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War and justice

The case of Izoliatsiia. Prosecutor Taras Semkiv on Kulykovskyi’s (non-life) sentence, working with victims, and imperfect legislation

Denys Kulykovskyi is the ex-commandant of the Izoliatsiia torture prison in Donetsk. He was detained in Kyiv in 2021. The Shevchenkivskyi District Court in Kyiv sentenced him to 15 years in prison, which, after recalculation under the Savchenko Law, turned into 11 years. The trial was closed, and the verdict on the three articles was announced publicly on 3 January.

Taras Semkiv is the Deputy Head of the Department for Combating Crimes Committed in the Context of Armed Conflict, Office of the Prosecutor General. He led a team of five prosecutors who prosecuted the case of Denys Kulykovskyi after his detention. The case estimated 22 victims. Thirteen victims were interrogated in the courtroom, and another nine were questioned via video conference. Only one of the victims and four representatives of the other four victims attended all court sessions.

In an interview with MIHR, Mr. Semkiv explains how the prosecution combined terrorism and war crimes, why Kulykovskyi did not receive life imprisonment, and what can be expected in other trials concerning Izoliatsiia.

War crime and terrorism

The widespread use of Article 438 of the CCU is a relatively new practice. Before Russia’s full-scale invasion, for war-related cases, the article on terrorism was mainly used. Kulykovskyi’s one has both. How do they correlate, and how does this reflect the verdict?

― I slightly disagree here. Both before and after the full-scale invasion, if there were specific facts, Article 438 of the CCU was incriminated. But in parallel, before the full-scale invasion, the accused were charged with other articles if there was a specific corpus delicti in their actions. Before the full-scale invasion, to conceal its involvement, the Russian Federation acted through several terrorist organizations and presented them as legitimate authorities. Therefore, our convict is charged with Article 258-3 because of his connection with the DPR. Another article concerns participation in an armed group not provided for by law. This is for the work in the MGB DPR ― a paramilitary formation with its own hierarchical structure, which was the DPR subordinate.

Kulykovskyi held a position there.

― I prefer not to name the surname yet so that it would not be interpreted as pressure on the court by the Prosecutor’s Office until the verdict has entered into legal force.

But we still will not avoid the name.

― I realize the public is following the case and already has information about this person. However, as an official of the Prosecutor’s Office, I cannot comment on court decisions outside the appeal procedure. Therefore, I will be cautious.

So, after the full-scale invasion, the Russian Federation revealed its plans and no longer uses illegal armed groups, so what is happening now in the Donetsk and Luhansk regions is qualified without the article on terrorism if it did not exist before the full-scale invasion. This was our concept.

Denys Kulykovskyi during the announcement of the verdict. Photo: ‘Graty’ publication

But doesn’t this undermine the overall narrative of the war with Russia since 2014? It may give the impression that there were just some terrorists there, not Russian occupiers.

― Absolutely not. However, the UN General Assembly recognized the international armed conflict as early as in a resolution in 2016, when Russia was recognized as an aggressor state. At the same time, the Verkhovna Rada has repeatedly stated that the DPR and LPR are terrorist organizations, and this is reflected in the practice of law enforcement and judicial authorities. These circumstances have been proved in front of courts at all levels.

I haven’t seen the verdict yet. Does it contain enough strong emphasis on the fact that this is an international armed conflict, and that is what this terrorism is related to?

― I cannot comment on the court decision until the verdict enters legal force, so I will not assess how fully it has been disclosed. But I can say that there is appropriate wording regarding each offense. All these concepts are disclosed in the verdict. Whether it is complete or sufficient is a value judgment, and I will refrain from commenting on it for now.

Article 438 of the CCU is criticized for lack of distinct wording ― this happened, in particular, because Ukraine has not yet ratified the Rome Statute. When you operated it, did you feel its completeness as an instrument?

