Monitoring of the criminal case against Maksim Nitsenko (exchange process)
In the course of the exchange of prisoners between Ukrainian authorities and representatives of the ORDLO (eastern regions of Ukraine) held in late December 2017, Ukrainian citizen Maksim Nitsenko, who was arrested in 2015, was included in the exchange process. ISHR experts monitored the trial of M. Nitsenko since the spring of 2017.
On December 18, the court decided to release M. Nitsenko from custody and put him under house arrest. The defendant was sent to the special facility for prisoners of armed conflict which was organized by the Security Service of Ukraine in Kharkov. He was exchanged on December 27. According to our information M. Nitsenko is in the hospital in Donetsk. Detailed information about the criminal case of M. Nitsenko can be found in the previous reports prepared by ISHR experts.
Certainly, the exchange of prisoners as an execution of one of the articles of the Minsk Agreements plays an important positive role in the process of conflict resolution. However, the very release of defendants due to the process of exchange of prisoners, and not in accordance with the rules of the criminal law, requires a close consideration. Persons subject to exchange were accused of high treason, attempted sabotage, etc. These are crimes punishable by criminal law; however, the mere fact of including such
defendants on lists for the exchange of prisoners actually transfers them under the jurisdiction of humanitarian law. These changes create a certain legal conflict, since the majority of the persons who were subject to the exchange were released not as a result of a court decision, but due to a political decision to exchange prisoners.
Does this mean that lengthy trials were just a part of a major “political” process (the capture of opponents (or enemies) by the sides of the conflict) or a political decision interrupted the trial at the last moment? In any case, the principle of the rule of law and the independence of the judiciary in Ukraine where jeopardized. As a result, accusations of political motivation in the legal proceedings connected to the situation in the east of Ukraine have been confirmed.
In total, during the exchange, the Ukrainian authorities released more than two hundred people. The proceedings known to ISHR were initially qualified as criminal, but the fact of the prisoner exchange, de facto, transferred them to the category of “the right to conduct war” which puts the judicial system of Ukraine in a difficult situation. It remains unclear why all these persons were not initially treated as prisoners of war (with the legal effects that are due to such a status), especially since representatives of the Ukrainian authorities, including the President, consider the situation in the east of the country as a state of war.
The previous materials on M. Nitsenko’s case can be found here.