Opinion; Subjects: RUSSIAN FEDERATION, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.25-06637 (E) 270625 300625
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 35/2025 concerning Igor Valeryevich Brukhanda, Dmitro
Valeryevich Semibalamut and Igor Nikolaevich Shvachka (Russian
Federation)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 16 December 2024, the Working Group
transmitted to the Government of the Russian Federation a communication concerning Igor
Valeryevich Brukhanda, Dmitro Valeryevich Semibalamut and Igor Nikolaevich Shvachka.
The Government has not replied to the communication. The State is a party to the
International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
* In accordance with paragraph 5 of the Working Group’s methods of work, Ganna Yudkivska could
not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/35
General Assembly
Distr.: General
30 June 2025
Original: English
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religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Dmitro Valeryevich Semibalamut, born on 28 September 1976, is a national of
Ukraine. He was convicted and sentenced to life imprisonment by the Appellate Court of the
Zaporizhzhia Oblast, Ukraine, on 15 June 2004.
5.
Igor Nikolaevich Shvachka, born on 5 October 1963, is a national of Ukraine. He was
convicted and sentenced to the death penalty (replaced by life imprisonment) by the Donetsk
Oblast Court, Ukraine, on 17 October 1997.
6.
Igor Valeryevich Brukhanda, born on 29 January 1982 is a national of Ukraine. He
was convicted and sentenced to life imprisonment by the Appellate Court of the Chernihiv
Oblast, Ukraine on 12 July 2004.
7.
According to the source, all three individuals were detained at Snihurivka correctional
facility No. 5 (Mykolaiv Oblast, Ukraine) until the correctional facility was occupied by the
forces of the Russian Federation on 28 May 2022.
(i)
Context
8.
The source states that at the time of the occupation of Kherson by the Russian forces,
there were between 2,163 and 2,225 prisoners detained in penitentiary facilities in the
Kherson and Mykolaiv Oblasts of Ukraine. All penitentiary facilities were under the control
of the occupying armed forces of the Russian Federation and their affiliated armed groups.
From February to May 2022, the occupying military forces of the Russian Federation and
their affiliated armed groups took over all the penitentiary institutions in the area. Specifically,
Snihurivka correctional facility No. 5, which housed 98 prisoners, including 10 serving life
sentences (three of whom are the individuals referred to in the present communication), was
occupied by Russian forces on 28 May 2022.
9.
Starting in March 2022, the occupying authorities of the Russian Federation began
transferring convicted prisoners between the penal colonies of Kherson Oblast, eventually
consolidating them in Hola Prystan colony No. 7 (Stara Zburivka, Kherson Oblast) which
had been taken over on 3 March 2022. Prisoners from colony No. 5 (Snihurivka), including
the three individuals, were transferred to colony No. 7 on 28 May 2022, immediately after
colony No. 5 had been taken over.
10.
According to the source, on 9 November 2022, the occupying authorities of the
Russian Federation announced their retreat from Kherson. In mid-November 2022, prisoners
convicted by the Ukrainian courts who had been serving their sentences in Kherson prisons
(correctional colonies and medical prison facilities) were reportedly transferred to penal
facilities in the Russian Federation. The transfer of convicts from Kherson followed a similar
transfer of prisoners of war and civilians by the occupying forces of the Russian Federation
from other regions of Ukraine.
11.
The source reports that a few days before the Russian withdrawal from Kherson, in
November 2022, the occupying armed forces of the Russian Federation and officials of the
Russian Federal Penitentiary Service began to transfer prisoners from colony No. 7 to the
Autonomous Republic of Crimea, Ukraine, temporarily occupied by the Russian Federation
and Genichesk (Kherson Oblast). From there, most of the inmates were sent to penal colonies
in the Russian Federation, including in Krasnodar Krai (colonies IK-2, IK-4, IK-5, IK-11 and
IK-14), Volgograd Oblast (colonies IK-19, IK-25, IK-26 and medical prison facility LIU-23),
Vladimir Oblast, Rostov Oblast (prison tuberculosis hospital No. 19, LIU-20) and, allegedly,
Sverdlovsk Oblast. The three individuals, together with four other prisoners serving life
sentences, were ultimately transferred to correctional colony No. 6 in the Republic of
Mordovia.
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12.
The source alleges that the transfers were carried out with the involvement of the
Russian Federal Penitentiary Service. Most of the prisoners were subjected to ill-treatment
and torture in the remand prison in Simferopol (Autonomous Republic of Crimea, Ukraine,
temporarily occupied by the Russian Federation), on the way to penitentiary facilities in the
Russian Federation, and were held separately from Russian inmates or foreigners convicted
and serving their sentences in the Russian Federation.
13.
Prisoners transferred to the Russian Federation were reportedly not allowed to contact
their families or other inmates. Some of the prisoners were allowed to send letters, but were
unable to pay for postage. Their relatives, on the other hand, were unable to get confirmation
about the transfers from the Federal Penitentiary Service.
14.
According to the source, the purpose of the transfer of prisoners from Kherson to the
Russian Federation remains unclear. Allegedly, some of the prisoners had been persistently
offered Russian citizenship and even to join the ranks of the Wagner Group, an
unincorporated military formation that had been recruiting inmates from Russian (or
Russian-controlled) penitentiary facilities between February 2022 and February 2023.
15.
Apart from those transferred, the Ukrainian police reported that 457 prisoners had
been released by the Russian occupying forces from the remand prison in Kherson (suspects
and accused, as well as prisoners with life sentences) shortly before their withdrawal from
the city in November 2022. In addition, the source states that on 11 November 2022, the
building of the Kherson pretrial detention centre was set on fire by the occupying Russian
forces in an attempt to destroy the evidence of the torture of civilians and prisoners that
allegedly took place there.