― Article 438 of the CCU is really flawed; it is blanket. Though the article singles out separate elements of a criminal offense, it allows departing from them through the clause on ‘other violations of the laws and customs of war.’ There are discussions about how to apply it in different cases. But, in my opinion, what concerns the protection of civilians during international armed conflicts under the Geneva Convention, this article contains no contradiction. It singles out ill-treatment of civilians separately. IHL prohibits the unjustified imprisonment of civilians, much less the use of violence against them. Therefore, there were no different interpretations or discussions in our case.

There are problems with other qualifications. In my opinion, cruel treatment of civilians and prisoners of war are the simplest elements of the crime. Ill-treatment of civilians and prisoners of war, to my mind, are the simplest offenses. But in general, there are discussions regarding changes in Article 438 of the CCU to specify more particular elements of the crime and to unify the article with the provisions of the Rome Statute.

What do you think should be changed?

― This is a complicated question. I would like to see more specifics. In fact, in the practice of IHL application, there are already many specific elements of crimes; they could be implemented in Article 438 so that there is no discussion of whether something constitutes a violation of the laws and customs of war.

For example, it concerns the desecration of civilian and military bodies. Or it relates to our national identity ― so far, the article only contains a clause about looting monuments in the occupied area. However, during shelling, they are also being destroyed in the rest of the territory. Another big problem is crimes against humanity, which are not clearly defined in our national legislation, so there are discussions about whether such crimes can be qualified.

We can talk about this all day long: how the crime is formulated in the Rome Statute and how we qualify it. It is necessary to make this qualification more evident and understandable to every investigator so they do not have to think for a long time over the search for a blanket clause that should be applied in the given case. With so many crimes, investigators in the Kherson or Zaporizhzhia regions, for example, often do not have enough time to search for the relevant clause. It would be much easier if they were just in the Code. We have already adapted to what we have. However, we hope the Rome Statute will be ratified ― and relevant amendments will be brought to the Criminal Code. Then, the qualification will become much more straightforward.

Let’s return to the case and the connection between Russia and the DPR. In the testimonies of those released from Izoliatsiia, there are names or call signs of Russians. Have the investigators established the hierarchy of the torture prison? Were there clear instructions to or from Kulykovskyi?

― The Izoliatsiia case was dealt with by the Donetsk Region Prosecutor’s Office. The materials on Kulykovskyi were singled out into a separate proceeding when he was detained, and it was handled by the Main Investigative Department of the SSU and the Office of the Prosecutor General. In the Donetsk region, many people involved in the crimes in Izoliatsiia and its functioning have been identified. Russians were obviously involved. There are several criminal proceedings, including against Russians who supervised the DPR and MGB, and their subordination to the highest officials of the Russian Federation can be traced through the hierarchy.

In the specific case of our convict, the focus was on what exactly he did with Ukrainians in Izoliatsiia. The Russians supervised not only it but also the work of dozens of detention centers in the occupied area. Last year, the Office of the Prosecutor General alone sent several such cases to court, for example, regarding the Kalynivka and Horlivka colonies. And the Prosecutor’s Office of the Donetsk region did the same. They do pay attention to the supervisors and single out materials about them in separate proceedings.

Torture prison Izoliatsiia in occupied Donetsk. Photo: open sources

Kulykovskyi was convicted on three charges, but the fourth ― human trafficking ― was not proven. Why did this happen?

We had a preliminary qualification during the initial criminal proceedings, even before his detention. Finally, the court concluded that this qualification ― Article 149 of the CCU ― was redundant. At the same time, the court did not acquit the defendant of any of the episodes. It did not say that the prosecutor had not proved anything. It just pointed out that Article 149 was excessive because Article 438 covers everything. The verdict clearly states it.

Strategy and other Izoliatsiia cases

There are other trials and cases against Izoliatsiia. Do you keep in touch with the investigators working on them? Do you have a common strategy?

― We keep in touch with the units. During the full-scale invasion, specialized units were set up in the Prosecutor’s offices, the SSU, and the National Police to investigate war crimes. In the Donetsk region, this unit was created earlier. Now, more than 120,000 war crimes have been registered, and without coordination, we will not be able to investigate them efficiently. We have a strategic plan. We exchange information as needed. Based on the trial results, we did not receive any new information that would require verification. In the Donetsk region, there are many facts they are still checking, and more evidence is emerging. The investigation itself concerning Izoliatsiia is taking place there.

