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22.09.2018 | Halya Coynash

Lutsenko admits asylum seeker who defended Ukraine in Donbas was handed over to Russia “by mistake”

Timur Tumgoev (from Russia
   

A week after Ukraine flouted international law by forcibly returning an asylum seeker who had fought for Ukraine in Donbas to Russia, the Prosecutor General’s Office has admitted that it “may have been handed Timur Tumgoev over to Russia’s FSB by mistake”.  This is an about-turn from Prosecutor General Yuri Lutsenko’s attempts to justify the move, parroting Russia’s unsubstantiated claims about Tumgoev. 

The deception continues, however, with PGO spokesperson Andriy Lysenko claiming that if they do learn that he is being ill-treated, Ukraine will apply to an international court to demand that Tumgoev is returned to Ukraine.  One of the multiple reasons for outrage over the treachery towards Tumgoev was the fact that Russia is holding at least 70 Ukrainian political prisoners, some of them on the same suspect charges as those cited in Tumgoev’s case.  If Russia is refusing to return Ukrainian nationals to Ukraine, then any such assurances about demanding Tumgoev’s return are immensely cynical.

News that Tumgoev had been handed over to the FSB was confirmed by the evening of 12 September.  By 13 September, a public statement had been issued by the Chechen Sheik Mansur Battalion for the Defence of Ukraine, confirming the Tumgoev had fought in Donbas as part of this battalion. 

On 17 September, a protest outside the Prosecutor General’s Office turned violent, with a number of police officers reported to be injured.  Criminal proceedings over threats or violence against law enforcement officials and hooliganism were initiated against protesters.

On that same day, Lutsenko held a briefing where he claimed that Tumgoev had been extradited to Russia legally and in accordance with international procedure.  He asserted that this was not some terrible precedent, and continued by talking about the extradition of ‘criminals’ from Ukraine to Russia being normal procedure. 

He acknowledged that Tumgoev had been in detention “for a while”, but that he had had two years to either go to a third country or inform the authorities that he had taken part in the fighting. 

Tumgoev was in fact held in detention for a year and only released when the law did not allow them to hold him any longer.  It was after his release that he joined the battalion in Donbas. 

There were at least two compelling reasons for not informing the authorities that he was fighting for Ukraine.  Lutsenko tried to blur the fact that Tumgoev was an asylum-seeker.  As such, he was unable to admit to taking part in the war, even though he was fighting on Ukraine’s side.  The other reason was that such involvement would make it even more dangerous for him to be returned to Russia.  As was demonstrated, Ukraine’s authorities could not be trusted not to forcibly return him.

Lutsenko’s Press Secretary Larisa Sarhan has announced that on 19 September,  Lutsenko met with the Commander of the 8th Battalion of the Ukrainian Volunteer Army Andriy Cherven and the Commander of the Sheik Mansur Battalion. 

Lutsenko apparently assured them that his position was unchanged, namely that no foreign national, fighting on Ukraine’s side against the Russian occupiers and separatists in Donbas could be handed over to Russia.   

This is, however, precisely what the Prosecutor General’s Office did in Tumgoev’s case.

A criminal investigation over criminal negligence was promised and has now been initiated in connection with Tumgoev’s ‘extradition’.  In the course of this investigation, the PGO’s General Inspectorate together with the SBU [Security Service] will, supposedly, carry out “a comprehensive and objective investigation into possible infringements of the law by officers of the PGO, SBU, Interior Ministry and State Border Administration. “   Lutsenko has promised that should this internal investigation find that there was such ‘negligence’, those responsible will be punished.

All of this is a reaction to justified public outrage that a person who risked his life for Ukraine should be sent back to Russia where that very fact puts him in greater jeopardy. 

Although the criminal investigation is certainly needed, Lutsenko is ignoring other reasons why Tumgoev should not have been handed over to Russia. 

By doing so, Ukraine flouted a halt on extradition from the UN’s Human Rights Committee issued because of legitimate fears that Tumgoev would be subjected to torture in Russia. 

Tumgoev had applied for asylum in Ukraine and that procedure was still ongoing.  It was, in fact, because his document confirming his status as asylum seeker was out of date and needed to be extended that Tumgoev arrived in Kharkiv on 11 September, where he was detained. There is no question that the authorities were unaware of this.  Tumgoev’s KHPG lawyer Volodymyr Hlushchenko was present until around 4 a.m. when he was tricked, with the officers claiming that Tumgoev was being taken to a temporary holding facility.

Lutsenko’s attempt to normalize the situation with Tumgoev and refer to the extradition of many ‘criminals’ was a shocking infringement of the presumption of innocence.  It was presumably hoped that the public would not realize that he was talking about a person who had not been convicted of any crime. . 

Tumgoev had applied for asylum on his detention when he was detained on June 17, 2016, after arriving in Kharkiv from Turkey where he had been living for two years.  That detention was because Interpol had issued a Red Notice at Russia’s request, almost certainly without properly checking the grounds for Russia’s wish to prosecute him.   

He asserted that he was facing persecution in the Russian Federation for his religious beliefs. He told Ukraine’s Security Service (the SBU) that he had been detained on numerous occasions in Ingushetia, and beaten by officers from the so-called Centre for Countering Extremism.  He had also told the SBU that he had come to Ukraine to join a volunteer battalion fighting for Ukraine against Kremlin-backed militants in Donbas.  

Of equal importance is the type of charges which Russia cited in its request for extradition.  At least two of them are regularly used against political prisoners, including Ukrainians.

The Russian arrest warrant from December 2015 was on charges under Article 208 § 2 of the RF criminal code.  This envisages a sentence of up to 15 years for what is termed “participation in an armed formation, also participation on the territory of a foreign state in an armed formation not envisaged by the legislation of the given state, for purposes which run counter to the interests of the Russian Federation”.  

Lutsenko and his colleagues initially spoke of the claim that Tumgoev had been fighting in a ‘radical formation in Syria’ as though this were proven.  If proof had been provided, it would surely have surfaced over the last two years, and did not.  This gives strong grounds for caution since, as reported, Russia has brought charges under this very same article against the world-renowned veteran of the Crimean Tatar national movement and Ukrainian MP Mustafa Dzhemilev and the Head of the Crimean Tatar Mejlis (and MP) Refat Chubarov.  This was pointed out by Chubarov who, back in 2017, interceded on behalf of Tumgoev. 

On March 21, 2016, further charges were brought against Tumgoev of undergoing training aimed at carrying out terrorist activities (205 § 3); and taking part in an organization recognized as terrorist in Russia (205.5 § 2).  The latter of these two charges is the one being used to imprison over 30 Crimean Muslims for their faith and, in a number of cases, for their civic or human rights activism.  At least in the case of the Crimean Muslims, there are no grounds at all for calling the organization Hizb ut-Tahrir ‘terrorist’, yet this does not stop Russia from sentencing men to 20 years or even life after gravely flawed charges.

Tumgoev is now, thanks to Ukrainian treachery, in Russia’s hands and there are no grounds for expecting him to receive any justice.

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