oDR

Nikolai Polozov: why Ukrainian personnel held in Russia should be considered prisoners of war

After last year’s incident in the Azov Sea between Russia and Ukraine, Ukrainian naval personnel are currently under investigation in Russia. Here, the head of their legal team talks about their conditions and chances for release.

Editors of oDR
18 April 2019
Lefortovo courthouse, 15 January
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(c) Kommersant Photo Agency/SIPA USA/PA Images. All rights reserved

As a result of the incident between Russian and Ukrainian military vessels in the Azov Sea on 25 November 2018, Russian investigators are holding 24 Ukrainian naval personnel in Moscow’s Lefortovo prison.

All 24 men, including three wounded, are charged with carrying out an illegal border crossing into Russian territory. In response, on 15 March, the US, EU and Canada introduced new sanctions against Russian military officials and companies involved in detaining the Ukrainian personnel.

Russian lawyer Nikolai Polozov is coordinating the legal defence team for the Ukrainian sailors, and he believes that they will be released only if international organisations officially recognise the personnel as prisoners of war – and if the Russian authorities choose to make a political decision in their case.

On 17 April, a Moscow court extended the period of detention for all 24 Ukrainian personnel. oDR spoke to Nikolai Polozov about how the men are being treated – and strategies for their release.

To start, could you say a few words about the health and well-being of the Ukrainian personnel?

We do not have information on the health of the sailors. It’s taken a lot of effort to get the injured prisoners transferred from prison to a civilian hospital, and to have all three injured men examined. But they weren’t told what kind of examinations were being performed, they did not give any written agreement to be examined, and they did not receive the results of these examinations.

After these examinations, the Russian authorities permitted an operation to be carried out on seaman Vasyl Soroka’s arm – which had been seriously injured by shrapnel. And he’s already doing better. In terms of the other injured personnel, we still have questions. [Andriy] Artemenko got some shrapnel in the eye, and nothing is being done. This is a big problem. I try to talk about this as often as possible, until we can find ways of solving this problem with the injured personnel.

Judging by media reports, legal access to the naval personnel is limited. Could you describe the situation as you see it?

The issue is that Lefortovo is a special prison. It’s different from other prisons in Russia in the sense that, formally, it’s subordinate to the federal branch of the FSIN [Russia’s Federal Penitentiary Service], not the local regional institution. The FSB’s investigation unit, the central branch, is right next door to this prison and has complete control of it. The visiting system works like this: there’s six rooms for lawyers and investigators to meet prisoners. Bear in mind: there’s several hundred people kept there, and these are all high-profile cases – whether former governors or terrorism suspects, basically everyone whose cases are dealt with by the FSB.

Investigators, not lawyers, are given priority in visiting, so there’s been situations where lawyers have come to blows because they can’t meet their clients. As a result, lawyers now draw lots – once every two weeks, they meet to draw lots, and on this basis a schedule is drawn up. For example, I can’t visit my clients when I want, I have to go and draw a lot – and only then can I visit on the next Monday or Tuesday, on a specific day. Given that this happens once every two weeks, we can only visit our clients twice a month.

Aside from this, the sailors are subject to investigative operations. They are taken out to meet investigators – and that’s another chance to see them. I have an agreement that in these situations every member of our team has the right to talk to a client for 15-20 minutes alone. Of course, in reality these meetings aren’t held in private – the door is open, the investigator is a couple of metres away, so we have to whisper. You can’t call this a real visit.

This situation, of course, violates the right to defence. We can’t visit the wounded personnel how we would like, to find out about their condition. But it’s better than nothing: Lefortovo has a system whereby you can only get in to visit a client with the investigator’s permission. If a lawyer takes up a case, and the investigator doesn’t want him on it, then he can prevent the lawyer from visiting the prison for several months. And in that time, the investigators can break your client.

Could you describe the conditions that the sailors are being kept in?

In comparison with other prisons, Lefortovo is probably has the best conditions, but it’s also the hardest prison. If in other prisons inmates can get mobile phones via a bribe or other means, then in Lefortovo that doesn’t happen. All the naval personnel have been separated, they are in 24 separate cells, and the cells have two beds. Sometimes in Russian prisons you get situations where you have cells with 20 people in them, and inmates have to sleep in shifts – you don’t have that at Lefortovo.