16.
The source argues that there have been attempts by the Russian authorities to legalize
the transfers. On 31 July 2023, the Russian authorities adopted a federal law (No. 395-FZ)
which proclaimed a retrospective extension of Russian criminal jurisdiction over the
occupied Ukrainian Oblasts of Donetsk, Kherson, Luhansk and Zaporizhzhia, with respect to
all crimes committed there both before and after the occupation (sect. 2 (1)). In addition,
under section 8, the new law provides that the Russian Federation acknowledges the legal
force of all judicial decisions delivered in the occupied territories that entered into force
before 30 September 2022, including the part concerning the execution of sentences.
17.
Allegedly, the newly adopted law echoes a similar legislative exercise undertaken by
the Russian authorities in 2014, following the annexation of Crimea. Thus, Federal Law
No. 91-FZ of 5 May 2014 “On the application of the provisions of the Criminal and Criminal
Procedural Codes of the Russian Federation in the territory of Crimea and the federal city of
Sevastopol” provided for the retroactive extension of Russian criminal jurisdiction on the
territory of the Autonomous Republic of Crimea, Ukraine, temporarily occupied by the
Russian Federation, in respect of crimes committed there before 18 March 2014. With this
legislation, the Russian authorities also acknowledged the binding legal force of criminal
judgments delivered by the Ukrainian courts before 18 March 2014, including for the purpose
of the execution of sentences (section 8 of the Federal Law), and subsequently launched
numerous proceedings for the “reclassification” of sentences in respect of prisoners detained
in the Autonomous Republic of Crimea, Ukraine, temporarily occupied by the Russian
Federation, pursuant to criminal judgments handed down by the Ukrainian courts.
18.
According to the source, similar proceedings on the “conversion” of sentences were
launched in respect of prisoners forcibly transferred from Kherson. It appears that this
procedure was applied mostly in respect of prisoners whose terms of imprisonment imposed
by the Ukrainian courts were soon to end. The “conversion” proceedings were opened and
the relevant decisions were delivered by the “Town Court” – a district level “tribunal”
operating in Kerch (Autonomous Republic of Crimea, Ukraine, temporarily occupied by the
Russian Federation).
19.
The source reports that to date it has identified around 250 “conversion” cases opened
against prisoners transferred from Kherson. In most of them, the “conversion” was made
several weeks before the expiry of the sentences imposed by the Ukrainian courts (or the
sentence was slightly reduced). In some cases, however, inmates were left in detention for
considerable periods (several months or years) upon the “conversion” of their sentences.
Some of those (and presumably others yet to be identified) decisions were delivered before
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the adoption of Federal Law No. 395-FZ and omitted any explanation as to the domestic legal
grounds for the exercise of Russian jurisdiction over the prisoners transferred from Ukraine.
(ii)
Arrests and detention
20.
The three individuals were serving their sentences in Snihurivka correctional facility
No. 5 (Mykolaiv Oblast) which was occupied by forces of the Russian Federation on 28 May
2022.
21.
The sources states that Russian soldiers entered the facility on 28 March 2022. The
prisoners were told to load quickly into trucks, machine-gun shots were heard and the
prisoners were pushed and hit in the back with rifle butts. The gates of the colony were
blocked by a Russian tank and the armed servicemen had dogs with them. Life prisoners (of
whom there were 10 in the colony, including the three individuals) were beaten particularly
badly and abused.
22.
It is further alleged that all the prisoners were handcuffed with their hands behind their
backs. The prisoners serving life sentences, including the three individuals, were brought into
a courtyard and forced to their knees. It is reported that the Russian forces demanded that the
prisoners disclose whether they were convicted for sexual offences and then assaulted those
prisoners who admitted it with the butts of their rifles. It is also alleged that the soldiers put
weapons to the heads of the prisoners and asked questions. In addition, the soldiers
discharged their guns near or in the direction of their heads as a method of intimidation.
23.
All the prisoners were taken away in the beds of the trucks, still handcuffed behind
their backs and lying face down on the floor. The trucks were accompanied by Russian
armoured vehicles. At some point along the way, inmates were transferred to buses and
finally driven to Hola Prystan correctional facility No. 7, about 50 km from Kherson.
24.
The source states that the prisoners were lined up facing the wall, handcuffed,
stretched out and beaten with truncheons on their legs and posteriors for 20–30 minutes upon
their arrival at correctional colony No. 7. It is further alleged that additional beatings occurred
after the prisoners serving life sentences were placed in separate cells by the prison staff.
Beatings became regular during the following two or three weeks. The prisoners were held
in overcrowded premises, without fresh air, and deprived of medical assistance.
25.
The source reports that on 14 June 2022, the facility was visited by a group of
approximately 35 armed prison officers from several colonies. The officers moved from one
dormitory to another to beat up prisoners, take their personal belongings and tear down
Ukrainian flags from the walls. The source adds that similar “intimidation actions” took place
four days after their arrival at colony No. 7 in early June and that all prisoners were similarly
ill-treated upon their arrival.
26.
The source further reports that on 7 November 2022, the occupying forces of the
Russian Federation and officials of the Federal Penitentiary Service forcibly transferred the
applicants to pretrial detention centre No. 2 in Simferopol and from there to the Russian
Federation – first to Rostov-on-Don and then to Ryazan. The source reports that on
22 November 2022 the applicants arrived at correctional colony IK-6 in Torbeevo (Republic
of Mordovia), where they are currently detained. It is reported that the applicants were
subjected to ill-treatment at each point of transfer.
