Kerch Strait. Photo: Bai Xueqi / Xinhua News Agency / PA Images. All rights reserved.Early in the morning of 25 November, three Ukrainian vessels – the Nikopol gunboat, the Berdyansk gunboat, and the Yany Kapu tugboat – set sail from the Black Sea port of Odessa and advanced towards Mariupol, on the Sea of Azov, via the Kerch Strait. The Ukrainian Navy would subsequently describe this as a “planned movement” of ships.
In accordance with international norms, the Ukrainian navy had given the Russian side advance warning of their intentions, notifying a coast guard post of the FSB’s Border Service, as well as the seaports of Kerch and Kavkaz, that the vessels would be passing through the Kerch Strait. Though the information was received, no response followed. The FSB later declared that the Ukrainian vessels had “violated Russian territorial waters” and dispatched four ships to confront them. One of these ships, the border guard patrol ship Don, rammed the Yany Kapu tugboat (according to an investigation by Bellingcat, Russian ships rammed the latter at least four times). Russian ships then blocked passage under the Kerch Bridge by running aground a tanker on the Azov side, and scrambled two missile-armed combat helicopters to escort the Ukrainian ships.
The Berdyansk gunboat after the damage. Source: Franak Viačorka / Twitter.The blocking of the passage to the Azov Sea continued until the evening. At 19:00 Kyiv time, the Ukrainian ships made to exit the Kerch Strait and return to Odessa, only for Russian vessels to set off in pursuit with demands that they stop their engines. The Ukrainian ships had already left the 12-mile (22.2-kilometre) territorial zone around Crimea when the Russian ships opened fire on the Berdyansk, damaging it. The Nikopol and the Yany Kapu were forced to stop, and all three ships were subsequently seized by Russian special forces.
Audio recordings of the exchanges between the two sides have captured shoot-to-stop threats issued to the crew of the Berdyansk by the Russian coast guard ship Izumrud, with crew members ordered to appear on deck with their hands up. In response, Roman Mokryak, the Ukrainian vessel’s captain, requested assistance, informing the Russian side that there were wounded men on board and reiterating that the ship had already left the 12-mile zone and wasn’t engaging in armed aggression or violating passage rules.
Command lost contact with the Ukrainian personnel after midnight. “The fate of the sailors isn’t known to us,” said Viktor Muzhenko, chief of the General Staff of Ukraine’s Armed Forces. Later, the FSB reported that the border patrol boat delivered the wounded Ukrainian sailors to Kerch City Hospital No. 1, following which Russian ships escorted the captured Ukrainian vessels to the port of Kerch along with the rest of the crew.
“This is economic aggression”
The Kerch Strait situation began to deteriorate six months ago. In late April 2018, the FSB Border Service’s Coast Guard began selectively detaining and inspecting both Ukrainian and foreign merchant ships en route to and from Mariupol and Berdyansk. The weeks after the opening of the Kerch Bridge saw a steady proliferation in the number of such incidents, with all passing vessels being stopped for inspection since the end of June.
According to Andriy Klimenko, editor-in-chief of BlackSeaNews, 110 inspections took place between 17 May and 31 October. These inspections would unfurl along the following lines: under cover of night, a coast guard boat would approache a large ship carrying tens of thousands of tonnes of cargo and demand that it stop its engines. Armed balaclava-clad individuals then board the ship, herd the sailors into the mess and proceed to check their documents, paying particular attention to any Ukrainian citizens. Claiming that they’re on the lookout for weapons and explosives, this group then set about inspecting the cabins, the hold and the crew’s luggage.
Ships cannot pass under the Kerch Bridge simultaneously in both directions – they must do so in sequence. First a number of vessels from the Azov Sea to the Black Sea, then vice versa. The FSB inspections meant a significantly longer waiting period. By October, ships would be waiting three days for clearance to enter the Azov Sea and four to leave it – a circumstance that entailed the disruption of delivery schedules and additional expenses for the shipowner to the tune of $5,000 to $15,000 a day. It was only to be expected that demand for entry to Ukrainian ports diminished, while the competitiveness of the ports themselves tailed off.