But that said, the conditions are really hard. For example, when an inmate is being led down a corridor, the guards have special clickers that they use to signal this, i.e. that you’re not allowed even to look at the inmate. This means that inmates don’t even see one another when they move around the prison.

So this is a form of psychological pressure?

Yes. The guards have also placed another prisoner in each of the sailor’s cells – and this prisoner is being investigated in another criminal case. Some are kept with a defendant in a weapons smuggling case or terrorism, and others are sharing their cells with the former minister of education of Dagestan. Each of them has a refrigerator in their cell, a TV with two or three national channels, and they’re allowed to take books out from the library.

Together with a group of volunteers, we’ve organised a schedule of giving parcels of clothes and food. A lawyer visits his client and asks what each of them needs (shoes, a sponge for washing dishes, some crackers and so on), and then we give that information to our volunteers. There are certain problems with communication – the investigators do not permit meetings with relatives, telephone calls, even though prisoners have a right to them. You have to buy a special card for their telephone service, and this service, as you understand, is all recorded.

Nikolai Polozov has defended cases such as Nadiya Savchenko and Pussy Riot | Facebook

Russian law states that investigators have the right to decide whether to permit a meeting for a prisoner, and this is used as a form of pressure. There are also problems with letters: they are all subject to censorship, and in the first month and a half the sailors didn’t receive any letters at all. We even agreed with their relatives that they should number all their letters, so that we can figure out what happens when a prisoner receives letters 3 and 5, but not 4. This is a big problem that these letters are stopped.

Why are these calls and letters so important?

Contact with relatives is first and foremost a form of moral support. The main task of the Russian authorities is to find a weak link among the Ukrainian sailors, to find a detainee who can be pressured, and who will admit to the charges against him.

If one admits his guilt, this means that all of them are guilty. But if they all hold up, then the Russian authorities’ position looks unconvincing. When our team of lawyers was formed – and this happened two weeks after they were detained and taken to Moscow – we had to figure out a common position. All the sailors declared that they were prisoners of war, although the authorities are treating them like common criminals. And for our strategy to be successful, we should support them morally, so that they don’t falter, they don’t admit their guilt, and that they remain firm on their position.

Protest in support of Ukrainian captured personnel, Kyiv, December 2018 | (c) Pavlo Gonchar/Zuma Press/PA Images. All rights reserved

The sailors’ only chance to see their relatives was on 15 January, in court, when the court extended their period of arrest. But even then they could only see each other from far away, when the prisoners were led down the courthouse corridor, they didn’t permit a meeting.

After the ships were captured in the Azov Sea, Russian media published video clips featuring three of the captured Ukrainian sailors describing how the situation between the Russian and Ukrainian ships developed. Then there were reports in the press that the sailors were pressured into giving these statements to camera. Could you talk about the condition of the sailors in the first days of their detention?

Prior to capture, the sailors were at sea for many hours. They set sail at six in the morning, and they were captured at 10 at night – i.e. they were tired after 14 hours of work, and after being captured, they were not allowed to rest or eat. Different people constantly visited them, and I’m convinced that they didn’t only record three people speaking to camera, but far more – only three videos were released.

From a legal point of view, the statements given to video do not have any power as evidence – the men were questioned without legal counsel, and the conversation was not drawn up as an official interrogation. This was part of the media campaign in the case, which began right when the Russian ships filmed their ramming of the Ukrainian tug.

In Crimea, the sailors were not allowed to sleep for 48 hours. Next, when they were transferred to Moscow, the sailors came under pressure again. I can say that they were not tortured, they were not beaten, but they were not allowed to sleep, nor eat – and they were under severe psychological pressure.

The investigators periodically carry out investigative operations with them – in the form of “chats”. They’re taken to a cell, an FSB officer sits down and says: “Why do you need all this? Why are you sitting here? Confess your guilt, give evidence against the commander and you’ll go home.”