(iii)
Legal proceedings in the Russian Federation
27.
The source reports that on 24 October 2023, the Torbeevo District Court, examined a
request by the head of administration of colony IK-6 and thereafter “converted” the Ukrainian
sentences in respect of Mr. Semibalamut and Mr. Shvachka under the Criminal Code of
Russia, pursuant to section 8 of Federal Law No. 91-FZ of 5 May 2014.
28.
The source reports that a similar request for “conversion” concerning Mr. Brukhanda
was rejected by the Torbeevo District Court. The Court noted that Mr. Brukhanda had been
convicted on 12 July 2004 by the Chernihiv Court of Appeal namely by a Ukrainian court
from an oblast other than the four covered by section 8 of Federal Law No. 395-FZ of 31 July
2023, and therefore there were no grounds for conversion of the judgment against him. It is
further reported that the District Court did not consider the legal basis for Mr. Brukhanda’s
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continued detention and did not order his release. The source states that it appears from the
information on the court’s website that the prison administration applied again for the
conversion of Mr. Brukhanda’s sentence on 19 February 2024, but it was rejected.
29.
The source notes that the situation of the forcible transfer of prisoners from Kherson
was highlighted by the Office of the United Nations High Commissioner for Human Rights
(OHCHR) in its report on the detention of civilians in the context of the armed attack on
Ukraine2 and in its report on the human rights situation in Ukraine.3 Commenting on the
forcible transfer of prisoners from Kherson, OHCHR recalled that forcible transfers and
deportations are prohibited under international humanitarian law and evacuation is only
permitted in strictly specified circumstances if the security of the population or imperative
military reasons so demand. International humanitarian law also requires an occupying power
to return any evacuated persons back to their homes as soon as conditions permit (article 49
of the Geneva Convention relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention)).
30.
In addition, the source notes that the Human Rights Committee’s recently adopted
Views on the communication concerning three Ukrainian detainees, Roman Bratsylo, Valery
Golovko and Sergey Konyukhov are relevant and applicable to the situation of the three
individuals concerned in the present opinion.4 The case of Messrs. Bratsylo, Golovko and
Konyukhov pertained to the forced naturalization (imposition of citizenship) and detention
of Ukrainian prisoners in the Autonomous Republic of Crimea, Ukraine, temporarily
occupied by the Russian Federation, and their transfer to the Russian Federation.
(iv)
Legal analysis
31.
The source submits that the cases of the three individuals fall under category I and
category V.
32.
As a preliminary matter, the source asserts that the detention of convicted prisoners in
Kherson by the occupying forces of the Russian Federation and their subsequent transfer to
and detention in the Russian Federation occurred in the context of the international armed
conflict in Ukraine. Therefore, it entails the applicability of international humanitarian law
to the situation of their detention, in particular, the Fourth Geneva Convention, which, by
virtue of its article 2, shall apply “to all cases of partial or total occupation of the territory of
a High Contracting Party”.
33.
The source asserts that all prisoners (including the applicants) convicted by the
Ukrainian courts who were serving their sentences at the moment of occupation of Kherson
Oblast by the forces of the Russian Federation fall into the category of “protected persons”
under article 4 of the Fourth Geneva Convention as persons “who at a given moment and in
any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of
a Party to the conflict or Occupying Power of which they are not nationals”. The Human
Rights Committee reached the same conclusion in its Views regarding Messrs. Bratsylo,
Golovko and Konyukhov, having recognized their status of “protected persons” detained
pending criminal investigation or trial, under the Convention.5
34.
According to the source, in the matter of the geographical distribution and transfer of
convicted prisoners, article 76 of the Fourth Geneva Convention provides that protected
persons accused of offences shall be detained in the occupied country, and if convicted they
shall serve their sentences therein. While this provision refers to the convictions and
sentences delivered by the occupying power, as a general principle it appears to be a fortiori
applicable to prisoners sentenced and imprisoned by the authorities of the occupied country.
It is especially evident if article 76 is read in conjunction with article 49 of the Convention,
on which, as explained by the International Committee of the Red Cross (ICRC) in its 1958
2 OHCHR, Detention of Civilians in the Context of the Armed Attack by the Russian Federation against
Ukraine, 24 February 2022–23 May 2023 (June 2023), para. 80.
3 OHCHR, “Report on the human rights situation in Ukraine, 1 February–31 July 2023” (October
2023), paras. 95–97.
4 CCPR/C/140/D/3022/2017.
5 Ibid., paras. 8.6 and 8.18.
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commentary on the Convention, it is based, and which lays down the fundamental principle
forbidding deportations.
35.
According to ICRC in its 1958 commentary, “the prohibition (contained in article 49)
is absolute and allows of no exceptions, apart from those stipulated in paragraph 2”, namely,
evacuation of an area by the occupying power. However, the Russian authorities never
explained the forcible transfer of prisoners from Kherson to the Russian Federation as
necessitated by evacuation or for safety and security reasons. The actions of the occupying
forces of the Russian Federation during their retreat from Kherson, such as the release of
pretrial detainees and prisoners sentenced to life imprisonment, as well as the burning of the
remand prison in Kherson, further refute the idea that evacuation was necessary as a potential
motive behind the prisoners’ transfer.
36.