“The detention of ships in the Sea of Azov constitutes pressure on the economic system of Ukraine”
“The detention of ships in the Sea of Azov constitutes pressure on the economic system of Ukraine. Their goal is to exert the greatest possible influence on the activities of Ukrainian ports in two seas through exports and currency supply, and, in so doing, to exacerbate the economic situation in Ukraine. This is economic aggression,” insisted Boris Babin, the permanent representative of the Ukrainian president in Crimea, as early as June of this year.
The 2003 Ukraine-Russia agreement regarding the common use of the Azov Sea and the Kerch Strait defines the Azov Sea as “internal waters” of both countries and stipulates that it may be freely used by both countries’ military and commercial vessels. Since the annexation of Crimea, however, the rules of passage through the Kerch Strait, which is also the sole entrance to the Azov Sea, have been arbitrarily determined by Russia.
In an attempt to reverse the course of events, Ukraine undertook a dual strategy, doing its utmost to draw attention to Russia’s actions and enlist the support of international institutions while simultaneously strengthening its positions on the Sea of Azov.
In late October, the European Parliament adopted a resolution in which it condemned Russia’s actions in the Sea of Azov, denounced the construction of the Kerch Bridge and called for an intensification of sanctions against the Russian Federation if the conflict were to develop further. The European Parliament’s censure was echoed by the US.
Mariupol sea trade port. Photo: Ivanov Stanislav / Zuma Press / PA Images. All rights reserved.“These aggressive actions in the Sea of Azov, where Russia is obstructing access to Ukrainian ports, are violating Ukraine’s sovereignty and territorial integrity and undermining international law,” US diplomat Jonathan Cohen told the UN Security Council at the time.
Meanwhile, the Ukrainian Navy had begun transferring its ships to the Sea of Azov, with two small Gurza-M-class armoured artillery boats transported there by land in September. The Gurza-M ships immediately began escorting merchant ships from Mariupol and Berdyansk to the Kerch Strait. The number of FSB inspections instantly declined: there were eight in September, two in October, and none at all in November.
In late September, two more naval vessels, the Donbas command ship and the Korets tugboat, crossed the Strait en route from Odessa to Mariupol. This came as a surprise for the Russian side, who hadn’t been asked to green-light the crossing; nonetheless, they neglected to respond. But on 25 November, when the Ukrainians decided to replicate this earlier manoeuvre with three further ships, their attempt to do precipitated an armed attack against, and subsequent capture of, the vessels and their crew.
Criminal proceedings in occupied Crimea
Immediately after the Ukrainian ships were captured, the FSB announced that it had opened a criminal case against the Ukrainian personnel on charges of illegal border crossing. The FSB also publicised details about the Berdyansk’s three wounded crew members (all of whom were taken to the traumatology department of Kerch City Hospital) via pro-regime media. The crew members were named as Andriy Artemenko, Vasyl Soroka (subsequently confirmed to be a Ukrainian security service officer by the SBU), and 18-year-old Andriy Eider (the youngest of the captured servicemen). “They have been given medical treatment and are not in mortal danger,” RIA Novosti reported.
By that time the Ukrainian navy had already lost contact with the ships’ crews and wasn’t providing any information about the sailors’ identities. Moreover, the Russian and Ukrainian sides differed in their claims regarding how many people had actually been taken prisoner: while Russian ombudsman Tatyana Moskalkova reported that 24 servicemen had been captured, the General Staff of the Ukrainian Armed Forces put the number at 23.
On the evening of 26 November, the FSB published a video showing the interrogation of three Ukrainians – captain Volodymyr Lisovoy, sailor Serhiy Tsybizov and SBU counterintelligence officer Andriy Drach. The videos show the sailors repeating formulas used by the Russian security services: “I recognise that our actions were provocative in nature”; “we entered the territorial waters of the Russian Federation”; “we were repeatedly warned about acting in contravention of Russian legislation”. Ukrainian Navy Commander Ihor Voronchenko responded by affirming that the sailors had “provided false testimonies under psychological and physical duress”, including testimony regarding Drach’s affiliation with the SBU. On the morning of the next day, however, the agency’s press service confirmed that two SBU officers were present on board the ships.
