Every action of Russians who take and hold civilians can be determined as crime – prosecutor Iryna Didenko
Civilians cannot be taken prisoner because it is a violation of international humanitarian law, but people are not only detained in the occupied territories and taken to Russia, they are also tortured. According to the data provided by civil society organizations, we are talking about thousands of people.
At the same time, unlike military personnel, civilians cannot be exchanged, as this again contradicts international law. That is why we talked to Iryna Didenko, Deputy Head of the Department of International Legal Cooperation, Head of the Department of Legal Assistance, Extradition and International Cooperation of the Prosecutor General's Office, about what the possible way out of this situation might be, what role other countries can play in this process, and what people who managed to escape from torture chambers say about how criminal proceedings are investigated where a person is considered missing under special circumstances.
"IF THE MILITARY KNOWS THAT THEY HAVE A CHANCE TO BE EXCHANGED, THEN THE WORST THING THAT AWAITS CIVILIAN DETAINEES IS UNCERTAINTY"
- Today, we can see from the war in the Middle East that the release of hostages is so important that hostilities are even suspended for a while. Unfortunately, this is not the case in the Russian-Ukrainian war. It is still unclear how to return civilians captured by the aggressor, as international conventions only provide for the exchange of prisoners of war. There is no mechanism for the return or exchange of civilians. What can be done in this situation? Do you have any vision?
-This is indeed a very big problem. We receive many appeals from people whose relatives are being held by Russia. We also receive signals from people who managed to escape from places where they were held by force and move to the territory controlled by Ukraine. My personal trigger was a woman from a village in the Kherson region that is still under occupation. She managed to leave, and she testified to us that she was tortured in 2023. She said that after the Russians visited her, they went on to other houses. According to her, they first took away opinion leaders, journalists, and activists. And then they just went door to door. Then we realized how massive this phenomenon is. But what we know is a small percentage of what is really happening there. Because people who remain in the government-controlled territories cannot report who is being taken away by the Russians.
It is clear that civilians are generally protected by international humanitarian law, but for us it matters, while for the Russians it does not. In addition, international humanitarian law refers to different categories of crimes. Detention without cause is a crime. Being held for no reason is a crime. Even if we assume that someone killed someone and was detained for it, there should be reasonable investigation timeframes, notification of suspicion, and the opportunity to have a lawyer. There is none of this here. People are either taken away and held without any documents at all, or, as indicated by interrogations and interviews with those who managed to return, suspicions appear much later than they should, and mostly on Russian-controlled territory. That is, they occupy the territory, hold people there, and when they move on to some kind of official charges, they drag the person to a detention center or colony on Russian territory.
- Are they transferring people to official prisons in order to be registered there in some way?
- I don't know for sure, I can only express my opinion. I think they do it to intimidate people more. Like, we're going to put you in jail for many years. Because when a person is detained, they don't know whether they will be released or not, and whether they will survive.
And while the military know that they have a chance to be exchanged, civilian detainees face the worst - uncertainty.
- When it started in Donbas, they took people mostly for the money they hoped to get for them. Does it happen anymore?
- This is a separate category of crimes. These are "civilian hostages" in the sense of international humanitarian law. When there is a direct demand, that is, a person is told that they will be released under certain conditions. For example, a guy from the Kherson region said that he was demanded 100 thousand hryvnias. But this is probably the smallest amount we have heard of. Even though it was stratospheric for him.
They tortured him for a month to get what they wanted.
- Under what circumstances was he detained and where exactly in the Kherson region?
- It was in Kherson itself. He had a micro-cafe. Do you remember the rally in Kherson when local residents protested against the occupiers?
- Of course.
- They then dispersed the rally using smoke screens and tear gas. People were panicking, their faces were burning, they were running away. The only thing he did was to put water near his cafe so that people could wash themselves. For this, he was accused of being an accomplice to the protest movement and taken to a torture chamber.
This man also said that he was shocked when he was accused of allegedly working for the United States. He was accused because a payment terminal with the words "Made in USA" on it was found in a cafe.
Therefore, when people ask about civilians held by the aggressor as a general phenomenon, we explain that each person is a separate tragedy, because what was done to these people and continues to be done affects their fate and their families.
During such interviews, when we need to interview a person, we stop many times, and psychologists work with people.
- You have been working in this area for a short time. Can you tell us what has already been done?