The source argues that the forcible transfer or deportation of the three individuals does
not meet the criteria for a legitimate “evacuation” under article 49 of the Fourth Geneva
Convention for several reasons: the transfer was not carried out in the face of an unexpected
and imperative military need; it appears to have been planned in advance, rather than being
a response to an urgent situation; the implementation of the transfer occurred in an
atmosphere resembling “terror”; and the transfer was not carried out in a manner conducive
to the eventual return of the three individuals (or of the entire group of Kherson civilian
prisoners). Moreover, it appears that the Russian authorities have never informed the
protecting power (and in its absence, ICRC) of the transfer, as required under article 49 of
the Convention.
37.
Furthermore, the transfer of the prisoners does not fall within the scope of subjecting
the population of the occupied territory to provisions which are essential to enable the
occupying power to fulfil its obligations under the Fourth Geneva Convention, as envisaged
in article 64 of the Convention. Thus, no justification has been put forward by the occupying
authorities of the Russian Federation, nor can any circumstances be identified which would
indicate a need for them to subject the population to provisions which are essential to fulfil
their obligations under the Convention.
38.
The source asserts that according to article 64 of the Fourth Geneva Convention, the
penal laws of the occupied territory (Ukraine) should remain in force and are still applicable
to the individuals who have been transferred. The continuing detention of the prisoners by
the Russian authorities has no legal grounds in view of the “severance” of the causal link
between their conviction and their detention – first under the Russian occupation in Ukraine
and then in the Russian Federation – following their transfer, due to the de facto enforcement
of the sentence outside the Ukrainian legal framework. The source adds that the detention of
the three individuals in the Russian Federation and, before that, in Ukraine, under Russian
control, could not be further classified as internment from the standpoint of the Convention.
Thus, under article 42 of the Convention the internment of protected persons may be ordered
only if the security of the Detaining Power makes it absolutely necessary.
39.
The source argues that no security-related grounds necessitating the detention exist or
have been ever invoked by the Russian authorities. Moreover, as demonstrated by the Kerch
“Town Court” conversion decisions (see above), the domestic authorities have never linked
the continuing detention of the Ukrainian prisoners with the military conflict or any security
considerations. The source notes that, apparently, none of the transferred prisoners asked to
be interned (article 42 of the Convention). Finally, no decisions on internment were taken by
the Russian authorities in accordance with article 43 of the Convention and neither were the
inmates who were transferred provided with habeas corpus guarantees, as required under
article 43.
40.
Given that there are no valid legal grounds for the continued detention of Ukrainian
civilians in the Russian Federation and in the absence of legitimate security concerns or
national interests that would justify their detention, the source submits that the three
individuals should be granted the unrestricted right to leave the country, in accordance with
article 35 of the Fourth Geneva Convention. Moreover, the source asserts that the
Government of the Russian Federation is obligated to establish a formal process for handling
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applications to leave the country, including an appeals mechanism for those whose requests
are denied, in order to prevent arbitrary decision-making.6
41.
The source alleges that it is further incumbent on the Russian authorities to ensure that
such departures are carried out in satisfactory conditions as regards safety, hygiene, sanitation
and food (article 36 of the Convention). While detained in the Russian Federation, the safety
and security of Ukrainian prisoners is additionally guaranteed under article 37 of the
Convention, which provides for their right to humane treatment during confinement. Also
under article 37, as soon as they have been released, the Ukrainian detainees should have the
right to ask to freely leave the territory of the Russian Federation.
a.
Category I
42.
According to the source, the detention of the three individuals from 28 May 2022,
when Snihurivka correctional colony No. 5 came under Russian occupation, was arbitrary
and unlawful from the standpoint of international human rights law (article 9 of the Universal
Declaration of Human Rights and article 9 (1) and (2) of the International Covenant on Civil
and Political Rights). The source states that the violations were exacerbated in view of the
fact that none of the three individuals were formally arrested and presented with arrest
warrants by the occupying Russian forces. The victims also were not at any time informed of
the reasons for their arrest, in violation of article 9 (2) of the Covenant.
43.
The source further states that the three individuals were subjected to ill-treatment,
including prolonged transfer, were deprived of access to a judicial review of their detention
after the occupation and denied communication with the outside world and, in particular,
with their families (in breach of principles 1, 2, 4, 15, 16, 19 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and rules 58
and 62 (3) of the United Nations Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules)).
44.
The source recalls the Working Group’s position that deprivation of liberty must have
a legal basis consistent with international human rights standards – not merely national laws.
The authorities must invoke a legal basis consistent with international human rights standards
and apply it to the circumstances of the case.7 In its opinion No. 50/2014, the Working Group
affirmed that international humanitarian law and human rights law apply during armed
conflicts and occupation, with limited derogations. It emphasized that the prohibition of
arbitrary detention is a jus cogens norm, allowing no derogation, and that international
humanitarian law must comply with this prohibition (paras. 62–67).
45.
The source argues that, accordingly, up to the conversion proceedings before the
Torbeevo District Court, the three individuals were detained solely on the basis of the
criminal judgments delivered by the Ukrainian courts before the armed conflict. The
occupation of the Snihurivka correctional facility No. 5 on 28 May 2022 rendered their
detention unlawful and arbitrary, as the occupying forces had no grounds for the continuing
detention of convicted Ukrainian prisoners. The source also asserts that the forcible transfer
to and detention in penitentiary facilities in the Russian Federation of the three individuals
also lacked any legal grounds and therefore amounts to arbitrary detention falling under
category I.
Detention following the “conversion” proceedings
46.
The source states that attempts by the Russian authorities to legalize the detention of
victims have not only failed to remedy the situation but have further entrenched the illegality
and arbitrary nature of their detention.
47.
