Russia: Ukrainian Pilot Convicted

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(Moscow) – A Russian court’s conviction of Nadezhda Savchenko, a Ukrainian military pilot, followed an unfair trial, Human Rights Watch said today. Savchenko was found guilty of abetting the murder of the Russian television journalists Anton Voloshin and Igor Kornelyuk on June 17, 2014, during the armed conflict in eastern Ukraine. She was sentenced to 22 years in prison and a 30,000 ruble (US$450) fine.

Savchenko was also convicted of the attempted murder of civilians and of illegally crossing the Ukrainian-Russian border. Her defense attorneys have told the media that although Savchenko maintains her innocence, she will not appeal the conviction. The court refused to admit crucial defense evidence and consistently rejected important defense motions, making it impossible for her legal team to effectively challenge the allegations against her as fair trial standards require, Human Rights Watch said.

“Simply put, Nadezhda Savchenko did not get a fair trial, and so her conviction is unsound and should not stand,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “There should be justice for the deaths of Kornelyuk and Voloshin, but justice won’t be served by an unfair trial that was highly politicized from the start.”

In a statement to the Russian news agency Interfax, the chair of the Russian Presidential Human Rights Council, Mikhail Fedotov, expressed hope that once the sentence enters into force, Savchenko can be sent to Ukraine as part of a prisoner exchange under the Minsk agreements, a package of measures directed at resolving the ongoing conflict in the Donbass region of eastern Ukraine.

Human Rights Watch is concerned that the trial took place against the backdrop of the ruinous state of relations between the Russian and Ukrainian governments and an extraordinary level of deliberate misinformation in Russia about the conflict in eastern Ukraine. It is also deeply concerned by the precedent set by the 2015 trial of a Ukrainian film director, Oleg Sentsov, which resulted in a 20-year prison sentence on patently unfounded terrorism charges.

A shelling attack killed Kornelyuk and Voloshin near a checkpoint manned by Russia-backed rebel forces in the village of Metallist, in Lugansk region. The prosecution contended that Savchenko abetted the killing by serving as a spotter and calling in a strike on the area.

Rebel forces captured Savchenko on June 17, 2014. The prosecution claimed that rebel forces released Savchenko the day she was captured, out of compassion because she is a woman, and that Savchenko sneaked across the Russian-Ukrainian border a week later, pretending she was a refugee. They said Russian authorities then arrested her on June 30. Savchenko testified that rebel forces captured her on June 17, held her in Lugansk for a week, and then forcibly and illegally took her across the Ukrainian-Russian border on June 23. She said that Russian authorities detained her clandestinely in a hotel, where they questioned her and denied her access to counsel, the Ukrainian consul, and the outside world.

The Donetsk City Court that handed down the conviction, in Russia’s Rostov region, ruled inadmissible without – or with inadequate – explanation, materials that could have served as key exculpatory evidence, Human Rights Watch said.

Among them is expert testimony that could have established that rebel forces captured Savchenko between 10:15 and 10:45 a.m., about an hour before the attack, which would have ruled her out as the spotter. A rebel fighter shot a video describing Savchenko’s capture, with Savchenko briefly visible. The video’s time codes indicate that she was captured after the attack. However, an expert retained by the defense who examined the video concluded that the position of the sun and shadows indicated it was shot around 10:30 to 10:45 a.m. The prosecution expert was allowed to testify and did not challenge the assertion that the angle of the sun indicated a time frame of 10:30 to 10:45 a.m. for the shooting of the video, but said that the lens was damaged and that therefore the video was not reliable. Without their expert, the defense was prevented from effectively challenging this and denying them a right to equality of arms on challenging key evidence. The judge also rejected a defense request to order independent forensic analysis of the video, to determine the true time of day it was shot. The judge said that the time was not relevant.

The court also refused to admit defense expert testimony that sought to establish the location of Savchenko’s cell phones that were in her possession when she was captured, and therefore potentially crucial for her alibi. It also rejected a defense motion to summon for questioning the driver of the car Savchenko said she was in when she was taken across the border.

There were also numerous instances in which the court overlooked considerable discrepancies in the state’s evidence, Human Rights Watch said. For example, an investigator for the Investigative Committee, Russia’s state investigation service, testified that Savchenko was summoned for questioning on June 23 in Voronezh. But in a written statement dated June 23, he stated that Savchenko was in custody. The investigator told the court he had merely made a mistake.

Several rebel fighters testified that Savchenko was captured between 12 and 2 p.m. on June 17, and that she had told them, or that they had heard from others, that she was both “a pilot” and “a spotter” for Ukrainian forces. The defense repeatedly asked to have the witnesses’ written testimony read, so that inconsistencies could be questioned and to have video materials that rebel fighters mentioned during their testimonies shown. The judge denied the overwhelming majority of these motions.

“This is not the first time we’ve seen serious, credible allegations by individuals of being kidnapped across the Ukrainian-Russian border only to then resurface in Russian state custody,” Williamson said. “Savchenko has a right to introduce evidence that supports her account, but the court effectively cut off her opportunity to do that.”

Russia is a party to the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) both of which guarantee the right to a fair trial, including the defendant’s right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” (ECHR article 6(3)(d) and ICCPR article 14 (3)(e)). These underlying principles of equality of arms and that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against them covers evidence provided by eyewitnesses and expert witnesses as well as forensic and documentary evidence.

The European Court of Human Rights has spelled out in many cases, including several against Russia, that this requires, among other things, that states take positive steps to enable the accused to examine or have examined witnesses against them and have a duty to give reasons for refusal to hear a witness. While a defendant does not have an unlimited right to secure the appearance of witnesses in court, if a defense request to have evidence entered or to examine witnesses is not vexatious, is sufficiently reasoned and could arguably have strengthened the position of the defense or even led to an acquittal, the authorities must provide relevant reasons for dismissing such a request. Human Rights Watch believes that the accumulative effect of the court’s rulings precluding the hearing of particular witnesses, refusals to call other witnesses, and limiting the capacity of the defense to cross examine and test the credibility of prosecution evidence constitutes a violation of this key fair trial standard, renders the conviction unsafe and should lead to the conviction being set aside.