- This area was included in the work of the Prosecutor General's Office as a priority on August 30 of this year. And this is very good. Because such crimes are investigated by different pre-trial investigation bodies, because a person goes to the place of his or her own choosing. For example, people who are displaced came to Lviv and applied to the local police department, but the crime was committed somewhere in the occupied territory. And this proceeding should be sent there accordingly. In addition, they appealed to the police, but the SSU should investigate. That is, it is a complex system of pre-trial investigation bodies that was not ready for such an array of crimes and is now being reformatted. Coordination of efforts of all involved institutions and cooperation with civil society is crucial.
Where did we start? By studying what happened during other wars and armed conflicts. That is, how issues were resolved when civilians were detained during any conflict. Our international experts helped us a lot with this.
In addition, we gather representatives of civic and human rights organizations and government agencies around this topic. They have all been dealing with this topic, but now we have put them at the same table, discussed what they have, where we can help each other.
- What did the analysis of other countries' experience show?
- There was nothing like ours anywhere. Most of what the experts have chosen for us are civil conflicts. Either the country is completely liberated after the war, and only then are the people who are held released. But there is simply no practice of releasing civilian detainees during a full-scale war between countries.
From what we have, we have identified two directions in which we can move. The mediator in the negotiations can be either an international organization that can intervene and conduct a dialogue with Russia, because as you said, our dialogue has been completely stopped. And the second is a country that can take on the role of a third party and communicate in order to release these people. But again, this is only what we have developed. Now we need to join forces and raise this issue on all platforms in the world. Because the world has been communicating rather restrained for the last year and a half on this topic.
- Why?
- First, it's a bit of a dangerous topic. Because many territories are under occupation. And civilians held by the Russians are also a certain type of leverage.
The illegal detention of people is a serious violation of international humanitarian law, and Russia would not really like to be accused of this, because they are trying to pretend that they are supposedly complying with something. But this goes beyond all bounds.
Russia is very fond of spreading suspicion. Initially, they had a favorite article - obstruction of their Special Military Operations. Although everyone understood perfectly well that this far-fetched political persecution had no justification and nothing to do with justice. Then they started using accusations of extremism and terrorism. The main thing for them is to officially transfer a person somewhere so that they can say that they are suspected of something.
Some of those who returned managed to get out the documents - these so-called suspicions. We read this "work". You know what they say: "Was it possible?"
For example, a reason for suspicion is a repost of a post on Facebook about Ukraine being Ukraine. They pinned an accusation and gave the person 7 years.
By the way, it would be very good if people who manage to get out of the occupied territories brought such documents with them, if it is possible and safe. Because they illustrate very well what this Russian justice actually is.
As I said at the beginning of our conversation, every action of the Russians who take and detain civilians can be qualified as a crime. If Russian soldiers come to a person's home and detain them, they are already guilty of a crime. Those who detain them are also guilty of a crime. At first, it may be more or less situational detention. In some basement or they quickly converted a district police station into a torture chamber. It has its own microsystem, but it is a system. Then there is a bigger torture chamber. Because Russians spend time and effort not to plant flowers in the territories they occupy, but to build a huge system of torture chambers. And this is also a crime.
The detention of our people in Russian detention centers and colonies, where they bring them, is another type of detention. The system where they are held also has its leaders who must be held accountable for this.
As for the so-called suspicions, whose fault is it? It's the fault of those who make these illegal suspicions. Prosecutors and their superiors.
Then there are their courts, which judge in one day and sometimes sentence for life. Here we are already talking about a type of crime called restricting access to justice. I'm not even talking about such violations as failure to provide medical care, lack of the right to defense because they don't provide lawyers, a ban on correspondence - relatives don't know where they are. Although the guys who were held there for a year said after their return that they were writing letters to their families all the time, none of these letters were received by their relatives. Obviously, they were not sent anywhere.
Therefore, the situation is serious. We realize that these crimes continue every day. And we have to try to do something. Although we are hostages in this situation.
Our task is to prove in each case what happened to the person. Because we have a lot of cases of disappearances. And no one understands what happened to the person. Relatives have no contact. Is the person being held or not? Alive or not alive? There is no such information.
That's why we decided to shift the focus of our investigations. Previously, they were more focused on torture chambers. That is, they documented how this or that torture chamber is equipped, how it functions, how people get there. And now we are trying to shift the focus to look not only at the torture chamber, but also to follow the fate of the person. Because people move around. Today it's one torture chamber, tomorrow it's another. They are displacing people.
And thanks to those who return, including prisoners of war, we have at least some information. The military and civilians are kept together, although it shouldn't be that way. And when the military comes back and tells us who they saw there, we get indirect proof that this or that person is alive. This is of great importance for the families. They, the poor, are looking for the people who have returned to ask if they have seen their loved ones.