In that regard, the source notes that on 24 October 2023, pursuant to section 8 of
Federal Law No. 395-FZ, the Torbeevo District Court converted the sentences delivered by
the Ukrainian courts in respect of Mr. Semibalamut and Mr. Shvachka. The source argues
that this retrospectively proclaims Russian criminal jurisdiction in the annexed territories of
6 See ICRC 1958 commentary on article 35 of the Convention.
7 Opinion No. 6/2020, para. 39.
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the Donetsk, Kherson, Luhansk and Zaporizhzhia Oblasts of Ukraine and acknowledges the
legal force of judgments delivered by Ukrainian courts in those territories before their
annexation on 30 September 2022.
48.
The source recalls that in its Views on the communication concerning Messrs.
Bratsylo, Golovko and Konyukhov, the Human Rights Committee concluded that Federal
Law No. 91-FZ contradicted the provisions of the Russian Criminal Code regulating criminal
jurisdiction ratione temporis and established a retroactive application of criminal jurisdiction,
in violation of article 15 of the International Covenant on Civil and Political Rights which
led to the arbitrary detention and conviction of the three individuals.8
49.
The source notes that section 8 of Federal Law No. 395-FZ, which was invoked by
the Torbeevo District Court as a ground for the continued detention of Mr. Semibalamut and
Mr. Shvachka is identical to the relevant provision of section 8 of Federal Law No. 91-FZ.
The source argues that it therefore suffers from the same defect as that identified by the
Human Rights Committee in respect of Federal Law No. 91-FZ by also establishing a
retroactive application of criminal jurisdiction in violation of article 15 of the International
Covenant on Civil and Political Rights, leading to the arbitrary detention of the persons
concerned. Accordingly, the source contends that the detention of Mr. Semibalamut and
Mr. Shvachka, after the conversion of their judgments on 24 October 2023, was unlawful and
arbitrary, falling under category I, due to the ex post facto nature of the legal ground for their
detention.
50.
In regard to Mr. Brukhanda, the source notes that on two occasions, the Torbeevo
District Court explicitly refused to apply Federal Law No. 395-FZ and convert the judgment
against him. Mr. Brukhanda had been convicted by a court in an oblast of Ukraine other than
the four annexed oblasts covered by Federal Law No. 395-FZ. The source argues that the
decision of the District Court implicitly acknowledged that there were no legal grounds for
Mr. Brukhanda’s detention in the Russian Federation and/or under the control of the Russian
authorities or under Russian law. Accordingly, the source argues that Mr. Brukhanda’s
detention, both before and after the conversion proceedings before the Torbeevo District
Court, lacked legal basis and is therefore arbitrary, falling under category I.
51.
It is for these reasons that the source argues that the three individuals were detained
arbitrarily under category I from 28 May 2022 onwards.
b.
Category V
52.
The source argues that the detention of the three individuals also falls under category
V as discriminatory on the basis of national and ethnic origin. The source claims that the
occupying authorities of the Russian Federation have never commented on the occupation of
the penitentiary facilities in the Kherson and Mykolaiv Oblasts or the mass transfer and
continued detention of Ukrainian prisoners. The motives behind these actions cannot be
deduced from the conversion judgments of the Russian courts that are available. The source
argues that the illegal and arbitrary detention and mass transfers, varying legal grounds for
detention, the lack of any formal authorization for detention and transfer, the prolonged
incommunicado detention and their ill-treatment leads to the conclusion that the three
individuals, as part of the larger group of Ukrainian prisoners, were treated differently from
prisoners convicted by the Russian courts and serving sentences in Russian penitentiaries.
The differential treatment on the basis of national and ethnic origin of Messrs. Brukhanda,
Semibalamut and Shvachka amounts to discriminatory detention under category V.
53.
Furthermore, the source notes that in its View on the communication concerning
Messrs. Bratsylo, Golovko and Konyukhov, the Human Rights Committee found that the
authors’ transfer to the Russian Federation to serve their sentences disregarded their ties to
the Autonomous Republic of Crimea, Ukraine, temporarily occupied by the Russian
Federation, and their status of protected persons according to the Fourth Geneva Convention,
and that it was disproportionate and discriminatory, in breach of article 26 of the Covenant.
In the light of these findings, the source considers that, in addition to being discriminated
8 CCPR/C/140/D/3022/2017, paras. 8.4 and 8.5.
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against because of their nationality, the detention of the three victims was also discriminatory
on account of their protected status under the Convention.
54.
The source considers the above-mentioned findings directly relevant and applicable
to the three individuals, who were similarly discriminated against on the basis of their
nationality and their protected status under the Fourth Geneva Convention. It is for these
reasons that the source considers the detention of the three applicants arbitrary under
category V.
55.
Finally, the source asserts that the detention of the applicants contravenes articles 2,
9, 10, 14, 16 and 17 of the International Covenant on Civil and Political Rights and
articles 7–10 of the Universal Declaration of Human Rights.
(b)
Response from the Government
56.
On 16 December 2024, the Working Group transmitted the allegations from the source
to the Government of the Russian Federation under its regular communications procedure.
The Working Group requested the Government to provide by 14 February 2025 detailed
information about Messrs. Brukhanda, Semibalamut and Shvachka, clarifying the legal and
factual grounds for their detention and explaining how it is compatible with the obligations
of the Russian Federation under international human rights law and, in particular, the treaties
ratified by the State.
57.
The Working Group regrets that the Government has not submitted a response or
requested an extension in accordance with paragraph 16 of the Working Group’s methods of
work.
2.
Discussion
58.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
59.
