More than 6 years have passed since the release of the second issue of the...
18 January 2022
Today we have a difficult situation with penal institutions in Crimea that is occupied by Russia. However, compared with the problems penal colonies and detention facilities in Regions of Donetsk and Lugansk are facing now under the conditions of hostilities, it looks rather different. In fact, after the annexation of the peninsula four correctional custody facilities remained and continue working in its territory, but they have a different national flag and legislation. Due to that a number of serious problems have blown up for convicts and suspects.
Unfortunately, the Russians do not take into account the fact that Ukrainians who suddenly found themselves under the jurisdiction of the Russian Federation (RF) landed up in prison in the occupied Crimea. RF representatives have already reported that none of them opposed the automatic assignment of Russian citizenship. That is not true, because more than 400 people who are in penal institutions in the Crimea, appealed to the Ukrainian Parliament Commissioner for Human Rights Valeriya Lutkovska asking defend their right to Ukrainian citizenship and contribute to transfer them to serve their sentence in the territory of mainland Ukraine.
After all on May 5, 2014 the Russian Law No. 91-ФЗ “On application of provisions of the Criminal Code and Criminal Procedure Code of the Russian Federation in the Republic of Crimea and the Federal City of Sevastopol” came into force, the Article 1 of which clearly states that the criminal proceedings in the areas stated in its name shall be “in accordance with the rules established by the criminal procedural legislation of the Russian Federation, subject to the provisions of the Federal Constitutional Law as of March 21, 2014 No. 6-ФКЗ “On Acceptance of the Republic of Crimea into the Russian Federation and Constitution of New Subjects ˗ the Republic of within the Russian Federation On adoption of the Russian Federation Republic and the formation in of new subjects – the Republic of Crimea and the Federal City of Sevastopol”…
But the Article 2 of the same Law provides that the crime and punishment of criminal acts committed in Crimea before March 18, 2014 are determined on the basis of the criminal legislation of the Russian Federation. “But in the penal colony of Crimea are held people (about 60 people – Ed.) who have not committed crimes on the peninsula, but, for example, in Region of Chernihiv or Kirovohrad, but were at the time directed there by the Ukrainian authorities to serve their sentences, – Oleksandr Bukalov, the head of the Human Rights Organization Donetsk Memorial, said. – So, in this case it is illogical to extend the jurisdiction of Russian law on these people”.
However, this is not the only problem the Crimean prisoners face with. Because under the Article 8 of the above Law of the Russian Federation, judicial decisions taken in the Republic of Crimea and the City of Sevastopol before March 18, 2014 have the same legal force (including for purposes of carrying out criminal punishment), that judicial decisions taken in the Russian Federation, i.e., this refers to recognition of judicial verdicts of Ukraine.
But the Russian authorities found that it was not enough and in fact in violation of the above provision of its own law they began to reconsider judgments, passed by Ukrainian courts, moreover not only by the Crimean courts, but also by the courts of the mainland Ukraine.
– As the prisoners with whom we maintain a relationship report us, allegedly even the cased of those who serve their sentence in Crimea under the judgments of Ukrainian courts, are subject to some re-classification. That is judgments made by the Ukrainian courts for which they are serving sentence are somehow transferred to the analogous provisions of the Criminal Code of the RF – Dariya Svyrydova, the lawyer of UHHRU says. – Thus, in Russia they are trying to equate crimes committed by Ukrainian citizens in the territory of Ukraine to the crimes that might be committed by them in RF.
In my opinion such attempts to legalize serving sentence by Ukrainian prisoners in Crimea occupied by Russia somehow look too unrealistic. After all the Russian government ignores not only a newly adopted Law No. 91-ФЗ of the Russian Federation, but also the Article 12 of the Criminal Code of RF, which states that a person may not be arraigned on a criminal charge for crimes committed not in Russia, if a person is not a citizen of the Russian Federation, if a crime was committed not against the Russian citizens.
Lost Monitoring of the Correctional Custody Facilities
Under such circumstances Ukrainian prisoners in the Crimea were actually taken as hostages by Russian invaders. Today the members of Committee of the National Preventive Mechanism, effectively working in Ukraine under the Ombudsman+ scheme are not able to control the conditions of prisoners’ holding and treatment there. In Russian this falls within the competences of the Social Supervisory Commissions. But such committees are not created in Crimea as their composition must include representatives of civil society organizations working in this field for more than three – five years. For obvious reasons in Crimea there are no such experienced representatives.
However, in Russia they talk about favours for Crimea so that persons without the required work experience in this field could be included to such Social Supervisory Commissions. But this will not significantly ease the fate of Ukrainian prisoners, as no Ukrainian organization is included to such commissions that will attend Crimean prisons. Therefore, we do not have information on how Ukrainian citizens are detained there.