For example, we were approached by a woman whose husband was held by the Russians. He has diabetes. He is 55 plus. She was very worried that in such conditions he could be very ill. She knew that he had been tortured for some time, but then she left the occupied territory and had no more information.
On the government-controlled territory, she started contacting all possible authorities to look for him. We interviewed her, checked all the registers, entered her into the databases, and confirmed it. She managed to involve human rights organizations, which started corresponding with Russia. We do not have the right to conduct any correspondence with Russia, and no one prevents them from doing so. In addition, there are sane lawyers in Russia who can find out something, write a request to the prison on their behalf.
In this particular case, they managed to find out where he was being held in the Russian Federation. They even said what he was suspected of. The suspicion, of course, is about nothing.
The biggest victory in this case was that they managed to talk for 3 minutes on the phone. Human rights organizations have pressed.
- What are they accusing him of?
- That he was once allegedly involved in the ATO. Although he is a civilian and has nothing to do with it.
Unfortunately, such cases where something has been done are still rare. We need a systematic approach here.
- How do you see this systematic approach? Because most of these hostages are considered missing.
- There is a nuance there - missing persons under special circumstances. That is, we understand that the disappearance occurred because of a full-scale war.
"CIVILIANS CANNOT BE EXCHANGED, BUT THEY CANNOT BE DETAINED EITHER"
- Is there a single list that makes it clear that these civilians are being held by the aggressor?
- That is why we have gathered everyone at the table because each body partially keeps some records, but there is no such thing as a list that can be entrusted with the whole list, neither in the legislation nor anywhere else. It would probably be logical for the National Information Bureau to do this. And they, in principle, keep the most complete lists.
We now have access to all the lists and are trying to bring them all together. But there is no single list, because today a person is in the category of missing under special circumstances, and tomorrow there is some evidence that he or she is being held, and from this category the person is already on the list of those held by the aggressor.
The qualification in criminal proceedings changes accordingly. Initially, it may be Article 115 of the Criminal Code labeled "missing person" or Article 146 - "Illegal deprivation of liberty or abduction of a person". This is civilian life. And as soon as there is information that the enemy is holding a person, the qualification is immediately changed to Article 438 of the Criminal Code ("Violation of the laws and customs of war"). And this can only be investigated by the Security Service of Ukraine. That is, there can be nothing stable, because some news can appear at any moment.
Our work as prosecutors, as well as the work of investigators, is to obtain evidence of such crimes, to show the real picture. And in our opinion, the whole world should start talking about this problem with civilians held by the aggressor country, it should be raised to a high level. We can see many resolutions from the UN and other organizations. We were very pleased with the resolution adopted by the UN after Ms. Edwards, the UN Special Rapporteur on Torture, visited us. When she was in Ukraine, she talked to the captured Russian military personnel whom we hold and Ukrainians who returned from Russian captivity. She had something to compare. She made a tough report, and the UN made a tough statement. This is very important.
We talk to the victims, witnesses, and families of the victims. They say that international humanitarian law makes a strong distinction between prisoners of war and civilians who are being held. At first, we also thought that these were different categories. And then we faced a problem. The military can be taken prisoner, they are combatants, they can be exchanged. Civilians cannot be exchanged, but they cannot be detained either. But these two categories have agreed on one thing. Torture. Both are held together and tortured together. And all categories are protected from torture: both prisoners of war and civilians who are held.
We joined forces with the Ministry of Foreign Affairs and received support from the United Nations Development Program on civilians in detention. As a result, we have a PACE resolution adopted in October this year. The Assembly demands the immediate and unconditional release of the victims of enforced disappearances, the elimination of filtration camps and the punishment of those responsible. It also calls on all European parliaments to take some action and condemn Russia for the detention of both civilians and military personnel.
- Did I understand you correctly, you are working with the Foreign Ministry, including to find a protecting country?
- The minister has appointed a person in charge of the Foreign Ministry, and I am in charge of the prosecutor's office. Everything related to the civilians held by the Russians is now our joint effort. We work 24/7. Colleagues from the Ministry of Foreign Affairs meet with international partners, communicate in diplomatic language, and we provide facts. In my opinion, we have very effective cooperation.
In addition, the Prosecutor General has met with many European parliamentarians, and our further task is to ensure that each European parliament passes its own resolution expressing its attitude to the situation with civilian Ukrainians held by the Russians and condemning the Russian Federation.
We have also actively started working on the so-called universal jurisdiction, so that countries that have it can investigate and bring justice to those who violate international conventions, in particular the Convention for the Protection of Persons from Enforced Disappearance, which has been ratified by 71 countries.