We now want to build an overall strategy for prosecuting crimes related to the illegal detention of civilians, arbitrary deprivation of liberty, and torture. For this purpose, we are building a general system of detention facilities. Izoliatsiia is also on this list; it continues to function.

How can the verdict against Kulykovskyi affect the general work strategy in similar cases? Can other teams learn from your experience?

― At the end of each year, we analyze all the verdicts under Article 438 to see trends and what practices the courts choose so we can take them into account in the future. However, some sentences need to be analyzed immediately. We have 30 days to consider this verdict; it is still ongoing. We will set a point when we decide whether we will appeal. However, we will disseminate many wordings and statements among practitioners. This concerns the blanket clauses that the court refers to when choosing the qualification regarding participation in a terrorist organization, the existence of international armed conflicts before a full-scale invasion, and many other things.

The formal analysis takes thirty days. But outside of it, I think you have already had conversations on this topic?

― Of course. To my mind, we would agree that the qualification under Article 149 was redundant in this case and is indeed covered by Article 438. We do not see the need to incriminate other articles, given that from the point of view of IHL, any violations against civilians in the context of IAC should be qualified under Article 438. This is sufficient; no additional articles are needed. In addition, under paragraph 1 of Article 438, the court imposed a maximum sentence of 12 years. This is what the prosecutor suggested.

In total, 15 years were sentenced under three articles, but because of the Savchenko law, they turned into 11. Judging by the reaction of victims, the public people, and comments to the news, it is clear that people consider it insufficient. They are outraged that this is not a life imprisonment. ‘Ill-treatment of civilians’ is the wording that conceals many terrible tragedies in Izoliatsiia. Was there any thought of working on a life sentence, and why did it not work?

― I agree that it is just wording for us, but for people, it is a tragedy, difficult memories they do not want to recall. They want fair satisfaction for what has been done. But we act exclusively within the legal framework. The maximum penalty for part 1 of Article 438 is 12 years in prison. Part 2 of the article refers to death ― life imprisonment can be imposed for murder due to violation of the laws and customs of war. But in this case, prosecutors had no right to ask for life imprisonment. And the court had no right to impose such a punishment.

As a prosecutor, I cannot give a human assessment, my own attitude. But the provisions of the Criminal Code are not always perfect either. And every crime, especially this kind of crime, is a heavy tragedy. And we would all like, of course, the most severe penalty. However, the principles of criminal law provide for differentiation of punishment. Some crimes may strike us even more by their cruelty. But we should not turn into the Russian Federation, where people are just branded without evidence and are not guided by law when imposing punishment. Despite our emotions, we must adhere to national and international laws and impose penalties that consider the offense’s severity and correspond to the degree of danger of the person to society.

Victims and Justice

You talk about differentiation, but we have trials in absentia, where, for example, 12 years are sentenced for stealing equipment. Don’t you realize that this is incomparable to Kulykovskyi’s verdict?

― Undoubtedly, there are such cases, and we study and evaluate them. For all our ‘love’ for the defendants, we must remain objective because the international community is observing us to see whether our judicial system can deliver fair verdicts after fair investigations. Article 438 contains several specific corpus delicti. This does not mean everyone under part 1 should receive the maximum penalty. There should be differentiation. Moreover, the Geneva Convention allows the court to impose a sentence below the minimum. We are now trying to ensure uniformity of law enforcement so that everyone understands what path law enforcement, the Office of the Prosecutor General, and courts take when imposing punishments, where there is differentiation.

Dmytro Kulykovskyi was sentenced to 15 years in prison with confiscation of property. Photo: MIHR

You mentioned murder as a condition for life imprisonment. The victims testified to public organizations and the media that Kulykovskyi killed people. Did you work on proving it in this case?

― The investigation into what happened in Izoliatsiia is still ongoing. We do not exclude that when it becomes known about the murders of specific people, an investigation will take place, and there may be another trial and punishment. But at this trial, no one reported particular facts about the murders and the convict’s involvement in them.