Another method involves placing another prisoner in the cell with a suspect – this prisoner should then form an opinion [about the suspect] or gain information about them. Our lawyers have instructed all the sailors how to behave in these situations, and none of the sailors now talk to the FSB without a lawyer or the Ukrainian consul present.

Do you consider, or could it be considered, that these first days of capture are close to the definition of torture?

To not allow someone to sleep, eat, to conduct interrogations without legal counsel – this is physical and psychological pressure. This is why when we contact international bodies, we have another team of lawyers from Kyiv: we’ve divided our work so that my team works inside Russia, and the Ukrainian Ministry of Justice has created another team, which works with the European Court and the UN Committees. And naturally, we will give all this information, including the first days of detention, to international bodies: to the European Court, to the OHCHR Committee on Human Rights, and the Committee Against Torture, as well as the Working Group on Arbitary Detention.

On 28 December, the last Ukrainian sailor declared himself a prisoner of war. The PACE resolution from 24 January doesn’t call the sailors prisoners of war, but it does call for their release in accordance with the Third Geneva Convention. Then in February the Office of the United Nations High Commissioner for Human Rights released a report where it says that the crew members “could be considered as prisoners of war”.

Russia has signed the 1949 Third Geneva Convention. It may have been signed under the USSR, but it has been transferred to Russia and Ukraine. Both countries are signatories.

For these conventions to work, you don’t need someone’s permission or agreement. They just exist. If you have military personnel on a military vessel, they have ranks, identifying marks, weapons – and they are following orders, and have a command structure – then they are combatants. And there are combatants on the other side, on the Russian side, they are also military personnel, they are following orders, and have weapons. When combatants of one country start firing on combatants of another country, what is it? It’s an armed conflict, it doesn’t necessarily have to be war. If someone has opened fire, then this can be a border incident. Indeed, it could be qualified as something different, but it’s not a case of police catching criminals. Both groups have the status of combatants. And when the combatants of one country shoot at another group and capture them, then at this moment the Third Geneva Convention begins to operate.

You don’t need Russia’s agreement, or Ukraine’s recognition, or the recognition of the international community – the Convention has been signed, the norms of international law are at work. When military personnel shoot at the military personnel of another country and deprive them of their liberty, it means that they have been taken prisoner: they can’t leave, their weapons have been taken.

A Russian military ship, under a Russian flag, opened direct fire on a Ukrainian ship in neutral waters. This could have happened in the Black Sea, it could have happened in the Mediterranean or Atlantic Ocean. This could have been British or Spanish military personnel, not Ukrainian.

Why don’t certain groups want to call the Ukrainian sailors prisoners of war, including in the Parliamentary Assembly [of the Council of Europe]? First, they say that the prisoners of war are released after the war ends. But this armed conflict began on 25 November, when the Ukrainian sailors were fired upon, and it ended when they were taken prisoner. But we understand, of course, that the war has been going on for five years already.

Captain Volodymyr Lisovoy | (c) Kommersant Photo Agency/SIPA USA/PA Images. All rights reserved

Second, the Russian authorities deny that the sailors are prisoners of war, claiming that “these people are criminals who violated our border. This group of individuals for some reason consciously crossed the border.” Here the key mistake is that the Russian authorities don’t recognise their own Constitution. In accordance with Article 15 of the Russian Constitution, the norms of an international treaty have a direct priority over the norms of Russian national legislation. If an international treaty says that these men are prisoners of war, then the Russian authorities need to check the Constitution and say, yes, they are prisoners of war.

But this doesn’t happen: in cases where there’s politics involved, the legal field is deformed as a result. We’ve seen this – when the judicial system simply doesn’t work - in dozens of cases of Ukrainian political prisoners held in Russia. The courts issues the decisions that the authorities want from them. Our general strategy in this case is that we have no illusions that we can get the sailors released via legal channels alone. In the past five years, no legal instruments have led to a positive result in cases of Ukrainian political prisoners. A positive result only emerges thanks to a political decision.

