership has not declared a war nor imposed martial law. In fact, the Ukrainian authorities have committed war crimes by using their armed forces in time of peace against their own people. Accordingly, Savchenko has no status of a prisoner of war and 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 for it. Therefore, only a variant of transferring her to serve her sentence in Ukraine in exchange for a similar move by the Ukrainian authorities remains. 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 or her sentence in their home 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 by the court based on consideration of an application by the Federal Penitentiary Service of Russia, by the sentenced or by the competent authorities of a foreign country which has asked for the transfer of the convicted person. A convicted person should 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 Commonwealth of Independent States (CIS) convention on the transfer of convicts to serve out their sentences. The convention leaves to each state the right to refuse a transfer for serving the sentence if it is 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 of the Code of Criminal Procedure, the state in which the person is sent to serve the sentence shall recognise the sentence. Thus, if Ukraine accepts Savchenko to serve out the sentence, it will automatically mean recognition by Ukraine of Savchenko’s guilt.
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 release the Russians Alexandrov and Yerofeyev. However, the exchange must be made in accordance with the proposal by Vladimir Putin for an “all for all” prisoner exchange to finally close the issue and release the rest of those illegally detained by Kiev civilians.
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 Kyiv but for disagreeing with the policy of the new [post-February 2014] authorities. And how to reconcile the transfer under the rules of the CIS Convention those who have not yet received verdicts and in general are not Russian citizens?
The only way for such a 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 the Ukrainian government really wants to return Savchenko, it must be ready to make serious counter-concessions.
Note by New Cold War.org:
 Sergeant Aleksandrov and his commander Captain Yevgeniy Yerofeyev were taken prisoner by Ukrainian troops near Schastye in the Lugansk Region on May 16, 2015. Both were wounded. A full report translated from the Russian newspaper Gazeta.ru is here.
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