Leonid Nikitinsky: According to Doctor of Law Bastrykin, 6-7 years’ imprisonment for a post on social networks is just the thing.

20 February 2023

All Quiet on the Western Front: Bastrykin’s interview on the eve of the presidential address tackles purely propaganda issues, not legal ones

by Leonid Nikitinsky

Source: Novaya gazeta 

On February 20, around 11 AM, two reports appeared on the TASS website mentioning Aleksandr Bastrykin, head of the Investigative Committee of the Russian Federation. According to the first report, the Investigative Committee found that ‘the Kiev regime, with the support of Western nations, encourages the participation of mercenaries in combat activities, which is prohibited by international norms.’ The second report states that 152 criminal cases have been opened in Russia for false reports against the Russian Armed Forces (Article 207.3 of the Criminal Code), under which 136 people were prosecuted, 53 criminal cases were taken to trial, and 16 sentences have already been passed.

Meanwhile, a longer interview with Bastrykin had appeared on the Investigative Committee’s website an hour earlier, which cites TASS as the source without referencing the journalist who conducted the interview. The journalist was not mentioned in the TASS publications either. A summary at the beginning of the text reveals the topics covered: ‘The Investigative Committee of the Russian Federation has been investigating criminal cases of the Kiev regime’s crimes in Donbass since 2014. Chairman of the Investigative Committee Aleksandr Bastrykin spoke in an interview with TASS about the defendants in these criminal cases, evidence collected of crimes committed by the Ukrainian Armed Forces, the brutality of the Ukrainian soldiers, their lack of remorse, and the causes of neo-Nazism in Ukraine.’

Apparently, the head of the IC can’t wait to report on his own special military operation on the domestic front in the run-up to the presidential address and events possibly related to this. 

Meanwhile, professionals at TASS understand that journalistic standards deem it a good idea to balance out information about criminal cases against Ukrainian Armed Forces servicemen with cases against the other side, and are still puzzling over how to get out of this situation.

In Yandex’s search engine, results for the query ‘Russian Armed Forces crimes in Ukraine’ bear the following heading: Some links are unavailable due to requirements of the law.’ The only publication not hidden is in Kommersant, citing TASS and dated June of last year. It reports that about 16,500 criminal cases against the Russian military are being investigated in Ukraine, 111 people are suspects, and eight cases have been sent to trial.

The figures have undoubtedly increased since then, and they’re available, but we won’t report on them so as not to aggravate the IC by initiating the 153rd case under Article 207.3 of the Criminal Code. We will limit ourselves to a comment on what Bastrykin said, keeping in mind that the investigative authorities of Ukraine are carrying out similar work.

The investigative authorities of the Russian Federation are investigating 2,544 criminal cases, of which only 1,443 have been opened since ‘the Ukrainian escalation of the conflict.’ Typically, investigators visit the sites of ‘shelling of populated areas and destruction of civilian infrastructure.’ ‘Claims about the accuracy’ of HIMARS multiple rocket launchers ‘only further confirm the intent to harm civilians.’ Cases in these instances are prosecuted under Article 356 of the Russian Criminal Code: ‘Cruel treatment of prisoners of war or civilian populations, deportation of civilian populations, plundering of national property on occupied territory, use in armed conflict of means and methods prohibited by an international treaty of the Russian Federation up to 20 years of imprisonment.’

‘Investigations have been completed in 138 criminal cases on the use of prohibited means and methods of warfare by Ukrainian servicemen,’ according to Bastrykin, ‘as well as cruel treatment of civilians and prisoners of war. ‘At the moment 680 persons are being prosecuted. Indictments have been issued against 403 persons, of whom 188 are in absentia. Among the defendants are 118 commanders. leaders of the Ukrainian armed forces and officials at the Ukrainian Ministry of Defence. 136 defendants have been arrested in absentia.

Here the number (almost half) of those charged in absentia is alarming: they can only be prisoners of war, after all artillerymen who commit shelling are relatively rarely captured. The figure is disproportionately high and this may be indicative of the quality of the evidence – apart from a confession of guilt, it is hardly possible to obtain any direct evidence of the guilt of a particular person for shelling during a military operation.

The most controversial issue here is the question of investigative jurisdiction and, accordingly, the jurisdiction of such cases. This is how the head of the Russian Investigative Committee interprets the matter: ‘When investigating crimes on the territory of the Donbass before the new regions were part of Russia, we proceeded from the fact that our country’s right to prosecute foreign nationals is based on the extraterritorial principle of criminal law…In the Russian Criminal Code the extraterritorial principles of criminal law are set out in Article 12, Part 3. […] After the accession of the Donetsk and Lugansk People’s Republics and the Zaporozhe and Kherson regions to Russia, Russian criminal law provisions apply to the territory of these regions in accordance with general principles.’

Article 12, Part 3, of the Russian Criminal Code states: ‘Foreign citizens … not permanently residing in the Russian Federation, who have committed a crime outside the Russian Federation, are subject to criminal liability under the present Code in cases where the crime is directed against the interests of the Russian Federation or against a citizen of the Russian Federation … as well as in cases provided for in an international treaty of the Russian Federation … if foreign citizens are not permanently residing in the Russian Federation, have not been convicted in a foreign state and are being prosecuted on the territory of the Russian Federation’.

‘Is there a chance they will ever stand trial and be punished?’ the reporter asks. Bastrykin answers: ‘There is a chance, of course, and a real chance, all the more so because the crimes they commit have no statute of limitations.’

This answer is certainly correct with regard, for example, to Russian servicemen. But there will be practically no chance for Ukraine or any other country to extradite Ukrainian servicemen to Russia, especially since international treaties on cooperation in criminal cases have been denounced at the initiative of the Russian Federation. War crimes and ordinary crimes on the territory of the special military operation during the year for which it has lasted, of course, could have been committed by servicemen of both sides: excesses under such conditions are inevitable. But Ukraine will claim jurisdiction over common crimes against servicemen of the Ukrainian armed forces, and in this matter all of Europe will support it. There is at present no question of international recognition of the annexation of the ‘liberated territories’ by the Russian Federation.

The legal meaning of the interview with the chair of the Investigative Committee of the Russian Federation is rather dubious. But: ‘Today, we are ready to present the results of our work in a form accessible to the general public for their judgment. Excerpts from witness statements, photographs and documents are collected in the White Book of the Crimes of the Kiev Regime.’

Today, law enforcement in Russia, along with a punitive function, or perhaps primarily, is intended to solve propaganda tasks. Investigative agencies, in their haste to share their ‘accused’ with the ‘media’ even before they are sentenced, or even in such cases when the chances of a trial are close to zero, have turned into a remote control for the TV (or as here – for TASS).

In this light, Bastrykin’s answer to the question from an unnamed correspondent as to whether the courts hand down proportionate sentences under Article 207.3 on ‘fake news’ is also important: ‘The penalties for these deeds are very severe indeed. But this approach is dictated by the times, and many clearly underestimate the danger to society of such crimes.’ According to Doctor of Law Bastrykin, six to seven years’ imprisonment for a post on social networks is just the thing.

Translated by Nina dePalma and Simon Cosgrove

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