In determining whether the detention of Messrs. Brukhanda, Semibalamut and
Shvachka was arbitrary, the Working Group has regard to the principles established in its
jurisprudence to deal with evidentiary issues. If the source has established a prima facie case
for breach of international requirements constituting arbitrary detention, the burden of proof
should be understood to rest upon the Government if it wishes to refute the allegations.9 In
the present case, the Government has chosen not to challenge the prima facie credible
allegations made by the source.
60.
As a preliminary issue, the Working Group notes that international human rights law,
including the Covenant, continues to apply during times of armed conflict in parallel to
international humanitarian law. The only limitation on this is with the exception of guarantees
derogated from, provided such derogations have been declared in accordance with article 4
of the Covenant by the State Party. The Human Rights Committee has held this position on
multiple occasions.10 The International Court of Justice has also taken the same position.11
For its part, the Working Group has reiterated this position repeatedly, including in its
deliberation No. 8, in which it stated as a matter of principle, the application of international
humanitarian law to an international or non-international armed conflict does not exclude the
application of human rights law. The two bodies of law are complementary and not mutually
exclusive.12
61.
The Working Group expanded on this in its 2011 thematic report on the application
of the international instruments on human rights to situations of armed conflict, stating that
norms of international human rights law protecting individuals against arbitrary detention
9 A/HRC/19/57, para. 68.
10 General comments No. 29 (2001), para. 3, No. 31 (2004), para. 11, and No. 35 (2014), para. 64.
11 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, p. 136.
12 Deliberation No. 8 (E/CN.4/2006/7, sect. II).
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shall be complied with by Governments even during periods of armed conflict and noting the
similar positions adopted by the General Assembly and ICRC.13
62.
In line with that legal position, the Working Group removed a provision from its
original methods of work that limited its ability to address allegations of arbitrary detention
that arose in the context of international armed conflicts.14 Since then, it has addressed
allegations of arbitrary detention in armed conflict in numerous previous opinions.15
63.
On this basis, and noting that the Russian Federation has not explained to the Working
Group that it has derogated from its obligations under the Covenant in a manner that would
affect the present allegations, the Working Group will assess the alleged arbitrary nature of
the detention of the three individuals.
a.
Category I
64.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without legal basis.
65.
According to the source, although the detainees were convicted and sentenced at
various times prior to 2022, the detention of the three detainees became arbitrary from the
moment when the correctional facilities in Kherson Oblast came under Russian occupation,
particularly the occupation of Snihurivka correctional facility No. 5 on 28 May 2022. It adds
that the forcible transfer of prisoners and their detention in penitentiary facilities in the
Russian Federation lacks any legal grounds and, therefore, amounts to arbitrary detention.
The Working Group notes that the Government has elected not to address this issue.
66.
Article 9 (1) of the Covenant requires, inter alia, that no one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are established by
law. This means that procedures for carrying out legally authorized deprivation of liberty
should be established by law and States Parties should ensure compliance with them,
including by specifying when a warrant is required. Article 9 (2) of the Covenant states that
anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges against him.
67.
In relation to the source’s argument that the detainees were detained solely on the
basis of the criminal judgments delivered by the Ukrainian courts before the armed conflict
and there was no basis for their continued detention following the Russian occupation, the
Working Group notes that no provision of international human rights law or international
humanitarian law provides that pre-existing convictions and sentences are automatically
annulled upon the takeover of a territory by an occupying force. In particular, the source has
not pointed to any facet of article 9 of the Covenant that requires automatic release of
individuals serving pre-existing sentences simply because an occupying force takes control
of an area. Noting that the source acknowledges that the detainees had been convicted
pursuant to criminal judgments by Ukrainian courts, issued before the start of the armed
conflict in February 2022, and sentenced to life imprisonment, no violation of article 9 has
been demonstrated in relation to the fact that the individuals were detained at the time the
occupying forces of the Russian Federation took control of the area where their prison was
located.
68.
To the extent that international humanitarian law is applicable, the source has also not
shown that automatic release of all persons serving sentences for pre-existing convictions is
required. On the contrary, the occupying force, while assuming responsibility for ensuring
the continuation of regular civilian activities, may only enact new laws to the extent necessary
to ensure security in the occupied territory and for other, limited, exceptional reasons, in
accordance with article 64 of the Fourth Geneva Convention. Article 64 provides that the
penal laws of the occupied territory (in this case, Ukraine) should remain in force and are still
applicable to detained individuals, with limited exceptions for provisions which are essential
13 A/HRC/16/47, paras. 37–51.
14 Compare the methods of work in 1993 (E/CN.4/1993/24, annex IV, para. 16) with the methods of
work adopted in 2017 (A/HRC/36/38).
15 See, for example, opinions No. 10/2013, paras. 28 and 29; No. 3/2016, paras. 16 and 20; No. 53/2016,
paras. 42 and 51; No. 52/2020, para. 75; No. 68/2020, para. 59; and No. 62/2021, para. 35.
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11
to enable the Occupying Power to fulfil its obligations under the present Convention, to
maintain the orderly government of the territory, and to ensure the security of the Occupying
Power, of the members and property of the occupying forces or administration, and likewise
of the establishments and lines of communication used by them.
69.
Consequently, there was a legal basis for the detention of the three individuals when
they were first detained in Ukraine and at the time of the takeover of Mykolaiv by the
occupying forces of the Russian Federation. The fact that the Russian Federation took control
of the region in which they were detained did not automatically render their detention
arbitrary.
70.
In relation to the basis for the deprivation of liberty of the detainees, the source also
argues that none of the alleged victims were formally arrested and presented with arrest
warrants by the occupying forces of the Russian Federation when they took over the territory.
The Government does not address this argument.
71.