Volodymyr Lisovoy. Photo: Kommersant Photo Agency/SIPA USA/PA Images. All rights reserved.Lawyers subsequently passed on to the sailors a letter of support from Admiral Voronchenko. “I understand how hard things are for you now. The Navy’s combat sailors all have an understanding attitude towards the so-called testimony currently being demanding from you. After all, the working methods of the Russian special services are a secret to no one,” the commander wrote. “You acted legally, professionally and in accordance with the norms of international maritime law and existing treaties. The law is on our side – and the whole world understands that.”
At roughly the same time the FSB broadcast the sailor’s tesitmony, reports emerged that that the Kiev District Court of Simferopol would choose the form of pre-trial restraint against the Ukrainian sailors on 27 November. Over a dozen Crimean lawyers involved in various political trials on the peninsula began working on the case, scouring the peninsula in an effort to find their clients – but to no avail.
The lawyers managed to discover some initial details about the incident, and about the psychological and physical condition of the Ukrainian servicemen, immediately before the start of court proceedings in Simferopol. At the same time, the total number of captured sailors (24) was definitively established, as were their identities. According to the lawyers, not a single serviceman mentioned being beaten to the defence counsel, but some did confirm that they were “subjected to psychological duress to elicit the necessary testimonies”. A case in point was Serhiy Tsybizov, one of the sailors filmed for the FSB video, who explained what happened to lawyer Oksana Zheleznyak and gave her a handwritten note to pass on to his family: “All’s fine with me. Don’t worry. Love and kisses to everyone!”
On 27 November, the Kiev District Court of Simferopol remanded twelve Ukrainian sailors into custody at a pre-trial detention centre until 25 January; another nine sailors were remanded on the following day, with no exception being made even for Simferopol resident Denys Gritsenko. Gritsenko’s parents attended his hearing and confirmed that if he were to be placed under house arrest, they would be ready to provide him with accommodation and care.
“If [he] remains at large, fearing the severity of the punishment, having no permanent residence in the Russian Federation, being citizens of another state, [the suspect] can conceal himself from the preliminary investigation and the court, threaten witnesses, destroy evidence” – it was in these terms that the FSB investigation argued for the necessity of keeping every one of the sailors in custody at the detention centre.
A similar ruling was made by Kerch City Court vis-à-vis the three wounded sailors. Yet lawyer Alexey Ladin learned about the previous court hearings in the late evening from the Russian media.
Under interrogation, POWs are obliged to provide nothing more than their surname, name, rank, date of birth and personal number – Russian investigators had no right to ask any additional questions
“For a whole day I was unable to ascertain the exact whereabouts in Kerch of my client Vasily Soroka,” said Ladin. “I spent the whole day trying to get through to the investigator so I could ask about the upcoming hearing regarding the imposition of pre-trial restraint against him. The investigator got five missed calls from me along with a text message and a voicemail.” Such conduct on the part of the investigation, added Ladin, would suggest that “impermissible measures of some kind” have been used against the sailors.
In his motion for the arrest of the Ukrainian servicemen, Sergei Kulakov, Deputy Head of the Investigation Department of the Crimean FSB, accused them of “crossing the state border of the Russian Federation without proper permission,” and doing so as an “organised group” (punishable by up to six years’ imprisonment as per Article 322.3 of the Russian Criminal Code). The investigation insists that the sailors acted “jointly and in concert, undertaking dangerous manoeuvres that posed a danger to ship navigation”. None of the Ukrainian servicemen pleaded guilty in court.
Yany Kapu before the incident. Source: FSB.“Yuri [Budzylo, the Yany Kapu’s midshipman] said he had no access to any documents or information regarding the vessel’s route and lacked the authority to issue orders to other crew members. All he knew was that they had to sail from the port of Odessa to the port of Mariupol,” said Ayder Azamatov, Budzylo’s lawyer.
“We were stood there, waiting for the pilot, and then we were attacked. We didn’t violate anyone’s border. I don’t consider myself guilty,” Edem Semedlyaev, lawyer of Oleh Melnychuk, the Yany Kapu’s captain, quoted his client as saying. “He understands that these are political actions being pursued by Russia in an attempt to discredit Ukraine.”