- If a unified register of civilians held by the Russians is created, is it possible to make sure that the status of each person is tracked? Where they have been transferred, what the charges are, whether they have a sentence, where they are being held, etc. This could be systematized if the cases are investigated by different law enforcement agencies, and NGOs, in turn, also collect information about such people.
- Our idea is to bring it all together and digitalize this process. Various modern IT solutions can help with investigations. We can compare patterns.
And if, for example, one of the Russian military committed a crime in the Kyiv region, we can find out that he committed similar crimes in other regions. We can work in the same way with civilians who are being held. This is more our area of expertise. But if we follow the list that will be kept by a single body regarding civilian detainees, we are ready to provide them with information. For example, the National Information Bureau has this program, but we would like to expand the system because the idea is to have several users. In particular, the victims themselves - people who file reports on the disappearance of their relatives. We need to make it so that a person can log into their personal account and see what happened after they filed a report.
If there is a criminal proceeding, it should indicate who the responsible prosecutor and investigator are, as well as their contact information so that they can be contacted. Because everyone is well aware that the war is ongoing and a lot of crimes are being committed.
The National Police and the SSU are responsible for the largest number of these crimes. Obviously, the SSU has slightly less resources than the National Police. If the SSU is unable to deal with this due to lack of resources, then the prosecutor determines the jurisdiction because of the ineffectiveness of the investigation by the National Police. When the pre-trial investigation body is changed, the investigator also changes. That's why we want to make sure that victims know who is working on the case and can ask about the results. And if they have any additional information, they can pass it on to the investigator.
Of course, no one has canceled the Unified Register of Pre-trial Investigations and the secrecy of pre-trial investigation. I'm talking about a system where general data can be transferred.
- You said that the Prosecutor General's Office has started to cooperate with civil society organizations that deal with the issue of returning prisoners. What do you plan to do in this direction further?
- Now we have a joint working group with public organizations and government agencies. And we have submitted a document for discussion, which outlines possible mechanisms that have been used in the world and which I have already mentioned. We sent them this document so that they could add their ideas, talk to their partners and experts.
We also want to engage large international organizations in cooperation. Strong global structures that can also add their vision to us. And when we see the whole picture, I hope we will find a way that will be ideal for everyone. Because, excuse me, we as Ukrainians want to go shoot all the Muscovites, take all our people. But we need to come out of this shell a little bit to the outside world, to accept their vision as well. And while we are waiting for this feedback, we must collect evidence of such crimes against civilians. Because every day we are losing our witnesses. Their testimony must be recorded as quickly and correctly as possible.
- Do you have a vision of which country could become a third party?
- I don't want to name them yet, there are many options. These are the countries that could theoretically have a dialog with the Russian Federation.
- So it's not about exchange, but about return?
- In an ideal world, people would be released and brought back to us. But at least they should be released first. People can stay in that third country for some time. The main thing is that they should be free and that they should stop being tortured.
- What if they register civilians as prisoners of war?
- We tried to understand why they do this. But it is impossible to find any logic there. For example, we had a case when a civilian man went to Mariupol to take his family and was captured. When he was released, he told us that they wrote on his cell that he was a soldier.
- Maybe they desire to exchange more of their military, don`t they?
- Maybe so. But let's not forget that these exchanges are handled by the Coordination Headquarters, where they know who is military and who is civilian.
We have another category of people they should release. These are prisoners who ended up in the occupied territories and whose sentences have expired. They mostly deported them to their territory. Some, however, were released, but without documents. That is, a person is essentially homeless. No money, no documents, and in a foreign country.
- Why do they torture prisoners? Is it for pleasure or to force them to testify or encourage them to cooperate?
- It depends. One of the former prisoners said that they asked him for a multiplication table. If you name it wrong, they beat you.
The guys from Zmiinyi (Snake Island -ed.), who were taken prisoner on the first day of the full-scale attack, said that they were told that Ukraine no longer existed. One of them was told that he had allegedly committed murders in Mariupol, even though he had never been to that city in his life. They printed him some papers about some murders and told him to take responsibility for them.
Another soldier from Odesa was told that his city had already been captured, that half of Ukraine had been taken over by Poland and that the rest was Russia's. They often manipulate the fact that people have no connection with the outside world, so they not only physically abuse them, but also psychologically.
- They have already issued many sentences. What should be done with this after the war is over? Should they cancel them or will people continue to be imprisoned under these sentences?
- There may be different scenarios here. They can keep the sentence and deport the person to Ukraine. Or they can pass a law on amnesty for such prisoners. Everything will depend on the circumstances under which the war ends.
Tetiana Bodnia, Censor.NET