Did none of the victims mention it in court? Or was it just not possible to prove it?

― The convict’s involvement in the murder of any particular person was not established during the investigation.

Does this mean that the victims said that there were murders but could not prove who exactly? Or was this not mentioned at all in the trial?

― Izoliatsiia was a place of detention, not a place of mass executions ― but we do not exclude that people died of torture there. We have such allegations, but we have no information that a particular person died from the actions of the convict ― not yet.

But was this mentioned at the trial?

― At the trial, it was mentioned that there may have been deaths; there are circumstances that point to this. However, a person can be prosecuted for a specific criminal offense. There was no particular evidence that a specific person was killed in this place and that the convict was involved.

Regarding the trial itself ― it was closed at the defense’s request. Why? Is it fair, given the public interest?

― I cannot evaluate it. It is difficult to say whether the court’s decision was justified. There was a significant public response, but the court considered the defense’s arguments sufficient to hold the hearing in camera. During the preparatory court session, the defense side filed such a request for the safety of those involved in the criminal proceedings on the defense side.

Could it have been either the lawyer or Kulykovskyi?

― Yes.

Why did the safety of, for example, lawyers outweigh the public interest in this situation?

― I am not saying that it was the safety of the lawyers. I cannot disclose the grounds.

The verdict also partially satisfies two civil lawsuits. Why were there only two of them when there were 22 victims, and why did the court grant them a much smaller amount?

― Everyone has the right to file a civil lawsuit. Some used this right, others did not want to. Many victims did not take an active part in the process or need satisfaction from it ― they just wished to forget. This is normal. Many people did not believe it was possible to get the claim satisfied. After all, this is the right of every person. It is solely the prerogative of the court to grant the claim in whole or in part. The court has a well-established practice that it takes into account. The prosecutor’s arguments are not determinative, especially regarding moral damages ― it depends more on the victim’s ability to convince the court.

Does Kulykovskyi have anything to get these funds charged from?

― As far as I recall, he has no property in the unoccupied territory.

In other words, it is unclear whether this decision can be implemented at all?

― Yes. Of course, his property will be searched for. However, I have not heard of any significant assets so far.

There are many victims in this case. Due to the traumatic nature of their experiences, not all of them wanted to be involved in the process. To what extent were the victims involved, and did their attitude to their role change over time?

― Not all the victims were actively involved in the process, which is their right. The witness must testify truthfully, but the victim can refuse to testify. Our role was to convince the court that crimes had been committed and that a specific person was involved. We tried to cooperate as closely as possible with the victims. Some people were easy to work with, others were more difficult. Some victims participated remotely from abroad during the trial. Given the evidence on all the episodes and the maximum penalty, we believe we have achieved the result. It is difficult to say whether the victims are satisfied with the verdict. We will see if they file an appeal. We don’t know yet.

The result is one thing, but the process is another. The Victim Coordination Center has just been established. However, violence and traumatic events have occurred in crimes before. The Izoliatsiia case is a unique case of cruelty. Did the victims believe in justice, or was there disappointment? How did you deal with them in the human dimension?

― The Coordination Center was set up only last year, which is a significant step from the leadership of the Office of the Prosecutor General. The problem with pre-trial investigation bodies and prosecutors is their distance from victims. These are people who have been harmed. They try to forget and definitely do not want to be constantly interrogated by law enforcement officers, often by different ones each time. However, a person wants to know how the process is going and what the outcome might be. A prosecutor or investigator is often focused on proving evidence, while cooperation with a person may be overlooked. We hope that the Coordination Center will become a bridge between them.

How many interrogations could a person have had while working on this case? 

― I cannot say that prosecutors and investigators abused them. But there were cases when it was necessary to clarify something. And this sometimes provoked problems.

Was it irritation or detachment?

― Among other things. Now, Article 615 of the CPC allows testimony previously recorded on video to be used in court. This will simplify the situation if a person does not want to participate in the process because it means a lot of stress and retraumatization ― to speak publicly in the defendant’s presence. It is utterly challenging and requires special training. And it is not always justified. We are trying to introduce a practice where, in some cases, pre-trial investigation evidence can be used in court proceedings.