However, recently a hope emerged that an international monitoring committee will start working in the Crimean penitentiaries soon, which will include representatives from Ukraine, Russia and the Council of Europe. The Verkhovna Rada Commissioner for Human Rights Valeria Lutkovska appealed with this proposal to UN Secretary General Ban Ki-moon. Then her office began to implement a proposed by Ukrainian side variant of cooperation in the field of independent monitoring of correctional custody facilities of Crimea.
– Recently we have discussed the technical aspects of the mission with representatives of the Ombudsmen of the Russian Federation, Ukraine and the Council of Europe, – Yury Belousov, the head of the Department of the Ombudsman of Ukraine for implementation of the national preventive mechanism, said. – I hope that this commission will start working in Crimean correctional custody facilities already in October”.
Ignoring the Laws of Ukraine and the ECHR Ruling
Until this Ukrainian prisoners continue to suffer systematic violations of their human rights by the occupants’ authorities. The lawyers of UHHRU ascertain that an inability to keep ahead of the Crimean jail according to the Law “On Amnesty” adopted this year by the Verkhovna Rada of Ukraine added to the above mentioned problems. After all, the Russian government ignores our laws. Thus, 200 Ukrainians serving a sentence in Crimea should be pardoned earlier and go at large. However, virtually they cannot do this.
Moreover, the Russians do not fulfil even a ruling of the European Court of Human Rights (ECHR), as happened in the case of the son of a people’s deputy of Ukraine, the Crimean Tatar leader Mustafa Dzhemilyev – Hayser who at the time of occupation was in Crimean prison.
According to his lawyer – the Executive Director of UHHRU Arkady Bushchenko due to receipt of information that gave a reason to worry for the life and health of his client, a claim with a request to apply in this situation provisional measures in accordance with 39th rule of Regulations was sent to the ECHR. “On July 10 we received a notification that such interim measures were applied according to the resolution of the President of a section. That is both in Russia and Ukraine the ECHR instructed to enforce the European Convention, including the Articles 3 and 5, i.e. the right to liberty and the right to protection from abusive treatment” – Arkady Bushchenko said.
Recently it became known that the Russian authorities not only obeyed the said ruling of the ECHR, but rather illegally moved Mr. Hayser Dzhemilyev from the peninsula to Krasnodar Territory. A famous Russian lawyer who is the defender of kidnapped and arrested by Russians Ukrainian pilot Nadiia Savchenko called such a case blatant because the Government manipulates the son of the Crimean Tatar leader keeping him as a hostage.
Solutions to the Crimean Issue
At the same time, the situation of those who at the time of occupation of the Crimea had the status of criminal suspects or defendants worsened significantly. Because those who have committed minor crimes and were under house arrest, by the decision of the Crimean courts, which are now governed by the laws of the RF, were thrown in jail. “Because the criminal laws of the Russian Federation do not contain such rules included in a new Code of Ukraine on application of arrest as an exceptional measure of custody – Dariya Svyrydova, the lawyer of UHHRU says. – That is why in most cases suspected of committing a crime are imprisoned there”.
How to get out of this situation? According to human rights activists of UHHRU currently we do not have any universal solution to this problem. There are several options on which the suspected of committing a crime Crimeans may act.
The first is to recognize the jurisdiction of occupation authorities in Crimea and to continue considering criminal cases under the Russian law. However, it should be remembered that the criminal process in Russia is much more severe than in Ukraine. In particular regarding application of preventive measures – mainly arrest, and the rights and status of the defender, which, in comparison with Ukrainian legislation, are quite limited in Russia. In addition, the current Criminal Procedure Code of Ukraine provides for an institute of free legal aid which is absent in Russia. Therefore, it makes a position of defendants much more difficult and restricts their rights to protection, fair trial etc.
Therefore, in these situations it is better to use the Law “On Securing the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine” adopted one month after occupation of Crimea by the Russians. The Article 12 clarifies under what conditions and what judicial authority in mainland Ukraine should consider the cases of Crimeans suspected of committing a crime, because the Crimean courts are prohibited to consider cases of Ukrainian citizens. Investigative jurisdiction of criminal offenses committed in the temporarily occupied territory is determined by the General Prosecutor’s Office of Ukraine, to which suspect should apply with a corresponding claim.
In this way they will be able to get a legitimate judgment of Ukrainian court in each case of Crimeans. In case of failure to comply with the aforementioned law Ukrainian human rights activists promise to attract foreign courts, ignoring the decisions of which may be worth much for Russia.
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