Damir Marusic for TAI: What is Russia’s stated case for holding the kidnapped Ukrainian seamen captive?

Ilya Novikov: First of all, I will not use the term “kidnapping” because the Russians insist it was an arrest, and we, the defense team, prefer to call it a capture of prisoners of war. In my opinion, the Russians didn’t really plan things this way. What happened? Let me explain.

On the morning of the 25th of November last year, three Ukrainians vessels approached the Kerch Strait, from the side of the open sea [ed. entering the Azov Sea]. They were ordered to stop by the Russian Navy—the part of the Russian Navy that belongs to the Russian Border Service. (They have vessels of their own, it’s not a part of the Black Sea Fleet.) The Ukrainian vessels were told that this is a closed area, which is not true because such messages were not dispatched by the navigation system.

That very evening, after dark, it became quite clear that the Russians would not permit the Ukrainian vessels to enter the Azov Sea—access to which, I hasten to add, is guaranteed both by international law of the seas and by bilateral treaties between Russia and Ukraine.

When it became clear that they would not be permitted to enter, the Ukrainian vessels were ordered by the Ukrainian Navy to return and to stop any attempts to enter the strait. And when they set sail towards the open water, they were attacked by the Russian Navy. They were fired upon. According to our information, more than 1,000 rounds were fired at them out of 30 millimeter automatic guns. Three of the Ukrainians seamen were wounded. And after the vessels had been stopped, the Russian Navy boarded them. The Ukrainian seamen were made to proceed to the Russian-controlled Kerch Port on the Crimean Peninsula, where they were arrested.

From the Russian point of view, this is just a normal criminal case. There are no international law aspects, no politics to talk about—nothing. That’s their position.

We insist that the Russian government is wrong three times over. First, they are wrong when they claim that they are entitled to control movement and navigation in the Kerch Strait. This position is not in accordance with international law. The Russians cannot claim that the Kerch Strait itself is a line of the Russian border, but they nevertheless insist that the Ukrainian vessels violated the Russian state border.

Second, they are wrong from the point of view of Russian criminal law. The 24 Ukrainian seamen, five of whom are officers, were indicted for violating Russian state borders as an organized group, which means they face up to six years of prison time each. I keep repeating the question when pleading the case in court, when discussing with investigators, or when talking to people who believe that Russia has a valid argument: “You insist that there was a violation of the border. What is a Ukrainian sailor supposed to do when he supposedly understood that his captain had violated the Russian border? Should he have jumped over into the sea and drowned himself in order to not become a culprit from the Russian point of view?” And nobody has proposed any reasonable alternative. It’s quite impossible to explain how the sailors would have enter into a conspiracy with their superior officers. It’s impossible to explain what they had to do when their superior officers supposedly decided to sail the vessels towards the Azov Sea. But Russia insists it was all one large group. It’s absurd. It’s nonsense.

Third, the Russian are wrong about the current legal status of the prisoners. Like I said, I’m quite sure nobody on the Russian side planned things to go this way. They just decided after they had fired upon the vessels and captured the people to treat them as ordinary criminals in order to justify that they opened fire.

But it happens that, due to not thinking things through, they captured them exactly as prisoners of war. We refer to the Third Geneva Convention about the treatment of prisoners of war. It states very clearly in Article 2 that, whether or not declared war exists between two states, any member of the military personnel of a state party to the Convention captured as a result of hostilities—as a result of military conflict of any nature—will be treated as a prisoner of war and will enjoy all the guarantees the Convention prescribes.

Russia is thus not entitled to hold these people in jail-style facilities. They cannot be held in custody in jail. Meanwhile, they are right now in the top-security Lefortovo jail in Moscow. They cannot be separated from one another. And yet they are being held in 24 separate cells. They cannot be prohibited from wearing their uniform. And yet the first thing the Russians did after having brought them to jail was to force them to change into prison uniforms. If Russia wants to legally prosecute them, they should be prosecuted in military courts. They were denied that. They were told, “You are just normal criminals. You are not members of the Russian armed services.”

So we insist that, given the situation, Russia must meet all the conditions set forth in the Third Geneva Convention. They have failed to do so. We are quite sure that our case is well-grounded.

The Russian position is quite simple: “We completely ignore international law. We know nothing about what these laws say about straits. We simply arrested 24 culprits. We are going to prosecute them as normal criminals.”