So what can get the sailors released? A political decision, one that the Kremlin has to take. And the right conditions for this decision to be made can be created. It’s necessary to create external pressure on the Kremlin in order to force it to negotiate.

How can this kind of atmosphere be formed?

Let’s say this: declarations aren’t enough by themselves. The PACE issued a resolution, but do you know who was most against the phrase “prisoners of war”? The Germans. I spoke to the head of the German delegation, we spoke for an hour and a half. And all that time I explained to him very strongly the circumstances of this case and why it’s so important to us. At the start they didn’t want the Geneva Convention to be mentioned, just that the sailors should be released and that’s it. We managed to get the Geneva Convention in there, including the Third Convention, and thanks to that we can refer to this document.

The West’s main concern can be summed up like this: “won’t we make it worse for the sailors? If we call them prisoners of war, then Putin will keep them in prison.” And I say: “Listen, Putin is going to keep them anyway, they’re already in prison, they’re not going to be tortured now.”

This is still the main argument to call them prisoners of war – after all, they’ll be released when the war ends.

But Russia says that there is no war with Ukraine, so what’s the problem? But the armed conflict that began on 25 November ended on the same day, it didn’t continue, even martial law has ended in Ukraine. The position that “the sailors’ situation could get worse” is absolutely unconstructive, they’re having a bad time of it anyway. Everything that we can do can only improve their situation.

If we’re talking about external pressure, then there’s a couple of important things that can be done. First, the [PACE] resolution is very important, things should be called by their real names. In the end, many states have signed the Geneva Convention and the fact that they are ashamed of referring to it means that the next time people end up in this kind of situation, everyone else will also be afraid to use it. This can’t be allowed.

Second, the resolution needs to be passed not only in the Council of Europe, but in national parliaments too. This could be the US Congress, it could be European parliaments – they have the right to pass these kind of resolutions.

Third, on the basis of these resolutions, concrete sanctions can be introduced in response to the situation with the sailors. The West can then say: “You’ve taken these men as prisoners of war, you are violating the Third Geneva Convention.”

Why is the convention useful for the Ukrainian personnel? They get more rights than usual political prisoners – more rights than allowed by the European Convention on Human Rights. For example, under the Geneva Convention, captured military personnel can’t be separated, they have to wear their uniform, their ranks, they should have a chain of command, and they can’t be tried in civilian courts. Even if they are kept in prison, then the decision in their case should be passed by a military court.

Furthermore, Russia has to pay costs to the prisoners of war. For example, officers can receive 50 Swiss francs a month, which isn’t bad. The idea is to raise the political cost of keeping the sailors to the point where it’s not profitable.

This is why defining their status in accordance with the norms of international law is really important – it’s the core of our strategy, there’s no other way forward. If there were some kind of legal instruments we could use, we’d use them, but the possibility of their release lies exclusively in the political arena – and depends on one person in particular. And our job is create this pressure, so that he says: “OK, release them.”

When the Ukrainian personnel were first detained in Crimea, locals started collecting money, food, clothes and other necessary items for them. In Moscow, there’s now a group of volunteers who are helping the prisoners. How would describe the reaction of Russian society to this case?

In terms of Crimea, then Crimean Tatars played a key role in the first days – for five years, they’ve been resisting Russian occupation. And in my opinion, the decision to transfer the sailors from Crimea to Moscow is also related to the fact that Crimea has become this place where the anti-Russian and pro-Ukrainian volunteer movement has crystallised. They were afraid that a community would start to organise around the sailors in Crimea.

In Moscow, there’s a small number of volunteers, but in terms of Russian society – it’s not interested in this case at all. The Kremlin has learned the mistakes of the past. For example, when Nadiya Savchenko was taken prisoner, she was made into an enemy, the media amped her up – and this recognition was used against the Russian authorities. Now they prefer not to talk about the sailors, not to show anything on TV, but only when they’re in court. So there’s no wide-ranging discussion of this problem.

Russian citizens aren’t interested, they’re tired of hearing about Ukraine – everyday, 24 hours a day, the television has been talking about Ukraine. Likewise, Russians aren’t interested in the fate of Russians held prisoner in Ukraine either.

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