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10.05.2019 | Halya Coynash

Russia claims torture used to imprison Sentsov is none of the European Court’s business

Oleg Sentsov Photo from Twitter
   

It is five years today since Ukrainian filmmaker Oleg Sentsov was seized by Russian FSB and tortured in occupied Crimea.  If the allegations of torture were untrue, why is Russia lying about when he was arrested?

Russia has reportedly claimed that the European Court of Human Rights does not have the jurisdiction to consider whether evidence in the ‘trial’ of Ukrainian filmmaker Oleg Sentsov and activist Oleksandr Kolchenko was falsified, or extracted through torture.  It is most unlikely that the Court will agree, however, despite it being five years since Sentsov was taken prisoner, there is little chance of a judgement in the near future.

Vedomosti reports that it has seen the answers given by the Russian government to the Court’s questions regarding the case and has also spoken with Natalya Dobreva, the lawyer representing Sentsov at the European Court [hereafter ECHR]. 

It is likely that two applications have been communicated to the government since the same publication explained back in March that seven questions had been put to the Russian government in September 2018, with these seemingly focused on the period of detention and on Russia’s illegal attempts to claim that both Sentsov and Kolchenko had become Russian citizens. The Court wanted to know, for example, Russia’s opinion as to whether Sentsov had been under Russian jurisdiction; to whether the ‘judge’ of the Kievsky District Court in Simferopol, Denis Didenko, was a Russian Federation judge at the time of his involvement in Sentsov’s detention; and to allegations of torture.

Russia is claiming that Didenko, who betrayed his oath of allegiance to Ukraine, was a ‘Russian judge’ on the basis of the ‘law’ annexing Crimea from 21 March 2014, which is not, and cannot be, internationally recognized.

Russia initially tried to claim that both Sentsov and Kolchenko had ‘automatically’ become Russian citizens.  In the face of the men’s vehement objections and the lack of any document indicating that they had agreed to Russian citizenship, Moscow was forced finally to acknowledge that they were also Ukrainians citizens.  It is still maintaining that they are Russian citizens, although it can easily be seen that they were ‘tried and convicted’ as Ukrainians (more details here).

The Court in Strasbourg has, unfortunately, decided that any judgement on this or the numerous other cases involving Crimean political prisoners must await its judgement in the inter-governmental case of ‘Ukraine vs. Russia’.  While it is certainly true that many of the issues are linked to the broader question of Russia’s invasion and annexation, the decision is deeply frustrating.  Even those cases, such as Sentsov’s, which the Court gave ‘priority’ status to back in 2014, are virtually on hold, with no likelihood of a judgement in the foreseeable future.

Then in December ECHR communicated questions to the Russian Government pertaining to Sentsov’s challenge of the ‘conviction’ and 20-year sentence.  These concern whether Sentsov was subjected to torture and whether the trial was “independent and impartial”.  ECHR asked for an explanation as to the nature of the testimony given by the men and of the evidence in the case.  Importantly, it also wanted to know the grounds for classifying as secret the identity of a number of ‘witnesses’ and whether their information was the only or decisive evidence. 

The allegations of torture are from the men themselves, and also from Gennady Afanasyev, one of the two other men arrested who originally ‘confessed’ and testified against Sentsov. 

Russia’s response was to claim that the bruises and cuts which Sentsov had suffered were because he had “been pinned to the wall for a short period” during the arrest and search.

Mikhail Galperin, the Russian representative to ECHR, could find nothing better to say with respect to Afanasyev that that since Afanasyev had not himself approached ECHR, the latter could not investigate this question.

Afanasyev found the courage to take the stand in the trial of Sentsov and Kolchenko and retract all his testimony, stating clearly that he had given it under torture.  He had, until then, been imprisoned, without a proper lawyer and without any possibility of applying to the Court in Strasbourg without facing, at very least, reprisals from the FSB and prison staff.  Given that it was his testimony, and that of Oleksiy Chyrniy, who did not retract it, but was not willing to testify in court, that formed the main part of the prosecution’s case, it is simply absurd to suggest that this is not the European Court of Human Rights’ business to establish how the testimony was obtained.  As Dobreva notes, “evidence obtained through torture cannot serve as grounds for finding somebody guilty”.