Despite the fact that the Russian Federation has repeatedly described the captured sailors as having violated rules on crossing the state border and is “processing” them under its Criminal Code, Ukraine has consistently communicated its position: Russia’s actions constitute armed aggression, the captured sailors are prisoners of war and, as such, are entitled to the protection of the 1949 Geneva Convention relative to the treatment of prisoners of war.
“The detained Ukrainian sailors were all on-duty Ukrainian Armed Forces personnel and they were all wearing appropriate identification tags – a fact contested neither by Russia nor Ukraine. There is therefore no doubt that the Ukrainian sailors are combatants and that they acquired the status of prisoners of war following their detention,” explains international law expert Evgeniya Andreyuk.
Russia was obliged to inform Ukraine and the International Committee of the Red Cross about any actions undertaken in respect of the sailors immediately after detaining them, and to grant Red Cross representatives access to them. Under interrogation, POWs are obliged to provide nothing more than their surname, name, rank, date of birth and personal number – Russian investigators had no right to ask any additional questions. Furthermore, the Russian side was obliged to provide the sailors with living conditions comparable to those enjoyed by Russian servicemen; under no circumstances should they have placed them in pre-trial detention or temporary holding facilities.
Custody in Crimea: solidarity and support
It became evident after the first day of court proceedings that the Ukrainian sailors would all be held in pre-trial detention for two months. While the Ukrainian agencies busied themselves with making statements and threatening Russia with sanctions, Crimea’s activists swung into action. Close to midnight on 27 November, Nariman Dzhelyalov, an activist from the Crimean Tatars national movement, announced a collection of essential items, clothing and money for the sailors. “They’ve nothing on them save their military uniforms,” the lawyers explained.
At this point, the 12 Ukrainian servicemen arrested on the first day were already confined in Simferopol pre-trial detention centre. Other detainees had collected some tea, coffee and a few odds and ends of clothing for them.
The morning of the next day saw people from all over Crimea bringing toiletries, clothing, shoes and food to the courthouse in Simferopol. Furthermore, the volunteers amassed over 200,000 roubles’ worth of donations. In Kyiv, meanwhile, Ukrainian journalist Osman Pashayev announced that he’d be collecting funds for the sailors – and raised over 400,000 hryvnia within three days.
The morning of the next day saw people from all over Crimea bringing toiletries, clothing, shoes and food to the courthouse in Simferopol
“Someone wrote in my comments recently, ‘Ukrainians, where are you?’ And an ordinary Ukrainian [from Crimea] has just passed on 44 pairs of trainers [to the captured sailors]. They’re all brand new,” said Crimean Tatar activist Riza Asanov.
Working late into the evening of 29 November, volunteers carried on collecting and buying essentials and clothes. Parcelling up and weighing food in accordance with the requirements of Russia’s Federal Penitentiary Service, they prepared care packages for the detained Ukrainian sailors. With this work in full swing, the servicemen’s lawyers received initial reports regarding their clients’ relocation from Crimea.
It wasn’t until midnight that all the lawyers’ and activists’ sources concurred that the Ukrainian sailors, the wounded ones included, had been relocated to Moscow. After this was confirmed in the capital, Russian journalist Victoriya Ivleva announced another fundraiser for the Ukrainians, raising just short of 400,000 roubles in three days.
On 3 December, Crimean Tatar activists delivered care packages they’d put together on the peninsula to Moscow. “My friends and I took it upon ourselves to bring over the items and food we collected for them in Crimea, and to get the care packages to them with the help of local friends to give them a bit of normality in such a depressing place,” explained Dzhelyalov. The Crimeans were assisted in their endeavour by Moscow-based activists and human rights defenders.
Moscow: “standard conditions”
On the morning of 30 November, Lyudmila Lubina, Commissioner for Human Rights in Crimea, officially confirmed that the crews of the three ships had, to a man, been relocated from the peninsula to Moscow “for the duration of the investigation”. By lunchtime, representatives of the Moscow Public Monitoring Commission had found 21 sailors in the Lefortovo pre-trial detention centre, and the three wounded in the medical unit of the Matrosskaya Tishina detention centre.