Karina Orlova for TAI: Given the total disrespect for the rule of law in Russia, do you have any hopes to win this case in court? Or are you hoping for a prisoner exchange, as occurred with another former client of yours, the captured Ukrainian pilot Nadia Savchenko?

IN: Actually, the case of Nadia Savchenko was an exception. I believe that her release was not motivated by the Russian authorities’ eagerness to get their two soldiers released in exchange for her, but rather was the result of uniquely strong international pressure.

KO: Interesting.

IN: In the beginning of the Savchenko case, I once joked that we will have her released after the President of United States and the Pope both speak up in her support. The President of the United States and the Pope, as well as the President of France, the Prime Minister of Germany and others in fact did express their support, so Putin had no other option but to release her.

The experience of the last five years has shown that the Russian authorities are not too concerned with the destiny of their own people in Ukraine. The Ukrainian Foreign Ministry has published a list of some 100 Ukrainian citizens who have so far been arrested and convicted in Russia for political reasons. They proposed an exchange, but the Russians have thus far not shown any interest. So we cannot expect that the Ukrainian seamen will be exchanged for anyone.

Right now, we hope that strong messages—like the sanctions that have already been imposed on Russia and Russian officials as a result of this incident—will help. President Trump’s refusal to meet with Putin—when he canceled his meeting with Putin [ed. on the sidelines of the G20 summit in Argentina] and explained clearly that the reason was this very incident—can also help persuade Putin that it’s not worth prolonging the situation. He needs to get rid of it.

We are also quite sure that after 2014 [ed. the Maidan uprising in Ukraine], in cases such as these, there are no effective legal remedies in Russian courts. No Russian judge will do anything other than what he is told to by his superiors. A very clear message was sent to us in the middle of January, when the arrest terms were prolonged by three different judges in Lefortovo District Court in Moscow. These three judges delivered strikingly similar opinions in their decisions. And the same situation happened in the court of appeals in Moscow City Court. We are quite sure that we have no options. We cannot persuade the judge because the judge is not a person to be persuaded. He knows from the very beginning what he has to do.

DM: I read that in the appeals case, the deliberation took eight hours, behind closed doors. What were they doing for eight hours if they are getting phoned-in instructions from the top?

IN: I can only talk about the part of the case I myself participated in. We have 24 defendants in total. They were divided into six groups of four. And the attorneys—and this is a very important part of this story—the attorneys are not permitted to present a combined defense. I was told I cannot defend more than one defendant in this case.

I saw how it worked very clearly in our situation. It might be normal for a judge to deliberate on the decision of prolonging detention for an hour or so. But our motion to change the venue to a military court was a surprise to them. The fact that we claimed that the seamen are prisoners of war and should not be put in a detention facility was not a surprise for the judges—we had already made that claim as part of our case. But the motion to change the venue was a surprise. And the deliberation on this subject took each of the three judges much longer than an hour and a half. But they adjourned at the same time.

You asked me about phone calls. Yes, I believe there were phone calls. It’s just how business in Russian courts is conducted.

DM: If you could just maybe talk a little bit more about that. Besides your pro bono human rights work, you have a private law firm as well. Give our readers a sense: in your experience, is there any rule of law in Russia? How does it work? How broken is it?

IN: It’s quite broken.

DM: Bribery?

IN: It’s not about bribery. The Russian judicial system is very corrupt, but in a different way, not by private money. Every judge in Russia understands that he or she may be easily disrobed if the head judge of the court is unhappy with him or her. They understand quite well that if they acquit the defendant, that acquittal will be appealed by the prosecution—something that is permitted by Russian law—and that acquittals are overruled by appeal courts much more often than convictions. So even if the judge sees that the case is poorly investigated, that the prosecution has no position, just in order to save his own career, just in order to not get in a quarrel with the prosecution, the judge will strive to do the prosecutor’s work for them, and will lean towards conviction even with a lack of needed evidence.

So even in non-political cases, in so-called normal criminal cases, the defendants cannot expect much from the system. If their case has already been brought to court, if the case was not dropped by the prosecutor’s office, he is as good as convicted already. And we, the attorneys, know that the main part of our job, where there are the best chances for a client, is to have the charges dropped before the case is brought to court. When it’s in court, it’s too late to do anything. If you’re in court, the best you can hope to achieve are some palliative measures. At that point, we just try to save our client from the worst, not to get him acquitted.