That is great, but in the Kulykovskyi trial, there was neither a Coordination Center as a bridge nor such approaches. 

― Unfortunately, this proceeding began in 2014-2015, when the practice of working with victims was just being developed, so it was much more difficult. We did not have a technique that would, on the one hand, minimize retraumatization and, on the other hand, predictably inform about participation. Perhaps this caused such reluctance of some people to participate in the process. I hope this technique will be improved over time, and we are working on it.

Do you feel disappointed by this verdict, especially given the Savchenko Law?

― The Savchenko law is a different story altogether. It disappoints everyone who is on the victims’ side. All victims have a negative attitude towards it, regardless of whether it is a war crime or not. It undermines the sense of justice, for sure. On the other hand, we apply the law that our legislature passes. The court has no option but to recalculate. Therefore, we need to have the trial as soon as possible so that the convicted person can serve his sentence without recalculation a day for two days. That is why we want to ensure that the verdict enters into force as soon as possible. If there is an appeal, we will try to go through this process as quickly as possible.

First, Kulykovskyi was not detained in Kyiv for two years, then the trial, then the verdict. How did this affect people?

― I have not personally spoken to the victims yet. But in the reaction of the victims on social media, I did not notice any disappointment with the punishment, the prosecutors’ actions, or the court’s verdicts. I am also unaware of any attempts to appeal and don’t know the statements by those who went through the process that the sentence was too lenient.

Didn’t the victims say so?

I deliberately asked my colleagues ― they did not talk about it. Perhaps they thought over the verdict and came to other convictions. There were no such statements at the initial stage. The sentence was proposed during the court debates, and there were no statements from the victims that it was too lenient. In my opinion, therefore, it is premature to talk about mass dissatisfaction from the victims. Of course, some people always think the punishment is insufficient, while others think it is too severe. I believe that we, as prosecutors, have fulfilled our task by proving all the facts of criminal acts and have achieved a rather strict punishment.

The victims themselves said that Kulykovskyi’s actions were more of an anomaly in Izoliatsiia, but to what extent can we see patterns of Russian persecution of civilian Ukrainians in this case? Could it play a role in international justice to prove Russia’s global policy toward Ukraine?

― Definitely, yes. To do this, we need to investigate crimes committed in places of detention and draw analogies between them to generalize the patterns. They are definitely there. They are visible in all detention facilities in the occupied area.

Firstly, it is deprivation of freedom ― both before the full-scale invasion and now, for example, during the filtering. Even if we abstract from the obviously criminal torture, the very fact of placing a person in a place of detention for behavior they consider wrong is already a crime. Civilians should not be deprived of liberty for their pro-Ukrainian views or statements. This was the case, in particular, in Izoliatsiia concerning six people. The facts of violence and methods are also very often similar in different places of detention. This is frequently done by ‘MGB’ or FSB investigators. They ‘investigate’ something that is not a crime but a patriotic stance and apply the same types of torture, including so-called ‘reeducation’ when they play the Russian anthem, for example.

There are patterns, but it is an effort-consuming job. Analyzing information is hard work, so currently we are working on digital solutions. This will help, first of all, to identify the people who transmit the patterns further, and we can determine the consistency of practices. We believe that it is not the supervisors who turn a blind eye to what their subordinates do but the subordinates who do what the supervisors say. These similarities have a reason ― it is Russia’s policy toward Ukraine.

But then it is crucial to prove their intentions.

― It is critical ― and this is challenging. We need to work with each victim to identify the group against whom certain acts were committed most frequently and then qualify them.

Have the investigators of the International Criminal Court contacted you regarding this case? 

― The ICC is interested in many crimes committed in Ukraine, but primarily against civilians. An ICC office has been opened in Ukraine, and they request miscellaneous materials from the Office of the Prosecutor General. We try to assist them as much as possible. But they are conducting their own investigation, not relying on the ones held by national authorities. We hope they will also identify these patterns and find the senior Russian officials responsible for these crimes.

Oksana Rasulova, MIHR journalist

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