“The detainees are living in standard conditions – that means cells 1.5 metres across and 2 metres long, iron beds, mattresses, wool blankets, green-painted walls. Later they’ll be transferred to cells with cellmates – these will have fridges and possibly TVs. The Ukrainians said they’re feeling fine. They ate buckwheat porridge in the morning and were given an hour of yard time. They’ll be given books to read after lunch,” reported Moscow PMC member Kogershyn Sagiyeva following a visit to Lefortovo. Though the sailors voiced no complaints about their detention conditions, she added, they were unhappy at the fact that they’d been deprived of contact with their relatives.
“We can definitively state that absolutely nothing is decided in the Russian courts. The courts’ job is to translate the political will of the regime into procedural form”
Meanwhile, Sagiyeva’s fellow PMC member Pavel Pyatnitsky reported on the wounded sailors. They’d all sustained fragment wounds, he said: Vasily Soroka and Andriy Artemenko to the arm, Andriy Eider to the legs. Artemenko had also suffered damage to his sclerae.
“Immediately upon admission, all three were examined by the therapist, surgeon, neuropathologist and infectious disease specialist. They underwent ECGs and ultrasound scans and had their bloods taken. Artemenko will also be examined by an ophthalmologist. The hospital’s head doctor has assessed the condition of all three patients as being stable and satisfactory,” said Pyatnitsky.
Russian lawyer Nikolai Polozov, who’s defending Captain Denys Gritsenko and coordinating the overall defence of the Ukrainian sailors, stresses that all information regarding the sailors’ health and detention conditions requires official confirmation. As of yet, the FSB’s Investigative Department has neglected to grant the lawyers access to the detainees; nor have Ukrainian diplomats and ombudsman Lyudmila Denisova been given permission to visit them.
“A practice has evolved in Lefortovo whereby the investigator must approve lawyers’ access to their clients,” explains Polozov. “The FSB’s Investigation Department has so far failed to respond to my applications for access to the pre-trial detention centre. And it remains unclear who the case investigator is, whether an investigation team has been put together, and whether the case has been transferred from Simferopol to Moscow.”
That said, Polozov believes that the defence can and should use this pause (“taken for some reason by the FSB agencies”) to coordinate their position. At the moment, the primary objective is to assemble a team of lawyers from a list featuring “50-odd people”: “It’s imperative that there aren’t any special service moles in this team.” Polozov notes that this tactic of undermining the defence is quite standard in serious political trials.
On the evening of 7 December, Mammet Mambetov, who represents Ukrainian seaman Andriy Oprysko, reported that he was contacted by a Russian investigator, who planned to conduct “investigative tasks” relating to Oprysko on 11 December in Moscow.
On the same evening, Ukraine’s human rights commissioner Lyudmyla Denisova stated that the Ukrainian consul in Moscow had visited three injured seamen in the Matrosskaya tishina prison, and four seamen in Lefortovo prison. According to Serhiy Pohoreltsev, the condition of the wounded men is satisfactory: the injuries are from shrapnel, the men’s bones and joints are intact. The Ukrainian seamen held in Lefortovo have not made any complaints about conditions, and asked about their wounded comrades and passed on greetings to their families. Pohoreltsev confirmed that the Ukrainian prisoners had received parcels from activists in Crimea, and reported that he was planning to visit the remaining naval personnel on Tuesday and Wednesday.
As regards the development of events in the case, Crimea’s Supreme Court is imminently due to consider the sailors’ appeals against their detention. The detainees will most likely take part in hearings via video link.
Despite the active involvement of lawyers in the case of the Ukrainian sailors, Nikolai Polozov is convinced that their fate depends “utterly and entirely” on the Kremlin’s political will: “We can definitively state that absolutely nothing is decided in the Russian courts. The courts’ job is to translate the political will of the regime into procedural form. The decision will depend on the political lie of the land: if the latter’s unfavourable, a decision regarding an exchange will materialise earlier, and if not, then why even bother with the issue? Let them stay in jail.”