KO: That’s probably what explains the recent statistic that 0.5 percent of cases lead to acquittals in Russian courts, right?

IN: I don’t believe it’s 0.5%. It’s a tricky number. It’s counted out of the cases without plea bargains. And in Russia, plea bargaining is something very different from what it is in America. In Russia up to 80 percent of all cases end up with a plea bargain. But it’s not bargaining, it’s unconditional surrender. It’s called a “special form of procedure,” but really, it’s not special. It’s standard procedure. The exceptional is called regular, normal justice. People have to unconditionally surrender to the prosecution and face whatever punishment the prosecution may call for, realizing they have no chances to get acquitted in trial. This is so normal in Russia, that it’s hard to explain to an outsider how we deal with it. We just live in it.

KO: You said that it’s not corrupted by private money…

IN: It’s corrupted wholly by the state.

KO: Yes, but there are new statistics that claim the FSB has increased the number of cases it runs on economic crimes. Can we talk, for example, about Michael Calvey, the American investor arrested and put in jail earlier this year…

IN: Unfortunately, it’s my case and I’m not entitled to comment on it because I’m on a legal team that defends one of the Russian citizens in the same case.

KO: Fair enough. But is it fair to say that more and more businessmen in Russia are fighting each other with the help of the security services? That the FSB opens criminal probes into well-connected businessmen’s competitors in order to strip them of their assets or money?

IN: That’s not something that started recently. It has always been this way. It’s just that within the last five years, after Crimea, with the Russian economy crippled, when there is less and less money in Russia, it’s just become more harsh. There are far fewer possibilities for compromise. The siloviki have developed greater appetites. Competition has become more difficult and more zero-sum. This entire situation resembles the so-called cursed 1990s. It was one of the greatest Russian political traumas, the 1990s. But we have pretty much the same thing right now—maybe even worse, because we have Crimea. We have a quarrel with, actually, half the world. We got involved in Syria.

KO: What about human rights cases? You are representing Oyub Titiev, the Chechen human rights activist currently detained in Grozny. [ed. Titiev was the head of human rights NGO Memorial, whose previous leader in Chechnya, Natalya Estemirova, was kidnapped and murdered in 2009.] How does justice and the rule of law work in a case like that?

IN: I have already explained how it’s normal to not be able to win a case in Russian courts. The best a lawyer can do for his client is to prevent the case from coming to court. Acquittal is scandalous; having the case dropped by the prosecutor is not so scandalous. It’s how it works.

Titiev’s case was a special one. He was accused under Article 228 of Russia’s criminal code, which criminalizes the possession of drugs. As a result of this statute, a great number of people are sentenced every year to jail time.

DM: In Chechnya, or all across Russia?

IN: All across Russia. In Chechnya the situation is somewhat different, because Chechnya’s President, Ramzan Kadyrov, personally decided to crack down on drug addicts. So while in other parts of Russia people go to jail, people in Chechnya are often just killed.

Titiev is a practicing Muslim and a man of great authority in his community. We had as many as 20 of his neighbors testify on his behalf, most of them older men, of the generation of Chechens who were born in exile after the entire Chechen nation was deported [ed. by Stalin in the 1940s]. When they returned, they came back as whole villages. They were born in the same village in exile, and they returned to their homeland, villages in tact. Titiev’s village was called Kurchaloi.

These people know each other from childhood. They came to the court and said, “We do not believe it. Titiev could not be in possession of drugs.” I believe that’s the reason he was charged exactly with that. The purpose was not only to stop his activities as a human rights advocate in Chechnya’s capital, Grozny—not only to punish him for his activism, but to intimidate him and shame him, to make him a pariah to his neighbors. Had people believed that he had drugs on him, he would have probably been marked for death in his village. And it’s quite clear that that was the authorities’ purpose

The drugs—200 grams of marijuana, a rather big package—were planted in his car in January of 2018. Normally when a defendant says, “These are not my drugs,” there is no way to find out the whole truth: you can either believe him or the police. [The various irregularities and procedural violations surrounding his arrest] give us a very good way to demonstrate who is right in this story. I am quite positive that he is not guilty.