Again, noting that the detainees had been arrested long before the occupying forces
of the Russian Federation took over the territory and had been tried and convicted before the
occupation, the right to notification of reasons for arrest and the nature of the charges is not
relevant in the present instance. Similarly, the source’s arguments that the detainees were not
informed of the reasons for their arrest, nor brought promptly before a judicial officer when
first detained to verify that there was a proper basis for their arrests, relate to their initial
arrests by the Ukrainian authorities and do not apply to the period after they were convicted
and sentenced in Ukraine. Consequently, the Working Group cannot discern a violation under
category I by the Government of the Russian Federation concerning their detention in these
specific respects.
72.
While no violation has been shown in the preceding respects, in the light of the Human
Rights Committee’s findings regarding the communication concerning Messrs. Bratsylo,
Golovko and Konyukhov, the transfer of the detainees, their incommunicado detention and
the conversion of their sentences are separate issues addressed below.16
Incommunicado detention, transfer to the Russian Federation and sentence conversion
73.
The source submits that the detainees were held incommunicado for large parts of
their captivity and that this rendered their detention arbitrary. It submits that this impeded
their ability to challenge the legality of their detention by making them unable to access legal
counsel. The Government has chosen not to respond to this allegation.
74.
The Working Group recalls that holding persons incommunicado may undermine the
right under article 9 of the Covenant to challenge the lawfulness of the detention before a
court. Pursuant to article 9 (4), anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court may decide without
delay on the lawfulness of his detention and order his release if the detention is not lawful.
Judicial oversight of detention is a fundamental safeguard of personal liberty and is essential
in ensuring that detention has a legal basis. Moreover, prohibiting contact with the outside
world may violate rule 58 of the Nelson Mandela Rules and principles 15, 16 (1) and 19 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
75.
Noting the lack of response from the Government of the Russian Federation, the
Working Group considers that such circumstances demonstrate that the incommunicado
nature of the detention was contrary to rule 58 of the Nelson Mandela Rules and principles
15, 16 (1) and 19 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment. The Working Group further notes that, in the present case,
article 9 (4) is relevant, as, although the trials of the detainees had already occurred, they
were brought under a new legal regime when they were transferred by the occupying power
to its own territory. Consequently, their incommunicado detention violated their right to
challenge their detention under article 9 (4) of the Covenant and principles 11 (1) and 32 of
the Body of Principles.
16 CCPR/C/140/D/3022/2017, para. 8.6.
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76.
As referred to above, the source makes additional arguments concerning the transfer
of the prisoners from Ukraine to the Russian Federation. In mid-November 2022, during the
retreat from Kherson of the occupying forces of the Russian Federation, prisoners convicted
by the Ukrainian courts who had been serving their sentences in Kherson prisons were
transferred to penal facilities in the Russian Federation. The Government has chosen not to
respond to these allegations.
77.
The Working Group notes that, according to rule 59 to the Nelson Mandela Rules,
prisoners shall be allocated, to the extent possible, to prisons close to their homes or their
places of social rehabilitation. The Working Group itself has decried the detention of persons
in remote locations. Such remote detention can impede access to family visits,17 potentially
impede access to legal assistance and undermine the ability to challenge detention under
article 9 (4) of the Covenant. Consequently, the transfer of the detainees from Ukraine to the
Russian Federation was not conducted in accordance with international human rights law.
Moreover, to the extent international humanitarian law applies to civilians who have been
detained for reasons unconnected with the conflict, it would also not permit their transfer.
Instead, article 76 of the Fourth Geneva Convention provides that protected persons accused
of offences shall be detained in the occupied country and if convicted they shall serve their
sentences therein. This protection is consistent with the fundamental principle forbidding
deportations.18 The Russian authorities have not provided any explanation or cited a legal
basis for the transfer of the detainees to Russian territory. Noting the deleterious impact on
the detainees’ rights that the transfer to a foreign country has created, particularly the right to
challenge the basis for their detention under article 9 (4) on having been moved to a new
jurisdiction, the Working Group considers that the transfer exacerbated the arbitrariness of
their detention under category I as already established in paragraphs 73–75 above.
78.
The source notes that, on 24 October 2023, the Torbeevo District Court converted
sentences delivered by the Ukrainian courts in respect of Mr. Semibalamut and Mr. Shvachka,
pursuant to section 8 of Federal Law No. 395-FZ. The source argues that this was improperly
imposed and that they were not provided with a hearing before a judge. The Government has
not addressed this argument.
79.
The Working Group considers that the Government has not explained how the law
under which the sentences were converted is consistent with human rights law, nor its
application to persons in Ukraine. Further, it has not justified the retroactive application of
the conversions. Under human rights law, the principle of non-retroactivity applies, as set out
in article 15 of the Covenant, among other instruments. Under international humanitarian law,
when the occupying power brings into effect new legal regimes applicable to civilians under
its control, those new legal provisions can only relate to the purposes specified in article 64
of the Fourth Geneva Convention and they cannot be applied retroactively, as set out in
articles 65 and 67 of the Convention.
80.
On that basis and noting that the detainees were not properly able to contest the
application of the conversion law to their circumstances, the Working Group considers that
the conversion of their sentences under Russian law violated their rights under articles 9 and
15 of the Covenant and articles 9 and 11 (2) of the Universal Declaration of Human Rights,
which further rendered their detention arbitrary under category I.
81.
Conversely, in relation to Mr. Brukhanda’s detention, the source acknowledges that
on two occasions, the Torbeevo District Court explicitly refused to apply Federal Law
No. 395-FZ and to convert the judgment against him. Consequently, the Working Group
enters no finding in this respect.