The Russian representative claimed that the requirements of Russia’s criminal procedure code had been followed with respect to the ‘secret witnesses’, with this in no way answering the question.  He asserted that the Russian government was “shocked” that it should be asked about falsified evidence, and claimed that assessing this evidence is the sole prerogative of Russian courts.

This can also be disputed, however, in fact, the issue in this case was the lack of any real evidence, with the charges against Sentsov based on ‘confessions’ of two men held incommunicado, one of whom has given a harrowing account of the torture he faced.  There were also ‘secret witnesses’ without Russia explaining their need. 

Russia is increasingly using such ‘secret witnesses’ to conceal the lack of any evidence against the 55 Ukrainian Muslims (as of 4 May) whom it has imprisoned on gravely flawed charges of involvement in Hizb ut-Tahrir, a peaceful movement that is legal in Ukraine.  When the defence is unable to verify the identity of such ‘witnesses’, the scope for abuse is evident.

Sentsov has consistently described the torture he was subjected to from the outset, with the FSB threatening that if he did not give the required testimony, he would be sentenced to 20 years, and ‘rot in a Russian prison’. 

He did not give the testimony and he got 20 years

It is also significant that Russia is lying about the timing of his arrest.  They claim that he was arrested on 11 May 2014, although he was seized, and this was widely reported through the social media in Ukraine, on the evening of 10 May.  It is specifically during that period that he is believed to have been tortured.

The four men – Sentsov, Kolchenko, Afanasyev and Chyrniy – were all opponents of Russia’s invasion and annexation of Crimea, and their arrests in May 2014 were the first of several Russian attempts at show trials aimed at creating the impression of a Ukrainian ‘terrorist’ threat. 

All four men were were held incommunicado for up to three weeks, first in Simferopol (Crimea), then in Moscow, before the ‘confessions’ of two of Afanasyev and Chyrniy were shown on Russian TV at the end of May. 

Russia had imposed strict secrecy over the case, however there were calls for Sentsov and Kolchenko’s release from the beginning, and the Memorial Human Rights Centre declared both men political prisoners well before their ‘trial’ at the Northern Caucasus Military Court in Rostov ended on 25 August 2015.  Despite the total lack of any serious evidence and Afanasyev’s retraction of his testimony, ‘judges’ – Sergei Arkadyevich MikhailyukViacheslav Alexeevich  Korsakov and Edward Vasilyevich Korobenko sentenced Sentsov to 20 years and Kolchenko to 10.   Other men who should certainly face sanctions over their part in this internationally condemned travesty were the ‘chief investigator’ Artem Burdin and prosecutor Igor Tkachenko.  Four FSB officers - Alexander Kulabukhov;  Sergei Markov; Dmitry Vasilkov and Alexander Zinchenko - have been identified  as directly involved in the arrest and torture of, at least, Sentsov.

Please write to Oleg Sentsov and to Oleksandr Kolchenko!

Avoid all political subjects and mention of the men’s case.  The letters should not weigh more than 100 g and it would be good to give a return address since they will probably want to reply.

Only letters in Russian are accepted unfortunately.  If this is a problem, please just cut and paste the following, perhaps with a picture or photo. 

Добрый день,

Желаю Вам здоровья, мужества и терпения, надеюсь на скорое освобождение.

Мы о Вас помним.   

[Hello, I wish you good health, courage and patience and hope that you will soon be released.  You are not forgotten.  

Just cut and paste the addresses with the men’s name and year of birth .

Letters to Oleg Sentsov

РФ, 629400 Ямало-Ненецкий автономный округ, город Лабытнанги, улица Северная 33.

Сенцову Олегу Геннадьевичу, 1976 г.р.

[Russian Federation, 629400, Yamalo-Nenetsky autonomous okrug, Labytnangi, Severnaya St, 33

Sentsov, Oleg Gennadievych, b. 1976]

Letters to Oleksandr Kolchenko

РФ,  456612, Челябинская обл., Копейск, ул. Кемеровская, 20.,

Кольченко Александру Олександровичу, 1989 г.р.

[Russian Federation, 456612, Chelyabinsk obl., Kopeisk, Kemerovskaya St, 20

Kolchenko, Aleksandr Aleksandrovich, 1989]

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