And the level of support he has received can only be explained by the merit of his goodness. International institutions and human rights NGOs supported him because they believe he is innocent. He received two international awards for his human rights activity while he was in jail. And all this support probably explains why his sentence was lenient by Russian standards, and especially by political standards. He was sentenced to four years in a penal colony instead of 10 years of jail time.

DM: To circle back to the beginning: international pressure is important, even if it doesn’t solve everything.

KO: Even for Kadyrov?

IN: Kadyrov was quite angry when people started to support Titiev. It’s not common in Chechnya to challenge what authorities say, and Kadyrov made a number of angry comments. He complained, “How can you call this man a human rights defender? Because a real human rights defender would have challenged Instagram for deleting my account.” [ed. Kadyrov’s account on Instagram was suspended in 2017.] He is quite sensitive to such things.

KO: Kadyrov called Oyub a drug addict, right?

IN: Yes, and after Kadyrov publicly stated that Titiev was a drug addict, we could not expectany Chechen policeman, or investigator, or prosecutor, or judge to challenge Kadyrov. That would have been quite impossible.

DM: And yet international pressure still led to a more lenient sentence for him, even in Chechnya, even under Kadyrov.

IN: This level of international support made this situation inconvenient for Russia itself. Putin was personally addressed, at least from what I understand, by French President Emanuel Macron, specifically on the Titiev case. And it probably had an effect.

Conversely, the other lesson we can derive from such cases is that the worst possible option is when you start with international pressure but cannot deliver it on a high enough level, or consistently. If a person who initially received some support, if their case is forgotten, that person becomes subject to revenge by the authorities.

So it’s important, if you start to support somebody, don’t stop it. Take the case of the Ukrainian filmmaker Oleg Sentsov. He received some significant support from many different countries early on, but it was clearly not enough to gain his release. Now he is in a high-security prison serving his 20-year sentence, and we see no signs that he will be released anytime soon.

KO: You know what caught my ear? You said that the community in Chechnya, in Kurchaloi, they did not believe a word from the prosecution. So does it mean that the authoritarian Kadyrov is not as powerful as he is portrayed, and as he likes to be portrayed? Because Kadyrov called Oyub a drug addict, a bad person, a criminal. But then this community raises its voice, as if it couldn’t care less about what Kadyrov has to say.

IN: It’s a good point. It’s not only what they believed, but that they spoke up openly. It was not just rumors, people whispering seditiously about the authorities. The official account was challenged in the courtroom by these people, openly.

I think that Kadyrov may be sensitive to such things because he claims to not only be the ruler, but also the leader of his nation. He claims that he expresses what his people want and what they believe. And of course it was important for him to silence Titiev, but he doesn’t want to get in a quarrel with his people either. So, I’m sure that is a factor in our story.

I would like to tell you about one more illustrative case. Have you heard about the Yatsenyuk case? The former Ukrainian prime minister? Did you know that he was detained for a short time in Geneva after Russia placed a notice for his detention?

DM: They had an Interpol red notice out there, yes.

IN: Did you know what the reason was?

DM: No.

IN: Russia claimed that in 1995, when Yatsenyuk was 20 and a student in law school, he traveled to Russia—to Chechnya—and took part in the war there, and that he shot 30 Russian soldiers and officers, himself.

DM: Chechen Rambo.

IN: You are smiling, you don’t believe it because you know who Yatsenyuk is, and what he looks like. You can evaluate the likelihood of the validity of these accusations, and you don’t believe it. Now let me explain to you that two other Ukrainian citizens were captured, tortured, and sentenced to 20 years each in high-security prisons. Both have already served 5 years, solely in order to make the case against Yatsenyuk.

Actually, it’s not a funny story at all. We’re sure that they are innocent, that they were not in Chechnya at the time. They had good alibis, but not good enough for a Russian court. The case was tried in Chechnya, but then was appealed in the Supreme Court of Russia. The Investigative Committee Head Aleksander Bastrykin, in an interview with an official Russian newspaper, assured their conviction before the trial even started. He said, “Yes, we found out that Yatsenyuk was fighting in Chechnya against our soldiers, we are quite sure of that.”

The red notice was canceled by Interpol within two weeks as being politically motivated, Yatsenyuk never faced any real possibility of being extradited to Russia. But these two people whose detention and conviction was only motivated by the wish of the Russian state to intimidate the prime minister of another country, keep serving their terms in very harsh conditions.

That’s a landmark case that shows very clearly how justice works in Russia.