82.
In the light of the above, the Working Group concludes that the deprivation of liberty
of the three individuals is arbitrary under category I.
17 See opinions No. 5/2021, para. 66; and No. 5/2023, para. 85.
18 Commentary of 1958 on article 76.
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13
b.
Category V
83.
According to the source, the detention of Messrs. Brukhanda, Semibalamut and
Shvachka by the Government of the Russian Federation is discriminatory based on their
national origin, a protected characteristic under the Covenant and the Universal Declaration
of Human Rights, as categorically stated above (para. 52).
84.
The source submits that the detention of the three individuals falls under category V
because it is discriminatory on the basis of their national and ethnic origin as Ukrainians. The
Government has not addressed this submission.
85.
The Working Group notes the source’s uncontested submissions that, as part of a large
group of Ukrainian prisoners, the three individuals have been treated differently from other
prisoners convicted by the Russian courts and serving sentences in Russian facilities, in
particular due to their transfer to and detention in a country other than Ukraine, where they
were convicted and sentenced. The Working Group further notes that their incommunicado
detention infringed their fundamental rights under international human rights law.
86.
The source also discloses that the three individuals have been subjected to
ill-treatment and torture, from the moment of the takeover by the occupying authorities of
the Russian Federation of the Ukrainian territory where they were detained. It adds that
access to the courts in the Russian Federation to challenge the basis of their detention in a
different country, where they do not have family, has been a huge handicap.
87.
The Working Group also notes that other human rights bodies have determined that
prisoners being removed from Ukrainian territory have similarly been discriminated against
and subjected to torture, as was held, for example, by the Human Rights Committee in its
findings regarding Messrs. Bratsylo, Golovko and Konyukhov.19
88.
On the basis of the targeted differential treatment and torture suffered by the three
individuals, which fits within a larger pattern directed against Ukrainian detainees, the
Working Group therefore concludes that their ongoing detention is discriminatory in nature
on the basis of their nationality, in breach of articles 2 (1) and 26 of the Covenant.
c.
Concluding remarks
89.
The Working Group notes the source’s submission that the detainees may have
suffered severe mistreatment, amounting to torture. The Working Group reminds the
Government of the Russian Federation of its ongoing obligations under the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to avoid
torturing all persons, including all Ukrainians, whether detained or otherwise. It emphasizes
the importance of the Russian Federation ceasing to engage in torturing detainees and
investigating and punishing incidents of torture of detainees.
90.
The Working Group wishes to place on record, its very serious concern for the
physical and psychological well-being of Mr. Brukhanda, Mr. Semibalamut and
Mr. Shvachka, who were first detained at Snihurivka correctional facility No. 5 (Mykolaiv
Oblast) until it was taken over by the occupying forces of the Russian Federation on 28 May
2022. In November 2022, the occupying armed forces of the Russian Federation and the
Russian Federal Penitentiary Service started transferring them and other prisoners to the
Autonomous Republic of Crimea, Ukraine, temporarily occupied by the Russian Federation,
and Genichesk (Kherson Oblast). From there, most of the inmates were sent to penal colonies
in the Russian Federation, including in Krasnodar Krai (colonies IK-2, IK-4, IK-5, IK-11 and
IK-14), Volgograd Oblast (colonies IK-19, IK-25, IK-26 and medical prison facility LIU-23)
Vladimir Oblast, Rostov Oblast (prison tuberculosis hospital No. 19, LIU-20) and, allegedly,
Sverdlovsk Oblast. The three individuals, together with four other prisoners serving life
sentences, were ultimately transferred to correctional colony No. 6 in the Republic of
Mordovia.
19 CCPR/C/140/D/3022/2017, para. 8.18.
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91.
The Working Group reminds the Government of the Russian Federation of its duty to
treat all detainees with humanity and with respect for the inherent dignity of the human
person, as required under article 10 of the Covenant and rule 1 of the Nelson Mandela Rules.
3.
Disposition
92.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Igor Valeryevich Brukhanda, Dmitro Valeryevich
Semibalamut and Igor Nikolaevich Shvachka, being in contravention of articles 2, 7,
9 (and article 11 (2) in relation to Mr. Semibalamut and Mr. Shvachka) of the
Universal Declaration of Human Rights and articles 2 (1), 9, 26 (and article 15 in
relation to Mr. Semibalamut and Mr. Shvachka) of the International Covenant on Civil
and Political Rights, is arbitrary and falls within category I and category V.
93.
The Working Group requests the Government of the Russian Federation to take the
steps necessary to remedy the situation of Mr. Brukhanda, Mr. Semibalamut and
Mr. Shvachka without delay and bring it into conformity with the relevant international
norms, including those set out in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights.
94.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Brukhanda, Mr. Semibalamut and
Mr. Shvachka immediately and accord them an enforceable right to compensation and other
reparations, in accordance with international law.
95.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Brukhanda, Mr. Semibalamut and Mr. Shvachka and take appropriate measures against
those responsible for the violation of their rights.
96.
The Working Group requests the Government to bring its laws into conformity with
the recommendations made in the present opinion and its obligations under international
human rights law.
97.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
98.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Brukhanda, Mr. Semibalamut and Mr. Shvachka have been
released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Brukhanda,
Mr. Semibalamut and Mr. Shvachka;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Brukhanda, Mr. Semibalamut and Mr. Shvachka and, if so, the outcome of the
investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Russian Federation with its international obligations
in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
99.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
100.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
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opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
101.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.20
[Adopted on 10 April 2025]
20 Human Rights Council resolution 51/8, paras. 6 and 9.